,• - £.v Libris C. K. OGDEN 'JL5MX UNSt THE f Law of a Jufhce of Peace // J AND PARISH OFFICER: CONTAINING ALL THE Ads of Parliament at Large concerning them, AND THE Cases determined on thofe Acts I N T H E COURT OF KING'S BENCH. To which is added, A Colle&ion of Precedents revifed and fettled by Perfons of Eminence in the Law ; comprifmg a greater Variety than any other Work of this Kind extant. B Y JOHN Lord Viscount DUDLEY and WARD, And T. CUNNINGHAM, Esq, VOL. I. LONDON: Printed by H. Wood fall and W. Strahan, Law-Printers to the King's Mod Excellent Majefty ; And fold by W. Griffin, in Catharine-Street, in the Strand. M DCC LXIX. in INTRODUCTION, CONTAINING, I. A Collection of adjudged Cafes, Rules and Obfer- vations, relating to the Validity, Commencement, Continuance, Power, and Conftruction or Interpre- tation of Acts of Parliament. II. An hiftorical Account of the Reporters and princi- pal Authors of Treatifes on the Laws and Cuftoms of England. I. A Colkftion of adjudged Cafes, Rules and Obfervations, relating to the Vali- dity, Commencement, Continuance, Power, and Conjlruftion or Interpreta- tion of Aft s of Parliament. BEFORE the art of printing was introduced into England, all fta- What fluH be tutes were, at the end of every feflion of parliament, tranfcribed deemed a good on parchment, and fent to the Iheriff of every county, and with ^° t ^J*e them a writ from the king, commanding him to proclaim them re q U i(j te s to throughout his bailiwick. After he had proclaimed them, which was make it valid, ufually done in his county court, the tranfcripts were there depofited, that any perfon might read or take copies of them. 2 Injl. 516, 644. 4 Injl. 26. But an act of parliament was, even in the ancient times, when this lau- dable practice prevailed, equally binding, although it had not been lb proclaimed. $InJl. 26. 2 Injl. 526. No ftatute is good, unlels it is afiented to by the king and both houfes of parliament. 4 Injl. 25. Bro. Parl.pl. 76. Hob. m. a 2 It IV INTRODUCTION. It lias been laid, that a parliament may he holden without fummoning the lords fpiritual to it : but the better opinion is, that they ought to be fummoned •, becaufe they have, by the law and cuftom of parliament, as good a right to fit in the houfe of lords as any other barons. 2 Inft. 585. If the prelates, however, after having been fummoned, voluntarily ab- fent themfelves, the king, lords temporal and commons, may make an aft of parliament without them. 2 Inft. 585. This is conftantly the cafe where a bill is brought into parliament for attainting any offender of high trealbn. The lords fpiritual are forbid by the canon law to be prefent at the patting fuch a bill ; yet, if the aft proceeds, it is valid. 2 Lift. 585, 586. In like manner, where the fpiritual lords, being prefent, refufe to give their affent to, or proteft againft the pafiing of any bill, and the aft pro- ceeds, it is good without them. 2 Inft. 585, 586. Two bills being read in parliament, the one intituled (11 Ric. 2. ft. 2. c. 2.) A confirmation of the ftatute of ' provifors, and the forfeiture of him that accepteth a benefice againft that ftatute \ the other intituled, (1 1 Ric. 2. ft. 2. ,c. 3.) The penalty of him that brings a fummons, or fentence of excommunica- tion, againft any perfon upon the ftatute of provifors, and of a prelate execu- ting it ; both which tended to reftrain the authority, which was claimed by the pope, of difpofing of ecclefiaftical benefices within this realm ; the archbilhops of Canterbury and York, for the whole clergy of their provin- ces, made their folemn proteftation in open parliament, that they would in no wife affent to any reftraint of the pope's authority. Thefe protefta- tions were, at their requeft, inrolled ; yet both bills were palled by the king, lords temporal and commons, and are amongft the printed ftatutes. 2 Inft. 586. As the voices in parliament ought to be abfolute, either in the affirma- tive or negative, if the bifhops and clergy give their voices with a condi- tion, fuch conditional voices are as none, and an aft is good without their concurrence. 2 Inft. 585. A bill was brought into parliament in the time of Henry VI. That no man ftjould contrail or marry himfelf to any queen of England without fpecial licence and affent of the king, on pain to lofe all his goods and lands. The bifhops and clergy affented thereto, as far forth as the fame fwerved not from the law of God and the church •, and fo as the fame imported no deadly Jin. This being holden as no affent, it was fpecially entered, that it was enacted by the king, lords temporal, and commons. 2 Inft. 587. And whenever any aft is fo fpecially entered in the parliament rolls, to have been enacted by the king, lords temporal, and commons, it is not to be inferred that the prelates were not fummoned to parliament : but it muft be intended that they voluntarily abfented themfelves, or refufed to give their affent to, or protefted againft the pafiing an aft ; or gave fuch voices as were contra legem et confuetudimm parliament. 2 Inft. 585, 58/. Many INTRODUCTION. Many ancient ftatutes are indeed penned in the form of charters, ordi- nances, commands or prohibitions from the king, without mentioning either lords or commons ; and many others have only the general words, It is provided, or It is ordained, without faying by whom : but as thefe have conftantly been received as ftatutes, the prefumption is, that they were made by lawful authority. Hazvk. Pref. to the Stat, i Injl. 98. The difference, according to lord Coke, between a ftatute and an ordi- nance is, that the latter has not the affent of the king, lords and com- mons, but is made by only one or two of thefe powers. 4 Injl. 25. Mr. Prynne, in his animadverfions, &c. on the 4th Injl. lays, That there is no fuch difference, nor any difference at all between an ordinance and en all of parliament. True it is, there are fundry ordinances made by the king and his council out of parliament, for regulating abules ; or pro- ceedings in courts of juftice, the mint, monies, victuals, or other occa- fions (enrolled in the dole and patent, not parliament-roll) like orders of the king and lords of his council at this day, that are different from a&s and ordinance's of parliament, which are both the fame, and had the three- fold affent ; as this claufe in all writs for electing knights, citizens and burgeffes of parliament ad faciendum et confentiendum hiis, qtty an affirmative ftatute, does not always exclude another who was by a precedent ftatute authorized to do the fame. 1 1 Rep. 64. Fcf- ter's cafe. If an action, founded upon a ftatute, is directed to be brought be- fore the juftice of Glamorgan, in his fefiions, it cannot be brourrht before INTRODUCTION. before any other perfon, or in any other place. Plowd. 206. Strad'ing v. Morgan. It being by the 31 Ed. 3. c. 12. provided, " That error in the exche- quer chamber fhall be amended before the chancellor and treafurer, fuch error cannot be amended before any other perfon ; and yet this is an af- firmative ftatute. 1 1 Rep. 59. Fqfter's cafe. By the 26 Geo. 2. c. 22. for eftablifhing the Britijh Mufeum, fome afts were directed to be done by the majority of the truftees. It was fo clear, that thefe a£ts could not be done, under this ftatute, by the majority of the truftees prefent at any meeting, unlefs that majority vvjs alio a ma- jority of the whole truftees, that the 27 Geo. 2. c. 16. was made, for en- abling the majority of thofe truftees who fhall be prefent, provided that feven are prefent at any meeting to do them. By the 8 H. 6. c. 16. it is provided that, after office found, he who finds himfelf aggrieved may, within a month, offer his traverfe, and to take the premiffes to farm ; and that the chancellor, treafurer or other of- ficer, fhall demife them to him to farm until, &c. By the 1 H. 8. c. 16. liberty is given to the perfon aggrieved to do this at any time within the fpace of three months. Afterwards, the 32 H. 8. cap. 40. authorizes the mafter of the wards to grant a leafe of the lands of a ward, or an ideot, while they remain in the hands of the crown. This laft act, notwith- ftanding the defignation of a new perfon, fhall not take away the power granted by the former : for if, before any leafe is made by the mailer of the wards, the chancellor or treafurer makes a leafe of any fuch premif- fes, the mafter of the wards cannot afterwards demife the fame. Stamf. Prerog. 69. 1 1 Rep. 64. A negative ftatute fo binds the common law, that a man cannot after- wards ufe it. Bro. Pari. pi. 72. At the common law, if a lord diftrained for cuftoms, fervices, or any other duties, when none were behind, an action of trefpafs lay ; but fince the ftatute of Marlbridge, the words of which are, If any, of what eflate foever he be, dijlrain his tenant for fervices and cujlcms, which he alkdges to be due unto him, or for any other thing, for the which the krd cf the fee hath caufe to dijlrain, and after it is found that the fame fervices are not due, the lord fiall net therefore be puniffjed by fine ; it has been held that in fuch cafe no action lies. 2 Inft. 105. Bro. Pari. pi. 72. A woman, as well as a man, might at the common law have had an appeal of the death of any of her anceftors : but a woman can now only- have it in the cafe of her hufband's death ; for by Magna Cbarta, c. 34. it is declared, that " no man fhall be taken or impriibned upon the ap- " peal of a woman for the death of any other than of her hufband." 2 Inft. 68. An affirmative ftatute does not take away a cuftom. 1 Inft. 1 1 ?, 115. It has been formerly laid down, that a cuftom is alio good againft a negative ftatute, unlefs fome new law is thereby introduced ; for, if it is. only declarative of the common law, as a man might have prefcri-bed or alieg'.-d: Xlll x l v INTRODUCTION. alleged a cuftom againft the common law, fo he may againft fuch a fta- tute ; for confuetudo privat communem legem, i Inft. 115. But it has been fince held, that no prefcription or cuftom, unlefs it is therein faved, is good againft a negative act of parliament, whether it be declaratory of an old law, or introductory of a new one. 1 Jo. 127. Lord Lovelace's cafe. 2 Bulft. 36. Show. 420. Show. Pari Ca. 175. Whofe pro- The power of conftruing ftatutes is in the judges •, for they have a li- ▼inceit is to berty and authority over the laws, and efpecially over the ftatute laws, to conftrueanaa moyjj them according to reafon and convenience, to the beft and trueft of parliament. uk ^ ^ sbe p /d y Ra Miffe. Plowd. 109. 3 Rep. 7. But only the judges of the temporal courts have this power. Mar. 90. pi. 148. 2 Inft. 614. An ordinary cannot impofe any new condition in a bond of adminiftra- tion, but mull: take it in the words of the 21//. 8. c. 5. and when an action is brought upon it, the meaning of that ftatute, and of the condition, muft be afcertained by a court of common law. Hob. 83. Slawneys cafe. In a cafe, where a queftion arofe, Whether a man was a brankrupt ? it was infifted, that as the jury had only found facts, but had not drawn the conclufion that he was a bankrupt, the court could not do this ; fed von allocatur. Et per Cur. As the jury have found the fads, the court may judge from thele, whether the man is within the defcription of any of the bankrupt acts. 2 Jo. 142. Dodfworth v. Anderfon. It was found, by a fpecial verdict, that the defendant had an eftate of one hundred pounds a year-, that he carried on the bufinefs of a poulte- rer •, that he had a hare in his cuftody j and that he did fell a hare for four (hillings : and one queftion was, whether this perfon was a chapman within the meaning of the 5 Ann. c. 14. by which it is enacted, " That if any higler, chapman, carrier, inn-keeper, victualler or alehoufe-keeper, fhall have in his cuftody, or fell any hare, pheafant, partridge, moor, heath game or growfe, he fhall forfeit for every fuch offence the fum of five pounds. 4 Bac. Abr. 643. cites is/jS. Rep. Eajl. 27 Geo. 2. Searl qui tarn v. Poulter. Upon arguing this cafe, it was faid for the defendant, that if the word chapman had been there intended for a word of general fignification, it would have been the laft word made ufe of, and would not, as is done, have been inferted before the word carrier, and other words of a more confined fignification. It was alfo faid, that as the jury have not by this verdict found him a chapman, the court cannot now infer that he is one •, and 2 Rol. Abr. 693. 1 Inft. 227. Com. 479. L. Raym. 158 1. KeL 78; were cited. It was anfwered, that the doubt in the cafes cited was, whe- ther fufficient facts were found by the jury. But here the facts of having a hare in his cuftody, and felling a hare, are found •, and the only doubt of the jury is, what the meaning of the word chapman in this act of par- liament is: And the cafe of Sir 'Thomas Jones 14 . juft now mentioned, was relied on, to fhew that it is the proper bufinefs of the court to con- flrue fuch words as this in an act of parliament. The reply was, That as INTRODUCTION. xv as divers afts of parliament had defcribed a bankrupt, the court in the cafe in Sir Thomas Jones did nothing more than judge of the perfon with- in any of thefe uefcriptions : but no ftatute has defcribcd a clupman. The judgment, in which the court were unanimous, was for the defen- dant; and by Kyckr Ch. J. the word chapman is in fome cafes, as when applied to a tradesman who becomes a bankrupt, of very general fignifi- cation ; but its meaning in this cafe muft be gathered from the aft itfelf. It is clear from the preamble, that the defign of this ftatute is to pre- vent the deltruftion of the game by idle and profligate perfons, but not to prevent all fale of game •, and much Lfs to prevent all perlbns, who may fall under the denomination of the word chapman in its larger fenfe, from having it m their cuftody. Two forts of perfons are by this aft forbid to have game in their cuftody •, the carriers of it, and fuch as fuffer it to be eat in their houfes. The word chapman then, as it ftands between the words higkr and carrier, means only a petty chapman who, by rea- fon of his trading up and down the country, is likely to be employed in carrying game, and could never be intended to include a poulterer. It is the moft natural and genuine expofition of an aft of parliament, R u i est obe to conftrue one part of the aft by another part of the fame act ; for that obfervedinthe belt expreffeth the meaning of the makers ; and fuch expofition is ex vif- coniiructionor cenbus ac-lus. \ Inft.&i. of ace"""" 1 When one branch of a ftatute is obfcure, expofitors acctiftom them- par a j, ament felves to confider the other branches ; for oftentimes the words and mean- R u j e 1. in ing of one claufe lead to the fenfe of another. Plowd. 365. Stowel v. Zouch. the conftruing 11 Mod. 161. ° f ™y P™ of An aft of parliament ought, upon the whole, to be fo conftrued, that other"^'^^ 6 ^ if it can be prevented, no claufe, fentence or word, fhall be fuperfluous, thereof muft void or infignificant. 1 Show. 108. Rofe v. Bercbett. Hard. 344. be confide/ed. The title of a ftatute is not to be regarded in conftruing it, becaufe it is no part thereof. Hard. 324. L. Raym. 77. It is in general true, that the preamble of a ftatute is a key to open the mind of the makers, as to the mifchiefs that are intended to be there- by remedied. Plowd. 309. Howell v. Zouch. 1 Injl. 79. But this rule muft not be carried fo far, as to confine the more general words of an enafting claufe to any particular words in the preamble -, for there was a time when afts of parliament were made without pre- ambles ; and even now preambles are no more than recitals of fome in- conveniencies, but they do not exclude any other for which a remedy is given by the enafting claufe. 8 Mod. 144. Rex v. Althoes. 6 Mod. 62. Palm. 486. 1 Jo. 164. It was faid by Lord Cowper, that he could by no means agree with the notion, that a preamble fhall reftrain the operation of an enafting claufe •, and he faid, that if the preamble of the Coventry AS had on- ly recited the barbarity of flitting Coventry's nofe, and the enafting claufe had been general againft the cutting off a member, whereby a man is disfigured or defaced; it might with equal reafon have been objefted, that cutting off the lips, or putting out an eye, would not have been 1 within XVI INTRODUCTION. wichin the aft, becaufe they are not recited in the preamble, i Will. 320; Copentan v. Gallant. General words in a ftatute may be reftrained by fubfequent fentences or claufes in the fame ftatute. 8 Mod. 8. Rex v. The B'rjhop of Ardmagb. If lands are difgavelled, by aft of parliament, to all intents and pur- pofes, and made defeafible as lands at the common law, the former, ge- neral words are fo reftrained by the more particular fubfequent ones, that although the partibility of the eftate, by which many families have been reduced to a low eftate, is put an end to •, the cuftom to devife is not hereby taken away ; for this is a privilege at the common law, and no part of the cuftom of gavelkind. 1 Lev. 80. Wifeman v. Cotton. But no preceding reftraining words fhall controul the general words in the enacting part of an acl: of parliament. 8 Mod. 144. Rex v. Altboes. Palm. 486. 1 Jo. 164. Where a thing is given or limited by particular words in a ftatute, this fhall not be taken away or altered by any fubfequent general words. 1 Jo. 26. Stan don v. The, Univerfity of Oxford. A faving in a ftatute which is repugnant to the purview of the fta- tute, is void. iRep.^y. Alton Wood's cafe. Plowd. 564, The purview of an acl may be qualified or reftrained by a faving in it; but if the faving is deftruftive of the purview, it fhall be void. 1 Jo. 339. Rex v. Priejl. 10 Mod. 1 1 5. Where the provifo in a ftatute is directly contrary to the purview, the provifo fhall be held good, and not the purview : becaufe it fpeaks the lait intention of the legiflators. Fitz. 195. The Attorney General v. The Governors of Chelfea Water-works. Rule 2 Where If on e aft of parliament prohibits a thing to be done, and another aft divers itatutcs j s a f ter ma d ej whereby a forfeiture is infiifted upon the perfon doing that relate to the n - botIl tne f e are to be confidered as one aft. Plowd. 206. Stradlin? lame tiling, r>* o they mult all v. Morgan. _ . be taken into When an aftion, founded upon a former ftatute, is given by another confideration ft at; ut:e in a new cafe, all that was adjoined to it in the firft ftatute is alio An aft lately made (ball be taken to be within the equity of one made long lince •, and there are in our books frequent inftances of its be- ing fo held. 4 Rep. 4. Vernon's cafe. If a thing which had no exiftence, before the making of a latter aft of parliament, is within the reafon of a former aft, it fhall be taken to be within its meaning. Lord Raym. 1028. Sir William Moore's cafe. 2 Jo- 6 i- The flat. 13 Eliz. c. 10. concerning leafes made by fpiritual perfons, being enlarged by the 14 Eliz. c. 1 1. although only the former of 'thefe is recited in the 18 Eliz. c. 11. the latter is by confequence alio recited. 1 Vent. 246. Bayly v. Murin. In the fame cafe it is laid down, that there is fuch a connexion betwixt all the ftatutes concerning leafts made by ecclefiaftical perfons, that they 3 a f e tncm. INTRODUCTION. XV 11 are all to be taken into the conftruction of any one of them. The 32 //. 8. c. 28. is not recited in the 1 Eliz. c. 19. nor in the 13 Eliz. c. 10. Yet a leafe is not warranted by either of thefe ftatutes, unlefs it has the qualifications required by the 32 Hen. 8. and this courfe is ufual in the conftruing of ftatutes made in pari materia. The 22 ci? 23 Car. 2. c io. for the better fettling of inteftates eftates, is continued with fome additional claufes by the 1 Jac. 2. c. 17. It was held by Lord Hardwicke chancellor, that for this reaibn the latter muft be confidered, as if the former had been repealed and re-enacted by it. Barn. Cb. Rep. 276. JVallis v. Hod/on. A queftion arifing whether juftices of the peace had a power to appoint Jive overfeers for the parifh of St. Chad in Sbrewftury, it was held that they had not: And by Lord Mansfield Ch. J. Tht: number of overfeers was by the 29 Eliz. c. 3. to be precifely four. As this number might in fome cafes have been found too large, power is given by the 43 Eliz. c. 29. of appointing four, three, or two, refpect being had to the greatnefs of the parifh •, but no power is given to exceed in any cafe the number of four. The rule of law as to a fpecial authority is, that every thing done under the colour of it, which is not within it, is void. There is no need to infert negative words in either of thefe ads : Nay, fince no power had been ever given to appoint five overfeers, it would have been quite nu- gatory to have faid that five fhall be appointed •, as the 39 Eliz. was un- doubtedly under confideration of the legiflature, when the 43 Eliz. was made, it ought, although long fince expired, to be now taken into con- fideration in explaining this laft : for it is a rule in the conftruction of itatutes, that all which have relation to the fame fubject, notwithftanding fome of them may be expired, or are not referred to, muft be taken as one fyftem, and conftrued confiftently ; and the practice has been fo to do in cafes of bankruptcy, church leafes, and in other cafes. See 1 Bur. Rep. 445. Exception was taken to an indictment upon the 14 Car. 2. c. 12. againft Rule 3 Words churchwardens and overfeers, for not making a rate to reimburfe a con- a " d p nra( f s . ftable, that the ftatute only puts it in their power, by the word may, to ofwhi^ina make fuch a rate, but does not require the doing of it as a duty, for the former aft of omiffion of which they are punifhable ; fed non allocatur ; for where a parliament ftatute directs the doing of a thing for the fake of juftice or the public have been good, the word may means the fame as the word Jhall. The 23 //. 6. afcertaine > o' m •* > ■ -4 *j are when u icd fays the fheriff may take bail; but the conftruction has been, that hzfoall j na Yubfequent do this. Salk. 609. Rex v. Barlow. Vern. 1 54. aft, to be So the ftatute of 21 lien. 8. c. 13. of pluralities is, that chaplains may underrtood in purchafe licence, &c. this does not give liberty to do it or not to do it ; thefamefenle- but if they do not do it, they cannot hold two livings of 8 /. value. Arg. Moor 440. H'il. 38 Eliz. in the cafe of Robins v. Gerand. So where the ftatute directs that the lord chancellor may grant a fta- tute of bankruptcy. Vern. 154. Pafcb. 32 Car. 2. Blackzvell's cafe. c Every xvii ; INTRODUCTION. Every crime, which is by any ftatute ordained to have or undergo judgment of life or member, is a felony, although the word felony is not mentioned in the ftatute. Bro.Coro. 204. 1 Inft. 391. 2 Inft. 434. 3 Inji. 91. //o£. 293. Haw. 10 J. But if an offence is by ftatute only prohibited under pain of forfeiting all that a man has j or of forfeiting body and goods •, or of being at the king's will for body, land and goods ; it fhall amount to no more than a high mifdemeanor. 1 Inft. 391. 3 Inft. 145, 146. Hob. 270, 293. If an act of parliament fays an offender fhall be punifhed according to his demerits, thefe words import, that he fhall be only punifhed in the ordinary courfe of juftice by indiftment. 1 Hawk. 107. ^.Inft. 171. When a ftatute gives a penalty to be recovered before a juftice of the peace, but preicribes no method, it ought to be by bill. Salk. 606. anon'. An information, which had been exhibited againft the defendant, a fadler, for a penalty given by the 1 Jac. 1. c. 22. was quafhed ; and by Lord Mansfield Ch. J. Wherever a power is given, as is here done, by any ftatute, to enquire, hear and determine, it always means according to the courfe of the common law by a jury ; and the proceeding muft be by indictment. 4 Bac. Abr. 644. cites MS. R. Rex v. Williams, Trinity Term 30 Geo. 2. Rule 4. Inthe Such a conftruction ought to be put upon a ftatute, as may beft anfwer conitruflionof that intent which the makers of it had in view ; for, qui haretinlitera h muft be fo conftrued that they may be effectual. 1 1 Rep. 71. Mag- a liberal dalen College's cafe. Str. 517, 518,519. conftruction. Every word in an act of parliament fhall be taken moft ftrongly againfl the king. Kehv. 198. pi. 1. Statutes made pro bono publico mall be expounded in fuch a manner, that they may, as far as poffible, attain the end propofed. Sti. 253, 258. Pierce v. Hopper. The New River water act was held, although only the city of London is therein mentioned, to extend to places adjacent; becaufe all ads made for the conveniency of the public ought to have a liberal conftruction. 2 Fern. 451. New River Company v. Graves. But it has been held, that an act of parliament for difcharging infol- vent debtors ought to be conftrued ftrictly, becaufe it gives away the right of the fubject ; and by Holt Ch. J. Let an act of parliament be ever fo charitable, yet if it gives away the property of the fubject, it ought not to be countenanced. 12 Mod. 513. Callady v. Pelkington. Rule 8. Re- Conftruction muft be made of a ftatute in fuppreftion of the mifchief, medial acts of" arK } j n advancement of the remedy. 4 Inft. 381. b. murt'b'e ex- -^H ftatutes made for the fupprefilon of fraud, and to give a more pounded fpeedy remedy for right, are to be conftrued liberally, becaufe fuch are liberally. for the advancement of juftice. Plowd.57. Wimbifh v. Talboys. It INTRODUCTION. xx iii It is the bufinefs of judges always to pot fuch a conftruction upon an aft of parliament, as may redrefs the mifchief and advance the remedy, and to fupprefs all iubtle inventions and evafions for the continuance of the mifchief, and pro privato commodo ; and to give ftrength and life to the cure and remedy, according to the true intent of the makers of the law, pro bono publico. 3 Rep. 7. Heydon's cafe. 1 Rep. 123. 11 Rep. 71. Cro. Car. 533. A fine levied by a hufband only, who is feifed in right of his wife, is within the letter of the ftatute of Gloucejler ; but, as the heir was thereby barred of the inheritance of his mother by the warranty of his father, the conftruction has been, in order to prevent this mifchief, that fuch a fine with warranty fhall not bind the heir, unlefs affets defcend. 1 Inft. 381. By the 13 Etiz. cap. 10. it is enacted, " That from henceforth all leaies, gifts, grants, feoffments, conveyances or eftates to be made, had, done or fuffered, by any mafter and fellows of a college, ifc. to any per- fon or perfons, bodies politic or corporate, other than for the term cf twenty-one years or three lives, fhall be utterly void and of none effect to all intents, conftructions and purpofes." After the making of this ftatute, the mafter and fellows of Magdalen College granted certain premiffes by indenture to the queen, her heirs and fucceffors, for ever, with condition that lhe fhould, before a day mentioned in the indenture, convey and af- fure the fame, by letters patent under the great feal, to Benedict Spincla, a merchant of Genoa ; and the queftion was, if this grant to the queen was good ? or, in other words, whether the queen was bound by the ge- neral words of this ftatute ? It was laid down, that where the crown has any prerogative, right, title or intereft, this fhall not be barred by the ge- neral words of an act of parliament: but that in this cafe, as the queen was deprived of any eftate, right, title, intereft or prerogative which (he had in thefe premifTes, before making of this ftatute, fhe was bound thereby ; and that this construction was neceffary, for the preventing of fubtle inventions and envafions, by which this act, made for the mainte- nance of religion and the advancement of arts and fciences, might be eluded. 1 1 Rep. 74, 75. Magdalen College's cafe. The rules of the common law will not fuffer the general words of a Rule 9. Penal ftatute to be restrained, to the prejudice of him upon whom a penalty acts of parlia- is to be inflicted: but there are a multitude of cafes, where fuch general T em ,*' et0 ^ words fhall be reftrained in his favour. Plowd. 17. Reniger v. Fcgajfa. fo ue j. Bro. Pari. pi. 1 3. Wherever a greater pur.iihrnent is ordained by an act of parliament for a fecond offence, the meaning is after conviction and judgment for the firft •, for penal ftatutes are to be conftrued ftrictly ; and the firft appear- eth to be no offence, till judgment hath been given againft it. 2 Lift. 468. The ftatute which gave attaint in a plea real, being a penal ftatute, was never extended to a plea perfonal. Bro. Pari. 20. All ftatutes that give cofts are to be conftrued ftrictly; for cofts are a kind of penalty. Salk. 205. Cone v. Bowles. But xxiv INTRODUCTION. But however true it may in general be, that penal laws are to be con- ftrued flrictly •, yet even in thefe the intention of the legiflature is to be regarded. 3 Rep. 7. Heydon's cafe. 8 Mod. 65. It is declared by the 25 Ed. 3. to be treafon for a fervant to kill his matter. A queftion being made upon this ftatute, Whether a fervant who had killed his mailer's wife, ought to have judgment to be drawn and hanged, or only to be hanged ? It was held by all the judges, that this is treafon, and the judgment was, that he fhould be drawn and hanged : And by Coke J. Although ftatutes, which encreafe a punifhment beyond what it was at the common law, are penal, and ought not to be extended by equity ; yet the words of thefe ought to be conftrued according to the intent of the makers of them. Plowd. 86. Strange v. Croker. The flat. 7 H. 7. c. 1. and the 3//. 8. c. 1. make the departure of a foldier from his captain, without licence, felony. A queftion arifing whe- ther the departure of a foldier without licence from his conductor, to whom he was delivered to be brought to the fea fide, was felony ? it was re- folved, by nine judges againft three, that it was felony •, for that a con- ductor is a captain within the intention and meaning of thefe ftatutes ; and that penal ftatutes, when made for the public fervice and good of the king and realm, may very well be taken liberally, according to the intent of the makers of them. Cro. Jac. 71. the foldiers cafe. An offender, who had been guilty of arfon, was o lifted of his clergy, not- ■withftanding that it was not exprefiy taken from him by ftatute; and the book adds, there are many cafes in our books, where penal ftatutes have been taken by intendment for the fuppreffion of a mifchief, the advance- ment of juftice, and the putting a flop to crimes and heinous offences. 1 1 Rep. 34, 35. Poulter's cafe. All remedial ftatutes, which are made for the good of the public, ought, although they are penal, to receive an equitable expofition. 2 Brown, no, ill, 116. Statutes that are penal to particular perfons, may, if beneficial to all others, have an equitable construction; for every ftatute is penal to fome perfon : yet, if the extending it by equity is more advantageous than prejudicial to the greater part of the people, it may by the rules of law be fo extended. Plowd. 36. Piatt v. The Sheriff of London. Plowd. 59. 10. Mod. 117. 2 Brown. 302. 10 Mod. 282. Hammond v. Webb. It was infilled, that the ftatute againft fimony being a penal law, ought to receive no aid from a court of equity : Sed per IVright Lord Keeper; This court will aid remedial laws, notwithftanding they are penal, not by making them more penal, but to let them have their proper effect. Divers other P rec - > n Ckanc. ?J§. Attorney General v. Sudell rules to be Such an expofition is to be made of any aft of parliament, as does not obfervedin the fuft'er it to be eluded. Hob. 97. Moore v. Hujjey. 3 Rep. 7. 1 1 Rep. 70. conduction of ^11 ft atutes are t o be conftrued for the preventing, as much as pofiible, actsofparha- ofdcl . v _ 2 /wy? . 6 I 1 , 6 1 4- Blent I Acts INTRODUCTION, xw Afts of parliament are to be conftrued, that no man, who is innocent or free from injury or wrong, be punifhed or endamaged, i Jnji. 360. No itatute fliall be interpreted fo as to be inconvenient, or againft reaibn. Cart. 136. Hughes v. Hughes. l-Inft. 97. 5 Rep- Cawdrie's cafe. By the 12 Car. 2. c. 17. all parfons prefented in the late times, who fhould conform as in that aft was directed, were to be confirmed in their churches, notwithstanding any act or thing whatsoever : yet it was held, that this aft did not extend to the confirming one who had been fimoniacally promoted. Sid. 232. Crawley v. Phillips. . If the meaning of an aft of parliament is doubtful, the confequences are to be confidered in the conftruftion thereof: but where it is plain, no confequences are to be regarded ; for this would be afluming a legiflative authority. 10 Mod. 344. The Queen v. Simp/on. Where the penning of a ftatute is dubious, long ufage is a juft medium' to expound it by •, for jus et norma loquendi is governed by ufage, and the meaning of things fpoken or written mull: be, as it hath conftantly been received to be ; but if ufage hath been againft the obvious meaning of an aft of parliament, by the only and common acceptation of the words, then it is rather an oppreflion of thofe concerned than an expofition of the aft. Faugh. i6g, 170. Shepherd v. Gcfneld. Statutes which give any new remedies fhall not have a liberal conftruc- tion. 2 Sid. 63. Pool v. Neel. An aft of parliament creating any new jurifdiftion muft be conftrued ftriftly. Stra. 258, 260. Pierce v. Hopper. 10 R. 75. It was held by the court of exchequer, that the ftatute of 6 Geo. 1. cap. 2i. which gives the commiflloners of excife a jurifdi&ion to condemn in afummary way certain goods therein mentioned, (hall be conftrued very ftriftly; becaufe it breaks in upon the ancient jurifdiftion of this court. Bunb. 106. Warwick v. White. A private aft of parliament, which only relates to one particular thing, is- to b£ interpreted literally. 2 Mod. 67. Threadneedle v. Lynam. "Whenfoever a ftatute giveth a forfeiture or penalty againft him who How perfon* wrongfully detaineth or difpoflefteth another of his duty or intereft, in that ei,ilt y ofdifo- cafe, he that hath the wrong (hall have the forfeiture or penalty, and bedienceioao. (hall have an aftion therefore upon the ftatute at the common law ; for r,.-n°t maybe.- the king fhall not have the forfeiture in that cafe •, and fo it was adjud- punilhed. ged in the exchequer, upon conference with the other judges, in an in- formation, for the treble value, for not fetting out the tithes at Iclington in the county of Cambridge, 1 Injl. 159. 3 Lev. 290. As every aft of parliament made againft any injury, mifchief or grie- vance, doth impliedly give a remedy, the party injured may have an ac- tion grounded upon that aft, altho' no remedy is exprefly given. 2 Infi. 55, 74. 10 Rep. 75. Wherever a ftatute commands or prohibits a thing for the advantage - of any perfon, that perfon fhall have an aftion upon fuch ftatute to re* - cover faxisfaftion for any injuty done him contrary thereto j for it would I XXVI INTRODUCTION. be ftrange it" a perfon could in fuch cafe have no remedy but in equity. 6 Mod. 26. Ancn.' If a penalty is given by ftatute, but no action for the recovery of it is therein given, an action of debt will lie for fuch penalty. Pcph. 175. V/elden v. Vefey. If any thing is prohibited by an act of parliament under a certain pe- nalty, and this penalty, or any part of it, is given to him who will ilie for it ; any perfon, although not particularly injured by the offence, may bring an action or information qui tarn for it. 2 And. 127, 128. Agard v. Tandijh. 2 Hawk. 265. But where a penalty is given by ftatute to be recovered in any court of record, this can only be recovered in the courts at IVeJiminfter ; for be- ing a penal law, it tnuft be taken ftrictly, and the courts at IVeJiminfter are thofe in which the king's attorney general attends. Salk. 178. IValwynv. Smith. In an action upon a ftatute giving a penalty, againft feveral defendants, only one penalty lhall be recovered. Cro. Eliz. 480. Partridge v. Naylor. But if a conviction be upon a ftatute, which gives a forfeiture, each defendant muft pay the forfeiture ; for the penalty in this cafe is not in the nature of a fatisfaction to the party injured, but a punifhment of the offender; and although debts are joint, crimes are feveral. 1 Salk. 182. The Queen v. King. When an act of parliament commands or prohibits any thing generallv, the perfon guilty of diibbedience to it, belides being andwerable in an action to the party thereby injured, is alfo liable to be indicted for his contempt of the law. Cro. Eliz. 655. Croucher's cafe. 2 Infi. 131, 163. i Hav;k. 60. But W the thing commanded or prohibited can only be prejudicial to One or two perfons, as if it be to repair the bank of a river, for want of doing which the ground of a certain perfon is overflowed, no indictment lies •, the remedy here being by an action upon the cafe. 2 Sid. 209. Rex V. Pawlyn. So if a ftatute extends to all perfons, but chiefly concerns difputes of a private nature, as thole relating to diftreffcs between lords and tenants, an offence againft fuch is not indictable. 1 Mod. yi. Rex v. Leghinham. Ibid. 288. If an act of parliament only inflicts a new punifhment upon the perfon guilty of an offence whkh was before punifhable ar the common law, fuch offence is ftill punifhable, as it was before the making this act, The crime of forgery, notwithftanuing the 5 Eliz. is at this day punifhable in the fame manner as it was at the common law. Fitzg. 66. Rex v. H'oolfton. 10 Med. 337. But an indictment againft the defendant, f.r acting as a juftice of peace, not haying lards to the value of forty pounds per ami. was held bad ; be- caufe a penalty is given ; and the method of recovering of it is pretenbed in the .itiuuu: which prohibits this. Et per Cur. Where a ftatute appoints INTRODUCTION. appoints a penalty for the doing of a thing which was no offence before, and directs how it fhall be recovered, it fhall be punifhed by that means, and not by indictment. Crojac. 61.3. Cajlle's cafe. Mich. 21 Jac. Since this cafe it has been laid down, that if the thing commanded or prohibited by act of parliament is of a public concern, an offender may be indicted, although the offence is a new created one, and a penalty with the manner of recovering it is appointed; for that the giving other affirftia- tive remedies fhall not without the negative words, " and not otherwife," take away the general way of proceeding, which the law appoints for all offences. 1 Mod. 34. Cr of tons cafe. Hill. 21 Car. 2. 1 Vent. 63. Sid. 209. • The former, is, however, the better opinion ; for it feems to be now fettled, that if any ftatute appoints a particular method of proceeding again If an offender, as by commitment, action information, &£. withr out mentioning an indictment, no indictment lies j becaufe, as the other methods of proceeding are only mentioned, that by indictment feems to be impliedly excluded. 2 Hawk. 211. Show. 398, 399. Filzg. 47. But it has been adjudged, that if fuch a ftatute gives a recovery by ac- tion, bill, plaint, information or otherwife, an indictment may be upon it. 2 Hawk. 211. By the 12 Geo. 1. c. 35. a penalty of 20 s. per thoufand is given for burning bricks and flock bricks together •, but there is in this act no appropriation of the penalty, nor any method of recovering it direct. Upon demurrer to an indictment for this offence, the court held, that this, like every unappropriated penalty, was in the nature of a debt to the crown, and fuable for in a court of revenue, but that this offence was not indictable. Stra. 828. Rex v. Malland. Whenever a ftatute makes any thing criminal which was not fo before, an information will, although not given by exprefs words, lie. 1 Mod. 5. Troy's cafe. XXVli d 2 II. .In XXV 111 II. An bijlorical Account of the Reporters and principal Authors of Treatifes on the Laws and Cujloms of England. AS there are many abbreviations in this work of the names of the reporters and other authors, of which many readers may want an explanation, it hath been thought neceflary to fubjoin the following histo- rical account of our reporters and principal authors of treatifes on the laws and cuftoms of England. For a long time after the courts of juftice were fettled at Wejlminfler- Hall, we find no regular collection of printed cafes, judicially argued and adjudged there. The oldeft collection of reports we have is that which was originally compiled, Mr. Selden fays, by Richard Winchedon, who lived in the reign of Edward II. when the cafes herein reported were ad- judged. Thefe Reports were folemnly recommended to the prefs by that great oracle of the law, the Lord Chief Juftice Hale, upon occafion of the authorities cited out of them in Sacheverel and Frogatt's cafe, and were publifhed by Sir John Maynard, ferjeant at law, with the approba- tion of the chancellor and all the judges. The reports of adjudged cafes, which Bratlon calls The Judgments of the Jufl, were efteemed fo beneficial to the public, that fome of our kings took care to tranfmit them to pofterity ; and for that purpofe Edward III. and feveral of his fuccefibrs in their refpective reigns, appointed four able and induftrious men, probably chofen out of the inns of court, to report the judicial decifions in the fuperior courts of juftice; that thofe judg- ments, which were given there, might be eftablifhed by time and ufage, that fimilar cafes might receive uniform and certain determinations •, and that all the judges and jujlices in all the feveral parts of the realm might, as it were, with one mouth, in all mens aclions, pronounce one and the fame fentence. The reporters, thus appointed by the ftate, had fixed falaries from the government as a proper reward for their labours, which have been long iince publifhed in feveral volumes, called, The Tear Books, and Terms or Annals of the Law^ and contained the arguments of council at the bar, and the refolutions of the judges on the bench, from firft Edward III. to twelfth Henry VIII. being near two hundred years ; after which time this method was difcontinued. It is very remarkable that there are no memorials extant who thofe reporters were, not fo much as the initial letters of their names-, but Lord Coke extols their diligence, and meta- phorically tells us, that if it had not been for their writings, the judgments of Jo many fages of the law had, with their bodies, been worn away with the worm of oblivion. The next reporter in order of time was Mr. Plowden of the Middle Temple, who collected two volumes of cafes from 2 Edward IV. to 22d Elizabeth, for his private ufe ; but having lent his manufcript to fome z yto lawyers, INTRODUCTION. lawyers whofe clerks fat up whole nights to tranfcribe it, defigning it for the prefs ; he therefore refolved to publilh them himfelf. About two years afterwards the nephews and executors of Sir James Dyer, chief juflice of the court of Common Pleas, publifhed his Reports, which were compofed of very fhort notes -, the bufinefs of his office not permitting the author to enlarge and correct them. But Lord Coke fays, ■they are lefs painful, but not lefs profitable than more elaborate works. About the fame time Sir John Coke, having got Mr. Keilway's manu- fcript of law cafes, committed fo many of them to the prefs as he thought were proper to be publifhed. In the fame year Lord Chief Juftice Coke, having for twenty years be- fore obferved the true reafons of fuch matters of law wherein he was of coun- fel, and which were adjudged upon great and mature deliberation, publifhed the firft volume of his Reports, and afterwards confented to the printing ■*en volumes more, which were nineteen years in publishing. But not- withftanding the character of this great judge, his works were cenfured even in his life-time ; for being removed from the feat of chief juftice of England in Michaelmas term 14 Jac. 1. on account of a controverfy that happened between him and the lord chancellor Egerton, a commimon was granted to Sir Henry Montague, his immediate fucceffor in that place, to review his Reports ; fome part whereof, he tells us himfelf, were written in the tempefi of bufinefs, and therefore he could not polijh them as he defired. There was no report publifhed for the fpace of twenty-two years after Lord Coke's laft volume, though he encouraged the lawyers of that age to follow his example, and regijler in books the fayings and doings which in their time were worthy of note and obfervation : but none would undertake it except Sir Henry Hobart, his immediate fucceffor in the common pleas, who collected a volume of cafes adjudged in that court, but did not think fit to publifh them in his life-time. Soon after the death of Charles I. there came forth a flying fquadron of reports, of which Mr. March led the van ; but the beft of that num- ber were faid to be the cafes collected by juftice Croke, and publifhed by his fon-in-law Sir Harbottle Grimfione, during the ufurpation ; in which time there were twenty-one books of Reports * publifhed in the names of judges, ferjeants at law, prothonotaries, and other lawyers of lefs cha- racter. * March 1648 Lane — — "% Tothil . 1649 Hetley £«6;7 Cro. Car. • | > 1 Bulflrode ) Brownlow ■ J 5 l Cro. Jac. Godbolt —— 1652 2 BuMrode Goldfborough — 1653 Style __f ,6 5 8 Pophara ") 1 & 2 Leonard Hutton — Owen Noy Winch ■ "1657 XXIX 1 & 2 Leonard — J — — f * Bridgman — — \ J 3 Bulftrode — — — ) 1659 Soon XXX INTRODUCTION. Soon after the reftoration of Charles II. a check was given to further publications, by a ftatute prohibiting all law books to be printed without the licence of the lord chancellor or keeper, the chief juftice of each court, the chief baron, or one or more of them, or of one by their ap- pointment •, which acl expired in the reign cf king William. In conformity to this law *, moft of the Reports which were printed whilft it was in being, were licenfed by the chancellor and judges •, but the firft part of Anderfon's, Reports, and the firfl Modern had not that ad- vantage. In the reign of James II. fome Reports f appeared, which were ap- proved in a very unulual manner, a year alter the books themfelves were publifhed, with the bare allowance only of the judges, without cer T tifying (as is common in fuch cafes) the great judgment, learning and wif- dom of the author. After the Revolution, and during the reigns of king William, queen Anne, king George I. king George II. and his prefent majeily, many Re- ports % have been publifhed. * Yelverton Cro. Eliz. — Bendloe Latch Moore — — 1 Anderfon — 2 Anderfon — Jones (Sir Will.) i Roll 3 Leonard z Rolle — — Vaugh. Palmer »■ 1 Mod. i Siderfin — Littleton f 2 Siderfin Keble _ Saunders, 2 vols — Aleyn Carter ■ Benloe < X Hardrefs — Jones (Sir Thomas) Ventris, a vols, Raymond (Sir Thomas) Cafes in Chancery 2 Mod. 3 Mod. Levinz ■ 4 Mod. . LutWyCB, 2 VOl5i — : Shower r— i Kelyng 5 Mwi. . 3 1661 ~\ 1663 1663 1664 166; 1675 } l6 75 1676 1677 - 1678 1682 1683 1684 1685 1686 16S8 1688 1689 1693 1695 1*96 1696 1697 1698 1 700 1702 1703 1704 1708 1708 j 7 k 6 Mod. . Farrefley, or 7 Mod. 1 ft and 2d Salkeld Nelfon 2 Shower . Comberba:h Vernon, 2 vols. ■ Skinner Carthevv ■ 8 & 9 Mod. ■ Fitzgibbon Preced. in Ch?n. ; Reports in Chan. ■ Lucas, or 10th Mod. Cafes in K. Will, and Rep. in Q_ An. (it & 12 Mod.) 2 vols. Holt's Determ. — — P. Williams 2 vols •— — Select Cafes in Chan. Barnardillon ■ Freeman ■ Ca. Sett, and Rem. Gilbert — Ld. Rayon. 2 vols. — Mofeley Corny ns . Reports in C. P. ■ . ■- Fortefcue ■ 3 Williams ■ Barnes ■ Andrews ■ Strange, 2 vols. Bonbury 1 2 Kelyn> Rep. in B. R. in time of Lord Hard. Atkyns, 3 vols, — j 765, 1767, 713 7'S 7'7 7'7 720 724 726 728 728 730 732 733 736 73° 737 73» 7-Jo 740 74' 742 742 742 743 744 744' 747 748 749 754 7?4 7iajuJlitiMtton. within the ftatute, becaufe there was no fuch dignity at the time of making it. i Sid. 40. Lit. Rep. 81. Cro. Car. 104. But names of worfhip, fuch as efquire, gentleman and yeoman, fince they are only names of diftinction, in popular ufe, and not given by the publick authority of the fupreme power, the law doth not count them par- cel of the name, and therefore were not neceflary at common law. 2 Jnji. 666. In the time of Hen. 5. it was perceived, that the chriftian and furname were not fufficient determinations of perfons, and did not fufficiently avoid the confufion that might happen by the miftake of perfons; and that an innocent perfon might, upon a procefs or execution, be diftrained upon having the fame name, with the real defendant •, to remedy which, the following ftatute was made. 2 Injl. 6yo. 2 Rol. rep. 225. Stat. 1 Hen. 5. Stat. 1 Hen. 5. c. 5. [/in. Dow. 141 3. intituled,'] " In which original c- $• writs, additions of the defendants names fhall be put." " Item, it is ordained and eftablifhed, that in every original writ of acti- ons peribnals, appeals, and indictments, and in which the exigent fhall be awarded, to the names of the defendants in fuch writs original, ap- peals and indictments, additions fhall be made of their eftate or degree, or miftery, and of the towns, or hamlets, or places, and counties, of the which they were, or be, or in which they be or were converfant; and, if by procefs upon the faid original writs, appeals, or indictments, in the which the faid addition fhall be omitted, any utlagaries [outlawries,] be pronounced, that they be void, fruftrate, and holden for none •, and that before the utlagaries be pronounced, the faid writs and indidments fhall be abated by the exception of the party, where in the fame the faid ad- ditions be omitted. Provided always, that though the faid writs of addi- tions perfonals be not according to the records and deeds, by the furplu- fage of the additions aforefaid, that for that caufe they be not abated ; and that the clerks of the Chancery, under whofe names fuch writs fhall go forth written, fhall not leave out or make omiffion of the faid additions as is aforefaid, upon pain to be punifhed, and to make a fine to the king, by the difcretion of the chancellor." Every original writ] Writ {breve) is the king's precept, whereby any thing is commanded to be done touching a fuit or action, as the defendant or tenant to be fummoned, a diftrefs to be taken, &c. And thefe writs are differently divided in divers refpects • fome in refpect of their order, or manner of granting, are termed original, and fome judicial. Original writs are thofe that are fent out for the fummoning of the defendant in a per- fonal, or the tenant in a real action, before the fuit begins, or rather to begin the fuit : thofe are judicial, which are fent out by order of the court where the caufe depends, upon occafion, after the fuit begun. And the judicial are known from the original thus : the tejle of the former bears the name of the chief juftice of that court whence it ifTues •, whereas the origi- nal in the tejle has the name of the king, and according to the nature of the action, they are either perfcnal or real: Real arc either touching the pojfejfwa 3&tntto:t. pofejjion called writs of entry, or the property called writs of right. Cowell, edit. 1727. If the plea be not holden upon the original, this act extendeth not to it; as in a recordare to remove a plaint of replevin into the Common Pleas, becaufe the plea is holden upon the plaint, this act extends not to it. So in a return of refcous, though there lieth procefs of outlawry, yet this ftatute extends not to it, becaule this act fpeaketh only of writs ori- ginal. 2 Infi. 665. Nor doth this act extend to an indictment for in- croaching on a highway •, for procefs of outlawry lieth not in that cafe, but diftrefs ; and lb it was ruled in the lord Paged cafe. Cro. Eliz. 148. Actions perfonaT] A perfonal action is that which one man may have acrainft another, by reafon of any contract for money or goods, or for any offence done by him, or fome other, for whofe fact he is anfwerable. A real action is defined to be that, whereby a defendant claims title to have a freehold in any lands or tenements, rents or commons in fee-fimple, fee-tail, or for life. Cowell, edit. 1727. In which the exigent fhall be awarded] Exigent, exigenda, is a writ that lieth where the defendant in an action perfonal cannot be found, nor any thing within the county whereby he may be attached or diftrained •, and is directed to the fheriff, to proclaim and call him five county-days one after another, charging him to appear under the pain of outlawry. This writ lieth alfo in an indictment of felony, where the party indicted cannot be found. It feemeth to be called exigent, becaufe it exacleth the party, that is, requireth his appearance to anfwer the law ; for if he come not at the laft day's proclamation, he is faid to be quinquies exatlus, five times required, and then is outlawed. Cowell, edit. 1727. To the names of the defendants] Regularly by the common law, every natural man, having no name of dignity, ought to be named in all origi- nals, and other fuits, by his chriftian name and furname ; and that, be- fore this act, fufficed •, but if he had a name of inferior dignity, as knight or baronet, he ought to be named by his chriftian name and furname, and by the addition of his name of dignity by the common law •, which is im- plied in the words, to the names of the defendants. 2 Infi. 665, 666. If there be a corporation of one Idle perlbn that hath a fee-fimple, and may have a writ of right, he may be named in originals, &c. by the com- mon law, by his chriftian name, without any furname •, for the name of his corporation is in lieu of his furname, (fome lay both of chriftian name and furname) •, as John abbot of D. &c. John bifhop of N but otherwile it is of a parfon ; for he muft be named by his chriftian name and furname. 2 Infi. 666. If it be a corporation aggregate of many able perfons, as mayor and commonalty, dean and chapter, mafter of an hofpital, and brethren, &c. the mayor, dean, or mafter, need not be named by his chriftian name •, be- caufe fuch a corporation ftandeth in lieu both of the chriftian name and furname. 2 Infi. 666. B 2 If If a man be created by letters patent, duke, marquis, earl, vifcount, or baron, the dignity is fo incorporated to him, according to the ftate given unto him by thofe letters patent, that the duke, &c. by the com- mon law might be named by his chriftian name, and by the name of his dignity, which ftandeth in lieu of his furname. And the reafon thereof is, for that the king by thofe letters patent creates him to the ftate, ho- nour, and degree of duke : and though a creation by writ hath not the fame words, yet it hath the fame effect. 2 Inft. 666. This law doth not extend to the names of plaintiffs, for they were in no mifchief or danger to be miftaken, nor does it extend to real or mixed actions ; becaufe, here the pofleffors were impleaded who were fuffici- ently fpecified, and fo no other mark of diftinction is needful ; befides, no man can in the procefs pofiibly be grieved, becaufe there is no pro- cefs but of diftrefs upon the land, and no imprifonment at all in thefe actions. 2 Inft. 665. 6 Mod. 85. Additions Jhall be made of their eft ate or degree] As to the eftate and degree required by the ftatute to be added, it muft be obferved, that eftate or ltate is defined by the civilians the capacity of moral perfons ; for, as natural perfons have a certain fpace in which their natural exiftence is placed, and in which they perform their natural actions ; fo have perfons in a commu- nity, a certain ftate or capacity, in which they are fuppofed to exift, to perform their moral acts, and exercife all civil relations ; and therefore, where one, who is neither by birth, office, creation, or reputation, an efquire or gentleman, is named with either of thefe additions •, or where a gentle- man, by birth, who follows hufbandry or a trade, is named with the addi- tion of the trade or hufbandry, and not of gentleman •, or where a peer, who has more than one name of dignity, is not named by the moft noble ; or where a gentleman or gentlewoman is named fpinfter, or a yeoman is named gentleman ; and fuch matter is pleaded in abatement, and found for the perfon who pleads it, the writ fhall abate. 2 Inft. 66g. 2 Hawk. P. C. 185. The degree of a ferjeant at law is certainly a good addition •, and fo, as is generally holden, is a degree in either univerfity •, yet a doctor in divi- nity may be defcribed by the addition of clerk, as well as by that of doc- tor. Efquire, gentleman, yeoman, labourer, are good additions of the eftate and degree of a man, but not for that of a woman. Gentlewoman, widow, fingle woman, wife of J. S. fpinfter, are good additions of the eftate and degree of a woman-, and, as fome fay, fpinfter is a good addi- tion for the eftate and degree of a man-, but neither burgefs, citizen nor fervant, are good additions, as being too general. 2 Inft. 66y. 2 Hazvk. P.C 187, 188. If feveral defendants, of different names, have the fame addition, it is fifed to repeat the addition after each name •, and if a father have the fame name and addition with his fon, the writ againft the fon is abateable, unlefs the addition of the younger be added to the othe- additions : but if a father be a defendant, there is no need of the addition of the elder. 2 Hawk. P. C. 187. 3 Or Or tnijlery] It fcems agreed, that the word miftery includes all lawful arts, trades and occupations ; and that if one, under the degree of a gen- tleman have divers of fuch arts, trades or occupations, he may be named by any of them. 2 Inft. 668. The additions of this kind, which are faid to be clearly good, are thofe of hufbandman, merchant, broker, taylor, point-maker, fmith, miller, carpenter, cook, brewer, baker, butcher, parifh-clerk, mercer, fifh- monger, dyer, fchoolmafter, fcrivener, and fuch like. 2 Hawk. P. C. 188. 2 H. H. P. C. 176. The additions of this kind, which are faid to be clearly infufficienr, are thofe <>f maintainer, extortioner, thief, vagabond, heretick, common in- former, and fuch like. 2 Hawk. P. C. 188. But the following additions of this kind are faid to be queftionable : ift, Farmer; which, by the better opinion, feems to be an infufficient ad- dition ; becaufe, if any miftery be implied in the notion of it, it is that of hufbandry, of which hufbandman is the proper addition. 2dly, Cham- berlain, butler and pander ; which are holden to be infufficient additions •, becaufe they denote only a fpecial kind of officer or fervant ; and imply nothing which, in the common underftanding of the words, comes under the notion of a miftery -, and from this ground it feems to follow, that neither groom nor page are good additions ; and yet in fome of the old books they feem to have been fo admitted. 3dly, Hoftler ; which hath been holden to be a good addition, and feems properly enough to come under the notion of a miftery •, and tho' it hath been refolved, that any one who keeps an inn, may be fued by the addition of a labourer, upon the cuftom of the realm, for want of due care of the goods of his guefts -, becaufe, whoever keeps a common inn, is in that refpedt liable to anfwer for fuch defects, by whatfoever addition he may be ftiled •, yet this does by no means prove that fuch perfon may not as well be fued by the addi- tion of hoftler, but only that he may be fued as well under any other addi- tion. 2 Hawk. P. C. 188, 189. And of the towns or hamlets'] It is a good addition of this kind, to name the party late of fuch a town ; in which refpecf this addition differs from that of the eftate, degree or miftery •, and it is faid, that if a defendant be named of A. and late of B. it is fufficient to prove either addition. 2 Hawk. P. C. 189. 2 Hal. H. P.C. 175. If there be two towns in a county, the one called Great Dak, the other Little Dale, and the defendant be named only of Dale •, he may plead, that there are two Dales in the county, called Great Dale and Little Late, and none without an addition ; and as fome fay, he may plead that there is no fuch town as Dale, either in this cafe, or where there is but one town called Little Dale, and he is named of Dale. 2 Hawk. P. C. 189. If a defendant live in a hamlet, which is lo far part of a town, that thofe who live in it are indifferently ftiled fometimes of the hamlet, and fometimes of the town ; it feems to be in the election of the plaintiff to flame him either of the hamlet or of the town. 2 Hawk. P. C. 1 89. The The addition of a parifh, if there be two or more towns within it, is not good, but if there be but one town in the parifh, the addition of pa- rifh is good ; and it (hall not be intended (if it be not pleaded) that there are more towns than one in the parifh. 2 Injl. 669. The habitation of the wife is fufficiently fhewn by mewing that of the hufband. 2 Hawk. P. C. 1S9. Or places'] Thefe are underftood of places known out of any town or hamlet. 2 Injl. 669. If a defendant live in a place known by a fpecial name, out of a town or hamlet, he may be named of fuch place; but if he live in any place known within a town or hamlet, it is faid to be fafeft to name him of the town or hamlet. 2 Hawk. 1 89, 190. The addition of the eftate, degree, or miftery, ought to be fuch as the defendant was of at the day of the indictment brought, or writ purchafed, and not late of fuch a degree or miftery ; but it is a good addition to name the defendant late of fuch a town or place, becaufe men do often remove their habitation. And this diftinftion appeareth by the act itfelf, by rea- fon of the word in the aft, relating to the towns, hamlets, &V. of the which they were or be. 2 Inft. 670. That they be void, frujlrate and holden for none] This being a judgment in law, is interpreted to be made void by a writ of error, or by the plea of the party coming in upon a capias utlagatum; for though the words of the ftatute be void, &c. yet it is but voidable by writ of error, or plea. 2 Injl. 670. By the exception of the party] But if the defendant, though he hath no fuch addition as this aft requireth, appear upon procefs, and plead, taking no advantage thereof by exception, he hath loft the benefit of this ad. 2 Inft. 670. affray What is an A FFRAY, is derived from the French word effrayer, to affright, and affray. -t\ it formerly meant no more ; as where perfons appeared with armour or weapons not ufually worn, to the terror of others ; and fo is the word ufed in the ftatute of Northampton, 2 Ed. 3. c. 3. It is now commonly taken for a fkirmifh, or fighting between two or more : in our books it is many times confounded with aft'ault, as appears by Lambard, in his Eiren- archa, lib. 2. c. 3. & lib. 1. c. 17. Yet, as it is there faid, they differ in this, that where an afTault is but a wrong to the party, an affray is a wrong to the commonwealth, and therefore both inquirable and punifhable in a leet. It may be faid likewife, that an aifault is but of on'e fide, but an affray is the fighting of many together : befides this fignification, it may be taken for a terror wrought in the fubjeft by an unlawful fight of vio- lence, &c. as, if a man fhew himfelf furnifhed with armour or weapons not Affray. 7 not ufually worn, it may ftrike a fear into others unarmed ; and fo it is ufed in Stat. 2 Ed. 3. c. 3. 4 Hen. 6. f. .3. 8 £i. 4. c 5. Cow-ell, edit. I 7~7- Lord Cflfo defines this word thus : " An affray is a publick offence to the terror of the king's fubjects, and fo called, becaufe it affrighteth and maketh men afraid." 3 Inft. 158. From this laft definition it feemeth clearly to follow, that there may be an ajjault, which will not amount to an affray ■, as where it happens in a private place, out of the hearing or feeing of any, except the parties con- cerned, in which cafe it cannot be faid to be to the terror of the people. 1 Hawk P. C. 134. Alfo, it is faid, that no quarrelfome or threatening words whatfoever fhall amount to an affray ; and that no one can juftify laying his hands on thole who barely quarrel with angry words, without coming to blows j yet it feemeth that the conftable may, at the requeft of the party threa- tened, carry the perfon who threatens to beat him before ajuftice, in or- der to find fureties. 1 Hawk. P. C. 135. Alfo, it is certain, that it is a very high offence to challenge another, either by word or letter, to fight a duel, or to be the meffenger of fuch a challenge ; or even barely to endeavour to provoke another to fend a chal- lenge, or to fight ; as by difperfing letters to that purpofe, full of reflec- tions, and infinuating a defire to fight. 1 Hawk. P. C. 135. But altho', fays Mr. ferjeant Hawkins, no bare words,, in the judgment of law, carry in them fo much terror as to amount to an affray, yet it feems certain, that in fome cafes there may be an affray, where there is no actual violence ; as where a man arms himfelf with dangerous and unufual wea- pons, in fuch a manner as will naturally caufe a terror to the people ; which is faid to have been always an offence at the common law, and is ftric"tly prohibited by the following ftatute. 1 Hawk. P. C 135. Stat. 2 Ed. 3. c. 3. [A. D. 1328. commonly called the ftatute of Nor- Stat. 2 Ed, 3. tbampton, and intituled,] " No man fhall come before the juftices, or go c - 3- enforced or ride armed." c^.^Rk " Item, it is enacted, that no man great nor fmall, of what condition 2 ' t Ci It foever he be, except the king's fervants in his prefence, and his minifters in executing the king's precepts, or of their office, and fuch as be in their company affifting them, and alfo upon a cry made for arms to keep the peace, and the iame in fuch places where fuch acts happen, be fo hardy to come before the king's juftices, or other of the king's minifters do- ing their office, with force and arms, nor bring force in affray of the peace, nor to go nor ride armed by night nor by day, in fairs, mar- kets, nor in the prefence of the juftices or other minifters, nor in any part elfewhere, upon pain to forfeit their armour to the king, and their bodies to prifon at the king's pleafure. And that the king's juftices in their pre- fence, fheriffs, and other minifters in their bailiwicks, lords of franchifes, and their bailiffs in the fame, and mayors and bailiffs of cities and bo- roughs, within the fame cities and boroughs, and borough-holders, con- flables, and wardens of the peace within their wards, fhall have power to 1 execute execute this aft. And that the juftices affigned, at their coming down into the country, fhall have power to enquire how fuch officers and lords have exercifed their offices in this cafe, and to punifh them whom they find, who have not done that which pertained to their office." In the expofition of this aft, the following points have been holden : ift, That any juftice of peace, or other perfon, who is impowered to exe- cute this ftatute, may proceed thereon, either ex office, or by force of a writ out of Chancery formed upon the ftatute ; anci that if he find any perfon in arms contrary to the form of the ftatute, he may feize the arms, and commit the offender to prifon ; ftttd that he ought alio to make a re- cord of his whole proceeding, and ceitify the fame into the Chancery, where he proceeds by force of the faid writ, or into the Exchequer, where he proceeds ex officio. 2dly, That where a juftice of peace, tire, proceeds upon the faid writ, he may not only imprifon thofe whom he fhall find offending againft the ftatute in his own view, but alio thofe who fhall be found by an inqueft taken before him, to have offended in fuch manner in his ablence ; and I do not fee, fays Mr. ferjeant Hawkins, why he may not do the fame where he proceeds ex officio ; for feeing the faid writ hath no other foundation but the faid ftatute, and is the moft authentick expli- cation thereof, it feemeth, that the rules therein prefcribed, fhouki be the beft direction for all proceedings upon that ftatute. $dly, That the under- fheriff may execute the faid writ, being directed to the fheriff, if it name him only by the name of his office, and not by his proper name, and do not expreily command him to act in his proper perfon. 4thly, That a man cannot excufe the wearing fuch armour in public, by alleging that fuch a one threatened him, and that he wears it for the fafety of his per- fon from his affault-, but it hath been rcfolved, that no one fhall incur die penalty of the faid ftatute for affembling his neighbours and friends in his houfe, againft thofe who threaten to do him any violence therein, becaule a man's houfe is as his caffle. 5thly, That no wearing of arms is within the meaning of this ftatute, unlefs it be accompanied with fuch circum- ilances as are apt to terrify the people ; from whence it feems clearly to follow, that perlbns of quality are in no danger of offending againft this ftatute by wearing common weapons or having their ufual number of attendants with them, for their ornament or dtfc nee, in fuch placer, and upon fuch cccafions, in whicli it is the common fafhion to make ufe of them, without caufing the leaft fulpicion of an intention to commit any- aft of violence or dilturbance of the peace. And from the fame ground it alio follows, that i erfons armed with privy coats of mail, to the intent to defend themfelves againfttheir adverfarie.% are not within the meaning of this ftatute, becaufe they do nothing in terrorem pcpttli. 6thly, That no perfon is within the intention of the laid ftatute, who arms himielf to fup- prefs rioters, rebels,, or enemies, and endeavours to fupprefs or lefift ftch difturbers of the peace or quiet of the realm ; for perfons who fo arm themfelves, feem to be exempted cut of the general words of the faid ftatute, by that part of the exception in the beginning the.eof, which feems to allow all perfons to arm themftlves upon a cry made for arms to keip keep the peace, in fuch places, where fuch acts huppen. i HawH. P. C. *$$■> l 3 6 ' In affray of the peace] The words of the original French in the flatutes at large are, en affrai de la pees ; lord Coke has it pais, of the country, or the people, and lays, that the words of the writ grounded upon this ftatute are, in quorundam de populo terrorem, as appears in F. N. B. fo. 249. and the Regiiter agrees with the original. 3 Inft. 158. Under this head, Mr. ferjeanc Hawkins confiders, how far an affray may be fupprefTed by a private perfon ; how far an affray may be fupprefled by a conftable ; in what manner an affray may be fuppreffed by a juftice of peace ; and, in what manner the feveral kinds of affrays may be punifhed. It feems agreed, fays Mr. ferjeant Hawkins, that any one who fees others How far an fighting, may lawfully part them, and alfo flay them till the heat be over, affray may be and then deliver them to the conftable, who may imprifon them till they fupprefled by find furety for the peace -, alfo, it is faid, that any private perfon may flop * P nvate P er - thofe whom he fhall fee coming to join either party ; and from hence, it ° n * feems clearly to follow, that if a man receive a hurt from either party in thus endeavouring to preferve the peace, he fhall have his remedy by an action againfl him ; alfo, upon the fame ground it feems equally reafon- able, that if he unavoidably happen to hurt either party, in thus doing what the law both allows and commands, he may well juftify it, inafmuch as he is no way in fault ; and the damage done to the other, was occafioned by a laudable intention to do him a kindnefs. 1 Hawk. P. C. 136. However, it feems clear, that if either party be dangeroufly wounded in fuch affray, and a ftander-by, endeavouring to arrefl the other, be not able to take him without hurting, or even wounding him, yet he is no way liable to be punifhed for the fame inafmuch as he is bound under pain of fine and imprifonment, to arrefl fuch an offender, and either detain him till it appear whether the party will live or die, or carry him before a. juftice of peace, by whom he is either to be bailed or committed, lie. 1 Hawk. P. C. 136. As to this point, it feems agreed, fays Mr. ferjeant Hawkins, that a con- How far an flable is not only impowered, as all private perfons are, to part an affray affray may be which happens in his prefence, but is alio bound at his peril to ufe his fu PP re fi" ed ty befl endeavours to this purpofe, not only to do his utmoft himfelf, but* con " ibIc - alfo to demand the affiftance of others, which if they refufe to give him, they are punifhable with fine and imprifonment. 1 Hawk. P. C. 137. And it is faid, that if a conftable fee perfons either actually engaged in an affray, as by flriking, or offering to flrike, or drawing their weapons, fcfe. or upon the very point of entering upon an affray, as where one fhall threaten to kill, wound, or beat another, he may either carry the offender before a juftice of peace, to the end that fuch juftice may compel him to find fureties for the peace, &c. or he may imprifon him of his own autho- rity for a reafonable time, till the heat fhall be over, and alfo afterwards detain him till he find fuch furety by obligation : but it feems, that he has no power to imprifon fuch an offender in any other manner, or for any Vol. I. N° I. C other other purpofe •, for he cannot juftify the committing an affrayer to gaol till he fhall be punifhed for his offence : and it is faid, that he ought not to. lay hands on thofe, who barely contend with hot words, without any threats of perfonal hurt, and that all which he can do in fuch cafe, is to command them under pain of imprisonment to avoid fighting, i Hawk. P.C.137- But he is fo far intrufled with a power over all actual affrays, that though he himfelf is a fufferer by them, and therefore liable to be objected againft, as likely to be partial in his own caufe, yet he may fuppreis them ; and therefor, if an affault be made upon him, he may not only defend him- fcir, but alio imprifon the offender, in the fame manner as if he were no way a party, i Hawk. P. C. 137. And if an affray lie in a houfe, the conftable may break open the door to preferve the peace 5 and if the affrayers fly to a houfe, and he follow with frefh fuit, he may break open the doors to take them. 1 Hawk. P. C. 137. 1 But it is faid, that a conftable hath no power to arreft a man for an affray done out of his own view, without a warrant from a juftice of peace, unlefs a felony were done or likely to be done ; for it is the prop'er bulinefs of a conftable to preferve the peace, not to punifh the breach of it ; nor does it follow from his having power to compel thofe to find fureties who break the peace in his prefence, that he has the fame power over thofe who break it in his abfence, inafmuch as in fuch cafe, it is moft proper to be done by thofe who may examine the whole circumftances of the matter upon oath, which a conftable cannot do ; yet it is faid, that he may carry thofe before a juftice of peace, who were arretted by fuch as were prefent at an affray, and delivered by them into his hands. 1 Hawk. P. C. 137. In what man- As to this point, Mr. ferjeant Hawkins fays, there is no doubt, but that ner an affray a juftice of peace may and muft do all fuch things to that purpofe, which may te fop- a private man or conftable, are either enabled, or required by the law to juftice 0/ 3 d° » Dut it is faid, that he cannot without a warrant authorize the arreft of peace. any perfon for an affray out of his view ; yet it feems clear, that in fuch cafe he may make his warrant to bring the offender before him, in order to compel him to find fureties for the peace. 1 Hawk. P. C. 137. Alfo, it feems, that a juftice of peace has a greater power oyer one who hathdangeroufly wounded another in an affray, than either a private per- fon or a conftable •, for there does not feem to be any good authority, that thefe have any power at all to take funeties of fuch an offender ; but it feems certain, that a juftice of peace has a difcretionary power either to commit him or bail him, till the year and day be paft ; but it is faid, that he ought to be very cautious how he takes bail, if the wound be danger- ous •, for that if the party die, and the offender appear not, he is in danger of being feverely fined, if he fhall appear upon the whole circumftances of the cafe to have been too favourable. 1 Hawk. P. C. 138. In what man- As to this point, it fuffkiently appears, fays Mr. ferjeant Hawkins, from ner the feveral what hath been faid, how fuch affrays as are accompanied with force and kinds of affrays arms are t0 fa j ea ' t w i tn llpon t fa ft atute f Northampton ; [that is, the may be pu- * r > 1 > nifhed. laia faid ftatute 2 Ed. 3. c. 3. to which the flat. 20 Ric. 2. c. 1. adds a fine,] and therefore, fays he, I ihall only examine in this place, what penalties other affrays are liable unto ■, as to which, it may be obferved, that all affrays in general are puniihable by fine and imprisonment, the meafure of whicli is to be regulated by the difcretion of the judges, according to the circumftances of the cafe, which very much vary the nature of this crime, and in fome cafes make it fo inconfiderable as fcarce to be taken notice of; and in others, make it an offence of a very heinous nature, as in the fol- lowing instances : Firft, An affray may receive an aggravation from the dangerous tendency thereof, as where perfons coolly and deliberately en- gage in a duel, which cannot but be attended with the apparent danger of murder, and is not only an open defiance of the law, but carries with it a a direft contempt of the juftice of the nation, as putting men under a ne- ceffity of righting themfelves -, upon which confiderations, perfons con- victed of barely fending a challenge, have been adjudged to pay a fine of one hundred pounds, and to be imprifoned for one month without bail, and alfo to make a publick acknowledgment of their offence, and to be bound to their good behaviour. Secondly, An affray may receive another aggravation from the perfons againft whom it is committed ; as where the officers of juftice are violently dilhirbed in the due execution of their office, as by the refcue of a perfon legally arretted, or the bare attempt to make fuch a refcue •, for all the minifters of the law are under its more immediate protection. Thirdly, An affray may receive a farther aggravation from the.place wherein it is committed, and upon this refpect all affrays in the king's courts are feverely punifhed, and upon the fame account alfo, all affrays in a church or church-yard, have been always efteemed very heinous offences, as being great indignities to the Divine Majefty, to whofe wor- fhip and fervice fuch places are immediately dedicated. And upon this confederation, all irreverent behaviour in thefe places hath been efteemed fo criminal by the makers of our laws, that they have not only feverely punifhed fuch difturbances in them which are punifhable wherever they happen, as all adtual affrays, &V. but alfo fuch, which if they happen elfewhere, are not punifhable at all •, as bare quarrelfome words, and even fuch, which would be commendable if done in another place •, as arrefts by virtue of legal procefs. 1 Hawk, P. C. 13S, 139. See CljUCCt) QUE CIjurcD-pacD, publicfc t£io?flj£p, Dtffciuerjs, 11 c 2 SUefjouftS, 12 Sleljoufesu i Salk. 45. "T) EFORE the ftatute of 5 &? 6 £J. 6. c. 25. it was lawful for any one Jj to keep an alehoufe without licence •, for it was a means of livelihood, which any one was free to follow ; but if it was diforderly kept, it was in- dictable as a nufance. igHen. 7. ©tat. 19 Hen. y.c. 12. [A. D. 1503.] By this ail two juftices wereim- c. iz. powered to fupprefs the common felling of ale and beer ; but it is not printed in any edition of the jlatutes at large, except RaltellV, becaufe it was altered by 5 &c 6 Ed. 6. c. 25. and repealed by 21 Jac. 1. c. 28. 5 & 6 Ed. 6. ©tat. 5 & 6 Ed. 6. c. 25. [J. IX 1552. intituled,] " For keepers of c 25- alehoufes and tipling-houfes, to be bound by recognifance." Enforced by M Forafmuch as intolerable hurts and troubles to the commonwealth of this 1 Ja. 1. c. 9. r calm doth daily grow and increafe through fucb abufes and diforders as are had Nonefha e ^j u ^ in common alehoufes, and other houfes called tiplinghoufes : (2) It is without li- therefore enacted by the king our fovereign lord, with the aflent of the lords cence, and and commons in this prefent parliament afiembled, and by the authority they Ihall be of the fame, that the juftices of peace within every (hire, city, borough, bound by re- town corporate, franchife or liberty within this realm, or two of them at ,°Show! 398. tne leaft, (whereof one of them to be of the quorum) (hall have full power and authority by virtue of this aft, within every {hire, city, borough, or Juftices of town corporate, franchife and liberty, where they be juftices of peace, to peace may dif- remove, difcharge and put away common felling of ale and beer in the charge com- fcft common alehoufes and tiplinghoufes, in fuch town or towns, and "1° and beer pl aces where they ihall think meet and convenient: (3) And that none i Bulft. 1 09. after the firft day of May next coming (hall be admitted or fuffered to keep 4. Mod. 144. any common alehoufe or tiplinghoufe, but fuch as (hall be thereunto ad- mitted and allowed in the open feflions of the peace, or elfe by two juftices Recognifance of the peace, whereof the one to be of the quorum ; (4) And that the faid with furety by juftices of the peace, or two of them, (whereof one to be of the quorum) thofe which j^^j ta k e bond and furety from time to time by recognifance of fuch as houfes £P * C ^ a " be admitted and allowed hereafter to keep any common alehoufe or tiplinghoufe, as well for and againft the ufing of unlawful games, as alfo for the ufing and maintenance of good order and rule to be had and ufed within the fame, as by their difcretion (hall be thought neceflary and con- 1 2d. forma- venient •, (5) for making of every which recognifance, the party or parties kin nifance e that ^ a11 be f° bourid ^ a11 P a y but twelve pence. ... ' II. " And the faid juftices (hall certify the fame recognifance at the next mufTbe' certi- quarter-feflions of the peace to be holden within the fame ftiire, city, bo- fied at the next rough, town corporate, franchife or liberty where fuch alehoufe or tipling- quarter fef- houfe (hall be ; (2) the fame recognifance there to remain of record before fions. tne j u fti C es of peace of that (hire, city, borough, town corporate, franchife or or liberty ; (3) upon pain of forfeiture to the king for every fuch recog- nifance taken and not certified, 3 /. 6 s. 8d. III. " And it is further enacted by the authority aforefaid, that the juf- Inquiry of tices of peace of every fhire, city, borough, town corporate, franchife and 'hofe which liberty where fuch recognifance (hall be taken, fhall have power and au- h . ave forfeited . . * • . . n • : 1 '■• r ™- ,-1 1 r their recoem- thonty by this act, in their quarter-feffions or the peace, by preientment, fancet information, or otherwife by their difcretion, to enquire of all fuch per- fons as fhall be admitted and allowed to keep any alehoufe or tiplinghoufe, and that be bound by recognifance as is abovefaid, if they or any of them have done any act or acts whereby they or any of them have forfeited the fame recognifance : (2) And the faid juftices of every fhire, and places where they be juftices, fhall upon every fuch prefentment or information award procefs againft every fuch perfon fo presented or complained upon before them, to fhew why he fhould not forfeit his recognifance ; (3) and fhall have power and authority by this act to hear and determine the fame by all fuch ways and means as by their difcretion fhall be thought good. IV. " And it is further enacted by the authority aforefaid, that if any The punifh- perfon or perfons, other than fuch as fhall be hereafter admitted or allowed ment of thofe by the faid juftices, fhall after the faid firft day of Afoj,obftinately and upon whlch co "" his own authority, take upon him or them to keep a common alehoufe QT^^ ^ anA . tiplinghoufe, or fhall contrary to the commandment of the faid juftices, or me ntof the two of them, ufe commonly felling of ale and beer : that then the faid juftices, do juftices of peace, or two of them, (whereof one to be of the quorum) fhall kee P ale " for every fuch offence commit every fuch perfon or perfons fo offending to Altered j,v the common gaol within the faid fhire, city, borough, town corporate,^ c ar . 1. c. 3. franchife or liberty, there to remain without bail or mainprife by thefpacef. 2. of three days •, (2) and before hi- or their deliverance, the faid juftice fhall 5 Geo. 3. take recognifance of him or them fo committed, with two fureties, that he^ 4 6 ' gg or they fhall not keep any common alehoufe, tiplinghoufe, or ufe com- t^Tlk. 45. monly felling of ale or beer, as by the difcretion of the faid juftices fhall feem convenient. V. " And the faid juftices fhall make certificate of every fuch recogni- Certificate of fance and offence at the next quarter-feffions that fhall be holden within the ' he rec °g m - fame fhire, city, borough, town corporate, franchife or liberty where the fenceat\he'" fame fhall be committed or done ; (2) which certificate fhall be a fufficien quarter M- conviction in the law of the fame offence. (3) And the faid juftices of fiens peace, upon the faid certificate made, fhall in open feffions affefs the fine lhe fine °f for every fuch offence at 2 o s. J" 6 ^ ,ch " VI. Provided alwav, that in fuch towns and places where any fair or h ou f es w ; tn . fairs fhall be kept, that for the time only of the fame fair or fairs it fhall out licence. be lawful for every perfon and perfons to ufe common felling of ale or A provifo for beer in booths, or other places there, for the relief of the king's fubjects t0WI " where that fhall repair to the fame, in fuch like manner, and fort as hath been ai " e f ^ ' \ifed in time parted-, this act, or any thing therein contained, to the con- trary notwithftanding." 4 Ja. i. c. 4. j @tat. x : 4 3icfumfe& i Jac. i. e.g. @)tflt« i 7^f. i. f. 9. [^. D. 1603. intituled,] « An aft to reftrainthe inordinate haunting and tipling in inns, alehoufes, and other victualling- houfes." The true and " Whereas the ancient, true and principal ufe of inns, alehoufes, and principal uie viftualling-houfes, was for the receit, relief and lodging of wayfaring alehoufes" people travelling from place to place, and for fuch fupply of the wants of luch people as are not able by greater quantities to make their provifion of victuals, and not meant for entertainment and harbouring of lewd and idle people to fpend and confume their money and their time in lewd and drunken manner : The forfeiture II. " Be it therefore enacted by the king's moft excellent majefly, the ° fanalehoufe " lords fpiritual and temporal, and commons in this prefent parliament mating one "to a flembled, and by the authority of the fame, that if after forty days next continue un- enfuing after the end of this prefent fefTion of parliament, any inn-keeper, lawful drink- victualler or alehoufe-keeper within this realm of England, or the domi- in h;s houfe. n ion of Wales, do permit or iuffer any perfon or perfons inhabiting and 7 Jac. 1. cio. d we ii; n g m an y c i CVj tovvri corporate, market-town, village or hamlet Farther pro- within this realm of England, or dominion of Wales, where any fuch inn, vifions relating alehoufe or tipling-houle is or fhall be, to remain or continue drinking or hereto. 1 Ca. tipling in the laid inn, victualling-houfe, tipling-houfe or alehoufe ; 1. c. 4. ( 2 ) 0I: h er than fuch as fhall be invited by any traveller, and fhall accom- pany him only during his neceffarv abode there; (3) and other than la- bouring and handicraftfmen in cities and towns corporate, and market- towns, upon the ufual working-days, for one hour at dinner-time, to take their diet in an alehoufe •, (4) and other than labourers and workmen, which for the following of their work by the day, or by the great, in any city, town corporate, market-town or village, fhall for the time of their faid continuing in work there, fojourn, lodge or victual in any inn, ale- houfe or other'victualling-houfc ; (5) other than for urgent and neceffary occafions to be allowed by two juftices of peace ; that then every fuch inn- keeper, victualler or alehoufe-keeper, fhall for every fuch offence, forfeit and lofe the fum of ten millings of current money of England, to the ufe of the poor of the parifh where fuch offence fhall be committed ; (6) the fame offence being viewed and feen by any mayor, bailiff or juftice of Onewitnefs peace within their feveral limits, or proved by the oath of two witneffes, fufficient. to be taken before any mayor, bailiff, or any other head officer, or any 21 Jac. 1. ohe or more juftice or juftices of the pe ce, who by virtue of this aft, c. 7. f. 1. fh a n b e authorized to minifter the faid oath to any perfon or perfons that can or will jultify the fame, being within the limits of their faid com- miffion. The prices of III. " And be it further enafted by the authority aforefaid, that if any ale and beer inn-keeper, alehoufe-keeper or victualler, fhall at any time utter or fell M alehoufe"" ^" s t ' ian one full ale-quart ofthebeft beer or ale for a penny, and of the fmall, two quarts for one penny, that then every fuch inn-keeper, ale- houfe-keeper or victualler, fhall forfeit for every fuch offence being duly 2 proved £le*)ottfe& ts proved in manner above limited, the fum of twenty fhillings of lawful money of England, to the ufe abovefaid ; (2) All and every the faid pe- nalties to be levied by the con tables or church-wardens of the parifh or parishes where the offence or offences fhall be committed, by way of dif- trefs to be taken and detained for the faid forfeitures, and for default of fatisfiiction within fix days next enfuing, the fame then to be prefently apprifed and fold, and the furplufage or remainder over and above, to be delivered to the party of whom the diftrefs was taken •, (3) and for want of fufficient diftrefs, the party or parties offending to be by the mayor, bailiff, or other head officer, or juftice or juftices aforefaid, committed to the common gaol, there to remain until the faid penalty or penalties be truly paid. IV. " And be it further enacted by the authority aforefaid, that if the ccnftablesor church-wardens do neglect their duty in levying, or do not levy the faid feveral penalties, or in default of diltrefs or diftrefies, from time to time do neglect to certify the fame default of diftrefs, by the fpace of twenty days then next enluing, to the mayor, bailiff, or other head officer, or juftice of peace within whofe jurifdiction the offence is com- mitted, then every perfon and perfons fo offending fhall forfeit for every fuch default, the fum of forty fhillings of current money of England, to The penalty the ufe of the poor of the parifh where fuch offence fhall be committed ; of the con- (2) to be levied by way of diftrefs of the offenders goods, by warrant ftables or from any one or more juftice or juftices of the peace, mayor, bailiff, or Ln'Vmittiiie other head officer within the limits of their jurifdictions reflectively, under t h e ir duty, his or their hand and leal, to be taken and detained for the faid forfeitures, for the fpace of fix days then next enfuing : Within which time if payment be not made, the fame goods to be prefently apprifed and fold, and the furplufage and remainder over and above (if any be) to be delivered to the party of whom the diftrefs was taken •, (3) and for want of fuch fufficient Theconftable diftrefs, theconftable, church-warden or church-wardens fo offending, to and church- be by the mayor, bailiff, or other head officer, juftice or juftices of peace, warden ' s ac> committed to the common gaol, there to remain until the faid penalty or count ' penalties be truly paid ; (4.) for all which penalties which fo fhall be levied by the faid conftables or church-wardens, they the faid conftables and church-wardens fhall be accountable to their fucceffors and other the pa- rifhioners, in fuch fort as they ufually be in other church-reckonings or accounts : (5) And for all forfeitures to be levied by reafon of any neglect of the conftables or church-wardens, thofe fhall be accountable, who by force of any warrant or precept do levy the fame, or upon the enlarge- ment of the perfons committed, do receive the fame. V. " And be it further enacted, that all other laws and ftatutes 19 H. 7. touching inn-keepers, victuallers, and alehoufe-keepers fhall flill remain c. 12. in their former force, and be put in due execution. (2) This act to con- 5 s -' 6 Ed - 6. tinue to the end of the firft feffion of the next parliament. ^*y VI. " Provided always, and be it enacted by the authority of this pre- tualby 2/jac. fent parliament, that the correction and punifhment of fuch as fhall of- i. c. 7. fend againft this act, or any part thereof, within either of the two univer- Offences com- flties m ' tte d within univeifities. 1 6 2Uel)0ttfeS. Titles of this realm, or the precincts or liberties of the fame, fhall be done upon die offenders, and jultice fhall be minittred in this be- half, according to the intent and true meaning of this law, by the gover- nors, magistrates, juftices of the peace, or other principal officers of either of the lame universities, to whom in other cales the administration of juftice, and correction and puniihment of offenders, by the laws of this realm and their feveral charters doth belong or appertain, and that no other within their liberties, for any matter concerning this law contrary to their feveral charters, do intermeddle-, (2) and that all penalties and fums of money to be forfeited or lott by force of this ad, within either of the universities, or the liberties or precincts of the fame, fhall be levied by the officers < r minifters of either of the faid univerfuies, to be from time to time in that behalf appointed by the vice-chancellors thereof for the time being respectively ; (3) and that all powers and authorities either of imprilbnment or otherwife before given or appointed by this act, fhall by the governors, magistrates and principal officers abovefaid, of either of the faid univerfuies, be duly executed and done within either of the faid uni- verfities, and the liberties and precincts of the fame, according to the true intent and meaning of this act." 4 Jac. i.e. 4. Stat* 4 Jac. 1. c. 4. [A. D. 1606. intituled,'] " An act. to reftrain the utterance of beer and ale to alehoufe-keepers, and tiplers not licenfed." In what cafe " For the better repreffing of alehoufes, whereof the multitudes and only ale or abufes have been and are found intolerable, and ftill do and are like to beer may be i ncrea f e . Be it enacted by the king's moSt excellent majeSty, and the lords houfe keeper fph'itual and temporal, and the commons in this prefent parliament afiem- having no li- bled, and by the authority of the lame, that no perfon or perfons by him- cence. felf, or by any other ways or means, directly or indirectly, fhall at any time after three months next after the end of this prefent ieffion of parlia- Tlie abufes of ment, fell, utter or deliver, or caufe to be fold, uttered or delivered, any alehoufes in- beer or ale, to any perfon or perfons, or into the houfe or cellar of any tolerable. perfon or perfons that then Shall fell or utter beer or ale, as a common None (hall tipler or alehoufe-keeper, the fame perfon not having any licence then in fell ale or beer f orce co fe\\ a i e or beer, other than for the convenient ufe and expence of houft-keeper n ' s ' ner > or tne ' r houfhold only, (3) upon pain to forfeit for every barrel not having li- fold, uttered or delivered contrary to the form and true meaning of this cence, but for act, the fum of fix fhillings eight pence, and fo after that rate for a tlie ex P en ^ e greater or leffer quantity, of h« houf- n „ And be it further gifted by t h e authority aforefaid, that all of- In what courts f ences to De done or committed contrary to the true meaning of this act, the offences and all penalties aforefaid, Shall be enquired of, fued for, heard and de- aforefaid (hall termined in the feffions of the peace for the county, city or borough, be heard and town or liberty, or in the court of record of the city, borough, town or determined, liberty wherein fuch offence fhall be committed, by action of debt, infor- mation, indictment or prefentment, wherein no effoin, protection or wager of law fhall be allowed to the defendant : (2) And the one half of all which forfeitures SUdjoufes. 17 forfeitures fhall be to the ufe of the poor people inhabiting within the y/ho flu!! city, borough, hundred, town or liberty where fuch offences (hall be com- have forfei- mitted from time, to time, and the other half thereof to him or them that tures - will fue for the fame. III. " And to the end that the faid one half of the faid forfeitures The poor's above-limited to be to the ufe of the faid poor people, may be truly im- half of the ployed and bellowed upon them, according to the true meaning of this ^ r [f'£ ur ?\. act : (2) Be it further enacted, that the fheriff, bailiff, or other officer or ve a red ^ ^' e perfon that fhall levy or receive any fum or fums of money forfeited and over f eer c. recovered according to the true meaning of this aft, fhall and may by vir- tue of this aft, without further warrant, deliver the one half of the fame fum and fums of money, by him or them fo levied or received, to fome one or more of the churchwardens and overfeers of the poor of the fame parifh where the fame offence fhall be commited, to be by them and every of them, diftributed and beftowed amongft the faid poor people, according to the true meaning of this aft, who (hall likewife have autho- rity by virtue of this aft, to diftribute and beftow the fame accordingly. IV. " And be it further enacted, that every fheriff, bailiff, and other The officer officer and perfon which fhall levy or receive any fuch forfeiture or forfei- P a y ir g t!ie tures aforefaid, and fhall pay over the moiety and one half thereof, ac- moie ' v t0 ™jj cording to the true meaning of this aft, fhall be thereof difcharged againft ^ e difcha'rged the king's majefty, his heirs and fucceffors. thereof. V. " And be it further enacted, that if any fheriff, bailiff, or other The penalty officer or perfon fhall refufe to pay over the moiety and one half of the for not diftri- faid money by him or them levied or received, or that the faid church- buting the wardens and overfeers, to whom the faid money fhall be fo paid, fhall not in , oney receiv - r ■ ■ ■ , • ' . ,. n ., r , . n ed to the from time to time, within convenient time, truly diitnbute and beftow r the fame to and amongft the poor people, according to the true meaning of this aft, that then every perfon fo offending fhall forfeit double the value thereof, to be recovered, and imployed, as aforefaid." ^>ti1t 4 Jac. 1. c. 5. [A. D. 1606. intituled-] " An aft for repreffing the odious and loathfom fin of drunkennefs." " Whereas the loathfom and odious fin of drunkennefs is of late grown 4 j ac . ,. c . - into common ufe within this realm, being the root and foundation of The penalty many other enormous fins, as bloodfhed, llabbing, murder, fwearing, of a drunkard, fornication, adultery, and fuch like, to the great difhonour of God, and a " dofh '! n of our nation, the overthrow of many good arts and manual trades, the nuetn drink - difabling of divers workmen, and the general impoverifhing of many good ing in an ale- fubjefts, abufively wafting the good creatures of God : houfe. II. " Be it therefore enacted by the king's moft excellent majefty, the Drunkennefs lords fpiritual and temporal, and commons in this prefent parliament ' io e n ™ n m l' afTembled, and by the authority of the fame, that all and every perfon or oXr fins, and perfons, which after forty days next following the end of this prefent fef- the caufe of (ion of parliament, fhall be drunk, and of the fame offence of drunken- Several enor- nefs fhall be lawfully convicted, fhall for every fuch offence forfeit and m '""- Vol. I. N°I. D lofe lSiuMc 18 aieftoufe** The forfeiture lofe five fliillings of lawful money of England, to be paid within one week of him that is next after his, her or their conviction thereof, to the hands of the church- convitfed of warc } ens f that parifli where the offence fhall be committed, who fhall be 7 lac. i. c.io accountable therefore to the ufe or the poor or the lame parifh : (2) And The penalty ^ tne ^ a ' c ' P er f° n or perfons fo convicted, fliall refufe or neglect to pay forrefufmg, or the laid forfeiture, as aforefaid, then the fame fliall be from time to time being not able levied of the goods of every fuch perfon or perfons fo refilling or neglect- to pay the j n g t0 p av t j ie f anie , by warrant or precept from the fame court, judge or juftices before whom the lame conviction fhall be : (3) And if the offender or offenders be notable to pay the faid fum of five fliillings, then the of- fender or offenders fhall be committed to the ftocks for every offence, there to remain by the fpace of fix hours. Theforfci- 1H- " And be it further enacted by the authority aforefaid, that if any ture of an in- conftable, or any other inferior officer of that pariih or place where the ferior officer offence fhall be committed, to whom that fliall be given in charge by the eleftw'd Ti P^^P 11 °f an y ma yoi% bailiff, other head officer, or orjuftices of the peace duty. S within their feveral limits, do neglect the due correction of the faid of- fender, or the due levying of the faid penalties, where diftrefs may be had; Then every perfon fo offending fliall forfeit the fum of ten fliillings of current money of England, to the ufe of the poor of the fame parifli or place where the offence fliall be committed, to be levied by way of dif- trefs, by any other perfon or perfons halving warrant from any mayor, bailiff, or other head officer, juftices of peace, or court where any fuch conviction fliall be, and to be paid to the churchwardens, as beforelimit- ed, who are alio to account for the fame to the ufe aforefaid. The penalty ^ . " And be it further enacted by the authority aforefaid, that if any lor continuing perfon or perfons within this realm of England, or the dominion of Wales, drinking in an fhall remain or continue drinking or tipling in any inn, victualling-houfe alehoufe, s.c. or a l e houfe, being in the fame city, town, village, or hamlet wherein the Farther pro- ' a '^ P er f° n or perfons (fo remaining drinking or tipling) doth dwell and vifions rela- inhabit at the time of fuch drinking and tipling ; and the fame being ting hereto, viewed and fee n by any mayor, or other head officer, juftice orjuftices of 1 Car. 1. c. 4. peace within their feveral limits, or duly proved in fuch manner and form as is limited in and by one act of parliament made in the firft feffion of 1 Jac. i.e. 9. this prefent parliament, intituled, An aft to rejirain the inordinate haunting- and tipling in inns, alehoufes, and other viftualling-houfes, unlefs it be in fuch cafe or cafes as be tolerated or excepted in the faid act ; that then every perfon or perfons fo offending, fhall forfeit and lofe for every fuch offence the fum of three fliillings and four pence, of current money of England, to the ufe of the poor of the parifh where the faid offence fhall be com- mitted, to be levied by way of diftrefs, in fuch manner and form as is be- fore appointed by this act, for the levying of the penalty of five fliil- lings for being drunk : (2} And if it happen that any offender or offenders againft the true intent of this claufe or branch, being thereof lawfully con- victed, be not able to pay the faid forfeiture or forfeitures, then it fliall and may be lawful for any mayor, bailiff or other head officer, juftice or, juftices of peace, or court where any fuch conviction fhall be, to punifli the SUcIjottfcs, 19 the faid offender or offenders by fetting him, her or them in the ftocks for every fuch offence, by the fpace or four hours. V. " For the more due execution of this ftatute, and for the better What officers and more due proceeding againft fuch offenders, all offences of drunken- ffiall enquire nefs, and of excefs and unmeafurable drinking, (2) Be it further enacted of an ivges and charters, as heretofore they have or might have done; any thing in this aft to the contrary notwithftanding. D 2 "XI. Pro- 20 Slldjoufesf* Within what _ XI. " Provided always, that no perfon or perfons (hall be punifhed, fenler fh!n be im P eached or molefted for any offence mentioned in this ftatnte, unlefs he p^efented C ^ a ^ ^e ^ or tne ^ ame °ff en c e prefented, indifted or convicted within fix The continu- months after fuch offence committed : (2) This aft to continue until the ance of this end ot the firft feffion of the next parliament." aft- ,. . [This aft is made perpetual by 21 Jac. i.e. 7. but 21 Jac. 1. c. 28. feci. 1. continues it only to the end of the firft feffion of the (then) next parliament. By the fecond feftion, however, of the faid aft 21 Jac. 1. c. 28. it is provided, that fo much of the aft 4 Jac. 1. c. 5. as by any new aft made in that feffion of parliament (viz. 2 1 Jac. 1.) fhould be explained, altered, or repealed, fhould for fo much thereof from the end of that feffion of parliament, ftand and be in force, as by thofe other afts fhould be ordained. Now, as the faid aft of 4 Jac. i.e. 5. was exprefly menti- oned to be altered by the aft 2 1 Jac. 1 . c . 7. it follows that the aft 4 Jac. 1. c. 5. remains in force, notwithstanding the aft 21 Jac. 1. c. 28. And it is enforced as perpetual by 1 Car. 1. c. 4.] 7 Jac. i.e. 10. ^tfit. 7 Jac. i.e. 10. [A. D. 1609. intituled] " An aft for reforma- tion of alehoufe-keepers." The penalty " Whereas notwithstanding all former laws and provifions already for an offence made, the inordinate and extreme vice of exceffive drinking and drunken- committed ne f s doth more and more abound, to the great offence of almighty God, again the anc j the wa ftf L ,} deftruftion of God's good creatures, be it enafted by the ltatuteA lac. • • c • ■ r -r r \ • - , c - authority or this prefent parliament, that if any perion being an alehoule- keeper (after fix weeks next enluing this prefent feffion of parliament) fhall be lawfully convicted for any offence or offences committed againft any of the branches of two former afts of parliament made fithence the + Jac. 1. c j. beginning of this prefent parliament, the one intituled, An ail to rejlrain 1 Jac. i.e. 9. (fa inordinate haunting and tipling tn inns, alehoufes, and other viclualling- houfes ; the other intituled, An ail againft the odious and loathfom Jin of drunkennefs ; that then every perfon or perfons fo convicted, fhall for the Space of 3 years next enfuing the faid conviction, be utterly difabled to keep any fuch alehoufe." . ®tat. 21 Jac. 1. c. 7. [A. D. 1623. intituled,] " An aft for the bet- ter repreffing of drunkennefs, and restraining the inordinate haunting of inns, alehoufes, and other viftualling-houfes." Theftatutesof " Wnereas one ftatute, intituled, An ail to rejlrain the inordinate haunting 1 Jac. i.e. g. or tipling in inns, alehoufes, and other viilualling-houfes, made in the firft year 4 Jac. i.e. 5. of his highnefs happy reign of England; and another ftatute, intituled, An madeperpe- ac j to reprefs the odious and lothful fin of drunkennefs, made in the fourth One witnefs y ear °* nis ni g hnef " s rei g n of England, were made to continue to the end (hall be fuffi- °f tne firft feffion of the next parliament, and by experience have been cient to con- found good and neceffary laws •, Be it therefore enafted, that the faid fta- vinceamanoftutes, with the alterations and additions hereafter expreffed, fhall be put drur^nnef in due execution > m & continue forever: (2) And whereas by the faid ftatutes, proof of two witneffes is required, Be it enacted, that proof of one witnefs from henceforth (hall be allowed and taken for fufficient in that behalf: (3) And that the voluntary confeffion (before any fuch per- The oath of fons as by the faid act are authorized to minifter the oath) of any perfon him tnat con- offending either of the faid ftatutes, fhall fuffice to convince the perlbn fo r effeth i h ?/' offending •, (4) after fuch confeffion, the oath of the party fo confejjmg, a f u fl; c j ent fhall and may be taken, and be a fufficient proof againft any other offend- poof againft ing at the fame time. any other. II. " And be it further enacted, that if any other perfon or perfons, He that nays wherefoever his or their habitation or abiding be, fhall at any time here- tipling in an after be found upon view, or his own confeffion, or proof of one witnefs, | rn . &c A 13 ' 1 to be tipling in any inn, alehoufe or victualling-houie, fuch perlbn or per- "^ ^^ja fons fhall be from henceforth adjudged and conftrued to be within the faid by 4 [ic. 1. ftatutes, as if he or they had inhabited and dwelt in the city, town corpo- c 5. rate, market-town, village or hamlet where the faid inn, alehoufe or vic- tualling-houfe is, or fhall be, where he or they fhall be fo found tipling, and fhall incur the like penalty, and the fame to be in fuch fort levied and dif- pofed, as in the faid act is expreffed, concerning fuch as there inhabit : (2) And the voluntary confeffion of fuch perfon or perfons fo offending, before fuch as by the faid ftatutes are authorized to minifter the oath, fhall fuffice to convince themfelves •, (3) and after' fuch confeffion, the oath of fuch perfon or perfons fo confeffing, fhall and may be taken by fuch as by the faid aft have authority to minifter an oath, and fhall be a fufficient proof againft any other offending at that time. III. " And be it further enacted, that any iuftice of peace in any He that ?s county, and any juftice of peace or other head officer in any city or town convicted of corporate, within their limits reflectively, ihall from henceforth have l rU n'j en f nef !' power and authority, upon his own view, confeffion of the party, or proof of one witnefs upon oath before him, which he by virtue of this act fhall have power to adminifter, to convict any perfon of the offence of drnnkennefs, whereby fuch perfon fo convict fhall incur the forfeiture of five fhillings for every fuch offence, and the fame to be levied, or the of- fender otherwife punifhed, as in the faid ftatute is appointed : And for Forthefecond the fecond offence, he fhall become bound to the good behaviour as if he offence he had been convicted in open feffions •, any thing in the faid former ftatute c 1 c. c: majefty's reign, intituled, An a51 to reprefs the odious and loathfome Jin nfables,&e. ef druhkemtefs, conftables, church-wardens, headburoughs, tithingmen, ft ?^ becha k r ?" ' ' ' . t> ' ed (on their aleconners oa h ; } to --;- i 22 3Udjoufe£. fent the offen- aleconners and fidemen are appointed in the oaths incident to their ces commuted ffi ceS) t:) De Hkewife charged to prefcnt the offences contrary to the faid pin ijac.i, ^. a!:ut:e . 2 ) Be it enacted, that the faid oath fhall always hereafter be alio enlarged, and extend to prefent all offences done contrary to the ftatute made in the firft feflion of parliament held in the firft year of his highnefs reign, intituled, An ail to rejlrain the inordinate haunting and tipling in inns and akhoufes, and other viSlualling-houfes, with the alterations and additions in this act contained, made in the faid fourth year of his faid majefty's reign, according to the alterations and additions of the fame in this aft exprefled. 1 Car. 1 . c. 4. i Car. i.e. 4. @t£tt. 1 Car. 1. c. 4. [A. D. 1625. intituled,] " An Acl: for the further reftraint of tippling in inns, alehoufes, and other victualling- houfes." Stat. 1. Car. " Whereas in the laft parliament it was enacted, that if any perfon or i.e. 4. perfons, wherefoever his or their habitation or abiding be, fhould after be welus^nha ounc ^ u P on view, or his own confeffion, or proof of one witnefs to be bitants, (hall tippling in any inn, alehoufe, or victualling-houfe ; fuch perfon or perfons not be permit- (hould be thenceforth adjudged and conftrued to be within the ftatutes of ted to tipple in tne fl r f|- aru ] fourth years of the late king's majefty's reign, king James of Louies & famous memory ; the one intituled, An aft to rejlrain the inordinate haunt- 1 fa. 1. c. gJ n S°f tippling in inns , alehoufes, and other viSlualling-houfes ; and the other 4Ja. i.e. 5. intituled, An a5i to reprefs the odious and loathfome Jin of drunkennefs, as if he or they had inhabited and dwelled in the city, town corporate, market- town, village or hamlet where the inn, alehoufe or victualling-hoiife was, or fhould be, where he or they fhould be lb found tippling, fhould incur the like penalty, and the fame to be in fuch fort levied and difpofed, as in the faid act is exprefled, concerning fuch as there inhabit ; (2) but no punifhment by any or eicher of the faid acts, or by any other ftatute, is inflicted upon the inn-keeper, alehoufe-keeper, or victualler that permits or fuffers fuch perfon or perfons not there inhabiting, to tipple in his inn, alehoufe or victualling-houfe : (3) for remedy whereof, be it enacted, that every inn-keeper, alehoufe-keeper, and other victualler, that at any time after the end of this feflion of parliament, fhall permit and fuffer any perfon or perfons not inhabiting in the city, town corporate, market-town, village or hamlet where fuch inn, alehoufe or victualling-houfe is or fhall be, to tipple in the faid inn, alehoufe or victualling-houfe, contrary to the true intent of any or either of the faid former ftatutes, the faid inn-keeper, alehoufe-keeper and victualler fo offending, fhall incur the fame penalty, and in fuch manner to be proved, levied and difpofed, as in the former 1 Ja. i. c. 9. f tatute f t ] ie fij-ft y ear f hj s f a id l a te majefty's reign is appointed for per- mitting fuch to tipple as dwell in the fame city, town corporate, market- town, village or hamlet. Vintners and jj cc ^ nc j b e j t f urt h er enacted, that the keepers of taverns, and fuch as be within" this ^° ^ wlne m tne ' r houfes, an ^ do alfo keep inns, or victualling in their and ihe other houfes, fhall be taken to be within the faid two former ftatutes, and alfo ftatutes. within this ftatute. £>tat 8>tflt« 3 C«r. I. c. 3 [//. Z>. 1627. intituled,'] "An Aft for the 3 Car. i.e. 3. better fuppreffing of unlicenfed alehoufe-keepers." " Whereas by an aft made in the fitfh year of the reign of king Edward The forfeiture the fixth of famous memory, intituled, An aft for keepers of alehoufes to and punilh- be bound by recognizance, amongft other things it is enafted, that if any™ ntofhim perfon or perfons, other than fuch as fhould be from thenceforth admitted liewTwith- and allowed by the juftices mentioned in the faid aft, mould after the day out licence, in the faid aft limited, obftinately and upon his own authority, take upon 5 & 6 Ed, 6. him or them to keep a common alehoufe or tippling-houfe, or mould c,2 5- contrary to the commandment of the faid juftices, or two of them, ufe commonly felling of ale or beer, that then the faid juftices of peace, or two of them, (whereof one to be of the quorum) fhould for every fuch offence, commit every fuch perfon or perfons fo offending to the common gaol within the fame fhire, city, borough, town corporate, franchife or liberty, there to remain without bail or mainprife by the fpace of three days; (2) And before his or their deliverance, the faid juftices fhould take recognizance of him or them fo committed, with two fureties that he or they fhould not keep any common alehoufe, tippling-houfe, or ufe commonly felling of ale and beer, as by the difcretion of the faid juftices. fhould feem convenient : f 3) and the faid juftices fhall make certificate of every fuch recognizance and offence, at the next quarter-feffions that fhould be holden within the fame fhire, city, borough, town corporate, franchife or liberty where the fame fhould be committed or done ; (4) which certificate fhould be a fufficient conviction in law of the fame offence : (5) and the faid juftices of peace, upon the faid certificate made, fhould in open feffions affefs the fine for every fuch offence, at twenty millings, as by the faid aft may appear : (61 which law hath not wrought fuch reformation as was intended, for that the faid fine of twenty fhillings is feldom levied, and for that many of the faid offenders, by reafon of their povertv, are neither able to pay the faid fine of twenty fhillings, nor yet to bear their own charges of conveying them to the gaol ; and more- over, do leave a great charge of wife and children upon the pari flies wherein they live : in regard whereof, the conftables and other officers are much difcouraged in prefenting them, and the offenders become obftinate and incorrigible : II. "For remedy whereof, be it enafted by the authority of this He that keeps prefent parliament, that if any perfon or perfons, after forty days next an alen ° u(e > enfuing the end of this prefent feffion of parliament, fhall upon his own j^ en "e a' 11 authority, not being thereunto lawfully licenfed, take upon him or them, forfeit 20s. to keep a common alehoufe or tippling-houfe, or ufe commonly felling of Altered by 26 ale or beer, cyder or perry, that then every fuch perfon or perfons fhall for Geo - 2 - «■'• 3 1 - every fuch offence forfeit and lofe the fum of twenty fhillings of current ~ ?' ', money of England, to the ufe of the poor of the parifh where fuch offence fhall be committed ; the fame offence being viewed and feen by any mayor, bailiff, or juftice of peace, or other head-officer, within their feveral limits, or confeffed by the party fo offending, or proved by the oath of two witneffes, to be taken before any mayor, bailiff, or other head officer, or any. 2+ SUefpufes. any one or more juftice or juftices of the peace, who by virtue of this a£l (hall be authorized to minifter the faid oath to any perfon or perfons that can or will juftit'y the fame, being within the limits of their faid commif- The con- fion : (2) The faid penalty to be levied by the conftables or churchwar- llables or rfens of the parifh or parifhes where the laid offence fhall be commit- densValnevy tc "^ » wn0 ^ a ^ ^e accountable therefore to the ufe of the poor of the faid the faid for- parifh, by way of diftrefs to be taken and detained by warrant or precept f'dcure to the from the faid mayor, bailiff, juftice or juftices, or other head-officer, by uie of the w hom the faid offence fhall he viewed, or before whom the fame fhall be P oor ' confeffed, or proved, as aforefaid : (3) And for default of fatisfaction within three days next enfuing, the faid diftrefs to be by the faid conftables or church-wardens appraifed and fold, and the overplus to be delivered to the party or parties offending, and this to be only for the firft offence : The party that ^) And if fuch offender or offenders fhall not have fufficient goods and isnotabeto c ^ at[e i Sj whereby the faid twenty millings may be levied by way of dif- feiture fhall trefs, as aforefaid, or fhall not pay the faid fum of twenty fhillings within be whipped, fix days after fuch conviction, as aforefaid, that then the faid mayor, bai- liff, juftice or juftices, or other head-officer, before whom the faid offen- der fhall be convicted, as aforefaid, fhall commit all and every the faid of- fender or offenders to fome conftable or conftables, or other inferior officer or officers of the city, borough, town, parifh or hamlet where the offence fhall be committed, or the party apprehended, to be openly whipped for the faid offence, as the faid juftice or juftices fhall limit or appoint. The officer III. " And be it enadled by the authority aforefaid, that if any con- negleaing to ft a bi e or inferior officer fhall neglect to execute the faid precept or war- f Un d r'fhaH " rant ' or ^° re ^ u ^" e > or do not execute by himfelf, or fome other to be by be imp'rifon- him appointed, upon the offender, the punifhment limited by this ftatute, ed, or pay that in that cafe, it fhall and may be lawful for the faid mayor, bailiff, forty fhillings. j U fti ce or juftices of peace, or other head-officer, to commit the conftable or other inferior officer fo refufing, or not executing the faid punifhment by himfelf or fome other, to the common gaol of the faid county, city, or town corporate, there to remain without bail or mainprize, until the faid offender or offenders fhall be by the faid conftable or conftables, or other inferior officer fo refufing, or not executing the faid punifhment, or fome by his or their procurement, punifhed or whipped, as is above limited and declared, or until he or they fo neglecting or refufing, fhall have paid the fum of forty fhillings of lawful money of England, unto the ufe of the poor of the parifh, for their faid contempt. Forthefecond IV. " And be it further enacted, that if the faid offender or offenders and third of- being an unlicenfed alehoufe-keeper, fhall offend in any the premiffes the fender fhall be f econc ' time, and be thereof lawfully convicted in manner and form afore- committed to faid, that then the faid mayor, bailiff, juftice or juftices of the peace, or the houfe of other head-officer, fhall commit him, her, or them unto the houle of cor- correftion. rection, there to remain for the fpace of one month, and be dealt withal as idle, lewd and diforderly perfons : (2) And if fuch perfon or perfons fhall again offend, and fhall be thereof convicted, as aforefaid, that then the faid offender and offenders for every fuch offence, fhall be committed unto the SUeftOttfes. 25 the faid houfe of correction, as aforefajd, there to remain, until by the order of the juftices in their general feffions for the county, city, borough or franchife, he, fhe or they fhall be delivered from thence. V. " Provided always, that fuch offender or offenders as lhall be pu- The oftcr< j er nilhed by virtue of this aft, fhall not be punifhed again for the fame of- ponifotd by fence by the former a<5t made in the fifth year of king Edward the fixth this aft, (hail afore-mentioned ; (2) and that fuch offender or offenders as (hall be pu- r ° t ni b ^ e ^" 1 nifhed by virtue of the before-mentioned aft made in the fifth year of king P &6 Ed. 6. Edward the fixth, fhall not be punifhed again for the fame offence by c . 25. & con- virtue of this prefent act, nor any thing therein contained. tra. VI. " Provided always, that in fuch towns and places where any fair Alehoufes or fairs fhall be kept, that for the time only of the fame fair or fairs, it kept in the fhall be lawful for every perfon or perfons to ufe common felling of ale tm 'f °* d or beer in booths, or other places there, for the relief of the king's fub- e ' jects that fhall repair unto the fame,, in fuch like manner and fort as hath been ufed and done in times paft ; this act, or any thing therein contained to the contrary notwithftanding." ©tat. 2 Geo. 2. c, 28. [J. D. 1729.] made, among odrer purpofes, 2 Geo. » for better regulation of licences for common inns and alehoufes. c. 28. Seel. 11. " And whereas many inconveniences have arifen from perfons being licenfed to keep inns, and common alehoufes,. by juftices of the peace, who living remote from the places of abode of fuch perfons, may not be truly informed as to the occafion or want of fuch inns or common alehoufes, or the characters of the perfons applying for licences to keep the fame, be it therefore enacted by the authority aforefaid, that from and m i; cence ta - after the 24th day of June 1729,. no licence fhall be granted to any perfon keep inns or to keep a common inn or alehoufe, or to retail any brandy or ftrong wa- alehoufes to ters, but at a. general meeting of the juftices of peace, acting in the divifion £ e grai g te e ' ne _ where the faid perfon dwells, to be holden for. that purpofe, on the 1 ft day ra " ^ eet ing of- of September yearly, or within twenty days after, or at any other general the juftices. meeting of the faid juftices, to be holden for the divifion wherein the faid Repealed by perfon refutes ;. and all licences which fhall, after the faid 24th day of 26 Geo. 2. June 1729, be granted to the contrary hereof, fhall be null and void. c - 3 1 - f - 4- Set?. 12. " Provided always, that nothing herein contained fhall ex- Licences al- tend, or be conftrued to extend, to oblige perfons already licenfed, to take ready granted out new licences on the ift day of September 1 729, or within twenty days t0 f " bfllt v] } . after, but that the licences already granted fhall fubfift and be valid, until I '„, ' p the ift of September 1730; any thing in this act contained to the contrary notwithftanding-, nor fhall any thing herein contained extend to alter the method or power of granting licences for keeping of common inns, ale- houfes or brandy-fhops, in any city or town corporate." @tat. 26 Geo. 2. c. 13. [A. D. 1753.] fetl. 12. " It is enacted, that 26 Geo2. from and after the 24th day of June 1753, no juflice of the peace, being c - '3- a common brewer of ale or beer, innkeeper or difliller, or other feller of r ! c " "" s Vol. I. N" II. E wEK«? 26 ^Idjoufesf. tillers, vie- or dealer in ale or any kind of fpirituous liquors, or ip.terefted in any of tuallersor the faid trades or bufinefs, or being a victualler or maltfter, fhall during "flWb^j* 0, ^ UC ^ l ' me as ne ma ^ be fuch common brewer, innkeeper, diftiller, vic- from granting tua ^ er or maltfter, or other feller of or dealer in ale or fpirituous liquors, licences for or interefted in any of the faid trades or bufineffes, be capable or have any felling ale, &c. power to grant any licence or licences to any perfon or perfons whatfoever,. for felling ale, beer, or any other liquors by retail ; and in cafe any fuctu juftice or juftices fhall, contrary to the true intent and meaning hereof, prefume to grant any fuch licence, the lame fhall be and is hereby declared to be null and void to all intents and purpofes whatfoever. 26 Geo. 2. c. 31. Juftices Ii- cenfing ale- houfes, &c. to take recog- nizance in the fum of 10 1. for the main- tenance of good order ; and to fend the recogni- zances to the clerks of the .peace, on penalty of 3l. 6s. 8d. <2>tilt. 26 Geo. 2 c. 31. [A. D. 1753. intituled,'] " An act for regulat- ing the manner of licenfing alehoufes in that part of Great Britain called England; and for the more eafy convicting perfons felling ale and other liquors without licence. " Whereas the laws concerning alehoufes, 'inns and victualling-houfes, and the licenfing thereof, are defective and infufficient for correcting and fuppreffing the abufes and diforders frequently done and committed there- in, and alio for the conviction and due punifhment of perfons taking upon themfelves to fell ale, beer or other liquors by retail without licence ; Be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords lpiritual and temporal and commons in this prefent parliament affembled, and by the authority of the fame, That upon grant- ing licences by juftices of the peace to any perfon to keep an alehoufe, inn, victualling-houfe, or to fell ale, beer and other liquors by retail, every fuch perfon fhall enter into a recognizance to the king's majefty, his heirs and fucceifors, in the fum often pounds, with two fufficient fureties, each in the fum of five pounds, or one fufficient furety in the fum of ten pounds, under the ufual condition, for maintenance of good order and rule within the fame; and in cafe the perfon applying for fuch licence fhall be hindered through ficknefs or infirmity, or any other reafonable caufe, to be allowed by the faid juftices of peace, to attend in perfon at the meetings of the fame juftices for granting the faid licences, then that it fhall and may be lawful for them to grant fuch licence, upon two fufficient fureties entering into fuch recognizance, each in the penalty of ten pounds, for performance of the con- dition of the faid recognizance-, which faid recognizance, with the condition thereof, fairly written or printed, fhall forthwith, or at the next gene- ral or quarter feflion of the peace at fartheft, after granting fuch li- cences, be fent or returned to the clerks of the peace, or perfons acting' as fuch, for every county, riding, city, liberty or town corporate in that part of Great Britain called England, wherein fuch licences fhall be granted, un- der the hands of the juftices of the peace before whom fuch recognizances were taken, to be by the faid clerks of the peace, or fuch other perfon act- ing as fuch, duly entered or filed amongft the records of the feffions of the peace-, and that for every fuch licence granted without taking fuch recog- nizance, and tor every fuch recognizance taken, and not fent or returned 2 as ftlcDoufc*. 27 as aforefaid, every jufticeof the peace figning fuch licence fhall forfeit the fum of three pounds fix [hillings and eight pence. II. " And for the better preventing diibrders in alehoufes, be it further Licences to be enafted, that no licence to keep the fame fnall be granted to any perfon granted to not hcenfed the year preceding, unlefs fuch perfon produce at the general "J^™' ll " meeting of the juftices in September, a certificate under the hands of the year prece( i. parfon, vicar or curate, and the major part of the churchwardens and i rg , uniei's' overfeers, or elfe of three or four reputable and fubftantial houfeholders fuch. as (hall and inhabitants of the parifh or place where fuch alehoufe is to be, fetting j^ e u s " f c '^V forth that fuch perfon is of good fame and of foberlife and converfation •, d fame _ and it fhall be mentioned in luch licence,. that fuch certificate was produced, otherwife fuch licence fhall.be null and void. III. " Provided neverthelefs, that if any licenfed perfon fhall die or Licenfed per- remove from an alehoufe, it fhall be lawful for the perfon fucceeding to fon dying or fuch houfe to keep on the laid alehoufe during the refidue of the term of "moving, the fuch licence, on condition that within thirty days after fuch death or re- u ucce *° r ' . moval fuch perfon obtain fuch certificate as aforefaid, to be figned by fome i ng f uc h cer- neighbouring juftice, in order to its being produced at the next general tiikate, rosy meeting in September ; and if fuch certificate be not fo obtained and figned keep on the within the faid thirty days, then immediately from and after the expiration f u f efor f th f thereof, fuch licence fhall be null and void ; and no licence fhall in- ter^o/the' & title any perfon to keep an alehoufe in any other place than that in which licence, Sec. it was firft kept by virtue of fuch licence, and fuch licence, with regard to all other places, fhall be null and void. IV. " Whereas by an aft made in the fecond year of his prefent ma- 2 Geo. 2.c. jefty'sreign, intituled, An ail to revive the laws therein mentioncd,&c. amongfl z8 - C lis other things it was enafted, that no licence fhall be granted to any perfon to keep a common inn or alehoufe, or to retail any brandy or ftrong wa- ters, bat at a general meeting of the juftices of the peace afting in the divifion where the faid perfon dwells, to be holden on the firft day of Sep- tember yearly, or within twenty days after •, or at any other general meet- ing of the faid juftices to be holden for the divifion wherein the faid per- fon refides •, which regulation, by reafon of the laft-mentioned provifion, has been found by experience not to have the effeft intended by the faid regulation ; Be it therefore enafted by the authority aforefaid, that the laft Laft provifion before- mentioned provifion fhall be and is hereby repealed ; and that from in the faid henceforth no licence for the purpofes aforefaid fhall be granted, but on c ' aufe re peal- the firft day of September yearly, or within twenty days after •, and that e r ■' r. u v n. 11 1 j r 1 I Licences to be Inch licence inail be made for one year only, to commence on the twenty- o r3nt edon ill ninth day of the faid September ; and that the day and place for granting Sept. or 20 fuch licences fhall be appointed by two or more of the juftices afting for da y s &"> and the divifion, by a warrant under their hands and feals, at leaft ten days be- the / a T ct ? be fore fuch meeting, direfted to the high conftable or high conftables of the ™ e e ye ^ ; or faid divifion, requiring him or them to order his or their refpeftive petty Notice to' be conftables or other peace officers, to give notice to the feveral inn-keepers g' ve n of the and alehoufe-keepers within their refpeftive conftablewicks, of the day time and place and place of fuch meeting ; and all licences hereafter granted at any other (hem?" 1 " 62 E 2 time 28 •Clerks of the peace to deli- ver copies of the recogni- zances to the jullices at their general meet ings for grant jng licences, yearly. Recovery of the forfeitures for granting licences with- out taking a recognizance. Where a juf- tice (hall ad- j udge the re- cognizance to be forfeited, he is to fum- mon the party to the quar- ter-feflions, its. 3Uc!)0tifc£. and the jury finding him guilty, the recognizance is to be ef- {reated. time or place fhall be null and void to all intents and purpofes what- soever. V. " And be it further enacted, that the clerks of the peace fhall keep a regiiler or calendar of all the recognizances lb lent or returned, and ihall deliver or caufe to be delivered to the juftices of the peace at their general meetings in September every year, for granting licences in each divifion or place, a true copy of fuch regifter or calendar ; and that for every recog- nizance there (hall be paid by the clerk or clerks of the juftices taking iuch recognizances to the faid clerks of the peace, as their fee for filing or recording the laid recognizance, and for making and delivering copies ■of the laid regifter or calendar thereof, as aforefaid, the fum of one mil- ling, and no more ; which Ihall be paid to the clerks of the faid juftices by the perlbns licenfed, over and above the fees payable to the faid juftices clerks. VI. " And be it enacted by the authority aforefaid, that the faid for- feitures for granting fuch licences, without taking recognizances, Ihall and may be fued for and recovered by action of debt, bill, plaint or informa- tion, in any of his majefty's courts of record at Weftminjter, for the ufe of the perfon or perfons who ihall fue or profecute for the fame, together with cofts of fuit ; wherein no elfoin, wager of law, or more than one imparlance fhall be allowed. VII. " And be it further enacted by the authority aforefaid, that any juftice of the peace of any county, riding, city, liberty or town corpo- rate, wherein fuch licence fhall be granted, upon complaint or informa- tion that fuch licenfed perfon hath done or committed any act, offence or mifdemeanor, whereby in the judgment of the fame juftice fuch recogni- zance may be forfeited, or the condition thereof broken, may by fummons under his hand and feal require fuch perfon fo complained of, or informed againft, to appear at the next general or quarter leffion of the peace for the faid county, riding, city, liberty or town corporate, then and there to anfwer to the matter of fuch complaint or information ; and alfo may bind the perfon or perfons who fhall make fuch complaint or information, or any other perfon or perfons, in a recognizance to appear at fuch gene- ral or quarter feffion, and give evidence againft fuch perfon fo complained of or informed againft; and the juftices of the peace in their general or ■quarter feffions fhall have power to direct the jury which fhall attend at fuch fefiions for the trial of traverfes, or fome other jury of twelve honeft and lubftantial men, to be then and there impanelled by the fheriff, with- out fee or reward, to inquire of the mifdemeanor charged in the faid com- plaint or information-, and if fuch jury fhall find that the perfon fo com- plained of, or informed againft, hath done any act whereby the condition of his recognizance is broken, fuch act being fpecified in fuch complaint or information, it fhall and may be lawful for the court at fuch general or quarter feffions to adjudge fuch perfon guilty'of the breach of fuch recog- nizance-, which verdict and adjudication fhall be final to all intents and purpofes •, and thereupon the faid juftices fhall order the recognizance en- tered into by fuch offender to be eftreated into his majefty's court of Ex- chequer, Stleljoufe^ 29 chequer, to be levied to his majefty's ufe ; and that the faid perfon, the condition of whofe recognizance fhell be fo adjudged to be broken and forfeited, fhall, from and after fuch adjudication, be utterly difabled to and be is diT- fell any ale, beer, cyder, perry, fpirituous liquors or ftrong waters, for »j»ied from the fpace of three years ; and any licence or licences, granted or to be ^'^ ,hree oranted to fuch perfon during fuch term, fhall be void, and of none effect. years ° VIII. " Provided, that the faid juftices may at the requeft of the pro- j uflices VAJ fecutor or party fo complained of, or informed againft, or either of his adjourn the or her fureties, if they fhall fee juft, adjourn the hearing and trial of the jW to next faid complaint or information to the then next general or quarter feflions ,on£ - of the peace, where the fame fhall be finally determined. IX. " And whereas many perfons prefume to fell ale, beer, cyder, Whereajuf- perry or other liquors, without fuch licence as is required by law for felling |j« : /hall fu- the fame ; and it is difficult, by reafon of many evafions that are made ^^ £}£ ufe of, and by fome defects in former laws, to convict fuch offenders ; a i e _ &c Be it therefore enafted, that where any juftice of the peace fhall fufpect without li- that any alehoufe-keeper, victualler or retailer, fells ale, beer, cyder or «nce, he may perry, without fuch licence, it fhall and may be lawful for fuch juftice to andThToffi"* call fuch fufpected perfon before him, and alfo any excife officer or gau- ^Jf**, Q ™ ger, to produce before fuch juftice, his ftock book, or other account him, which fuch officer keeps, of the charge or furvey of fuch fufpected per- fon, in refpecl: of any of the liquors aforefaid •, and likewife to examine and examine fuch excife officer or gauger upon oath, touching the manner in which fuch officer fuch officer furveys or charges fuch fufpected perfon, in refpeft of any of u P on oath - the liquors aforefaid, or how or in what manner fuch fufpected perfon actually pays the duties for any of the faid liquors ; and if it fhall appear by fuch ftock book or other account, or by the examination of the laid officer or gauger, that fuch perfon fo fufpe&ed of felling any of the li- quors aforefaid, is furveyed as a victualler or retailer, and is charged with the fame duties that victuallers and retailers are ufually charged with, and pay for any of the liquors aforefaid, and is not intitled to the allowance or abatement given to common brewers, then and in fuch cafe fuch fufpected perfon fhall be deemed an alehoufe-keeper, victualler, retailer or feller of any of the liquors aforefaid, to all intents and purpofes, as if the fame had been proved by two witneffes. X. " And be it further enacted, that if any perfon fhall make i nfor- Juftice upon mation before any one juftice of the peace, and fhew probable caufe that information he fufpects that any perfon fells ale, beer or other liquors without a licence ' hat . an >' P er * from two juftices, it fhall and may be lawful to and for fuch juftice to call abivVufpefled fuch fufpected perfon before him, and alfo to fummon any other perfon or of idling ale, pefons as evidence, to prove the charge againft fuch fufpected perfon •, and &x. without if fuch perfon fo fummoned fhall refufe to appear, or when appearing, 1,cence > isi ° fhall refufe to be examined upon oath, and give evidence as aforefaid, p U a ™ m °^' c fuch perfon or perfons fhall forfeit the fum of ten pounds, to be levied evidence. by diftrefs and fale of the goods and chattels of fuch offender or offenders, Perfons Cunt- by warrant under the hand and feal of fuch juftice, rendering to him or mone Decr > cyder or perry, fuch perfon fnall by the ale, &c. dif- f arr >e conviction be alfo difabled to fell any fpirituous liquors or ftrong abled alfo waters, any licence before obtained for that purpofe notwithstanding; and from felling every licence granted to the perfon fo convicted, to fell ale, beer, cyder, fpintuousli- p errVj fpirituous liquors, ftrong waters, or any of them, from the time of fuch conviction fliall be null and void ; and every perfon felling ale, beer, cyder, perry, fpirituous liquors, flrong waters, or any of them, during the term of fuch difability, fliall be fubject to all or fuch of the penalties, as are refpectively inflicted by law for felling ale, beer, cyder, perry, fpirituous liquors, ftrong waters, or any of them, by retail with- out a licence ; and in all profecutions of fuch offenders, a certificate from the clerk of the peace (or perfon acting as fuch) of any fuch conviction, fliall be legal evidence ; which certificate fuch clerk of the peace or perfon fliall grant on demand without fee or reward. Penalty of fel- XII. And be it farther enacted, that every perfon fo convicted of the Jingale, &c. offence of felling ale, beer, or other liquors, without a licence from two wmhojt a h- j u fti ces of the peace, fliall for every fuch firft offence forfeit the fum of •Jj"J omtwo forty fhillings-, and for every fuch fecond offence fliall forfeit the fum of four pounds -, and for every fuch third offence fliall forfeit the fum of fix pounds ; tobe levied by all which faid refpective foreitures fliall and may be levied by diftrefs and diftrefs and fale of the goods and chatties of every fuch offender (rendering to him the file; overplus, after charges of the faid diftrefs and fale deducted) by warrant under the hand and leal of the juftice convicting fuch offender-, and fliall one moiety to be paid one moiety thereof to the informer, and the other moiety thereof to the informer, tne over f eers G f the poor, for the ufe of the poor of the parifli or place a " h' C or" where fuch offencewas committed ; and if no fufficient diftrefs (hall befound, for want of whereon to levy the faid refpective forfeitures, then the faid juftice of the ciitrefs, the peace fliall and may commit every fuch offender fo refpectively convicted perfon to be as aforefaid, to the common gaol, or other prifon, or houfe of correction, commuted. w ithin his jurifdiction, without bail or mainprize, for the fpace of one month, for the firft offence •, and for the fecond^ffence, for the fpace of two months •, and for the third offence, until fuch offender fliall be difcharged by order of the court*of general quarter feffions. Explained by 28 Geo. 2. c. lg.fefi. 2. and altered by 5 Geo. 3. c. 46. Conviaion to XIII. And that every conviction of any offender for felling ale, beer, be certified to or other liquors without fuch licence, or after being difabled to fell, as the next aforefaid, fliall be certified by the juftice of the peace making the fame, quarcerfef- t0 t he next general or quarter feffion of the peace, to be filed or entered amongft the records of the faid feffion ; and that fuch conviction fhall and may be drawn up and certified in the following form of words, as the cafe fliall happen, or in any other form of words to the fame effect, mutatis tyutandis, that is to fay. Middlefex, Middle- \ A. B. is conviSed on his or her own confeffion (or, on the oath of Form ofcon- fex. J ) of having fold ale, beer, or other liquors, in the v ' ftl0n - parifh of in this county, on the ■ Day of without being licenfed thereto according to law (or, after being difabled to fell, as the cafe may be). Given under my hand andfeal this day of And there fhall be added, that the fame is the firft, fecond or third conviction ; which faid conviction, in the fame or the like form of words, fhall be good and effectual in law to all intents and purpofes, and fhall not be quafhed, fet afide, or adjudged void or infuffkient, for want of any other form or words whatfoever. XIV. Provided always, that fuch offender who fhall be punifhed by Offender not virtue of this act, fhall not be punifhed again for the fame offence by any liabIe t° d °ublt former aft ; and that fuch offender who fhall be punifhed by virtue of any fo"^^^^ former aft, fhall not be punifhed again for the fame offence, by virtue of offence, this prefent aft, or any thing herein contained. XV. Provided that this aft, or any thing herein contained, fhall not Rights of the any wife be prejudicial to the privilege of licenfing taverns and other univ 'erfuies to publick houfes, claimed by the two univerfities of that part of Great Britain ^T\ j ences called England, or either of them, nor to the chancellor, mafters and fcholars, or any officers of the fame, or their fucceffors, but that they may ufe and enjoy fuch privilege as they have heretofore lawfully ufed and enjoyed ; any thing herein contained to the contrary notwithftanding. XVI. Provided alwavs, that nothing herein contained fhall extend or be The times of conftrued to extend to alter the time or times of granting licences for keep- g rantin g"cen- ing of common inns or alehoufes, or to oblige perfons not licer.fed the ^ n °J. com " year preceding to produce certificates, in any city or town corporate. altered, &c. XVII. Provided always, that any perfon fhall be deemed a competent Inhabitant of wtinefs, and be admitted to give evidence upon any information or complaint the P arifll for any offence committed againft this aft, notwithftanding fuch perfon deemedaco ™- be an inhabitant of or charged or liable to be charged to the payment of " W1 n€ $ * any rates or affeffments for the relief of the poor of any parifh or place where fuch offence fhall be committed. §)tat. 28 Geo. 2. c. 19. [AD. 1755-] " Made, among other purpofes, 28Geo. 2. for the further punifhing perfons felling ale or other liquors without c - '9- licence." Seel. 2. And whereas doubts have arifen upon the conflruftion of an aft of parliament paffed in the 26th year of the reign of his piefent rnajefty, intituled, An ail for regulating the manner of licenfing alehoufes, in that part of Great Britain called England, and for the -more rajy convicling perfons ftllu: f ale and other liquors without licence, whether a perfon hiving been conviftui of three feveral offences in felling ale, beer or other liquors, without a licence from two juftices of the peace, as by the faid aft is directed, is liable to any punifhment for any fuch offence, of which he may be guilty after 32 Stleljoufeaf* ©■Tenders, after after fuch third conviction •, be it further enacted by the authority aforefaid,. third con- t fat every perfon fo felling without a licence as aforefaid, after fuch third V a '? n ,' j° for " conviction, fhall, for every fuch offence, fo often as it fhall happen, forfeit every offence. tne ^ um of fix pounds, to be levied and difpofed of in like manner as the forfeitures on the firft, fecond and third conviction are directed to be, in and by the faid act •, and in cafe no fufficient diftrefs fhall be found whereon to levy the faid feveral forfeitures, then the juftice of the peace, who fhall have convicted fuch offender, fhall and may commit him or her fo con- victed to the common gaol, or other prifon or houfe of correction within his jurifdiction, without bail or mainprize, until fuch offender fhall be difcharged by order of the court of general or quarter feffions. z-) Geo. 2. ©tat. 29 Geo. 2. c. 13. [A. D. 1756.] Made, among other purpofes, c - '3- " for granting to his majefty a duty upon licences for retailing beer, ale, and other excifeable liquors." On death or SetJ. 23. "Provided neverthelefs, and be it enacted by the authority removal of aforefaid, that if any perfon licenfed to fell ale, beer, or other excifeable pyinelicenfed hq uors > fhall die, or remove from the alehoufe or other place wherein fuch houfes, their ale, beer, or other liquors fhall, by virtue of fuch licence, be fold, it fhall afligns, &c. and may be lawful for the executors, adminiftrators and affigns of fuch may continue p er f on f dying or removing, who fhall be poffeiTed of fuch houfe or place, the refidue of or t ' ie occu pi er thereof, to fell ale, beer, or other liquors therein, during the year. the refidue of the term for which fuch licence fhall have been granted to the perfon fo dying or removing, without any certificate from any juftice of the peace, or any new licence to be had or obtained in that behalf ; any thing in the act made in the 26th year of the reign of his prefent majefty, or any other law to the contrary thereof in any wife nowithftanding." Se£l. 24. " Provided always, and be it enacted, that in cafe any ale- houfe or victualling-houfe, in that part of Great Britain called England, fhall become empty or unoccupied after the general day appointed for licenfing (the occupier whereof was duly licenfed the year preceding) it fhall be lawful for any two of his majefty's juftices of the peace, at a petty feffions, to grant a licence to any new tenant or occupier, to open fuch houfe as an alehoufe or victualling-houfe, and to fell ale there, till the next general licenfing day, fo as the faid licence be ftamped as herein directed : fuch new tenant or occupier obtaining fuch certificate, as is directed and prefcribed in and by an act of parliament, made in the 26th year of his majefty's reign, intituled, An ail for regulating the manner of licenfing alehcufes, in that part of Great Britain called England ; and for the more eafy convitling perfons felling ale and other liquors without licence. Stat. 5 Geo. @tHt« 5 Geo. 3. c. 46. [A. D. 1765.] made, among other purpofes, 3. c. 46. « for further fecuring and improving the ftamp duties in Great Britain." Claufe in aft &#. 20. " And whereas by an act of parliament made in the twenty- 29 Geo. 2. ninth year of the reign of his late majefty king George the fecond, intituled, An ail for granting to his majefly a duty upon licences for retailing beer, ale y and 3Utf)0ttfe& 33 and other excifeable liquors ; and for ejlabl'.fking a method for granting fuch licences in Scotland ; and for allowing fuch licences to be granted at a petty fejfwns in England, in a certain cafe therein mentioned; it is, amongft other things, enacted, that from and after the feait of Eafler one thoufand fe- ven hundred and fifty-fix, there fhould be, throughout the kingdom of Great Britain, raifed, levied, collected, and paid, to his faid then majefty, his heirs, and fucceffors, for the purpofes therein mentioned, a duty of twenty millings for every piece of vellum, or parchment, or fheet or piece of paper, on which fhould be engroffed, written, or printed, any licence for felling ale or beer, or other excifeable liquors, by retail, over and above all other duties chargeable thereon : and whereas feveral provifions are therein and thereby made, for the duly raifing, levying, collecting and paying, the fame duty : and whereas it is found, by experience, that the faid provifions are not fufficient for that purpofe, in that part of Great Britain called England, the dominion oil-Vales, and town of Berwick upon 'Tweed -, and that, by divers frauds and other ill practices, the crown has been, from time to time, defrauded of a great part of the faid duty, and it is rendered difficult to convict the offenders : for remedy whereof, and for the further and better fecuring the raifing, levying, collecting, and paying, of the faid duty for the future, and for preventing fuch frauds and ill practices, and for rendering the conviction of the offenders more eafy in that part of Great Britain called England, the dominion of Wales* and town of Berwick upon Tweed, Be it enacted by the authority aforefaid, Retailers of that from and after the faid fifth day of July one thoufand feven hundred beer, and and fixty five, every victualler, or alehoufe keeper, and every perfon fell- other exafe- ing ale, or beer, or other excifeable liquors, by retail ; and every perfon * e J!"?"' ° . . r rr ■ i i i •<- i i i- t0 exhibit, on permitting or iurrering any ale, or beer, or any other excileable liquors, demand, their to be fold by retail, in his, her, or their houfe, outhoufe, or yard, garden, licence to the orchard, or other place, in that part of Great Britain called England, the officer a P- dominion of Wales, and town of Berwick upon Tweed, do and fhalk on P ointed b y the demand to him or her made by any officer appointed by the commiffioners foHbmpsT for the time being to manage the duties charged on ftamped vellum, parchment, and paper, produce and fhew to fuch officer or officers, fo demanding the fame, his or her licence to fell ale, or beer, or other ex- cifeable liquors, by retail; and fhall permit fuch officer, at his own ex- anc j t0 permit pence, to take and have a copy thereof on demand : and in cafe any fuch him to take a victualler, or alehoufe keeper, or other perfon felling ale, or beer, or c °py thereof; other excifeable liquors by retail, or other perfon or perfons fo permit- ting or fuffering any ale, beer, or other excifeable liquors, to be fold by retail in his, her, or their houfe, or outhoufe, yard, garden, orch- ard, or other place as aforefaid, fhall refufe or neglect fo to do ; thea every fuch victualler, or alehoufe keeper, or perfon felling ale, or beer, or other excifeable liquors, by retail; or fo permitting or fuffering any ale, beer, or other excifeable liquors, to be fold by retail in his, her, or their houfe, or outhoufe, yard, garden, orchard, or other place as on forfeitiwe aforefaid, fhall, for every fuch offence, forfeit the fum of forty (hillings. *of 4 os. Setl. 2 j. ** And be it further enacted by the authority aforefaid, that Clerks of the for the better detecting of fuch frauds and ill practices, and preventino-P eace .. town Vol. I. N° I. F th? derks and 34. StlefiOttfeS, common the fame for the future, every clerk of the peace of or for each county, clerks, or riding, or divifion, in each county in that part of Great Britain called their depu- £«j7 anc ^ perfect account of the names and places of abode of all the perfons the fame ought to contain ; the offender t hat then and in every fuch cafe, every perfon fo offending fhall, for every forfeits 5 1. f uc ^ ff ence - 5 forfeit the fum of five pounds. SetJ. 22. " And whereas by the laws now in force in that part of Great Britain called England, dominion of Wales, and town of Berwick upon Tweed, perfons felling ale or beer, or other excifeable liquors, by re- tail, without licence, are liable and fubject by different laws to different penalties and punifhments, which has occafioned much confufion, and an ill and improper ufe has been made thereof in many inftances : for the Infttad of the prevention whereof, be it further enacted by the authority aforefaid, that pecuniary and from and after the fifth day of July one thoufand feven hundred and fixty corporal pa- ^ v ^ ever y perfon lawfully convicted of felling ale or beer* or other ex- fliftedby for- cifeable liquors, by retail, after that day, in that part of Great Britain mer ads, on called England, the dominion of Wales, or the town of Berwick upon Tweedy retailers of without being duly licenfed fo to do, fhall for every fuch offence, forfeit beer, &c. not anc i un d er g t he feveral penalties and punifhments herein after mentioned hcenld" V anc ' P rov 'ded ir > that behalf, inftead and in lieu of the feveral pecuniary they are' to an£ l corporal punifhments which they are now liable orfubject to by any forfeir, f or the law now in force ; that is to fay, for the firft offence the fum of forty Sinl offence, fhillingS, fhillings; and alfo the cods and expences of convicting fuch offender ; and 40 s. and cods in cafe fuch fum, together with the charges and expences of convicting of conviction; fuch offender, fhall not be paid within the fpace of fourteen days next after and ' on non " fuch conviction, that then the offender fhall fuffer imprifonment for the ^bTcom-' 5 fpace of one month, unlefs he or fhe fhall fooner pay fuch penalty, and mitted for one the cofts, charges, and expences of fuch conviction, and executing the mont h; for fame : and for the fecond offence, the fum of four pounds, and alfo the lh £ iecon <* cofts and expences of convicting fuch offender-, and in cafe fuch fum, to- and co ^. gether with the charges and expences of convicting fuch offender the fe- and, on n'on- cond time, fhall not be paid within the fpace of one week next after fuch payment, to fecond conviction, that then the offender fhall fuffer imprifonment for the ^ e committed fpace of two months, unlefs he or fhe fhall fooner pay fuch penalty of four^^ . pounds, and the cofts, charges and expences of fuch fecond conviction, and executing the fame: and for the third offence, the fum of fix pounds, for the third and alfo the cofts and expences of convi&ing fuch offender ; and in cafe offen ce 6 I. fuch fum of fix pounds, together with the charges and expences of con- an j c ' victing fuch offender the third time, fhall not be paid within the fpace of payment to' three days next after fuch third conviction, that then the offender fhall fuffer be committed imprifonment for the fpace of three months, unlefs he or fhe fhall fooner for 3 months; pay fuch penalty of fix pounds, and the cofts, charges, and expences f and | hellke fuch third conviction and executing the fame : and the like penalty and puntihment a punifhment for every other offence after the third offence and conviction the third, for thereof, as for the faid third offence ; all which faid cofts and expences every fubfe- fhall be afreffed, fettled, and afcertained by thejuftice or juftices of the ^ uent offence - peace before whom fuch offenders fhall refpectively be convicted ; any , >f c f ° ^ a , re in. n 1 ir-T -in/ ces °f the peace-, or, appearing, fhall refufe to be examined on +os ,' oath, and give evidence before fuch juftice or juftices of the peace before whom the profecution fhall be depending •, that then, every fuch perfon fhall forfeit, for every fuch offence, the fum of twenty fhillings, to be le- vied and paid in fuch manner, and by fuch means, as are herein before directed as to other penalties. Perfons ag- Sell. 25. " And be it further enacted, that if any perfon or perfons E r,e Y e ^ b y fhall think himfelf, herfelf, or themfelves, aggrieved by the judgment or orVonviftion conv > ct i° n of any juftice or juftices of the peace, for any of the offences of a juftice, aforefaid, and fhall give fecurity to the fatisfaction of fuch juftice or juftices and giving of the peace for the payment of the penalty, cofts, and expences, to be fecurity, expreffed in the warrant or warrants of diftrefs on fuch conviction •, that then, and in every fuch cafe, after fuch fecurity given, and not otherwife, may appeal to it fhall and may be lawful to and for fuch offender and offenders to ap- the quarter p ea i f rorn and againft fuch conviction or convictions, to the juftices of the ons, peace affembled at the next quarter feflions of the peace to be held for fuch county, riding, divifion, liberty, city, town, or place, unlefs fuch feffions of the peace fhall be held within fix days or lefs next after fuch conviction or convictions fhall be fo had or made ; and in that cafe to the who are to juftices of the peace to be affembled at the next feffions after fuch feffions, h tnat tne ^ d George Harris be, and he is hereby fuppreffed from 2 Lord Raym keeping an alehoufe, &x. after fix weeks time from the firft day of the 1303. Mich, prelent feflions, &c." And this order being removed into the King's &. Ann. bench by certiorari, Mr. Raymond moved to quafh it, becaufe by the 5 £? Kegma v. g Edw. 6. c. 25. [See page 12.] there mult be a previous conviction, and that by the oath of two men, before the juftices can hinder his felling of ale, &c. for by the ftatute, every man who has a licence to fell ale, is to be bound in recognizance with furety, to keep good orders, &c. and that is to be certified at the next quarter feflions, and they are to enquire whether any fuch perfons bound in fuch recognizances, have done any act, whereby they have forfeited the fame ; and if they have, to award procels to (hew why they fhould not forfeit it. But per curiam this order was confirmed, Holt chief juftice being abfent -, and by Powell juftice, The juftices in feflions have a power by this act to fupprefs alehoufes, and need iLkeawaTa not P rocee d by information or conviction, but they have thereby a difcre- licence with- ttonary power given them to fupprefs them without fhewing any caufe or out conviaion mifdemeanour : And where the act fpeaks of a conviction, that is only upon the re- intended when the juftices proceed for the penalty, which ought to be by cognifance. y^ f gHas Mandamus lies Mr Reeve moved for a Mandamus to the juftices of the city of IVorcefter, not to grant a to grant a licence to Giles, to keep an alhoufe ; infilling that it being lnX°iili eePwithin a CICy ' the 2Geo - 2. f. 28. [Seepage 25.I did not extend to it. Stran 881° Strange contra infilled, that it was difcretionary in the juftices, and cited Mich. 4 Geo Salk. 45. that no appeal lies from the denial of a licence ; and if the owner 2. John Giles's be committed, [upon the flat. 5 & 6 Edw. 6.] the want of a licence can ,afe - only come in queftion, and not the reafon why it was denied. And per curiam, there never was an inftance of fuch a Mandamus ; and therefore we will not grant it. A motion was made on «oth of May 1757, for an information againft Information thefe two juftices of the peace, for arbitrarily, obftinately, and unreafonably was - d g" te ( v refufing to grant a licence to one Henry Day, to keep an inn at the Rofe ©f peace,' for anc * Crown in Everjly, Wilts, where it was alleged and fworn to be fit refjfmg to and proper, and even neceffary that there fhould be an additional on e, grant a licence there being one there already-, and for which occupation of keeping an u»der zb Geo. j nri) ^hs man was r as thefe two juftices themfelves had allowed on a former ^IcljDUfCS!. 41 former occafion) a proper perfon, they having before llcenfed him to do fo 2. c. 31. be- at another place. Upon this original motion being made at the bar, Lord caufe the juf- Mansfield and Mr. juftice Denifon held, that notwithstanding this was a mat- l l cei '' of the ter left in a great meafure to the difcretion of thejuftices, yet if it appeared the'foie riV* to the court, from fufficient circumftances laid before them, that their con- cretion, with- du£b was influenced by partial, corrupt, or arbitrary views, inftead of exer- out appeal, cifing a fair and candid difcretion, the court might call upon them to fhew. and tne y a fted the reafons whereby they guided their difcretion. And therefore they were ^ P unt .vcf c ■ i 1 n r 11 m m ' #r- ■'»!,»' 7 " - w intention ; but tor granting the rule to lhew caule as prayed ; but Mr. juftice Fojter, who if they exercife happened to know the place, and faid there was another houfe of good en- this abfblute tertainment there already, thought it fufficient to make a rule upon the two dl(creti °n juftices, to lhew caufe why they fhould not grant this licence. And Lord wllh P art,aI ' t y. Mansfield and Mr. juftice Denifon concurred with him to exprefs the rule in ruption°an° r that manner, though the fubftance was the fame : becaufe if they did not informa'cion fhew fufficient caufe, the confequence muft be granting an information. Per fta W be grant- cur. unanimoufly (Mr. juftice Wilmot being abfent in Chancery) a rule was ed- ' Bur - Re P- made upon thefe two juftices to fhew caufe why they did notgrantthis licence |* ft ' s *' Gi to Henry Day. On Monday 27 th of June 1757, upon fhewing caufe, the 2 Rex v. juftices in their affidavits made no perfonal objections to Day, but thought Young and the certificate infufficient, becaufe not figned by the parfon, vicar, or curate. Pitts » ef 9,' J "' e «' The court was of opinion, that the certificate, being figned by three or four reputable and fubftantial houfekeepers, csV. was fufficient. [See p. 27. f. 2.] But though thejuftices had miftaken the act, the court cleared them from any wrong motive. But it being fuggefted, that the prefent parfon and church- wardens were ready to fign a certificate in his favour, the court enlarged the rule to the firft day of next term, with a view that he might be licenfed at Mchaelmas, if there fhould be no other objection than what arofe from the certificate's not being figned by the parfon and church- wardens ; and that the matter (which feemed to have raifed great heats, and was ftrongly fupported by Sir John Ajlley, on the part of Day) might be accommodated. The rule was accordingly enlarged in thefe terms, viz. that the firft day of the next term be farther given them, to fhew caufe why they have not granted, &c. On Friday 18th of November 1757, Mr. Norton again moved (and moved it as a new original motion) for an information againft thefe two juftices of peace •, who, he faid, had at their laft general September meeting for granting licences, ftill perfifted in refufing to grant this licence, not- withftanding what had already pafTed in this court upon the fame fubject and occafion. Of this fact he had affidavits ; and he alfo produced frefh and circumftantial affidavits, as to the mertits, viz. the neceffity of fuch a licence, and the conduct of the juftices in their oppofition to it. Lord Mansfield: What pafTed before was, that the court did not think any thing criminally imputable to thefe juftices. The court then gave no opinion as to obliging them to grant the licence-, but on the contrary, exprefly adjourned the confideration of the reafons of their refufal. This former rule was only kept on foot, in order to obtain the material end of it •, but as to the behaviour of thejuftices, with regard to the criminal complaint againft Vol. L N° II. G them 42 SUeljoufeS* them, the court difcharged them from any imputation of crime or arbi- trary intention to oppreis the man. —The court therefore now made the like rule, upon thefe frefh affidavits, as they had made upon the former, and ordered that both rules fliould come on together. Sir Richard Loyd, on Saturday i ith of February 1 758, accordingly fhewed caufe upon both rules. He obferved that it was a fort of rule never before granted ; and which he had known refufed 25 years ago. He faid he never knew a rule made upon juftices, to fliew caufe, why they did not grant a licence, or to enforce them to do fo, unlefs there was fome charge of corruption, partiality, bias, or other imputation upon the juftices. Lord Mansfield anfwered, that the affidavits upon which the original motion was made did import fuch a charge •, and the motion was originally made upon that foot. And that the rule was put into its prefent form, out of tendernefs to thefe gentlemen, and regard to the fairnefs of their cha- racter. And they did indeed, upon the former caufe fhewn, appear to be free from blame, as to any criminal imputation. But yet, if they have no reafonable objection to the man, they ought to licenfe him, and if they have any reafon, they ought to give it. For though they have, it is true, a difcretion in thefe cafes, yet it muft not be permitted to them to exercife an arbitrary and uncontrolled power over the rights of other people, and in cafes where their livelihoods are fo eflentially concerned. Sir Richard Lloyd argued and infilled, that the legiflature has made them the fole judges, as being fuch who, from their refidence on the fpot, muft befi know the perfons and their characters, and alfo the circumftances of time and place. And the legiflature has even excluded juftices of peace of other divifions. And the juftices thus intruded have a right to judge for themfelves, and no man can judge for another. And this power is trufted to them by the conftitution, by the legiflature. It may be very dangerous to them, to be obliged to give their reafons publickly y though they may have very fufficient ones to fatisfy their own minds, and to direct their own judgment. And if they are thus intrufted, why are they liable to be called to an account by any other jurifdiction, unlefs, they act faultily and wilfully wrong ? Indeed, if they do wilfully wrong, let them be punifhed •, but when they act quite confcientioufly, they are not accountable to any body. Now thefe gentlemen fay, and they fwear too, that they really judge this houfe to be an improper houfe, and this perfon to be an improper perfon •, and that this is their real and fincere opinion. This queftion affects all the juftices in the kingdom ; I mean, fetting afide the imputation of wilful mifbehaviour. Lord Mansfield: Moft certainly. No body doubts of the thing, fetting afide every degree of imputation : It will not bear an argument. Sir Richard repeated the juftices reafons for their refufal ; and concluded with infifting on their right to judge for themfelves. Mr Young being in court fpoke very handfomely in exculpation of him- felf from any ill intention ; and declared very folemnly, that he had adted according to his real fentiments, and the beft of his judgment. Lord Lord Mansfield — It is a matter of too much confequence, and too great length, as I am obliged to go away, to be determined now immedi- ately : and it may as well ftand over till next term, as fo little time of this term is left. Adjourned. On I'burfday 13th of April 17 5%, this cafe being mentioned again, Lord Mansfield propofed altering the rule, by making it, to fhew caufe why there mould not be an information againft them •, for fo, he faid, it was originally moved, and this was the true and proper foot to argue it upon ; and Mr. Norton declared that he propofed to argue it upon that foot; though in tendernefs to the juilices, and left the country fhould run away with a notion of their being under a criminal charge, it had been put into the form that it at prefent Hands in. And Mr. Nares, counfel for the two juftices, not oppofing or objecting to this alteration, the rule was altered accordingly. And now this affair coming on again for the laft time, Lord Mansfield again declared, that the argument ought to be taken up upon the foot of criminality in the juftices, for it was fo originally moved •, it was the proper nature of the queftion; it was fo underftood by every body, and fo meant by the court. For, as he again explicitly declared, there was no pretence upon any other foot, to make a rule upon the juftices, who have a dilcretionary jurifdi&ion given them by the law. But though difcretion does mean, and can mean nothing elfe but exercifing the beft of their judgment upon the occafion that calls for it; yet if this difcretion be wilfully abufed, it is criminal, and ought to be under the control of this court. Mr. Nares and Mr. I'hurlow for the defendants thereupon argued ftrongly and very largely, that the juftices had been fo far from acting criminally, that they had acted rightly, properly and honeftly : And they hinted that the court had already exculpated them from any criminality of behaviour. And the Legiflature have left this jurifdiction fo abfolutely to the juftices of the particular divifion, that no appeal will lie from their determination, as appears by 1 Salk. 45 ; which is exprefsly fo, and is cited in 2 Stran. 881, as a proof of this pofition. Neither will any Mandamus lie to the juftices, to oblige them to grant the licence, even though they fhould appear to have refufed it upon reafons which may be looked upon as very fufpicious at leaft, if not very improper. 2 Stran. 881. Nor will the court grant an information, for refufing to grant a licence. Rex v. juftices of Nottingham, where, they faid, an information was denied. But per Cur. that cafe was an abufe, a grofs abufe of their difcretion. And the information was therefore granted, And fo it was in the cafe of Bridgewater, upon the fame foot of abufe of the difcretion intrufted to them. The counfel for the two juftices next pbferved, that Day's having for many years had a licence to keep a public houfe in another parifh, was quite an immaterial circumftance ; for by 26 Gee. 2. c. 31. feci. 3. Such licence was abfolutely null and void, with regard to all other places. [Seepage 27.] The affidavits on both fie'es being then all diftinctly read, it appeared upon the whole matter, that thefe two juftices had acted in this affair, with fairnefs, impartiality, candor, and G 2 juftice 44 2Ucljottfe£ juftice ; that they really and fincerely thought both the man and the houfe improper to be licenfed •, and they had very good and fufficient reafons for fo thinking and determining. Whereupon their counfel concluded with praying that the rules made upon them might be difcharged with full cofts. The main tendency of the arguments of the counfel in fupport of thefe rules was, to fhew that the refufal to grant this licence to Day, arofe from partiality to Mr. Barker the lord of the manor, who was the proprietor (the landlord) of the other publick houfe already eftab- lifhed in the parifh. Lord Mansfield once more declared, that this court had no power or claim, to review the reafons of juftices of peace, upon which they form their judgments in granting licences, by way of appeal from their judg- ments, or over-ruling the difcretion intruded to them. But if it clearly appears, that the juftices have been partially, malicioujly, or corruptly in- fluenced in the exercife of this difcretion, and have confequently abufed the truft repofed in them, they are liable to profecution by indictment or information, or even poflibly by action, if the malice be very grofs and injurious. If their judgment is wrong, yet their heart and intention pure, God forbid that they fhould be punifhed. And he declared that he fhould always lean towards favouring them, unlefs partiality, corruption, or malice fhall clearly appear. The prefent queftion therefore only is, whether thefe gentlemen have been guilty of any partiality or malice^ (for corruption is not pretended) in the refufal of this licence. Then he went minutely and accurately through all the particulars both of the charge and of the defence. And he thought that upon the firft and ori- ginal motion, the juftices appeared to have been miftaken in the grounds of their refufal, in that they fixed it upon the want of the minifter's and churchwardens figning; which they judged to be requifite by the 26 Geo. 2. c. 3 1 . when it was not. However, in this, they were not criminal, though they were miftaken. And at that time, they had no perfonal objection to Day. And therefore it was, from all that then appeared, reasonable to expect that, upon enlarging the rule, they would at their next meeting grant the licence ; which they had before refufed, upon a miftake, of which they were fubfequently informed. But fince this, and antecedent to fuch next meeting, there are come out feveral ftrong perfonal objecti- ons to Day himfelf, which thefe juftices were the proper judges of; namely, his keeping and having long kept a houfe for publickly retailing ale, wine and fpirituous liquors, without being licenfed thereto ; his hav- ing been twice convicted of felling fpirituous liquors, without a licence ; his fuftering a day-labourer to drink a whole day in his houfe, in harveft- time, and afterwards vindicating it ; his having been charged with a fraud upon oath •, befides an allegation in one of the affidavits, that two noto- rious highwaymen and robbers appeared at leaft to have ufed his houfe as a public houfe, if they enjoyed no other and more particular kind of har- bour and protection in it. And in refpect to the houfe, the juftices now fwear that they are clearly of opinion, that one is fufficient. And they likewife clear themfelves, by the moft folemn affertions in their affidavits, of 2UeJ)0Ufe& 45 of all criminal imputation. Therefore he concluded with declaring it as his opinion, that there was no fufficient foundation for a criminal charge againft thefe juftices. Mr. juftice Denifcn concurred. He alfo exprefiy allowed the difcretionary power of the juftices in granting licences, with- out appeal from their judgments, or having their juft and honeft reafons reviewed by any body. But yet an improper and unjuft exercife of their difcretion, he faid, ought to be under controul. But it muft be a clear and apparent partiality, or wilful mifbehaviour, to induce the court to grant an information ; not a mere error in judgment. And here is cer- tainly no clear and apparent partiality, or wilful mifbehaviour, in thefe juftices. Therefore the rules ought to be diicharged. Mr. juftice Fojler concurred in the general principle, before laid down ; and he thought there was no evidence of partiality, malice or corruption, in the prefent cafe. He declared againft increafing the number of pub- lic houfes, and gave feveral ftrong reafons againft it ; and therefore he thought the juftices far from being to blame, in having come to a relb- lution not to increafe them. And he was fatisfied that the juftices had rea- fon fufficient to refufe this particular licence ; both with regard to the houil-, and alfo with regard to the man refufed. — Mr. juftice Wilmot concurred. He was very explicit, that the fole difcretion of granting licences is in the juf- tices of the divifion •, and he moreover gave various reafons why it fhould be fo. And this point, he obferved, was admitted at the bar. Then the fole dif- cretion being in them, the rule is invariable, that this court will never inter- pofe to punifh a juftice of peace for a mere error in judgment. Therefore, even fuppofing them to have been miftaken from beginning to the end, yet there is no ground from any of the affidavits, to infer any partiality ; malice, or corruption : There is not the leaft/fl^?, whereupon fufficiently to found any fuch apprehenfion and belief even in the complainants : And the juftices themfelves do moft folemnly deny it in their affidavits. Per cur. Both rules difcharged with cofts. — Lord Mansfield — There are two diftinct reafons why we fhould give cofts •, one with regard to the perfon complaining ; the other, with regard to the perfons complained of. For it appears, upon the affidavits, that Day the perfon complaining has perfevered in keeping this houfe without a licence ; and it now appears that the juftices who are complained of, have acled both honeftly and legally in refufing to grant it, in a place where there was already a fufficiency. On fhewing caufe why a rule fhould not be made abfolute, for an in- Information formation againft a juftice of peace for a mifdemeanour in refufing to againft a jut grant a licence to one Francis Simes, (who had been licenfed for feveral pre- tice of P eace ' ceding years) to fell ale, as ufual ; and afterwards convidling him, with- oM)?s ^efufin^ out any previous fummons, for having fold it without a licence; it ap- to grant a li- peared that the pretended grounds, upon which this rule had been applied cer.cetofell for and obtained, were either falfe or fallacious. The firft was, that the a,e - unleftthe- only reafon why the licence was refufed him, was his declining to pay a ?*? wou ! m lum ot money (5 /.) which was claimed of him upon a diftinft and colla- a collateral teral account, and which he denied to be due from him: the payment of and difputed which fum of money was, as he alleged,, infilled upon by the juftice, as a debt - and then *•.■*■• ... conviftire condmon bjmof 4 3g 4 6 ale unlicen- fed, without any previous iummon?, was denied upon the merits ; but the juili- tes have no authority to annex fiich conditions ; and the com- plainant ought to al- lege his own innocence, to intitle him to make this ap- plication againft the juftice. 2 Bur. Rep. 653. Mich. 32 Geo. 2. B. R. Rex v. Athay, efq. condition precedent to his granting the man a licence. The fecond pre- tended ground of the motion was, that the juftice had convidted him of the offence, without any previous fummons. As to the firft, the court were unanimous that the allegation appeared to be falfe in fact ; but at the fame time they declared explicitly, that juftices of peace have no fort of authority to annex any fuch condition to the grant of their licences. As to the fecond, they efteemed it to be fallacious, as the fad came out upon fhewing caufe ; for the man was actually prefent before the juftice (who had fent for him ;) and was fo far from offering to make any defence, that he rather feemed to apply for mercy ; declaring, however, that if the juf- tice did convict him, he would not pay the penalty. Thirdly, the court obferved that the man had not any where alleged, that he was innocent of the offence, which they thought it incumbent upon him to have done, to intitle himfelf to make this application againft the juftice of peace. Rule difcharged. For other matters, fee 'B^Unerfi, COOperg, Cltffe, $CZ0, 3illlt0 mm Jnufceepecs, ^eatos, pate, ©olDtei's, ©tamps, GOine. annuities* 4 Will. & M, c. 3. AN annuity is a yearly payment of a certain fum of money granted to another in fee-fimple, fee-tail, for life or years, charging the per- fon of the grantor only, if payable out of lands, it is properly called a rent-charge ; but if both the perfon and eftate be made liable, as they moft commonly are, then it is generally called an annuity. Co. Lit. 144. b. Finch 161. 1 Rol. Abr. 226. Doff. & Stud. Dial. 2. c. 30. , ©tdt 4 W$> & Mar. [A. D. 1692.] c. 3. fetJ. 8. " In order to raife the fum of one million towards carrying on the war againft France, any perfons may contribute towards advancing the faid fum at any time before 1 May 1693 ; for which the contributors are to have 10 per cent, till 24 June 1 700, and then 7 per cent, during the lives of the perfons named by fuch contributors •, and upon the death of every nominee, the fhare pay- able during his life, fhall be divided among the contributors whofe no- minees fhall be living-, and fo from time to time the whole funds (hall be divided among the contributors whofe nominees furvive, till there be but feven nominees living j and then upon the death of each of the faid feven nominees, a ieventh part of the faid yearly funds fhall be anfwered to their majefties, their heirs and fuccefTors." And by feci. 22. of this act, if the whole fufn of one million be not advanced before the faid ift of May, any perfons after that day, and before the 29th of September following, may advance any funis not exceeding in the whole, with what fhall have been 2 advanced 3mmftfe& 47 advanced before the faid ift of May, the fum of one million upon the terms f '11 ;wing, viz. that every fuch perfon mall have for every 100/ a yearh iuity of 14/, for his own or any other life to be by him nomi- nated, p.yable half-y:-arly. And by feci. 12. !' Contributors, upon demanding their half-yearly payments^ unlefs the nominee appear in perfon, (hall produce a certificate of 'his life, figned by the minifter and churchwardens of the parifh where he lives, on the day when the faid half-yearly payment becomes due, if fuch nominee be within the realm ; which certificate mail be made with- ouf fee, and filed in the office of receipt." ©tat. 5 Will, fcf Mar. c. 5. [A. D. 1693.] feci. 1, 2. " To fupply the 5 Will.&M. deficiency of the money intended to be railed by the preceding aft, any c. 5. perfons may contribute towards advancing the fum of 1 18,506/. $s. lod. to make up the fum of one million intended to be advanced by the laid act, upon the terms following, viz. Every perfon fhall have for every 100/. by them advanced, an annuity of 14/. during the life of fuch perfon, or during any other life, to be nominated by him within fix days after pay- ment ; which annuities fhall be paid at the four ufual feafts. Seel. 4. " And to make the payment of the annuities more eafy to the Certificate of feveral contributors upon this and the faid act of 4 Will. £s? Mar. c. 3. nominee's life, both upon the terms of furvivorfhip, and the annuity of 14/. per centum; Be it enacted, that every contributor upon this or the former act, his, or her executors, adminiftrators, or affigns, upon their demanding any half- yearly or quarterly payment of his, her, or their refpective fhares of either of the faid funds (unlefs the nominee appears in perfon at the faid re- ceipt) fhall produce a certificate of the life of his, her, or their refpective nominee, figned by the minifter and churchwardens of the parifh where fuch nominee fhall be then living, as by the faid act is appointed ; or otherwife it fhall and may be lawful to and for every contributor, his or her executors, adminiftrators or affigns, at his, her, or their election, to make oath of the truth of his, her, or their refpective no- minee's life, upon the day when the faid payments fhall become due, before any one or more juftices of the peace of the refpective county, riding, city, town, or place wherein fuch perfon at the time of making the faid oath fhall refide (which oath he or they are impowered to admi- nifter)-, and the faidjuftice or juftices fhall make a certificate thereof, for which oath and certificate no fee or reward fhall be required •, and the faid certificate fhall be filed in the faid office of receipt of the Exchequer. And Penalty on if any perfon fhall be guilty of a falfe oath, or forging any certificate, perjury, and touching the premifTes, and be thereof lawfully convicted, he fhall incur for g'pg of the pains and penalties to be inflicted upon perfons who commit wilful certl,iCate - perjury or forgery." ©tat. 2 £s? 3 Ann. [A.D. 1703.3 c. 3. feci. 9. " Forraifing 1,018,867/. Stat. 2 k 3 18 j. 6d. for carrying on the war, and other her majefty's occafions, any Ann. c. 5. perfons may pay money into the Exchequer for purchaiing annuities for 99 years, from the 25th of March 1704, at the rate of 150/. for jo/, per an." And 4-8 Stttmit'tieg. And by feci. 10. of faid act, " Any perfons, for raifing a farther fum of 300,000/. for carrying on the war, and other her majefty's occalions, may pay money into the Exchequer for purchaling any annuity for one life, at the rate of 9 years purchafe •, for two lives at eleven years ; and three lives at twelve years purchafe; or for the term of 99 years at 15 years purchafe. Contributors Seel. 23. " And to the intent and purpofe, that all deceits in receiving to produce a any payment upon any of the faid annuities to be purchafed for life or certificate of j| ves as a f refaid, may be prevented •, Be it enacted by the authority afore- minees °&c° ^ a ^' tnat evei 7 contributor for any of the faid annuities for life or lives, figned by the his or her executors, adminiftrators or affigns, upon his or her demanding minifter and of any quarterly payment, upon fuch his or her annuity (unlefs the no- churchwar- m inee appear in perfon at the faid receipt) fhall produce a certificate of feT other"' l ^ e *'^ e °*" ms or ^ er refpective nominee, figned by the minifter and wife' to make churchwardens of the parifh where fuch nominee fhall be then living, upon. oath of nomi- the day when the faid quarterly payment fhall become due (if fuch nomi- nee's life. n ee fhall be then refiding in the kingdom of England, dominion of Wales, or town of Berwick upon Tweedy which certificate the faid minifter and churchwardens are hereby required to make without fee or reward ■, or otherwife it fhall and may be lawful to and for every contributor, his or her executors, adminiftrators and affigns, at his, her or their election, to make oath of the truth of his, her or their refpective nominee's life, upon the day when the faid payment fhall become due, before any one or more juftices of the peace of the refpective county, riding, city, town, or place, wherein fuch perfon, at the time of making the faid oath, fhall refide ; Radices to which oath he or they are hereby impowered to adminifter: And the faid make a certi- juftice or juftices fhall make certificate thereof, for which oath and certi- ficate there- fi cate n0 f ee or reward fhall be received •, and the faid certificates fhall be Penalty on ^ e ^ m tne ^ ai< ^ office of the receipt of Exchequer: And if any perfon fhall perfon guilty be guilty of a falfe oath, or forging any certificate, touching the pre- ofafalfeoath, mifies, and be thereof lawfully convicted, he or fhe fhall incur the punifh- or forging me nt to be inflicted upon perfons who commit wilful and corrupt per- certihcate, &c. ■ „ r r * r 4 An. c. 6. ©fat. 4 Ann. c. 6. [J. D. 1705.] feci. 25. " For raifing 2,855,761 /. 16s. 2d. for carrying on the war, and other her majefty's prefent occa- fions, any perfons may contribute for purchafing annuities for 99 years from 25th March 1706, at the rate of 154- years purchafe, amounting to 155/. for 10/. per ann. payable at the four mod ufual feafts." Annuities af- Seel. 28. " And be it further enacted, that it fhall and may be lawful fignable, to anc } f or ar) y contributor or contributors, his, her, or their executors, adminiftratcrs or affigns, at any time or times, during the continuance of his, her, or their term, eftate or intereft of and in any annuity to be pur- chafed upon this act, by any writing under hand and feal, or by his or her laft will in writing, to affign or devife fuch annuity, or any part thereof, or any intereft therein, to any perfon or perfons whatfoever, and fo toties and entry to quoties, and no fuch affignment to be revocable, fo as an entry or memo- be made, &c. randum randum of fuch affignment or will be made, in books to be kept for that purpefj in the faid office of the auditor of the receipt, within the fpace of three months after fuch affignment or death of the devifor, and that upon producing fuch affignment or will, or probat thereof in the faid office of receipt, to be entred, as aforefaid, the party fo producing the fame, fhall bring therewith an affidavit taken before one or more of her majefty's juftices of the peace of the due execution of the faid affignment or will ; which affidavit (hall be feverally filed in the faid office, which faid entry Affidavits to or memorandum, the proper officers in the faid receipt of Exchequer, are be fi ,ed - hereby required to make accordingly, and to file the faid affidavits-, and In default of in default of fuch affignment or devife by deed or will, the intereft of fuch devife, inte- contributor fhall go to his or her executors or adminiftrators." rel1 10 g° t0 D executors,6cc. S>tnt. 5 Ann. c. 19. [//. D. 1706.] feci. 15. " Natives or foreigners s Ann. c. 19. may pay into the Exchequer fums not exceeding 1,155,000/. for puicha- fing annuities payable for 99 years, from the 25th of March 1707, at the rate of lixteen years purchafe, viz. 160 /. for every annuity of 10/. per aan. payable at the four moft ufual feaft-days." Seel. 19. " And be it further enacted by the authority aforefaid, that Contributors all and every contributor and contributors upon this act, duly paying the paying, &c t« consideration or purchafe money, at the rate aforefaid, at or before the en J°y ( ure refpective days or times in this act limited in that behalf, for any fuch ell ? r . es in an " • •• r r ■ 1 1-1 1 n t rt n , - ■ nuities pur- annuity, or annuities as aforefaid, or luch as he, lhe or they fhall appoint, cna fed. his, her or their refpective executors, adminiftrators, fucceffors and affigns, fhall have, receive and enjoy, and be entitled, by virtue of this act, to have, receive and enjoy the refpective annuity and annuities fo to be pur- chafed, out of the monies by this act appropriated or appointed for the payment thereof, during the faid whole term of ninety-nine years, as is above-mentioned •, and that all and every fuch purchafers, their executors, adminiftrators and affigns reflectively, fhall have good and fure eftates and interefts in the feveral annuities, fo by them to be purchafed accord- ing to the tenor and true meaning of this act, and that all the faid annui- ties to be purchafed upon this act, and every of them, during the term aforefaid, fhall be free from all taxes, charges and impofitions what- foever." @)tat. 6 Ann. c. 5. [A. D. i7oy.]fecl. 8. " Natives of foreigners may (, Ann. c. 5; pay into the Exchequer fums not exceeding 640,000/. for purchafing an- nuities payable for 99 years, from the 25th of March. 1708, at 16 years purchafe, viz. 160/. for every annuity of 10/. payable at the four moft ufual feaft-days." Seel. 15. " And be it further enacted, that it fhall and may be lawful Annuities af- to and for any contributor or contributors, his, her or their executors, fignable, &c. adminiftrators, fucceffors or affigns, at any time or times, during the con- tinuance of his, her or their term, eftate or intereft of, and in any an- nuity to be purchafed upon this act, by any writing under his, her or their hands and feals, or under the common feal of a corporation, or by his, Vol. I. N« III. H her 5 o SlttnuttteS. her or their laft w ; U in writing, to afiign, or devife fuch annuity, or any part thereof, or any intereft therein, to any perfon or perfons whatfoever, and fo toties qitoties, and no fuch afhgnment to be revokable, fo as an entry or memorandum of fuch afhgnment or will be made in books to be kept for that purpofe in the laid office of the auditor of the receipt, within the fpace of three months after fuch aflignment, or death of the devifor-, and that upon producing fuch aflignment, or will, or probat thereof in the laid office of receipt, to be entred, as aforefaid, the party fo producing the fame (hall bring therewith an affidavit taken before one or more of her majefty's juftices of the peace, of the due execution of the faid aflignment or will, which affidavit fhall be feverally filed in the faid office •, which faid entry or memorandum the proper officers of the faid receipt of Exchequer are hereby required to make accordingly, and to file the faid affidavits; and in default of fuch aflignment or devife by deed or will, the intereft of fuch contributor fhall go to his or her executors or adminiftrators." 30 Geo. 2. ©tilt* 30 Geo. 2. c. 19. {A. D. 1757.] feci. 3 r. " Contributors to the c. 19. fum of three millions mentioned in this a& are to have annuities of 3 per cent, -per am. transferrable at the bank, and redeemable by parliament ; and for every hundred pounds fubferibed an annuity for life of 1/. 2 s. 6d. payable at the Exchequer half-yearly, on ike 5th day of January and 5th day of July, and aflignable ; for paying of which life annuities 33,750/. is to be referved yearly out of the monies arifing by act." On demand- Seel. 62. " And for preventing all frauds in receiving any fhare of the ing the an- yearly fund hereby appointed to be fet apart, every contributor, his or unity, certifi- her executors, adminiftrators, afligns, or agents, upon demand of any cate from the h a if. vear i v payment of his or her respective (hares of the faid yearly fund mimlter and , \- i ' r J ■ ■ e i_ c ■ 1 ■ t \ n « j churchwar- (unlels the nominee appears in perion at the laid receipt) fhall produce a dens to be certificate of the life of his, her or their refpective nominee, iigned by produced of t he minifter and churchwardens of the parifh where fuch nominee fhall be the life of the t j ien ]j v j n g, upon the day when the faid half-yearly payments fhall be- refUenT'in come tlue (^ ^ ucn nominee be then refiding in that part of Great Britain England; or called England, dominion of Wales, or town of Berwick upon Tweed;) or the fame tobe otherwife, it fhall and may be lawful to and for every fuch contributor, or certified, on j^j or ner executors, adminiftrators or afligns, at his or her election, to ? a ^ jc ' e . e a ° n r j a make oath of the truth of his, her or their refpective nominee's life j n n ' ex . upon the day v/hen the faid half yearly payment fhall become due, before traparochial one or more iuftices of the peace of the refpective county, riding, city, town or place wherein fuch perfon,. at the time of making fuch oath fhall re fide -, and in like manner every fuch contributor, his or their executors > adminiftrators, afligns, or agents, whole nominee fhall refide in any town or place, being extraparochial, upon the day where any of the laid half- yearly payments fhall become due, fhall make a like oath before any fuch jultice or juflices aforefaid, of the life of fuch nominee on that dayCwhich oath the faid juftice or juflices of the peace are hereby impowered to ad- mimfter) minifter) and fuch juftice or juftices fhall make a certificate thereof ; for which oath and certificate no fee or reward fhall be demanded or paid. Sett. 68. " And for preventing all frauds and abufes in or about the ftand- p ena | ty of - ing orders for paying the laid annuities, or any alignments thereof, or thef ar gj n g or receiving the annuities due or to grow due thereon ; Be it enacted by the au- counterfeiting thority aforeiaid, that if any peribn or perfons whatfoever iliall forge or ^ rt,ficat «> counterfeit, or procure to be forged or counterfeited, or knowingly or ftaudule ". wilfully aft or alTift in the forging or counterfeiting any certificate or certifi- receiving an- cates to be given up by fuch calnier or cafhiers, or any order or orders to be nuitics. made forth in lieu thereof, in pursuance of this prefent act, or any affign- ment or afTignments of fuch order or orders, or of the annuities payable thereon, or of any receipt or difcharge to the Exchequer, for the annuities due or to grow due on any fuch order or orders, or of any letter of attor- ney, or other authority or inftrument, to transfer, affign, alien or convey any fuch order or orders, or to receive the annuities due or to grow due thereon, or any part thereof; or fhall forge or counterfeit, or procure to be forged or counterfeited, or knowingly or wilfully act or affift in the forging or counterfeiting any the name or names of any of the proprietors of any fuch order or orders, in or to any fuch pretended a/Tignment or afTignments, receipt, letter of attorney, certificate, inftrument or autho- rity ; or fhall falfely and deceitfully perfonate any true and real proprietor or proprietors of any of the faid orders, and thereby affign, or endeavour to affign, any of the faid orders, or receive or endeavour to receive the money of fuch true and lawful proprietor, as if fuch offender were the true and lawful owner thereof •, then, and in every fuch cafe, all and every fuch perfon and perfons being thereof lawfully convicted in due form of law, fhall be adjudged guilty of felony, and fhall fuffer death as in cafes of felony, without benefit of clergy." €!>ti1t, 9 Geo. i.e. 12. \_A. D. 1722.] feci. 1. " The proprietors of the 9 Geo. 1. ftanding orders made forth in purfuance of the acts 6 Geo. 1. c. 11. and c - 12 - 8 Geo. 1. c. 20. may, by affignment indorfed on their orders, affign or transfer their intereft. Seel. 4. " And for the preventing all frauds and abufes in or about the faid ftanding orders, or any afTignments thereof, or the receiving the an- nuities due or to grow thereon ; Be it enacted by the authority aforefaid, that if any perfon or perfons whatfoever, from and after the fecond day of April one thoufand feven hundred and twenty-three, fhall forge or coun- terfeit, or procure to be forged or counterfeited, or knowingly or wil- fully act and affift in the forging or counterfeiting any order or orders made forth, or to be made forth in purfuance of any the befure-menti- oned acts, or of this prefent act, or any affignment or afTignments of fuch order or orders, or of the annuities payable thereon, or of any receipt or difcharge to the Exchequer for the annuities due or to grow due on any fuch ftanding order or orders, or of any letter of attorney, or other au- thority^or inftrument, to transfer, affign, alien, or convey any fuch order or orders, or to receive the annuities due or to grow due thereon, or any H 2 part 52 Counterfeit- ing orders, felony. 4 Geo. z. c. 9. 9 Geo. 2. c. 34. part thereof, or fhall forge or counterfeit, or procure to be forged or counterfeited, or knowingly or wilfully aft or alTiit in the forging or counterfeiting any the name or names of any of the proprietors of any fuch order or orders in or to any fuch pretended alignment, receipt, letter of attorney, inftrument, or authority, or fhall knowingly and frau- dulently demand, or endeavour to have or receive any fuch annuity or annuities, or any part thereof, by virtue of any fuch forged or counter- feited receipt, letter of attorney, inftrument, or authority, or fhall falfly and deceitfully perfoliate any true and real proprietor or proprietors of any of the faid order or orders, and thereby affigning, or endeavouring to affign, any of the faid order or orders, or receiving, or endeavouring to receive the money of fuch true and lawful proprietor, as if fuch offen- der were the true and lawful owner thereof ; then and in every or any fuch cafe, all and every fuch perfon and perfons (being thereof lawfully con- victed in due form of law) fhall be adjudged guilty of felony, and fhall fufifer as in cafes of felony, without benefit of clergy." ©tflt. 4 Geo. 2. c. 9. fell, o. " If any perfon fhall counterfeit any order to receive the annuities mentioned in the faid act, or power to transfer the fame, or the name of the proprietor, or fhall perfonate fuch proprie- tor, he fhall be guilty of felony without benefit of clergy." But the faid annuities were dire fled to be redeemed by 25 Geo. 2. c. 25. feet. lg. €5>tflt. 9 Geo. 2. c. 34. fefl. 1. " Any perfons, natives or foreigners may pay into the Exchequer any fums not exceeding 600,000/. for the purchafe of annuities of 3/. per ann. for every 100/. redeemable by par- liament. And by feci. 8. of this act, forging or counterfeiting orders, &c. to receive thofe annuities, is made felony without benefit of clergy. But by flat. 25 Geo. 2. c. 27. thofe annuities are converted into a joint-flock of annuities transferrable at the Bank. appeal APPEAL, (Appellum, from the Fr. appel or appeller, to call, becaufe appellans vocat reum in judicium) has two fignifications ; one is, re- moving a caufe from an inferior to a fuperior court, as in the ftat. 24. Hen. 8. c. 12. and 1 El. c. 1. The other kind of appeal is an accufa- tion of another in legal form, for a crime by him committed. Co. Lit. 123. b. 287. b. It fignifies in our common law, as much as accufatio with the civilians •, for as in the civil law, cognizance of criminal caufes is taken either upon inqwfition and denunciation, or accufation ; fo in ours cognizance is taken of criminal caufes upon indictment or appeal ; indict- ment comprehending both inquifition and denunciation. An accufation, or appeal, is a lawful declaration of another man's crime (which by Braflon muft appeal. sz mud: be felony at the leaft) before a competent judge, by one that fetteth his name to the declaration, and undertakes to prove it, upon the penalty that may enfue thereon. Cowell, edit. 1727. There were anciently feveral kinds of appeals, which feem obfolete at this day •, as appeals of treafon, which might be iued before the parlia- ment and other courts of law, as well as before the conftable and mar- shal, and were determinable by battle. 2 Injl. 132. Brafi. 118. 2 Hawk. P.C. 161. But appeals before the parliament are taken away by 1 H. 4. c. 4. and thofe before other law courts are become obfolete. An appeal of death, which is now chiefly in ufe, is a vindictive action which the law gives a wife againft her hufband's murderer, and to the heir at law againft one who kills his anceftor, which being the fuit of the fub- jecl, the king cannot pardon. 1 Bac. Abr. 122. By Magna Chart a {Stat. 9 H. 3. c. 34.) No man Jhall be taken or impri- Who ma? foned upon the appeal of a woman for the death of any other than of her huf- have an ap- band. P eal of deatb ' It being alleged by fome, and efpecially by Treby Ch. J. that an appeal was a revengeful odious profecution, and therefore deierved no encou- ragement -, on which occafion Holt with great vehemency and zeal, faid, that he wondered any Englifhman fhould brand an appeal with the name of an odious profecution ; that for his part he looked upon it to be a noble profecution, and a true badge of Englijh liberties, and referred to the ftatute of Gloucefler, and the comment thereupon in 2 Injl. 1 2 Mod. 375- At the common law, before the ftatute 9 Hen. 3. a woman as well as a man might have had an appeal of death of any of her anceftors, and therefore the fon of a woman fhall at this day have an appeal, if he be heir at the death of the anceftor, for the fon is not difabled, but the mother only, for the ftatute fays, propter appellam feminyed in the and marines, may fet up and exercife fuch trades as they are apt and k^g's fervice able for, in any town or place within the kino-doms of Great Britain and hrxe z 9 ^<> v - . « • . ° ~ 1 74.0 una Ireland, without any let, fuit or moleftation, of any perfon or perfons have rot fines whatfoever, for or by reafon of the ufing of fuch trade •, nor fhall fuch of- deferted, and fleers, mariners, foldiers, or marines, or their wives or children, during aIf ° the wives the time they fhall exercife fuch trades, be removeable from fuch refpec- a f d , chlldren tive place or places, to his, her, or their laft legal place of fettlement, by suthori^ed^o virtue of any law now in being relative to the fettlement of the poor, un- fet up and e.x- til fuch perfon or perfons fhall become actually chargeable to fuch parifh or entfe trades place-, and if any fuch officer or officers, mariner or mariners, foldier or within any *Vol. I. N" III. K fiUfcn^BSff 1 * 66 Apprentices;. Ireland, with-foldiers, marine or marines, or the wife or child of any fuch officer, ma- out lett ; i iner, ibldier, or marine, who (lull be fued, impleaded, or indicted in and without any court whatfoever, within this kingdom, for ufing or exercifing any being liable to fu C h trades as aforefaid, then the laid officer or officers, mariner or mari- be removed ners ^ {oldier or foldiers, marine or marines, or any wife or child of any to^heir'laft ^ uca officer, mariner, Ibldier, or marine, making it appear to the fame legal place of court, where they are fo fued, impleaded, or indicted, that they have fer- fcttlement, ved his late or prefent majelty as aforefaid, or that he, fhe, or they, is or until they be- are tne w jf e or w j ves? c hild or children, of fuch officer or officers, mari- •harffeable"^ ner or mariners, foldier or foldiers, marine or marines, who mall have theparifli; fo fervcd his late or prefent majefty, fhall, upon the general iflue plea- , ... ded, be found not guilty in any plaint, bill, information or indict- opon pleadftia ment 5 exhibited againft them ; and fuch perfons who notwithstanding the general this act, fnall profecute the faid fuit, by bill, plaint, information, iflue, they or indictment, and fhall have a verdict pafs againft him, or become fhall be ac- nonfuit therein, or difcontinue their faid fuit, fuch perfon or perfons quitte , fl-va.ll pay unto fuch officer or officers, mariner or mariners, foldier or foldiers, marine or marines, or the wife or child of fuch officer, mariner, and be paid foldier, or marine, refpectively, double cofts of fuit, to be recovered as double cods of any other cofts at common law may be recovered; and all judges and ju- "• rors, before whom any fuch fuit, information, or indictment, fhall be brought, and all other perfons whatfoever, are to take notice of this pre- fent act, and fhall conform themfelves thereto ; any ftatute, law, ordi- nance, cuftom, or provifion, to the contrary in any wife notwithftand- ing. Where any " 2. And be it further enacted by the authority aforefaid, That it fhall two juftices an d ma y De lawful for any two or more juftices of the peace for the coun- o° r uVwhere t ^' town ' or pl ace » where any fuch officer, mariner, foldier, or marine, they (hall fo fhall f et U P ail d exercife any trade as aforefaid, to caufe fuch officer, ma- i'et up.fummon riner, ibldier, or marine, to be fummoned before them in the town or them to give place where fuch officer, mariner, foldier, or marine, fhall fet up and ex- evidence as to erc -j e j- ucn trac i e as aforefaid, in order to make oath of the place of his theivM legal hail legal fettlement (which oath the laid juftices are hereby impovvered to fettleWent, adminifter) and fuch officer, mariner, foldier, or marine, are hereby di- - ,. rected to obey fuch fummons, and to make oath accordingly ; and fuch make oath juftices are hereby required to give an attefted copy of fuch affidavit fo accordii.gly ; made before them, to the perfon making the fame, in order that he may ,, , produce it when required-, which attefted copy fhall at any time be admit- copy whereof te< ^ as evidence as to fuch laft legal fettlement, before any of his majefty's fhall be given juftices of the peace at any general or quarter feffions of the peace." them, which fhall be admitted as evidence at the quarter feffions ; andiffum- «* 3, Provided always, That in cafe any fuch officer, mariner, foldier, ™°" e £ a S ain ' or marine, fhall again be fummoned to make oath as aforefaid, then on be^obligecUo ^ ucn attefted copy of the oath by him formerly taken being produced by take a trefh him or by any other perfon on his behalf, fuch officer, mariner, foldier, or oath, but pro- marine, fhall not be obliged to take any other or further oath with regard duce the for- t0 his legal fettlement, but fhall have a copy of fuch attefted copy of his of. 1' 4- Pro- " 4. Provided always, That this ad mail not in any wife be prejudicial Privileges of to the privileges of the univerfities of Cambridge and Oxford, or either of thetwo um " them ; or extend to give liberty to any perlbn to fet up the trade of a vint- ( ctve $* ner, or to fell any wine or other liquors within the faid univerfities, with- out licence firlt hud and obtained from the vice-chancellor of the fame re- lpectively." Manual occupation] \_See page 59. feci. 31.] And yet he who bakes, The art f a brews, makes candles, &c. for his own ufe, is not faid in law to ufe any brewer is an manual occupation : And upon this branch, and much to this purpofe, a art, myftery, judgment was given in the court of Exchequer, and afterwards affirmed and raa " ua in a writ of error in the Exchequer-chamber, Mich. 6 Jac. and the cafe, w ithin the faid worthy to be known, was fuch. 'Taylor did inform in the Exchequer on branches of the flat, of 5 Eliz. c. tarn pro dan. rege, quam fro feipfo, againft S#«7 oc£ upy, u f e cr exercife,'] [See page 59. feci. 31. ] Debt on trade by 5 Eliz. for ufing the trade of a clothworker, not being brought up an others is with- apprentice ; upon nil debet the jury found, that the defendant was a Turkey in the flatute merchant, and exported woollen manufactures mto Turkey, and that he em- 2 Salk 610 pl°y e d clothiers who had ferved apprenticefhips to work the cloths in his Trin. 3 w. own houfe, at his own charge and with his own materials, which he fent fe M. into Turkey as merchandize, but that the defendant never ferved an ap- Hobbs qui prenticeftiip. Per cur. ift, The defendant is the trader in this cafe, and urn v. Young. ^ p er f on tnat exercifes the trade, becaufe he employs the reft, who work but as his fervants, and the lofs and gain is to be his. 2dly, This is a trading within the ftatute ; becaufe the cloth is not confined to the ufe of his own family, but vended out for the fake of commerce ; and whether the utterance be in England or Turkey, is not material. 3dly, That he that hath not ferved an apprenticefhip is by this ftatute reftrained to work as a trader, either by himfelf or others; for the intent of this aft is to annex the benefit of trade to fuch as underwent the hardfhip of learning it, thereby to encourage labour in youth : And few would undergo the trouble of be- ing apprentices, if they might employ others to work for them. 4thly, This is a negative ftatute, and no one ftiall exercife a trade againft it, un- lefs by virtue of a cuftom, as the widows of tradefmen, who by cuftom carry on the trade of their hufbands, which the court held not within the ftatute. Broderick Sfppienti'ces. 69 Broderick moved to quafh an indiftment on 5 Eliz. e. 4. for ufing the Jndiamentfor trade of a fcllmonger, not having been an apprentice feven years; he ocercifing the urged, that this was a bufinefs required no (kill, for it was only to pull tr *deof a fell, the wool from the (kin. He cited 1 Cro. 499. information for exercifing mon * er c ° n ' the trade of a hemp-drefier reverfed. One Paf. 4 Jac. 1. for exercifingno^^^' 7, the trade of a woolcomber, quafhed. Of a pippingmonger reverfed. «S^ becaufe a ver- per Holt. C. J. If in the indictment it be averred to be a trade at the red t0 be a time of making the ftatute we will not quafh it-, for whether it was a Uade *' the trade then or no, or whether any (kill be required to the exercife of it, is k; n „ ^"aft matter of faft proper for the trial of a jury : and there are many trades 2 Salk. 61 p. within the general words and equity of that aft, befides thole that are " vv. 3. mentioned therein. The cafe of a coftermonger is not yet determined, ?. ex v - '' arIs ' and the cafe of an upholfterer, 2 Buljl. 1S6. is not law. The court would au £ hter - not quafh it. Indiftment for ufing the trade of a merchant-taylor contrary to the fta- Where the tute 5 Eliz. Serjeant Broderick moved to quafh it, becaufe it is not a trade n aver - trade within the ftatute. Quafhed nifi. Some days after Mr. Eyre moved ^ d t0 , a to quafh an indictment againft Cornijb, for ufing the trade of a feamftrefs, tlme f tne not having ferved as an apprentice; and the court refufed, becaufe it was aft, the court fet forth in the indictment to be a trade in England at the time of making cannot intend the aft ; wherein the words are, any craft, myjlery, or occupation now ufed. " Wlthm the So that if this trade of a feamftrefs be not within the aft, the defendant 2 Salk 61 1. would have the advantage of it upon the trial. But as to Harper's cafe,.Trin- 4 Ann, which Mr. Eyre put them in mind of, the court feemed to think a mer- Regina v. chant-taylor was nonfenfe and unintelligible ; they did not know what a Har P er- -' merchant-taylor meant, and fo it differed. It is a good exception that it is not averred in the indiftment, that the trade therein mentioned was a trade at the time of making the ftatute. Donrina regim verfus Cornifh, eodcm termino. This was an aftion of debt for a penalty on 5 Eliz. c. 4. for exercifing A perfon.who the trade of a brewer, without having ferved an apprenticefhip. In the !i not < * ua,ified declaration there were two counts. To the former " nil debet" was pleaded : !f j*h" n> and there was a general verdift for the defendant, (viz. " that the de- by having ' fendant does not owe, &c") But on the fecond count there was a fpe- ferved an ap- cial verdift : which was to the following effeft, viz. that the defendant premicefhip. Chafe and one Coxe, were, and have been, during all the time charged in entenn ? .' nt0 this count, partners in the trade, and that the trade was carried on, and withTquali- had been for four years carried on, in their joint names -, that Coxe did fied partner, ferve an apprenticefhip, crV. but Chafe never did ; and that Coxe is a work- and °nly fta- ing brewer, and was paid a falary for his labour; which falary was always r, "g tne P r °fits deducted and allowed to him, previous to a divifion of the profits; andj^g r ;f que K the entries at the Excife-office were in iheir joint names : but that the de- the partner- fendant John Chafe, never exercifed the trade himfelf ; (which was wholly, fhip, without managed and carried on by Coxe,) but only pared the profits, and flood tbe tvet . exercifin g rifques of the partnership. And they find it to be a trade within 5 Eliz. ? r jjf^*?" 8 c. 4. Queftion, on 5 Eliz. c. 4. feci. 31. " Whether the defendant himfelf'per- Jobfi Chafe is within the aft, upon this fpecial finding." Mr. Morton profomWy, is cos 1 £uer. 7o 2tppjentfce& within the Quer. This attempt to evade the force of the aft, by the fcheme of a prohibitory partnerfhip with a qualified trader, would entirely fruftrate the inten'.ioi, penal ad of anc j j s direftly contrary to the words of the aft. The fhort of this cafe foastobVu- ' s ' Chafe not being himfelf qualified, takes a partner who is qualified .- able to the pe- which qualified partner is the only ailing perlbn in carrying on the trade; nalties of it and Chafe never interfered in it. There was the like point before the court 1 BUf ' M?'h in P ' l8 G ' 2 * B ' R ' ReX V ' Dr ffi dd - But ' P er Denifon and Fofter juibi- *'o Geo 2 ces > tnat ca ^ e was never determined : it went off upon an objeftion to the (17,-6) Ray jurifdiftion. Morton : But the lord chief juftice Lee then laid, " that na/dv. Chafe, he had never known a perfon exempted from the ftatute, who had not ferved an apprenticeihip." And as to his not interfering in the trade, the cafe of llobbs, qui tarn, &c. verf. Toung, reported in 2 Salk. 610. and xnCarlhew 162. and in 3 Mod. 313. is a determination in point, and not to be diftinguifhed from the prefent cafe. Therefore he prayed judgment for the plaintiff. Mr. Bifijop contra, pro defendant, faid, he would firft confider how this matter flood before the ftatute, with regard to the free and unlimited right that every man naturally and legally had of exercifing whatever trade he pleafed-, 2dly, The conftruclions that have been favourably made upon it, in extenfion of the qualifications to exercife trade ; and gdly, Diftinguifh this cafe from .the cafes cited. And firlt, the liberty of trade is a natural and common-law right •, and was long unreftrained. The ftatute of 37 E. 3. c. 5. which firft reftrained it, was very foon repealed by 38 Ed. 3. c. 2. And lord Coke in 4 Infi. 31. fays, " that fuch acts of parliament never live long." :He cited the cafe in 2 Bulfir. 186. Dominus Rex and Allen plaintiffs againft Tooley, defendant, as an authority for him ; though the court did not indeed formally pronounce any final judgment therein. And he alfo cited 1 1 Co. 53. the cafe of the taylors of Ipfwich. Secondly, The before-mentioned cafe in 2 Bulft. 186. The King and Allen v. Tooley, proves the conftruftion to have been favourable, Jenk. Cent, cafe 1 5. p. 284. " A private brewer is not within the ftatute." Keilwey 96. pi. 6. proves that the ftatute ought to be taken ftriftly ; being penal, and in derogation of the common law. And judges have difpenlcd with the ri- gour of it : as in Froth's cafe, 1 Salk. 6y. where feven years apprentice- fhip beyond lea, though without binding, was holden fufficient. So Qiieen v. Maddvx, z Salk. 613. S. P. accordingly : and the court there call this ftatute of the 5th of Eliz. a hard law. Comberb. 254. Rex v. Colior, per Eyre juftice, one brother living with another feven years (at the trade of a tal low-chandler) though not bound, may fet up the trade. j Med. 26. pi. 69. Dominus Rex v. Tarnith, proves too that this ftatute ought not to be extended further than neceffity requires. Now it is not found by the prefent fpecial verdift in the affirmative, " that this man had occupied, ufed, and exercifed the trade:" but it is found (on the contrary) negatively ; " that he has not interfered in it ; but ic was wholly carried on by Cox e." And Hob. 298. fays the rule is, " that affirmatives in ftatutes that introduce new laws, imply a negative, C5V." However here is an cxprefs negative. Thirdly, with regard to the cafes cited. As As to Rex v. Driffield, whatever was found in the affirmative in that cafe, is found in the negative here. And as to the cafe of Hobbs v. Young, there was no partner fkilful in the trade ; but only fervants : whereas here is a fkilful partner to conduct it ; and the fervants are employed and fet to work by his partner, who is fkilful, and are not employed and fet on work by the defendant. Then he added, (4thly,) fome arguments ab inconvenient!. Firft, that this will affect all great undertakings : for it fel- dom happens in fuch great undertakings, that all the partners are duly qualified, in ftrictnefs. So likewife, it would affect all cafes where infants and trufiees are intituled to lhares of profitable trades. So, where credi- tors have fhares in them. And apprenticejhips, in great breweries, are not, in fact, ufual or cuftomary. Mr. Morton, in reply, premifed that the rule of conftruction upon this act muft be uniform, with regard to all the trades within it : and breweries cannot be diftinguiihed from the reft. In anfwer to Mr. Bijhop's argument, he obferved, ift, it is of no impor- tance what was the right before the ftatute : the ftatute was made exprefsly, to reftrain fuch rights in future, for the good of the public. 2dly, He laid, he did not want to extend this law : this cafe is fully and completely within it, without ftraining it at all. And the conftructi jns that Mr. Bijkop calls fa- vourable, in the inftances which he has cited, are no more than juft and reafonable upon the circumftances of the refpective cafes in which they were made. 3dly, As to the negative finding in the prefent cafe, it a- mounts to no more, than "that this man did not mind his bujinefs," ("which the other partner did.) And as to letting to work, it is plain that Ccxe is fet to work by Chafe ; and, virtually, he fets all the fervants to work. In- deed, Coxe is here both a journeyman and a partner to Chafe : for Chafe pays him as a journeyman •, and v befides that, gives him a fhare of the profits. And my lord chief juftice Holt's opinion in the cafe of Hobbs and Young is quite applicable u> the prefent cafe. 4-thly, He endeavoured to fhew that the conttruing this man to be within the penalty of the fta r tute, could not be attended with any fort of inconvenience. . Therefore he prayed judgment for the plaintiff. As this was the firft argument, it was expe&ed (as of courfe) that it would be argued again : but lord Mans- field gave his opinion immediately to the following effect. Lord Mansfield : Where we have no doubt, we ought not to put the parties to the delay and expence of a farther argument, nor leave other perfons, who may be interested in the determination of a point fo general, unneceffarily under the anxiety of fufpeBce. The defendant is to fhare the profits with Coxe, in moieties, and is liable to the debts of the partnerfhip. But it is pqfitively and exprefsly found, " That during all the time charged, he never acted in or exercifed the trade." He was not, by the terms of his agreement, to act in the trade. The other partner was to do the whole, and had a particular falary on that account. It is not found that either Coxe or any fervant under him was fet to work by Chafe; nor that Chafe did any«4? whatever of exercifing the trade: He was only concerned in the profits. Now though this may be, to fome purpofes, exercifing a trade, in refpect of third perfons who deal with the partnerfhip as creditors, and within the meaning of the flatutes concerning bankrupts; yet the prefent que- 2 ftion 72 StppKtttfCtS. ftion is, " Whether it be exercifing a trade, contrary to this aft." I think Mr. Bifisop has laid his foundation right, againft extending the pe- nal prohibition beyond the exprefs letter of the ftatute. ift, This is a penal law •, 2dly, It is in reftraint of natural right; and, ^dly, It is contrary to the general right given by the common law of this kingdom. I will add, 4thly, The policy, upon which the aft was made, is, from experience, be- come doubtful. Bad and unfkilful workmen are rarely profecuted. This act was made early in the reign of queen Elizabeth. Afterwards, when the great number of manufacturers, who took refuge in England from the duke D' Alva's perlecution, had brought trade and commerce with them, and enlarged our notions •, the reftraint introduced by this law was thought fo unfavourable, that in 33 Eliz. in the Exchequer, 4 Leon, 9. pi. 39. it was conftrued away : For it was holden clearly by the judges, in that cafe, (which conftruction, however, I take not to be law now,) that " If one hath been an apprentice for feven years at any one trade mentioned within the faid ftatute, he may exercife any trade named in it, though he hath not been an apprentice to it." All thefe obfervations only fhew, " That this aft, as to what inforces the penalty of it, ought to be taken ftriclly." And accordingly, the conftructions made by former judges have been favour- able to the qualifications of the perfons attacked for exercifing the trade even where they have not atlually ferved apprenticelhips. They have, by a liberal interpretation, extended the qualifications for exercifing the trade, much beyond the letter of the act •, and have confined the penalty and prohi- bition to cafes precifely within the exprefs letter. Let us confider whether theprefent cafe be within the letter, or even the meaning of this act. The general policy of the act was to have trades carried on by perfons who had [kill in them. Now here the perfonal (kill of the defendant makes no real difference in the cafe. For the perfon who isjkilful, ails every thing, and receives no diretlion from this man : He neither did, nor was to inter- fere. The cafe of Hcbbs and 2"oung(Seep. 6S.) is not parallel. There, the defen- dant, zfingle man, directed the whole trade •, was the mafter, and direcled all thefervants. As between mafter and fervant, no doubt, it is the mafter, who carries on the trade, and not the fervant. But in Hobbs and Toung there was no partner/hip -, nor (what is the diftinguifhing character of the prefent cafe) a mere naked fharing of the profits, and rifquing a proportion of the lofs •, without his acting or directing at all, in any manner whatfoever. In many confiderable undertakings, it is abfolutely neceffary to take in per- fons as partners, to fhare the profits and rifque the lofs. And the general ufage and practice of mankind ought to have weight in determinations of this fort, affecting trade and commerce, and the manner of carrying them on. It is notorious that many partnerfhips are entered into upon the foundation of one partner contributing induftry and (kill, and the other money. Many great breweries, and other trades have been carried on for the benefit of infants and refiduary legatees, under the direction of the court of Chancery. Now if the plaintifPs conftruction was to hold, the whole direction and decree of the court of Chancery was contrary to law, and and to an exprefs aft of parliament. So it is likewife praftifed in other great trades. The late Mr. Child directed his bufinefs of a banker, to be carried on for the benefit of his children and other perfons. Many other inftances might be mentioned. It would introduce the utmoft con- fufion in affairs of trade and commerce, if this conftruftion fhould prevail. On the other hand, I fee no inconvenience : it is exactly the fame thing as to the trade, in every jota, " whether this partner has or has not ferved an apprenticefhip." Therefore I think the defendant not liable to the pe- nalty of 5 Eliz. Mr. juftice Denifon faid, that this was a new cafe. For though the cafes of Rex v. Driffield, and Adcock v. Gell, were indeed be- fore the court, yet no opinion was delivered in either of thofe cafes. He concurred that it was not an exercife of the trade within 5 Eliz. The true intent of that aft was, that no man fhould exercife any of thofe trades, unlefs he had fkill in them. It has never been extended, by any liberal conftruftion of it, in point of enforcing the penalty. And the prefent queftion is, " Whether this man has exercifed the trade, within the mean- ing of it, fo as to be liable to the penalty." Now it is here found, " That he never did interfere in the trade himfelf." In the cafe of Hobbs v. Tour.g, the defendant was the fuper-intender of the work, and did exercife the trade, without having any fkill in it. And this is the point in queftion, and the principal determination in that cafe of Hobbs v. Young, whatever elfe might drop from the judges in giving their opinion. But here the defendant ne- ver meddles at all ; but leaves all the management to a partner, who had fkill : He himfelf never ailed in carrying on the trade. It may be faid indeed, " That Chafe is liable to the flat utes of bankrupts." True : But the conftruftion of thofe afts, made for the benefit of the bankrupt's cre- ditors, is very different from the conftruftion of this prohibitory and penal aft, which ought to receive ajlriil conftruftion, in point of extending the penalty. Therefore, for thefe reafons, and thofe given by the lord Ch. J. he held, " That this was not an exercifing the trade within the ail." Mr. Juftice Fofler concurred, and faid, he had prepared himfelf to give his reafons at large : But as the lord chief juftice had gone through them fo fully, and inforced them in fo clear and fatisfaftory a manner, he would only, in general, declare his concurrence. Mr. juftice Wilmot of the fame opinion. By the court unanimoufly judgment was given for the de- fendant. On fhewing caufe againft a rule for quafhing an indictment on 5 Eliz. r ,.„ c. 4. feci. 31. for exercifing the occupation of a tanner, not having ferved for exercifing an apprenticefhip therein for feven years ; Mr. Sayer, on the part of the the occupation defendant, objected, ift, That though the trade of a tanner was undoubt- of a tanner, not edly a trade ufed within the realm of England at the time of making this havin S fei ? ed aft of 5 Eliz. yet it was not meant and intended to be included in this prohi- ftipTrT"*! bitory claufe; being at that very time under regulation by other ftatutes (no years therein, lefs than fixteen in number) made for the purpofe of regulating it ; and is fufficient particularly by 1 Eliz. c. 9. which allows the ufe of it to apprentices or wi . thout f P ec '- covenant fervants brought up in that trade four years : And another fta- { ^^\^ tute made in the very fame year with the prefent one, viz. 5 Eliz. c. 8. de- wYmof other Vol. I. N° IV. L fcribes qualifications 7+ appmut'ces. allowed by fcribes who may be tanners. So that it cannot be imagined that this oc- fubfequent cupation was ever meant to be included in the prohibition of 5 Eliz. c. 4. S other" f eStm 3l ' And thou § h both thefe ftatlltes ( of * Eliz - c - 9- and 5 EUz - c - 8.) qualifications are now repealed, yet they are equally an argument to fhew the conftruc- or exceptions tion of the claufe in queftion, as if they flood unrepealed: And fo the ought to be court confidered a repealed ftatute, in conftruing the unrepealed one of f fwdam thC 43 EUz ' C ' 2 ' in the Cafe ° f ReX V ' Loxdak et al '-> H - l ?57- 3oG. 2. B. R. 2^1/ Rep 2d objection. — If the trade of a tanner was meant to be included in the , 3 5 .3 7 . prohibitory claufe of 5 Eliz. c. 4. fett. 31. yet that ftatute was, as to this Trin 33 & particular trade or occupation, repealed by the 5 Eliz. c. 8. and 1 Jac. 1. 34. Geo. 2. c. zi. feci. 5. which are repugnant to, and confequently a virtual repeal Rex v. P«n- j^gj^g^ f f ar as concerns /&w trade. The former is indeed now repealed : But the latter is not : they admit of five or fix other qualifications befides having ferved an apprenticefhip for feven years -, namely, fuch as then had tanhoufes and ufed the trade ; alio the wives and fons of tanners having ufed the myftery four years ; alfo fuch perfons as mould marry the wives or daughters, to whom tanhoufes and fats fhould be left. So that there are now many other qualifications, that juftify ufing the trade, bejides that of fer- ving a feven years apprenticefhip. 3d objection. — An indictment will not therefore now lie upon 5 Eliz. c. 4. feci. 31. alone and generally : But it ought to fpecify all thofe other qualifications allowed by the fubfequent fta- tute •, and to fhew that the party is not within any of them ; as is done in convictions upon the game acts, and convictions for fwearing, and upon the act of 8 and 9 W. 3. c. 26. " For the better preventing counterfeiting the current coin of this kingdom." And for this he cited Rex v. Maurice - Jarvis, H. 1757. 30 G. 2. (1 Bur. Rep. 148, 151.) and Rex v. Sparling, (Hil. 8 Geo. 1 .) where a conviction for prophane curfing and fwearing was quafhed, becaufe it did not alledge, " That the defendant was not a fer- vant, labourer, common foldier, or failor." This indictment is upon a ftatute not favoured : and the cafe is the harder upon the defendant, and the more oppreffive, for that he is under another indictment on 1 Jac. 1. c.22. Mr. Norton, for the profecutor, having been heard in anfwer to the objections, and having made the proper diftindtions between the cafes cited and the cafe now in queftion-, the court were unanimoufly of opi- nion, that whatever licence might be given by any ftatute fubfequent to 5 Eliz. c. 4. to perfons who had not ferved a feven years apprenticefhip, to exercife the trade of a tanner under certain other qualifications therein de- fcribed •, yet, as the trade of a tanner was clearly a trade ufed at the time of making the 5 Eliz. c. 4. (and feems acknowledged even by 1 Jac. 1. c. 22. feci. 5. to be included in 5 Eliz. c. 4.) It is not neceffary, in an indict- ment upon 5 Eliz. c. 4. feci. 31. for having ufed this trade without having ferved fuch apprenticefhip, to aver the want of the other qualifications, which by the fubfequent ftatute intitle a perfon fo qualified, to ufe the trade : But fuch other qualifications or exceptions muft be fhewn by the defendant, by way of excufe, either by plea or in evidence. It is enough for the profecutor, to bring the cafe within the general purview of the ftatute upon vibich the indictment is founded ; if that ftatuie has general prohibitory Stppjentfcesu 75 prohibitory words in it. For where an indictment is brought upon a ftatute which has general prohibitory words in it, it is fufficient to charge the of- fence generally in the words of the ftatute : And if a fubfequent ftatute, or (as Mr. juftice Fofter and Mr.juftice Wilmot, who fpoke after lord Manf- field, and Mr. juftice Denifon, added, even a claufe of exception contained in the fame ftatute,) excufes perfons under fuch and fuch circumftances, or gives licence to perfons fo and fo qualified, as to excufe or except them of the general prohibitory words, that muft come by way of plea, or evidence, " That the party is not within fuch general prohibition, but excepted out of it." Indeed, where the words of a ftatute are defcriptive of the Nature of the offence, or the purview of the ftatute, or neceffary to give a fummary jurifdiftion, there it is neceffary to fpecify in the particular v ords of fuch ftatute. In the ftatute to prevent counterfeiting the coin (8 and 9 IV. 3. c. 26.) it is the purview of the ftatute •, not a general prohibition. 'Tis deicription — " Any fmith, engraver, founder, or other perfon or perfons whatfoever, other than and except the perfons employed in or for his majefty's mint, Szc.N.B. Mr.juftice Fofter faid, he believed there were no lefs than a hundred trades mentioned in other claufes of 5 Eliz. c. 4. And that he had once taken the pains to extract them, and range them alphabetically. Per cur. unanimoufly, the rule to (hew caufe why the indictment fnould not be qualhed, was difcharged. Any craft, myftery or occupation, now ufed] [See page 59. feci. 31.] That is, on the 12th Jan. 1562, when that parliament began-, and this re- ftraint fhall not extend any further, than the words do exprefsly direct, and therefore not to new arts and mifteries fince invented. 1 Rol. Rep. 10. 1 Vent. 326, 346. Within the realm of England or Wales.] [See page 59. feci. 31.] In an , ,.~ indictment for excercifing the trade of a Salter (which was held well, u f ir _ a tra( j e though not mentioned in the ftatute 5 Eliz. c. 4. 1 Lev. 243. 1 Sid. 367. ufed in Great 2 Keb. 582) the ftile of the king was Magnae Britanniae; and the trade Britain at the laid to be exercifed at the time of the ftatute infra hoc regnum muft refer to t "" eofthe,l * t - Magnate Britannia*, whereas by the words of the ftatute it muft be ufed in 5 d Z st? U3 England; and for this fault the indidtment was qualhed. And fo was a 788. Mich.' i former indictment, Rex v. Parijh, Trin. 13 Geo. 1. Geo. 2. Rex- Mr. Yates moved to quafh an indictment for exercifing the trade of a v -. Lll,er - baker, the defendant not having; ferved a legal apprenticefhip. The exception r ■ j u j ... , 1 T 1 • 11 i- i ■ r ; , laidtobeaeood he took to it was, that the trade was not laid to be tiled infra regnum Angli ex - where he kept a public ftage, Green was by indenture bound apprentice to fuch trades 'as him in this manner, viz. to Robert Gately ; furgeon, to learn the trade he are fpecially now ufeth ; and immediately he went upon the ftage, and ever fince con- named in the tinued in the imploy ; after which being with his mafter Gately in Middlefex, ft atu te. 2Salk. he complained to the juftices that his mafter did not teach him the trade, ?/',; Mt n h ' 7 upon which they difcharged him : This being done Green fet up the trade v Gately."' of mountebank himfelf. Mr. Northy moved to quafh the order, the juftices being willing, becaufe they were impofed upon, ill, He excepted to the form of the order, that they ordered the fervant to be difcharged from his mafter, whereas the difcharge fhould be mutual. 2dly, Becaufe the Stat. 5 Eliz. in difcharging apprentices is confined, and extends only to ap- prentices mentioned in that claufe ; and there neither furgeon nor mounte- bank is mentioned. And though a furgeon may be a trade within the ftatute, which a man cannot exercife without ferving an apprenticefhip to, becaufe that claufe of the ftatute is general ; yet this part of the ftatute relating to the difcharge of apprentices, extends only to trades there men- tioned. Per Cur. As to the firft, the difcharge of the fervant is by con- fequence a difcharge of the mafter ; and as to the fecond, the claufe of the ftatute relating to the difcharge of apprentices, is general, and goes to all manner of apprentices, even to thofe of merchants, as it was adjudged in Hawkfworth's and Hillary's cafe, 1 Saund. 314. But afterwards the court was of opinion, that the power of difcharging reaches only to the trades mentioned in the ftatute, among which a furgeon is not mentioned ; for that though as to the ferving feven years apprenticefhip, a furgeon comes under the general terms of arts and myfteries, yet the power of difcharging reaches only to the trades particularly mentioned, and this point was not ftirred in Hillary's cafe; and in Watkim's cafe, 2 Keb. 182. Hale chief juftice was of another opinion. The juftices at their feffions difcharged one Philip Hallo from his mafter, Stat. 5 His a glafs-bottle-maker. It appeared, there was a blank left for the time he e * ten dson!yto was to ferve in the counter-part of the deed-, but the article the apprentice ,hofe . trades> figned was right. Sir Peter King: If the indenture be right, which the™° n ^ ,B apprentice figned, it is fufficient. It is for nine years; the law allows no fed. and rem. fuch term. A glafs-bottle-maker is not one of the trades mentioned in 29- Mich. 12 the ftatute ; and it extends but to thofe, according to the cafe of the Kino- Ann - Queen v. Gately, in 5 Mod. Quafhed, ni/i. ? and Fu,ncffc Exception 73 Stat. ; Eliz. extends to trades not mentioned in it. Lord Raym. 14.10. Stran. 66}. Mich iz G.i The King v. Collingbourn. A man cannot fend his ap- prentice be- yond fea, ex- cept he be with him. Brownl. 67. Hil. 13 Jac. Coventry v. Windal. Apprentice cannot be dif- charged with- out appear- ance or fum- mons of the mafter. 2 Stran. 1013. Ealt.8Geo z. Rex v. Eaf- man. Ufing him unkindly is not fufficient. #ppjetttfces. Exception was taken to an order of difcharge, that the juftices could not difcharge the apprentice, becaufe the trade to which he was bound, viz. a glazier, was not within the ftatute : but not allowed •, for though formerly it was held, that the trade ought to be a trade within the fta- tute, yet the latter refolutions have been otherwife. If any fuch tnafler] [See page 60, feci. 35.] That is, any fuch mafter as is before mentioned in this ftatute, in the trades therein fpecified ; and the former refolutions confined the fenfe of the ftatute to fuch trades only, but the latter adjudications feem to extend the equity thereof to other trades not mentioned in the ftatute, as in the foregoing inftances. 1 Burn 68. Shall mifufe or evil intreat his apprentice} See page 60. feci. 35. An action of debt brought upon a writing, thereby Ihewing that whereas one T. before the fealing of that writing had become bound to the defendant, to ftay with him, and ferve him as an apprentice for the term of eight years, and Woodall covenants with the plaintiff", that he before fuch a day would receive and take the faid apprentice for the refidue of the faid term of eight years then to come, and would teach, keep, and employ the faid apprentice in his houfe and fervice in the art and myftery of chi- rurgery, which the faid IVoodall then ufed and profelTed, if the faid J. mould fo long live, and binds himfelf in twenty pounds. The plaintiff alledged that the defendant did receive the faid apprentice in fervice at London, &c. and further fays, the defendant within the time, to wit, fuch a day and year, fent the (aid apprentice in a certain voyage, in a fhip called the Dragcn, from the houfe of the defendant, unto the Eaft- Indies, there to ftay •, and that the apprentice did there arrive, and doth yet there remain, for which he brings his action. The defendant pleads, that he, for the better inftruction of the apprentice, fent the apprentice to the In- dies, to ufe and exercife his art; and to this the plaintiff demurs, and judgment for the plaintiff, that the defendant could not fend the appren- tice out of England, except himfelf went with him, although it be in his own houfe, and his own proper fervice; but clearly he might fend his ap- prentice to Chejler, or any other part of England. And generally, no man can force his apprentice to go out of the king- dom, except it be fo exprefly agreed, or that the nature of his appren- ticehood doth import it, as if he be bound apprentice to a merchant-ad- venturer, or a failor, or the like. Hob. 135. An order was made at the feffions, for difcharging an apprentice ; the mafter having ufed him unkindly, and refufing to provide for and enter- tain him. Et per curiam, This order muft be quafhed, not for want of an original jurifdicton in the feffions, which has been often allowed them; but becaufe it does not appear the mafter was prefent or fummoned, which it is plain the aft intended he fhould be. Befides, there is another fault, which is, that the reafon given in the order is not a ground for their pro- ceedings ; for there is a power to oblige the mafter to receive and enter- tain him, and ufing him unkindly is too loofe. Vide Tun, 12 Ceo. 1. Rex v. Davie, Stran. 704. Or #ppjentfces. 79 Or the apprentice do not his duty to his mafter] Seepage 60. feci. 35. The Seniors can- feflions, reciting that Jofeph Higgin was bound out by indenture as the not difcharge ftatute requires, to John Parks, and being lame, and having the king's ^ant'of ° D evil, and in the opinion of iurgeons incurable: therefore the feflions ficknefs. difcharge the mafter from his apprentice, and four juftices fign the order. 1 Stran. 99. Bar nail, ferjeant, moved to confirm the order, becaufe the mafter cannot Trin. 4 G. 1. now have the end of the binding, which was the fervice of his apprentice. bi ^J sd g a * Willes contra. The ftatute only impowers the juftices to difcharge for mif- Ha i es 0we n. behaviour, and not for ficknefs. Befides, allowing they had a power to difcharge, yet here they have not executed it as the ftatute requires •, for it is not inrolled; neither is it mentioned to be by ajuftice of the quorum. There muft be four juftices, one of the quorum. Both exceptions to the form were held good. But the court quafhed the order as to the fub- ftance, for the mafter takes him for better and worfe, and is to provide for him in ficknefs and in health. Shall repair unto one jujlice~\ See page 60. feci. 35. The juftices may Juflicesmay force a mafter to take an apprentice, for by the ftatute the juftices are to fetce a ™ a< - put them out, and therefore muft be conftrued to have confequentially a ter -fLj-JL™ power to compel the mafter to receive him ; and if the mafter turn him p er H ] t c'h, away, they can make him refund. 1 Lev. 91. Upon an order made at J. that the the feflions to difcharge the apprentice, it did not appear that he applied feflions have himfelf firft to ajuftice of peace, and Holt Ch. J. was of opinion thejuf- ijajjjjjjjj tice has power to make an order, and if obeyed by the mafter, then the difcharge ap- fefiions can have no power : if difobeyed, then the juftice upon complaint prentices. may bind the mafter to the feflions; and that the feflions have no power « Salk. 67. otherwife. burton and Could, cont. That he could not bind over. Ad- ™* ' ' w - 3- Anon. jornatur. Exception was taken to an order for difcharging an apprentice, ift, That Seflions may the complaint was made originally at feflions without any previous appli- dl ' cnar g<- | a P- cation to a fingle juftice out of feflions. And 2dly, That the juftices had origin" order- ordered money to be returned. And now Holt Ch. J. delivered the refo- and order mo- lution of the court, That the order was good. If it had been a new quef- ney to be re- tion, he fhould have held a prior application to fome juftice out of iefli- tu ' n ^' ons neceflary, but after fo many orders affirmed in this court, which have ^° * w 'jjj been otherwife, 'tis too late to unfettle that now. As to the fecond point, 3. The King' he never doubted that, for it is a power confequential upon their jurifdic- v. Johnfon. tion to difcharge. Per Curiam : It has been fo often refolved, that the feflions has an ori- Sefl i? ns nas an ginal jurisdiction to difcharge apprentices ; that we will not now fuffer it r "-^l^ J U " to be made a queftion, though it might be doubtful upon the ftatute it to difcharge felf. But in thefe orders it muft be fet forth, that the mafter appeared, or apprentices, was fummoned, as was held Pafch. 10 Anna, Regina v. Rutter, and for ' Stran - '43- want of this the order was quafhed. ? 5 G i°". '■ Order of feflions for difcharging an apprentice was quafhed, the only Apprentice ' reafon given for the difcharge being, that the mafter declared in open court not to bedif- he would not take him again. It was agreed to be a point not now to be charged with* dilputcd, on i a reafon ' r " 1 Stran. 704. Trin. 12G.1, Rex v. Davie. 80 Apprentices* difputed, but that the feflions had an original jurifdidtion to difcharge ap- prentices. A. is bound Or to the mayor or other head-officer'] See page 60. feci. 35. This was an apprentice to order of feffions made at Hicks'* Hall, for the difcharge of an apprentice to B. who is a a freeman of the city of London, and who was bound and inrolled there: thTcky of an d tne order being removed hither, there were thefe exceptions taken to London, and it. i. That the apprentice was bound and inrolled in London. 2. Not A. is bound bound by the juftices. 3. Not a trade within the ftatute, he being a gla- and inrolled z j en ^ Q t hele exceptions it was anfwered, that the claufe of the ftatute EoeTand'ivcs 5 ^iz- c. 4. / 35. enacts, " That if any mafter fhall mifufe his appren- with his maf- tice, he (hall repair unto one juftice of the peace where he dwelleth, &c." terin Middle- And feci. 40. provides, " That the cuftoms of London and Norwich fhall fex. Thejuf- De f a ved." Set!. 35. has always received a large conftruction in favour tices of the Q £ t he jurifdicYion of juftices, for though upon the matter's complaint no county may power is given to the juftices to difcharge, yet in 24 Car. 2. 1 Saund. 313. difcharge him. i Vent. 175. Hawkfworth and Hillarie's cafe, it is held, that it was rea- 1 Stran. 663. fonable, and within the intent of the ftatute, that an apprentice mould Mich. 12 G. k e difcharged from an ill mafter, as well as a mafter fhould be dif- Collingbum. charged from an ill apprentice-, and in 1 Mod. Wilkins v. Edwards there is the fame point, and in 1 Vent. 174. 1. The firft and principal que- ftion is, whether the court of feffions at Hicks 's Hall have any jurisdiction to difcharge an apprentice to a freeman of London ; or whether he is not to be difcharged only by the mayor's court ? It is found that the appren- tice lived with his mafter out of the city of London, and within the jurif- dicYon of the juftices of Middlefex. To this exception it was anfwered, that the ftatute does not regard where the binding or inrolling is, but gives the jurifdicYon exprefly to the juftices of peace where the mafter lives ; and if this did not belong to the juftices of Middlefex, where the mafter lives, there would be a failure of juftice ; for neither the chamberlain, or any other city magistrate, have power to compel the mafter's appear- ance before them. 2. To the fecond exception it was faid, that it was immaterial where the apprentice was bound, for the fame reafon. 3. And to the third exception it was faid, that formerly indeed it was a doubt, whether the ftatute did extend to all trades; but of late it hath been fettled and agreed, that it does. Salk. 471. Palm. 526. 2 Keb. 822. Rex v. Taunton, Hil. 6 Geo. The court affirmed the order of dif- charge, and laid they would not take away the jurifdicYon of the mayor's court, but only give a concurrent jurifdicYon to the juftices of the peace for the county. And it would be very inconvenient, to have apprentices to a freeman of London, who are bound there, and who live in diftant countries, obliged to come up to the mayor's court to get themfelves dif- charged. And the words of the ftatute are very plain ; for they give the jurifdicYion to the juftices where the apprentice lives. Order for dif- And upon his appearance and hearing the matter] See page 60. feci. 35. charging ap- jyj,. gy re movec i to q Uam an or der for the difcharge of an apprentice : the maftwnotap- q ueftion arofe u P on the claufeof the ftatute, which directs, that upon the pearing. appearance of the mafter the apprentice may be difcharged by four juf- tices, 3lppmttfceg. 8i tices, after the next juftice hath endeavoured to compofe the matter in r s a Ik. 490. difference. In this cafe it was objected, that Ditton the mafter was bound Paf. 13 w. 3. over to appear, and did not-, and the juftices have but a limited jurii- Di:ton"s cafe, diction ; and it is exprefly directed by the aft, that this difcharge is to be made on the appearance of the mafter ; befides, there is another remedy to proceed on the recognizance, which is forfeited by not appearing. Per Cur': The aft muft have a reafonable conftruction, lb as not to permit the mafter to take advantage of his own obftinacy ; and it would be very hard, that fuppofing the mafter is profligate and runs away, the apprentice Ihall never be difcharged : afterwards exception was taken, be- caufe it appeared upon the face of the order, that Bitten was a collar- maker, 13 non conjlat what the trade is, nor that it is within the ftatute ; like Comfort's cafe, where one was bound to a mantuamaker, when there was no fuch trade within the ftatute, nor at the time of the ftatute : and in this cafe it was faid, that the juftices might make the mafter make re- ftitution of part of the money, and that it hath been fo adjudged. The juftices at the feffions order an apprentice, who had been ill ufed, Juflices can - and not provided for, to be difcharged, and that the mafter having re- not order m»- ceived 5/. with him, fhonld refund 3/. as a further provifion for him. n ^° £* ^ This was moved to be qnafhed, becaufe the 5 Eliz. c. 4. feci. 35. which c harge of an gives the juftices power to difcharge apprentices upon complaint to them, apprentice, gives them no authority to order any money to be returned. Per curiam: \ Stran. 6g. it is very hard, that if the mafter mifufes his apprentice the next day af- Mic h- 4- Geo. ter he is bound, he fhould pay back nothing if he is difcharged. It will {vakefield. be an encouragement to mafters, to treat their apprentices ill, but the ftatute being filent, the order muft be quafhed. Salkeld 68. It was held, that the juftices might order money to be returned, as a confequence of their power to difcharge. Ibid. 67, 490. But this doctrine of refunding feems to be now eftablifhed, as founded Doflrine oT in great reafon, tho' not exprefly mentioned in the act •, for the juftices refunding being authorized to difcharge according to their difcretions, when the e j^ ' A" end of the apprenticefhip cannot be attained with one perfon, it is but , . _ ' juftice the mafter fhould return part of the money he has received with his apprentice, to place him out with a new mafter. It was held, that an order on the mafter to return money is good, tho' Order on the it is not averred, that he had any with the apprentice •, for the order be- mafte r [ ° re- ing to return money is a neceffary proof of the receipt of it, and the juf- *™™° n ^' tices in their orders are not obliged to fet forth all the fteps they take in 3 n, aC ' ^ T their proceedings, there being nothing in the acl which makes it necef- 550. fary -, and there is a known and eftablifhed diftin&ion between orders and Tr 'n J G. 2. convictions, id. aSJ?**' The following is a report of the preceding cafe from a menufript. In Eafier 'term 6 Geo. 2. Mr. Strange moved to quafh an order of fef- Report of the fion at Norwich, fcr difcharging an apprentice to a carpenter, upon an preceJng exception that this was not a trade within the ftat. 5 Eliz. and he cited ^ 1S Rex and Gately, Salk. 47 1 . where it is held, that the fellions has power to difcharge apprentices to thofe trades only, which are mentioned in the Vol. I. N° IV. M ftatute. 82 stppjettttces. ftatute. Page juftice : I deny that no trades are within the meaning, of that ftatute but what are mentioned in it. Strange. A diftinftion has been always taken between the claufe in the ftatute relating to one's ferv- ing feven years, as an apprentice, and that relating to the difcharging ap- prentices •, for in the firft cafe the words of the act being general, have been conftrued to extend to other trades, than what are mentioned in the aft. But in the latter cafe, the words are more particular, and have been conftrued to extend to thofe trades only, which are mentioned in the aft. Cur' : Shew caufe. This cafe coming on again in Trin. term 6 £s? 7 Geo. 2. Mr. Forte/cue faid, that four exceptions had been taken to this order, ift, That the trade of a carpenter is not within the aft. 2dly, That it does not appear that the mafter had any money of the apprentice's in his hands. 3dly,That the feflions has no power to order the mafter to pay back the money he received from his apprentice. 4thly, That it does not appear there was any appearance, or that the mafter was fummoned. As to the fourth, the order ftates that on motion and hearing counfel, &c. and that is a reafonable intendment he did not appear ; and this is not like an order made by one juftice, who muft fet forth every thing : for the feflions being a court of record, what is done there will be intended to be reafonable. In Salk. 6y. and 490. 'tis adjudged that the matter's ap- pearance is not neceflary ; and 'tis likewife there held that the feflions has a power, to order the mafter to return the money •, and there is no occa- fion for a fummons •, for the mafter is to take notice of it himfelf. As to the third, the cafes above cited prove the feflions have a jurifdiftion. — The juftices have power to put out an apprentice, and therefore muft, in rea- fon, have a power of making the mafter repay the money, on the dif- charge. The aft was made in favour of apprentices - f and if the juftices had no fuch power, the mafter would be in a better cafe, than before the aft. As to the fecond, tho' it is not exprefly faid that the mafter had money, yet the order fays he ftiall return and pay back the fum of, &c. and that could not be, if he had not received it. As to the firft, the cafes of Salk. 471. 1 Saund. 313. 2 K. 822. prove that the ftat. 5 Eliz.. extends to other trades, befides what are there mentioned ; and that claufe is penal, and yet extended liberally ; and therefore a fortiori in this cafe. But the 30th feci, mentions the trade of a carpenter; and feci. 25- gives power to difcharge fuch an apprentice from his mafter. Strange. As to the fourth exception, the order does not fay on hear- ing counfel on both fides, or that evidence was given by both parties ; fo that for any thing appears, it might be on one fide only, like the^ cafe of motions here ; therefore every word in this order may be true, and yet the mafter may not have been heard. 'Tis neceffary that the mafter appear, for otherwife 'tis proceeding ex parte. Tho' the juftices may pro- ceed without appearance, yet they can't till the party has been fummoned j and fo was the cafe of Queen and Simpfon. As to the third exception, that argument can extend only to apprentices bound out by juftices, which does not appear here •, and he might be bound out by his own re- lations. As to the fecond exception, 'tis often faid that this court will intend intend nothing in the cafe of inferior jurifdiftions -, and this is admitted to be fo only by implication. As to the firft exception, he owned the word fuch in the 30th fe£f. muft relate to the trade of the carpenter before- mentioned, fo gave up the exception. Page juftice : I think this is a good order. As to the fourth excep- tion, the feffions has no occafion to fet it out, for this court will intend it. If he was fummoned, tho' he did not appear, yet that is fufficient ; and the feffions has no occafion to fet out the fummons. As to the fecond exception, 'tis plain by intendment that the mailer mull have received the money, for the words return and pay back, neceffarily import it. As to the third exception, it would be the means of great oppreffion, if the jufUces had not power to make the matter return the money •, for that might be an encouragement to the mailers, to uie their apprentices ill, that they mightbe difcharged from them-, andfo get more money by taking another. Probyn juftice: A carpenter is a trade within the aft. The confequence of the juftices having a power to difcharge apprentices is, that they may difcharge them on fuch terms as they think proper ; and the power of ordering the mailer to return the money, is incident to the power given by the aft, to difcharge the apprentice ; for otherwife the mailer would receive the benefit by his own wrong. — I am not fatisfied as to the notice ; for it appears that this was an original application to the feffions. In cafes of inferior jurifdiftions nothing can be fupported by intendment ; and tho' upon the ftating the order the mod natural conllruftion of the word is, that both parties were heard, yet we can't intend it. 'Tis held that in conviftions, a fummons is neceflary to be fet out, but not in orders ; but I think it ought to be fet out in both cafes. Lee juftice : The aft does not oblige the feffions to fet forth their power, and the natural conftruftion of the aft is, that there mould be a prior ap- plication to the juftices ; but it is now fettled that there is no occafion for it, for the aft is taken to be directory, and not compulfory. Summons and notice are of the efience of juftice, and the feffions are fuppofed to have done it •, and therefore I do not think, the feffions has occafion to fet it out •, for it is to be prefumed, unlefs the contrary appears. Cur. advi- fare vult. The petitioner, on the 10th of January 1744, was put apprentice to Money order- Ward, a bookfeller at York, and the fum of 80 /. was given with him as ed to be re- an apprentice for feven years. In July following a commiffion of bank- fund ed by the ruptcy was taken out againft Ward -, and being declared a bankrupt, 5? h urt of affignees were chofen, who fell off the bankrupt's effefts, and he is now , A^y^s the fupervifor of the prefs to the purchafer, and become incapable of per- Rep. 149. forming his part of the contract, nor is the petitioner able to raife any In than. Jan. money to put him out apprentice to another mafter ; and the commiffion 2zd> '745- being a recent one, probably no dividend may be made in a year, or a year and half-, fo that all this time will be loft to the petitioner. Upon thefe circumftances, the petitioner prayed, that on dedufting 10/. out of the 80/. for his board with the bankrupt during the fix months he lived with him, the affignees might be ordered to pay him yol. out of the M 2 effefts 8 + 3tppjenttce£. effe&s of the bankrupt already come to their hands, and not oblige him to prove it as a debt under the commiffion. The lord chancellor Hard- wicke was at htft doubtful, and feemed inclined to grant the petition, but on ordering fearch to be made for precedents, and feveral being produced wherein it was directed that apprentices fhould come in as creditors only •, after deducting for the time they lived with the bankrupt, upon the re- maining fum; it was ordered accordingly in this cafe, and that the peti- tioner fhould be admitted a creditor for 70 /. only. Tracy Atkins. Ex parte Sandby. See further, where a court of equity will oblige a mafier to re- fund, 1 Vern. 460. 2 Vern. 64, 492. Debt lies at J» any of the Queen's majefy's courts of record — by ablion of debt] See Weftminfter p a ^ e g 2t j e ft % ^9. Debt on the ftatute of 5 Eliz. brought in the King's ft napei but Bench, for ufing the trade of a grocer at Salifiury, and lent and tried by an ind'ft- Nifi prius at Salijbury : and after verdict for the plaintiff on nil debet, 'twas ment or in- moved in arreft of judgment, That the action did not lie in this court, formation in ^ut ought to have been brought and tried wholly in the proper county, the proper ^y trie itatute 23 Car. 1. And for this were cited Hillary 23 Car. j. B. R. Thev Taq' Rot. 611. Mich. 13 Car. 1. B. R. Bretburgie againft Hafcall, and Mich. Mich. 20 Car. 1 6-4. Child againft Bull, and Trin. 1652. Rot. 1377. Bunton againft 2. Barrs a- Shalate. But on the other fide, 'twas faid, That the action of debt did gainft Hughes. nQt y ie at the fefiions or affizes in the country ; and the ftat. 5 Eliz. gives the recovery by action of debt as well as by indictment or information ; and the ftatute 21 Jac. 1. does not concern the ftatute of 5 Eliz. in any part-, and therefore the ftatute of 21 Jac. 1. is to be taken by referring particulars to particulars, viz. by inditlment or information (which will lie there) in the proper county, but for aflion of debt (which will not lie in the proper county) in the fuperior courts, where it will lie; and for this were cited 1 Cro. Farrington againft Key met; and ibid. Green againft Gray. Latch J92. 1 Roll. Abr. 537. Trin. 1653. B. R. Hodges's cafe. And if it fhould not be fo, there might be a failer of juftice-, as if the parry offends againft the ftatute in one county, and goes and lives in another county, and the information or indictment is laid in the proper county, for there the party cannot be brought in to plead : but for debt in the fu- perior court he may be brought in hither out of any county, and the iffue is to be tried by Nifi prius in the proper county. And of that opinion were all the judges, viz. Kelynge, Twyfden, and Moreton, IVyndham be- in°- dead •, and after the cafe had been twice argued at the bar, they gave judgment for the plaintiff in Hillary term next following; and they faid, That the ftatute of 21 Jac. i. was not made to ouft aftions of debt on penal ftatutes, but to give fuch remedies for them in the proper county as may be had there: but afterwards in Mich. 29 Car. 2. the con- trary opinion was held in the King's Bench, between Clappe and Edgecombe; [which is reported in 2 Lev. 204. in manner following] Debt upon Debt was brought in B. R. upon ftat. 5 Eliz. for ufing a trade in De- ftat. 5 Eliz. vonjhire, which was lent by Nifi prius and tried in Devonfhire, for the plain- ought to be jjff am i now j x was movec i in ar reft of judgment, that the action mould ,4ld " ltbe have have been brought as well as tried in Devon/hire. To which it was an- proper county. fwered, that in Hughes and Barnes's cafe it was refolved, that debt lay in 2 Lev. 204- this court •, but it was replied, that after that cafe, it was adjudged in the Ml ^ n - z< ? Car - cafe of Nicbolls and Cochinell, in the time of Hale Ch. J. that the action againftEdee- ought to be brought in the proper county ; upon which the court ordered com be. the cafe to be put in the paper. Holt Ch. J. reported the opinion of all the judges in this cafe. An Debt lies not action of debt was brought in the King's Bench on c. Eliz. c. 4. by a com- on in Y P e " al • r c °r 1 1 • r j ■ ftatute made mon informer, for exercihng a trade, not having ierved as an apprentice ; ^, - . and the queftion was, If the jurifdiction of the King's Bench was taken ,. ; n g, r. away by 2 1 Jac. 1. for it was thought fit to fettle it, becaufe of the cafe of 1 Salk. 373. Barnes and Hughes, 1 Vent.%. 1 Lev. 249. And it was refolved by the Hil.ioWil 3. opinion of eleven of the judges, ift, That 21 Jac. 1. reftrains the jurif- diction of the King's Bench, in actions of debt by common informers, and that they cannot bring debt upon the ftatute in the King's Bench, unlefs the caufe of action arife in the county where the King's Bench fits, but mull in other cafes profecute by information, &c. before juftices of affize, &c. as the ftatute directs. 2dly, It was refolved, that where a remedy is given by action of debt, &c. in any court of record, &c. by any later ftatute, fubfequent to 21 Jac. 1. fuch action is not reftrained •, for the faid ftatute of 21 Jac. 1. does not extend to fuch actions, but ftands repealed as to them. But the chief juftice declared, that his own private opinion was, That v/here any fubfequent act gives any popular action, it muft be laid in the proper county within the equity of 2 1 Jac. 1. Hale Ch. J. was al- ways againft the opinion of Barns and Hughes; and the principal objection in that cafe was, that the party offending might get out of the county, and fo efcape the punifhment of the law, as being out of their jurifdic- tion : But by Holt Ch. J. this objection does not hold, for there may be procefs of outlawry fued out againft him : the ftatute of 21 Jac. 1. giving the fame procefs that lay in actions of trefpafs vi & armis at common law ; and therefore neither debt nor information, tho' exhibited by the attorney general, lieth here, but in York/hire, which is the proper county in this cafe. And that the faid juftices] See page 62. feci. 39.' By ftat. 31 EUz, c. 5. feci. 7. it is enacted, " That all fuits for ufing any art or myftery in the which the party hath not been brought up according to the ftatute in that behalf made, (5 Eliz. c. 4.) fhall be fued and profecuted in the gene- ral quarter-feffions of the peace, or afilfes of the fame county where the offence fhall be committed, or otherwife enquired of, heard and deter- mined in the aftifes or general quarter-feffions of the peace of the fame county where fuch offence fhall be committed, or in the leet within which it fhall happen, and not in any wife out of the fame county where fuch offence fhall happen or be committed." Mr. Eyre moved to quafh an indictment for exercifing the trade of a Indidlment goldfmith not having ierved feven years apprenticefhip,for this excep- upon , 5 ^ llz . tion, viz. That it was found at a quarter-feffions for a borough, whereas"^ (,orou"h by feOions. 86 TimttitittSi t Salk. ijo. Mich. {W. & M. Rex & Regina v. Franklin. Indidment by the ftatute 31 Eliz. c. 5. it ought to be at the quarter-feflions of the county. But the court held, the indictment might be at the feflions of a borough, tho' it had been otherwife ruled heretofore in feveral other cafes. An indictment was found at the feflions of the peace of the corpora- tion of Wells in Somerfetjhire againft the defendant for having ufed a trade, not having ferved as an apprentice for feven years. And being moved c P ° n taken Z at mto tne King's Bench by certiorari, it was quafhed becaufe the juftices at the feflions in a fuch feflions have not jurifdiction to take fuch indictments. corporation, quafhed. 2 Ld. Raym. 767. Eaft. 1 Ann. Regina v. Taylor. Indictment on Mr. ferjeant Poole fhewed caufe againft quafhing an indictment on 5 Eliz. c. 4. ^ Eliz. c. 4. feci. 3 1 . (for exercifing a trade, not having ferved an ap- [°^ d ns a f ^ e prenticefhip therein) found at the feflions for the city of Carlifle. Mr. city of Car- Norton had on 27th November iy$6 moved to quafh it, upon an objec- lifle, held tion that the city feflions had no jurifditlion. And he had cited, in the good. proof of it, the cafe of Regina v. Taylor, 2 Ld. Raym. 767. where fuch an 1 Bur. Rep. j n( }jctment was quafhed, " becaufe the borough feflions had no jurifdic- Hil.'joGeo. tion to take fuch indictments." He infilled that only the j«/»7*r-feflions 2. Rex v. Strong. Information, qui tarn, for exercifing a trade, con- trary to 5 Eliz. c. 4. not having ferved an ap- prenticethip, may belaid at a parifli. 1 Bur. Rep. 366. Trin. 30 & 3 1 Geo 2. Ball, qui tarn v. Cobus. of the county have jurifdiction. The indictment in that cafe of Taylor, was found at the feflions for the corporation of Wells ; and moved hither by certiorari. Lord Mansfield, at the time of the original motion, looked into the act of 5 Eliz. c. 4. and faid that this aft [feci. 39.] exprefly gives the power to mayors or other head-officers of cities or towns corporate, at their feflions. And now, upon fhewing caufe, the court was unanimoufty of that opinion. The cafe of the Queen againft Taylor was in Eafter term 1702 : and is contradicted by that of Regina v. Franklyn in 2 Ld. Raym. 1038. which was determined in Mich. 3 Ann. 1704. though it is in 1 Salk. 370, by miftake, put under Michaelmas. 3 Will. 6? Mar. Per Cur. Rule difcharged. Mr. Whitaker fhewed caufe againft quafhing an information qui tarn, for exercifing the trade of a baker at the pari/h of Speldhurjl in Kent, not hav- ing ferved an apprenticefhip •, contrary to 5 Eliz. c. 4. The ill objec- tion taken to this information by Mr. Clayton on the original motion was, " That Speldhurjl does not appear to be a city, market-town or corpora- tion : it may be a village." For fupporting which, he had cited 2 Keble 583. Rex v. French; (ill exception.) which cafe is alfo reported in 8 Mod. 26. S. C. Rex v. Turnith; and 1 Vent. 51. S. C. But though thefe are all reports of the fame cafe (which was cited by Mr. Qayton, only out of Keble,) yet Mr. Whitaker alledged that they are inconfiftent with each other, Mr. Clayton, contra The act was intended merely for the be- nefit of corporations : and it has always been taken, that it does not ex- tend to any village, or any place lefs than a city, market-town, or corpo- ration, {Bamesford thought otherwife, in 1 Mod.) and it would be ex- tremely inconvenient to the inhabitants of all diftant retired villages, if it did. Lord Mansfield The queftion is not now upon the evidence; but upon the laying the offence. Have you any authority that it may not 2 be be laid at a parijh ? Mr. Clayton None but that in Keble ; (viz. z Keble 583.) Lord Mansfield There is nothing in the act that reftrains it to be laid in a city, market-town, or corporation : and this laying it in a parijh will not affecl the evidence. Mr. juft. Denifon expreffed himfelf in terms exaftly to the fame effect.- Mr. juft. Fojler Many trades are carried on in villages : Mod of the clotb-tr&de in Fork/hire, is carried on in the villages. Mr. Clayton offered another objection, viz. That it was not averred that he did not then exercife the trade, (namely, at the time of making the act.) But the court (without any hefitation) over-ruled this objection. So that, (both objections being over-ruled,) the rule to ftiew caufe why the information fhould not be quaftied, was difcharged. Shall be within the age of one and twenty years'] See page 63. feci. 43. It By the com- feems clearly agreed, that by the common law infants, or perfons under mon law . P er - the age of twenty-one years, cannot bind themfelves apprentices, in fuch fons un < 3 f 2I ° • • 1 1 • d n_- c n- cannot bind manner as to intitle their mailers to an action or covenant, or other acu- themfelves ap- on, for departing their fervice, or other breaches of their indentures j prentices, which makes it neceffary, according to the ufual practice, to get fome of " Co 89. b. their friends to be bound for the faithful difcharge of their offices, accord- 2 Inft - 379» iDg to the terms agreed on. [And therefore it became neceffary to make | Leon 5, the provifion in feci. 42. of the act 5 Eliz. viz. that infants (hall be bound Fared. 15.' by their own covenants. But this feems to be underftood only where they are compelled to be bound by the means prefcribed by this ftatute ; as ap- pears by the following cafe.] Covenant againll an apprentice for departing from his fervice without A covenant licence, within the time of his apprenticefhip. The defendant pleaded, or obligation That at the time of the making the indenture, he was within age: and ° fa " infant thereupon it was demurred : and it was argued at the bar, that this inden- premkefhiD ture fhould bind the infant, becaufe it was for his advantage to be bound fhall not bind apprentice, to be inftructed in a trade ; he is alio compellable by the fta- bim. tute of quinto Elizabeths Regina, to be bound out an apprentice: but all ^ ro Car. 179. the court refolved, That although an infant may voluntarily bind himfelf Gj ']. » , '" apprentice; and if he continue apprentice for feven years, he may have Fletcher." the benefit to ufe his trade : yet neither at the common law, nor by any words of the ftatute of quinto Elizabeth*, a covenant or obligation of an infant for his apprenticefhip fhall bind him. But if he mifbehave himfelf, the mafter may correct him in his fervice, or complain to a juftice of peace, to have him punifhed, according to the ftatute : but no remedy lieth againft an infant upon fuch covenant ; and therefore it was adjudged for the defendant. Covenant on an indenture of apprenticefhip, wherein the plaintiff If his father covenanted with the father and fon (the apprentice), and they on the or other per- other fide covenanted with him (the plaintiff), and this a&ion was fon doth c0 " brought jointly againft the father and the fon ■> for that the fon had cove- ap n "nt[ce ™ nanted faithfully to account at his mafter's (the plaintiff's) requeft, for f ucn covenant all fuch of his mafter's (the plaintiff's) goods as fhould come into his fhall bind the hands •, and the breach. affigned was, that the defendant (the fon) hath not father or fuch accounted, °; h , er P er,on « ' u the appien- 88 Apprentices, tice behke- accounted, &V. Upon non infregerttnt conventionem pleaded, the plaintiff wife bound, had a verdict ; and now it was moved in arreft of judgment, (i.) That Myj ' 9 °' c ' ie declaration was ill, becaufe the plaintiff did not let forth any requejl Geo. i. made to the fon to account, which he ought to have done, that the de- Whitley v. fendant might have an opportunity to traverfe it. Befides, this being a Loftus. joint action againft the father and the fon, and the breach afiigned only againft the fon, cannot maintain this judgment. Neither ought the action to be brought againft the father ■, for he did not covenant, that his fon fhould truly account, &c. he only covenanted for himfelf feparately, to pay the money which he was to give to the plaintiff for taking the fon apprentice ; and the claufe in the latter end of thefe articles is in the (an- gular number, [viz.) That each of them (the father and fon) binds him- ielf for the true performance thereof; fo that the father cannot properly be faid to be bound for his fon, but only for himfelf. It was argued on the other fide, that this was a covenant entered into by the mailer (the plaintiff) on one part, and by the fon with the confent of his father on the binding part, but by both father and fon as to al! other purpofes •, for tho' the fon is only bound apprentice, yet they both covenant for the true performance of all covenants, 'ifc. the words in the clofe of the articles being, {viz.) That each of them binds himfelf, &c. for the true performance of all the covenants and agreements therein mentioned. And even from the nature of thefe covenants, the father is always bound for the fon-, for otherwife m afters could not rely on the co- A'enants of their fons, who are commonly under age, and fo by law not capable to confider what covenants to make ; and confequently in this cafe the father (hall be taken to covenant for the performance of his fon's part as well as his own. The court was of opinion, that the very end of binding the father was to anfwer the wrong which might be done by the fon to his mafter, therefore he (the father) mu ft be obliged for his fon's true performance of the articles -, 'tis true, at the end of the articles the covenant is in the fingular number, (viz.) That each of them did bind himfelf-, and it mud be fo where the fon is bound to perform the thing for which the covenant was made ; and this claufe is ufually inferted, that the covenants may be taken diftributively, (viz.) That each of the cove- nanters fhould perform his part ; and this makes the covenant of the fon bind the father, who covenanted for him as well as for himfelf. So the plaintiff had his judgment. Covenant be- Jerrifon was a fervant to Sir Paul Jenkinfon in Waltham ; afterwards lie tween the left his fervice, and was put out by his mafter Sir Paul Jenkinfon, to a I " al * era " a barber in Cbejlerfidi}, who was to teach him to (have and make periwigs, the fervant"' ^ or wn ^ cri he was to 'have 5/. from Sir Paul: Jerrifon continued a year in not being this employment, according to covenants between Sir Paul and the bar- party, makes ber, to which Jerrifon was no party; and the court adjudged that this did no apprentice- not m2 ^Q a f c ttlement at Cheflerfield, becaufe it was no fervice ; and that z Salt 41S t ' ie k^ 7 e ' T '/ 0>J was thereby no moxe than a boarder there for his educa- Tr in. 9 Will, tion, which is no fervice to make a Settlement. 3. The cale of Chefter- Stilt- £eld. ©tilt. 5 Eliz. c. 5. [A. D. 1562. intituled,] " An act touching politick Stat. 5 Eliz. constitutions for the maintenance of the navy." c. 5. SeS. 12. " Be it alfo enacted by the authority aforefaid, that from Owners of henceforth it fhall be lawful to all and every owner 2nd owners of fhips or fhips, fifhers veffels ; and to every houfholder, ufing and exercifing the trade of the on the fea, feas by fifhing, or otherwife, and to every gunner or gunners, commonly |" nner . 5 * ai called cannoneers, and to every fhipwright, to take and keep one or more m '^T^ e "l apprentice or apprentices to be brought up in the faid trade or trades, prentices, every of the fame apprentice or apprentices to be to them bound for ten years or under: (2) And every apprentice fo taken, being above kven years of age, fhall be by the fame covenants bound, ordered, and ufed to all intents, according to the cuftom of the city of London ■, fo that the fame covenant or bond of apprenticefhip be made by writing indented, and inrolled in the town where the fame apprentice fhall be then inhabit- ing, if it be a town corporate ; and if the town be not incorporate, then to be inrolled in the next town incorporate to the habitation of every fuch apprentice : (3) And that the officers of every fuch town corporate, fhall take for every fuch inrolment not above twelve pence ; any law, ftatute, or other matter whatfoever to the contrary notwithstanding." @)tat. 43 Eliz. cap. 2. [A. D. 1601.] feci. 5. " And be it further 4? ^Hz. c. 2. enacted, that it fhall be lawful for the faid churchwardens and overfeers, Binding of or the greater part of them, by the affent of any two juftices of the poor children peace aforefaid, to bind any fuch children, (whofe parents fhall not a PP tentlces - be thought able to keep and maintain them,) to be apprentices, where they fhall fee convenient, till fuch man-child fhall come to the age of four and twenty years, and fuch woman-child to the age of one and twenty years, or the time of her marriage ; the fame to be as effectual to all pur- pofes, as if fuch child were of full age, and by indenture of covenant bound him or herfelf." @>tilt 1 Jac. 1. cap. 17. [A. D. 1604.] fetl. 3. " No perfon or per- , j ac . 1. fons fhall make, or caufe to be made any felt or hat, of or with any wool c. 17. or other ft tiff whatfoever, unlefs he or they fhall have firft ferved as ap- telt makers prentices in the forefaid trade or art of felt-makinp-, during- the fpace of t0 hav f n0 ,- 1 1 rL • 1 n 11 1 • r 1 • 1 ,- • • more than two leven years at the leaft ; neither fhall they retain or fet to work in the laid apprentices. art any other perfon and perfons than journeymen, that have already ferved in that art, and apprentices lawfully bound in the faid trade or art, nor above the number of two apprentices at one time, nor thole for any lefs term than feven years •, upon pain to forfeit five pound for every month that he fhall continue offending contrary to the true meaning of this act, and to be recovered to the ufes and in manner aforefaid. Seel. 5. " Provided always, that nothing in this act, or in the faid former act contained, fhall extend to charge any perfon or perfons law- fully exercifing the faid art, with any pain or forfeiture, for fetting or ufing his or their own natural fon or fons to the making or working of Vol, I. N° IV. N hats 90 SCppKttttog. hats or felts in his or their own houfe or houfes, fo as every fuch fon or fons be bound by indenture of apprenticehood for the term of feven years at the leaft, which term lhall not be to expire before he fhall be of the full age of two and twenty years •, any thing aforefaid to the contrary not- withftanding. 7 Jac. i.e. 3. §>tat 7 Jac. 1. c. 3. [J. D. 1609. intituled,'] " An aft for the conti- nuing and better maintenance of huibandry and other manual occupati- ons, by the true imployment of monies given and to be given for the binding out of apprentices." How money " Forafmuch as the true labour and exercife of hufbandry, and the given for the bringing up of apprentices of both fexes in trades and manual cccupa- poor children t ' ons ' are dungs very profitable in the commonwealth, and acceptable to occupati- and pleafing unto Almighty God, there being already great fums of mo- ons, fhall be ney freely given, and more in time to come like to be given by divers beilowed. well-diipoied perfons, unto the corporations of divers cities, boroughs, towns corporate, and unto divers perfons in fundry towns not corporate, and pariihes within this realm of England, to be continually imployed in the binding out as apprentices, of a great number of the pooreft fort of children unto needful trades and occupations •, the experience whereof hath brought forth very great profit and commodity unto thofe cities^ towns and pariihes where any parts of the laid monies have been fo given and imployed, and fo no doubt there will conftantly enfue thereof the exceed- ing good of the commonwealth in general: (2) And for that the moft part of the poorer fort of children, would (as heretofore) without fuch good care and affiftance be brought up in idlenefs, and difordered kinds of life, to their utter overthrow, and to the great prejudice of the whole commonwealth : (3) And for that it is very likely that many other well-dif- pofed people will be the better encouraged, willingly to follow the like good example in bellowing of good fums of monies to the fame good and godly purpofes, if it might be fo provided, that fuch monies as have been already fo freely given, or as hereafter fhall be given for the bind- ing out of fuch poor children apprentices, may continually hereafter re- main, and be wholly imployed accordingly. Kow money Seel. 2. " Be it therefore enacted by the king's moft excellent majefty, given for the the lords fpiritual and temporal, and the commons, in this prefent parlia- binding out of ment affembled, and by the authority of the fame, that all fums of mo- appremices of j- freely given at any time within three years laft paft, or hereafter poor children ', / b _ * r . ' . ,, K , , r , ihall be em- to De given by any perion or perlons, to be continually imployed for the ployed, and binding out of apprentices, as aforefaid, fhall for ever from henceforth by whom. continue, and be from time to time ufed and employed to fuch ufes, in- tents and purpofes only, and by fuch perfons, and in fuch manner and form as fhall be hereafter by this prefent aft fpecified and declared, ex- cept the fame have been, or lhall be otherwife ordered or difpofed by the givers thereof-, that is to fay, (2) That all corporations of all cities, bo- roughs and towns corporate, by what name or names foever they fhall be known known or incorporated, and in towns and parifhes not incorporate, the parfon or vicar or' every fuch town or parifh, together with the cbnftable or conftables, the churchwarden or churchwardens, collectors, and the oyerfeers for the poor of the time being, or the moft part of them, where any fuch fum or lums of money are already given, or (hall be hereafter given to be fo imployed, fhall from time to time within the faid feveral cities, boroughs, towns and parifhes refpectively, have the nomination and placing of fuch apprentices, and the guiding and imployment of all fuch monies as have been heretofore fo given, or which hereafter fhall be given, to and for the continual binding forth of fuch and fo many apprentices, and in fuch fort as is already, or fhall hereafter be fo given and appointed, either by the laft will and teftament, or by any writing or writings under the hands and feals of any perfon or perfons which hath already, or here- after fhall fo give any fum or fums of monies unto the good and godly purpofes and intents aforefaid : (2) and if the corporation of any fuch T ''f f ° rfe,turc • • 1 l .. i_ l r .. ofthofe, who cities, boroughs or towns corporate, by what name or names loever they ofduty ou ht fhall be called or incorporated, or any the perfon or perfons in the other and yet refofe' towns and parifhes above-mentioned, appointed by this act to have con- to employ the tinually the guiding and imployment of fuch fums of monies fo already money, given, or hereafter to be given to the intents and purpofes aforefaid, fhall at any time hereafter wilfully forbear or refufe, according to their duties in this behalf, to imploy fuch fums of money fo given, or to be given, as aforefaid, for the binding out of fuch apprentices, by means of which wilful forbearance or refuting, the faid money fhall not be imployed ac- cordingly •, that then they and every of them, fo offending contrary to this acl:, fhall forfeit for every fuch offence, the fum of three pounds fixfhillings and eight pence lawful Englijh money ; the one half whereof to be given to the poor of the town or parifh where fuch fault or offence fhall be done or committed •, the other moiety to the party that fhall fue for the fame ; (4) and that every man that will, may and fhall be admitted to fue for the fame moiety •, for the ufe and benefit of the faid poor, and fhall be alio admitted to fue for the forfeiture of the other moiety in any of the king's majelty's courts of record, to his own benefit and beho .f, by action of debt, bill, plaint or information, wherein no protection, wager of law or effoin fhall he admitted or allowed. Sett. 3. And for that all monies fo given may the better continue to and The party for the purpofes aforefaid, Be it enacted by the authority aforefaid, that which receir- the matter, miftrefs or dame of every fuch apprentice or apprentices that eth the money, fnall receive any fuch fum or fums of money, as aforefaid, fhall become . ' , e bo bound with one or two fufficient fureties, by bond or obligation in double t0 reray , t- the fum which they and every of them fhall fo receive with fuch apprentice or apprentices, as aforefaid, unto the corporation of any fuch city or town corporate, by what name or names foever they fhall be called or incorpo- rated, or to fuch perfon or perfons in the other towns and parifhes not incorporated, appointed by this act to have continually the guiding and imployment of all fuch fums of money fo already given, or hereafter to be given to the intents and purpofes aforefaid, reflectively ; upon condition N 2 to 92 Apprentices. to repay fuch fum or fums of money, as he or me mall receive withr fuch apprentice or apprentices, at the end of feven years next enfuing the date of the faid obligation, or within three months next after the end of the faid feven years : (2) and if fuch apprentice mail happen to die within the faid fpace of feven years, then within one year after his or her faid death •, (3) and if the mafter, miflrefs, or dame to whom any fuch apprentice or apprentices mail be bound, mail happen to die within the faid fpace of feven years, then within one year next after his or her death •, (4) fo as the faid monies may be again imployed for placing fuch apprentice with fome other perfon of the fame trade, to ferve out the refidue of the years of his or her former apprenticefhip, by the difcretion of the faid per- fons trufted, as aforefaid. Within what Seft. 4. " And be it farther enacted by the authority aforefaid, that every time the mo- f ucn fum or fums of money fo given, or to be given in mannerandform, and ney (lull be t o and for the good ufes and intents aforefaid, mall always be put forth and pu imployed by the parties aforefaid, that by this aft mail have the difpofing and employment thereof, within three months at the furtheft, after fuch money (hall come to the hands of the faid parties, that by the intent and . ., r true meaning of this aft ought to difpofe and employ the fame -, (2) and if there be not fit ac ^" ucn times there mall not be found fit and apt perfons to be bound out perfons in that apprentices, as aforefaid, within the faid cities, towns and parifhes where pari(h to be f uc h fums of money are or hereafter mail be given to be imployed, as afore apprentices. j s tjeclareti ; then fuch of the pooreft children of any of the parifhes next adjoining, mail be bound apprentices in manner, as aforefaid, as by the care and good difcretions of the parties, whichby thisaft have the difpofing and imployment of the faid fums of money in the cities, towns and parifhes where it was firft given to be imployed, mall be thought fit and convenient, taking fuch bonds and obligations of the perfons that fhall receive the faid fums of money fo put forth, and with fuch fureties, and upon fuch con- ditions, as is above-mentioned and declared. What fort of ^^ ,. <.<. Provided always, and be it enafted by the authority aforefaid, perfons fta ^^ c j 10 j ce f rom t ; me t0 t j me De ma d e f t h e pooreft forts of children of every fuch city, town and parifh where fuch monies mail be fo given, and whole parents are lead able to relieve them : (2) and that no fuch apprentice fhall be above the age of fifteen years when he or fhe fhall be fo firft bound out an apprentice." Account fhall Seil. 6. " And for the better execution of this aft, be it further enafted bemadeoftheby the authority aforefaid, that all and every perfon and perfons appointed money im- • by tn i s a ft, to have the imploying and difpofing of any fum or fums of ployed. money fo given or to be given, as aforefaid, within any town or parifh not corporate, fhall after the end of this prefent feffion of parliament, once every year in the Eafter-week, or within one month next after Eqfier-day, make a true and perfeft account before four, three, or twojuftices of the peace dwell- ing in or next to every the faid towns or parifhes, of all fuch fum and fums of money as they or any of them have imployed in binding of apprentices, by virtue of this aftj and of all bonds and obligations taken for the payment thereof-, apprentices. 93 thereof; and alfo of all fuch fums of money as then mail happen to be remaining in their hands not imployed: (2) and alio fhall at the making and yielding up of the laid account, or within ten days then next following, yield and deliver up unto fuch as fhall happen next to fucceed them, or then to be in the faid rooms and places, all fuch obligations and bonds as by them or any of them have been before that time taken to the ufes afore- faid ; as alfo all fums of money remaining in their or any of their hands, to be employed, as aforefaid, and not employed at the time of the yielding up of the faid account." Se8. 7. " And further be it enacted by the authority aforefaid, that if A remedy any of the parties appointed and trufted by this act to have the difpofing uherean y and employment of any of the faid fums of money fo given or to be given, {j^breakthe as aforefaid, fhall in any point or degree break the truft and confidence in tr uit, or com- them in this behalf repofed, or fhall commit any other mifdemeanor or of- mit any of- fence in mifimploying of the faid fums of money, or any part thereof, or in lence - doing any other acl or adts contrary to their duties, and the true intent and meaning of this act, for which there is not by this act any penalty given or appointed, then it fhall and may be lawful for any perfon or perfons what- foever, in the behalf of the poor of fuch city, borough or parifh, to exhibit his petition to the lord chancellor, or lord keeper of the great feal of Eng- land, for the time being, touching the fame : which lord chancellor, or lord keeper of the great feal of England, for the time being, fhall thereupon have full power and authority to award a commiffion out of the high court of Chancery, under the great feal of England, to fuch and fo many perfons as his lordfhip fhall think meet, to enquire hear and determine the faid offences, and every of them : (2) and if the faid commiffioners, or the moft part of them fhall find, that any fum or fums of money fo given or to be given, are loft, impaired, wafted or diminifhed, then they or the molt part of them fhall likewife have power, by virtue of this acl: and of their faid commiffion, to rate, raife and collect the laid fum of money fo loft, impaired, wafted or diminifhed, upon fuch perfon or perfons in places not incorporate, as by this acl are appointed to have the guiding and ordering of the faid monies, if they or any of them have failed in their faid duties in that behalf, or otherwife upon the able inhabitants of fuch city, town or parifh where the fame fhall fo happen, as in the difcretion of the faid com- miffioners, or the greateft part of them fhall be thought fitteft, and to re- turn the faid commiffion, and the manner of the execution thereof, into the faid high court of Chancery within three months next after the execution thereof: (3J and if any perfon or perfons fhall find himfelf grieved by any A remedy for thing done by the faid commiffioners, then upon complaint thereof made in any party the high court of chancery, the faid lord chancellor or lord keeper for the g nevea b >' time being, fhall have full power and authority to order and decree the lame, or ^ c as to his lordfhip fhall be thought moft fit to ftand with equity and good confcience. @>tat* 21 Jac. 1. c. 28. [A. D. 1623.] " And be it enact d, that all *' J a «- »* perfons to whom the overieers of the poor ilull, according 43 Eliz. bind Cl 3 any 3fppmttt'ces» any children apprentices, may take and receive, and keep them as ap- prentices ; any former ftatute to the contrary notwithftanding." ijCar.i.c.^ ©tflt. 3 Car. i. c. 4. [A.D. 1627.] " And be it enafted, that all per- fons, to whom the overfeers of the poor fhall, according to 43 Eliz. bind any children apprentices, may take and receive, and keep them as apprenti- ces ; and alio that the churchwardens and overfeers of the poor, mentioned in the faid act made in the faid 43d year, may, by and with the confent of two or more juftices of the peace, whereof one to be of the quorum, within their refpeftive limits, wherein fhall be more juftices than one; and where no more fhall be than one, with the affent of that one juftice of the peace, fet up, ufe and occupy any trade, myftery, or occupation, only for the letting on work, and better relief of the poor of the parifh, town or place of, or within which they fhall be churchwardens or overfeers of the poor ; any former ftatute to the contrary notwithftanding." g&gWil. 3. ©tat 8 £5? 9 Will. 3. c. 30. [A.D. 1697. intituled,'] " An aft for c 30. fupplying fome defects in the laws, for the relief of the poor of this king- dom." Sett. 5. " And whereas by an aft made in the three and fortieth year /3 EHz. c. 2. of the reign of queen Elizabeth, intituled, An aSt for the relief of the poor, it is amongft other things enafted, that it fhall be lawful for the churchwardens and overfeers of the poor of any parifh, or the greater part of them, by the affent of two juftices of the peace, whereof one to be of the quorum, to bind poor children apprentices, where they fhall fee conve- nient •, but there being doubts whether the perfons to whom fuch children are to be bound, are compellable to receive fuch children as apprentices, Poor children that law hath failed of its due execution : Be it therefore enafted and de- boundappren- clared by the authority aforefaid, that where any poor children fhall be tices purfuant appointed to be bound apprentices, purfuant to the faid aft, the perfon or to the aft perfons, to whom they are fo appointed to be bound, fhall receive and 4 u ? r , 17 " C k„!' provide for them, according- to the indenture figned and confirmed by the thole to whom r. ,*,' i ir 11 c 1 ■ •<- .'i -' • they are two juftices or the peace, and alio execute the other parts or the faid in- bound, topro- dentures-, and if he or fhe fhall refufe fo to do, oath being thereof made vide for them j^ one f t \ is churchwardens, or overfeers of the poor, before any two of according^ the j u ft; ces f p eace f or tna t county, liberty, or riding, he or fhe fhall for fiened by the every fuch offence forfeit the fum of ten pounds, to be levied by diftrefs juftices, &c. and fale of the goods of any fuch offender, by warrant under the hands Penalty on of- anc [ f ea i s f t he faid juftices, the fame to be applied to the ufe of the poor fender. Q f ^^ p^fo or pi ace where fuch offence was committed ; faving always \v"o°mpoor t0 the perfon, to whom any poor child fhall be appointed to be bound an ciuldren are apprentice, as aforefaid, if he or fhe fhall think themfelves aggrieved bound, being thereby, his or her appeal to the next general or quarter feffions of the aggrieved, p eace f or that county or riding, whofe order therein fhall be final, and may appeal to ' 1 j 1, nart ; e<; » thejuiUces. conclude an parties. 1 Mi n champ Sfppjen frees. 95 Miuchamp being a merchant at Mile-end, two juftices bound a poor girl juflices at fef. apprentice to him ; he appealed to the fefiions, and the order was dif- fions are pro- charged ; becaufe they thought it unfit to compel a 'merchant to take an P er ' 3 ? (i ^' apprentice ; and now this court on confideration of the matter, confirmed obhle" ver^ the order of fefiions ; becaufe the late acl having made perfons compellable f on t0 ta |. e an to take apprentices, and given an appeal to the fefiions, it was in the dif- apprentice, or cretion of the juitices at fefiions to determine, whether it was or was not no '- fitting to put an apprentice upon any one ; and therefore the court would ^ rj * " 49^- not difturb what the fefiions had done, but confirmed the order. 3> B_ r An order was made by juftices for Wagftaff to take a poor child ap- Minchamp's prentice, and iign an indenture, by which, inter aha, he covenants to cafe - give the child two fuits of cloaths, 0c. This cafe is not within the aft, ^ n ° { J^ l ~ becaufe it fays the children of poor perfons ; but this order fays, it was a or^/huil-'an- poor child, and yet it may have parents able to maintain it. Secondly, the dry, are com- age of the child does not appear. Thirdly, Mr. Wagjlaff is fuch a per- pellableonly fon as the juftices cannot oblige to take a poor child, for it does not ap- t0 take a P' pear that Mr. Wagftaff 'is a houlekeeper, fo that it may be he was a lodger, ^Seff'car. and though the act fays, as the overfeers fhould think fit, yet that muft 4 g. have a reafonable conftruclion ; the act fays, they ftiall put them appren- Mich. 12 An. tices as they think fit; that does not extend to the terms, but only to' rh ?Q. uccn what fort of children, but the terms are left to the law ; here is a cove- n g ^ nlt '"-' nant that he fhall at the end of the term give him two fuits of cloaths •, they might as well have ordered that he lhould have given him a hun- dred pounds. It appears that Mr. Wagftaff is a gentleman, an attorney, 3 Keb. 3 Mod. 169. At law it is a queftion upon the ftatute 43 Eliz. c. 2. whether a perfon could be compelled to take an apprentice 'till 8 Ann. c. 9. 9 Ann. c. 21. but ftill you cannot compel every perfon, but only ordinary trades, or men of hufbandry. Chief juftice : There is no occa- fion to defcribe the child farther than the aft requires ; but the providing two fuits of cloaths has no relation to his being apprentice. Mr. Forte- fcue : It is proper to have indentures •, and this is a covenant very proper, becaufe 8 & 9 Will. c. 30. gives a power to the juftices to appoint what terms they think fit ; for the perfon is to receive the child according to fuch indentures as fhall be figned by the juftices, fo that the indenture is to be fettled by the juftices. Chief juftice: At that rate the juftices may make a covenant to give him a houfe, and allow him twenty pounds per annum ; the indentures are in point of time, and other things properly re- lating to an apprentice •, they may appoint him necefiaries during his ap- prenticefhip. The order quafhed. ©tilt. 2 G? 3 Ann. c. 6. [A. D. 1703. intituled,] " An act for the in- 2 & 3 Ana, creafe of feamen, and better encouragement of navigation, and fecurity c. 6. of the coal trade." " Whereas the giving due encouragement to fuch of the youth of this kingdom, as fhall voluntarily betake themfelves to the fea fervice, and prac- tice of navigation, and obliging others, who, by reafon of their own or their. 96 ^ppjetttt'cejg. their parents poverty, are deftitute of imployment, or any lawful means whereby to maintain themfelves, may greatly tend to the increafe of able and experienced mariners and feamen, for the fervice of her majefty's royal navy, and for the carrying on the trade and commerce of this king- dom : Be it therefore enacted by the queen's mod excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, that from and after the five and twentieth day of March in the PariQi boys year of our Lord one thoufand feven hundred and four, it fhall and may- may be put be lawful to and for two or more juftices of the peace, in their feveral and outappren- re fp e c~tive counties, ridings, or divifions, as alio to and for all mayors, f« S fn°ice e Mermen, bailiffs, and other chief officers and magistrates of any city, ' borough, or town corporate, within her majefty's kingdom of England, dominion of Wales, and town of Berwick upon Tweed, and likewife to and for the churchwardens and overfeers of the poor (for the time being) of the feveral and refpedlive parifhes within the places aforefaid, by and with the confent and approbation of fuch juftices of the peace, mayors, aldermen, bailiffs, or other the chief officers or magiftrates aforefaid, to bind and put out any boy or boys, who is, are, or fhall be of the age of ten years, or upwards, or who is, are, or fhall be chargeable, or whofe parents are or fhall become chargeable to the refpedtive parifh or parifhes wherein they inhabit, or who fhall beg for alms, to be apprentice and ap- prentices to the fea fervice, to any of her majefty's fubjecls, being maf- ters or owners of any fhip or veffel ufed in fea fervice, and belonging to to mailers of any port or ports within the kingdom of England, dominion of Wales, or lhips, &c. town of Berwick upon Tweed aforefaid, for fo long time, and until fuch boys fhall reflectively attain or come to the age of one and twenty years ; and fuch binding out any fuch apprentice fhall be as effectual in the law, to all intents and purpofes, as if fuch boy were of full age, and by in- denture had bound himfelf an apprentice : And to the end that the time Boy's age to of the continuance of the fervice of fuch apprentice or apprentices may be inferted in tne m ore plainly and certainly appear, the age of every fuch boy, fo to his indenture, ^ bound apprentice, fhall be mentioned and inferted in his indentures, being taken truly from a copy of the entry in the regifter book, wherein the time of his being baptized is or fhall be entred (where the fame can or may be had) which copy fhall be given and attefted by the minifter, vicar, or curate of fuch parifh or parifhes, wherein fuch boy's baptifm fhall be regiftred, without fee or reward, and may be writ upon paper or parchment without any ftamp or mark ; and where no fuch entry of fuch boy's being baptized can be found, two or more of fuch juftices of the peace, and fuch mayors, aldermen, bailiffs, or other chief officers fhall, as fully as they can, inform themfelves of fuch boy's age, and from fuch information fhall infert the fame in the faid indentures ; and the age of fuch boy fo inferted and mentioned in the faid indentures (in relation to the continuance of his fervice) fhall be taken to be his true age, without any further proof, Se£I. ftppjentfees. 97 Seel. 2. " And be it further enacted by the authority aforefaid, that the Cl.urcUar- churchwardens andoverfeers of the poor, for the time being, of the feve- dens to pay ral and refpective parifhes, from whence any fuch boy fhall be bound ap- * )ovv ; n 5 os ' for prentice to the faid fervice, as aforefaid, (hall pay down to fuch mafter, to f ° r y S c ]i whom the boy is bound, at the time of his binding, the fum of fifty fliil- i ngj & c . an d lings, to provide neceffary clothing and bedding for fea fervice, for fuch be allowed boy, and the charges by this act appointed fhall be allowed to the faid the fame m churchwardens and overfeers on their accounts. ' cir ' ccoullts - Seel. 5. " And be it further enacted, that the churchwardens and over- Apprentices fcers of the parilh, out of which any fuch boy fhall be bound an appren- indentures to tice, fhall fend the faid indentures to the collector of her majefty's cuf- be {ert t0 the toms, refiding at or belonging to any port or ports within this kingdom c ° ll€ " or at of England, dominion of Wales, and town of Berwick upon Tweed, where- ^hereunto hi3 unto fuch mafters or owners of {hips or veffels, to whom fuch apprentice mafter be- or apprentices fhall be bound, do or may belong ; who fhall, in a book or longs books to be by him kept for that purpofe, fairly enter, from time to time, Collector to all and every indenture and indentures, whereby fuch apprentice and ap- "^ ^* m prentices ihall be bound, and which fhall be fo lent unto him, and fhall make an indorfement upon the faid indentures of the regiftry thereof, fub- fcribed by the faid collector, without taking any fee or other reward for the fame : And every fuch collector, neglecting or refufing to enter fuch Penalty on indentures, and indorfe the fame, or making falfe entries, fhall forfeit the collector neg- fum of five pounds for the ufe of the poor of the parilh, from whence leflin S- fuch boy was bound apprentice : And all and every fuch collector or col- lectors, or his or their lawful deputy or deputies, of the faid feveral and refpective ports, fhall from time to time tranfmit certificates in writing, under his or their hands, to the lord high admiral of England, or to the commiffioners of the admiralty for the time being, containing the names and ages of every fuch apprentice reflectively, and to what fhip he belongs •, and upon receipt of fuch certificates, protections fhall, from Lord admiral t'me to time, be made and given for fuch apprentices, till they attain to grant pro- their feveral and refpective ages of eighteen years, without any fee or re- t . ectl0ns *° r ward to betaken for the fame-, which certificates, fo as aforefaid to be ^ *?J^,?" given, are not required to be writ upon ftampt paper or parchment". Seel. 6. " And be it further enacted by the authority aforefaid, that all and every perfon and perfons, to whom any poor parilh boy hath been, or hereafter fhall be, put apprentice, according to the ftatute made in the forty-third year of the reign of qreen Elizabeth, may, with the confent 45 Eliz. c. 2. and approbation of two or more juftices of the peace of the fame county, and dwelling in or near the fame parilh where fuch poor boy was bound apprentice, or by and with the content and approbation of any mayor, alderman, bailiff, or other chief officer or magistrate of any city, borough, or town corporate, where fuch poor boy was bound apprentice, at the requeft of the mafter or miftrefs, then living, of fuch apprentices, or his or their executors, adminiftrators, or affigns, by indenture, affign and turn over fuch poor boy apprentice to any mafter or owner of any fuch fhip Parilh boys or vefTel, uling the fea fervice as aforefaid, for and during the then remain- bound appren- VOL.I. N? V, O inCT tice S ,maybe a 9 8 Slppjenrtces:. f. 1 6. Matters of ihips, Sec. obliged to take Inch ap- prentices. turned over to ' n g time of his apprenticefhip •, which affignment and affignments of fuch thefeafervice. apprentices, fo as aforefaid, fhall be, and are hereby declared to be good Indentures of and effectual in the law: All which indentures of affignment are hereby aflignment to directed to be regiftred, and certificates thereof given and tranfmitted by aI reg !'Y ed * f ucn collector, at the faid feveral ports where fuch parifh apprentices fhall 4Anns6 /io ^ e ^° a ^g nc ^ over, and bound to the fea lervice, in manner and form afore- faid ; and upon receipt of fuch certificates, protections fhall from time to time be made and given for fuch apprentices (fo to be affigned over, as afore- faid) till they fhall attain their feveral and refpective ages of eighteen years, without fee or reward for the fame, in like manner as aforefaid. Sett. 8. " And for the better providing fuch apprentices with matters for the faid lervice : Be it further enacted by the authority aforefaid, that all and every of her majefty's fubjects, being matters or owners of any fhip or fhips, veffel or veffels, uied in the fea fervice, as aforefaid, of the burthen of thirty tun to the burthen of fifty tun, be obliged to take one fuch apprentice, and one more for the next fifty tun, and one more for By 4 Ami. eacn anc j ever y ] iun dred tun, fuch fhip or veflel fhall exceed the burthen no matter (hall °f one hundred tun: And fuch matter or owner of any fhip or veffel, re- be bound to fufing to take fuch apprentice or apprentices, as aforefaid, fhall forfeit take a boy un- the fum of ten pounds for the ufe of the poor of the parifh from whence der 1 3 years f ucn ^y was Dounc j apprentice. a ^ e ' Ci SeEl. g. " And be it further enacted, that every matter or owner of And to give fuch fhip or fhips, veffel or veffels, fo obliged to take fuch apprentice or an account of apprentices, after his arrival into any port or ports aforefaid, and before ames, ne clears out of fuch port, fhall give an account in writing, under his hand, to the collector of fuch port to which he belongs, containing the names and number of fuch apprentices as are then remaining in his fervice. Seft. io. " And for the better conveying and conducting all and every fuch apprentice and apprentices, fo to be bound as aforefaid, to his and their refpective matter and matters : Be it further enacted by the autho- rity aforefaid, that all and every fuch apprentice and apprentices fhall, from time to time, be feverally and refpectively fent, conducted, and con- veyed to the feveral and refpective ports, to which his or their matter fhall refpectively belong, by the churchwardens and overfeers of the poor, or their agents, of the parifh from whence fuch apprentice is bound, and the charges thereof to be in the fame manner, as is provided by an act of par- liament made in the eleventh and twelfth years of the reign of his faid late majefty king William the third, intituled, An a£I for the more effectual pu- nifhment of vagrants, and fending them whither by law they ought to be fent. Seff. ii. " And it is hereby directed, that the counterpart of all and parts or their cver y f ucn indentures, to be executed by the feveral and refpective matters be rxanfmltted °^ a ^ ^ uc ^ apprentices, fhall be fealed and executed in the prefence of, to the church- and attefted by, the collector at the port aforefaid (where fuch appren- wardens, &c. tices fhall be bound or affigned over) and the conftable or other officer, who fhall bring or convey fuch apprentices to the faid feveral, and refpec- tive matters ; which conftables or officers laft mentioned fhall tranfmit and 3 convey &c How appren tices (hall be conveyed to the ports to which their matters be- long. I I & I 2 W. 3. c 18. The counter- convey the counterparts of fuch indentures to the churchwardens andover- feers of the feveral parifhes from whence fuch apprentices fhall be bound, by the fame ways and means as fuch apprentice or apprentices were con- veyed to the faid feveral and refpective ports. Sett. 12. " And be it further enabled by the authority aforefaid, that Jurtices to de- two or more juftices of the peace of the refpective counties, and dwelling termine coin- in or near any of the ports aforefaid, and ail mayors, aldermen, bailiffs, pts be ~ and other chief officers and magistrates of any city, borough, or town an( i a er .' J corporate, in or near adjoining to fuch port or ports, to which fuch fhip tices. or veffel fhall at any time arrive, fhall have full power and authority, and are hereby authorized and impowered to inquire into, and examine, hear, and determine all complaints of hard or ill ufage from the feveral and re- fpective matters, to fuch their apprentice and apprentices, fo to be bound or affigned over, as aforefaid, and alfo of all fuch as already have, or who fhall at any time hereafter voluntarily put themfelves apprentices to the fea fervice, as aforefaid, and to make fuch orders therein, as now they are enabled by law to do in other cafes between matters and apprentices. Sett. 13. " And be it further enacted by the authority aforefaid, that Colleftor to every fuch collector in every port or ports aforefaid, fhall in their feveral keep a rcgi- and refpective ftations, keep an exact regifter, containing as well the fter > & c number and burthen of all fuch fhips and veffels, together with the maf- ters or owners names, as alfo the names of fuch apprentices in each fhip and veffel belonging to their refpective ports, and from what parifhes and places fuch apprentices were refpectively lent •, and that fuch collector fhall an <3 tranfmit a tranfmit true copies of fuch reonfter, figned by them, to the quarter feffi- C0 Py thereof _ c l . •• 1 l ° J -n_ 1 to the quarter ons, or to fuch cities, boroughs, towns corporate, parifhes, or places, f e [j- 10ns &c when and fo often as they fhall be reafonably required fo to do; for gratis.' which copy or copies, fo to be tranfmitred as aforefaid, no fee or reward fhall be taken : And that every fuch collector refuting or wilfully neglect- ing to tranfmit fuch copies, as aforefaid, fhall for every fuch refufal or neglect forfeit five pounds for the ufe of the poor of the parilh, from Penalty, whence fuch boy was bound apprentice. Sett. 14. " And be it further enacted, that every cuftom-houfe officer Officer to in- or officers, at each and every of the ports aforefaid, fhall infert, and are fert on the hereby required, from time to time, to infert at the bottom of their coc- cocquet, the quets, the number of men and boys on board the refpective fhips or vef- nuBlber <>f fels, at their going out of every fuch port, therein particularly defcri- on bo a a n rd °*. s bing the apprentices by their refpective names, ages, and the dates of their feveral indentures, for which no fee or reward fhall betaken. Sett. 15. "-And for the encourfgement of fuch as have, or fhall vo- luntarily bind themfelves apprentices to the fea fervice : Be it further en- p er fons vo- acted by the authority aforefaid, that all and every fuch perfon and perfons, luntarilybind.' who have or fhall fo voluntarily, and of his or their own accord, bind or i D g themfelves. put him or themfelves apprentice to any fuch matters or owners of any j!PPj; entlces to fhip or veffel, as aforefaid, fhall not be compelled or impreft into her ma- nor t0 bc { jetty's fea fervice, or the fea fervice of her majesty's heirs or fucceflbrs, for prefledfor and during the term of three years, to be accounted from the dates of the three years. O 2 refpective Ex P Iair -« d by lOO 4 Ann c. 19. f. .7. Indentures to be regiltred, and protecti- ons given for the faid three years. When fuch apprentices fhall be im- prefTed, maf- ters to have able feamens wages for them. Penalties and forfeitures, how to be le- vied. refpeftive indentures of fuch voluntary apprentice or apprentices •, all which indentures are hereby directed to be regiftred, and certificates there- of given and tranfmitted by fuch collector at the faid feveral ports, where fuch apprentices already have become fo bound, or that hereafter fhall fo bind themfelves, in manner and form as aforefaid ; upon receipt of which faid feveral certificates, protections fhall, from time to time, be made and' given, for the faid firft three years of their feveral refpeftive apprentice- Ihips, without either fee or reward for 'the fame. Sea. 1 7. " And whereas owners and mafters of merchant fhips are at great charge in educating and bringing up the parifh children, till they come to the age of eighteen years, and other voluntary apprentices three years, at which time they are capable to ferve in her majefty's fhips of war: Be it enafted by the authority aforefaid, when fuch apprentices (hall be impreffed, or voluntarily enter themfelves into her majefty's fervice, the faid owners or mafters of fuch apprentices, their executors, adminiftra- tors, or afligns, fhall be intitled to able feamens wages for fuch of their aprentices, as fhall upon due examination be found qualified for the fame, notwithftanding their indentures of apprenticefhip. Sea. 18. " And be it further enacted by the authority aforefaid, that all the penalties and forfeitures directed by this aft fhall, by warrant un- der the hands and feals of any two or more juftices of the peace of the fame county, city, borough, or town corporate, be levied by diftrefs and fale of the goods and chattels of the offender, which fale fhall be good in the law againft fuch offender." 4 Ann. c. 19. 2 & 3 Ann. cap. 6. No matter of {flip to take apprentice un der thirteen years old. 43 Eliz. c. 2 @)tilt. 4 Ann. c. 19. [A. D. 1705.] feS. 16. " And whereas by an aft made in the fecond year of her majefty's reign, intituled, An a a for the encreafe of feamen, and better encouragement of navigation, and the fecurity of the coal-trade, provifion is made for putting out of parifh children ap- prentices to mafters of trading fhips and veffels at the age of ten years: It is hereby enacted, that no fuch matter fhall be obliged to take any fuch apprentice under the age of thirteen years, or who fhall not appear to be fitly qualified both as to health and ftrength of body for that fervice ; and any widow of the matter of fuch fhip or veffel, or the executor or admi- nistrator of fuch matter, who fhall have been obliged to take fuch parifh- boys apprentice to them, fhall have the fame power of affigning over fuch apprentices to any other mafters of fhips or veffels, who have not their complement of apprentices required by the faid recited act, to be enter- tained by them, as is given by the faid aft to fuch perfons as have taken children apprentices, in purfuance of the ftatute made in the forty-third, year of queen Elizabeth" 8 Ann. c. 9. ®tflt. 8 Ann. cap. 9. [A. D. 1709. intituled,] " An aft for laying cer- tain duties upon candles, and certain rates upon monies to be given with clerks, and apprentices, towards raifing her majefty's fupply, for the year Sea. Seel. 32. " And be it further t^cted by the authority aforefaid, that From 1 May there (hall be, throughout the kingdom of Great Britain, raifed, collected >7 10 - 6d.for and paid to her majefty, her heirs and fucceffors, the further rates, duties ^ ver y z0 s , of and funis of money following, that is to fay, the duty, rate, or fum of a 5 ° d "j ^"^' fix pence, for every twenty Shillings, of every fum of fifty pounds or un every fum of derj and the duty, rate or fum of one (hilling, for every twenty millings, above 50 1 to of all and every fum and fums amounting to more than fifty pounds, be P a,dfor which fhall, at any time or times, from and after the firft day of May one app r .g n c t ^' e °[ thoufind feven hundred and ten, and during the term of five years, from out) f or five thence next enfuing, be given, paid, contracted or agreed for, with or years ■, made in relation to every clerk, apprentice, or fervant, which fhall be, within perpetual by the kingdom of Great Britain, put or placed to or with any mafter or 9 Ann. c. 21. miftrefs to learn any profeffion, trade, or employment, and proportionally T L Q 'be' paid by for greater or lefferfums-, which faid duties, rates, and fums fhall be the mafter. paid by the faid mafters or miftreffes refpectively. Seel. 35. " And be it further enacted by the authority aforefaid, that The full fum from and after the faid firft day of May one thoufand feven hundred and given with an ten, the full fum or fums of money received, or in any wife directly or apprentice, indirectly given, paid, agreed, or contracted for, during the term afore- fertea^inVhe faid, with or in relation to every fuch clerk, apprentice, and fervant, as indenture, &.c. aforefaid, fhall be truly inferted and written in words at length, in fome on forfeiture indenture or other writing, which fhall contain the covenants, articles, of double the contracts, or agreements, relating to the fervice of fuch clerk, appren- unu tice, or fervant, as aforefaid, and fhall bear date upon the day of the figning, fealing, or other execution of the fame ; upon pain, that every mafter or miftrefs, to or with whom, or to v/hofe life, any fum of money whatfoever fhall be given, paid, fecured, or contracted, for or in refpect of any fuch clerk, apprentice, or fervant as aforefaid, which fhall not be truly and fully lb inferted and fpecified in fome fuch indenture, or other writing, fhall, for every fuch offence, forfeit double the fum fo given, paid, fecured, or contracted for ; the one moiety of which forfeitures, fhall be to her majefty, her heirs or fucceffors, and the other moiety, with full cofts, to any perfon or perfons who fhall inform and fue for the fame, by action of debt, bill, plaint, or information, in any court of record at Wejtminfter, or in the Exchequer of Scotland, at any time after the exe- cuting, making, or figning any fuch indenture or writing, or making any fuch contract or agreement, and within one year after the time limited or appointed for the fervice of any fuch clerk, apprentice, or fervant, to or with fuch mafter or miftrefs, fhall be expired. Seel. 36. " And be it further enacted by the authority aforefaid, that j w0 new . the faid commiffioners for managing the faid duties on ftampt vellum, iUmps to be parchment and paper, fhall, before the faid firft day of May one thou- provided, &c. fand feven hundred and ten, provide two new ftamps to be ufed in pur- fuance of this act, (over and befides the ftamps heretofore requiiite, for or in refpect of fuch indenture, or other writing, by virtue of the ftatutcs in that cafe made,) the one of which new ftamps fhall denote the laid duty of fix pence in the pound, and the other of die faid new ftamps fhall denote the *°2 %wmtittJf- the faid duty of one fhilling in the po" n d -, and that all fuch indentures, or other writings, containing the ft*ns truly given, paid, agreed, or con- tracted for, as aforefaid, which lhall, within or during the faid term of five years, be entred into, executed, or figned, within the cities of Lon- don or IVejlminJler, or within the limits of the bills of mortality, fhall be brought to the head-office for flamping or marking of vellum, parchment and paper, and the duties hereby charged and payable for the funis there- in to be inferred, as aforefaid, fhall be paid to the receiver general for the time being, of the faid duties on ftampt vellum, parchment and paper ; and upon fuch payment thereof, the fame fhall be ftamped with one of the faid new ftamps, as the cafe fhall require, within one month after the refpeftive dates thereof. Indentures to Setl. 37. " And be it enafted by the authority aforefaid, that all the be brought to faid indentures, and other writings, which fhall or ought to contain the tne neaa-or- w } 10 ] e r um tru iy given, paid, agreed, or contracted for, as aforefaid, two' months which fhall, within or during the faid term of five years, be entred into, afterdate, executed, or figned, in any part of Great Britain, (not being within the limits of the faid weekly bills of mortality) fhall (at the option of the party concerned) be brought or fent, either to the head-office within the limits of the laid weekly bills, or elfe to fome of the collectors, appointed or to be appointed for her majefty's duties upon ftampt vellum, parchment and paper, who fhall refide without the limits of the faid weekly bills, in Eng- land, Wales, or the town of Berwick upon "Tweed, or to fome of the offi- cers to be appointed for the duties by this aft granted in Scotland, within two months after the date, execution, or figning of every fuch indenture, or writing refpeftively : And upon producing of every fuch indenture or writing, either at the faid head-office, or to fuch colleftor or other officer, as aforefaid, her majefty's duties hereby granted, fhall be paid, either to the faid receiver general at the faid head-office, or to fuch colleftor or other officer as aforefaid : And in cafe the faid payment fhall be made to the immediate hands of the receiver general in the faid head-office, for , , , her majefty's ufe, then the indenture or writing, for which fuch payment dutv to be fhall be made, lhall be forthwith ftamped with one of the faid new ftamps, paid, and in- as the cafe fhall require: And in cafe fuch payment fhall be made to the denture hands of fuch colleftor, or other officer, without the limits of the faid fh "^I'leaor" wee kty kills, the fame collector or other officer, is hereby required to en- toindorfea dorfe on fuch indenture, or other writing, a receipt for the monies fo receipt, &c paid, in words at length, bearing date the day on which fuch payment fhall be made, and to fubferibe his name thereto, (to the intent that he may thereby be charged with every fum fo paid to him) and forthwith deliver back the faid indenture or writing fo endorfed to the bringer thereof. Within what Seel. 38. " And it is hereby enacted by the authority aforefaid, that timeinden- every fuch indenture, or writing fo end rfed (in cafe the fame be entred ftlmpt 1 *' 1 ln ^o, executed or figned within the fpace of fifty miles, to be computed from the limits of the faid weekly bills of mortality) fhall, within three fnonths after the date or making thereof, and if the fame be entred into, executed or figned in any part of Great Britain at a greater diftance from the me limits aforefaid, fhall, within fix months after the date or making thereof, be brought or fent to the fajd head-office, where the fame (be- ing produced with the laid receipt endorfed) fhallbe immediately ftamped with one of the faid new llamps, as the cafe fhall require, by the officer appointed, or to be appointed, for that purpofe. Se£l. 39. " And be it further enacted by the authority aforefaid, that Indentures, in all fuch indentures or writings, as aforefaid, wherein fhall not be truly wh,ch the ful1 inferted and written the full fum and fums of money received, or in any ; "™!^ e,ved J • ,-i- . • ,• 1 •!/- 1 j r -i >s not charged, wife directly or indirectly given, paid, fecured, or contracted ror, with, & Ci y^ ° or in relation to fuch clerk, apprentice, or fervant, as aforefaid, or where- upon the duties payable by this act fhall not be duly paid, or lawfully tendred, or which fhall not be ftamped, or lawfully tendred to be (lamp- ed, according to the tenor and true meaning of this act, within the re- fpective times herein for that purpofe feverally and refpectively limited, fhall be void, and not available in any court or place, or to any purpofe whatfoever; and the clerk, apprentice, or fervant, whom the fame fhall And clerk, &c. concern or relate to, fhall in fuch cafe be utterly incapable of being in «pacitated. free of any city, town, corporation, or company, and of following or exercifing the intended profeffion, trade, or employment ; any charter, law, or cuftom to the contrary notwithanding." Se£l. 40. " Provided always, that nothing in this act contained fhall be Parities or conftrued to extend to charge any mafter or miftrefs with the payment of ^ "* c . * any of the faid duties, in refpedt of any money by him or her received get j_ with any apprentice or fervant, who fhall be put or placed out at the com- mon or publick charge of any parifh or townfhip, or by or out of any publick charity, or to require the ftamping with any fuch new ftamp, as aforefaid of any indenture, articles, covenant, agreement, or contract relating to fuch apprentice or fervant as laft mentioned ; any thing herein contained to the contrary notwithstanding. SeEl. 43. " And be further enacted by the authority aforefaid, that no No indenture indenture or writing required by this act to be ftamped, as aforefaid, fhall to be admitted be given or admitted in evidence in any fuit to be brought by any of the "' evidence, parties thereunto, unlefs fuch party, on whofe behalf the fame fhall be u " a '^ s °" h given or admitted in evidence, dofirft make oath, that to the belt of his f ums werere- or her knowledge, the fum or fums therein for that purpofe inferted orally paid, &c. mentioned was or were really and truly all that was directly or indirectly given, paid, fecured, or contracted for, on behalf or refpedt of fuch clerk, apprentice, or fervant, to or for the benefit of the mafter or miftrefs, to or with whom fuch clerk, apprentice, or fervant was put or placed. Seft. 45. " And be it declared and further enacted by the authority where any aforefaid, that from and after the faid firft day of May one thoufand [even thing fhall be hundred and ten, and during the faid five years, where any thing or tilings, S' iven to an y not being lawful money of Great Britain, fhall directly or indirectly, be " nCT lh * ,notb f' given, affigned, conveyed, delivered, contracted for, or fecured, to. or for f u f| ^^ ' c e the ufe or benefit of any mafter or miftrefs, with or in refpedt of any fuch fuch thing to clerk, apprentice, or fervant, for whom a duty is chargeable by this act ; bc anfwered the duties hereby granted and latt mentioned, fhall be anfwered and paid, for the duties * for *°4- 3fppmtt!ccs> for the full value or values of fuch thing or things, and the fame duties t M - the laid values, ill a 1 1 be fecured and anfwered in the lame manner and form, and underthe like pains, penalties, forfeitures and incapacities, as are before in this act provided for fecuring the laid rates upon monies given or paid, or agreed to be given or paid, with fuch clerks, apprentices or lervants, as aforelaid. Malbr'sherV-' ^^ 9 Am - *' 2I * &' D ' I 7 10 '^ '&** 66 ' " A " d k ' S hmh Y after omittin^ f* urtner enacted by the authority aforelaid, that if any mailer or millrefs to forfeit eol. fhall hereafter neglect to pay the faid rates or duties (upon monies given, paid, or contracted for with clerks and apprentices) within the relpective times herein, and by the laid former act for that purpofe limited, according to the true intent and meaning of the fame, every fuch mailer and millrefs Hull, for every fuch neglect, forfeit the fum of fifty pounds •, the one moiety thereof to her majelly, her heirs and fucceflbrs, and the other moiety thereof with full colls of fuit, to fuch perfon or perfons as lhall in- form and fue for the fame, in any of the courts at Wejlminfler, for fuch neglect committed in England, Wales, or Berwick upon Tweed, or in the court of exchequer in Scotland, for any fuch neglect there, by action of debt, bill, plaint or information, wherein no elibin, protection, or wager of law, or any more than one imparlance fhall be allowed. ^8 Geo. 2. g,^ l8 Gg0t 2 c 22 ^ D I745 j t «y^ # 24< And for the better p urth g r al _ enforcing the payment of the rates and duties directed to be levied and ties for not paid by the acts ; [viz. 8 Ann. c. 9, and 9 Ann. c. 2 i.J it is hereby further paying the ("aid enacted by the authority aforelaid, that from and after the twenty-fourth duties; day o£ June in the year of our lord one thoufand feven hundred and forty- five, if any mailer or miftrefs fhall neglect to pay the faid rates and duties for clerks, apprentices or fervants, within the refpective times, in and by the former atts limited and appointed in that behalf, according to the true intent and meaning of the fame ; every fuch mailer and miftrefs fhall, for every fuch neglect, forfeit and pay double the rates and duties charged and directed to be paid and levied by the faid former acts, or either of them (over and above all penalties and forfeitures thereby inflicted) for all monies which fhall at any time or times, after the faid twenty-fourth day of June one thoufand feven hundred and forty-five, be given, paid, contracted or agreed for, with or in relation to every fuch clerk, apprentice or fervant •, which laid penalties and forfeitures, directed to be levied by this prefent act, how to be re- fhall be paid by the faid mailers or miflreiles reflectively, and fhall be covered. recovered, paid and applied, in fuch and the fame manner as any penalties or forfeitures, inflicted by the laid former acts, or either of them, are there- by directed to be recovered, levied, paid or applied. 23 Geo. 2. @ttlt. 20 Geo. 2. c. 19. [A. D. 1747.] Made, among other purpofes, " for the better regulation of certain apprentices." Self. 3. And be it further enacted by the authority aforefaid, that it fhall and may be lawful to and for any two or more fuch jullices, upon any complaint Sfppjentt'ccs. IC ) complaint or application by any apprentice, put out by the parifh, or any Juilice; npoa other apprentice, upon whofe binding out no larger a fum than five pounds can of [lawful Britifh money was paid, touching or concerning any rriifufage, cert2:n a P- fefufal of necefiary provifion, cruelty, or other ill-treatment of or towards t p r "S futh apprentice, by his or her mailer or miftrefs, to fummon fuch matter or matter, . miftrefs to appear before fuch juftices at a reafonable time to be named in luch fummons ; and fuch juftices (hail and may examine into the matter of fuch complaint ; and upon proof thereof made upon oath, to their an j > upon f a . fatisfaction (whether the matter or miftrefs be prefent, or not, if fervice of tisfactory the fummons be alio, upon oath, proved) the faid juftices may difcharge P roof . t0 d '»~- fuch apprentice, by warrant or certificate under their hands and feals ; for f 1 "^^ which warrant or certificate no fees fhall be paid. Seel. 4. " And be it further enacted by the authority aforefaid, that it Juices upon fhall and may be lawful to and for fuch juftices, upon application or com- complaint of plaint made upon oath, by any mailer or miftrefs, againft any fuch appren- niafters . a g a, n!t tice, touching or concerning'any mifdemeanor, mifcarriage or ill-behaviour, ppr ' fn fuch his or her fervice (which oath fuch juftices are hereby impowered to an p U P" adminifter) to hear, examine, and determine the fame, and to punifh the offender by commitment to the houfe of correction, there to remain and t0 P un 'fti the be corrected, and held to hard labour for a reafonable time, not exceeding ° " m f. r by t one calendar month, or otherwife by difcharging fuch apprentice, in & c , manner and form before mentioned." Seel. 5. " Provided neverthelefs, that if any perfon or perlons fhall think p er for.s e»- himfelf, herfelf, or themfelves aggrieved by fuch determination, order, or grieved may warrant of fuch juftice or juftices as aforefaid (fave and except any order of a PP eal - commitment,) he, fhe, or they may appeal to the next general quarter fcftions Exception, of the peace to be held for the county, riding, liberty, city, town corporate, or place where fuch determination or order fhall be made ■, which faid next general quarter fefTions is hereby impowered to hear and finally determine the fame, and to give and award fuch cofts to any of the refpective perfons, „ . appellant or refpondent, as the faid feffions fhall judge reafonable, not ex- excees j s ceeding forty fhillings •, the fame to be levied by diftrefs and fale, in man- ner before mentioned." Sell. 6. " Provided alfo, and be it further enacted by the authority No writ of aforefaid, that no writ of certiorari, or other procefs, fhall iflue or be iffuable certiorari. zo remove any proceedings whatfoever, had in puriuance of this act, into any of his majefty's courts of record at Weflminficr. ©tflt. 20 Get?. 7. cap. 45. [A. D. 1747.] £#. 4. recites the at! S Ann. c. 9. 20 Geo. z, 9 Ann. c. 21. and 18 Geo. 2. c. 22. and gives further time for payment of c. 45. duties omitted to be paid for the indentures of clerks and apprentices, upon pay- ment of double duties, &c. Self. 5. " And it is hereby further enacted, that from and after the Upon rr - twenty-fourth day of June one t.oufand feven hundred and forty-feven, i^ mem or double- any mafter or miftrefs, who, by reafon of fuch neglect as aforefaid, fhall duties a "J become liable to forfeit and pay the faid double rates and duties as afore* tender ° f,l, e VpL.l.N°V": P gj«Wia,,obe 106 3ppjentfce& fiamped faid, {hall refpectively pay the laid double rates and duties unto theperfon within 2 years or perfons to whom the lame ought to be paid in purfuance of the.laid after the end f ormer a ft s? anc j a if tender the indentures or contracts to be ftamped at ticeiWp aP &c " anv time w ' trun two >' ears a f cer trie en ^ or determination of the apprentice- fhip or fervice of any fuch clerk, apprentice, or fervant refpe&ively, and before any fuit or profecution fhall have been commenced for recovering any of the penalties and forfeitures inflicted and incurred by the faid former the contracts acts, or any of them •, then, and in fuch cafe, the indentures or contracts of to be good, f ucri c i er l<, apprentice, or fervant refpectively (hall be good and available in law and equity, and may be given in evidence in any court whatfoever ; and the clerks, apprentices, or fervants therein named, mail be capable of following and exercifing their refpective intended trades or imployments, as fully as if the rates and duties fo omitted, had been duly paid within the refpective times in the faid former ads, or any of them, limited or ap- Penalties in- pointed ; and all and every perfon and perfons, who fhall have incurred curred for any penalties by the omifTions aforefaid, upon payment of fuch double rates omiflions dif- an j ^ ut \ es as aforefaid, within the refpective times herein laft before C ayment U of° n linnitecl in that behalf, fhall be, and they are hereby acquitted and dif- double duties, charged of and from the faid penalties and forfeitures ; any thing in the faid former acts, or any of them, contained to the contrary notwithftanding." Sett. 6. " And it is hereby further enacted, that if any matter or miftrefs fhall, by reafon of any fuch neglect as aforefaid, become liable to forfeit and Apprentices, pay fuch double rates and duties as aforefaid, and any fuch clerk, apprentice, &c paying or fervant refpectively, fhall and.do, at any time after fuch forfeiture incurred, the double either in the prefence of one or more credible witnefs or wineffes, or by wri- d db" f ^ feit " ting under the hand of fuch clerk, apprentice, or fervant reflectively, figned nutters Tc m tne prefence of one or more credible witnefs or witneffes, require his or her matter or miftrefs refpectively to pay the faid double rates or duties fo incurred as aforefaid, and fuch matter or miftrefs fhall not, within three months after fuch requeft, pay the fame, and any fuch clerk, apprentice, or fervant fhall, at any time within two years after the determination of his clerkfhip, apprenticefhip, or fervitude, pay the faid double rates and duties fo forfeited and incurred, and not paid by his or her matter or miftrefs refpe&ively as aforefaid •, then, and in fuch cafe, it fhall and may be lawful to and for any fuch clerk, apprentice, or fervant, within three months after fuch payment of the faid double rates and duties by him, her, or them, as aforefaid, to demand of his or her matter or miftrefs, or his, her, or their tobeTeimburf- executors or adminiftrators, double the fum or fums of money, or other con- ed double the fideration refpectively given, paid, and agreed, or contracted to be paid to fum paid I to r ucri ma ^er or miftrefs, for or in refpect of fuch clerkfhip, apprenticefhip, " ^entice- 1 * or f erv i tu de ; and in cafe fuch fum or fums of money fhall not be paid (hip, &c. within three months after fuch demand thereof made, it fhall and may be lawful to and for any fuch clerk, apprentice, or lervant, to fue for and wkh colls; recover the fame, with full cofts of fuit, againft fuch mafter or miftrefs,. his, her, or their executors or adminiftrators, by action of debt, bill, plaint, or information, in any of his majefty's courts of record at JVeftmhtfter, wherein no effoin, protection, or wager of law, or more than one imparlance, fhall fhail be allowed ; and every fuch clerk, apprentice, or fervant, fo paying fuch double rates or duties as aforefaid, fhall and may, immediately after payment thereof refpectively, and upon fignifying, by writing under his a " d b f, d ' f or her hand, that he or flie defires to be difcharged from his, her, or their ^ei^appren" clerkfhip, apprenticefhip, and fervice refpectively, fhall be accordingly tkelTiip.if they difcharged from the fame refpectively, and from all actions, penalties, require it ; forfeitures, and damages, for not ferving the time for which he, fhe, or they were refpectively bound, contracted for, or agreed to ferve fuch mailer or miftrefs refpectively. Sett. 7. " Provided always, and it is hereby further enacted and decla- and 'o have red, that every fuch clerk, apprentice, or fervant, fhall avail him or herfelf, th e famebe- and have fuch and the fame benefit and advantage of the time he or fhe f erv ; c ° a5 "f fhall refpectively have continued with and ferved fuch mafter or miftrefs they had been refpectively, as he or fhe could or might have done, in cafe of any affign- turned over, ment or turning over to any new or other mafter or miftrefs." Self. 8. " Provided always, that in cafe where any profecution fhall be Apprentice* commenced againft any mafter or miftrefs, for recovering any of the ? 3y 'i", s the penalties and forfeitures inflicted and incurred by the faid former act?, or wne re profe- any of them, the clerk, apprentice, or fervant of fuch mafter or miftrefs cmions are refpectively, fhall pay fuch double rates and duties, at any time within two commenced years after the end of his, her, or their clerkfhip, apprenticefhip, or a 2 a ' n(t tneir fervitude, and every fuch clerk, apprentice, or fervant refpectively, fhall, ' ' upon payment of fuch double rates and duties as aforefaid, be capable and to be qualified qualified to follow and exercife his, her, and their refpective trades and t0 follow their employments -, and the indentures or contracts of fuch clerk, apprentice, trades > &c< and fervant refpectively, ' fhall be good and available in law and equity, and may be given in evidence in any court whatfoever ; any thing in this or the faid former acts, or any of them, contained to the contrary notwith- standing." ©tat. 5 Geo. 3. c. 46. [A.D. 1765. Intituled] u An act for altering 5 Geo. 3. the ftamp duties upon admiffions into corporations or companies; and for c - 4 6 - further fecuring and improving the ftamp duties in Great Britain." Self. 1 8. " And whereas by an act of parliament made in the ninth year Chufe in aft of the reign of her late majefty Queen Anne, intituled, An alt for the hying 9 Ann. certain duties upon candles ; and certain rates upon monies to be given with clerks and apprentices, towards raifing her majejly's fupply for the year one thou/and /even hundred and ten, the duty, rate or fum of fixpence, for every twenty fhillings of every fum of fifty pounds or under; and the duty, rate orfumofoneihilling for every twenty fhillings of all and every fum and fums amounting to more than fifty pounds, which mould be given, paid, contracted, or agreed for, with, or in relation to, every clerk, apprentice, or fervant, which fhould be, within the kingdom of Creat Britain, put or placed to or with any mafter or miftrefs, to learn any profeffion, trade, or imployment, and proportionably for greater or lefler fums, was charged P 2 ahd io8 ^pp?cnt(ccjsf. and impofcd on the faid mailers or miftreffes refpectively : and whereas great inconveniencies arife in collecting the faid duties, for want of proper entries being made and kept by the chamberlain and other proper officers of cities and corporate towns, and companies, of the names of the matter or miftrefs, and clerk, apprentice, or fervant •, the place of abode of fuch mafter or miftrefs •, the date of the indenture, covenant, articles, or contract, the fum of money given, paid, contracted, or agreed for, and the profefllon, trade, or employment, which fuch clerk, apprentice or fervant, is to learn: for remedying whereof, be it further enacted and declared by the authority aforefaid, that from and after the faid fifth day of July one thoufand feven Where t e j uin( ^ rec | arK j fj x ty-five, every chamberlain and other proper officer of every freedom or. J ' , • t • l. i • j r ^ } any city or city and corporate town, and company, within the kingdom of Great company is Britain, where any clerk or apprentice, or fervant, obtains his freedom by obtained by fervitude, fhall fairly write and enter in fome book or books to be kept f 1 b fei f° r t ' iat P ur P°fev tne names °f a ll fuch clerks, apprentices, and fervants,- or other pro- as fhall be put or placed out within the jurifdiction of fuch city or town per officer, is corporate, and alfo the names and places of abode of the mafters or to enter the miftreffes, and the fums of money given, paid, contracted, or agreed for, names of all w ; t h 5 or jn relation to, fuch clerks, apprentices, or fervants, and the oat clerks' 1 profeffion, trade, or employment, which they are refpectively to learn ; apprentice's, and the dates of the indentures, covenants, articles, or contracts, by or fervants, which fuch clerks, apprentices, or fervants, are respectively put and with the placed out -, and if any chamberlain or other proper officer fhall neglect abode oTthe or re ^ ule to make any fuch entry, in manner as above fet forth, he fhall, mailers, the for every fuch offence, forfeit the fum of twenty pounds, apprentice Sett. 1 9. " And be it further declared and enacted by the authority afore- fees, and faid, that all printed indentures, covenants, articles, or contracts, for d " es ° f r ^ e binding clerks or apprentices in Great Britain, after the fifth day of July &c. on for'fei- one thoufand feven hundred and fixty-five, fhall have the following notice, ture of 20 1. or memorandum, printed under the fame ; videlicet^ and the fol- lowing notice to be printed under all printed indentures, &c. The notice. >-|-v HE. indenture, covenant, article, or contrail, muft bear date the day it is 1 executed ; and what money or other thing is given or contracted for with the clerk or apprentice, muft be infer ted in words at length ; and the duty paid to theftamp office, if in London, or within the weekly bills of 'mortality, within one month after the execution, and if in the country ; and out of the faid bills of mortality, within two months, to a dtftributor of the ftamps, or his fabftitute; otherwife the indenture will be void, the mafter or miftrefs forfeit fifty pounds, and another penalty, and the apprentice be difabled to follow his trade or be made free. And if any printer, ftationer or other perfon or perfons, fhall fell, or caufe to be fold, any fuch indenture, covenant, article, or contract, without filch notice or memorandum being printed under the fame ; then, and in on forfeiture every fuch cafe,' fuch pri ter, ftationer, or other perfon or perfons, fhall, of 10 1. for every fuch offence, forfeit the fum of ten pounds. ©tat* Sfppjettft'cesf. 1 09 S>tat 6 Geo. 3. c. 25. [y£ Z>. 1765. intituled,] " An act for better c Geo. 3. regulating apprentices, and perfons working under contract." c 25. " Whereas perfons employed in feveral manufactories of this kingdom p r earr.b!e. frequently take apprentices who are very young, and, for feveral years of their apprenticed! ips, are rather a burthen than otherwife to their matters : And whereas it frequently happens that fuch apprentices, when they might be expected to be ufeful to their mafters, abfent themfelves from their fervice : And whereas the laws in being are not fufficient to prevent thefe inconveniencies : For remedy whereof, may it pleafe your majelly, that it may be enacted ; and be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and com- mons, in this prefent parliament affembled, and by the authority of the fame, that from and after the twenty-fourth day of June one thouiand feven hun- Juflices im- dred and fixty-fix, if any apprentice mail abfent himfelf from his matter's powered 10 fervice before the term of his apprenticefhip fhall be expired, every fuch c ="S e a P apprentice mail, at any time or times thereafter, whenever he ihall be ftming before found, be compelled to ferve his faid mafter for lb long a time as he fhall expiration of have fb abfented himfelf from fuch fervice, unlefs he fhall make fatisfac- hissppren- tion to his mafter for the lofs he fhall have fuftained by his ablence from < ,cem 'P> to his fervice ; and fo, from time to time, as often as any fuch apprentice fhall, t ^ aThe without leave of his mafter, abfent himfelf from his fervice before the fl la ii abfent, term of his contract fhall be fulfilled: And in cafe any fuch apprentice or to make fhall refufe to ferve as hereby required, or to make fuch fatisfaction to 'atisfaftion ;' his mafter, fuch mafter may complain, upon oath, to any jultice of the peace of the county or place where he fhall refide, which oath fuch juftice is hereby impowered to adminifter, and to iffue a warrant under his hand and feal, for apprehending any fuch apprentice ; and fuch juftice, upon hearing the complaint, may determine what fatisfaction fhall be made to luch mafter by fuch apprentice ; and in cafe fuch apprentice fhall not give fecurity to make fuch fatisfaction according to fuch determination, it ihall and may be lawful for fuch juftice to commit every fuch apprentice to the houfe of correction for any time not exceeding three months. Sett. 2. " Provided always, that nothing in this act contained fhall ex- except as to tend to any apprentice, whofe mafter fhall have received with fuch appren- ppp'entices tice the fum of ten pounds. g£"S ,0 '• Sett. 3. " Provided alfo, that no apprentice fhall be compelled to ferve or ^ ere _ for any time or term, or to make any fatisfaction to any mafter, after the years mall expiration of feven years next after the end of the term for which fuch ap- have elapfed. prentice fhall have contracted to ferve •, any thing herein contained to the contrary notwithftanding. Sett. 4. " And whereas it frequently happens that artificers, callico printers, handicraftfmen, miners, colliers, keelmen, pitmen, glafimen, potters, labourers, and others, who contract with perfons for certain terms, do leave their refpective fervices before the times of their contracts are fulfilled ; to the great disappointment and lofs of the perfons with whom they fo contract : For remedy whereof, he it further enacted by the Juftices im- authority aforefaid, that from and after the faid twenty -fourth day of powered to June £ rHJlt warrants in sgiinft *rt!n- " cersand others not fulfilling their contrac>, or being guilty of any milde- ■uieauor, and upon convi&ion to commit the offender. Perfens ag- grieved by the order of a juftice (except in cafes of commitment) may appeal ; giving notice to the juftice, and entering into recogni- zance, &c. Juftices at the quarter fefli- ons impower- ed to deter- mine the ap- peal, and award toft:. Limitation of this act with rtfpeft to the flannaries, and city of London. SfppKtttt'ces. flint one thoufand feven hundred and fixty-fix, if any artificer, callico printer, handicraftfman, miner, collier, keel man, pitman, glafiman, pot- ter, labourer, orother perfon, fhall contract with anyperfon whomfoever for any time or term whatfoever, and fhall abfent himfelf from his fervice before the term of his contract mall be compleated, or be guilty of any other mifdemeanor, that then, and in every fuch cafe, it fhall and may be law- ful for any juftice of the peace of the county or place where any fuch arti- ficer, callico printer, handicrafefman, miner, collier, keelman, pit- man, glaiTman, potter, labourer or other perfon, fhall be found, and fuch juftice is hereby authorized and impowered, upon complaint there- of made upon oath to him by the perfon with whom fuch artificer, callico printer, handicraftfman, miner, collier, keelman, pitman, glafiman, potter, labourer, or other perfon, fhall have fo contracted, or by his or her fteward or agent, which oath fuch juftice is hereby impowered to adminifter, to ifiue his warrant for the apprehending every fuch artificer, callico printer, handicraftfman, miner, collier, keelman, pitman, glafiman, potter, labourer, or other perfon, and to examine into the nature of the complaint; and if it fhall appear to fuch juf- tice that any fuch artificer, callico printer, handicraftfman, miner, col- lier, keelman, pitman, glafiman, potter, labourer, or other perfon, fhall not have fulfilled fuch contract, or hath been guilty of any mifdemeanor, it fhall and may be lawful for fuch juftice to commit every fuch perfon to the houfe of correction for the county or place where fuch juftices fhall re- fide, for any time not exceeding three months, nor lefs than one month. Seel. 5. " Provided always, that if any perfon fhall think himfelf ag- grieved by fuch determination, order, or warrant, of any juftice of the peace as aforefaid, except an order of commitment, every fuch perfon may appeal to the next general quarter feffions of the peace to be held for the county or place where fuch determination or order fhall be made ; fuch perfon giving fix days notice of his intention of bringing fuch ap- peal, and of the caufe and matter thereof, to fuch juftice of the peace and the parties concerned -, and entering into a recognizance within three days after fuch notice, before fome juftice of the peace for fuch county or place, with fufficient furety, conditioned to try fuch appeal at, and abide the order or judgment of, and pay fuch cofts as fhall be awarded by, the juftices at fuch quarter fefilons ; which faid juftices, at their faid feffions, upon due proof of fuch notice being given, and of entering into fuch re- cognizance as aforefaid, fhall and are hereby directed to proceed in, hear, and determine, the caufes and matters of all fuch appeals •, and fhall give fuch relief and cofts to the parties appealing or appealed againft, as they, in their difcretion, fhall judge proper and reafonable ; and their judge- ments and orders therein fhall be final and conclufive to all parties con- cerned. Sett. 6. " Provided alfo, that nothing in this act contained fhall ex- tend to the ftannaries in the counties of Devon and Cornwall, or to impeach or lefien die jurifdiction of the chamberlain of the city of London, or of any other court within the faid city, touching apprentices. ©tat* SCppjentfces. "r $tftt 7 Gto. 3. c. 21. [//. D. 1766. intituled,] " An aft to obviate 7 Geo 3. inconveruencies which may arife with refpect to the execution of feveral c 21. acts of parliament in fuch cities, boroughs, towns corporate, franchifes, and liberties, as have only one juftice of the peace of the quorum qua- lified to act within the fame." " Whereas authority is given by divers acts of parliament to two or Preamble, more juftices of the peace, whereof one or more are to be of the quorum : And whereas many inconveniencies have arifen in fuch cities, boroughs, towns corporate, franchifes, and liberties, as have only one juftice of the peace of the quorum qualified to aft within the fame : Be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, that from and after the paf- fing of this prefent act, all acts, orders, adjudications, warrants, inden- Two ormore tures of apprenticefhip, or other inftruments, which fhall be made, done, juftice?,.tho'' or executed, by virtue of any act or acts of parliament made or to be not of tne made, by two or more juftices of the peace qualified to act within fuch S uorum ' im - cities, boroughs, towns corporate, franchifes, and liberties, though nei- [any certain ther of the faid juftices are of the quorum, fhall be valid and effectual in a £b irto e.ie- law, to all intents and purpofes, as if one of the faid juftices had been ofcution. the quorum ; any law, ftatute, or ufage, to the contrary notwithstanding." @)tflt* 7 Geo. 3. c. 39. [J. D. iy66. intituled,] " An act for the bet- 7 Geo. ;-. ter regulation of the parifh poor children, of the feveral parifhes therein .& 39. mentioned, within the bills of mortality." " Whereas it would greatly tend to the prefervation of the lives of the Preamble, infant parifh poor of the feveral parifhes hereafter mentioned, and be of publick utility, if the officers of fuch parifhes were compelled by law to fend fuch infant poor into the country, to be nurfed, for a certain time ; and proper perfons appointed guardians in each parifh, to infpect into the management and ufage of fuch infants : And whereas the keeping regifters of fuch infant poor, until they fhall refpectively arrive at the age of fourteen years, be placed out apprentice, or otherwife difpofed of, would be a further means of preferving the lives of fuch infants : May it therefore pleafe your majefty, that it may be enacted ; and be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parlia- ment affembled, and by the authority of the fame, that all and every child and children,, who, on or before the firft day of July one thoufand feven hundred and fixty-feven, was or were born in, or received into, any work- Children bom houfe or parifh-houfe •, or which fhall thereafter be born in any workhoufe in, or recei- or parifh-houfe, or received by any felect veftries, governors, directors, or ved int0 > an y' managers, appointed for the management of parochial affairs, or by any !^^fu™ ehurch-wardens, overfeers of the poor, or other officer or officers aathb- houfe, withiai sized by the feveral parifhes following, or any of them, refpectively •, the feveral that is to fay, the feventeen parifhes without the walls of London ; the parifhes hers twenty- "»«« io »«t n2 Apprentices. twenty- three parifhes in Middle/ex and Surrey, being within the bills of , . mortality, and the liberty of the tower of London ; and the ten pariflies ed and taken W^Wn the city and liberty of Wefiminficr ; {hall be nurfed and taken care care of, as of ip manner as hereafter mentioned. follows; viz. Se3. 2. " And be it further enacted by the authority aforefaiJ, t! all Such of them fuch children under the age of fix years, who, upon the faid firft day of ?r< i year"of r J u fy* ^h^' ue under the care of veftries, governors, directors, or n.ana- a?e, to be g ers of the poor, or parifh officers, fhall, within fourteen days after the i m the laid time, be fent into the country, to a diftance not lefs than thre miles country, not f r om any part of the cities of London and IVcfim'mjier; there to be nurfed lefs than three an( j ma jri ta i ne a at tne cnar g e of their refpective parilhes. hof under ^ tV? ' 3' " ^ nc ^ ^ e iZ * urcner enacted by the authority afqrefaicf, that two years, a 'l children who fhall, from and after the faid firft day or Ji'y, be born notfuckiedby in, or fhall be received into, workhoufes or parifh-houfes belongin; the the mother, faid parifhes, not being fuckled by the mother, under the ag of two iiot ki=than y ears f] ia ]j within fourteen days after their birth or reception, t fent Jr. e miles oft ; : , ,.., J , r , n .. r ,. into the country, to a dtltance not lets than five miles from any part of and thofe the laid cities of London or Wejlminjler ; and all children receive- into ch above two, workhoufes or parifh-houfes above the age of two years, ant 4 u. . the a;id under fix age of fix years, fhall, within fourteen days after their reception, be cnt ye3 f^°rfF' into the country, to a diftance not lefs than three miles from any part of not lels than .-..., •' ' , TTr . „ . . „ . ■ ' X . . three miles off", the iaid cities or London or fVeJtminjter •■> there to be nurled and maintai ed in manner herein after directed. Weekly rates Se£l, 4. " And be it further enafled by the authority aforefaid, that to be paid for for the nurfing and maintenance of each child fo put out as aforefaid, the their nurfing refpective fums following fhall be paid -, that is to fay, for the firft fix ?" Hlf'a_ am " years of their age, a fum not lefs than two {hillings and fix pence ; and pre'nticed, or from that time until fuch child fhall be put out apprentice, or return to returned to the workhoufe, a fum not lefs than two {hillings -per week ; and fhall alfo, the woik- ovei - and above the faid charge of nurfing and maintaining each child, j 1 ?.' . . pay to every nurfe who fhall have received any child of or under the age reward to or n ' ne months (the faid child being alive, and having been treated pro- nurfe for perly, and to the fatisfaftion of the guardians hereafter mentioned, or their care. the major part of them, affembled at any meeting appointed by this aft) after having been under her care twelve months, a fum not lefs than ten {hillings, as a reward for her pains and care taken in the nurfing of fuch Cloathing to child : And the governors, direftors, managers, or overfeers of the poor, befumifhed, of the refpeftive parifhes from whence fuch children fhall be fo fent to and all other nm fe, fhall find good, proper, and fufficient cloathing for each and every Den'cesdefray- °^ tnem reflectively ; and fhall defray the expences of conveyance, me- ed, by the pa- dicines, burials, and all other necefiary expences incurred on account of nfh, faid children ; and fnall keep, in a book or books to be provided for that and feparate purpofe, feparate, regular, and exact accounts of all expences incurred accounts to ; n relation thereto. be kept. there- ^ § _ « And ^ j Q order the mQre e £r e a ua u y to gl]ar d againft all dan- gerous confequences which may arife to the laid children from falfe parfi- n.ony, negligence, inadvertency, or the annual change of parifh officers, Be Be it further" enacted by the authority aforefaid, that five noblemen or p; ve guar di. gentlemen, inhabitants of each parifh, ihall, within fourteen days after ans of the pa the faid firft day of July, be appointed and chofen, under the title or de- ri(h poor de- nomination of Guardians of the pariJJo poor children ; two or more of which d ' er ' t0 ot faid guardians ihall be chofen out of the felect veftry, or out of the go- vernors, directors, or managers of the poor of each parifh ; and where there is no felect veftry, governors, directors, or managers -, then the faid five guardians to be chofen and appointed out of the noblemen and gen- tlemen inhabitants of each parifh •, and the election to be made upon Tuefday, or fome other day in Eajler week, by the inhabitants having right to aflemble in veftry : And in cafe there fliall be no noblemen or gentle- men, or not be a fufficient number of fuch noblemen or gentlemen who will accept of the office of guardians •, then the laid guardians, or fo many as ihall be wanting to make up the number of five, fliall be chofen out of the principal and mod refpectable inhabitants : And if any of the par- Where any ties fo chofen fhall refufe to act, or fliall afterwards relign their guardian- ft™' 1 refufe to fhip, or fhall die; that then, and in either of the faid cafes, a further aiioT ftl ^. 1 re ' choice fliall be made in the fame manner as before mentioned, within fuaheVchoVe fourteen days after fuch refufal, resignation, or death, of fo many as fhall t0 be made." be neceffary to complete the number. Seel. 6. " And be it further enacted by the authority aforefaid, that Firn g uard j- fuch noblemen, gentlemen, or principal inhabitants, who fliall, in confe- ans toc< ^ tl " quence of this act, be firft chofen and appointed guardians of the parifh t j|| tne year poor children, fhall continue and remain in their refpecTive offices till the 1-70; day in Eajler week, in the year one thoufand feven hundred and feventy, of the inhabitants meeting for the choice of guardians as aforefaid ; and Future guar- that the guardians then chofen, or at any time thereafter to be chofen, dhns t0 re - fliall remain in their refpective offices for the term of three years then next mdin . !: enfuing : And that all appointments of guardians in future, fliall be once ]■"" in three years only •, except in cafes of death, refignation, or refufal as aforefaid. Seel. 7. " Provided always, that no churchwarden, or overfeer of the Churchwar- poor, fhall be elected into the faid office of a guardian. dens and over- feers difquali- fied from being elefted guardians. Seel. 8. " And be it further enacted by the authority aforefaid, that Power and the faid guardians or any one of them, fliall have free admittance to vifit dut y ofguar- and fee the faid parifh poor children, and inform themfelves fully con- dians ' cerning their ftate and condition ; and the faid guardians fliall alfo have full liberty to examine, and have free accefs to, all regifters, books,, and accounts, relating to the faid children : And in cafe of any neglect or im- proper conduct, whereby the life or health of a child may appear to the faid guardians, or to any one of them, to be in danger, to report the fame to the felect veftry, governors, directors, or managers, or to the church- wardens or overfeers of the poor: And if the faid veftry, governors, di- ^.\\h com- rectors, or managers, churchwardens, or overfeers, or fome or one of pl.-.incd of by them, do not take the moft efficacious meafures to remedy the evil com- tn em, how to Vol. I. N° V. Q^ plained be reir,tdR ' d - n+ Apprentices* plained of; that then it fhall be lawful to and for the faid guardians, or any of them, to inform one or more of his majefty's juftices of the peace, and give evidence of the facts •, and the faid juftice or juftices of the peace is and are hereby impowered to give fuch orders and directions therein, as he or they fhall think moft proper. A meeting of SeSi. 9. " And be it further enacted, that the faid guardians fhall be the guardians fummoned, by the veftry clerk, at leaft once in fix weeks, to meet at the to t>e fum veftry- room, or, where there is no veftry-room, in other convenient place; fix weeks ; an ^ two °f tne laid guardians fhall make a quorum, either of them having Two make the liberty of calling in one of the churchwardens or overfeers ; and when a quorum. only one of the faid guardians is preient, he fhall have the liberty of call- Power given ; n g ; n two f t ] ie churchwardens or overfeers, who fhall attend him accord- orloint"/ w m Sh' > an d when any number of the faid five guardians fhall meet, they call in the ft"'' have the liberty of calling in two of the churchwardens or overfeeers, churchward- as the majority of them fhall think proper. ens or over- Seft. 10. " And whereas in many parifhes the faid felect veftries, go- vernors, directors, or managers, churchwardens, or overfeers of the poor, may find it inconvenient and difficult, through want of regular correfpon- dence with proper perfons in the country, to fupply them with nurfes, and alfo to take the charge of inspecting nurleries in fuch a manner asfhall prove effectual to the prefervation of the lives of the faid children •, Be it there- Liberty grant- fore enacted by the authority aforefaid, that the faid felect veftries, go- ed, of (ending vernors, directors, or managers, churchwardens, or overfeers of the poor, P"'' h P 00r fhall be at liberty to fend their faid parifh poor children, or any of them, derfix years being under the age of fix years as aforefaid, to the hofpital for the main- of age, to the tenance and education of expofed and deferted young children ; and it fhall Foundling and may be lawful to and for the governors and guardians of the faid hof- hofpnal, pical for the time being, to receive fuch children : And the faid felect terms as (hall ve ft r i es > governors, directors, managers, churchwardens, or overfeers of be agreed on : the poor, are hereby impowered to agree with the faid governors and guar- dians for that purpofe, upon fuch terms, and in fuch manner, as fhall be adequate to the fupport and maintenance of each child. The charge SeS. 11. " And be it enacted by the authority aforefaid, that the terms to be defrayed fo agreed upon, and the fums agreed to be paid for the admiffion, main- out ot the tenance, and education, of fuch parifh poor children as fhall be fent to the poor u j- a jj hyf-pi^ fh a ]i De p a [ c j Dv ,-hg verfeer or overfeers of the poor for the and if not du- time being, out of the poors rate of each parifh reflectively : And in cafe ]y pa'id, any fum or fums of money agreed between the faid felect veftries, gover- nors, directors, or managers, churchwardens, or overfeers, and the go- vernors and guardians of the faid hofpital, or any five of them in commit- tee, fhall not be paid, by fuch overfeer or overfeers, to the perfon or per- fons who fhall be authorized by the faid governors and guardians to re- ceive the fame ; it fhall and may be lawful to and for any one or more of his majefty's juftices of the peace for the counties of Middle/ex or Surrey, any juftice tne city and liberty of Weflminfler, or liberties of the Tower Hamlets, re- may fummon fpectively, to fummon the overfeer or overfeers who fhall refufe or neg- the overfeers, i ect to make fuch payment, and to order immediate payment to be made and order im- c #ppjentfce$* 1 1 5 of fo much as fhall appear to fuch juftice or juftices to be due, together mediate pay e with fuch cofts and charges as may have been incurred by the faid gover- ment > wi ; kth nors and guardians in confequence of fuch refufal or neglect : And if the cnar ?" m_ overfeer or overfeers fhall refufe or neglect to obey the order of fuch juf- andi ' n rt f ;i , tice or juftices, the fum directed to be paid thereby fhall be recovered by f a ], may levy diftrefs and fale of the goods and chattels of fuch overfeer or overfeers, to- the fame by gether with the cofts attending fuch diftrefs and fale, rendering the over- d,llref5 and plus (if any) to the owner. Sett. 12. " And be it further enacted by the authority aforefaid, that The death, at the time of the death, difcharge, or apprenticefhip, of any fuch parifh dlknar g e - or poor child, a certificate thereof fhall be fent, by the fecretary of the faid ^j-* 6 ™"" governors and guardians, to the veftry clerk, or overfeers of the poor, of chUd, to be fuch parifh to which the faid child did belong. certified to the Setl. 13. " And be it further enacted by the authority aforefaid, that the veftr y clerk of hofpital account fhall be kept with each parifh diftinct, in a proper book or Vi^ , books, with marginal columns, according to the fchedule annexed, marked cour ,' to De (A) j and that fuch book or books, or true copies thereof, fhall be figned kept with each by the fecretary of the hofpital. parifh diftina. SeSl. 14. " And whereas it often difturbs the peace of domeftic life, Parifh chil- checks marriage, and difcourages induftry, to phce out parifh boys to the dren - ard age of twenty-four years •, therefore, in order to remedy the fame, Be it ,° ur ' gs t0 not enacted by the authority aforefaid, that it fhall and may be lawful to place t ; cec j f or or bind out boys as well as girls apprentices, by the refpective parifh offi- more than fe- cers for time being, and alio by the governors and guardians of the hof- V£n yean, or pital for the maintenance and education of expofed and deferred young twent y- children, for the term of feven years, or till they fhall attain their refpec- a „ e tive ages of twenty-one years, and no longer. Se£I. 15. " And whereas the fums of twenty millings to forty millings, now ufually given with a child placed out by the parifhes, are by no means adequate to the procuring fuch mailers and miftreffes as are in general fit and proper : And whereas there is a general neglect in the mo- ral and religious inftruftion of apprentices ; and fome pecuniary encou- ragement may excite mailers and miftreffes to difcharge their duty, in this refpect, towards young perfons who are thus intrufted to their care •, Be it therefore further enacted by the authority aforefaid, that from and after the faid firft day of July one th ou fan d feven hundred and fixty-feven, no .a pprentice fuch parifh child fhall be bound out an apprentice with a fum lefs than fee not to be four pounds two millings as an apprentice fee; forty fhillings whereof to lels than 4 '■ be paid to the mafter or miftrefs within feven weeks after executing the^-j^ t '° e indentures, and the remaining forty-two fhillings to be paid after fuch ap- payments, prentice fhall have ferved three years of his or her apprenticefhip. Seft. 1 6. And whereas the act of the fecond of his prefent majefty, Aft 2 Geo. 3. intituled, " An act for the keeping regular, uniform, and annual regifl ers, of all parifh poor infants under a certain age within the bills of mortality," requires no account of the children after the age of four years-, Be it therefore further enacted by the authority aforefaid, that the refpective veftries, governors, directors, managers, overfeers of the poor, or other Q 2 officer Ji6 ^tppKHtfCCfil. Particular Re- officer or officers, of the feveral and refpective pariffies herein before 8 lfte " t0 '? e mentioned, or fome or one of them, ffiall, and they are hereby directed each' arift/ anc ^ required, on or before the faid firft day of July, to provide, or caufe according as t0 be provided, at the expence of their refpective pariffies wlierein there is they come or ffiall be a work-houfe, hofpital, or other houfe or place provided for the within thefol maintenance of the poor, a book of royal paper which ffiall be ruled with lowing d e diftinct columns, and the title of each column ffiall be wrote or printed in fuch page agreeable to the fchedule hereunto annexed, marked (BJ- and the book belonging to each refpective pariffi, wherein there is not nor ffiall be any fuch workhoufe, hofpital-houfe, or place, ffiall in every page be ruled with diftinct columns, and the title of each column ffiall be wrote or printed in fuch page agreeable to the fchedule hereunto annexed, marked (C) •, any thing in the laid act of the fecond year of his prefent majefty's reign, or any other act or acts of parliament, to the contrary thereof in any wife notwithstanding." Entry to be Sett, j 7- « And b e ; t f ur ther enacted by the authority aforefaid, that footof each t ' 1ere ^ *°e n " ient J° nec ', at the foot of each regifter, the grofs number of regiiler. tn e children, remaining in the hands of mothers who have been reliev- ed by the refpective pariffies during the courfc of the year, not entered in theregifter ; and the numberof fuch who are known to be remaining alive." Form of the Sett. 1 8. " And be it further enacted by the authority aforefaid, that the abftradof the abftract of the regifter of the faid infant poor fhall be according to the infant"^™ fchedule hereunto annexed, marked (D;." Manner of $*&• l 9- " And be it further enacted by the authority aforefaid, that the conducting names of all the pariffi poor children who ffiall be alive, under the care of their regifters. an y governors, directors, managers, churchwardens, or overfeers of the poor, on the firft day of July next enfuing, ffiall be entered in the faid regifters, and ffiall be continued on and transferred from year to year, in the faid regifter, until their death, or difcharge to parents or friends, or until they are reflectively placed out apprentice •, and that the day of placing them out, and the time of their iervitude, ffiall be entered in the laid regifters as above mentioned. Annual Lift Sett. 20. " And be it further enacted by the authority aforefaid, that a full to be made fift f a ll apprentices placed out by the refpective pariffies ffiall be made ""'fh The out ^ t ' ie ve ^ r y clerks, or other proper officer, and delivered, in the children sp month of February in every year, to the company of pariffi clerks; the lame prenticed, and to be written on royal paper according to the fchedule annexed, marked delivetedto (E), to be bound up and depofited by the company of pariffi clerks ; and l f S C °^"L t ' ie ^'^ company ihall make out an abftract thereof, diftinguiffiing the AbTraft C E ' numDer placed out from each pariffi, and how many of them were born in thereof to be the work-houfe or pariffi-houfe •, and ffiall caufe the fame to be printed ; printed, and and ffiall fend fix fair copies of the faid abftract to each pariffi [refpec- delivered to tivelv." "egiu-rs and ^ e ^' 2 1 ' " -^ nd ^ e lt ^ un ^ er enacted by authority aforefaid, that the firft lifts to com- annual regifter of the faid infant poor, and alfo the firft annual lifts of merceand apprentices, hereby intended and directed to be kept, fhall commence on end annually tne f a id firft day of July, and ffiall end on the thirty-firft day of December en- at a certain f ■ time. ° ' 3ppjenftcea. 117 fuing *, and after that time the faid annual regifter and lifts fhall commence the firft day of January, and end the thirty -firft day of December fol- lowing." Seel. 22. " And be it further enacted by the authority aforefaid, that all General ex- expences incident to and attending the nurfing, maintenance, education, pencesnot placing out apprentice, orotherwife relating to the matters herein contained, °!j e 'j w , ,fe pr0 " the manner whereof is not herein particularly ordered and directed, fhall b ' e paj/ouTof be paid out of the monies arifing from the poors rates of the refpective the Poors parifhes wherein filch" expences fhall be incurred."' Rates. Setl. 23. " And be it further enacted by the authority aforefaid, that if Penalty on any churchwarden, overfeer of the poor, veftryman, clerk of the veftry, P 3 "" 1 officers » mafter of the workhoufe, mafter or warden of fuch company of parifh ™ ur^I' clerks, or any clerk of fuch company, or any other perfon or perfons, their duty, fhall neglect his duty as directed in and by this act-, fuch churchwarden, overfeer of the poor, clerk of the veftry, or mafter of the workhoufe, maf- ter or warden of fuch company of parifh clerks, or fuch clerk of fuch com- Dany, perfon or perfons, fhall, for every offence, forfeit and pay to the informer the fum of five pounds ; to be recovered before any two or more of his majefty's juftices of the peace, and to be levied by diftrefs and fale of the goods and chattels of the offender, by virtue of a warrant under the hands and feals of the juftices before whom the fame fhall be recovered, directed to any conftable or other peace officer ; and if there fhall be any overplus of the faid forfeiture, the fame fhall be returned to the owner, after the charges of fuch diftrefs and fale fhall be deducted. Setl. 24. " And be it further enacted by the authority aforefaid, that Publick aft. this acf fhall be deemed, adjudged, and taken to be, a public act; and be judicially taken notice of as fuch, by all judges, juftices, and other perfons whatfoever, without fpeciajly pleading the. fame," SCHE- n8 3fpp*ettttce*\ MBBBMBM H ■ ■ ■■ 3- a. 3; en re edint Hofpi tal. • o * w B* ^ 3" c 5" 3 sa," •») •>i3 gS" S!5^iJ5 •»1 ri M -I t—. C •-* n O rt a. Si. S' 5' 5. 5" IF 1 3 f3 3 ■ III [ 1 s 1 • y n**yo i-i „ o |sj N n a Pi fH < S 9 ? £L 3 B* « a. t- Rew to t Nur for t Ca .... b. «i- ?2 S." ™ e. I S 1 J s b • o „ o a r>3 3 a c/> If has had the Small Pox. When. o a ? a a,- 3 2. w ^^1 C "• a T3 "0 ^4 S "O c enti arge e in enti r w out, claime lien, a Regift w « ^ Q. O > 3 O «-» «• ►d M o o S3* o 4p ft o 3 ^ ^ 2 '^ _. S " ST 2 o ft e m 3 »■£. 8 T3 O _ f &> 3 5 ' &,« EJ.T3 #£ < pi 3 5- §^ OQ 3 OP 3 9- S-a. n H S^ 3^ >■ 3. 2. CL -, ^-^ i-» o o »1 1-^ (A n X w d a w w D Q w o CO CO bO c i- * ■G S>s u « o u *rt* rG s I D O c o Ui Cu, < J3 C 3 ft ft — a o o < Oh o .G (A O w Pi < < o C3 Ph u J3 Q G > CJ CO C rt T3 a o o o .G <— . o G u 0-, O a q— cj= o. m 3 e . "* c •■O B j} SO C <*- = - - — > w O . 1 v - S o u ■ u « ■g - Si u w S <* c S e Z .2 I : A a. 31J o w Q w s U to '_1 J IjSjSJ^si .2 •S — -= o -o 5 _ OS V > 4* - fe Q "■£ s-S ^ V O u C H r-^i: S 2 ,, •■ inx 2-"2>Ji'-oJi 3 u g-o c ' X -° -^ 2i ^ u c u -a 5 2 U j« k in * < o-<- ^ >- *>- S'BjsJ3U-guS6 O .h a o -i4 O 120 ■5 * o o 1 ° K >, o U u w •J Q w ffi u CO M3 fc> 4-* ^^ » c = .22 o i> < c 3 OS u « o o Oh PS o c > to C OJ no C O u «j a> X! O OS a to Q -S s < 2 ; >*- «* w -s c pi G *3 ^§ < - o <; apprentices. "— « o ■■5 cl-c ■_:■-" § .2 < „• "S | g o«S ■B ° e-" feZ. "■2 S % k. — S 3 « Price of Nurfing each week a SZ EJS.S.S S.tf-S til :iK I Oj <« 1- -. «« . 3 *•* fc -o 3 3 » rt z = S 3 u -o .* Q u "3 c 5 S 6 h- m j; '*. x " J= *5?fiSJ iw:5 i^i ns -O cJ)|'-=-« --,-§3 |« * *0."0 ill feO U - o o — ■ — " o S — — i £ o ** . ^ a ^o-d. w Q W u CO 1 3ornundttt>.tcareofthepar;ni,bacnotintl,t^ork-houfecrpjri(hhoufe! r 21 Apprentice! out, or put out to Service, I E S -n c w* HO* >• 3 O 3 B *3 S £-< -a =^; . M S-S Orj Six Years Two Years. P *-< G £ S' s r>| S S-S j 5 3* 3 n o < G O w -> 3 -o ° o • »7 122 >2 1 Si f5 <» 3 O cr. •*» n r» o 3" • n When b receiv If born Workho Parifh.hc Mo =■ o ~! O *1 < Age wh ceive in Ye Months Day s • •» " 3 o- 2 p N >2T •a 3 3 u o n a °* ^m. fl 5^ — — i » ft"M O! „ " 2 * ~> , 3 n -* < bd=f c S • r» O ^T»# N# 3^ 3 Co 2 e liv- treet, r other dlion. r< Age whe placed out, in Years,an Months § • a. 3 _ w "O JO C n 3 g-S «.• w to o. o s 3 £-' 5' 5* n the nal Fee down. 50 cr> w < o r> 3 *-* C/> 3* H o w •■*» JO X o Crt ►■*% s 3* .a 3 o n It o > W c* ►0 a rjq 3* 50 H O GO Z C5 S> H C>q O N* ti n 3"* »< w n o •"*» H tr b "2- o ex. *>> n> • 3 CX, 3 O c rr VJ •-► i-J O T) ti •-i 5* o ►*> » o r> o >i CX. ^- * 3 09 r* o r» 3* O ► & (O O ►*» ►0 w 2 tr* S3 o 3 3 n 3 3* O ►n r» cr o CO n r> o 3 CX. to 3 o U. ►n CO O EC w c w fer «/i&«; w^/ftrj, /^ larceny, ©crtiant, @tamp0. ^»i /*»■ tie Jettlements of Apprentices, fee J^OO^. I2j app£oton\ A ^ approver, (in Latin, probatory is one who being indicted of treafon il. or felony, for which he is in prifon, confcffes the indictment; and being fworn to reveal all the treafons and felonies he knows, enters before a coroner his appeal againft all his partners in the crime within the realm. Hal. P. C. 192. 3 Inft. 129. S. P. C. 1^2. All perfons may be approvers except peers of the realm, perfons at- tainted of treafon or felony, or outlawed, infants, women, perfons nan com- pos, or in holy orders. 3 Inft. 129. Hal. P. C. 192. The court is not bound of right to admit any perfon whatfoever to be an approver, nor will any perfon be admitted, unlefs he be actu- ally indicted of treafon or felony, and confeffes the indictment, nei- ther fhall a perfon indicted of felony continue to be an approver after an appeal exhibited againft him for the fame felony •, neither fhall the appellee of an approver be himfelf an approver ; for it would falfify the appeal of the firft approver, in fuppofing that he had omitted fome of his partners, but alio becaufe it would caufe an infinite delay •, for the appellee of fuch an approver might as well become an approver of others, and fo on. 3 Inft. 139. S. P. C. 144. 2 Hawk. P. C. 205. A man can only approve others of the very fame crime with that for which he is indicted, and therefore no man can approve another with hav- ing been an acceffary to himfelf, becaufe it is an offence of which it is not poffible that he himfelf can be guilty ; but in as much as an approver is fworn to reveal all the treafons and felonies he knows, if he accule perfons of crimes different from his own, fuch accufation ieems a reafonable ground to carry on a prolecution againft them for fuch crimes, though it be not of itfelf fufficient to put them on their trials. 2 Inft. 629. Fitz. Coron. 127. 2 Hawk. P. C. 206. If it appear either by the confefilon of the approver, or by the return of the {heart, or the teftimony of perfons of credit, that there are no fuch perfons, as fome of thole appealed, in rerum natura, or in the realm, or in the county whereof they are named in the appeal, he fhall be hanged, un- lefs the court in mercy ipare him. 2 Hawk. P. C 206. The juftices of the King's Bench, and juffices of gaol-delivery, and juf- tices \n Eyre, may admit a man to be an approver, becaufe fuch juftice, may affign a coroner to take the appeal; but juftices of the peace cannot admit a man to be an approver, becaufe they cannot affign a coroner. 3 Inft. 130. H. P. C. 194. As foon as a perfon has confeffed the indictment, with an intent to be- come an approver, he puts it in the difcretion of the juffices, either to give judgment and award execution againft him, or to refpite him till he hath convicted his partners-, if the juffices think fit to admit him to be an approver, they will affign a coroner to receive his appeal, and will take his oath to difcoverall the treafons and felonies he knows, and will affign him R 2 a certain 124 SCppjotot. a certain number of days to make his appeal in, during which he fhall be at liberty, and fhall have from the king a penny a day ; alio he muft make his appeal before the coroner on each day during the time limited, and muft at laft repeat it verbatim in court ; and if the coroner record his fai- lure of making his appeal on any of the days, or the leaft variation in his repeating it in court, he fhall have judgment of death. 3 Infi. 129. H. P. C. 144. 2 Inft. 6icj. 2 Hawk. P. C. 207. As it is in the difcretion of the court whether they will fuffer one to be an approver, this method of late hath been feldom practifcd : and in many cafes we have what feems to amount to the fame, by ftatute ; whereby pardon is affured to offenders, on difcovering and 'convicting their accom- plices. 1 Burn tit. Approver. arraignment. A PRISONER is faid to be arraigned, when he is indicted and brought forth to his trial. Arraigned within the verge upon murder. Staundf. PL Cor. fol. 1 50. The manner of this arraignment may be read in Sir Thomas Smith de Rep. lib. 2. cap. 25. The learned Spelman is of opi- nion it fhould be written arrcme from arramare, and that from the old French arramir, i e. jurare, promittere, folemniter prcfiteri. But this muft be a miftake : for in the Regilter we find no fuch word as arramare ; but in all the writs of aflize 'tis arrainavit : and fo it is in the year-books, and in Fitzh. Nat. Brev. The true derivation is from the French arraifoner, i. e. ad rationem ponere, viz. to call a man to anfwer in form of law; and this comes from the barbarous Lat. adrationare, i. e. placitare : fo that when a criminal is arraigned, 'tis ponere eum ad rationem. Cowell, edit. 1727. When an offender comes into court, or is brought in by procefs, fome- times of capias, and ibmetimes of habeas corpus directed to the gaoler of another prifon •, the firft thing that follows thereupon is his arraignment. 2 Hal. H. 2 1 6. Now arraignment is nothing elfe but the calling the of- fender to the bar of the court, to anfwer the matter charged upon him : and the word in Latin is no other than ad rationem ponere, and in old French ad re/on, or abbreviated a refn ; for as the ancient word difrain or derayn imports in Latin difrationare, to difprove, or evince the contrary of any thine that is or may be affirmed, fo arraigne is ad rationem ponere, to call to account or anfwer. 2 Hale's Hijl- 2 1 6. The prifoner on his arraign- ment, tho' under an indictment of the higheft crime, muft be brought to the bar without irons and all manner of fhackles or bonds, unlefs there be a danger of efcape, and then he may be brought with irons. 2 H. H. 219. And there is no neceflity that a prifoner at the time of his arraignment, hold up his hand at the bar, or be commanded lb to do y for this is only a cere- 1 mony Strtatgnmene. 125 mony for making known the perfon of the offender to the court j and if he anfvvers that he is the fame perfon, it is all one. 2 Hawk. 308. If in an action of (lander for calling one thief, the defendant jufiifies that he dole goods, and iffue is thereon taken •, if it be found for the defen- dant in B. R. and for felony in the fame county where the court fits, or be- fore juftices of affize, &c. he (hall be forthwith arraigned upon this verdict of twelve men, as on an indictment. 2 Ha. H. P. C. 151. The pleas upon arraignment are either the general iffue, Not guilty, plea in abatement, or in bar, and the prifoner may demur to the indictment ; alfo he may confefs the fact, but then the court has nothing more to do than to proceed to judgment againft him. If he (lands mute, and doth not put himfelf upon trial, he (hall fuffer the penance of pain fori Cif dure in cafes of felony, is'c. 3 Infi. 217. ARREST (arreftum, from the French word arrejler, to flop or ft ay) fignifies a reftraint of man's perfon, depriving him of his own will and liberty, and binding him to become obedient to the will of the law: and it may be called the beginning of imprilbnment. Convell. It feems clear, that all perfons whatfoever who are prefent when a fe- By whom of* lony is committed, or a dangerous wound given, are bound to apprehend fcndtrs may the offender, on pain of being fined and imprifoned for their neglect, U n- be arreIled or lels they were under age at the time. 2 Hawk. 74. apprehended, And for this caufe, by the common law, if any homicide be committed, or dangerous wound given, whether with or without malice, or even by mifadventure or felf-defence, in any town or in the lanes or fields thereof, in the day-time, and the offender efcape, the town (hall be amerced, and if out of a town, the hundred (hall be amerced. 2 Hawk. 74. And fince the ftatute of (Vinchefter, cap. 5. which ordains that walled towns (hall be kept (hut from fun-fetting to fun-rifing, if the fact happen in any fuch town by night or by day, and the offenders efcape, the town (hall be amerced. 2 Hawk. 74. And as all private perfons are bound to apprehend all thofe who (hall be guilty of any of the crimes above-mentioned in their view, fo alfo are they with the utmoft diligence to purfue, and endeavour to take all thofe who (hall be guilty thereof out of their view, upon a hue and cry levied againlt them. 2 Hawk. y$. Hue and cry is the purfuit of an offender from town to town till he be taken, which all who are prefent when a felony is committed, or a dan- gerous wound given, are by the common law, as well as by ftatute, bound to raife againft the offenders who efcape, on pain of fine and imprilbn- ment : alio it feems certain, that a man may lawfully raife it againft on« who- 1 26 SCtrefh For what caufes of fu- j t OU g nt to let forth the year and day wherein it is made, that in an is to be ma e. a( cj.j on brought upon an arreft made by virtue of it, it may appear to have been prior to fuch arreft. 3. It is fafe, but perhaps not neceffary, in the body of the warrant to ftiew the place where it was made ; yet it feems neceffary to fet forth the county in the margin, at leaft if it be not fet forth in the body. 4. It may be made either in the name of the king, or of the juftice himfelf. 5. If it be for the peace or good behaviour, it is ad- viieable to fet forth the fpecial caufe upon which it is granted ; but if it be for treafon or felony, or other offence of an enormous nature, it is faid, that it is not neceffary to fet it forth-, and it feems to be rather difcretionary, than neceffary to fet it forth in any cafe. 6. Such a warrant may be either general, to bring the party before any juftice of peace of the county, or fpecial, to bring him before the juftice only who granted it. 7. It may be di- rected to the fheriff, bailiff, conftable, or to any indifferent perfon by name, who is no officer ; for that the juftice may authorize any one to be his of- ficer, whom he pleafes to make fuch, yet it is moil advifeable to direct it to the conftable of the precinct wherein it is to be executed ; for that no other conftable, and a fortiori no private perfon, is compellable to ferve it. 2 Hawk. P. C. 85. In what man- As to this point, the following rules are laid down ; ift, That a bailiff ner fuch war- or a conftable, if they be fworn and commonly known to be officers, and rant is^to be a( ^. w j tn j n t j ie -, r own p re cin£ts, need not fhew their warrant to the party, notwithftanding he demand the fight of it, but that thefe and all other perfons whatfoever making an arreft, ought to acquaint the party with the fubftance of their warrants, and that all private perfons, to whom fuch war- rants fhall be directed, and even officers, if they be not fworn and com- monly known ; and even thefe, if they act out of their own precincls, muft fhew their warrants, if demanded. 2dly, That the fheriff having fuch warrant direfted to him, may authorize others to execute it •, but that every other perfon to whom it is directed, muft perfonally execute it; yet it feems, that any one may lawfully affift him. 3 Margaret time made thereon, authorizing and directing any juftice or juftices of Hutt's cafe, or peace in that county (Southampton) to take the fecurity of the peace there -, m\ V B< d V * fp ec 'fy' n g tne particular fums wherein the principals and alfo their fureties Epworth. ihould be bound. Per Cur. It was ordered accordingly. For other matters, fee gmtetp Of tlje Peace. affault ant) Matter]). ASSAULT is derived from the old latin word affultus, that is, a leaping on, or from the French verb affailer, to attack, and fignifies an attempt or offer, with force and violence, to do a corporal hurt to another, as by ftriking at him without a weapon ; or prefenting a gun at him, at fuch a diftance to which the gun will carry •, or pointing a pitch-fork at him, Handing within the reach of it •, or by holding up one's fift at him •, or by any other fuch like aft, done in any threatening manner, i Hawk. 133. T5itt'tEtp, (from the French Battre, to ftrike, or from the Saxon Batte, a club) feems to be when any injury whatfoever, be it never fo fmall, is actually done to the perfon of a man, in an angry or revengeful, or rude, or infolent manner; as by {pitting in his face, or any way touching him in anger, or violently juftling him out of the way, and the like. 1 Hawk. , 34- Any injury whatfoever, be it never fo fmall, being actually done to the perfon of a man, in an angry or revengeful, or rude or infolent manner, as by fpitting in his face, or any way touching him in anger, or violently juftling him out of the way are batteries in the eye of the law. 6 Mod. 149, 172. 1 Mod. 3. 3 Lev. 404. 1 Hawk. P. C. 134. But to lay one's hand gently on another, whom an officer has a warrant to arreft, and to tell the officer that this is the man he wants, is not a battery. 2 Roll. Abr. 546. 1 Fawk, P. C. 134. So if two by confent play at cudgels, and one happens to hurt the other, as their intent was lawful and commendable, in promoting courage and activity, it docs not feem to amount to battery. Dalt. c. 22. Bro. Cor on. 229. If A. lays his hand on his fword, and fays, that if it were not aff.ze time I would not take fuch language from you, that is no affault, for it is plain he did not deiign to do him any corporal hurt at that time, and a man*s intention muft operate with his adl in constituting an affault. 1 Mod. 3. It feems agreed, that at this day no words whatfoever, be they never fo provoking, can amount to an affault, notwithstanding the many ancient opinions to the contrary. 1 Hawk. P. C. 134. Every battery includes an affault ; therefore if the defendant be found guilty of the battery, it is fufficient. Salk. 384. 1 Hawk. P. C. 134. §0 Slffattu ant) Battttv. 139 So if one foldier hurts another by difcharging a gun in exercife, this cannot amount to a battery, though if it be done without fufficient caution, he is liable to an aftion at the fuit of the party injured. Hob. 134. 2 Roll. Abr. 548. If an officer, having a warrant againft one who will not fuffer himfelf In what «r« to be arretted, beat or wound him in the attempt to take him ; or if a j" 1 affau,t ind parent in a reaibnable manner chaftife his child, or a mailer his fervant, kinMed/ being actually in his fervice at the time-, or a fchoolmafter his fcholar, or a gaoler his priibner, or even a hufband his wife ; or if one confine a friend who is mad, and bind and beat him, in fuch manner as is proper in fiich circumstances •, or if a man force a iword from one who offers to kill another therewith ; or if a man gently lay hands on another, and thereby ftay him from inciting a dog againft a third perfon •, or if I beat one, without wounding him, or throwing at him a dangerous weapon, who wrongfully endeavours with violence to difpoffefs me of my land, or goods, and will not defift upon my laying my hands gently on him, and dilturbing him •, or if a man beat, or, as fome fay, wound, or maim one who makes an affault upon his perfon, or that of his wife, parent, child, or maiter, efpecially, if it appear that he did all he could to avoid fighting before he gave the wound ; or if a man fight with or beat one who attempts to kill any ftranger •, or if a man even threaten to kill one who puts him in fear of death in fuch a place where he cannot fafely fly from him ; or if one imprifon thole whom he fees fighting, till the heat be over •, in thcfe cafes it feems the party may juftify the afi'ault and battery. 1 Hawk. P. C. j 30, 131. A perfon may juftify an a filial t, in defence of his perfon, or of his wife, or matter or parent, or child within age •, and even a wound- ing may bejuftified in defence of his perfon, but not of his poffefiions. 3 Salk. 46. And where a man in his own defence beats another who firft affaults him, he may take advantage thereof, both upon an indictment and upon an action ; but with this difference, that on an indictment he may give it in evidence upon the plea of not guilty, but on an action he mult plead it fpecially. 1 Hawk. 134. There is no doubt but that the wrong-doer is How nn j aw f u j fubject both to an action at the fuit of the party, wherein he fhall render affaults and damages ; and alfo to an indictment at the fuit of the king, wherein he batteries are fhall be fined according to the heinoufnefs of the offence. 1 Hawk. 134. puniroed. @tflt. 9 Ann. c. 16. [A. D. 1710. intituled,'] " An act to make an attempt on the life of a privy couniellor, in the execution of his office, to be felony without benefit of clergy." " Whereas Anthony de Gut/card, commonly called marquis de Guifcard, a French papift, refiding in England under her majefty's protection, and fubfift- ed by her majefty's bounty for fome years pait, was charged with holding a traiterous correspondence with France, and being taken into cuftody for fuch his treafon by Nathan Wilcocks, of the parifii of St. James Weft- minjier in the county of Middle/ex, gentleman, one of her majefty's mef- T 2 fen gers *4« SMTault aun Battery. fengers in ordinary, by virtue of a warrant of the right honourable Henry Saint John efq-, one of her majefty's principal fecretaries of ftate, and on the eighth day of March in the year of our Lord one thoufand leven hundred and ten, being under examination before a committee of her majefty's moft honourable privy council for the fame, perceiving his faid trealbn to have been fully detected, being confcious of his guilt, and dread- ing the pain and infamy of his approaching punifhment, in hopes of preventing the fame, and in revenge for the difcovery of the faid offence, did, with a penknife, in a barbarous and villainous manner, ftab the right honourable Robert Harley, efq-, chancellor of her majefty's Exchequer, and one of her majefty's privy council, then prefent, affifting in that commit- tee, and endeavoured to wound others of her majefty's privy council there: And whereas in the preventing further mifchief from the rage of the faid Anthony de Guifcard, and in apprehending and fecuring him, he the faid Anthony de Guifcard was neceffarily and unavoidably bruifed and wounded, and is lince dead in the prifon of Newgate in the city of London : And whereas no fufficient punifhment is provided for affaulting or wounding a privy counfellor in the execution of his office, by any law now in being ; to the end that all perfons may be deterred from committing fuch offences, After i May ar >d for preventing the like mifchiefs for the time to come ; Be it en- 171 1. who- acted by the queen's moft excellent majefty, by and with the advice and ever (hail content of the lords fpiritual and temporal, and commons in this prefent attempt tokill, parliament affembled, and by the authority of the fame, that if any per- Counfellor'in ^ on or P er f° ns 5 from and after the tirrt day of May in the year of our Lord the execution one thoufand feven hundred and eleven, fhall unlawfully attempt to kill, ofhisoffice, or fhall unlawfully affault, and ftrike or wound any perfon, being one of the declared a mo fl. honourable privy council of her majefty, her heirs or fucceffors, when fuffer death as ' n tne execur -i° n or his office of a privy counfellor in council, or in any fuch without committee of council, that then the perfon or perfons fo offending, being clergy. thereof convicted in due form of law, fhall be and are hereby declared to be felons, and fhall fuffer death as in cafes of felony, without the benefit of clergy. Nathan Wil- Seel. 2. " And be it further enacted by the authority aforefaid, that the cocks, &c. fa- faid Nathan fVilcocks (who by an inquifition taken the feventeenth day of ved harmlefs. tne ^j^ month f March, before George Rivers efq; coroner of the faid city of London, on view of the body of the faid Anthony de Guifcard, then and there lying dead) is found to have given him the faid Anthony de Guifcard feveral mortal bruifes of which he died, and all and every other perfon and perfons, who were affifting in the defence of the faid Robert Harley, and in the apprehending and fecuring the faid Anthony de Guifcard, and did, in fo doing, affault, bruife, or wound the faid Anthony de Guif- card, fhall be, and are hereby indemnified and faved harmlefs therefore -> and fuch their actings and doings are hereby declared to have been necef- fary and lawful." @>tat. ^(Tault ana JSattcrp. 141 ©tat. 7 Geo. 2. c. 21. {A. D. 1734. intituled,} " An act for the more effectual punifhment of affaults with incent to commit robbery." " Whereas many of his majefty's fubjects have of late frequently been put in great fear and danger of their lives, by wicked and ill-dilpofed per- fons affaulting and attempting to rob them : And whereas the punilhment of fuch offenders is not adequate to the heinouihefs of that crime, nor fuf- ficient to deter wicked perlbns from fuch attempts ; to the end therefore that all perfons may be deterred from committing fuch offences, and for the greater punifhment of luch offenders, and for the more effectual pre- venting of the like mifchiefs for the future : Be it enacted by the king's molt excellent majefty, by and with the advice and conient of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That if any perfon or perfons, from and After i May, after the firft day of May in the year of our Lord one thouiand feven ' 734» Periboi hundred and thirty-four, fhall, with any offenfive weapon or inftrument, c ° nviC ' ed ot unlawfully and malicioufly affault, or fhall by menaces, or in or by any \™ s ^" t S h ° f. forcible or violent manner, demand any money, goods or chattels, of or fenfive wea- from any other perfon or perfons with a felonious intent to rob or commit pons. amiade- robbery upon fuch perfon or perfons, that then and in every fuch cafe all JJ2',' r ° robi and every fuch perfon and perfons fo offending, being thereof lawfully Q^/e"^' convicted, fhall be, and be adjudged guilty of felony, and every fuch years, offender and offenders fhall be fubject and liable to be tranfported as in cafes of felony; and the courts by and before whom he, fhe, or they fhall be tried and convicted, fhall have full power and authority of transporting fuch offenders for the fpace of feven years, upon the like terms and con- ditions, and by the fame ways and means, and in like manner as other felons may or are to be tranfported to any of his majefty's colonies or plan- tations in America, by force or virtue of any law for that purpofe now in being. Setl. 2. " And be it further enacted by the authority aforefaid, that if Such convifls any fuch offender or offenders aforefaid, who fhall be ordered for tranfpor- breaking gaol, tation by or by virtue of this prefent a-ft, fhall break gaol, or efcape before or unl . awf " 1, y fuch tranlportation, or fhall return into any part of Great Britain or Ire- [ranfoorfation! land before the expiration of the faid feven years, for which fuch offender fnali fuffer or offenders fhall be fo ordered to be tranfported, as aforefaid, contrary to death, the intent and meaning hereof-, all and every fuch perfon and perfons fo breaking gaol, efcaping, or returning into any part of Great Britain or Ireland, within the time aforefaid, being thereof lawfully convicted, fhall fuffer death as felons, and have execution awarded againlt them as perfons attainted of felony, without benefit of clergy." ©tat. 6 Geo. 1 c. 23. [A. D. 1 7 1 9. intituled,] " An act for the further 6 Geo. 1. preventing robbery, burglary, and other felonies, and for the moreeffec-c 23. tual tranfportation of felons." Seft. 11, "And be it further enacted by the authority aforefaid, that After June 24 if any perfon or perfons fhall at any time or times, from and after the .' 720 ' a(Iault - 2 twenty- lng anv perfon 3 twenty - in , he rtree:Si 1 42 SliTatttt attt) Batterp. ic. to tear twenty -fourth day of June in the year of our Lord one thoufand feven their cloaths, hundred and twenty, wilfully and malicioufly affault any perfon or perfons &c. (hall be ; n fa p U blick ftreets or highways, with an intent to tear, fpoil, cut, burn, felon °and or deface, and fhall tear, fpoil, cut, burn, or deface the garments or nLy'tle t a r a n f. cloaths of fuch perfon or perfons, that then all and every perfon and per- ported for 7 fons fo offending, being thereof lawfully convicted, fhall be and be ad- years, judged to be guilty of felony ; and every fuch felon and felons fhall be fubjedt, and liable to the like pains and penalties as in cafe of felony •, and the courts by and before whom he, fhe, or they fhall be tried, lhall have full power and authority of tranfporting fuch felons for the fpace of feven years, upon the like terms and conditions as are given, directed, or en - acted by this or the before recited act." &fli?e$. ASSISE, (Fr. ajjls) according to our ancient books is defined to be an affembly of knights, and other fubftantial men, with the bailiff or juftice in a certain place, and at a certain time appointed. Cujiom. Nor- tnand. cap. 24. This word is probably derived from the Latin verb affidco, to fit together ; and is alio taken for the court, place or time, when and where the writs and proceffes of ajjife -re handled or taken. And in this fignificaticn affife is general; as when thejuftices go their feveral circuits with commiffion to take all affifes •, or fpecial, where a fpecial commiffion is granted to certain perfons, (formerly oftentimes donej for taking an affife upon one or two diffeifins only. Bratl. lib. 5. Cowell. Concerning the general affife, all the counties of England are divided into fix circuits, and two judges are afiigned by the king's commifiion to every circuit, who hold their affifes twice a year in every county, (except in Middlefex, where the King's courts of record do fit, and where his courts for his counties palatine are heldj and have five feveral commif- fions. 1. Of oyer and terminer, directed to them and many other gentle- men of the county, by which they are empowered to try treafons, felo- nies, £?V. and this is the largeft commifiion they have. 2. Of gaol-deli- very, directed to the judges and clerk of affife affociate, which gives them power to try every prifoner in the gaol committed for any offence whatfo- ever, but none but prifoners in the gaol ; fo that one way or other they rid the gaol of all the prifoners in it. 3. Of affife, directed to themfelves only and the clerk of affife, to take affifes and do right upon writs of affife brought before them by fuch as are wrongfully thruft out of their lands and poffefiions : which writs were heretofore frequent, but now men's poffefFions are fooner recovered by ejectments, i£c. 4. Of niji prius, di- rected to the judges and clerk of affife, by which the civil caufes grown to iffue in the courts above, are tried in the vacation by a jury of twelve men SCffoes* 143 men of the county where the caufe of action arifes ; and on return of the verdict of the jury to the court above, the judges there give judgment. 5. A commiffwn of the peace, in every county of the circuits ; and all jus- tices of the peace of the county are bound to be prefent at the affife s ; and fheriffs are alfo to give their attendance on the judges, or they (hall be fined. Bacon's Klein. 15, 16, £? V. There is a commiflion of the peace, oyer and terminer and gaol-delivery of Newgate, held feveral times in a year, for the city of London and county of Middle/ex, at Jujfice-Hall in the Old Baily, where the lord mayor is the chief judge. In Wales there are but two circuits, North and South Wales ; for each of which the king appoints two perfons learned in the laws to be judges. Stat. 18 Eliz. cap. 8. If juftices fit by force of a commiffion, and do not adjourn the commifiion, it is determined. \Infl. 265. The confiitution of the juftices of ajfife was begun by Henry 2. though fomewhat different from what they now are : and by Magna Charta, juftices fhall be lent through every county once a year, who with the knights of the refpective (hires fhall take afiizes of novel diffeijin, &c. in their proper (hires, and what cannot be determined there, (hall be ended by them in fome other place in their circuit ; and if it be too difficult for them, it fhall be referred to the juftices of the bench, there to be ended. 9 Hen. 3. cap. 12. Juftices of affife, &e. are to hold their feffions in the chief towns of the county ; and their records to be lent into the Exchequer. 6 R: 2. 9 Ed. 3. By flat. 21 Geo. 2. c. 12. the fummer affife s in Buck- inghamshire fhall be held at the town of Buckingham. Affife is likewife uied for a jury, by whom ajfifes of novel diffeifin are tried. Lit. cap. Rents. The panels of ajjifes fhall be arrayed, and a copy indented delivered by the fheriff, &c. if demanded, on pain of 40/. by ftatute 6 Hen. 6. cap. 2. And affife is taken for a writ for recovery of pofteffion of things immoveable, whereof any one and his anceftors have been dilleifed. Likewife in another lenfe,. it fignifles an ordinance or ftatute. Reg. Qrig. 279. Lit. cap. Rents.. Vermes de la Ley. And there are four writs of ajfife : an affile of novel dif- feifin, an affile of mart d'ancejlor, an affile of darrein prefentment, and an affife of juris utrum. Co. Lit. 155. a. attachment ATTACHMENT, (from the Fr. attacher) is a procefs that ifiues at the difcretion of the judges of a court of record, againft a perfon for fome contempt, for which he is to be committed, and may be awarded by them upon a bare fuggeftion, or on ti eir own knowledge without any appeal, indictment or information ; for though by the ftatute of Magna Charta, none are to be imprifoned fine judicio parium, vel per legem terra', without judgment of their peers or equals, or by the law of the land; yet this fummary H4- 3lttacl)ment fummary method of proceeding being abfolutely neceffary to the further- ance and execution of juftice, feems to have been long practifed, and is certainly now eitablifhed as part of the law of the land. Lamb. Eiren. lib. i.e. 1 6. i Bat. Abr. 180. All courts of record have a difcretionary power over their own officers, and are to fee that no abuies be committed by them, which may bring dis- grace on die courts themfelves ; therefore if a ffieriff or other officer fhall be guilty of a corrupt practice in not ferving a writ -, as if he ref'ufe to do it, unlets paid an unreafonable gratuity from the plaintiff, or receive a bribe from the defendant, or give him notice to remove his perfon or effects, in order to prevent the fervice of any writ; the court which awarded it may punim fuch offences in fuch manner as fhall feem proper, by attachment, &t. as well as the court of King's Bench, which has a ge- neral fuperintendancy over all crimes whatfoever, but commonly leaves offences of this kind, in relation to caufes in other courts, to be punifhed by fuch courts to which they more immediately belong. 2 Hawk. 142. Seflions can- An order had been made on overieers to pay over fifty-fix pounds to the not award an fficceeding overfeers on the 43 Eliz. tap. 2. Appeal to the feffions, who atm , er confirmed the order, and for non-compliance made an order againft the ing an order, defendant for an attachment for a]contempt. Moved to quafh this order 2 sefl' Ca. for an attachment, on the common principle, that the feffions has no power 176. Hil. to award an attachment. But the party ought to have been indicted. Trf C k" 2 ^° wn ' cn ' xt was anfwered, that the ftatute of Eliz. gives the feffion a ge- aeainllBart- nera l jurifdiction to make fuch order as to them fhould feem meet. And let, though in general he admitted the feffions could not award an attach- ment •, yet under this act they had a general authority, and as a court of record they might award an attachment for a contempt. But by the court : They cannot award an attachment -, faid they would not determine how it would have been if they had committed him, but the ordinary and proper method is by indictment. Order quafhed. $ttatni»er. ATTAINDER is a conviction of any perfon of a crime or fault whereof he was not convicted before; as if a man hath committed felony, or treafon, and thereof is indicted, arraigned, and found guilty, and hath judgment, then he is faid to be attainted. And this may be two ways, the one upon appearance, the other upon default. The attainder upon appearance is by confeffion, or verdict; the attainder upon default is by procefs until he be outlawed. Termcs de la ley. The difference between a man attainted and convicled is, that a man is faid to be convicted before he hath judgment, as if a man be convicted by confeffion or verdict ; and when he hath his judgment upon the verdict or $ tt&f tlDCt. i+5 or confeflion, then he is faid to be attainted. Co. Lit. 390. b. Tor the caijequences of being attainted or convicled of treafon or felony, fee Ct'Cfl= fon, ireionp. attaint, ATTAINT is a writ that lieth after judgment againft a jury that . have given a falfe verdift in any court of record, in an attion real or perfonal, where the debt or damages amount to above 40 s. It is called attaint, becaufe the party endeavours thereby to irain or taint the credit of the jury with perjury, by whofe verdidt he is aggrieved ; for he mall have this writ againft the twelve men •, and when they are at iflue, it mail be tried by twenty-four jurors, and if the falfe verdict be found, the twelve men are attainted ; and then the judgment (hall be, that their meadows (hall be plowed, their houfes broken down, their woods turned up, and all their lands and tenements forfeited to the King •, but it it pafs againft him who brought the attaint, he fhall be imprifoned, and griev- ouflv ranibmed at the King's will. Cowell. Termes de la ley. See Co. Lit. 294. b. See Jul'?. attojuep* A TTORNEY, (attcrnatus) is a perfon appointed by another to do _/~Y any thing in his ftead, and is as much as procurator or fyndicus in the civil law. Cowell. Weft in his Symb. part. 1. lib. 2. feci. 559. defines attornies thus : Attornies are fuch perfons as by the confent, command- ment, or requeft of another, do take heed, fee to and take upon them the charge of other men's bufinefs in their abfence. But the perfon here treated of is an attorney at law, who is appointed to profecute and de- fend for his client, and is confidered as an officer belonging to the courts of juftice ; concerning whom are feveral ftatutes and adjudications. Before the ftatute oilVeft. 2. c. 10. [13 Edw. 1. A. D. 1285.] all attor- nies were made by letters patent under the great feal, commanding the juftices to admit the perfon to be his attorney. Thefe patents, where they were obtained, feemed to have been inrolled by a proper officer, called the clerk of the warrants •, and alfo the courts inrolled thole patents on which any proceedings were. If fuch letters patent could not be ob- tained, the perfons were obliged to appear each day in court in their pro- per perfons. Gilb. H. C. P- 32, 33. Vol. I. N° VII. U The 146 Stttojtuy. Thefaid (tatute dilVefl. 2. gives to all perfons a liberty of appearing, and appointing an attorney, as if they had letters patent, and therefore the clerk of the warrants received each perfon's warrant, and upon the war- rant it equally appeared to the court, that he had appointed fuch a one his attorney to the end of the caufe, unlefs revoked •, lb that on each act there is no occafion of the plaintiff's and defendant's prefence, as was ufed be- fore that time. This authority continues till judgment, and for a year and a day, and afterwards to fue out execution, and for a longer time, if they continue execution •, but if not, the judgment is fuppofed to be fatisfied •, and to make it appear otherwife, the plaintiff muft again come into court, which he either does by a fare fac, or an action of debt on the judgment. Gilb. H. C. P. 33. Hen 6 @>tilt 33 Hen. 6. cap. 7. [J. D. 1455. intituled,] " How many attor- c, 7. nies may be in Norfolk and Suffolk, how many in Norwich." 4inft 76. Item, " Whereas of time not long paft within the city of Norwich, and A praakeof the counties of Norfolk and Suffolk, there were no more but fix or eight contentious attornies at the mod, coming to the king's courts, in which time great attornies, to tran q U ;i]; t y re igned in the faid city and counties, and little trouble or fortheirpri- vexation was made by untrue and foreign fuits ; (2) and now fo it is, that vate profits, in the faid city and counties there be fourfcore attornies, or more, the more part of them having no other thing to live upon, but only his gain by the practice of attorneyfhip •, and alio the more part of them not being of fufficient knowledge to be an attorney, (3) which come to every fair, market, and other places, where is any affembly of people, exhort- ing, procuring, moving, and inciting the people to attempt untrue and foreign fuits for fmall trefpaffes, little offences, and fmall funis of debt, whofe actions be triable and determinable in court barons, (4.) whereby proceed many fuits, more of evil will and malice, than of truth of the thing, to the manifold vexations and no little damage of the inhabitants of the faid city and counties, and alio to the perpetual diminution of all the court barons in the faid counties, unlefs convenient remedy be pro- vided in this behalf. (5) The forefaid lord the king confidering the pre- miffes, by the advice, affent, and authority aforefaid, hath ordained and There ftiall be ftablifhed, That at all times from henceforth there (hall be but fix common but fix com attorneys in the faid county of Norfolk, and fix common attorneys in the • n °fc Zt ( °\™ eS ^'^ count y o( Suffolk, and two common attorneys in the faid city of AV- fix inSuffo'lk wV£, to be attorneys in the courts of record, (6) and that all the faid and two in 'fourteen attorneys fhall be elected and admitted by the two chief juftices Norwich. of our lord the king for the time being, of the moft fufficient and beft instructed by their difcretions ; (7) and that the election and admifTion of all attorneys, which fliall be elected and admitted by the faid juftices for the time being, above the faid number in the faid counties, fhall be void, juftices of and of no authority nor record ; (8) and if any perfon or perfons ufurp, peace fhall or prefume to be attorney in courts of record in the faid counties or city, otherwife than before is fpecified, and that found by inquifition taken be- have autho- rity to inqui el offenders rity to inquire fore fore the juftices of peace in the faid city or counties (which fliall have power, by virtue of this ordinance, to inquire thereof in their feflions) or in any other manner lawfully proved, that then he or they that fo pre- fume, if they be lawfully convict, lhall forfeit twenty pounds as often The forfc ;. as he or they be lb convict, the one half thereof to be taken to the tU re of offen- king's ufe, and the other half to his ufe which for the fame will fue ; ders. (9) and he that thereof will fue, fliall have an action of debt againlt any fuch perfon which fo prefumeth to be attorney, (10) and fuch procefs for recovery of the fame, as lieth in an action of debt at the common law upon an obligation. (11) Provided always, that the faid ordinance be- gin, and firft take effect, at the feafl of Rafter next coming, and not be- fore, if the fame ordinance feem reafonable to the juflices." ©tflt. 3 Jac cap. 7. \_ t i. D. 1605. intituled,] " An act to reform the 3 j ac . ,. Ci 7 . multitudes and miidemeanors of attomies and folicitors at law, and to avoid unneceffary fuits and charges in law." " For that through the abufe of fundry attomies and folicitors by charging their clients with exceffive fees and other unneceflary demands, fuch as were not, nor ought by them to have been employed or demanded, whereby the fubjects grow to be overmuch burthened, and the practice of the jult and honeft ferjeant and counfellor at law greatly flandered : and An attorney for that to work the private gain of fuch attomies and folicitors, the client ft 13 " h.ve a is oftentimes extraordinarily delayed : (2) Be it enacted by the authority "cketot the r , ■ r ,- 'n-,, ' r \- • r morey which or this prelent parliament, 1 hat no attorney, lolicitor, or iervant to any, he „jy eth f or fliall be allowed from his client or matter, of or for any fee given to any fees. &c. ferjeant or counfellor at law, or of or for any fum or fums of money given 1 Salk. 86. for copies to any clerk or clerks, or officers in any court or courts of re- A,e y n +• cord at Weftminfter, unlefs he have a ticket fubfcribed with the hand and name of the fame ferjeant or counfellor, clerk or clerks, or officers afore- faid, teftifying how much he hath received for his fee, or given or paid for copies, and at what time, and how often : (3) And that all attomies a bill of and folicitors fliall give a true bill unto their mafters or clients, or their charges, afligns, of all oher charges concerning the fuits which they have for Caithew 57, them, fubfcribed with his own hand and name, before fuch time as they i 47 ' or any of them fliall charge their clients with any the fame fees or charges: (4) And that if the attorney or folicitor do or fliall willingly delay his An attorney- clients fuits to work his own gain, or demand by his bill any other fums delaying his of money, or allowance upon his account of any money which he hath client's luit, not laid out or difburfed, that in every fuch cafe, the party grieved fliall or d ™ a a " d ' ng have his action againft fuch attorney or folicitor, and recover therein coils ' d ' ue and treble damages, and the faid attorney and folicitor (hall be difchargtd from thenceforth from being an attorney or folicitor any more. Seft. 2. " And to avoid the infinite numbers of folicitors and attor- Who only nies, Be it enacted by the authority of this prefent parliament, That none fra11 be attor- fhall from henceforth be admitted attomies in any the king's courts of nies or follcl " record aforefaid, but fuch as have been brought up in the fame courts, U 2 or 1 48 %ttowty. or otherwife well praftifed in foliciting of caufes, and have been found by their dealings to be fkilful and of honeft difpofition : (2) And that none to be fuffered to folicit any caufe or caufes in any the courts aforefaid, but only fuch as are known to be men of fufficient and honeft difpofi- No following tion : (3) And that no attorney fhall admit any other to follow any fuit of a fait in in his name ; upon pain that both the attorney and he that followeth any another s f ucn ^ nt: j n n j s name) fhall each of them forfeit for fuch offence, twenty pound; the one moiety whereof to our fovereign lord the king, his heirs and fucceffors, and the other moiety to the party grieved, to be recovered in any the faid courts of record aforefaid, by original writ of debt, bill, plaint, or information, wherein no manner of effoign, wager of law, or protection fhall be allowed : And that the attorney in fuch cafe fhall be excluded from being an attorney for ever thereafter." 2 Geo. z. @tflt» 2 Geo. 2. c. 23. [A. D. 1729. intituled,] " An act for the better c - 2 3- regulation of attornies and folicitors." o v " For the better regulation of attornies and folicitors, praftifing in any of the courts of law or equity, in that part of Great Britain called Eng- land, Be it enacted by the king's moil excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in After 1 Dec. this prefent parliament afTembled, and by the authority of the fame, That 1730. no per no p er fon, from and after the firft day of December one thoufand feven fon to. be ad- hundred anc j thirty, fhall be permitted to aft as an attorney, or to fue out muted an at- . y r \ e !• n • tomey, unlefs an y wnt or proceis, or to commence, carry on, or defend, any action or he take the aftions, or any other proceedings, either before or after judgment ob- oath, and be tained, in the name or names of any other perfon or perfons in his maje- inrolled. ^.y> s court; f King's Bench, Common Pleas, or Exchequer, or dutchy of Lancajler, or in any of his majefty's courts of great feffions in Wales, or in any of the courts of the counties palatine of Chejler, Lancajler, and Dur- ham, or in any other court of record in that part of Great Britain called England, wherein attornies have been accuftomably admitted, and fworn, unlefs fuch perfon fhall take the oath herein after directed and appointed to be taken by attornies, and fhall alfo be admitted and inrolled, on or before the faid firft day of December one thoufand feven hundred and thirty, in fuch of the faid courts where he fhall aft as an attorney, or fhall be fworn, admitted, and inrolled, in the faid refpeftive courts after the faid firft day of December one thoufand feven hundred and thirty, in fuch man- ner as is herein after direfted. fudges to exa- Seel. 2. " And be it further enacted by the authority aforefaid, That mme into his the judges of the faid courts refpectively, or any one or more of them, capacity, be fj ia }] ? aiK j t hey are hereby authorized and required, before they fhall ad- fiofi 3 m ' m ' £ ^ ucn P el "f° n to ta ke the faid oath, to examine and inquire, by fuch ways and means as they fhall think proper, touching his fitnefs and capa- city to aft as an attorney ; and if fuch judge or judges refpectively fhall be thereby fatisfied, that fuch perfon is duly qualified to be admitted to aft as an attorney, then, and not otherwife, the faid judge or judges of 4 the the faid courts refpectively fhall, and they are hereby authorized to admi- nifter to fuch perfon the oath herein after directed to be taken by attor- nies, and after fuch oath taken, to caufe him to be admitted an attorney of fuch court refpectively, and his name to be inrolled as an attorney in fuch court refpectively, without any fee or reward, other than one milling for adminiltring fuch oath ; which admiffion fhall be written on parch- ment in the Englijh tongue, in a common legible hand, and figned by fuch judge or judges refpectively, whereon the lawful (lamp fhall be firll im- prefied, and fhall be delivered to fuch perfon fo admitted. Sell. 3. " And be it further enacted by the authority aforefaid, That no None to be perfon, from and after the firfl day of December in the year of our Lord permitted to one thoufand feven hundred and thirty, fhall be permitted to act as a foli- aft a ' a < ° Iici " citor, or to fue out any writ or procefs, or to commence, carry on, folicit, t0 !/ an , t t or defend any fuit, or any proceedings, in the name of any other perfon, andbeinrol- ' in any court of equity, either in his majefty's high court of Chancery, led. court of equity in the Exchequer chamber, court of the dutchy chamber of Lancajler at Weflminjler, or courts of the counties palatine of Chejler, Lan- cajler, or Durham, or of the great felfions in Wales, or in any other infe- rior court of equity in that part of Great Britain called England, unlefs fuch perfon fhall take the oath herein after directed and appointed to be taken by folicitors, in courts of equity, and fhall a-lfo be admitted and in- rolled on or before the faid firfl; day of December one thoufand feven hun- dred and thirty, in fuch of the faid courts of equity, where he fhall act as a folicitor, or fhall be fworn, admitted, and inrolled, after the faid firfl day of December, in fuch manner as is herein after directed. Seel. 4. " And be it further enacted by the authority aforefaid, That the Courtoffqur- mafter of the rolls, or two of the martens of the Chancery, the barons of the ty to examine court of Exchequer, the chancellorof the dutchy of Lancajler, and the judges folicitors. of the faid other courts of equity for the time being refpectively, or any one or more of them, fhall, and they are hereby authorized and required, before he or they fhall admit any perfon to take the faid oath, to examine and inquire, by fuch ways and means as he or they fhall think proper, touching his fitnefs and capacity to act as a folicitor in fuch courts of equity refpectively ; and if the faid matter of the rolls, or two mailers of the Chancery, the barons of the court of Exchequer, the chancellor of the dutchy of Lancafier, or the judges of the faid other courts of equity for the time being, or any one or more of them refpectively, fhall be thereby fatisfied, that fuch perfon is duly qualified to be admitted to act as a foli- citor in fuch court of equity •, then, and not otherwife, the faid mafter of the rolls, two mafters of the Chancery, the barons of the court of Exche- quer, the chancellor of the dutchy of Lancajler, and the judges of the faid other courts of equity for the time being refpectively, or any one or more of them fhall, and they are hereby authorized to adminifler to fuch perfon the oath herein after directed to be taken by folicitors, and, after fuch oath taken, to caufe him to be admitted a folicitor in fuch court of equity, and his name to be inrolled as a folicitor in fuch court, without any fee or reward, other than one fhilling for adminiltring fuch oath, which admif- fion 150 SlttOJttUp. fion {hall be written on parchment in Englijh, and in a common legible hand, and figned by the matter of the rolls, two matters of the chancery, the barons of the exchequer, the chancellor of the dutchy of Laneafier, and the judges of the faid'other courts of equity refpectively, or fuch of them who fhall admit fuch perfon to be aiblicitor, whereon a treble forty millings (lamp fhall be firft impreffed, and fhall be delivered to the perfon lb admitted. Seel. 5. " And be it further enacted by the authority aforefaid, That After 1 Dec. from and after the firft day of December one thoufand feven hundred and '73°. noneto thirty, no perfon, who fhall not before the faid firft day of December have ney unlefs he been fworn, admitted, and inrolled, purfuant to the directions of this aft, has ferved a fhall be permitted to act as an attorney, or to fue out any writ or procefs, or clerkihip, and to commence, carry on, or defend any action or actions, or any proceedings, been admit- e i c her before or after judgment obtained, in the name or names of any other perfon or perfons, in any of the courts of law aforefaid, unlefs fuch perfon fhall have been bound by contract in writing, to ferve as a clerk for and during the fpace of five years, to an attorney duly and legally fworn and admitted, as hereinbefore is directed, in fome or one of the courts here- in before mentioned •, and that fuch perfon, for and during the faid term of five years, fhall have continued in. fuch fervice •, and alio unlefs fuch perfon, after the expiration of the faid term of five years, fhall be examined, fworn, admitted, and inrolled in the fame manner as the perfons, who fhall be admitted attornies of the faid courts, are herein before required to be examined, fworn, admitted, and inrolled." Se£i. 6. " And be it further enacted by the authority aforefaid, That the Judges, before judges of the faid courts refpectively, or anyone or more of them, fhall, and they admit tne y are j iere by authorized and required, before they fhall admit fuch perfon the oath to to ta ' ce tne ^ a ' c ^ oatn , to examine and enquire, by fuch ways and means as they examine their fhall think proper, touching his fitnefs and capacity to act as an attorney ; fitnefs. and if fuch judge or judges refpectiveiy fhall be thereby fatisfied, that fuch perfon is duly qualified to be admitted to act as an attorney, then, and not otherwife, the faid judge or judges of the faid courts refpectively fhall, and they are hereby authorized to adminilter in open court, to fuch perfon, the oath herein after directed to be taken by attornies, and, after fuch oath taken, to caufe him to be admitted an attorney in fuch court, and his name to be inrolled as an attorney in fuch court, without any fee or reward, other than one (hilling for adminiftring fuch oath, which admillion ill all be written on parchment in the Englijh tongue, in a common legible hand, and figned by fuch judge or judges refpectively, whereon the lawful itamps fhall be firft impreffed, and fhall be delivered to the perfon fo admitted." After 1 Dec. Seel. 7. " And be it further enacted by the authority aforefaid, That 1730. none to f rom an j after the firft day of December one thoufand feven hundred and before he'h'aT tn i rtv ' no perfon, N\ho fhall not, before the faid firft day of December, have ferved a clerk- Deen fworn, admitted, and inrolled, purfuant to the directions of this act, fhip, and been (hall be permitted to act as a folicitor, to fue out any writ or procefs, or to duly admit- commence, carry on, folicit, or defend, any fuit or proceedings in the name or names of any other perfon or perfons, in any of the courts of equity aforefaid, unlefs fuch perfon (hall have been bound by contract in writing SCttojnep. 151 writing to ferve as a clerk for and during the fpace of five years, to a lblicitor duly and legally fworn and admitted, as herein before is directed, in fome or one of the courts of equity aforefaid, and for and during the faid term of five years fliall have continued in fuch fervice-, and alio un- lefs fuch perfon, after the expiration of the laid term of years fhall be examined, fworn, admitted, and inrolled, in the fame manner, as perfons who fhall be admitted folicitors in the courts of equity aforefaid, are herein before required to be examined, fworn, admitted, and inrolled." Set!. 8. " And be it further enafted by the authority aforefaid, That the j u d g esofthe matter of the rolls, two matters of the chancery, the barons of the court of courts of equi- exchequer, the chancellor of the duchy of Lancafter, and the judges of the ty to examine faid other courts of equity for the time being relpectively, or any one or f ol 'c itors - more of them, fhall, and they are hereby authorized and required, before he or they fhall admit fuch perfon to take the faid oath, to examine and inquire by fuch ways and means, as he or they fhall think proper, touching his fitnefs and capacity to act as a folicitor in courts of equity ; and if the mater of the rolls, two mailers of the chancery, the barons of the court of exchequer, the chancellor of the dutchy of Lancafter, and fuch judge or judges of the laid other courts of equity for the time being relpectively, fliall be thereby fatisfied, that fuch perfon is duly qualified to be admitted to aft as a folicitor in fuch court of equity, then and not otherwife, the faid matter of the rolls, two matters of the chancery, the barons of the court of exchequer, the chancellor of the dutchy of Lancafter, and the faid judges of the faid other courts of equity for the time being reflectively, or any one or more of them, fhall, and they are hereby authorized to ad- miniiter in open court, to fuch perfon, the oath herein after directed to be taken by folicitors, and, after fuch oath taken, to caufe him to be admitted a folicitor in fuch court of equity, and his name to be inrolled as a folicitor in fuch court, without any fee or reward, other than one fhilling for ad- minitring fuch oath- which admiffion fhall be written on parchment in the Englijh tongue, and in a common legible hand, and figned by the matter of the rolls, two matters of the chancery, the barons of the ex- chequer, the chancellor of the dutchy of Lancafter, and the judges of the laid other courts of equity relpectively, or fuch of them who fhall admit fuch perfon to be a folicitor, whereon a treble forty fhillings ftamp fhall be firft imprefTed, and fhall be delivered to the perfon lb admitted." Self. 9. " Provided, that this aft fhall not exclude perfons from being admitted, who have before 25 March, 1729, been bound for four years." Se5l. 10. " Provided alfo, and it is hereby further enacted, That it may Attomiesor be lawful, from and after the faid firft day of December one thoufand feven folicitors, with hundred and thirty, for any perfon, who fliall be fworn, admitted and confent of an inrolled to be an attorney in any of the faid courts of King's Bench, Com-^ vo,ve y ofa - mon Pleas Exchequer, courts of great iefiions, counties palatine of Ckefter, not I ' ou "' Lancafter, and Durham, or who fhall be fworn, admitted, and inrolled to be ^.j^ &c . ; n a folicitor in the faid court of Chancery, court of equity in the exchequer fuch court, chamber, court of the dutchy chamber of Lancafter at Weftminfter, courts of equity of the counties palatine of Chefter, Lancafter, and Durham, and of the i 5 2 ZttQlM?. the great feffions in Wales, or any of them, as herein before is directed, by and with the confent and permifikm of any attorney in any of the faid other courts of record at Weftminfter, courts of the counties palatine of Chejier, Lancafter and Durham, courts of exchequer at Chejier, and courts of the great ledions in Wales, fuch confent being in writing figned by fuch attorney, and in the name of fuch attorney, to fue out any writ or procefs, or to commence, carry on, profecute, or defend any action or actions, or any other proceedings in fuch court, notwithstanding iuch perfon is not fworn, or admitted to be an attorney of inch court; any law or ftatute to the contrary notwithstanding. Judges not to gecl. n. " Provided likewife, and it is hereby further enacted and iwear a great- ( i ec | are j 5 That nothing in this act contained (hall extend either to require attormes than or authorize any judge or judges of any court of record to fwear, admit, formerly ul- or inroll, any more or greater number of perfons to be attornies of fuch lowed. court, than by the ancient ufage and cuftom of fuch court hath been here- tofore allowed. Clerks on the Seil. 12. " Provided alfo, and it is hereby further enacted, That if any death o t eir attorne y or fblicitor, with and to whom any perfon hath been or fhall be mailers, &c. . . ] . _.' .. r r . . ' " . iiri may be turned bound by contract in writing, as aforefaid, to ierve as a clerk tor the term over. of five years, or four years refpectively-, ihall happen to die before the ex- piration of the faid five years, or four years, or if fuch contract fhall, by mutual confent of the parties, be vacated, or in cafe fuch clerk, be legally difcharged by any rule or order of the court, wherein luch attorney or folicitor fhall practife, before the expiration of the faid five years, or four years, then, and in any of the faid cafes, if fuch clerk fhall, by contract in writing, be obliged to ferve, and fhall accordingly ferve as a clerk to any other attorney or folicitor refpectively, who fhall be fworn, admitted, and inrolled, as before directed, during the refidue of the faid term of five years, or four years, refpectively, then fuch fervice fhall be deemed and taken to be as good and effectual, as if fuch clerk had continued to ferve as a clerk for the term of five years, or four years, to the fame perfon, to whom he was originally bound by contract in writing, as aforefaid. Attomies be- Self. 13. " And it is hereby further enacted by the authority aforefaid, f0r take'th m ° n ^^ ever ^ P er *° n w ^° ^ aJ1 ' P ur hiant to this act, be admitted and inrolled following t0 be an attorne y in the faid courts of King's Bench, Common Pleas, Ex- oach. chequer, great feffions in Wales, counties palatine of Chejier Lancafter, and Durham, or any inferior courts of record, wherein attornies have been accuflomably admitted, and fworn, fhall, before he is admitted and inrolled, as aforefaid, take and fubferibe the oath following, inflead of the oath heretofore ufually taken by the attornies of fuch courts refpectively. I A. B. do fwear, That I will truly and honeftly demean my f elf in the fraclice of an attorney t according to the beft of my knowledge and ability. So help me God. Seel. SeS. 14. " And it is hereby further enacted by the authority aforefaid, Solicitors That every perfon who (hall, purfuant to this aft, be admitted and inrolled take Jheoach to be a foclicitor in the faid high court of chancery, or in any of the other folIow], g- courts of equity aforefaid, lhall, before he (ball be lb admitted and inrolled, take and fubfcribe the oath following ; viz. I A. B. do fwear, that I will truly and honeftly demean my felf in the practice of a folia tor, according to the btft of my knowledge and ability. m So help me God. Seel. 1 5. " And be it further enacted by the authority aforefaid, Thatfrom No attorney and after the firft day of July in the year of our Lord one thoufand feven t0 have more hundred and twenty-nine, no attorney or folicitor fhall have more than ^ sntwocIerks two clerks at one and the fame time, who fhall become bound by contract in writting as aforefaid, after the faid firft day of July, to ferve him as clerks. Se£l. 16. " And it is hereby further enafted.and declared, That it fhall P r °thonotanes and may be lawful to and for the feveral prothonotaries of the court of Q,"""/? common pleas at Wejlminjler, and the fecondary of the court of King's & c . t0 have Bench, and the feveral prothontaries of the refpective courts of the counties three derks. palatine of Chefter, Lancafler, and Durham, and the refpective courts of great feflions in Wales, to have three clerks at one and the fame time, and no more •, and that fuch refpective clerks, having ferved a clerkfhip to any of the faid prothonotaries, or fecondary, for any term not lefs than five years, may, after the expiration of fuch term of five years, be examined, admitted, and inrolled, to be an attorney of any of the courts of law afore- faid, and for the fame fee, and in the fame manner, as any other perfon may be admitted and inrolled, who fhall ferve a clerkfhip to any fworn attorney for the fpace of five years, in cafe the judge or judges of the court, before whom fuch clerk fhall be examined, be upon fuch examination fatisfied, that he is duly qualified to be admitted an attorney of fuch court ; any thing in this act contained to the contrary notwithstanding." Seil. 17. " And it is hereby alfo further enacted by the authority afore- Aften Decern. faid, That from and after the faid firft day of December one thoufand feven ' 73 °" orn hundred and thirty, if any perfon, who fhall be a fworn attorney of any of mjtt^g^hofe' the courts of law aforefaid, fhall knowingly and willingly permit or fuffer that are not to any other perfon or perfons to fue out any writ orprocefs, or to commence, iilue out writs, profecute, follow, or defend any action or actions, or other proceedings in d.fabledfrom his name, not being a fworn attorney of one of the faid other courts of law, pra ice " or a fworn folicitor of the faid court of chancery, or of fome or one of the courts of equity aforefaid, and fhall be thereof lawfully convicted, every perfon fo convicted fhall, from the time of fuch conviction, be difabled and made incapable to act as an attorney in any of the courts of law aforefaid, and the admittance of fuch perfon to be an attorney of any of the faid courts of law fhall from thenceforth ceafe and be void. Vql. I. N? VII. X Seil. *54 After 1 June 172^. attor- neys and Soli- citors to be in- rolled in the proper courts. Seel. 1 8. " And be it enacted by the authority aforefaid, That from and after the firft day of June one thoufand feven hundred and twenty-nine, the chief clerk of the court of King's Bench, or his deputy, the clerk of the warrants in the court of common pleas, or his deputy, the prothonotaries of the laid refpeftive counties palatine of Lancajier, Chejler, and Durham, and of the great feffions in Wales, or their refpeftive deputies, and fiich officers of the faid inferior courts of law, as the judge or judges of the faid inferior courts refpeftively fhall for that purpofe appoint, fhall, and they are hereby refpeftively required from time to time, without fee or reward, to inroll the name of every perfon, who fhall be admitted an attorney in the faid refpeclive courts of law, purfuant to the directions in this aft, and the time when admitted, in an alphabetical order, in rolls or books to be provided and kept for that purpofe in the faid feveral and refpeftive offices-, and alfo that the fenior clerk of the petty bag office in the court of chancery, or his deputy, the king's remembrancer of the court of exchequer, or his deputy, the chief clerk of the court of the dutchy chamber of Lancajier, or his deputy, the regifters of the refpeftive courts of equity in the faid counties palatine, and of the great feffions of Wales, or their refpeftive deputies, and fuch officers of the inferior courts of equity, as the judge or judges of fuch inferior courts refpeftively fhall for that purpofe appoint, fhall, and they are hereby refpeftively required from time to time, without fee or reward, to enroll the name of every perfon who fhall be admitted a folicitor in the faid refpeftive courts of equity, purfuant to the directions in this aft, and the time when admitted, in an alphabetical order, in rolls or books to be kept for that purpofe in the faid refpeftive offices in the faid courts of equity •, to which rolls or books in the faid courts of law and equity refpeftively all perfons fhall and may have free accefs without fee or reward. SeSi. 19. " Provided always, and it is hereby enafted, That the admiffion of any attorney in any of the courts aforefaid, purfuant to the direftions wuhoutftamp, j n tn j s a ft, fhall and may be written on parchment without any ftamp if O vor ' lbefore impreffed thereupon, in cafe he hath at any time, on or before the firft day 1 June 1729. ^ j une one thoufand feven hundred and twenty-nine, been fworn and admitted an attorney of any of the faid courts. Sell. 20. " Provided a'fo, and it is hereby further enafted, That from and after the firft day of December one thoufand feven hundred and thirty, any perfon, who fhall be fworn, admitted and inrolled to be an attorney, in any of the faid courts of King's Bench, Common Pleas, Exchequer, counties palatine of Chefter, Lancajier, and Durham, and great feffions in Wales, as herein before directed, may be fworn, admitted, and inrolled to be a folicitor in all or any of the courts of equity aforefaid, without any fee for the oath, or any ftamp to be impreffed on the parchment whereon fuch admiffion fhall be written, if the matter of the rolls, two matters of the chancery, the barons of the court of exchequer, the chancellor of the dutchy of Lancajier, and -.he judges of the faid other courts of equity for the time being, or any of them refpeftively, fhall, upon examining fuch attorney touching his fitnefs Attorneys to beadmifed A fworn attor- ney may be admitted a folicitor. fitnefs and capacity to aft as a folicitor in courts of equity, befatisfied that fuch attorney is duly qualified to be fo admitted. Sett, zi, " Provided alfo, and it is hereby further enafted, That from and A fworn folk-;, after the firft. day of December one thousand feven hundred and thirty, any brio one ceort perfon, who (hall be i'worn, admitted, and inrolled to be a folicitor in any l.^'V'"?** of the laid courts of chancery, exchequer, dutchy of Lancajler, counties iJ.^ a ' ( other palatine of Cbe/ier, Lancajler, and Durham, and great feffions in IVaks, as court. herein before direfted, 1 Vi all and may be iworn, admitted, and inrolied to be a folicitor in all or any of the faid other courts of equity, or in any inferior court of equity, without any fee for the oath, or any ftamps to be impreffed on the parchment whereon fuch admiffion fliall be wri.ten, in cafe the mafter of the rolls, two mafters of the chancery, the barons of the court of exchequer, the chancellor of the dutchy of Lancafter, and the judges of the faid other courts of equity for the time being, or any of them refpec- tively, (hall, upon examining fuch perfon touching his fitnefs and capacity to aft as a folicitor in courts of equity, be fatisfied that fuch perfon is duly qualified to be fo admitted. Se£I. 22. " And be it further enafted by the authority aforefaid, That The name of from and after the firft day of July one thoufand feven hundred and theattorney w twenty-nine, every writ and procefs for arrefting the body, and every writ ewn " en ° n of execution, or fome label annexed to fuch writ, or procefs, and every warrant, that (hall be made out upon any fuch writ, procefs, or execution, (hall, before the fervice or execution thereof, be fubferibed or indorfed with the name of the attorney, clerk in court, or folicitor, written in a common legible hand, by whom fuch writ, procefs, execution or warrant refpeftively (hall be fued forth; and where (uch attorney, clerk in court, or folicitor, (hall not be the perfon immediately retained or imployed by the plaintiff, in the aftion or fuit, then alfo with the name of the attorney or folicitor fo immediately retained or imployed, to be fubferibed, or, indorfed and written in like manner ; and that every copy of any writ or procefs, that fliall be ferved upon any defendant, fliall, before the fervice the-'of, be in like manner fubferibed, or indorfed, with the name of the attorney or folicitor, who (hall be immediately retained or imployed by the plaintiff in fuch writ or procefs. Seel. 23. " And be it further enafted by the authority aforefaid, That Attorney, &e. from and after the firft day of July one thoufand feven hundred and rottocom - twenty-nine, no attorney or folicitor of any of the courts aforefaid, (hall ""^"j""'^!! commence or maintain any aftion or fuit for the recovery of any fees, one mom i, a f. charges, or diiburfements, at law or in equity, until the expiration of oneterthedelivery month, or more, after fuch attorney or folicitor refpeftively fliall have of their bills, delivered unto the party or parties to be charged therewith, or left for him, her, or them, at his, her, or their dwelling-houfe, or laft place of abode, a' bill of fuch fees, charges, and diiburfements, written in a common legible hand, and in the Englijk tongue (except law terms, and names of writs) and in words at length (except times and fums) which bill (hall be fubferi- bed with the proper hand of fuch attorney or folicitor refpeftively; and upon application of the party or parties chargeable by fuch bill, or of any other X 2 perfon 156 TLttOWtV* perfon in that behalf authorized, unto the faid lord high chancellor, or the mailer of the rolls, or unto any of the courts aforefaid, or unto a judge, or baron of any of the faid courts refpectively, in which the bufmefs contained in fuch bill, or the greateft part thereof, in amount or value, fhall have been tranfacted •, and upon the fubmilTion of the faid party or parties, or fuch other perfon authorized as aforefaid, to pay the whole fum, that, upon taxation or the faid bill, fhall appear to be due to the faid attorney or folicitor refpectively, it fhall and may be lawful for the faid lord high chancellor, the faid matter of the rolls, or for any of the courts aforefaid, or for any judge or baron of any of the faid courts refpectively, and they Judges, &c to are hereby required to refer the faid bill, and the faid attorney's or folicitor's refer bills to be demand thereupon (although no action or fuit fhall be then depending in taxed, without fuch court touching the fame) to be taxed and fettled by the proper officer money being f f ucn C ourt, without any money being brought into the faid court for that courf &c" t0 P ur P°f e > arR l i* tne k' " attorney, or folicitor, or the party or parties chargeable by fuch bill refpectively, having due notice, fhall refufe or neglect, to attend fuch taxation, the laid officer may proceed to tax the faid bill ex parte (pending which reference and taxation no action fhall be. commenced or prolecuted touching the faid demand), and, upon the tax- ation and fettlemeht f fuch bill and demand, the faid party or parties fhall forthwith pay to the laid attorney or folicitor refpectively, or to any perfcn by him authorized to receive the fame, that ihall be prefent at the faid taxation, or otherwife unto fuch other perfon or perfons, or in fuch manner as the refpective court aforefaid fhall direct, the whole fum that fhall be found to be or remain due thereon, which payment fhall be a full difeharge of the faid bill and demand ; and in default thereof the faid party or parties fhall be liable to an attachment or procefs of contempt, or to fuch other proceedings, at the election of the faid attorney or folicitor, as fuch party or parties was or were before liable unto ; and if, upon the faid taxation and fettlemeni, it fhall be found that fuch attorney or folicitor fhall happen to have been overpaid, then in fuch cafe the faid attorney or folicitor re- fpedtively fhall forthwith refund and pay unto the party or parties intitled thereunto, or to any perfon by him, her, or them authorized to receive the fame, if prefent at the fettling thereof, or otherwife unto fuch other peifon or perfons, in fuch manner as the refpective court aforefaid fhall direct, all fuch money as the faid officer fhall certify to have been lb over- paid •, and in default thereof the faid attorney or folicitor reflectively fh 11 in like manner be liable to an attachment, or procefs of contempt, or to fuch other proceedings, at the election of the faid party or parties, as he would have been fubject unto, if this act had not been made ; and the faid refpective courts are hereby authorized to award the cofts of fuch taxations to be paid by the parties, according to the event of the taxation of the bill, ("that is to fay) if the bill taxed be lefs by a fixth part than the bill delivered, then the attorney or folicitor is to pay the cofts of the taxation ; but if it fhall not be lefs, the court in their difcretion fhall charge the attorney or client, in regard to the reafonablenefs or unreafonablenefs of fuch bills. Sell. Sett. 24. " And be it further enacted, That from and after the firft day Attorney &c." of December one thoufand feven hundred and thirty, in cafe any perfon in their own mall, in his own name, or in the name of any other perfon, fue out any name,uin £ out writ or procefs, or commence, profecute or defend any action or fuit, orV2™"l\\ j r » r < e \ ■ r r ■ j 'not inrolled, any proceedings, in any or the courts or law or equity aforelaid, as an forfeit 50 1. attorney or folicitor, for or in expectation of any gain, fee or reward, without being admitted and inrolled as aforefaid, every fuch perfon, for every fuch offence, (hall forfeit and pay fifty pounds to the ufe of fuch perfon, who fhall profecute him for the laid offence, and is hereby rmde incapable tr maintain or profecute any action or fuit in any court of law or equity,, f o any fee, reward, or difburfements, on account of profecuting, carrying on, or defending any fuch action, fuit, or proceeding. Setl. 25. " And be it further enacted by the authority aforefaid, That the Forfeitures penalties and forfeitures, incurred by any perfon offending againft this act, how to be re- may be recovered by action of debt, bill, plaint, or information, in any of his covered - majefty's courts of record at Wejlminfter, or in any of the courts of record of and for the counties palatine of Chefter, Lancajler, and Durham, or in any of the courts of great fefnons in Wales, for offences committed within the jurifdidtions of fuch courts refpeflively, or at the affizes, or general quarter feflions of the peaceof the county, riding, ordivifion, where fuch offence fhall be committed, by any perfon who (hall fue for the fame within twelve months after fuch offence committed, together with treble cofts of fuir, wherein no effoign, protection, or wager of law ihall be allowed, or any more than one imparlance ; and that no fuch bill, plaint, fuit, or information, nor any proceedings thereupon, fhall be removed before judgment, or flayed by any writ of certiorari, habeas corpus, or other writ whatfoever. Setl. 26. " Provided neverthelefs, and it is hereby further enacted by To what the authority aforefaid, That nothing in this acl contained fhall extend, orcJerks, &c. the be conftrued to extend, to the examination, fwearing, admifilon, or in- aft do[ h not rollment of the fix clerks of the court of Chancery, or the fworn clerks irr ext their office, or the waiting clerks belonging to the faid fix clerks, or the curfitors of the faid court, or of the clerks of the petty bag office, or of the clerks of the king's coroner, and attorney in the court of King's Bench, or of the filazers of the fame court, or of the filazers of the court of Com- mon Pleas at WeftmMer, or of the attorneys of the court of the dutchy chamber of Lancajler, or of the attorneys of the court of Exchequer at Chefter, or of the attorneys of the courts of the lord mayor and fheriffs of London reflectively for the time being ; but that the faid clerk, filazers^ and a-torneys relpedtively, fnall and may be examined, fworn, admitted, inrolled, and practife, in their refpedtive courts and. offices aforelaid, in. like manner as they might have been, or done, before the making this act. Setl. 27. " Provided alfo, and it is hereby further declared and enacted by The attorneys the authority aforefaid, That nothing in this acl contained fhall extend, or be. and clerks in conftrued,to extend to the examination, fwearing,. admiffion, or inrollmentof n h e ee * chequer *- the attorneys or clerks of the office of the king's remembrancer, treafurer's tior.ed, may remembrancer, pipe, or office of pleas in the court of Exchequer at IVeftmijifter y a& as heret*»- iior the time being ■„ but that the faid attorneys and clerks of the faid re- fore; fpec- 158 Slttojttep, fpective offices mail and may be approved, fworn, admitted, and practife, in the faid court of Exchequer, or may practife in any other of the courts of record before mentioned, in the name, and with the confent of fome fworn attorney of fuch court ; fuch confent to be in writing, and figned by fuch attorney, as aforefaid, in like manner as they have ufually been, and might have done, before the making of this act ; any thing herein con- tained to the contrary in any wife notwithftanding •, and that it fhall and may be lawful, from and after the faid firft day^of December one thoufand feven hundred and thirty, for any perfon, who fhall be fworn, admitted, rnd inrolled an attorney or folicitor in any of the feveral courts before mentioned, according to the direction of this act, to practife and folicit in the faid refpective offices, in the fame manner as heretofore has been done •, any thing herein before contained, or any law or ftatute to the con- trary notwithftanding. asalfo thefoli- Sefl. 28. " Provided alfo, that this act, or any thing herein contained, cnors'ofthe fhall n ot extend, or be conftrued to extend, to the examination, fwearing, rea Jry ' ' admiffion, or inrollment, of perfons to be foiicitors of the treafury, cuf- toms, excife, poft-office, fait or ftamp duties, or of any other branches of his majefty's revenue for the time being, or of the folicitor of the city of London for the time being, or of the alTiftant to the council for the affairs of the admiralty and navy; but that fuch foiicitors and aiTiftant may be examined, fworn, admitted, and practife, in their refpective offices only, as they might have done before the making this act. Continuation Sell. 29. " Provided always, and be it enacted by the authority afore- of theaft. faid, That this act fhall continue in force from the faid firft day of June one thoufand feven hundred and twenty-nine, for the term of nine years, and from thence unto the end of the then next feOion of parliament, and no longer." [Continued by 12 Geo. 2. c. 13. and amended and conti- nued by 22 Geo. 2. c. 46. until 1 June 1757, and to the end of the next feffion. Made perpetual by 30 Geo. 2. c. 19. fe£i. J$] 5 Geo. 2. ©tflt. 5 Geo. 2. c. 18. [J. D. 1732. intituled,] " An act for the further c. 18. qualification of juftices of the peace." No perfon to g e ff j « Whereas the conftituting perfons of mean eftates to be juf- be juftices w ° t j ces Q f tne p eace ma y be highly prejudicial to the public welfare, Be it a year clear of therefore enacted by the king's moft excellent majefly, by and with the incumbrances, advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That from and after the twenty-fifth day of March one thoufand feven hundred and thirty-three, no perfon fhall be capable to be a juftice of the peace, or to act as a juftice of the peace, for any county within that part of Great Britain called England, or the principality of Wales, who fhall not have an eftate of freehold or copyhcld to and for his own ufe and benefit, in pof- feffion for life, or for fome greater eftate, either in law or equity, or an eftate for years, determinable upon one or more life or lives, or for a cer- tain term originally created for one and twenty years, or more, in lands, tenements, or hereditaments, lying in that part of Great Britain called Eng- 4 land, 2Uto;nt?. 159 and, or principality of Wales, of the clear yearly value of one hundred pounds, over and above what will fatisfy and difcharge all incumbrances that may affect the lame. Seel. 2. " And be it further enacted by the authority aforefaid, That no Attomies, JoB- attorney, folicitor, or proctor, in any court whatfoev-r, fhall, from and citors, and after the faid twenty-fifth day of March one thoufand kvcn hundred and proAorsino- thirty-three, be capable to continue or be a juftice of the peace, within P acitated - any county for that part of Great Britain called England, or the princi- pality of Wales, during fuch time as he (ball continue in the bufincis and practice of an attorney, folicitor, or proctor. Seel. 3. " And be it further enacted by the authority aforefaid, That if Perfons afling any perfon, who (hall not be qualified according to the directions of this » jarticcs, not act, fhall, after the faid twenty-fifth day of March one thoufand feyen Hi? i2T hundred and thirty-three, acceptor take upon himfelf the office of a juf- tice of the peace, or fhall do any act as fuch, the perfon fo offending fhall, for every fuch offence, forfeit and pay the fum of one hundred pounds j one moiety whereof fhall be to the king's majefty, his heirs, and fucceffurs, and the other moiety to fuch perfon or perfons as will fue for the fame by action of debt, bill, plaint, or information, in any of his majefty's courts of record at Wejlminjler, in which no effoign, protection, wager of law, or more than one imparlance fhall be allowed. Seel. 4. " Provided always, that this act, or any thing herein contained, Not to extend fhall not extend, or be conftrued to extend, to any city or town, being to cities which a county of it felf, or to any other city, town, cinque port, or liberty, ar e counties, having iuftices of the peace within their refpective limits and precinds ° r °} her . P^ ces . i D J -~ " 1 ■<■ 1 1 • r 1 • having julhces by charter, commiffion, or otherwifej but that in every fuch city, town, by c j,| r ter, liberty, and place, fuch perfons may be capable to be juftices of the peace, and in fuch manner only, as they might have been, if this act had ne- ver been made ; any thing herein before contained to the contrary thereof in any wife notwithftanding. Seel. 5. " Provided always, that nothing in this act contained fhall ex- nor to the tend to incapacitate any peer or lord of parliament, or the eldeft fon or eldeft (ons of heir apparent of any peer or lord of parliament, or of any perfon quali- P eers * or ° f fled to ferve as knight of a fhire by an act, intituled, an act to fecure the ^^ ° freedom of parliaments, by the further qualifying members to fit in the houfe of commons, to be a juftice of the peace for any county, or to act 9 Anns, c. 5-. as fuch •, any thing herein contained to the contrary thereof in any wife notwithftanding. Seel. 6. " Provided alfo, that nothing in this act contained fhall extend, n0 r to the or be conftrued to extend to incapacitate or exclude the officers of the board board of of green cloth from being juftices of the peace within the virge of his ma- tices of the peace -, any thing herein contained to the contrary in any # wife notwithftanding. Sec?* ther univerfi 6 Geo. 2. c. z 7- amen 160 TLttointv. nortoheadsof Sefl. 7. " Provided always, that this aft, nor any thing herein contain- col!egesinei-ed, fhall extend, or be conftrued to extend to any of the heads of col- leges or halls in either of the two univerfities of Oxford and Cambridge, but that they may be made juftices of the peace of and in the feveral counties of Oxford, Berks, and Cambridge, and the cities and towns within the fame, and execute the office thereof as fully and freely in all refpefts, as heretofore they have lawfully ufed to execute the fame, as if this aft had never been made ; any thing herein before contained to the contrary notwithstanding." @>tat56 Geo. 2. c. 27. [A. D. 1733. intituled,'] " An act to explain and lend ai^ft made in the fecond year of his majefty's reign, intituled, an a5l for the better regulation of attornies and folicitors" Seel:. 1 . Perfons qualified as mentioned in the aEl may, on or before the lafi day of Michaelmas term 1733, be fworn, admitted and inr oiled attornies in the feveral courts. Sett. 2. " And be it further enacted by the authority aforefaid, That any perfon who hath been, by virtue of the laid aft, [viz. 2 Geo. 2. c. 23.] admitted an attorney in any of his majefty's courts of record at Wejlminfler, fhall and may be capable of being admitted to praftife as an attorney in any inferior court of record, provided fuch perfon be in all other refpefts capable and qualified to be admitted an attorney according to the ufage and cuftom of fuch inferior court." 1 2 Geo. z. c. @tat. 12 Geo. 2.^.13. [A. D. 1739-] Made among other purpofes, '3- " for explaining, and amending the aft made in the 2 Geo. 2. for the bet- ter regulation of attornies and folicitors." The not io- Sett. 4. " And be it further enafted by the authority aforefaid, That dorfing the from and after the twenty-fourth day of June in the year of our Lord one attorney s thoufand feven hundred and thirty-nine, the not fubferibing or indorfing warrants upon r ' ie name of the attorney's clerk in court, or folicitor, on any warrant that writs, not to fhall be made out upon any writ, procefs or execution, fhall not vitiate vitiate the the fame •, but fuch writ, procefs, and execution, and all proceedings fame. thereon, fhall be as valid and effectual, notwithftanding fuch omiffion, as if the faid recited aft for regulating attornies and folicitors had not been made; provided the writ whereon fuch warrant is made out be regular- ly fubfcrlbed or indorfed according to the faid aft ; and every fheriff or Officers to in- fheriffs, or other officer, who fhall make out any warrant upon any writ, dorfe the at- procefs, or execution, and fhall not fubferibe or indorfe the name of the tormes names attorney, clerk in court, or folicitor, who fued out the fame, fhall forfeit upon wn s. ^ ^ um ^ ^^ pounds, to be affeffed as a fine upon fuch fheriff or fheriffs, or other officer, by the court out of which fuch writ, procefs, or execu- tion fhall iffue ; one moiety thereof to be paid to his majefly, his heirs and fucceffors, and the other moiety to the perfon or perfons aggrieved by fuch omiffion. SeB. Seft. 5. " And be it further enafted by the authority aforefaid, That Attornies.&v. from and after the twenty-fourth day of June one thoufand feven hundred may ufe at>- and thirty-nine, it fhall and may be lawful to and for every attorney, clerk breviations '» in court, and folicitor, to write his bill of fees, charges, and difburfe- thc " bllls - ments, with fuch abbreviations as are now commonly ufed in the Englijh language •, any thing in any former law to the contrary notwithftanding. Seel. 6. " And be it further enacted by the authority aforefaid, That from Act 2 Geo.ir. and after the faid twenty-fourth day of June one thoufand feven hundred not to exrend and thirty-nine, the faid aft of the fecond year of his prefent majefty, for t0 an y bi!1 of the better regulation of attornies and folicitors, or any claufe, matter, or b " u . een thing therein contained, fhall. to com-' feven hundred and thirty-nine, no attorney or folicitor, who fhall mence fuits, be a prifoner in any gaol or prifon, or within the limits, rules, or lf P riloner5 - liberties of any gaol or prifon, fhall during his confinement in any gaol or prifon, or within the limits, rules, or liberties of any gaol or prifon, in his own name, or in the name of any other attorney or foli- citor, fue out any writ or procefs, or commence or profecute any aftion or fuit in any courts of law or equity ; and that all proceedings in fuch actions or fuits fhall be void and of none effeft-, and fuch attorney or foli- p . Vol. I. N° VII. Y citor 162 3ttOWCP- citor Co commencing or profecuting any aftion or fuit as aforefaid, {hall be ftruck off the roll, and incapacitated from acting as an attorney or folici- tor for the future ; and any attorney or folicicor permitting or impowering any fuch attorney or folicitor as aforefaid, to commence or profecute any action or fuit in his name, fhall be ftruck off the roll, and incapacitated from acting as an attorney or folicitor for the future. Provifo. Seft. 10, " Provided neverthelefs, and be it hereby further enacted by the authority aforefaid, That nothing in this act contained (hall extend, or be conftrued to extend, to prevent any attorney or folicitor fo confined as aforefaid, from carrying on or tranfacting any fuit or fuits commenced be- fore the confinement of fuch attorney or folicitor as aforefaid ; any thing in this act contained to the contrary notwithftanding." S)tflt« 22 Geo. 2. c. 46. [J. D. 1749.] Made among other purpofes, " for making further regulations with refpect to attornies and folicitors." Set?. 3. " And for the better preventing unqualified perfons from being admitted attornies and folicitors, and for rendering the laid aft (viz. 2 Geo. 2. c. 23.) more effectual for the purpofes thereby intended •, Be it enacted Perfons bound by the authority aforefaid, That every perfon who fhall, from and after to ferve as the firft day of July one thoufand feven hundred and forty-nine, be bound clerks to at- D y con tract in writing to ferve as a clerk to any attorney or folicitor, as caufe a'ffidavit Dv tne ^" a ^ act ' s directed, fhall, within three months next after the date to be made of every fuch contract, caufe an affidavit to be made and duly fworn of within three the actual execution of every fuch contract, by every fuch attorney or months of the folicitor, and the perfon fo to be bound to ferve as a clerk as aforefaid ; fuch contrails an ^ m every fuch affidavit fhall be fpecified the names of every fuch at- & c . ' torney and folicitor, and of every fuch perfon fo bound, and their places of abode refpectively, together with the day of the date of fuch contract: Affidavit to be anc j ever ^ affidavit fhall be fikd within the time aforefaid, in the court where the attorney or folicitor, to whom every fuch perfon refpectively fhall be bound as aforefaid, hath been inrolled as an attorney or folicitor, with the refpective officer or officers, or his or their refpective deputy or depu- ties, in the refpective courts herein after-mentioned, who fhall make and fign a memorandum or mark of the day of filing every fuch affidavit at the back or at the bottom thereof. Set!. 4. " And be it further enacted, That no perfon, who fhall after the faid d^ilted be firft day of July become bound as aforefaid, fhall be admitted or inrolled fore fuch affi an attorney or folicitor in any court in the faid act mentioned, before fuch davit be pro- affidavit, fo marked by the proper officer as aforefaid, fhall be produced duced. anc j openly read in fuch court, where fuch perfon fhall be admitted and inrolled an attorney or folicitor. Se3. 5. " And it is hereby enacted and declared, That the feveral per- Officera who f ons f ]] ow ; n g ([^\\ \y e deemed and taken to be the proper officers for filing affidavits ^ ucn affidavits in the refpective courts herein after-mentioned (that is to fay) in the high court of Chancery, the fenior clerk of the petty bag office, dr his deputy; in the court of King's Bench, the chief clerk of that court, or his deputy ; in the court of Common Pleas, the clerk of the warrants of that that court, or his deputy ; in the court of Exchequer, the king's remem- brancer of that court, or his deputy •, in the court of the dutchy cham- ber of Lancajler at Wejlminjler, the chief clerk of that court, or his de- puty ; and in the feveral counties palatine of Chejler, Lancajler, and Dur- ham, the refpective prothonotaries of the faid counties palatine, and their respective deputies •, and in the feveral courts of the great feflions of Wales, the refpective prothonotaries of the faid courts, and their refpec- tive deputies. Seel. 6. " And be it further enacted, That every fuch officer or officers, Book to be or their refpective deputy or deputies, filing fuch affidavit as aforefaid, fliall kept for en- keep a book, wherein fliall be entered the iubftance of fuch affidavit, fpe- terin S the cifying the names and places of abode of every fuch attorney or folicitor, "j 5 ™" a f n a[)0c j and clerk or perfon bound as aforefaid, and of the perfon making fuch f everv f uc h affidavit, with the date of the articles or contract in fuch affidavit to be attorney, mentioned, and the days of fwearing and filing every fuch affidavit refpec- and clerIr » tively ; and every fuch officer or officers, or his or their deputy or deputies, " c ' fhall be at liberty to take, at the time of filing every fuch affidavit, the fum of two (hillings and fix-pence, and no more, as a recompence for his Fees for filing trouble in filing fuch affidavits, and preparing and keeping fuch books as the affidavits, aforefaid, and which faid books fhall and may be Searched in office hours, by any perfon or perfons whatfoever, without fee or reward. Seel. 7. " And be it further enacted, That, from and after the faid firft No attorney day of July, no attorney or folicitor (hall take, have, or retain any clerk, t0 1 ? J^ f- a who (hall become bound by contract in writing as aforefaid, after fuch at- dif cont j nu [ ng torney or folicitor (hall have discontinued or left off, or during fuch time bufinefs. as he fhall not actually praftife as, or carry on the bufinefs of an attorney or folicitor. Seel. 8. ** And be it further enafted, That every perfon who (ball, from Clerks to be and after the faid firft day of July, become bound, by contract in writing, e , m F oye ln to ferve any attorney or folicitor, as by the faid aft is directed, fhall, du- bufinefs du- ring the whole time and term of fervice, to be Specified in fuch contract, ring the time continue and be actually employed by fuch attorney or folicitor, or his or of tneir c° n - their agent or agents, in the proper bufinefs, practice, or employment of an attorney or folicitor. Seel. 9. " Provided always, and it is hereby enacted, If any fuch attor- Affidavit of ney or folicitor, to or with whom any fuch perfon (hall be fo bound, fliall th f e exec "" on happen to die before the expiration of fuch term, or (hall difcontinue or cc , ntra a s by leave off fuch his practice as aforefaid, or if fuch contract (hall by mutual fuch clerk?, confent of the parties be cancelled, or in cafe fuch clerk fliall be legally the fervice of difcharged by any rule or order of the court, wherein fuch attorney or fo- j >' ea " lohe licitor fliall praftife, before the expiration of fuch term, and fuch clerk tu " me e ec " fhall in any of the faid cafes be bound by another contract, or other con- tracts, in writing to ferve, and fhall accordingly ferve in manner herein before- mentioned, as clerk to any other fuch practicing attorney or attor- nies, folicitor or folicitors as aforefaid refpectively, during the refidue of the faid term of five years ; then fuch fervice fliall be deemed and taken to be as good, effectual, and available, as if fuch clerk had continued to Y 2 ferve 1 6 + stttomtv* ferve as a clerk for the faid term, to the fame perfon to whom he was origi nally bound, fo as an affidavit be duly made and filed of the execution of fuch fecond or other contract or contracts, within the time, and in like manner, as is before directed concerning fuch original contract. Clerks, before Sefl. 10. " And be it further enacted, that every perfon who, from and admitted, to after the faid firft day of July, fhall become bound as a clerk as aforefaid, make affidavit Q ia jj^ b e f ore ne b e admitted an attorney or folicitor according to the faid ferved'c years act ' cau ^ e an affidavit of himfelf, or fuch attorney or folicitor, to whom ' he was bound as aforefaid, to be duly made and filed with the proper of- ficer herein before for that purpofe appointed, that he hath actually and really ferved and been employed by fuch practifing attorney or attornies, folicitor or folicitors, to whom he was bound as aforefaid, or his or their agent or agents, during the faid whole term of five years, according to the true intent and meaning of this act. Sett. 11." And whereas divers perfons, who are not examined, fworn, or admitted to act as attornies or folicitors in any court of law or equity, do, in conjunction with, or by the affiftance or connivance of certain fworn at- tornies and folicitors, and by various fubtle contrivances, intrude them- felves into, and act and practife in the office and bufinefs of attornies and folicitors, to the great prejudice and lofs of many of his majefty's fubjects, Sworn attor- and the fcandal of the profeffion of thejlaw ; Be it therefore enacted, That nies afting as from and after the twenty-ninth day of September, which fhall be in the agents for year of our lord one thoufand feven hundred and forty-nine, if any fworn qaalifad^&c. attorne y or folicitor fhall act as agent for any perfon or perfons, not duly qualified to act as an attorney or folicitor as aforefaid, or permit or fuffer his name to be any ways made ufe of upon the account, or for the profit of any unqualified perfon or perfons, or fend any procefs to fuch unquali- fied perfon or perfons, thereby to enable him or them to appear, act, or practife in any refpect as an attorney or folicitor, knowing him not to be duly qualified as aforefaid, and complaint fhall be made thereof in a fummary way to the court from whence any fuch procefs did iflue, and proof made thereof, upon oath, to the fatisfaction of the court, that fuch fworn attorney or folicitor hath offended therein as aforefaid ; then, and in fuch cafe, every fuch attorney or folicitor fo offending fhall be ftruck off" to be (truck off the roll, and for ever after difabled from practifing as an attorney or folici- theroll, tor-, and in that cafe, and upon fuch complaint and proof made as afore- , , faid, it fhall and may be lawful to and for the faid court to commit fuch committed unqualified perfon, fo acting or practifing as aforefaid, to the prifon of the faid court, for any time not exceeding one year. Sett. 12. " And whereas frequent delays, inconveniencies, and unnecef- fary expences arife and happen, as well 10 parifhes as private perfons, by the mifmanagement and unfkilfulnefs of perfons employed as folicitors or agents at the feffions held for the feveral counties, ridings, divifions, ci- ties, towns corporate, and other places of this kingdom, who having never been regularly bred to the law, and being ignorant of the forms and N netoa fias operations thereof, offenders againft the laws of the land have frequently attornies at the efcaped with impunity : For remedying therefore of thefe inconveniencies, Be Be it enacted by the authority aforefaid, That from and after the twenty- feffions who ninth day of September, which fhall be in the year of our lord one thoufand were not atad- feven hundred and forty-nine, no perfon whatsoever fhall act as a folicitor, ""j**^ attorney, or agent, or fue out any procefs, at any general or quarter fef- 2 Geo. II, c fions of the peace for any county, riding, divifion, city, town corporate, 23. or other place wkhin this kingdom, either with refpect to matters of a criminal or civil nature, unlets fuch perfon fhall have been hefetoiore ad- mitted an attorney of one of his majefty's courts of record at Wejlminfter, and duly inrolled purfuant to an act made in the fecond year of his pre- fent majefty's reign (intituled, An act for the better regulation of attornies and folicitors), or unlefs fuch perfon fhall hereafter be admitted an attor- ney, and inrolled as aforefaid by virtue of this act, or fuch other law as fhall be then in being, and unlefs fuch perfon fhall continue fo entered upon the roll, at the time of fuch his acting in the capacity aforefaid ; but all and every perfon or perfons reflectively, who (hall fo act, not being admitted and inrolled as aforefaid, fhall be fubject and liable to a penalty p ena j t . Q j of fifty pounds ; to be recovered by action of debt, bill, plaint, or infor- w j tn tre £i e ' mation, in any of the courts of record at JVeJiminJler, by any perfon or cofts. perfons who fhall fue for the fame, within twelve months after the offence Attornies fuf- commited, with treble cofts of fuit ; and if any attorney or attornies fhall ferin 8 P erfons permit and fuffer any perfon or perfons whatfoever, not being admitted and t0 u( - e tneir inrolled as aforefaid, to make ufe of his or their name or names refpec- names, to for- tively, in the courts of general or quarter feffions aforefaid, fuch attorney kit ;o 1. See or attornies refpe&ively fhall be fubject and liable to a like penalty of fifty 2 3Geo.II. pounds, to be recovered in manner aforefaid. Self. 13. Provided always, that nothing herein contained fhall extend, or Perfons ex- be conftrued to extend, to deprive the attornies of the dutchy of Lancajler, empted. or of the courts of great feffions in Wales, or of the counties palatine of Chejler, Lancajier and Durham, from acting within their refpedive ju- rifdictions. Sell. 14. " And, to the end that juftice may be impartially adminiftered No clerk of in the feveral general or quarter feffions of this kingdom, Be it further the P eace - . enacted by the authority aforefaid, That no clerk of the peace, or his de- £" " g • puty, nor any under fheriff, or his deputy, fhall, from and after the faid attornies, &c. twenty-ninth day of September, act as folicitor, attorney, or agent, or at quarter fef- fue out any procefs, at any general or quarter feffions of the peace to be fl0ns for tlie held for fuch county, riding, divifion, city, town corporate, or other county ' c ' - place within this kingdom, where he fhall execute the office of clerk of the peace, or deputy clerk of the peace, under fheriff, or deputy, on any pretence whatfoever ; but if any clerk of the peace, or his deputy, or any under fheriff, or his deputy, fhall prefume to a£t as a folicitor, at- torney, or agent as aforefaid, fuch clerk of the peace, or his deputy, under fheriff, or his deputy reflectively, fhall be fubject and liable to a like penalty of fifty pounds, t'o be recovered in manner aforefaid. Penalty 5c 1. 5W7. 1 66 Zttointv* Sett. 15. " And whereas feveral perfons have been bound by articles in writing to attornies of one of his majefty's courts at Wejiminjier, to ierve them as their clerks for the term of five years, which attornies have died before the expiration of the faid five years, and after their deaths luch per- fons fo bound have ferved the remainder of the laid term with fome other attornies of the faid courts, but have neglected to enter into articles with the faid other attornies for the remainder of the term of five years, and therefore doubts have arifen, whether fuch perfons could be admitted at- tornies of any of his majefty's courts, by reafon that fuch fervice was not ftrictly in purfuance of the direction of the before-mentioned act ; Be it therefore enacted and declared by the authority aforefaid, That all fuch peifons who fhall have been fo bound as aforefaid for the term of five years to attor- nies of any of his majefty's courts ztlVejlminJler, which faid attornies fhall Clerks whofe. nave died before the determination of the faid term, if fuch perfons fhall after- mafters have wards, and before the twenty-fifth day of March one thoufand feven hun- died, ferving dred and forty-nine, have ferved the refidue of the faid term office years, tnerendueof ^^ f om e other attornies of one of his majefty's faid courts, though with- with others out enter ' n g i nt0 an y new articles, fuch perfons having fo ferved during without frefti the faid term of five years, ihall and may be admitted attornies in any of contrails, to his majefty's courts at Weftminfler ; any thing in the faid act, or in this be admitted, preferm a ct, contained to the contrary in any wife notwithftanding. Perfons ad- $ e &- lf >- " And be it further enacted by the authority aforefaid, That any mined fwom perfon, who fhall have been admitted a fworn clerk in the office of the fix clerks in the clerks of the court of Chancery, or (hall have been bound by contract in office of the writing, to ferve as a clerk for and during the fpace of five years, to a bound forfive ^ worn clerk in the faid office, and for and during the faid term of five years, &c. years (hall have continued in fuch fervice, or fhall have continued in fuch may bead- fervice for the fpace of three years, or more, and fhall have been ad- mitted fohci- mitted a waiting clerk, and acted as fuch during the refidue of the faid term of five years, may be examined, fwom, and admitted and inrolled as afolicitor, in the fame manner asfolicitors in courts of equity are by the faid act required to be examined, fwom, admitted, and inrolled; any thing in the faid act to the contrary notwithftanding. Clerks, whofe Setl. 17. '« Provided alio, and it is hereby further enacted, That if any ma , er * ave fworn clerk in the faid fix clerks office, with and to whom any perfon hath terin'tf into been, or fiiall be bound by contract in writing as aforefaid, to ferve as a frelh con- clerk for the term of five years, fhall happen to die before the expiration traSs, and of the faid term of five years •, or if fuch contract fhall, by mutual con- fd" 1S ^ ^ ent °^ tne P art ' es ' be vacated, or in cafe fuch clerk be legally dif- their time charged by any rule or order of the faid court of Chancery, before the the fame to be expiration of the faid term of five years; then, and in any of the faid effectual. cafes, if fuch clerk fhall by contract in writing be obliged to ferve, and fhall accordingly ferve as a clerk to any other fworn clerk in the faid fix clerks office, or to any folicitorwho fhalf be fworn, admitted, and in- rolled, purfuant to the faid act of the fecond year of his prefent majefty, during the refidue of the faid term of five years, then fuch fervice fhall be deemed and taken to be as good and effectual as if fuch clerk had con- 2 tinued tinued to ferve as a clerk, for the term of five years to the fame perfon to whom he was originally bound by contract in writing as aforefaid. Seil. 1 8. " Provided alwa> s, and it is hereby further enafted by the authori- No fworn ty aforefaid, That no fworn clerk in the laid fix clerks office mall have more £ * J£ a „ than two clerks at one and the fame time, including the clerk who mall be tw0 c i er k s . entered on the roll kept by the mafter of the rolls, or his fecretary, for that purpofe. Seil. 19. " Provided alfo, and it is hereby further declared and enacted Perfonsex- by the authority aforefaid, That nothing in this aft contained fhall extend or empte * be conftrued to extend to the taking or binding, examination, fwearing, admiffion, or inrollment of the attornies, or clerks of the offices of the king's remembrancer, treafurer's remembrancer, pipe, or office of pleas in the court of Exchequer at Wejiminfier for the time being, but that the laid attornies, and clerks of the laid refpeftive offices fhall and may be taken, bound, approved, fworn, admitted, and praftife in the laid court of Ex- chequer, in like manner as they ufually have been, and might have done before the making of this aft, and may praftife in any of the iaid courts of record before- mentioned, in the name, and with the confent of fome fworn attorney of fuch court, fuch confent being in writing, and figned by fuch attorney as aforefaid, in the manner as they have ufually been and might have done before the making of this aft ; any thing therein contained to the contrary notwithstanding. . fome other thing, which is beneficial to him, he muft bring his action on the cafe, i Rol. Abr. 242. 9 Co. 78. The arbitrators cannot make an award of matters different from thole which were fubmitted ; therefore if the fubmifiion be of ewes with lambs ; and after the fubmiffion the lambs are yeaned, they cannot arbitrate con- cerning the lambs. 1 Keb. 600. 2 Weft Symb. feci. 32. The different The fubmiffion is the authority given by the parties in controverfy to kinds of fub- the arbitrators, to determine and end their grievances, and this being a million and contract or agreement muft not be taken ftriclly, but largely, and accord- thereof M ' " * n § to tne mtent °* tne P arti es fubmitting. Weft Symb. part 2. Jetl. 1,2. This fubmiffion may be by word or deed ; if the fubmiffion be by word, there is no remedy to enforce the party to perform the award, but recipro- cal actions on the cafe, and an action of debt will lie, if money be awarded, for it is in nature of a fimple contract. 1 Keb. 600. 2 Keb. 238. 3 Keb. 64. If the fubmiffion be without deed, it may be revoked without deed, and the party Ihall lofe nothing, for ex nuda fubmijjione non oritur afiio. 8 Co. 81, 82. But the party muft give notice of the revocation, i Sid. 281. Alfo if the fubmiffion be by deed, it is of its own nature counter- mandable, though made irrevocable by the exprefs words of the deed, for the arbitrators being conftituted, and put in the place of the parties, by their confent, to act for them, they can no longer ait than they have fuch con- lent. 8 Co. 82. 1 Sid. 281. 1 Brownl. 62. 2 Brownl. 290. But where a man obliges himfelf to ftand to an award, if the party revokes it according to his power, he hath forfeited his obligation, for the making the award becomes impoffible by his own default, and therefore the obligation is fimple ; but if it be without obligation he forfeits nothing. 8 Co. 82, 83. 1 Brownl. 62. If feveral plaintiffs or defendants fubmit themfelves to an award, one cannot revoke the fubmiffion without the other, for joint acts are confidered as the acts of one perfon, and there can be no revocation without the act of that perfon that made the fubmiffion. 1 Brownl. 62. If a Feme Sole fubmits to arbitration, and afterwards marries, this is a revocation of the fubmiffion ; and if it be by bond the bond is forfeited. 2 Keb. 865. 1 Jones 388. If one have judgment in an ejectment, and then they fubmit the con- troverfy to arbitration, but before any award be made he fues out execution, it is a forfeiture of the bond, for he is the caufe no award can be made. T. Jones 134. In debt upon a bond to perform an award, and oyer of the condition, the defendant pleads no Submi/it, the plaintiff need not affign a breach, for the defendant puts the whole ftrefs of his caufe upon a matter antecedent to the alledging a breach •, for if there was no fubmiffion there could be no award, and confequently no breach of it. 1 Sid. 290. Alfo a fubmiffion may be made a rule of court, purfuant to the ftatute 9 & 10 W. 3. And it is faid, that although the fubmiffion be by bond, yet the party may have it made a rule of court, in which cafe it is faid, he may 4 may proceed on the bond, and likewife have an attachment for not perform- ing the award, i Salk. 73. See 1 Sid. 54. Raym. 35. ©tilt. 9 6? 10 Will. 3. c. 15. \_A. D. Intituled.] " An act for determin- ing differences by arbitration." Whereas it hath been found by experience, that references made by rule of court have contributed much to the eafe of the fubject, in the determin- ing of controverfies, becaufe the parties become thereby obliged to fubmit to the award of the arbitrators, under the penalty of imprifonment for their contempt, in cafe they refufe fubmiffion: Now for promoting trade, and rendering the awards of arbitrators the more effectual in all cafes, for the final determination of controverfies, referred to them by merchants and traders, or others, concerning matters of account, or trade, or other matters: Be it enacted by the king's moil excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in parliament affembled, and by authority of the fame, That from and after the eleventh day of May, which lhall be in the year of our lord one thoufand fix hundred ninety-eight, it fhall and may be lawful for all Merchants and merchants and traders, and others defiring to end any controverfy, fuit, or " a ^ e . r> ' &c - quarrel, controverfies, fuits, or quarrels (for which there is no other remedy cont'oveTfies but by perfonal aftion or fuit in equity) by arbitration, to agree that their by arbitration, fubmiffion of the fuit to the award or umpirage of any perfon or perfons m°y agree fhould be made a rule of any of his majefty's courts of record, which the ' heir ^. ubn " f - parties fhall choofe, and to infert fuch their agreement in their fubmiffion, t0 "he award" or the condition of the bond, or promife whereby they oblige themfelves of any perfon. reflectively to fubmit to the award or umpirage of any perfon or perfons; which agreement being fo made and inferted in their fubmiffion or promife, Agreement fo or condition of their refpective bonds, fhall or may, upon producing an made to be in- affidavit thereof, made by the witneffes thereunto, or any one of them, in ferted . in their the court of which the fame is agreed to be made a rule, and reading and filing ubmiffioD > &c - the faid affidavit in court, be entered of record in fuch court, and a rule fhall thereupon be made by the faid court, that the parties fhall fubmit to, and Parties to be finally be concluded by, the arbitration or umpirage which fhall be made con- finally con- cerning them by the arbitrators or umpire, purfuant to fuch fubmiffion ; and cl " ded bv fucl1 in cafe of difobedience to fuch arbitration or umpirage, the party neglecting \ r n c 3 ™ °dif _ or refufing to perform and execute the fame, or any part thereof, fhall be bedience, fubject to all the penalties of contemning a rule of court, when he is a party negleft- fuitor or defendant in fuch court, and the court on motion fhall iffue in S ^rjeft to procefs accordingly, which procefs fhall not be flopped or delayed in its P ena,t y> **■ execution, by any order, rule, command, or procefs of any other court, either of law or equity, unlefs it fhall be made appear on oath to fuch t ™ s e m ;ft e h a r "j court, that the arbitrators or umpire mifbehaved themfelves, and that fuch e d themfelves. award, arbitration, or umpirage, was procured by corruption, or other undue means. Sell. 2. " And be it further enacted by the authority aforefaid, That any Corrupt arbi- arbitration or umpirage procured by corruption, or undue means, fhall be tration void, judged and efteemed void and of none effect, and accordingly be fet afide and ma y be te by any court of law or equity, fo as complaint of fuch corruption or undue a ' &c * Z 2 practice 1 7 ? SifbatD. practice be made in the court where the rule is made for fubmiffion to fuch arbitration or umpirage, before the lait day of the next term after fuch arbi- tration or umpirage made and publifhed to the parties •, any thing in this act contained to the contrary notwithftanding. The aft 9 & Upon (hewing caufe why an attachment mould not iffue againft Dr. io Will. 3 .c. ifrnj ont for refufing to perform an award made purfuant to a fubmiffion M*^«!i!!L:r entered into by rule of this court in the above mentioned caufe then there tO pUt 1 LI 111 1 i - , I .' r n . . . J . (ions where no depending, it became part of the queftion, " Whether this was within the caufe was de- acl of 9, io W. 3. c. 15. for determining differences by arbitration." And pending, upon trie court thought that it was not, but that it flood upon the common law, w'ththof ° 0t independant of the act, which was made, to put fubmiffions to arbitrations where there in cs & where there was no caufe depending upon the fame foot as thofe where was a caufe there was a caufe depending. But here was a caufe depending at the time of depending : t he fubmiilion. And therefore the cafe was not within the provision of this act. and « is only ^ nc j j orc j 2Aansfield\iAdi this act to be only declaratory of what the law was whauhekw before, in cafes where there was a caufe depending in the court. He added, was before, in that the court will not enter at all into the merits of the matter referred to the latter cafe, arbitration, but only take into confederation fuch legal objections as appear 2 Bui iv R l P " u P on tne ^ ace °f tne awarc U and fuch objections as go to the mifbehaviour Geo zB R °f l ^ e ar ^ trators - * n £ he prefentcafe, the rule for the attachment was made Lucas ex di- abfolute. millDr.Mark- 3r t0 a bill here. 1 74. aj&atD. 2 Atk 7 n - Re P- fufed to difcover, and pleaded the award itfelf in bar. Lord Chancellor : 395. in Chan, ^ere are man y inftances in this court, where arbitrators to a bill charging Arbitrators corruption and partiality, may plead the award in bar to the difcovery •, but may plead the then it is incumbent upon them to fupport their plea, by Ihewing them- award in bar ielves incorrupt and impartial, or otherwife the court will give a party a re- toabillcharg- mec )y ^y making arbitrators pay cofts. 1 remember an inftance of this fort in bu S t P theyniu'ft a famous cafe of John Ward, who being a party in a caufe where one John fupport their Warner was an arbitrator, upon Ward's coming into the room hefaid, I John plea by (hew- Warner will make you John Ward pay cofts •, Ward complained to the ingthemfelves court of this partial behaviour in the arbitrators, and the court inverted SSStwai Warncr\ threats, for they made him pay John Ward cofts. The great give a party doubt with me is, as this award feems to be executory and not final, whe- a remedy by ther it is a good award at law •, and if it is not good at law, then how can making them t he arbitrators plead it in bar to the difcovery prayed by the bill? fay cofts. When the parties have fubmitted to make the fubmiifion to the award a hercaiub- r(J j e Q f court [ t \ s a contempt of this court to difpute the order, unlefs mifhon to an , n ... r . . r . ' award has they can ihew partiality, corruption or mubehaviour in the arbitrators ; been made a and this will depend upon the denial of thefe fails in their anfwer 5 and if rule of court, they t l that fufficiently, the plea ought to be allowed-, but dill, if upon it is a con- the hearing of the caufe, the evidence fhould be (Irons; enough to con- tempt of that . , D 1 1 L- 11 -i ? • court to'dif- vlnc e the court that the arbitrators have been guilty or corruption, par- putetheor- tiality, or mifbehaviour, it will effectually open the plea: therefore 1 am der, unlefs of opinion notwitliftanding any deleft in the award in point of law, yet they can fliew U p 0I1 the parties agreeing to make the fubmiffion a rule of court, and one ruption o'r"""" condition in it being to be reftrained from, bringing a bill in equity againft miibehaviour the arbitrators, the plea of the award by them ought to be allowed. In the in the arbi- cafe of Mr. Robins, the counfel, who was appointed an arbitrator by this trators. court, accepted of it upon a provifo that the parties would enter into a rule not to bring a bill in equity, which was done accordingly, notwith- standing this, the party againft whom the award was made,' brought a bill againft the arbitrator, and charged corruption and partiality ; upon which Mr. Robins moved lord chancellor King that he might be ftruck out from being a party to the caufe : his lordfhip granted the motion, and faid it would be a very great hardftiip upon arbitrators, if they ihould be harralTed with fuits, when they undertake fuch an employment without any gratifi- cation •, and that allowing they are liable to luch a bill, would effectually difcourage perfons of worth from accepting of being arbitrators.; and therefore he ftruck him out from being a party. So in the cafe of the Eaji- India company, where they agreed to wave the penalty, but infilled upon it afterwards •, the bill was difmiffed as againft the perfon who was liable to the penalty. Vide the Eajl- India company verfus Sandys, 1 Vern. 127. A pleato a bill The plaintiff preferred his petition on the 2 6th of March laft, to let afide brought to the award in the matter between him and Eade, which was difmiffed, but fet a fide an without prejudice to his bringing a bill for the like purpofe ; he brought a award, for a D1 jj acC0 rdingly againft the arbitrators and Eade, and prays by it that he coun" Lord mav nave an infpedtion of all the accounts, from which the arbitrators Harwich al- framed their award, and that it may be fet afide, and that the defendant 4 Eade ^tuatns. 175 Eade may account generally for all tranfactions during his partnerfhip with lowed " as 1. t • -cc seainft the ge- the plaintiff. Jtl account, but held that the plaintiiFwas not precluded at the hearing from objedling to the award, for fraud or par- tiality in the arbitrators. 2 Atkyns's Rep. 401. In Chan. 1 5 Jan. 1 742. Lingwood v. Eade The defendant Eade pleads, that in former caufes between him and the plaintiff in this court, an order was made the eighteenth of November one thoufand feven hundred and forty, at the requeft, and by the confent of the parties, that all matters in difference between them, relating to their joint dealings, or otherwife, mould be referred to Charlton, &c. and the award to be made on the firft of May then next; and by a fubfequent or- der of the court, with the confent of the plaintiff's counfel, the time for making the award was enlarged till the firft of November, and by a third order till the firft of February ; that the arbitrators met forty-five times and upwards, (the plaintiff and defendant being prelent at the greateft part of the meetings) and having fully heard and examined the plaintiff and the de- fendant and their feveral witneffes, made their award within the time limit- ed ; and among other things declared, that they had taken an account of the out- Jlanding debts due to, or owing by or from the complainant, and the defendant, or either of them, on account of their joint dealings, and they awarded that each Jhould pay and dif charge one equal moiety of the feveral debts therein mentioned^ (that is to fay) to Samuel Torin 92/. 10s. yd. to Slingfby Bethel 82/. 1 8 s. 2d. and to John Hide 15/. which the faid arbitrators found to be then re- maining due from the complainant or defendant, or one of them, on their joint accounts, be the fame more or lefs than as abovementioned- " That the arbitrators have fet forth, in a fchedule to their award, an ac- count of fundry debts and effects owing to the partnerfhip, amounting to 5094/. 14.S. id. which debts and fecurities they awarded to belong in moieties to the plaintiff and the defendant •, and for the better getting in the fame, the arbitrators did thereby recommend it to the defendant and the complainant to confent that an order might be made by this court, for the appointing a proper perfon converfant in mercantile affairs, to collect in the fame for their joint ufe, and in cafe either of the parties fhould refufe to confent thereto, the arbitrators did make it their humble requeft, to this court, to order the fame, as the moft probable means to prevent future litigations between the faid parties. " That the arbitrators did award and declare, that exclufive of the above matters, there was then due from the plaintiff to the defendant 9194/. 195. 6d. on ajuft ballance, which they awarded to be paid by the plaintiff to the defendant by inftalments of 2000/. at each payment, with intereft at 4 /. per cent, from the fecond of the fame February. " That laft'y they did award, that upon payment of the faid 9194/. 195. 6d. by the plaintiff, his executors, &c. they thefaid plaintiff and thisde- fendant, their refpective executors and adminiftrators, fhould mutually exe- cute and deliver to each other, refpectively, a good and fufficient releafe and difcharge ( r .'.e form whereof to be previoufly fettled by one of the mafters of this court, in cafe this court fhould be pleafed to give directions for the fettling thereof,) whereby the faid parties mould refpectively releafe to each other, 7 6 3flMt& other, all matters in difference between them relating to their joint deal- ings, &c. " The defendant for plea further faith, that all the faid particulars fo awarded are fair and juft ; all which matters and things thedefenant pleads in bar to the plaintiffs bill, and fubmits to the court whether he is obliged to make any further or other anfwer." Mr. Murray, counfel for the plaintiff, confined himfelf to the objections againft the award, becaufe he faid the plea of the award muft fall to the ground, if the award itfelf is not good. An award muft be the judg- ment of the arbitrator, and final •, and it has been held to be a bad award, where the arbitrators direct that cofts fhould be paid according to taxation. The firft objection he took was, that here the arbitrators award, that the debts due from the partnerfhip ftiould be given in moieties by Lingwood and Eade, and then mentions only three debts, fo that in this refpect it is not final. The fecond objection, that the arbitrators recommending it to the parties, to confent that an order might be made by this court, for the appointing a proper perfon to receive in the debts due to the partnerfhip, is deputing a third perfon to do an act, which ought to have been done by themfelves, and therefore is not properly their own judgment. The third objection, that the arbitrators ought to have fettled the releafe themfelves, and not have left it to be done by a mafter under the order and directions of this court i and cited i Salk. 71. Glover verfus Barrie. That upon the whole it was not a complete award, and therefore the plaintiff fhould be admitted to go on with his bill for an account, notwithftanding the award. Mr. Attorney General, counfel for the defendant Eade, in anfwer to the fecond objection, with regard to the receiver, faid, the arbitrators could not do otherwife, as it was uncertain what would be got in, and therefore they could not award the exact fum to each of the parties, but to be divided when received. Lord Chancellor then put this cafe to Mr. Attorney General (which came before him when he was chief juftice) ; Arbitrators had awarded that each of the parties fhould give fecurity to perform the award, but left it to a third perfon to fettle the fecurities, and for this reafon held to be a void award •, compare now this cafe with the prefent, where the arbitrators have referred it to a third perfon to get in the debts due to the partnerfhip. To this Mr. attorney general faid, the award is final as to the property, but the means of afcertaining that property is only recommended to be left to a perfon appointed by the court •, in the cafe mentioned by your lordfhip, the arbitrators actually transferred to a third perfon a power which belonged folely to themfelves. As to the objection that the award is bad, becaufe the form of the releafe is left to a mafter •, as long as the fubftantial part, the awarding a releafe of all demands, is provided for by the arbitrators •, the bare leaving it to a mafter to fettle the form of the re- leafe, can never vitiate the award. Mr. Murray, the folicitor general, faid in reply, the arbitrators here have awarded things out of the fubmiffion, that affect the juftice of the cafe between between the parties, which vitiates the whole award, and confequently is no bar to the account. Lord chancellor : Though the bill is brought for two purpofes, yet one is Improper to consequential to the other. Firfb, to fet afide the award. Secondly, for a ge-come into this neral account. The prayer of the bill to fet afide the award muft be found- coaT *J°t? an ed upon the fraud, corruption, or mifbehaviour of the arbitrators; ^ or ^ady^»n it would be improper to come into this court to fet it afide merely for an objsitionin objection in point of form. The other part of the bill is the original right form, he had before the award. 1 muft confider the plea as it is pleaded to the latter part of the bill, the general account. For, to be fure, the plaintiff is intitled to an account, unlefs the award is a bar ; and therefore the court muft enter into all the legal objections againft the award, which a court of law would have done, as it is infilled on by the plea, to prevent the gene-. ral account. I own I have been a good deal doubtful as to the nicety that courts of Courts oflaw law have tiled, in determining awards ; for they have formerly gone fo far, formerly ufcd as to make it almoft impoffible for arbitrators to do what is the main inten- 10 ° niuch D1 " tion of the fubmifiion, the putting an end to differences between parties, minir^" 6 ' awards. But now courts of lawthemfelves, have in fome meafure departed from Though arbi- very ftrict rules ; as where arbitrates refer cofts to be taxed, the judges trators refer have compared awards to judgments at law, which though they muft cofts to be have certainty, yet the officers tax cofts, and therefore, where arbitrators tzxed '• >'f l " give fuch directions, it fhall not vitiate the award ; though in the old cafes ^ate'the*' rd it has been held, that arbitrators could not in any inftance delegate their at law. power. It may poffibly be worth while for me to confider, as courts oflaw them- if courts of felves have relaxed from their rigour and nicety in determining awards, equity were to whether courts of equity may not ltiil take greater latitude : but I am un- take greater willing to do this, becaufe it would introduce confufion and uncertainty, latltude in de " and make awards a mixed cafe, partly determined by arbitrators, and part- wl^than** ly by the authority of this court -, and therefore I chufe rather to confine courts of law, myfelf to one rule. it would in- troduce con- fufion and uncertainty ; better therefore to adheie to one rule. As to the firft objection, with regard to debts due from the partner- As courts of fhip, I will not lay any weight upon it; for as courts oflaw have 1 ? w ha TI? {ili faid, they will never make a prefumption to overturn an award ; neither ve^makeT' will I in this cafe prefume that there are any other debts due from the part- prefumption to nerfhip, than what are mentioned by the arbitrators themfelves. overturn an award ; fo neither will a court of equity. As to the fecond objection, with regard to the receiver, which is re- Where an commended by the arbitrators, I own I have great doubts-, but as the award is 2 ood juft ice between the parties is the material thing, and the award being good • n > t a r C t ° mm0n and anfwers the purpofe of parties in fubrnitting to a reference, the court will not fet it afide upon trivial objections. Vol. I. N° VIII. A a ro 178 Slttmtt), to a common intent, anfwers the purpofe of parties in fubmitting to a re- ference ; I am of opinion it is fufficient, for in cafes of this fort, in mercantile affairs, which cannot admit of certainty, it would be too nice to defeat awards upon objections of this kind. If arbitrators It has been laid by the plaintiff's counlel, that the arbitrators recom- tielegate their men dino- it to the parties to confent that an order might be made by this power, the a- courtj j or fa appointing a receiver, &c. and in cafe of the parties refufal void. ' S a ' y to confent thereto, the requefting the court to order the fame, is a delega- tion of their power, which arbitrators cannot do. And to befure, if they have delegated their power, the award is void for the whole. But Mr. attorney general fays, what the arbitrators have done in this refpect, is at molt but furplufage. Yet if it affected the juftice of the things fubmitted, it would not be furplufage. But this feems to me to be only a recommendation of the arbitrators to the par- ties, which is not tying them down to fubmit that a perfon fhould be lb appointed, but leaves them at large •, and if the parties do not approve of this fcheme, why then it is furplufage only, and not a delegation of their power. The queftion is, whether the arbitrators awarding that the debts due to the partnerfhip, when received, fhallbe divided in moieties between the parties, is fufficient •, and I am of opinion it is, for the ar- bitrators had no controul over the debtors themfelves, who might pay, if they plealed, the whole to one of the partners. Arbitrators To lay it down for a rule, that arbitrators muff, chalk out particularly need not point fa method in which the award is to be carried into execution, would be otarpatticu- ■ anc j overturn a great number of awards: for if this doctrine Isrlv the mc- " ,. thod in which was to prevail, fuppofe one of the parties fhould releafe a debt due to the the award is partnerfhip, it would be a breach of the award •, for qui dirimit medium to be carried dirimit finem, and the other parry could have no remedy, but either to into execu- b r j n g an action or a bill for carrying the award into execution, which would make it endlefs, and no award could ever be effectual to finifh dif- putes between parties. I cannot think of any other method the arbitra- tors could have purfued •, for though it has been faid at the bar, that they might have directed the parties to give fuch perfon as the arbitrators fhould appoint, a lettter of attorney to get in the debts, yet this would not have been advifeable, becaufe if the perfon fo deputed proved infol- vent, it would have been doubtful whether the arbitrators themfelves might not have been liable. Where arbi- The laft objection is the arbitrators leaving it to a mafter to fettle the tutors have form of the releafe. Now the general rule in regard to making awards is leafes theleav- tms ' tnat arbitrators fhould award each party to give a releafe, and if they ing it to the do not, it is at the peril of the parties. Here it is, in the firft place, fully court to give and completely defcribed in the award, what the parties fhould do in point direftions to a Q f giving releafes, and then follows the reference to the mafter to fettle the rieSefo™ torm - lf the award had laid ' that the re,eare mould be fettled b y the c0llrt does not vi firft, and then the arbitrators would confider whether they fhould order a tiate an award, releafe between the part'es, this would have been very different, and I fhould have inclined to think it a delegation of their power, and the award confe- sufcatt). 179 conlequently void. But here they have awarded releafes, and only leave it to the court, if they think proper, to give directions to a mailer to fettle the form ; and it would be very extraordinary when, I think, the arbitra- tors have done all that is neceffary, and there is no occafion for the court to interfere ; yet becaufe they have laid, we leave it to the court, therefore I mull interpofe merely for the fake of making that a bad award, which without my interpofition would be a good one. Upon the whole, 1 am of opinion the award is good to a common intent, and the plea conlequently muft be allowed againft the general account ; but the plaintiff is not pre- cluded at the hearing of the caufe from objecting to the award for fraud or partiality in the arbitrators. This came on before the lord chancellor, on the defendant's plea, that r„ an agrcf . the plaintiff and he, on the 15th of November ot^. thoufand feven hundred ment between and twenty-eight, executed articles of co-partnerfhip, by which they co- partners tore- venanted to become joint traders, as Blackwell-Hall factors, for eight years, f " matter5 ' n and agreed, in cafe any difference fhould arife relating to their bulinefs, or tr ' a f ors j]. ou ij of any covenant in the articles, it fhould be referred ; and avers, that all be impowered matters in the plaintiff's bill relate only to the partnerfhip, and that they to examine have never been fubmitted to arbitration, nor did the plaintiff ever propofe u P on oath - a reference, or nominate any perfon to be an arbitrator, though the defen- j^ c *?** dant offered, and was always ready to fubmit all matters to arbitration, 13 May 1743. and demands judgment, if he fhall further anfwer. Wellington v. Lord chancellor : The plea ought to be difallowed in this cafe •, and MackimoQi. yet I would not have it underftood, that fuch an agreement might not be made in fuch kind of articles, and pleaded •, but fuch a claufe fhould have in it a power given to the arbitrators to examine the parties, as well as wit- neffes, upon oath. But this bill is to difcover and be relieved againft frauds, impofitions, and concealments, for which the arbitrators could not examine the parties on oath. Perfons might certainly have made fuch an agree- ment as would have oufted this court of jurifdiction, but the plea here goes both to the difcovery and relief-, and if [ was to allow the plea as to relief, I could not as to the difcovery, and then the court too muft admit a difco- very, in order to aflift the arbitrators, which is not proper for the dignity of the court to do. Perfons that cannot contract cannot fubmit to arbitration, therefore femes Of the parties covert, Perfons compelled by threats and imprifonment, perfons profeffed 10 the iu bmif- in religion, cannot fubmit. 1 Bac. Abr. 136. fl0n " The hufband may fubmit the chattels he hath in right of his wife to an award, for he may difpole of them. id. ib. If an infant fubmit to arbitration, he may execute or avoid it at his elec- tion, as he may all other his contracts. 1 Rcl. Abr. 730. Perfons attainted or outlawed cannot fubmit to arbitration, for they have no property, and cannot by the law controvert any thing. 1 Bac. Abr. 136. A dean without the chapter, a mayor without his commonalty, the maf- ter of a college or hofpital without his fellows, cannot fubmit to an award, for the fubmiffion has the force of a contract, and they cannot contract with- out them. 1 Bac. Abr. 136. A a 2 If i8o Stttoata. If one party and the deputy or attorney of the other party fubmit to an award, this is well enough, for the act of my deputy is my own act. i Bac. Abr. 136. If feveral pcrfons do a trefpafs, and one of the wrong-doers and the pmy to whom it is done fubmit to arbitration, and an award is made, the other perfons (hall take advantage of it by way of extinguishing of the trefpafs ; the fame law where the party releafes to one of them, for in both cafes a fa- tisfaction really is, or is prefumed to be made, and a man cannot receive a double compenfationfor the fame wrong. 1 Rol. Abr. 268. If feveral perfons on the c ne part, and feveral on the other fubmit gene- rally to any award, the arbitrators have not only power to determine matters between them jointly, but feverally and diftinctly alio; and an award be- tween one only of the one fide and another of the other fide is good ; for this is not doing lefs than the commiffion warrants, fince there is an autho- rity in it to determine matters diftinctly between them, for the fubmifiion is ot all matters, fo that it contains as well all things feverally beween each of them, as jointly between them all, and perhaps there may be no caufe of award between the others. 1 Bac. Abr. 136. The arbitra- The arbitrators are perfons indifferently chofen, to determine the mat- ton, or umpire, ters in controverfy according to their own minds, whether they be matters of law or fact ; infants, perfons excommunicate, outlawed, &c. may be ar- bitrators, for every perfon mud ufe his own discretion in the choice of his judges, and being at liberty to choofc whom he likes beft, cannot afterwards object the want of honefty or underftanding ro them, or that they have not done him juftice. Weft. Symb. part 2. feci 27. Hard. 44. 1 Salk. 73. The arbitrators are perlbnally trufted with the authority, and it is not within their power to alfign it; therefore if an award be to ftand to the determination of a ftranger, this is void ; but if an award be, that an ar- bitrament made by J. S. fhall ftand, this is good, becaufe it is their own award, though it refers to the act of another ; but though the arbitrators cannot transfer their power, yet they may award that others fhall do a minifterial act in fubferviency to their award ; for what is done by fuch perfons, is done by them as fervants and inftruments of the arbitrators, and is the act of the arbitrator himfelf ; as, that fuch a conveyance fhould be made as counfel fhould direct, fuch cofts paid as the prothonotary fhould tax, is a good award. 5 Co. 78. 1 Rol. Abr. 251. Cro. El. 726. Palm. 146. 2 Rol. Rep. 214. 1 Sid. 258. Hard. 45. The arbitrators cannot referve to themfelves a future power, fince that would enable them to make a double award, without the interpofition of thofe who impowered them at firft. Cro. Jac.^i§ y 584. Hob. 218. 1 Sid. sg. The arbitrators cannot make their award by parcels at feveral times, for when they have made an award they have executed their authority, and can do no more ; and therefore if two fubmit all debts, trefpaffes, i£c. And the arbitrators one day make an award of the debt, and of the trefpaffes another day, this is not good as to the trefpaffes, but they may deliberate of one thing one day, and of another the other day, and then make an intire award of the whole ; alfo an award made in the night is good, for the sttbato, 181 the party's attendance is not requifite •, but where an aft cannot be done without perfonal attendance of a third perfon, it cannot be done in the night, i Rol. Abr. 250. Cro. El. 6j6. If a fubmiffion is made to A. and B. when their occafion will permit, convenient time muft be given, after requeft ; and if no arbitration be then made, the parties may revoke. 1 Sid. 281. 2 Keb. 10. If there be a fubmiflion to arbitration, and if they cannot agree before the firft of May, then the fubmiffion is made to J. S. to be the umpire, to be made before a certain day then next to come ; if the arbitrators never difcourfe about the matter, fo as there is no difagreement between them, yet if they make no award before the day, the umpire may determine the matter ; for thele words, if they cannot agree, are not to be taken literally, but only that if they do make no award, that then, &c. 1 Rol. Abr. 261. If the condition of an obligation be, to ftand to the award of certain perfons, A. and B. and /. S. being umpire for both parties, in this cafe an award by A. and B. is good •, for umpire in the common fignification of the word, denotes a perfon that is to make an end of the matter, if the others cannot. 1 Rol. Abr. 261, 262. If the condition of an obligation be, to ftand to the award of A. B. C. and D. ita quod the faid award before fuch a day be made in writing by the faid A. B. C. and D. or any two of them under their hands, &c. any two of the arbitrators, without the reft, may make an award ; for though by the firft part they are bound to ftand to the award of thofe four, yet their power is divided by the fubfequent words, and the ita quod is but an explanation of the condition, and the whole makes but one fentence. Teh. 203. See 1 Bac. Abr. 138. If the arbitrators and umpire have the fame time allotted them to make their award in the fubmiffion, as to the umpire it is not abfolutely void •, for if one of the arbitrators die, or abfolutely refufe to meddle, then the umpire may determine the matters ; otherwife not •, for two different judges can- not have a concurrent jurifdiftion of the fame thing; and a difagreement between the arbitrators at their firft meeting, gives no power to the umpire to interpofe, becaufe, though they do not agree at their firft meeting, they may at the next. 1 Bac. Abr. 138. The arbitrators may choofe the umpire before their own time is expired, for that is no relinquifhing the arbitration, but a prudent provilion in cafe they fhould difigree ; and therefore an award by them at any time before their time expired is good, and an award in that time by the umpire is void. 1 Bac. Abr. 138. The condition of a bond was, if the arbitrators make an award on or before the nineteenth of Feb. fc?r, and if they do not make it before, &eL their authority doth not determine till after the nineteenth. And the award cannot be made by the umpire before the 20th. 1 Bac. Abr. 13S. if the arbitrators have time to the 10th of June, and if they agree not to nominate one to determine it by the 10th, here if the arbitrators choofe an umpire, that determines their power; for it feems plainly the defirrn of the parties, that either one or the ether may determine it by that time, and not that both ftiall have concurrent jurifdiclions. 1 Bac. Abr. 138. If jS2 StMtt). If the arbitrators make an award of part, during their time, the umpire cannot make an award of the reft, unlels the fubmifiion be, that if the arbitrators make an award of part, or of none, then the umpire may make an award of the part remaining or the whole, i Rol. Abr. 262. If the condition of an obligation be to ftand to the award of A. and B. Co as the laid award be made before fuch a day •, and if they make no • award, then to ftand to the award of fuch umpire as the faid A. and B. fhall nominate, fo as the faid umpire do make his award before another day, and the arbitrators before the firft day make no award, but afterwards name C. to be umpire, who thereupon immediately refufes, and the arbi- trators afterwards nominate D. who before the laft day makes an award; this is a good award ; for the nomination of C. to be umpire did not make him lb •, but when he refufed, it amounted to no more than a bare pro- pofal to him, and the form of pleading always is fufcepto fttper fe onere arbitri; fo that it is the acceptance makes him umpire. 1 Vent. 1 13, 1 14. If the condition of an obligation be, That whereas A. and his fon, of one part, 6?c. have fubmitted to the award of B. and C. ita quod &e. be- fore 1 May, and if they make none, to the award of fuch umpire as they fhould chufe to be made before the firft of June, and the arbitrators make no award, but chufe an umpire who makes an award, but quoad the fon awards nothing ; this is a void award; for though the ita quod be in the claufe referring to the arbitrators, and the award is made by the Umpire, yet the ita qnod relates by conftruftion to the umpire as well as the arbi- trators. 1 Lev. 139, 140. Of the award Here it muft be obierved, that the courts of juftice have of late been and what fhall more liberal in the conftruftion of awards than formerly, and that many of be deemed a the niceft diftinftions to be met with in the books are by no means to be ad- good award. m ir.ted as precedents in expounding awards at this day ; and this the courts do in furtherance of juftice, and for quieting of controverfies ; however, as an award is a judgment, and can only be expounded by itfelf, without the aid of an avermentof matters dehors or external to explain the meaning of the arbitrators, it is necefiary that on the face of it appear, ift, That it be made according to the fubmifiion. 2dly, It ought to be certain. 3dly, Tt ought to be equal and mutually fatisfaftory. 4thly, It muft be of a thing lawful and poffible. 5thly, It muft be final. 10 Co. gy. Dyer 242. The award ^ an awat "d be made of any other thing than what is contained in muft be ac- the fubmifiion, it is void ; for no act is my own, or binding to me, unlefs cording to the done by me or by commifilon from me. PIovj. 396. Dyer 242. iubmifiion. j£ arbitrators award to do an a£t to a ftranger, that is good ; for the ftranger is put by the arbitrators in the place of the party, and they have power to award this aft, fince it is not impofiible or unequal, and it is relating to the fubmifiion. 10 Co. 131. ^Leon. 62. 1 Rol. Abr. 24S. But an award that an aft fhould be done by a ftranger, is void, becaufe he is not within the fubmifiion. Hard. 46. If two fubmit to an award all aftions, and the arbitrators award a relcafe of all aftions till the time of the award, fome books have faid that this is void for the whole, becaufe it extends to things partly within the fubmil- fion fion and partly to things out of it, and it is one entire aft •, for, fay they, to do that aft they are not obliged, becaufe not within the fubmifiion, and to do an aft relating only to things contained in the fubmifiion, is another aft from what is awarded ; others have faid that this is not void, unlefs there are (hewn on the other fide caufes of aftion arifing between the time of making the award, otherwife none (hall be intended •, and then the releafe relates only to the things in fubmifiion. 1 Bac. Abr. 139. 10 Co. 131, 132. 1 Rol. Abr. 242. But it has been refolved, and feems now fettled, that the aft is not intire ; for he may releafe all aftions to the time of the fubmifiion ; for though there is one deed of releafe awarded, yet that deed relates to feveral things that are dividable in their own nature one from the other, and fo it fhall be good for what is in the fubmifiion, and void for the refidue. 3 Lev. 188. 2 Mod. 169. 1 Salt 74. 3 Lev. 413. 2 Lev. 3. The arbitrators cannot bind a man's liberty or right to real things, where perfonal things are fubmitted ; and therefore if they award fervice for two years, or a releafe of the right of lands in fatisfaftion for a trefpafs, this is void-, for no body can be fuppofed to fubmit more than his perfonal eftate to anfwer a perfonal injury, for that only might be taken in execution for it by the common law •, but his perfonal eftate may be bound to anfwer it ; therefore if the arbitrators award a horfe, money, a quart of wine in fatisfaftion for a trefpafs, this is good ; for here a new perfonal duty is railed inftead of the former, and to fatisfy out of the perfonal eftate is neceffarily implied in the fubmifiion •, for this is a means necefiary to quiet the matters. 1 Bac. Abr. 140. If two fubmit to award all quarrels concerning tithes in a place certain, and the arbitrator awards that one fhall pay to the other 20 1. and the other fhould releafe to him all aftions, this fhall be intended all aftions con- cerning the tithes, unlefs the contrary appear on the other fide, and the aftions may be fevered ; and this fhall be good for the afts in the fubmifiion, and void for the reft. 1 Bac. Abr. 140. A fubmifiion of all debts and demands, and a releafe of all judgments, executions and extents awarded, is a good award. 2 Sand. 190. A fubmifiion of all matters between the plaintiff and another, and an award made of things that the party hath in right of his wife, is good ; for thefe things are comprehended under the words all matters. 3 Btdjl. 65. A fubmifiion of all injuries, and award of all debts, duties, and trefpafies, a good award; for whatever is againft law is an injury. 3 Bulft. 312, A fubmifiion of all aftions now depending, and an award of all aftions, good ; for it fhall be intended aftions depending. Cro. El. 66, 858. There is a controverfy between A. and B. on one part, and C. D. and E. on the other part, and C. for himfelf, and D. and E. fubmits the matter, and promifes to ftand to the award, if the award be that C. fhall pay (o much in fatisfaftion of the controverfy, it fhall bind him, though it con- cerns D. and E. who are ftrangers to the fubmifiion, inafmuch as the thing awarded 1 8 + 2ttt)«m>* awarded is to be done by him, and not by the Grangers to the fubmiflion. i Rol. Abr. 244. If there be acontroverfy between the parfon and his parifrtionen, whether tithes ihall be paid mfpecie or not, and they fubmit all controverfies, and the arbitrators award that they fhall pay lb much a year for tithes, this is good ; for that was the debate on the award. 1 Rol. Abr. 254. If the fubmiflion be of all controverfies to the time of the fubmiflion, and the award be that one of them fhould deliver up an obligation made iince the fubmiflion, in fatisfaftion of all matters, cx?c. this is good, becaufe the bond is given only in fatisfaftion. 1 Rol. Abr. 246. An award may be good, though part of it may be made of a thing not within the fubmiflion •, as if an award be to pay 1000I. and to procure a ftranger to be bound to pay 22 1. per annum, the plaintiff muft lay the breach in not paying the 1000I. for as to the other part it is wholly void. 1 Bac. Abr. 141. If an award be good for part, and void for part, the plaintiff may aflign the breach, that the defendant did not perform the thing fubmitted, nee performavit in aliqiio ; for it fhall refer only to that in the fubmiflion, for reft is void, and not to be performed. 2 Rol. Rep. 48. If the arbitrators award on one fide an aft contained in the fubmiflion, and on the other fide an aft out of it, this a void award for the whole ; for this is unequal, becaufe there is fomething on the one fide awarded only, and nothing on the other •, for what they intended to ballance it with on the other appears to be void. Poph. 134. Cro. Jac. 149. 3 Mod. 372. If the arbitrators award iol. to one of the parties, and 5I. to a ftranger -, this is good as to the party himfelf, and void for the ftranger. 2 Sand. 293- The award As an award is in nature of a judgment, it ought to be wholly decifive-, muft becer- for if it doth not determine the matter, it becomes the caufe of a new con- tain, troverfy ; therefore if the arbitrators award a bond for quiet enjoyment of lands, without appointing a certain fum, this is avoid award, and the party is not obliged to give bond to the value of the land, for then the fenfe of the award muft be fupplied by averment ; now if it hath the credit of a judgment, there can be no interpretation made of the award, but by the words of the award itfelf ; for if it receives its meaning from any matters out of the award, the mind of the arbitrators is only guefled at, and not exprefled, but the parties intended to be obliged only by what the arbitra- tors themfelves declare to be their award-, and were the bond to be accord- ing to the value, they cannot aflign their power to any perfon to affefs the value. 1 Bac. Abr. 142. So if the arbitrators award that one party (hall give fecurity to the other for the payment of 16 1. this is not a good award, becaufe it doth not ap- pear what fecurity, whether by bond or otherwife. 1 Bac. Abr. 142. If the condition of an obligation be, to fubmit to an award all con- troverfies between A. and B. and an award is made that A. fhall permit B. to enjoy certain leafes of lands purchafed from J. S. and that B. fhall pay the rents, and perform the covenants, and deliver to A. a true copy of the 4 leafes Ieafes, and pay the arrears to the time of the purchafe from J. £ this is a good award, as to the rents and covenants, though not particularly lpecified i for it is true, an award is to be interpreted by its own words, and not by any matter out of the award which doth not appear in the words •, but when the words of an award have relation to things certain out of the award, thefe things may be averred ; for that is the exprefs mind of the arbitrators, which they have exprefsly referred to ; but as to the arrears the award is void, becaufe they have not referred to any matter that falls within the conuzance of B. for he cannot compel A. or J. S. to fet the time of the purchafe •, and an award of what cannot be certainly done, is not a certain determination, i Bac. Abr. 142. 1 Roll. Abr. 264. Awards muft not be on one fide only; this muft be underftood thus •, Th * aw ' a "* That all controverfies being between two parties, that which is awarded ""u,]'^ * u . to be done to one, muft be an advantage to both, fo as to end the con- t uaily fatif- troverfy, and difcharge one as well as give fatisfaftian to the other,, fafiory. for if it doth not, it is manifeftly unjuft ; and therefore whenever it ap- pears to the court that, notwithftanding the award, the thing remains a duty as before, and is not difcharged, that apparently is an award on one fide, and confequently is void ; not that where one party is by the award to have fomething paid him, or the like, and not the other, that that award fhould be naught; for perhaps nothing may be due to him, and he might be the only trefpafTer in the cafe. 1 Rol Abr. 253. 8 Co. 98. Thus in cafe of a trefpafs fubmitted, the arbitrators award that one fhall pay the other 3 /. this is void, becaufe only on one fide ; for it is not faid for what, and fo the trefpafs is not difcharged ; and then the other party hath no advantage by the award •, but if it were awarded de di? fupcr pr. to any man ; but if the award be to command the juftices to do it, this is no good award •, for the parties in effect pray leave to agree from the king himfelf, which is quite different from the nature of a command, i Rol. Abr. 249. An award to pay fo much apud domumj. S. good •, for he is not bound to pay it in the houfe, but as near -as he can to it, or it fhall be intended a common inn •, and if the party will not let him pay there, it has been laid that the endeavour is fufficient-, for they cannot award any thing that will make the party a trefpaffer. 1 Rol. Abr. 249. Cro. Car. 226. 2 Bulf. 39. 3 Lev. 153. The award An award that all luits (hall ceafe is a final award •, fo an award that mufl be final. one f tne parties fhall not fue an obligation ; for this amounts to an ex- tinguilhment of the debt. An award that a fuit in Chancery fhall be dif- cuffed, a final award ; fo if the arbitrators award a retraxit, and award that one fhall not profecute nor proceed in fuch a term, feems to be good, but an award that one of the parties fhall be nonfuit is not good, becaufe the party may begin again ; fo that each party fhall difcontinue their actions which they have againft each other ; for this is not a final determination. 1 Bac. Abr. 147. A conditional award not good, becaufe not final to determine matters in difference •, the fame law where any thing is referred to the arbitrators fu- ture judgment or expofition. 1 Bac. Abr. 147. If the arbitrators award general releafes within four days after the award, and if in ten days after the releafes fo made the party diflike the award, upon payment of ten fhillings, the award fhall be discharged, here the award is good -, and the provifo to make void the award after fuch releafes, is altogether void and repugnant ; for if the obligation be once forfeited by non-performance of the award, it can never be dif- charged by the award itfelf ; but if the arbitrators award general re- leafes within four days after, the award ; and if ten days after the award made the parties diflike the award, &c. the ward fhall be void, this award is not good, becaufe not final and decifve ; for the parties may diflike the award within the four days. 1 Bac Abr 147. If the arbitrators award that A. fhall beg B.'s pardon in fuch manner, and fuch place as B. fhall appoint, as to this part the award is void ; for the arbitrators ought to have made a final determination of the matter themfelves, and not to have left the manner and place of begging pardon, which in this kind of fatisfaclion makes the molt, confidcrable part, to the judgment of B. 1 Bac. Abr. 147. When the arbitrators award a thing not fubmitted, with a refervation to themlelves of a future power of judging of the matter, and they award a thing within the fubmiffion, this is good for things within the fubmifTion j for as to that it is final, and void for the refidue. 1 Bac, Abr. 147. It" they arbitrate that all controverfies fhall ceafe, except that concerning one bond, this is final ; for as to the bond they arbitrate that it fhall con- tinue in force. 1 Bac. Abr. 147. 4 la. In an action of trefpafs for an affault, battery, and falfe imprifonmenr, Awards are . an award ('made pending the action) being pleaded to this adtion, and a "?" ?? n H tT ~ tender of thefum awarded-, the plaintiff demurred. The award (which ftri ^ efs tll ^ n •was made upon a fubmiffion of all difputes, &c.) was in theie words, — formerly ; yet " Whereas there has been a fuit at law between the parties, that has run they mull be to a great expence on both fides ; and it being left to me to make an ««■&•" and end of it •, I determine That they fhall each of them pay their own char- r^I' ' ur ges at law ; and that the defendant pay the plaintiff five {hillings, for Eait' S o Geo. his making the firft breach in the law." Mr. Anguifh pro quer' objected 2. Hawkins to the awards as being ift, Uncertain ; 2dly, Not final. Firft. — It is «»- v. Colebough. certain. The fubmiffion is of fever al matters : and the award does not at ail fhew, which of them it means to determine. 1 Ro. Abr. 242. Let- ter B. pi. 1. 252. //. 10. And an averment without a fact to fupport it is of no avail. 1 Ld. Raym. 24.6. in the cafe of Bacon v. Dubarry, the 4th refolution is exprefsly fo. This is an action of trefpafs. The fubmiffion is of all trefpaffes. And the award does not diftinguifh what trefpafies it determines. 1 Ro. Abr. 251. Letter 1. pi. 1. and/>/. 3. and the cafe of Maiv v. Samuell in Pepham 134. and 2 Ro. Rep. 1. the cafe of Bacon v. Du- barry (before cited.) The 3d refolution fays, " That the award was void for the uncertainty, without releafes." Now here are no releafes. Each is to pay their own charges : and the defendant is awarded to pay to the plaintiff 5 s. for his (the defendant's) having been guilty of the firft breach of the law. The injury complained of was afiault, battery, and falfe imprifonment. And here is no fatisfaftion awarded for the injury. 1 Ld. Raym. 247. The cafe of Freeman v. Bernard. Second point — 'Tis not final. Which it ought to be. An award muft: be final. But this award was made pending the action : And it does not put any end to it, at all. Under this head, He cited 1 Ro. Abr. 252. pi. 16, 17. [But one of thefe is marked by the abridger, " Dubitatur" : The o- ther " Contra 15 H. 7. 22."] Alfo 2 Strange 1024. The cafe of Tip- ping v. Smith : Where the award was held ill ; being uncertain, and not final. And Cro. Eliz. 904. The cafe of Coljion v. Harris : Where the award was holden void ; becaufe nothing was awarded to the defendant, nor to be free from the fuits : So no advantage to him. Mr. Caldecot contra pro def* This award is pleaded by confent of the plaintiff, and by leave of the court. And though pleaded as being made pending the action, viz. between the action brought and the plea pleaded, yet the court will determine upon the mere validity of it. ift, It does appear upon what particular fuit the award was. The gene- rality of the fubmiffion is not inconfiftent with the particularity of the award. 8 Rep. 98. b. Bafpole's cafe. [2d refolution.] This (hall be taken to be the whole matter depending between the parties : And no other fuit than this appears to have been depending between the parties. The cafe of Bacon v. Dubarry, in 1 Ld. Raym. 246. is not like or fimilar to the prefent cafe. After payment made or tendered, the action of trefpafs is difcharged. Hob. 49. The cafe of Nicbolls v. Grunnion is exprefsly B b 2 fo. j 88 &tt>att>. (o. [The words are " For a fatisfaclion implies a difcharge."] The prefent award (which was made by a cobler) recites that there was fuch a fuit -, and that it being left to him to make an end of the faid fuit, he de- termined as follows, viz. " That the faid J. H. and J. C. mould each of them pay their own cojls and charges at law ; and that the faid J. C. mould pay the faid J. S. 5 /hillings for his making the firjl breach in the law." And this may be pleaded in bar, in another action. The arbitrator certainly intended to make an end of this fuit depending between the parties ; and thought 5 s. adequate to the injury. Mr. Anguifh in reply — Notwithstand- ing the confent " to plead this award in bar," Yet all objections to the award itfelf are ftill open. This is not fhewn to be the only matter between them : And non conflat that the award was made concerning this particular action. I agree that payment difcharges the trefpafs. But then it ought to appear that the payment was in fatisfaction of the fame trefpafs ; which does not appear in this cafe. Lord Mansfield: — The queftion is whether this be a good award. A- wards are now confidered with greater latitude, and lefs ftrictnefs than they were formerly. And 'tis right that they mould be liberally con- ftrued, becaufe they are made by judges of the parties own choofing. And this is often, (as it is here,) in cafes of fmall confequence, where the play is not worth the candle. Indeed they muft have thefe two pro- perties, to be certain, and final. But the certainty may be judged of ac- cording to a common intent, and confiftent with fair and probable pre- emption. This fubmiflion is, in general terms, " of all actions, contro- verfies and fuits between them." The arbitrator recites one •, referring to the fubmiflion, as authorifing him to determine it : And it appears that this fuit was depending between the parties. And the parties have not de- fired to be heard upon any more than this one. Therefore there is no probable prefumption of any other. 2dly, As to its being final — It feems to iae a reafonable and fair award. The arbitrator, plainly, thought it a mere trifle \ and feems to have thought both parties to have been in the wrong ; and therefore awarded each to ftand by his own cofts. And the 5 s. awarded to be paid, is plainly in fatisfa3ion of this fame action ; and therefore is a difcharge of it, being paid or tendered. And he de- clared againft critical niceties, in fcanning awards made by judges of the parties own choofing, in order to the determination of difputes between. them. Therefore he was clear, that the judgment ought to be for the defendant. Mr. juft. Benifon concurred— The fubmiflion is general : The arbitra- tion is alledged to be " de et fuper prasmiflis" •, and it does not appear that any thing elfe was before the arbitrator. It's plain that this matter was fubmitted : and we have no reafon to prefume " that there was any other. And it is fujficicntly final; it is to pay 5 s. for having been guilty of the firft breach of the law. Therefore it is the fame, as if it had faid *' in fatisfaction," Therefore it is mutual and final. And awards ought to be conftrued liberally and favourably. Mr. juftice Fofier concurred^ for the reafons already given. Judgment for the defendant. After £tt)art>. 189 After an unfuccefsful motion, made on the part of the defendant, In an action of " to fet afide an award ;" and an equally unfuccefsful one, made on de bt upon the the part of the plaintiff, " to enforce it by an attachment for non- a *' ar< * ,l(e]f ' performance;" The plaintiff found himfelf obliged to have recourfe to '„(:«? not'fhew his aclion againft the defendant upon it. And now upon an action of forth fo much debt brought by him on this award, reciting that in an action of affumpfit, as he mutt the parties, at the trial, had fubmitted the matters in difference in the faid L dV ? d , one ' lf caufe, to certain arbitrators, &V. fo as they fhould publifh their award in br e 0l) g ht it writing concerning the premiffes, before, &c. And that they accordingly upon the arbi- did publifh their award in writing, &<:. And awarded " that the defen- tration bond. dant Nicholfon fhould pay to the plaintiff Perry 48 I. 11 s. ^d. in full pay- ' Bur - Re P- ment, difcharge, and fatisfaction of all moneys whatfoever, or any ways z? q g ^ due or owing unto Perry, by Nicbolfon, at the time of commencing the p crry v _ faid action ; and that all actions depending between them for any mat- Nicholfon. ter, caufe or thing whatfoever., arifing before or at the time of referring, fhould from thenceforth ceafe ; and that upon payment of that fum, they fhould within two days after the taxation of cofts in the action, and pay- ment thereof to Perry, feal and execute to each other, general releafes of all matters in difference in the faid caufe." Then the plaintiff avers that there was, at the commencement of the action, or at the time of reference, no other money whatfoever any ways due to him the faid plaintiff Perry from Nicholfon, but the matter in difference in the faid caufe ; and that no other aclion was depending between them ; and that the cofts were taxed at 28 /. The defendant pleads " that no fuch award was made." Replication - " that there was fuch an award, ciJV." And iffue thereupon. The plaintiff gave in evidence, an award in wri- ting, indented, under the hands and feals of the faid arbitrators, named in his declaration and replication, with the following variations from, and additions to the award fet forth in the declaration, — viz. There was in the declaration, ift, An omiffion (after the award " to pay, &Y.) of thefe following words : — " That Nicholfon at the fame time deliver up to Perry a promiffory note of Perry's payable to Nicholfon or order, for 5 /. 7 s. to be cancelled " 2dly, A mifreprefentation of the releafe : Which is " that they fhould execute mutual and general releafes of all actions, csV. debts, &c. for any matter, caufe, or thing whatfoever, from the be- ginning of the world unto the day of the date hereof." 3dly, The award produced in evidence, is by deed indented, under hand and feal : Whereas the award declared upon is only an award " in writing," merely. Upon this evidence, there was a verdict for the plaintiff, iubject to the opi- nion of the court, on this queflion, — " Whether there be material variances between the award declared upon and the award given in evidence." Mr. ferjeant Hewitt, —proquer.' This action is an action of debt on the award itfelf ; not an action of debt on the arbitration bond : And on fuch an action, no more needs be kt out, than is material, and enough to intitle the plaintiff to his demand. 1 Leon. 72. the cafe of Smith v. Kir foot. 1 Salk. 72. the cafe of Foreland v. Marygold. Both which cafes are 9 o SlttmrD. are exprefly fo. Another rule concerning awards is, that the generality of the words of them may be rejlrained, fo as to be conftrued to amount to no more than they ought to amount to. One way of doing this, is by averment connecting the award with the fubmifiion : As it is faid in the cafe in Aleyn 51, 52. Rofe v. Spark [firft point,] " That the words de pramiffis have been newly uled in pleading awards : in order properly to apply the o-eneral words proportionable to the things fubmitted." Another way of doin<* this, is by pleading them according to their legal operation. Ano- ther way of retraining the generality of words is by intendment of lav: : As was done in 1 Salk. 74. Simon v. Gavil. Another way is by pleading the matter ; (which is the proper way for the defendant to take advantage of it-,) as in Moore 885, N°. 1242. The cafe of Lee v. Paine. Another way is, that an award may be good in part, and bad in part ; if relative to diftinct things. To apply thefe politions. — Here are four things a- warded : which, it is true, are not all particularly fet forth. But all that is necessary to this fuit, is fet forth: The other things are not re- lative to it. And here is an averment " Tiiat no other thing was in dif- pute." The queftion is, " Whether this award produced in evidence proves the declaration. Now all that is material in the declaration, upon this action of debt upon the award, is the award of the 48 /. and the 28 /. cofts. So that it is fufficient to prove the declaration. Mr. Anguish contra pro. def. ift, Here is an omiffion of that part which obliges the defendant Nicholfon to deliver up a note : Which note com- pofes part of the fum, and was in confideration to make up the 48/. To iuppofe it otherwife, is inconfiflent : Becaufe, otherwife they would not have ordered it to be given up. He cited 2 Lev. 235. The cafe of Adams and Stat ham: Where an omiffion vitiated the award. Lord Mansfield, after ftatingthe cafe, faid that nothing was clearer, than that in an action of debt upon an award, a man has no need to fiate in his declaratioon any more of the award, than fupports his cafe. If there be any thing by way of condition precedent to the payment of the money, the defendant may fet it out in pleading. This has been the law, fo long ago as from the time of the Regifter : where there is a writ which fets forth only fo much as is neceflary. [V. Regifter 1 1 1.] Then with regard to the releafe. — The court will intend that the releafe fhall extend only to the matter under the fubmiffwn. Befides here they have averred " That there was no other matter in variance." Therefore I think there is no material variance between the declaration and the evidence. Mr. Juftice Denison — was clearly of the fame opinion: which he declared to the following effect. The queftion is " Whether the award given in evidence is fufRcient to fupport the award fet forth in the declaration." Now nothing is claimed by this action, but the money. And the queftion is, whether it was neceflary, in this action, to fet forth any thing more than fupported his claim to recover, and fhewed his right to this money. It has been ft uled that in actions upon awards (which are no fpecialties,) there is no occafion to fet forth the whole award. The plaintiff needs not fliew any thing more than what is neceflary SUtoattj. 191 ncceflary to fupport that particular claim ; and to intitle him to the thing ; and if the defendant will impeach the award for any thing, that is to come on his part. 1 Leon. 72. Smith and Kirfoot's cafe is exprefiy fo refolved. Littleton's Rep. 312, 313. Leak v. Butler, is a like refolution : Where the form of declaring isfaid to be taken from a writ in the Regifier 1 1 1. And this difiinclion between debt upon the award itfelf, and debt upon the arbi- tration bond, was admitted in 1 Salk. 72. the cafe of Foreland and Mary- gold: which was an action of debt upon bond to perform an award. And 1 Lord Raym. 715. Foreland and Hornigold is the fame cafe: Where alio it apppears to have been an action of debt upon the bond. Here, the a- ward is, " That Nicholfon fhall pay the money, and Perry deliver up the note." And this is an action of debt brought by Perry, upon this award, for the money. It would, as I have already faid, have been a quite dif- ferent cafe, if it had been an action upon the arbitration bond. But it is here good, even though on the mere face of the declaration it fhould appear as a bad award, by appearing thereupon, and as there fet forth, as if it were only an award on one fide. For the plaintiff, in this adlion upon the award itfelf, needed only to ihtv/fuch part as he grounded his action upon. Then as to the Releafe. — The award " of general releafes," was void, as to other matters not fubmitted. Here nothing is fubmitted, but in this particular action. And in an action upon the bond, " a releafe as to all mat- ters under fubmiffion," would be a good plea •, though the award be an a- ward of " general releafes." But here it is exprejly averred, " that there were no other matters in difpute." However, there was no occafion for that averment, becaufe we would not have intended " that there were any other." Mr juftice Foster was of the fame opinion. He faid it was fufficient in an action of debt upon the award itself, to fet forth fo much only as is neceffary to fupport the plaintiff's claim. The other part of the award, mav, perhaps, be performed. He thought therefore, that the evidence well proved the declaration. Per cur. unanimoufiy (Mr. Juftice Wilmot abfent) Let the postea be delivered to the plaintiff. i&atigers. B A D G E R is derived from the French bagage, baggage or luggao-e, and fignifies a perfon who is licenfed to buy corn or other victuals°in one place, and carry them to another. Cowell. Termes de la ley. ©tflt. 5 & 6Ed. 6. c. 14. [A. D. 1552. Intituled] " An act againft 5 &6Ed. regracors, foreftallers, and ingroffers." b - ° '4- " Albeit divers good ftatutes heretofore have been made againft fore- Who (hall be ftallers of merchandifes and victuals, yet for that good laws and ftatutes J ud g ed * for«- againft *92 BaDger. fbller, who a againft regrators and ingroflers of the fame things have not been heretofore rcgrator, and f u ffi c i ent: iy made and provided, and alfo for that it hath not been perfectly grofler; and ^ nown wnat perfon fhould be taken for a foreftaller, regrator or ingroffer,. the puniih- the faid ftatutes have not taken good effect, according to the minds of the mem of them, makers thereof: (2) Therefore be it Enacted and declared by the king our 2>F.d. 3.Stat.f overe jg I1 i orc ^ with the affent of the lords fpiritual and temporal, and the Stat'i c z 2 ' commons > n this prefent parliament aflembled, and by the authority of the repealed as to fame, that whatfoever perfon or perfons, that after the firft day of May next buying fea-fidi coming fhall buy, or caufe to be bought, any merchandife, victual, or any unialced, Sec other thing whatfoever, coming by land or by water toward any market or by 5 E iz c. ,5. £ a j r tQ ^ e fold in the fame, or coming toward any city, port, haven, creek 317. Godboli or roa d °f this realm or Wales, from any parts beyond the fea to be fold - y 131. pi. 1+8. (3) or make any bargain, contract or promife for the having or buying of 3 Inft. 895, the fame, or any part thereof, fo coming as is aforefaid, before the faid 196 R 2 n° m erchandiie, visuals, or other things, fhall be in the market, fair, city, ?P4 '4.2°!. ' ' P ort ' haven, creek or road, ready to be fold ; (4) or fhall make any motion 2 Roll. 92, by word, letter, meffuage or otherwife, to any perfon or perfons, for the 4oo.Stile 190. inhancing of the price, or dearer felling of any thing or things above- Moor 595.pl- mentioned; (5) or elfe diffwade, move or ftir any perfon or perfons coming u " c ro A ac ' to the market or the fair, to abftain or forbear to bring or convey any of the 131,314. things above rehearfed, to any market, fair, city, port or haven, creek 2 Leon- 39- or road to be fold, as is aforefaid, (6) fhall be deemed and taken, and Comberb- 3. adjudged for a foreft aller. 1 Hawk- P. § e fa 2 « Further be it enacted and declared by the authority aforefaid, That whatfoever perfon or perfons, that after the faid firft day of May fhall by any means regrate, obtain, or get into his or their hands or poffeffion, in a fair or market, any corn, wine, fifh, butter, cheefe, candles, tallow, fheep, lambs, calves, fwine, pigs, geefe, capons, hens, chickens, pigeons, conies, or other dead victual whatfoever, that (hall be brought to any fair or market within this realm or Wales to be fold, and do fell the fame again in any fair or market holden or kept in the fame place, or in any other fair or market within four miles thereof, fhall be accepted, reputed and taken for a regrator or regrators. Explained by Seft. 3. " And be it alfo enacted and declared by the authority aforefaid, z 1 Ja. 1 . c. That whatfoever perfon or perfons, that after the faid firft day of May fhall lones 1 C7 ingi'ofs or get into his or their hands, by buying, contracting or promife- bridgm. 5,49. taking, other than by demife, grant, or leafe of land or tithe, any corn growing in the fields, or any other corn or grain, butter, cheefe, fifh, or other dead victuals whatfoever, within the realm of England, to the intent to fell the fame again, fhall be accepted, reputed and taken an unlawful ingrofTer or ingroffers. The punifh- Sett. 4. " And if any perfon or perfons fhall, at any time after the faid "Jr' 1 '/- ' he "^ ^ a y °^ May, offend in any of the things before recited, and being forefiM^jrAe thereof duly convicted and attainted by the laws of this realm., or after the £rll offence. f° rni hereafter mentioned, fhall for this or their firft offence have or fuffer imprifonment for the fpace of two months without bail or mainprife, 3 (2) and Bangers i 93 (2) and (hall alfo Iofe and forfeit the value of the goods, cattle and victual fo by him or them bought or had. Seft. 5. " And if any perfon, lawfully convicted or attainted of or for any Thepunifft- the offences abovefaid, be thereof eftfoons lawfully convicted or attainted, ^ e "l! or w the that then every perfon or perfons fo offending fhall have and fuffer for his or eco encc " their faid offence, imprifonment by the fpace of one half year, without bail or mainprife, and fhall lofe double the value of all the goods, cattle and victual fo by him bought or had, as is aforefaid. Seel. 6. " And if any perfon, being lawfully twice convicted or attainted The punilfc- of or for any of the faid offences, fhall eftfoons offend the third time, and ment for tne be thereof lawfully convicted or attainted, that then every fuch perfon for thlrd offence ' the faid third offence fhall be itt on the pillory in the city, town or place where he fhall then dwell and inhabit, and lofe and forfeit all the goods and cattle that he or they have to their own ufe, and alfo be committed to prifon, there to remain during the king's majefty's pleafure." Sett. 7. " Provided alway, and it is enacted and declared by the authority To what re- aforefaid, That the buying of any fuch barley, bigg or oats, as any perfon a£b"hitftatu" or perfons (not foreftalling) fhall buy to convert into malt or oatmeal, in doth not ex- his or their own houfe or houfes, and fo fhall be converted indeed, (2) or tend. Godbolt the buying of any fuch thing by any fuch fifhmonger, butcher, or poulterer, ' 44- pi- ' 80. as concern his or their own faculty, craft or myftery, (otherwife than by ' ,J *- foreftalling) which fhall fell the fame again upon reafonable prices by retail j (3) or the taking of any cattle, corn, grain, butter, cheefe, or any other thing above mentioned, referved without fraud or covin upon leafe for term of life or lives, year or years, heretofore made or hereafter to be made; (4) or the buying of any wine or other dead victual above mentioned, being apt and meet for man's fuftenance, by any inn-holder or other victualler, to fell the fame by retail within his houfe, or to any of his neighbours for their fuftenance, for reafonable prices • (5) or the buying of any dried or falted fifh, herring or fprats (not foreftalled) and fold for reafonable prices ; (6) or the buying of any corn, fifh, butter, or cheefe, by any fuch badger, Badger, &c. lader, kidder or carrier, as fhall be afiigned and allowed to that office or t0 De allowed doing, by three juftices of the peace of the county where the faid badger, ^!" e< 3 " art ? r " lader, kidder or carrier fhall dwell, which fhall fell or deliver in open fair . £i; z C C |2 , or market, (7) or to any other victualler, or to any other perfon or perfons, f. 4. for the provifion of his or their houfe or houfes, all fuch corn, grain, butter and cheefe as any fuch perfon fhall buy or caufe to be bought, and that within one month next after he fhall fo buy any fuch corn, grain, butter or cheefe, fo that the fame fhall be bought without foreftalling; (8) or elie that any common provifion made, or hereafter to be made without fraud or covin, by any perfon or perfons, of any of the things abovefaid, for any city, borough or town corporate, or for provifion of victualling of any fhip, caftle or fort within the king's dominions, without foreftalling, which fhall be imployed only to that ufe and purpofe; (9) or the buying and providing of any of the victuals above mentioned, neceffary and requifite for the furniture and provifion of the inhabitants of Calice, Guifnes, and other the marches of the fame, or of the town of Berwick, Holy IJland, or Vol I. N° IX. C c the i94 Banged the marches of England againft Scotland, which without fraud or covin fhall be tranfported and conveyed as loon as wind and weather may ferve, to fuch of the places aforefaid for the which the fame fhall be provided, ( i o) fhall not be in any wife deemed, adjudged or taken any offence con- trary to this aft. Changing of SetJ. 8. " And it is alfo further enacted by the authority aforefaid, That feed corn. jf anv perfon or perfons after the faid firft day of May next coming, having 2 rown.io ■ fufficient corn, and grain for the provifion of his or their own houfe or houfes, and fowing of their grounds for one year, do buy any corn in any fair or market, for the change of his or their feed, and do not bring to the fame fair or market the fame day fo much corn as he fhall fortune to buy for his feed, and fell the fame, if he car, as the price of corn then goeth in the faid market or fair, that then every fuch perfon or perfons fo ; buying corn for feed, fhall forfeit and lofe the double value of the corn fo bought. No perfon Setl. 9. "Or if any perfon or perfons after the faid firft day of May fhall may (ell his Duv anv manner of oxen, ronts, fteers, kine, heifers, calves, fheep, lambs, cattle who goats, or kids, living, and fell the fame again alive, unlefs he or they do ter be bought keep an d feed the fame by the fpace of five weeks in his or their own ihem. Car- houfes, ground, ferm-ground, or elfe in fuch ground or grounds where he thew465. or they have the herbage or common of pafture by grant or prefcription, 1 SalL 372. That then every perfon or perfons fo buying and felling again, fhall lofe the double value of the cattle or things fo bought and fold again : (2) the one moiety of all which forfeitures afore rehearfed fhall be to the king, and the other moiety to him or them that will fue for the fame, in any of the king's courts of record, by bill, plaint, action of debt, or information ; in the which bill, plaint, action or information, no wager of law, effoin or pro- tection fhall be admitted. The juftices of Setl. 10. " Be it alfo further enacted by the authority aforefaid, That the peace may in- juftices of the peace in every county within this realm or Wales, at their quire, bear quarter-feffions, fhall have full power and authority by virtue ef this act to the offences enquire, hear and determine all and every the defaults and offences, aforefaid. perpetrated, committed or done contrary to this act, within the county where any fuch feffions fhall be kept, by inquifition, prefentment, bill, or information before them exhibited, and by examination of two lawful witnefles, or by any of the fame ways'or means, by the difcretion of the faid juftices, (2) and to make procefs thereupon, as though they were indicted before them by inquifition, or by verdict of twelve men or more-,. (3) and upon the convi:tion of the offender by information or_ fuitof any other than the king, to make extracts of the one moiety of the forfeitures to be levied to the king's ufe, as they ufed to do of other fines, ifTues and amerciaments grown in the feffions of peace, (4) and to award execution of the other moiety for the complainant or informer againft the offender, by fieri facias or capias, as the king's juftices at Weftminjler may do and ufe to do : (5) and if any fuch conviction or attainder fhall hereafter happen to be at the king's fuit only, that then the whole forfeitures to be extracted and levied to the king's ufe only." SeH Self. ii. "And it is further enacted by the authority aforefaid, that Bu toae pa- whacfoever peribn (hall at any time hereafter be punifhed by virtue of this n'* 1 ™" 1 ' fcr act, for any thing mentioned in this act •, that then the fame perfon fhall nototherwife be vexed, troubled, fued, or put to any pain or punifhment for that thing wherefore he or they fhall have been fo punifhed." Sell. 12. " Provided always, and it is enacted by the authority aforefaid, Transporting That it fhall be lawful to every perfon orperfons, which fhall be affigned and com, &c. allowed by three juftices of the peace of the county where he fhall dwell, from on ^ P^ rt thereunto, to buy fotherwife than by foreftalling) corn, grain or cattle, to [° ce ™°l "tb, be tranfported or carried by water from any port or place within this realm j u fti C es. or Wales, unto any other port or place within the faid realm or dominions, if he or they fhall without fraud or covin fhip or embark within forty days next after he or they fhall have bought the fame, or taken covenant or promife for the buying thereof, and with fuch expedition and diligence as wind and weather will ferve to carry and tranfport the fame to fuch port or place, as his or their cockets fhall declare, and there do difbark, unlade and fell the fame, and do bring a true certificate thereof from one juftice of peace of the county, or mayor or bailiff of the town corporate where the fame fhall be unladen, and alfo of the cuftomer of the port where fuch un- lading fhall be, of the place and day where the faid corn or cattle fhall be difbarked, unladen and fold, to be directed unto the cuftomer and comp- troller of the port where the fame were embarked ; any thing mentioned in this act to the contrary notwithftanding." Sell. 13. " And over that, That at all times hereafter, when wheat fhall Everyma» be commonly at the price of 6s. 8d. the quarter, or under, (2) malt and may ' r £ r0 ' s barley at 3 s. \d. the quarter, or under, (3) oats, or oats malted, at the t |, e r e .pnefs. price of 2 s. the quarter, or under, (4) peafe or beans at the price of 4 s. the quarter, or under, (5) and rye or mifteline at the price of 5 s. the quarter, or under ; (6) fall which quarters fhall be intended to be of London meafure) (7) that then it fhall be lawful to every perfon and perfons (not foreftalling) to buy, engrofs and keep in his or their granaries or houfes, fuch corn of the kinds aforefaid, as without fraud or covin fhall be bought at or under the prices afore expreffed ; any thing in this act to the contrary notwithftanding. Sell. 14. " Provided always, and be it enacted by the authority aforefaid, Within what That this act, or anything therein contained, extend not to charge any Time the of- perfon or perfons for any the offences above mertioned, unlefs he or they [ ei 7 er , raaft be fued for the fame within two years next after fuch offence done or com- mitted. This act to endure until the end of the next parliament. Sell. 15. " Provided always, and be it enacted by the authority aforefaid, Regrating of That it fhall be lawful to all and every of the king's majefty's fubjects now Fre(n 'in- dwelling or inhabiting, or that hereafter fhall dwell or inhabit within one + Mod - I02, mile of the main fea, to buy all manner of fifh, frefh or (faked, not fore- ftalling the fame) and to fell the fame again at reafonable prices ; this act, or any thing therein contained, to the contrary in any wife notwithftand- ing.» C c 2 Sell. 196 2BaDgers* Drovers of Self. 1 6. ** Provided alfo, and be it enacted by the authority cattle licenfed aforefaid, That it fhall be lawful to all and every perfon and perfons, nfav biv an" k nown f° r a common drover or drovers, being licenfed, authorifed and fell again. allowed in writing by three juftices of the peace, whereof one to be of the Drovers to be quorum, of the county or counties where the fame drover or dovers fhall be allowed by the m oft abiding and dwelling, to buy cattle in any fuch fhire or counties where quarter fef- d ro y ers have been wont in times paft accuftomably to buy cattle at their 5 El.c.12. f. 4. f ree liberty and pleafure, and to fell the fame, as is aforefaid, at reafonable prices in common fairs and markets diftant from the place or places where he or they fhall buy the fame, forty miles at the leaft, fo that the fame cattle be not bought by way of foreftalling ; this act, or any thing therein con- tained to the contrary in any wife notwithstanding. Sell. 17. " Provided always, That fuch licence of juftices of peace fhall not indure above one year, unlefs the fame be yearly renewed by fo many juftices as is aforefaid. Made perpetual by 13 Eliz. c. 25. 5 El. c. 12. @ti1t. 5 Eliz. c. 12. [J. D. 1562. Intituled.] "An act touching badgers of corn, and drovers of cattle to be licenfed." Who fhall be " Where in the feffion of parliament holden upon prorogation at Wefl- accounted an minjler the three and twentieth day of January in the fifth year of the reign thffta" by f °^ our * ate f° vere ig n lord king Edward the fixth, amongft other things it was c&6Ed.6. enacte d, That whatsoever perfon or perfons, after the firft day of May c i 4 . then next enfuing, fhould engrofs or get into his or their hands, by buying, contracting, or promife-taking (other than by demife, grant, or leafe of land, or tithes) any corn growing in the fields, or any other corn or grain, butter, cheefe, fifh, or other dead victuals whatfoever, within the realm of England, to the intent to fell the fame again, fhall be accepted, reputed,. A P rovlfo for and taken an unlawful engroffer or engrofTers ; (2) with a provifo, and carrier 8 &'c ordinance contained in the fame act, That it fhould be lawful to every licenfed. perfon or perfons being a common badger, kidder, lader, or carrier which fhall be licenfed, affigned and allowed thereunto by three juftices of the peace of the county where the faid badger, lader, kidder or carrier fhall dwell, which fhall fell or deliver in open fair or market, or to any other victualler, or to any other perfon or perfons for the provifion of his or their houfe or houfes, all fuch corn, butter, or cheefe, as any fuch perfon or perfons fhall buy or caufe to be bought, and that within one month next after he or they fhall fo buy any fuch corn, grain, butter, or cheefe, fo that the fame fhall be bought without foreftalling, fhall not be in any wife deemed, adjudged or taken any offence contrary to the faid act. A provifo for Seil. 2. " And where alfo it is provided and enacted by the fame act of a drover of parliament, That it fhall be lawful to all and every perfon and perfons f*"j ' °f corn known for a common drover or drovers, being licenfed, authorifed and tobetranfport. a ii° wec l in writing by three juftices of peace, whereof one to be of the ed from one quorum, of the county or counties where the fame drover or drovers fhall porttoano- be moft abiding and dwelling, to buy cattle in fuch (hires or counties ,her - where drovers have been wont in times paft accuftomarily to buy cattle, at their their free liberty and pleafure, and to fell the fame again ; (2) and that it fhall be lawful to every perfon and perfons which mail be affigned and allowed by three juftices of the peace of the county where he fhall dwell,- to buy (otherwife than by foreftalling) corn, grain, or cattle, to be tranfported or carried by water from any port or place within this realm OK Walts; unto any other port or place within the faid realm or dominions, as in the laid act, amongft other things, doth appear." Sett. 3. " Since the making of which act, fuch a great number of perfons The inconve- feeking only to live eafily, and to leave their honeft labour, have and do daily nie ncesenfuing feek to be allowed and licenfed to the faid offices or doings, being moft unfit drovers" 0/ ° and unmeet for thofe purpofes, and alfo very hurtful to the commonwealth cattle, and of this realm, as well by the inhauncing of prices of corn and grain, and badgers, kc. other the faid victuals, as alfo by the diminifhing of the number of good ° fc °»> and and neceffary hufbandmen ; which faid number of drovers of cattle, and ot er V1 ua s * badgers, laders, kidders, and carriers of corn and grain, are many times without good orders, and due confideration, affigned and allowed thereunto, to the great prejudice of the commonwealth." Sett. 4. " In confideration whereof, Be it enacted by the queen our fove- To what k!nt3 reing lady, with the affent of the lords fpiritual and temporal, and the com-°[^ ons j an< | mons, in this prefent parliament affembled, and* by the authority of the fame, on \ y> licence That no drover of cattle, badger, ladder, kider, carrier, buyer ortranfporter fhall be granc- of corn or grain, butter and cheefe, be from and after the feaft of Eafter next ed t0 be bad g- after the firft day of this prefent parliament, licenfed, admitted, affigned or " s * g^f^'a allowed to thofe offices or doings, or to any of them, but only in the general and open quarter-feffions of the peace, to be holden in the fhire where fuch perfon or perfons fo to be admitted, affigned or allowed, doth or fhall dwell, and hath or fhall have dwelled there by the fpace of three years next before the tefte of his faid licence. (2) And that no perfon or perfons, after the firft day of May next coming, be admitted to the faid offices or doings, or to any of them, but fuch only as be or have been married men, and fhall be, at the time of fuch licence to be granted, houfholders, and not houfhold fervants, nor retainers to any perfon or perfons, and of the age of thirty years at the leaft : (3) and that all licences being made and granted, as is abovefaid, fhall have continuance and be good only for one year next after the date hereof, and for no more nor longer time. Sett. 5. " "Which faid licences, and every of them, fhall bear date of The date of the day and place where the faid feffions fhall be holden, and fhall be th elicences. figned and fealed with the proper hands and feals of three of the faid juf- ^"(./^j tices of the peace, being prefent at the fame feffions, at the leaft ; where- an d j ea | Si of one to be of the quorum; (2) upon pain that every perfon or perfons that fhall take any licence contrary to this ordinance, to lofe and forfeit to our fovereign lady the queen, her heirs and fucceflbrs, five pounds fter- ling: (3) And that all licences made and granted, or hereafter to be made and granted, otherwife than is before expreffed, fhall from and after the faid firft day of May next coming be void and of none effeft. Sett. igS ftattget*. Bonds with fureties fhall be taken of drovers, car- riers, &c. not to infringe tlii 5 aft. The fees of the clerk of the peace. None fhall buy corn to fell again without fpe- cial licence. Who Gull have the for- feitures. Juftices of peace in thei feffions fhall enqiire of, and deter- mine thefe offences. Se£l. 6. " And further, Be it enacted by .the authority aforeft id, That the juftices of the peace, in the laid general and open feiiions, lhail or may by their diicretions, take bond and furety rrom time to time by re- ' cognizance, of fuch as fhall be admitted or allowed hereafter a common drover of cattle, badger, lader, kidder, carrier or buyer of corn, grain, butter or cheefe, that they or any of them fhall not by colour of his or their licence, foreftal or ingrofs, or otherwife practiie or do any act or thing contrary to the tenor and true meaning, or in defrauding the faid former eftatute, or of any matter or thing therein contained: (2) All which li- cences, and every of them, and the faid recognizances, fhall be made and written by the clerk of the peace of every county where fuch licence fhall be granted, or by his lawful deputy, and by none other perfon or per- fons: (3) And every perfon that fhall have any fuch licence, fhall pay to the clerk of the peace, or his deputy, for making thereof, twelve pence at the moft •, and for every recognizance in form abovefaid, to be made and acknowledged, eight pence at the moft •, and &>p regiftring of the fame licence and recognizance, four pence at the moft : (4) For which faid fee, the faid clerk, or his deputy, fhall have and keep one regifter- book, and therein fhall regifter and write all the names, furnames, • and dwelling-places of fuch as fhall be licenfed, as aforefaid, with a brief declaration or entry of the faid licence, and of the day, time and place where fuch licence or licences fhall be granted : (5) Which book or re- gifter the faid clerk of the peace, or his deputy, fhall have and bring to every feffions, to the intent that it may appear what number of licences be and fhall be from time to time granted, whereby the better confideration may be had thereof. Se£l. 7. " Provided always, and be it further enacted by the authority aforefaid, That no perfon or perfons, fhall or may, by authority of any fuch licence above-mentioned, buy any corn or grain out of open fair or market to fell again, unlefs fuch perfon and perfons fhall be thereunto li- cenfed, and fhall have fpecial and exprefs words contained in fuch licence or licences, that he or they may fo do •, upon pain to forfeit for every fuch time that any fuch perfon or perfons fhall do to the contrary, five pounds: (3) The moiety of which forfeitures afore-rehearfed fhall be to the queen our fovereign lady, her heirs and fucceflbrs, and the other moiety to him or them that will fue for the fame in any of the queen's courts of record, by bill, plaint, action of debt or information, in the which bill, plaint, action or information, no -wager of law, efibin or protection fhall be ad- mitted. Sett. 8. *' Be it alfo enacted by the authority aforefaid, That the juftices of peace in every county within this realm or IVales, at the quarter-feffi- ons, fhall have full power and authority by virtue of this act, to enquire, hear and determine all and every the defaults and offences perpetrated, committed or done contrary to this act, within the county where any fuch feffions fhall be kept, by inquifition, prefentment, bill or information be- fore them exhibited, and by examination of two lawful witnefies, or by any of the fame ways or means, by the difcretion of the faid juftices, and to Uta&gctg. 199 to make procefs thereupon, as though they were indi&ed before them by inquifition, or by verdict of twelve men or more : (2) And upon the conviction of the offender, by information or fuit of any other than the queen, to make extracts of the moiety of the forfeitures to be levied to the queen's ufe, as they ufe to do of other fines and amerciaments grown in the fe.T.on3 of peace, and to award execution of the other moiety for the complainant or informer againft the offender, by fieri facias or capias, as the queen's juftices at Weflminjier may do, and ufe to do; (3) and if any fuch conviction or attainder fhall hereafter happen to be at the queen's fuit only, and then the whole forfeitures to be extracted and levied to the queen's ufe only. Seel. 9. " Provided always that this act, or any thing therein contained, A city, &c. fhall not in any wife extend to the prejudice of the liberty of any city or may appoint town corporate, but that they and every of them fhall and may lawfully Purveyors fo» affign and licenfe purveyors for the provifion of the fame city or townj- lo ^ r provl " corporate, in fuch manner and form as they might lawfully have done be- fore the making of this act. Seil. 10. " Provided further, that this act, nor any thing therein con- To the inha. tained, fhall be in any wife hurtful or prejudicial unto any the inhabitants bitants of within the counties of Weftmorland, Cumberland, Lancajler, Chejler and which coun- Tork, or any of them, but that they may do as heretofore they have law- tme doth 'not fully ufed to do ; any thing in this prefent act to. the contrary notwith- extend, ftanding." S>tat* 13 Eliz. c. 25. [A. D. 1571. intituled, " An act for reviving 13EHZ.C. 25, and continuance of certain ftatutes."] feci. 1, 2, 3, 4, fc? 5. recite the faid aft of 5 y 6 Ed. 6. c. 14. and four other acts. Seil. 5. " All which acts were by fundry acts of parliament continued in force and effect, until the end and diflblution of the lalt parliament [8 Eliz. A. D. 1566.] of our fovereign lady the queen's majefty that now is, at which time the fame feveral acts, and every of them were difconti- nued, and loft their force and effects ; which acts above-mentioned, and every of them, by proof and experience, have fince the making of the fame, been tried and found to be very neceffary, beneficial and profitable for the commonwealth, and therefore are thought good to be made per- petual : Be it therefore enacted, " That the faid acts above remembred, and every of them, and all and every the branches, claufes, and provifi- ons in them and every of them contained, fhall be revived, and from henceforth remain and continue in force and effect for ever." Seel. 20. " Provided always, and be it enacted by the authority afore- faid, That no perfon or perfons fhall be a buyer, badger, kidder, or carrier of corn, cattle, butter, cheefe, and fuch-like kind of victual, in none other manner nor form than is contained in a ftatute made in the fifth year of the reign of our fovereign t lady queen Elizabeth, nor fhall be any other ways admitted or licenfed to be a buyer, badger, kidder, or carrier, as is aforefaid,. aforefaid, than is mentioned and appointed by the faid ftatute •, any thino* in this, or any other aft heretofore to the contrary notwithftanding." For ether matters, fee JTOjeftaHitlg* B AIL, {ballium, from the French hailler, tradere, to deliver) is ufed in our common law for the freeing or fetting at liberty of one arretted or imprifoned upon any action, either civil or criminal, on furety taken for his appearance at a day and place certain. Brail, lib. 3. trail. 2. c. 8. num. 8 & 9. The reafon why it is called bail, is becaufe by this means the party reftrained is delivered into the hands of thofe that bind themfelves for his forthcoming or appearance. Cewell. Bail in criminal caufes is regularly to be allowed in all fuch cafes wherein it feems doubtful, whether the perfon accufed be guilty of the offence or not •, in which cafe, according to another general rule, it may be allowed and taken by that perfon who has cognizance of the crime, and therefore being judge of the offence, may, if he thinks fit, bail the offender. 2 Inft. 189. 2 Hawk. P. C. 93. Difference be- ^ a ^ anc ^ mainprife are ufed promifcuoufly oftentimes for the fame thing, tween bail and indeed the words import much the fame thing ; for the former is tra~ and mainprife. ditus J. S. and the other is manucaptus per J. S. But yet in a proper and legal fenfe they differ, ift, Always mainprife is a recognizance in a fum certain, but bail is not always fo. 2dly, He, that is delivered per manu- captionem only, is out of cuftody •, but he that is bailed, is in fuppofition of law ftill in cuftody, and the parties that take him to bail are in law his keepers, and may refeize him to bring him in •, and therefore if a man be let to mainprife, fuppofe in the King's Bench, an appeal or other fuit can- not be brought againft him as in cujlodia marefcalli ; but if he be let to bail, he is in fuppofition of law ftill in cujlodia marefcalli. 3dly,Tho' fome- times the recognizances themfelves both in bail and mainprife are in a fum certain, yet the entry on record in the one cafe is deliberatur per manu- captionem -, and in the other cafe traditur in ballium. 2 Hal. Hif. P. C. I2 4» I2 5- If a perfon be let to bail, yet he is in law in prifon, and his bail are his keepers, and therefore .the juftices of gaol-delivery may take an in- dictment againft him, as well as if he were actually in gaol, but he that is let to mainprife is not in cuftody. 2 Hal. P. C. 35. Who are bail- Regularly in all offences, either againft the common law or acts of par- able or not liament, that are below felony, the offender is bailable, unlefs ift, he bailable. natn na j j u dg me nt. 2dly, Or that by fome particular or fpecial act of parliament bail is oufted. 2 Hal. H. P. C. 127. The 1BML 2oi The ftatute 3 Ed. 1. c. 15. declares, who are bailable and who nor, as well in other cafes, as in cafes capital. But this ftatute doth rot ex- tend to juftices of the peace, for they were not in being till 1 Ed. 3. and therefore the ftatute 1 fc?2 P. & M. cap. 13. makes the ftatute of 3 Ed. 1. c. 1 5. a direction to juftices touching the bailing of offenders. 2 Hal. H.P. C. 127, 128. ©tilt. Weft. 1. (3 Ed. 1.) c, 15. [/?. D. 1275, intituled'] " Which pri- 3 Ed. i.e. 15. foners be mainpernable, and which not. The penalty for unlawful bail- ment." " And forafmuch as fheriffs, and others, which have taken and kept in What fort of prifon perfons detefted of felony, and incontinent have let out by replevin offenders be fuch as were not replevifable, and have kept in prifon fuch as were reple- no l | nia,n P er " vifable, becaufe they would gain of the one party, and grieve the other ; , Ro j' , 34f (2) and forafmuch as before this time it was not determined which perfons 192, 26S. were replevifable, and which not, but only thofe that were taken for the Bro. Main- death of man, or by commandment of the king, or of his juftices, or for P r '' c ' "» >"» the foreft; (3) it is provided, and by the king commanded, That fuch pri- p it ' z Main- foners as before wete outlawed, and they which have abjured the realm, pr ife, 1,39, provors, and fuch as be taken with the manner, and thofe which have 4°- broken the king's prifon, thiefs openly defamed and known, and fuch as Er °- ^ Iam " be appealed by provers, fo long as the provers be living (if they be not £" \q%- 57 ' of good name) and fuch as be taken for houfe-burning felonioufly done, or l%[ 91! ' for falfe money, or for counterfeiting the king's feal, or perfons excom- 1 1 Co. 29. municate, taken at the requeft of the biftiop, or for manifeft offences, or Br0 - Main. 6, for treafon touching the king himfelf, fhall be in no wife replevifable by 9 ' g ly ' 22,3 °* the common writ, nor without writ: (4) But fuch as be indifted of lar- 1,' 58,63-' ceny, by enquefts taken before fheriffs or bailiffs by their office, or of 64, 73, 9:, light fufpicion, or for petty larceny, that amounteth not above the value 94> 97- of 12^. if they were not guilty of fome other larceny aforetime, or guilty ^.' ia ' fort of of receipt of felons, or of commandment, or force, or of aid in felony ni ' a , nP errable done, or guilty of fome other trefpafs, for which one ought not to lofe 2 Bulftr. 328*. life nor member, and a man appealed by a prover after the death of the 3 Bulilr. 113. provor (if he be no common thief, nor defamed) ihall from henceforth be let out by fufEcient furety, whereof the fheriff* will be anfwerable, and that without giving ought of their goods. (5) And if the fheriff', or any The penalty other, let any go at large byfuiety, that is not replevifable, if he be fhe- for unlawful riff or conftable, or any other bailiff of fee, which hath keeping of pri- main P n ' e - fons, and thereof be attainted, he fhall lofe his fee and office for ever. (6) And if the under-fheriff, conftable, or bailiff of fuch as ha%'e fee for keeping of prifons, do it contrary to the will of his lord, or any other bailiff being not of fee, they fhall have three years imprifonment, and make fine at the king's pleafure. (7) And if any with-hold prifoners re- The penalty plevifable, after that they have offered fufficient furety, he fhall pay a for Staining grievous amerciament to the king ; (8) and if he take any reward for the ? pn oner that * Vol. I. N"IX. Dd deliverance ^"^ 202 Baa. 27 Ed. i. deliverance of fuch, he fhall pay double to the prifoner, and alfo {hall be flat. i. c. 3. in the great mercy of the king." 1 & z 7 Ph. & Sheriffs and others'] The words (Jheriffs and others) intend fheriffs and M. c. 1 3. aaolers that have cuftody of gaols, fo as this act extends not to c.ny of the 2 Inft. 184. Kin^sjujiices, or judges of any fuperior courts of jujlice; lit, For that they beino- fuperiors are not comprehended in the general words, as often hath been°obferved ; 2dly, (Who have taken and kept in prif jn) which, judges do not; 3tnt. 1 Ric 3. c. 3. [A. D. 1483. intituled] " Every juftice of peace may let a prifoner to mainprise. No officer (hall feize the goods of a pri- foner until he be attainted." Every juflice " Forafmuch as divers perfons have been daily arrefted and imprifoned of peace may f or f u fp e £tion of felony, fometime of malice, and fometime of a light ftenobai! SuSpection, and fo kept in prifon without bail or mainprife, to their great Rep. 3 H. ;• vexation and trouble: (2) Be it ordained and eftabliShed by authority of c. 3. this prefent parliament, That every juftice of peace in every ftiire, city, or 1 & 2 Ph. & town, fhall have authority and power, by his or their discretion, to let Mc " ' 3 ' fuch prifoners and perfons, fo arrefted, to bail or mainprife, in like form as though the fame prifoners or perfons were indicted thereof of record Efcapeof Fe- before the fame juftices in their fefiions ; (3) and that juftices of peace Ions inquir- have au r.hority to inquire in their feflions of all manner efcapes of every able b yJ^ e perfon arrefted and imprifoned for felony. (4) And that no fheriff, un- iTuwIT" 2. der- Sheriff, nor efcheator, bailiff of franchife, nor any other perfon, take Cro El. 749. or feife the goods of any perfon arrefted or imprifoned for fufpicion of 43 E d - 3- felony, before that the fame perfon, fo arrefted and imprifoned, be con- f- 2 4- vicled or attainted of fuch felony according to the law, or elfe the fame No officer goods otherwife lawfully forfeited ; (5) upon pain to forfeit the double fiiall feize the value of the goods fo taken, to him that is fo hurt in that behalf, by goods of a aftion of debt to be purfued by like procefs, judgment, and execution, as prifoner until j s common iy u fed in other actions of debt fued at the common law; d or'th'e'" (6) and that no effoin or protection be allowed in any fuch action; nor goods for- that the defendant in any fuch action be admitted to wage or do his law." feited. But this ftatute, fo far as it gives power to a Jingle juftice, is repealed by the following act of 3 Hen. 7. c. 3. ©tat. Baft. 207 S>tflt. 3 #. i486, intituled] " Juftices of peace 3 Hen. 7. may let prifoners to bail. The fheriff mall certify the names of all his <=. 3. priibners at the gaol-delivery." Item, " Where in the parliament late holden at Wejlminfter, the firft 1 R. 3.C. 3. year of" Richard, late in deed, and not of right, king of England the Juftices of the third ; it was ordained and enacted among other divers acts, that every 1**^™*^ juftice of the peace, in every (hire, city, or town, mould have authority ma inprife, and power, by his or their difcretion, to let prifoners, and perfons arretted who isma'in- for light fufpicion of felony, to bail or mainprife ; (2) by colour whereof pemable. afterwards divers perfons, fuch as were not mainpernable, were oftentimes In ^ rce ? b ^ letten to bail and mainprife, by juftices of the peace, againft the due form ^j. c , ' of the law, whereby many felons efcaped, to the great difpleafure of the king, and annoyance of his liege people: (3) Wherefore the king our faid fovereign lord confidering it, by the advice and affent of the lords fpi- ritual and temporal, and at the prayer of the commons in this prefent par- liament affem bled, and by the authority of the fame, hath ordained, efta- blifhed, and enacled, That the juftices of peace in every fhire, city, and town, or two of them at the leaft, whereof one to be of the quorum, have authority and power to let any fuch prifoners, or perfons mainpernable by the law, that have been imprifoned within their feveral counties, city, or town, to bail or mainprife, unto their next general feflions, or unto the next gaol-delivery of the fame gaols in every fhire, city, or town, as well within franchifes as without, where any gaols been or hereafter lhall be ; (4} and that the faid juftices of the peace, or one of them, fo taking any fuch bail or mainprife, do certify the fame at the next general feffions of the peace, or the next general gaol-delivery of any fuch gaol within every fuch county, city, or town, next following after any fuch bail or main- prife fo taken •, upon pain to forfeit unto the king for every default there- upon recorded 10/. (5) And moreover it is enacted by the fame autho- The fheriff rity, that every fheriff, bailiff of franchife, and every other pedon, having ^ a " certify authority or power of keeping of gaol, or of prifoners for felony, in like l ™ " a ™ es of manner and form do certify the names of every fuch prifoner in their j„j,j s cu rt oc j y keeping, and of every prifoner to them committed for any fuch caufe, at :o the juftices the next general gaol-delivery, in every county or franchiie where any ot ~ g»ol-deli- fuch gaol or gaols have been, or hereafter fhall be, there to be kalendred very- before the juftices of the deliverance of the fame gao'i, whereby they may, as well for the king a? for the party, proceed to make deliverance of fuch A repeal of prifoners according to the law, (6) upon pain to forfeit unto the king + "or " at - °f ' R -3- every default there recorded, C.s. (7,} and that the forefaid act giving .f\|: , °"^, lun I authority and power in the premiffes to any juftice of the peace by him- prifoners felf, be in that behalf utterly void and of none effect, by authority of this Kelypg 3. prefent parliament." But thefe ftatutes having been often abufed by juftices of the peace bailing perfons in the name of Peoo jtfftices, where one only was Ptt .-//, and for offences not bailable ; it was therefore found neceflaiy to make the following act. 1. Bac. Abr. 222, 20S i A: z Ph & Ma. c 13. In what man- ner jurtices of peace may bail perfons arretted of fe- lony, or fufpi- cion thereof, &c. 3 H. 7. c. 3. i -Roll. 268. None (hall be let to bail, which be for- bidden to be bailed by the llatute of 3 Ed. i.e. 15. 3 ftalltr. 1 1'. The j 1 J.I ices duty in bail- ment of a pri- soner ex tended to fuch as (hall be committed for mu (laugh ■ ter, &c. 2 & 3 Ph. & M. c. 10. in exami- nation of htm Baa. ©tilt. 1 & 2 Phtl. '& Ma. c. 13. [J. D. 1554. Intituled] " An aft touching bailment of perfons." " Where in the parliament holden at Wejlminjler in the third year of the reign of the noble prince, king Henry the feventh, it was among other things ordained and enacted, That no prifone*r arretted for felony, lhould be ietten to bail or mainprife, by any one juftice of peace, but by the whole julhces, or at leaft by two of them, whereof one to be of the Quorum; (2) fince the making of which eftatute, one juftice of peace in the name of himfelf and one other of the juftices his companion, not ma- king the laid juftice party nor privy unto the cafe wherefore the prifoner fhould be bailed, hath oftentimes by finifter labour and means, let at large Hie greateft and notableft offenders, fuch as be not replevifable by the laws of this realm •, (3J and yet the rather to hide their affect ions in that behalf, have fignified the caufe of their apprehenfion to be but only for fufpicion of felony, whereby the faid offenders have efcaped unpunifhed, and do daily, to the high difpleafure of Almighty God, the great peril of the king and queen's true fubje&s, and encouragement of all thieves and evil-doers : SeSi. 2. For reformation whereof, Be it ordained and enacted by the king and queen's majefties, the lords fpiritual and temporal, and the commons in this prefent parliament afiembled, and by authority of the fame, That from and after the firft day of April next coming, no juftice or juftices of peace fhall let to bail or mainprife any fuch perfon or perfons, which for any offence or offences by them or any of them committed, be declared not to be re- plevied or bailed, or be forbidden to be replevifed or bailed by the fta- tute of Weftminfter primer, made in the parliament holden in the third year of the reign of king Edward the firft. SeH. 3. And furthermore, That any perfon or perfons arrefted for man-llaughter or felony, Of, fufpicion of man-flaughtcr cr felony, being bailable by the law, fhall not after the faid firft day of April be let to bail or mainprife by any juftice;, of peace, if it be not in open feffions, except it be by two juftices of peace at the leaft, whereof one to be of thz Quo- rum, and the fame juftices to be prefent together at the time of the laid bailment or mainprife ; (2) which bailment or mainprife they fhall certify in writing lubferibed or fisned with their own hands, at the next general gaol-delivery to be holden within the county where the faid perfon or per- fons fhall be arrefted or fufpected. SeS. 4. And that the faid juftices, or one of them, being of the Quo- rum, when any fuch prifoner is brought before them for any man-flaughter or felony, before any bailment or mainprife, fhall take the examination of the faid prifoner, and information of them that bring him, of the fact and circumftances thereof, and the fame, or as much thereof as fhall be ma- terial to prove the felony, fhall put in writing before they make the fame bailment-, (2) which faid examination, together with the faid bailment, the faid juftices fhall certify at the next general gaol-delivery to be holden within the limits of their commiftion. and others, and certifying thereof. 2 & 3 Ph. & M. c. 10. Kelyng 19. r Se£I. l&at'i* 209 Seff. 5. " And that every coroner, upon any inquifition before him found, The coroner's whereby any perfon or perfons {hall be indicted for murder or man-flaugh- duty upon an ter, or as acceffory or acceifories to the fame, before the murder or man- '^"d'before (laughter committed, fhall put in writing the effect of the evidence given himi to the jury before him, being material : (2) And as well the faid juftices, as the faid coroner, fhall have authority by this act, to bind all fuch by re- cognizance or obligation, as do declare any thing material, to prove the faid murder or man-daughter, offences or felonies, or to be acceffory or acceffories to the fame, as is aforefaid, to appear at the next general gaol- delivery to be holden within the county, city, or town corporate where the trial thereof Pnall be, then and there to give evidence again ft the par- ty fo indicted at the time of his trial; (3) and fhall certify as well the fame evidence as fuch bond or bonds in writing, as he fhall take, together with the inquifition or indictment before him taken and found, at or before the time of his faid trial thereof to be had or made: (4) And likewife the faid juftices fhall certify all and every fuch bond taken before them, in like manner as before is faid of bailments and examination : (5) And in cafe The pena i t y any juftice of peace of quorum, or coroner, fhall after the faid firft day of f any juftice April, offend in any thing contrary to the true intent and meaning of this of peace or prefentaft, that then the juftices of gaol-delivery of the (hire, city, town coroner omit- or place where fuch offence fhall happen to be committed, upon due proof ting 1S uty ' thereof by examination before them, fhall for every fuch offence fet fuch fine on every of the fame juftices of peace and coroner, as the fame juf- tices of gaol-delivery fhall think meet, and eftreat the fame, as other fines and amerciaments affeiTed before juftices of gaol-delivery ought to be. Sett. 6. " Provided always, and be it further enacted by the authority afore- Juftices of faid, That juftices of peace and coroners within the city of London, and the P^ce of Lon- county of Middle/ex, and in other cities, boroughs and towns corporate °™' ^*r j*" within this realm and Wales, fhall within their feveral jurifdiftions have ' authority to let to bail felons and prifoners, in fuch manner and form as they have been heretofore accuftomed ; this aft, or any thing therein con- tained to the contrary notwithstanding : (2) And alfo fhall take examina- tions and bonds, as is aforefaid, upon every bailment by them or any of them to be made; (3) and fhall certify every fuch bailments, bonds and examinations by them or any of them taken or made, at the next gaol-de- livery to be holden within the (hire, city, borough or town where their fe- veral jurifdiftions extendeth ; upon like pain and forfeiture as is before li- mited in this prefent aft. Seel. 7. " And be it alfo enacted by the authority aforefaid, That no writs Removing of of habeas corpus or certiorari fhall be hereafter granted to remove any a prifoner, or prifoner out of any gaol, or to remove any recognifance, except the lame recogmiance. writs be figned with the proper hand of the chief juftice, or in his abfence, one of the juftices of the court out of which the fame writs fhall be awarded or made; (2) upon pain that he that writeth any fuch writs, not being figned as is aforefaid, to forfeit to our faid fovereign lord the king and the queen, for every fuch writs, five pounds." The authority given to one juftice of the peace by 1 R. 3. to admit per- fons to bail for felony, being repealed by 3 H. 7. and i £5 2 Phil. &? Ma. Vol. I. N° IX. Ee one 2io 26att. one juftice of the peace cannot admit perfons to bail, unlefs it be for an offence directly tending to the breach of the peace, the reftraint whereof is the chief end of his office, or for an offence by ftatute put under the cognizance of one juftice, or for an offence indictable at the feflions. 2 Hawk. P. C. 105. But though the ftatute of Ph. & Ma. has prefcribed the ftatute of Weftm. 1. as a pattern for juftices to follow in relation to the bail, and it therefore follows, that a peribn under an actual arreft for any crime, de- clared to be irreplevifable by that act, cannot be bailed by any juftice ; yet if a perfon at large be only accufed of any fuch crime on a flight fufpi- cion, before a juftice of the peace, it feems that the juftices ought not to commit him, but ought to take furety from him to appear before a proper court. 2 Hawk. P. C. 105. Alio the ftatute of 1 & 2 Ph. €s? Ma. exprefly mentioning the bailing of perfons for man-flaughter, as well as for other felonies, it is clear, that juftices of the peace, may by force thereof fafely bail any perfon impri- foned on a flight fufpicion of a fact, appearing to be no higher an offence than man-flaughter •, and much more if it appear to amount to no more than homicide by mifadventure, or in felf-defence •, but the juftices ought to be cautious the offence does not amount to murder •, alfo that there be no violent prefumption that the party did the fact •, for if any fuch appear, the party ought not to be bailed, though the offence amount to no more than homicide by mifadventure or felf-defence. 2 Hawk. P. C. 105. 1 Rol. Rep. 268. H. P. C. 299. Dale. c. 114. Lamb. 346. 2 Inft. 314. Man-fiaugh- Sir Nicholas Poynes and his fon were indifted for murder, and commit- ter not bail- te( j t0 ^ Marfhalfey, without bailor mainprize. The court was moved to fefTed byThe nave tnem bailed, becaufe they were not indicted but by the cornoner's in- party, queft, and no verdict as yet given up by them, and that as he urged, it was Mich, 14 jac.yj defendcndo. Coke chief juftice : if one do kill another, it is not known i.B. R. The at t ^ e fi r [^ whether this be murder or not. By the ftat. V/ejl. 1 . (3 Ed. Kingagainft -. f h d h f man , ■ t be bai j ed> g fta£ & Sir Nicholas "r* , •> , . . , • •, , ■ r ,- n . i -r , Poynes and Ph. & Ma. c. 13. A man is to be bailed in caie or man-flaughter, if he" his ("on. be bailable by the law. But in cafe of man-flaughter he is not bailable in all cafes. If he confefs the fame, he is not bailable. For the death of a man, I will not bail any one, unlefs it be by command of the king. "We may bail one here for treafon, but this we will not do. Haugheon juftice : If he confefs to a juftice of peace that he did the fact, he is not to be bailed. Coke: So (hall it be for a notorious man-flaughter, he is not to be bailed. — The court refufed to bail them ; and fo by the rule of the court they were fent back again to the Marfhajfey. What (hall No perfon (hall be bailed for felony by lefs- than two, and it is faid not be deemed to be ufual for the King's Bench to bail a man on a habeas corpus, on a com- fufficient bail. rmr .ment f or treafon or telony, without four fureties-, and the fum in which the fureties are to be bound, ought to be never lefs than 40/. for a capital crime •, but it may be higher in difcretion, on consideration of the ability and quality of the prifoner, and the nature of the offence ; and the fureties may be examined on oath concerning their fufficiency, by him that takes the bail •, and if a perfon be bailed by infumcient fureties, he may b; ifcaft. 21 1 be required either by him who took the bail, or by any other who hath power to bail him, to find better fureties, and on his refufal, may be com- mitted-, for infufficient fureties are as no fureties. 2 Hawk. P. C. 88, 89. But juftices muft take care, that under pretence of demanding lufficient Exce fr ive bail furety, they do not make fo exceffive a demand, as in effect amounts to a not to be re- denial of bail ; for this is looked upon as a great grievance, and is com- quired, plained of as fuch by flat. 1 Will. & Ma.fejf. 2. by which it is declared, that excefiive bail ought not to be required. It feems clear that wherever a fheriff, in purfuance of the faid ftatute of taking in- Weft. 1. (3 Ed. 1.) c. 15. or juftices of the peace in purfuance of the fuffiaent bail. fubfequent ftatutes, grounded on the faid ftatute of Weft. 1. fhall admit any perfon to bail for felony, with infufficient fureties, who fhall not after- wards appear according to the condition of the recognifance, the juftices of affife may, by force of 27 Ed. 1. c. 3. commonly called the ftatute de finibus levatis, impofe fuch fine on fuch fheriff or juftices of peace, as to fuch juftices of affife in their difcretion fhall feem proper. But if a pri- foner, who is bailed by infufficient fureties, do appear according to the condition of the recognizance, it feems that thofe who admitted him to bail are fafe, in as much as the end of the law is anfwered, and the ap- pearance of the prifoneras effectually procured by fuch Sureties, as if they had been never fo fufficient. 2 Hawk. P. C. 89. There is no doubt but that the bailing of a perfon, who is not bailable by Of granting law, is puniihable either at common law, as a negligent efcape, or as an bail where it offence againft the faid ftatute of Weft. 1. c. 15. and 1 & 2 Ph. & Ma. S c. 13. and the two following ftatutes. 2 Hawk. P. C. 89. ©tat 27 Ed. 1. c. 3. [A. D. 1299. intituled] " Juftices of affife 2 J Ed. i.e. fhall be of gaol-delivery. Who fhall punifh officers bailing fuch as are 3 * not bailable." " Forafmuch as fheriffs and others heretofore have let out by replevin 3 Ed. i.e. common felons, and openly defamed, being taken and imprifoned for '5- murther and felony, and fuch as be not replevii'able, contrary to the form of our Statute of perfons replevifable, and not replevifable, lately made, whereby fuch tranfgreffors not replevifable be let out, (2) and to deliver them deceitfully before the coming of the juftices errant, or other affigned for their deliverance, they procure by themfelves and by their friends, ju- rors of the country, and fome they threat, whereby as well for fear of the fheriff, and other that let them at large by plevin, as for fear of the thieves being fo delivered before the juftices affigned for gaol-deliveries, fuch felonies and murthers are concealed, and fo being concealed, remain ftill unpunifhed ; (3) we, for the utility of our realm, and for the more] u fli ces f af- afTured confervation of our peace, have provided and ordained, that juftices fife lhall be al- affigned to take affifes in every county where they do take affifes, as they f° juftices of be appointed, incontinent after the affifes taken in the fhires, fhall remain g aoldellve O'- both together if they be lay ; and if one of them be a clerk, then one of the moft difcreet knights of the fhire, being afibciate to him that is a E e 2 layman, 212 J5ail. layman, by our writ fhall deliver the gaols of the (hires, as well within li- berties as without, of all manner of prifoners, after the form of the gaol- Punifc.Tient of deliveries of thofe (hires beforetime ufed. (4) And the fame juftices mall Sheriffs for inquire then, if fheriffs or any other have let out by replevin prifoners not thejr offences. pepleVifabfe, or have offended in any thing contrary to the form of the j^j I , \ aforefaid ftatute lately made at IVefiminjier ; and whom they fhall find guil- 28 Ed. 1 flat, ty, they (hall chaften and punifh in all things according to the form of the 2 or perfons ftatute aforefaid." appealed. 4-Ed. 3.C. 2. @ti1t- 4 Ed. 3. c. 2. [A. D. 1330. intituled] £ The authority of juf- tices of affife, gaol-delivery, and of the peace." j n( j l6g< " Item it is ordained, That good and difcreet perfons, other than of the so Ed. 3-c 6- places, if they may be found fufficient, fhall be affigned in all the (hires of Enghnd, to take afTifes, juries, and certifications, and to deliver the gaols ; (2) and that the laid juftices fhall take the affifes, juries, and certifications, and deliver the gaols at leaft three times a year, and more often if need be. 1 Ed. 3- flat. (3) Alfo there (hall be affigned good and lawful men in every county to 2. c. 1 6. keep the peace. (4) And at the time of the affignments, mention fhall be 18 Ed. 3. flat. ma j e tna t; fuch as fhall be indicted or taken by the laid keepers of the aJ-Ed 2 c 1 P eace > miU "l not b e let to mainprife by the fheriffs, nor by none other mi- 13 R. 2. flat.' nifters, if they be not mainpernable by the law; (5) nor that fuch as (hall '• c- 7. be indicted, fhall not be delivered but at the common law. (6) And the juftices affigned to deliver the gaols fhall have power to deliver the fame gaols of thofe that fhall be indicted before the keepers of the peace •, (7) and that the faid keepers fhall fend their indictments before the juftices, and they fhall have power to enquire of fheriffs, gaolers, and other, in whofe ward fuch indicted perfons ihall be, if they make deliverance, or let to mainprife any fo indicted, which be not mainpernable, and to pu- nifh the faid fheriffs, gaolers, and others, if they do any thing againft this act." Juftices of the peace, before they bail a man under commitment, inuft at their peril inform themfelves of the cauie for which he was committed ; for if he were in truth committed for a caule not bailable by law, it is no excufe that they did not kn w that he was committed for fuch caufe. 2 •ion Hawk. P. C. 90. Popb. 96. Dalt. cap. 114. L^l*? V T„t He as a iuftice of Surrey committed a man on fufpicion of ftealine a mare, 32*1 111 3 J 'Jl • J "^ , *• * 1 .• tice for bail and bound over the owner to prolecute. Afterwards upon examining ing a felon, two other perfons, he admitted the party to bail. The profecutor ap- 2 Stra "' ■ u peared at the affiles, and found a bill, but the party accufed did not ap- 'sg'o 2- C P ear - A n d the court granted an information againft the juftice, declaring Rex & wlili. they fhould not have bailed the man themfelves. am Clark, efq. The defendant was brought up here by habeas corpus from the houfe of Court retufed correction, being committed there for receiving a filver fpoon, which was f° b fo'r receiv- ft° len > knowing it to be ftolen ; and Mr. Eyres moved that he might be ing ftolen bailed, having four credible and fubftantial men for that purpofe, and goods: defen- having an affidavit to produce, which pofitively fwore, that though he dam's affida- did • » iBatt 213 did receive the filver fpoon, yet that he did not know that it was ftolen : vit admits the And that the prilbner was an apprentice to an apothecary of this city, and re ceiptofthe the fon of a gentleman of fortune. And cited the cafe of Rex and Crips, gocd ?' h , atde ' r, r . y ^ n l l -ii r ■ ■ ' nies he knew Patch. 6 Geo. i. to Ihew that the court will iometimes enter into the t h em tobe probability of the perlon's not being guilty (of the matters which he is rtolen, which acculed ofj and will read affidavits to that purpofe. is a faft tri- able only by a jury. Rep. in time of lord Hardw. 96. Mich. 8 Geo. 2. in B- R- Rex v. Parnam, The court, at firft, fcrupled to fufter the affidavits to be read; but on citing Crips's cafe, they permitted it. And then Mr. Juftice Lee faid, that the prilbner had admitted the reception of the fpoon, though he denies that he knew it was ftolen. So that the only que'tion is, whether he did know it or not ; which is a matter fit to be tried by none but a jury : And that the reafon why they admitted Crips to bail was, becaufe the profecutor himfelf confelied himfelf doubtful as to the identity of the perfon. But that is not the cafe here.; and in Crips's cafe, I denied, on the trial, to grant him a copy of his indictment, in order to bring an action upon it for a malicious prolecution ; becaufe the accufation feemed to be grounded merely on the mifiake of the identity of the perfon. Chief Juftice : According to my brother Lee's, ftate of the cafe of Rex and Crips, it appears that he was not bailed, on confideration of the me- rits of the commitment, but of the miftake of the perfon accufed. But here you apply to have the defendant difcharged on the very merits : but I think it would be of the moft dangerous confequence, if we fhould allow of fuch proceedings ; for then all the prifoners in England would lay their cafe before us, and we, inftead of the jury, mult try the truth of the fact for which they are committed. Befide, it might very much encou- rage the compounding of felonies, between the profecutor and prifoner. And therefore I think he ought to be remanded : and per curiam he was remanded, abfente Prolyn. This feems to be a mifdemeanour, not only by the ftatute, but alfo by Offence of the common law, and punifhable thereby as an offence againft the liberty ^"^""g. de- of the fubject, not only by action at the fuit of the party wrongfully im- '^"V prifoned, but alfo by indictment at the fuit of the king. z Hawk. P. baihvherf it C 9°" ought to be But it feems alio clear, that he who has power to bail another, is not granted. bound to demand of him to find fureties, and to forbear committing him till he fliall refufe to find them, but may well juftify his commitment, un- lefs the party himfelf fliall offer his fureties. 2 Hawk. P. C. 90. ©tilt- 31 Car. 2. c. 2. [A D. 1678. intituled] " An act for the bet- Bail by hahas ter fecuring the liberty of the fubject, and for prevention of imprifon- corpus. ment beyond the leas." " Whereas great delays have been ufed by fherifFs, gaolers, and other officers, to whofe cuftody any of the king's fubjects have been committed for criminal, or fuppofed criminal matters, in making return of writs of habeas 2T4 J6ail< habeas corpus to them directed, by {landing out an alias and pluries habeas corpus, and fometimes more, and by other fhifts to avoid their yielding obedience to fuch writs, contrary to their duty, and the known laws of the land, whereby many of the king's fubjects have been, and hereafter may be long detained in prifon, in fuch cafes where by law they are bail- able, to their great charges and vexation : Setl. 2. " For the prevention whereof, and the more fpeedy relief of all perfons imprifoned for any fuch criminal or fuppofed criminal matters ; (2) Be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords ipiritual and temporal, and commons, in this prefent parliament affembled, and by the authority thereof, That whenfoever any perfon or perfons fhall bring any habeas corpus directed unto any fherifforfhe- riffs, gaoler, minifter or other perfon whatfoever, for any perfon in his or their cuftody, and the faid writ fhall be ferved upon the faid officer, or left at days after fer- ^ g ao j Q{ . p r ;f on w j t h ari y Q f t ^ e under-officers, under-keepers or deputy turned and of the faid officers or keepers, that the faid officer or officers, his or their the body under-officers, under-keepers or deputies, fhall within three days after brought, if the fervice thereof, as aforefaid, (unlefs the commitment aforefaid were withm twenty £- Qr trea f on or f e l ny, plainly and fpecially expreffed in the warrant of M. v'in. C *Abr. commitment) upon payment or tender of the charges of bringing the faid Writs of ha- beas corpus within three 209, &c. Such writs how to be marked. Writs of ha- beas corpus, and the pro- ceedings thereon in va cation time. prifoner to be afcertained by the judge or court that awarded the fame, and endorfed upon the faid writ, not exceeding twelve pence per mile, and upon fecurity given by his own bond to pay the charges of carrying back the prifoner, if he fhall be remanded by the court or judge, to which he fhall be brought, according to the true intent of this prefent act, and that he will not make any efcape by the way, make return of fuch writ; (3) and bring, or caufe to be brought the body of the party fo committed or reftrained, unto or before the lord chancellor, or lord keeper of the great feal of England, for the time being, or the judges or barons of the faid court from whence the faid writ fhall iffue, or unto and before fuch other perfon or perfons before whom the faid writ is made returnable, according to the command thereof; (4) and fhall then likewife certify the true caufes of his detainer or imprifonment, unlefs the commitment of the faid party be in any place beyond the diftance of twenty miles from the place or places where fuch court or perfon is or fhall be refiding ; and if beyond the diftance of twenty miles, and not above one hundred miles, then within the fpace of ten days •, and if beyond the diftance of one hun- dred miles, then within the fpace of twenty days after fuch delivery afore- faid, and not longer. Setl. 3. " And to the intent that no fheriff, gaoler or other officer may pre- tend ignorance of the import of any fuch writ; (2) Be it enacted by the authority aforefaid, That all fuch writs fhall be marked in this manner, Per ftatutum tricejimo primo Caroli fecundi regis, and fhall be figned by the perfon that awards the fame •, ( 3 ) and if any perfon or perfons fhall be, or ftand com- mitted or detained, as aforefaid, for any crime, unlefs for felony or trea- fon, plainly expreffed in the warrant of commitment in the vacation-time, and out of term, it fhall and may be lawful to and for the perfon or per- fons ions fo committed or detained (other than perfons convict or in execution) by legal procefs, or any one on his or their behalf, to appeal or complain to the lord chancellor or lord keeper, or any one of his majefty's juftices, either of the one bench or of the other, or the barons of the Exchequer of the degree of the coif-, (4) and the faid lord chancellor, lord keeper, juftices or barons, or any of them, upon view of the copy or copies of the war- rant or warrants of commitment and detainer, or otherwife upon oath made, that fuch copy or copies were denied to be given by fuch perfon or perfons in whofe cuftody the prifoner or prifoners is or are detained, are hereby authorized and required, upon requeft made in writing by fuch perfon or perfons, or any on his, her or their behalf, attefted and fub- fcribed by two witneffes who were prefent at the delivery of the fame, to award and grant an habeas corpus under the feal of fuch court whereof he fhall then be one of the judges; (5) to be directed to the officer or offi- cers in whofe cuftody the party fo committed or detained fhall be, return- able immediate before the faid lord chancellor or lord keeper, or fuch juf- tice, baron, or any other juflice or baron of the degree of the coif; of any of the faid courts ; (6) and upon fervice thereof, as aforefaid, the officer or officers, his or their under-officer or under-officers, under-keeper or under-k«epers, or their deputy, in whofe cuftody the party is fo committed or detained, fhall, within the times reflectively before limited, bring fuch prifoner or prifoners before the faid lord chancellor or lord keeper, or fuch juftices, barons, or one of them, before whom the faid writ is made re- turnable, and in cafe of his abfence, before any other of them, with the return of fuch writ, and the true cauies of the commitment and detainer ; (7) and thereupon, within two days after the party fhall be brought before them, the faid lord chancellor or lord keeper, or fuch i u ft ice or baron, before whom the prifoner fhall be brought, as aforefaid, fhall difcharge the faid prifoner from his imprifonment, taking his or their recognizance, with one or more furety or fureties in any fum, according to their discre- tions, having regard to the quality of the prifoner, and nature of the of- fence, for his or their appearance in the court of King's Bench the term following, or at the next affizes, feffions or general gaol-delivery of and for fuch county, city or place where the commitment was, or where the offence was committed, or in fuch other court where the faid offence is properly cognizable, as the cafe fhall require, and then fhall certify the laid writ, with the return thereof, and the faid recognizance or recog- nizances, into the faid court where Juch appearance is to be made ; (8) unlefs it fhall appear unto the faid lord chancellor or lord keeper, or juftice or juftices, or baron or barons, that the party fo committed is de- taineu upon a legal procefs, order or warrant, outoffome court that hath jurifdidtion of criminal matters, or by fome warrant figned and fealed with the hand and feal of any of the faid juftices or barons, or fome juf- tice or juftices of the peace, for fuch matters or offences for the which by the law the prifoner is not bailable. Sell. 4. " Provided always, and be it enacted, That if any perfon fha'i iVfon-neg. have wilfully neglected by the fpace of two whole terms after his impri- le I l iony, (hall be ipeciauy exprefied in the warrant of commitment, upon his prayer or pe- tition 2 JBatt. 217 tition in open court the firft week of the term, or firft day of the feflions indifted ihe of oyer and terminer., or general gaol-delivery, to be brought to his trial, next term, or fhall not be indicted ibme time in the next term, feflions of oyer and Iet t0 bai1- terminer, or general gaol-delivery after fuch commitment, it fhall and may be lawful to and for the judges of the court of King's Bench, and juf- tices of oyer and terminer, or general gaol-delivery, and they are hereby required, upon motion to them made in open court the laft day of the term, feflions or gaol-delivery, either by the prifoner, or any one in his behalf, to fet at liberty the prifoner upon bail, unlefs it appear to the judges and juftices upon oath made, that the witnefTes for the king could not be pro- duced the fame term, feflions, or general gaol-delivery •, (2) and if any And tried the perfon or perfons committed, as aforefaid, upon his prayer or petition in ter m. &c. open court the firft week of the term, or firft day of the feflions of oyer after ' or d '*"' and terminer and general gaol-delivery, to be brought to his trial, (hall .v** &• not be indicted and tried the fecond term, feflions of oyer and terminer or general gaol-delivery after his commitment, or upon his trial fhall be acquitted, he fhall be difcharged from his imprifonment. Seel. 8. " Provided always, That nothing in this act fhall extend to dis- charge out of prifon any perfon charged in debt, or other action, or with procefs in any civil caule, but that after he fhall be difcharged of his im- prifonment for fuch his criminal offence, he fhall be kept in cuftody ac- cording to the law, for fuch other fuit. Seel. 9. " Provided always, and be it enacted by the authority afore- faid, That if any perfon or perfons, fubjects of this realm, fhall be com- mitted to any prifon, or in cuftody of any officer or officers whatfoever, for any criminal, or fuppofed criminal matter, that the laid perfon fhall not be removed from the faid prifon and cuftody, into the cuftody of any other officer or officers; (2) unlefs it be by habeas corpus, or fome other legal writ ; or where the prifoner is delivered to the conftable, or other inferior officer to carry fuch prifoner to fome common gaol ; (3) or where any perfon is fent by order of any judge of affize, or juftice of the peace, to any common work-houfe or houfe of correction ; (4) or where the prifoner is removed from one prifon or place to another within the fame county, in order to his or her trial or difcharge in due courfe of law ; (5) or in cafe of fudden fire or infection, or other neceffity ; (6) and if any perfon or perfons fhall, after fuch commitment aforefaid, make out and fign, or counterfign any warrant or warrants for fuch removal aforefaid, contrary to this act, as well he that makes or figns, or counterfigns fuch warrant or warrants, as the officer or officers that obey or execute the fame, fhall fuffer and incur the pains and forfeitures in this act before mentioned, both for the firft and fecond offence reflectively, to be reco- vered in manner aforefaid by the party grieved. Seel. 10. " Provided alfo, and be it further enacted by the authority aforefaid, That it fhall and may be lawful to and for any prifoner and prifoners, as aforefaid, to move and obtain his or their habeas corpus as well out of the high court of Chancery, or court of Exchequer, as out of the courts of King's Bench or Common Pleas, or either of them; Vol. 1. N°X. Ff (2) and. 218 asati. The penalty (2) and if the faid lord chancellor or lord keeper, or any judge or judges, for denying a baron or barons for the time being, of the degree of the coif, of any of habeas corpus. tne courts a f refaid, i n the vacation-time, upon view of the copy or copies of the warrant or warrants of commitment or detainer, or upon oath made that fuch copy or copies were denied, as aforefaid, fhall deny any writ of habeas corpus by this act required to be granted, being moved for, as aforefaid, they fhall feverally forfeit to the prilbner or party grieved, the fum of five hundred pounds, to be recovered in manner aforefaid. Habeas corpus Seel, ii." And be it declared and enacted by the authority aforefaid, {hall run in:o That an habeas corpus, according to the true intent and meaning of this act, county pala- ma y ^ e directed and run into any county palatine, the cinque-ports, or leeldplaces.' other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon 'tweed, and the ifles of Jerfey or Cuern- fey ; any law or ufage to the contrary notwithftanding. Nofubjefb Seel. 12. " And for preventing illegal imprifonments in frifons beyond the (hall be fent j~ eas . ^ 2 ) g e j t f l]r r.her enacted by the authority aforefaid, That no fub- priions' i e< -t °* this rea ^ m that now is, or hereafter fhall be an inhabitant or refiant 2 Vent. 314. of this kingdom of England, dominion of Wales, or town of Berwick upon Tweed, fhall or may be fent prifoner into Scotland, Ireland, Jerfey, Guernfey, Tangier, or into parts, garrifons, iflands or places beyond the feas, which are, or at any time hereafter fhall be within or without the dominions of his majefty, his heirs or fucceffors •, (3) and that every fuch imprifonment is hereby enacted and adjudged to be illegal; (4) and that if any of the faid fubjects now is, or hereafter fhall be fo imprifoned, every fuch perfon and perfons fo imprifoned fhall and may for every fuch imprifonment maintain, by virtue of this act, an action or actions of falfe imprifonment, in any of his majefty's courts of record, againft the perfon or perfons by whom he or fhe fhall be fo committed, detained, imprifoned, fent prifoner or tranfported, contrary to the true meaning of this act, and againft all or any perfon or perfons that fhall frame, contrive, write, feal or counterfign any warrant or writing for fuch commitment, detainer, im- prifonment or tranfportation, or fhall be advifing, aiding or affifting in Penalty. the fame, or any of them ; (5) and the plaintiff in every fuch action fhall have judgment to recover his treble cofts, befides damages ; which da- mages fo to be given, fhall not be lefs than five hundred pounds ; (6) in which action no delay, ftay or ftop of proceeding by rule, order or com- mand, nor no injunction, protection or privilege whatfoever, nor any more than one imparlance fhall be allowed, excepting fuch rule of the court wherein the action fhall depend, made in open court, as fhall be thought in juftice neceffary, for fpecial caufe to be expreffed in the faid rule-, (7) and the perfon or perfons who fhall knowingly frame, contrive, write, feal or counterfign any warrant for fuch commitment, detainer or tranfportation, or fhail fo commit, detain, imprifon or tranfport any per- fon or perfons contrary to this act, or be any ways advifing, aiding or affifting therein, being lawfully convicted thereof, fhall be difabled from thenceforth to bear any office of truft or profit within the faid realm of England, dominion of Wales, or town of Berwick upon Tweed, or any of the 26afi. 219 theiflands, territories or dominions thereunto belonging; (8) and (hall in- cur and fuflain the pains, penalties and forfeitures limited, ordained and provided in and by the ftatute of provifion and prasmunire, made in the fixteenth year of king Richard the feeond ; (9) and be incapable of any pardon from the king, his heirs or_ fucceflbrs, of the faid forfeitures, lofies, or difabilities, or any of them. Seft. 13. " Provided always, That nothing in this act extend to give Perfons recei. benefit to any perfon, who fhall by contract in writing agree with any mer- vin S earre ft chant or owner of any plantation, or other perfon whatlbever, to be tranf- tobetranfpor- ported to any parts beyond the feas, and receive earned upon fuch agree- ted, excepted, ment, although that afterwards fuch perfons fhall renounce fuch contract. Seel. 14. " Provided always, and be it enacted, That if any per- p er f ons con . fon or perfons lawfully convicted of any felony, (hall in open court pray videdof felo- to be tranfported beyond the feas, and the court fhall think fit to leave n y> and pray- him or them in prifon for that purpofe, fuch perfon or perfons may be tranf- ln S tranfpor- ported into any parts beyond the feas ; this act, or any thing therein con- e a d tlon except ' tained to the contrary notwithftanding. Sett. 15. " Provided alfo, and be it enacted, That nothing herein con- imprifonment tained, fhall be deemed, conftrued, or taken to extend to the imprifon- before the firft. ment of any perfon before the firft day of June one thoul'and fix hundred o( J une l6 79> feventy and nine, or to any thing advifed, procured, or otherwife done, re- exce P ted - lating to fuch imprifonment ; any thing herein contained to the contrary notwithftanding. Sett. 16. " Provided alfo, That if any perfon or perfons at any time re- Offendersmay fiant in this realm, fhall have committed any capital offence in Scotland or be fent to be Ireland, or any of the iflands, or foreign plantations of the king, his heirs tned wner e or fucceflbrs, where he or fhe ought to be tried for fuch offence, fuch per- ' ieir offences r r \ r r P i i • 7 i • 7- Si were COmrnit- ion or perfons may be lent to fuch place, there to receive iuch trial in iuch ^j, manner as the fame might have been ufed before the making of this act ; any thing herein contained to the contrary notwithftanding. SeS. 1 7. " Provided always, and be it enacted, That no perfon or per- Profecutions fons fhall be fued, impleaded, molefted or troubled for any offence for ° ffen " s againft this act, unlefs the party offending be fued or impleaded for the ^me'robe*' fame within two years at the moft after fuch time wherein the offence fhall made. be committed, in cafe the party grieved fhall not be then in prifon ; and if he fhall be in prifon, then within the fpace of two years after the deceafe of the perfon imprifoned, or his, or her delivery out of prifon, which fhall firft happen. Set!. 18. " And to the intent no perfon may avoid his trial at the affifes, or general gaol-delivery, by procuring his removal before the affiles, at fuch time as he cannot be brought back to receive his trial there ; (2) Be it en- ^ fter t,ie sf ' acted, That after the alfifes proclaimed for that county where the prifoner c 'i^ed" no is detained, no perfon fhall be removed from the common gaol upon any prifoner to be habeas corpus granted in purfuance of this act, but upon any fuch habeas removed, but corpus fhall be brought before the judge of affile in open court, who is bef ° re the thereupon to do what to juftice fhall appertain. J f " fe se F f 2 Seil. 220 Baa- Sell. 19. " Provided neverthelefs, That after the afilfes are ended, any perfon or perfons detained may have his or her habeas corpus, according to the direction and intention of this aft. In fuits for " Se£t. 20. And be it alfo enacted by the authority aforefaid, That if any offence againft information, fuit or action fhall be brought or exhibited againft any per- this law, the f on r perfons for any offence committed or to be committed againll the defendants f orm Q f t j^j s } aW) [ t fh a n be lawful for fuch defendants to plead the gene- SraHffLif 6 ral iflfue ' that the y are not § uiky ' or that they ° we nothin §' and t0 § ive lc. ' ' fuch fpecial matter in evidence to the jury that fhall try the fame, which matter beino- pleaded, had been good and fufficient matter in law to have difcharged the faid defendant or defendants againft the faid informa- tion, fuit or action, and the faid matter fhall be then as available to him or them, to all intents and purpofes, as if he or they had fufficiently pleaded, let forth or alledged the fame Matter in bar or difcharge of fuch informa- tion, fuit or aftion. Seel. 21. " And becaufe many times perfons charged with petty treafon or felony, or as acceffaries thereunto, are committed upon fufpicion only, whereupon they are bailable or not, according as the circumftances making out that fufpicion are more or lefs weighty, which are beft known to the juf- tices of peace that committed the perfons, and have the examinations be- Perfons com- fore them, or to other juftices of. the peace in the county ; (2) Be it there- mitted as ac- f ore enacted, That where any perfon (hall appear to be committed by any ceffanes before j uc jg e r juftice of the peace, and charged as acceffary before the fact, to ToaotMony, any D petty treafon or felony, or upon fufpicion thereof, or with fufpicion of fhall not be re- petty treafon or felony, which petty treafon or felony fhall be plainly and movedorbail- fpecially expreffed in the warrant of commitment, that fuch perfon fhall ed otherwife not ^ e removec i or bailed by virtue of this act, or in any other manner SrJSti than the y mi s hc have been before the makin § of this a£t " Habeas corpus A habeas corpus had been iffued during the laft vacation, by lord for a young Mansfield, bearing tefte the 8th inftant, being the laft day of the preceding lady who had te rm, directed to James Clarke efq •, commanding him to have before his beende- l 0r djkip at his chambers in Serjeants-Inn, immediately, the body of from hv%. Lydia Henrietta Clarke, his daughter, then detained in his cuftody, toge- rents. i Bur. ther with the day and caufe of her taking and detainer-, then and there to Rep. 606. undergo and receive what his majefty's laid chief juftice fhould then and Ma da) I 2< 8 there con{ i der °f' concerning her in this behalf. The writ was now re- THn.ViGeo. turned here in court ; and the faid Lydia Henrietta Clarke produced. 2. Rex v. Mr. Clarke the young lady's father, returned, That fhe was his daugh- James Clarke, TER . and that on the 22d of March laft, She, without any leave or no- £ ^ ; tice to him or to his wife (her mother) fecretly went away from his houfe in ' Great Ormond-ftreet, and took with her a box or bundle containing feveral forts of wearing-apparel, and about 27/. in money. That in about twelve or fourteen days time, he being credibly informed " that his faid daughter had been inveigled away from him by the infti- gation of one James Mervin, a perfon of no vifible occupation or fubftance^ nor keeping any houfe-, with design to marry her to one Jofeph Jfgrave, who mn 221 who is under age ; and who about two years ago ferved the faid James Clarke as a foot boy, and is yet in no better condition ; and that they were all gone together into the Ifle ofThanet, where they were to get a licence for fucb marriage ■" He being under great concern for the welfare of his faid daughter, and in order to prevent the faid marriage (fhe being thtilled to a confiderable fortune, after her faid mother's death, and being likewife bis onl y child,) took, a journey to find them out, and if (in his power,) to pre- vent the faid intended marriage-, and gave directions to his nephew Mr. Peter Starkie Floyer, to go in queft of them, and if he found them, to endeavour to prevent the marriage, and to bring his faid daughter to him. That his faid nephew found them out at a place called Broad Stairs, in the ifle of Tbanet. Where the faid James Mervtn reprefented himfelf as, and pajfed for, the uncle of the faid daughter. That the faid Lydia Henrietta Clarke came home with his faid nephew to his (the faid James Clarke's) houfe in Great Ormond-Street : Where fhe ar- rived the 7th of April laft : And the faid James Mervin came with her as far as Canterbury : But the faid Jofeph Ifgrave run away ; and the faid James Mervin pretends he is gone to Holland. That on her being thus brought home to him, he did, in the tendereft manner, reprefent to her the ruin fhe was inevitably falling into, if fhe purfued a defign to marry a perfon fo much inferior to herfelf ; and who, having no vifible way of livelihood, muft reduce her to the utmoft necef- fity and want, as well as difgrace and fhame. Whereupon fhe alluring her faid father " That fhe was not married," He, through his duty as a parent, and from the affection he bore towards her, did receive her into his houfe, and the mildeft and beft endeavours have been ufed to dijfuade her from fucb marriage ;fuch endeavours extending no further than what he humbly conceives to be confiftent with that parental care which may be ufed by a father towards his child : And No severity whatfoever hath been ufed to her. That fhe hath ever fince the faid 7th day of April laft, (when fhe came home to his houfe as aforefaid) hitherto, Of her own accord, con- tinued to live and refide with him, (her father) and ftill doth live and refide with him at his faid houfe, of Her own accord, and under no refiraint whatfoever. And there is no other caufe of detaining the faid L. H. C. &c. Note — This habeas corpus was ifiued upon an affidavit made by the above named James Mervin; who made out a very plaufible cafe, fully fufficient, (if true ) to obtain the writ •, but which was now alledged by Mr. Norton, (of counfel with Mr. Clarke,) to be abfolutely and utterly false in fail. In it the young lady was fworn to be of full age (viz. about 22.) which was true : But it alfo alledged "That fhe had been hardly ufed, and confined, by her father," And other circumflances, which were falfe. Note alfo — That although this habeas corpus directed her to be brought before lord Mansfield at his chambers -, and although fhe was atlually brought before him whilft he was fitting at Guildhall on Wednefday laft-, yet, the father defiring to have an opportunity to take the advice of a counfel, in fettling the return ; and the young lady declaring publicklv, " She 222 No peer or lord ofparlia merit hath pri vilege againlt Leing compel led to pay obedience to a writ of ha- teas corpus directed to hjm. 1 Bur. Rep. 631. Trin. 31 Geo 2. Rex v. Ear Ferrers. Bail. ** She had no objection to continue with her father, who always ufed her with great tendernefs, and much better than fhe deferved ■" His lord- Ihip judged it proper to adjourn it, and direct her to be brought into court the fir ft day of term, the rather too, that fhe might have a chance of being better adviled : For if fhe had been then taken from her father, it was plain {he would have purfued her improvident defign ; and Mervin appeared at Guildhall, ready to have carried her off. She was now brought into court by virtue of the same writ, which was returnable before his lordfhip, at bis chambers immediate. Lord Mansfield, now only afked her, ' " Whether fhe defired to continue with her father, or to go elfewhere." She anfwered — " To continue with her father." Upon which, The court told her, fhe was at liberty to go. Which fhe accordingly did. Then Mr. Norton moved that Mervin's affidavit might be Filed, (together with the return of the writ •,) as Mr. Clarke was determined to profecute him for Perjury. The court ordered it to be lb ; and recommended the profecution very ftrongly to Mr. Clarke. On Wednefday 26th January 1757, Mr. Norton moved, either for an " attachment againft the earl for not returning a Habeas Corpus already ifiued, and returnable immediate, commanding him to bring up the body of his countefs (fifter to Sir William Meredith,) or for a new Habeas Corpus, accompanied with an Attachment. He faid the latter had been done in the cafe of Rex v. Dr. Wright, Mich. 5 G. 2. B. R ; and that the reafon of ifTuing the attachment at the fame time with the Habeas Corpus, was for prevention of a delay which might, in certain cafes, render the remedy ineffectual. Lord Mansfield afked Mr. Norton, whether He knew any inftance of an attachment accompanying a writ. He faid he underftood • an attachment going, for not having obeyed a writ : But did not know any inftance of an attachment going out together with the writ. Mr. Norton ftated Wright's cafe, from a note taken by a gentleman who has now left the bar; where Lee, then a puifne judge, held it might be done. Though, in that cafe, Wright did afterwards return the writ in court. Note — In the prefent cafe Mr. Juftice Fofler had granted a habeas corpus : which was ferved on the earl, by Sir William Meredith : But Sir William at length agreed not to profecute it •, on condition that his lordfhip fhould carry lady Ferrers to Bath ; which the earl promifed, but had not performed. Mr. Norton faid he would take nothing by his motion. And Mr. Clayton moved for a new writ, returnable in court immediate. Lord Ferrers neglecting likewife to obey this fecond writ of habeas corpus, the counfel for Sir William Meredith (on behalf of his fifter) intended, on luefday the 8th of February 1757 to have moved for an attachment againft lord Ferrers, for this his difobedience : But fome doubts and difficulties having been ftarted by members of both houfes, concerning the Privilege of Peerage •, and " Whether the court of King's Bench could iffue an attachment againft a peer during the fitting of parliament, and execute it upon him, only for a contempt to their court," Sir William Meredith judged it prudent to petition the houfe of lords, for their leave to proceed againft the earl-, and accordingly did yefterday (by the hands of the earl IBM. carl of Weftmoreland) deliver fuch petition flaring the fads. Lord Delawar oppofed it, and faid it was too fummary and too hafty a method of determining upon their privileges •> and propofed referring the matter to a committee, and fummoning lord Ferrers to anfwer it in his place : and to obviate the objections which might be made to this method on account of the delay; He offered fome fchemes for the intermediate fafety of the countefs. But lord Mansfield anfwered him, and fpoke in fupport of the jurifdiction of his court, and the unreafonablenefs, injuftice and incon- venience of allowing fuch a privilege in criminal cafes and breaches of the ■peace. The duke of Argyle then fpoke to the like effect, and expreffed a furprize that there fhould be any doubt about it -, the reafon of the thing being fo clear and plain. Laftly, the earl of Hardwicke fpoke ftrongly and particularly in fupport of the fame doctrine, and adduced many inftances and precedents in proof of his pofitions-, and concluded with propofing, that to put an end to all doubt about it for the future, the lords fhould come to a refolution •, and accordingly they did come to the following refolution or declaration, and ordered it to be entered on their journal •, viz. " 7 Februarii 1757. It is ordered and declared, That no peer or lord of parliament hath privilege againft being compelled by procefs.of the courts of Weftminfler-Hall to pay obedience to a writ of habeas corpus directed to him." (and it was afterwards, viz. " Die Mercurii 8 Junii 1 757. Ordered and declared by the lords fpiritual and temporal in parliament afTembled, That no peer or lord of parliament hath privilege of peerage or of Parlia- ment, againft being compelled by procefs of the courts in Weftminfter Hall, to pay obedience to a writ habeas corpus directed to him." And it was then and thereby further ordered, " That this order and declaration be entered upon the roll of the ftanding orders of this houfe.") On the 8th of February 1757, Mr. Norton renewed his motion for an attachment againft the earl : And he produced affidavits of his lordfhip's difobedience to the writ, and continuing his ill ufage of his lady. All the affidavits (quite from the beginning of this affair) were read. Lord Mans- field : This is a habeas corpus at common law, which is a prerogative writ, for the liberty of the fubject. The court may inforce fpeedy obedience to it: And the circumftances of this cafe (where delay may be very dangerous,) require it. It is reafonable that the lady fhould have oppor- tunity of laying her cafe before the court •, and fwearing the peace, if fhe thinks proper, in order to obtain the protection of the court. The end of this courfe that we now take, in iffuing an attachment to enforce obedience to the writ, is to have this lady produced for this purpofe. And therefore we think, under the extraordinary circumftances of this cafe, an attach- ment fhould iffue ; to inforce obedience to this writ of habeas corpus, which fo much affects the preservation and fecurity of this lady. But at the fame time, his lordfhip intimated to them, not to execute it at all, if it was poffible to obtain the end of their application by any gentler or other means', the end and intention of granting it, being only to have the lady im- mediately brought up. Mr. juftice Denifon (the only other judge in court) only faid " that an attachment ought to go." Ordered that a writ of attach- ment 22 22 + Bail. ment iffue againft the right honourable Laurence earl Ferrers. In confe- quence whereof, the earl having been ferved with the writ, (or at leaft having had it notified to him) by the under-fheriff of Leicejlerfhire, accom- pained by a brother of the countefs : — On the Saturday following He appeared in IVeftminjler-Hall, and about one o'clock, fent a meifuage into court, to lord Mansfield, defiring to fpeak with him." Lord Mansfield bid the meflenger tell his lordfhip, " That when an affair was depending before the court, he could not fpeak with any body about it but in court." Soon after, the earl came upon the bench, and fpoke to lord Mansfield. It was not eafy to underftand what he laid, as he fpoke pretty low: But I imagine he propofed putting fome certain queftions to his lady ; for lord Mansfield's anfwer was, " That when Ihe came into court all proper queftions would be afked her." Some time afterwards, on the fame day — lady Ferrers came into court, and had articles of the peace ready to exhibit ao-ainft the earl. Note — nothing more was faid concerning the habeas corpus or the return of it, the real end of it being fuffkiently anfwered, by her being left at liberty to come to this court, in order to obtain its pro- tection. Sir Richard Lloyd and Mr. Gould, for the earl, defired leave to afk lady Ferrers one or two queftions previous to her fwearing to the articles which fhe had prayed leave to exhibit. But lord Mansfield told her lady/hip, that flie was not obliged to anfwer any queftion previous to her fwearing the peace. And he told Sir Richard that the prefent bufinefs was only to obtain fecurity of the peace. Juft at this time, the earl came into the body of the court, (upon the floor, not upon the bench •, and defired to afk lady Ferrers " Whether an affidavit which fhe had lately made, in the country, before a commiffioner authorized by this court to take affidavits was made by her voluntarily or involuntarily.'" Note — This was an affidavit (in which ihe had ioined, during her being in his power in the country, after the ifiuing of the habeas corpeus ;) wherein fhe was made to fwear" That fhe was content to remain with her hufband, that fhe had no complaint againft him, and that the application made by her relations for the habeas corpus was without her defire and againft her will." Which affidavit her friends faid was fo far from being voluntary, that it was extorted from her under durefs ; and was the mere effecl of fear force, and compulfion, or at leaft of very undue unfiuence. Lord Mansfield perfevered in permitting her ladyfhip, without anfwering any queftion, to proceed in exhibiting her articles-, and then afked the earl,. " If he had fecurity ready." The earl firft, and Sir Richard, afterwards,, preffed that lady Ferrers might anfwer their queftions. And Sir Richard dropped an intimation that the eari's regard or difregard for her would depend upon her anfwers. But lord Mansfield faid he had before told her, that fhe need not anfwer them. And now he would not fuffer her, he faid, to anfwer them. Lord Ferrers went in and out of court once or twice. But did not, at this time, give the fecurity of the peace •, nor did Mr. Norton prefs that he fhould give it immediately. On Wednefday the 27th of April following ma. 225 following, the earl appeared •, and gave fecurity: himfelf in 5ooo. ; . And each manucaptor in 2500/. Monday, 13th February 1758. The earl having broken this recognizance in the month cf Augufl 17 57, by drawing a piftol upon lady Ferrers, at the earl of Wefimcr eland's at Mereworth caftle in Kent ■, He was taken up fome time afcer, again, upon a frefh warrant from lord Mansfield : And having given bail on the fame 13th day of February 1758, before my lord chief juftice (whillt. his lordlhip was gone out to dinner,) he prefently afterwards came into court, to appear. And upon the return of the lord chief juftice — The countefs alfo came into court ; and /wore fresh articles of the peace againft the faid earl, grounded upon the above mentioned fact. After which, he (being ftill prefent) was called upon to give bail to theie recent articles of the peace. He had previoufly given notice of two perfons to be his bail before the lord chief juftice : With one of which the pro- fecutors were not fatisfied. After feveral propofals ; and after feveral hints which came from lord Mansfield, as well as from Mr. Norton, " That it was neceflary for the earl to give bail at prefent, and not to pray time to do lb, as the giving it now was the only method he could take, if he expected to remain at liberty •" It ended in a compromife to take both thefe perfons as bail now, and to give a few days time for the juftifying the doubtful one, (a peiuke maker,) or for finding a better. Accordingly he himfelf became bound in 5000/. Mrs. Shirley (his mother,) in 2500/. and Mr. John Benni- fold, peruke-maker, in 2500/. The earl's counfel now moved to dif- charge the recognizance. To which the lady's counfel afterwards con- fented. A habeas corpus having iffued in the laft vacation, at the inftance of jj a i eas (erfu , John Wilkes, efq-, to bring up the body of Mary Wilkes, wife of the faid for a wife. 1 John Wilkes, and daughter of the faid Mary Mead, before Mr. juftice Bur. Rep. 542. Denifon ; Mrs. Mead now brought her into court. The fubftance of the Ea(l - 3 ' Ge0 - return was, That her hufband (having ufed her very ill,) in confederation of V. eX w" . a great fum which (he gave him out of her feparate e'ftate, confented to her living alone, executed articles of feparation, and covenanted (under a large penalty) never to difturb her or any perfon with whom fhe fhould live. That fhe lived with her mother, at her own earned defire, and that this writ of habeas corpus was taken out with a view of feizing her by force, or fomt; other bad purpofe. The court held this to be a formal renunciation by the hufband, of his marital right to feize her, or force her back to live with him. And they faid that any attempt of the hufband to feize her by force and violence, would be a breach of the peace. They alfo declared that any attempt made by the hufband, to moleft her in her prefent return from Wejlminjler-Hall, would be a contempt of the court. And they told the lady, fhe was at full liberty to go where, and to whom (he pleafed. See Rex v. Clarkfon et al. 2 Strange 444, 445: Where the court only took care that the young lady fhould be under no illegal reftraint, and ordered a tip-ftaff to fee her fafe home, to her guardian's, as had been formerly done in lady Harriot Berkley's cafe. Rex v. Captain Lifter, biftand of lady Rawlinfon, 1 Strange 478. Lady Vane's cafe M. & H. 17 G. 2. B. R. Vol. I. N° X. G g Rex 226 !5afl. Rex v. John/on, i Strange 579. H. 19 G. 2. 2 Ld. Raym. 1334 S. C. A child was delivered to its proper Guardian, by the court. i&?x v. Smith, 2 Strange 982 : Where indeed the boy was only fet at liberty ; and Johnfon's cafe was faid to be carried too far, Rex v. Griffith. H. 8 W. 3. B. R. And lady Catherine Annejlefs, cafe. Habeas corpus The doctor was brought up to be bailed. But had not bail ready. ifl'ued in vaca- Note — He was now brought up by virtue of a habeas corpus issue d by the tion, and re j ort j chief jullice in the vacation, returnable immediate, before himfelf at his tU T A/h*,. chambers. Upon Dr. Shebbeare's mentioning that he had been informed fore a judge at " I hat, as the term was begun, it was neceliary to take out a new writ of his chambers, habeas corpus, to bring him into court;" And the officers on the crown-fide does not ex- h av j n g f a [j t hat their notion of the practice was, " That, the term being pire.by ecc- ^.^ ^ Q y wr j t was ex pj ret j^ anc | j t was nece ff a ry to take out a new one; term ; but the lord Mansfield declared the court to be unanimoufly of opinion that fuch defendantmay notion was ill founded ; That a perlbn might be brought into court upon a be brought habeas corpus iffued in the vacation ; and that to require a new writ, would "!'° court at beattended with delay and expence, without the lealt reafon or utility. Lord upon the old Mansfield — If you have not bail, we cannot commit you to the fame cuftody writ. 1 Bur. you came hither in, (which was that of Mr. Carrington, one of the king's Rep.460.Hil. meflengers ;) but muft commit you to our marfhal : And you will then be 31 Geo_2. obliged to fue out your habeas corpus again ; but may be brought up from Shebbeare tne P r ^" on °f this court, by a rule of court, whenever you fhall be prepared to give bail. Accordingly, the doctor, being charged with two warrants under the hand and feal of the fecretary of ftate, which appeared upon the return to the habeas corpus, was committed to the cuftody of the marlkal of this court. Animpreffed The defendant being brought into court, in obedience to a writ of nun in cut- habeas corpus applied for by his bail; and it being agreed that He was in tody at the cu ft dy of the keeper of the Savoy, as an impreffed man ; the counfel in brought up by behalf of the bail infifted upon their right to surrender Him. -hisball,;norder Cur (namely, Lord Mansfield, Mr. juft. Denifon, and Mr. juft. Fofter) to be furrtn had no doubt of their right : but only hefitated as to the difpofition of dered by them ]-}; m ^ after He had been furrendered. Lord Mansfield mentioned the "har'T was c ' aule in the preffing act. {V. 29 G. 2. c. 4. f. 14. p. 175.) of not taking Brft commit Him out of the fervice. Mr. juft. Denifon cited two cafes; viz. 1 Strange ted to the 641. The cafe of the bail of Boife and Sellers, in this court; where the Marfhal, with defendants « ere returned' to be charged with two civil fuits and feveral orders to de- ]? xc ^ e q Uer infer, nations for frauds in the cuftoms: and when the court was 1a"tcr?o 'he fatisfied of the reality of the debts and priority of the actions here, the keeper of the defendants were- furrendered, and committed to the MarfhaU And a cafe Savoy; and i n Tr. 22, 23 G. 2. Rex v. Chitty, B. R. where the defendant was re- an exonentur tuine d t o be charged with a contempt in the Exchequer : He was furren- TlLrVep dered by his bail here ; and committed to the marfhal; who was imme- 339 Eaft.' diately ferved with a new habeas corpus, to remove him to the Fleet. 30 G. 2. Bond This man is a foldier now : and by this act cannot be taken out of the v. lfaac. king's fer.vice, but upon fome criminal matter (V. the act, as above.) So that it leems that He may be remanded to the Savoy, in the prefent cafe. 2 Mr,. Ban, 227 Mr. juft. Fofter In the cafes cited by my brother Denifon, the pro- ceedings were grounded on 25 Ed. 3. c. 19. (which enacts " that the King's debtors ihall not be protected from the proceedings of their other creditors againft them :) and it was a matter of right. This is an indul- gence to the bail, to permit them to bring in the defendant and furrender him.- But we cannot take him out of the King's fervice ; this not being a criminal matter: (V. ut fupra, 29 Geo. 2. c. 4. f. 14.) So that We may, after We have entered an exoneretur upon the bail-piece, remand him to the legal cuftody at the Savoy. Lord Mansfield We may firji commit him to the marfhal ; and thai remand him, immediately, to the Savoy. Suppofe him to be a foldier at large (not in cuftody ;) and that his bail were to bring him in and furrender him : He muft be committed to the cuftody of the Marjhal upon fuch furrender •, but inftanter fet at large : And to we may do here. And accordingly, per Cur. He was, upon be- ing furrendered by his bail, firft committed to the cuftody of the Marfhal: but the Marfhal was ordered to deliver him inftanter to the keeper of the Savoy ; and he did lb, immediately in court. And an exoneretur was or- dered to be entered upon the bail-piece. On Saturday laft, the 24th of January, a motion was made for a habeas infpeaion of corpus to be directed to Turlington, the keeper of a private mad-boufe, a perfojr«»- commanding him to bring up the body of Mrs. Deborah d'Vebre, who was fin j d h m f a confined there by her own hufband. The court thought it fit to have was orc j ere d a previous inflection of Her, by proper perfons, phyficians and relations ; to be had by and then to proceed, as the truth fhould come out upon fuch inflection, proper per- And a cafe was hinted at where an infpection was ordered, in the laft term. ions > pr evious A rule was accordingly made, " That doctor Robert Monroe, Peter Bcd-^f*™ 1 ™^* kin, (her relation) and Edmund Kelly (her attorney) fhallat ail proper times z g ar> R ep / and feafonable hours, reflectively be admitted and have free accefs to m^. Hil. Mrs. Deborah d'Vebre, the wife of Gabriel d'Vebre, in the affidavit men- 1 Ge °- 3- in tioned, at the mad-houfe kept by Robert Turlington, at Chelfea, in order to B „?' . confult with, advife and afhft the faid Deborah d'Vebre." On Monday the v ' ur ' s ; 26th, an affidavit of Dr. Monroe's was read ; and Dr. Monroe alfo per- fonally allured the court, " That He had feen and converfed with this woman, and examined her nurfe ; and faw no fort of reafon to fufpect that (he was or had been difordered in her mind : on the contrary, He found Her to be very fenfible, and very cool and difpaffionate." Lord Manf- field Take a writ of habeas corpus: and if this fhould appear to be the cafe we ought to go further. Mrs. d'Febre was now brought into court by Mr. Turlington. But no return was indorfed upon the writ. She appeared to be abfolutely free from the leaft appearance of infanity. She was pre- pared to have fworn articles of the peace againft her hufband ; and they were offered in court, ready ingroffed ; but not being ftamped, they could not be read. She was permitted to go away with her attorney, to his houfe, He undertaking to produce her here to-morrow morning. Note -She defired not to go back to the mad-houfe : and the court would not permit her hufband to take Her, under the prefent circum- G g 2 ftances 228 Bat'l. fiances of danger apprehended by Her from Him. It afterwards ended in acompromife, and an agreement to feparate. 21 Jac. i. ^>tflt. 21 Jac. i. c. 26. \_A. D. 1623. intituled] " An aft againftfuch c. 26. as fhall levy any fine, fuffei any recovery, knowledge any ftatute, recog- nizance, bail or judgment, in the name of any other perfon or perfons not being privy and confenting thereto." " Whereas it is of late grown to be a great and general grievance to his majefty's fubjects within the realm of England, and the dominion of Wales, that many lewd perfons of bafe condition, for every little reward or re- compence, have of late years ufed, and (till do ufe to levy fines, and fuf- fer recoveries of lands and other hereditaments, to acknowledge ftatutes, recognizances, bails and judgments, in the name or names of any other perfon or perfons not privy or confenting to the fame, which hath and daily doth turn to the great inquietation, charge, trouble and undoing of many of the good fubjects of this kingdom, and the rather, for that there is no remedy in law to reform thefe and the like abufes : It is felony to Seel. 2. " For remedy whereof, Be it enacted by the king's moft excel- levy a fine, lent majefty, the lords fpiritual and temporal, and commons, in this pre- fuffer a reco- f em p ar ij arr)ent afiembled, and by the authority of the fame, That all and another's every perfon and perfons, which at any time after the end of this prefent name not feffion of parliament fhall acknowledge, or procure to be acknowledged, privy thereto, any fine or fines, recovery or recoveries, deed or deeds inrolled, ftatute or 1 Ventr. 301. ftatutes, recognizance or recognizances, bailor bails, judgment or judg- Jones Sir T. ments, in the name or names of any other perfon or perfons not privy or 6 i' confenting to the fame, and being thereof lawfully convicted or attainted, fhall be adjudged, efteemed and taken to be felons-, (2) and fuffer the pains of death, and incur fuch forfeitures and penalties, as felons in other cafes convicted or attainted, do by the laws of England lofe and forfeit, without the benefit or privilege of clergy to be allowed to any fuch offen- Thisfdony der or offenders. (3) Provided always, That fuch attainder fhall not be fhall not cor- any corruption of blood, nor lofs of dower to the wife, but the next heir n»pt the blood, rj^^j ^ ave tne ] arK j s whereof fuch perfons attainted died feiled, and fuch dovve^ eaway w ife her dower, as if no fuch attainder had been had. An attorney" SeS. 3. " Provided always, and be it likewife enacted by the autho- may do it for rity aforefaid, That this act fhall not extend to any judgment 01 judg- anotherman. men ts acknowledged by any attorney or attornies of record, foi any per- fon or perfons aguinft whom any fuch judgment or judgments fhall be had or given." Wherebailis He was taken in execution upon a recognizance of bail, and he made perfonated, he it appear to the court, That he never acknowledged the recognizance, but "™ otbe011 ' was perfonated by another ; and thereupon it was moved, that the bail the offender might be vacated and he difcharged, as was done in Cctlcn's cafe, 2 Cro. is convifled. 256. But the court faid, Since 21 Jac. c. 26. by which this offence was 1 Vent. 301. made felony (without clergy,) it is not convenient to vacate it until the Mich. 28 offender is convicted; and fo it was done 22 Car. 2. in Spicer's cafe-, B. R.Beafiey's cafe. man. 229 wherefore it was ordered, that Beojley fhould bring the money into court, and be let at large to prolecute the offender. Twifden faid, Ic mult be tried in Middle/ex, tho' the bail was taken at a judge's chambers in London, becaufe filed here ; and the entry is venit coram Domino Rege, ifc. fo it differs from a recognizance acknowledged before my lord Hobart, upon 23 H. 8. at his chamber, and recorded in Middlefex, Hob. Rep. 195, 196. If a falfe bail is acknowledged, it is not felony, unlefs it be filed, and fo held in Timberley's cafe. Two people put in bail in feigned names, and becaufe there were no Feigning bail, fuch peribns, they could not be profecuted for perjonating bail on the flat. cai j fe for the 21 Jac. 1. c. 26. fo the court ordered them and the attorney to be fet in?' 5°^ ,g. the pillory, which was done accordingly. Trin. 6G. 1. A bail taken before a judge is not a bail within this ftatute till it be Anon. inCB. filed of record, and if it be not filed, the acknowledging thereof in ano- ther's name makes not felony, but a mifdemeanor only. 1 Hale H. P. C. 696. But this is made felony by the following ftatute. ^>tflt. 4 Will. &? Ma. c. 4. [J. D. 1 692. intituled] " An aft for taking 4 will. & M. fpecial bails in the country, upon actions and fuits depending in the courts c. 4. of King's Bench, Common Pleas, and Exchequer at Weftminsler." " For the greater eafe and benefit of all perfons whatfoever, in taking the recognizances of fpecial bails upon all actions and fuits depending, or to be depending, in any of the courts of King's Bench, Common Pleas, or Exchequer at Weslminsler, Be it enacted by the king's and queen's mod excellent majefties, by and with the advice and conlent of the lords fpi- ritual and temporal, and commons, in this prefent parliament afiembled, and by the authority of the fame, That the chief juftice, and other the Chief juflice, juftices of the court of King's Bench for the time being, or any two of&c . may make them, whereof the chief juftice for the time being to be one for the faid an y F erl ° ns > court of King's Bench, and the chief juftice of the court of Common Pleas, ^y^lndMi- and other the juftices there for the time being, or any two of them, citors, com- whereof the chief juftice of the fame court to be one for the faid court of mflionersto Common Pleas, and alfo the chief baron and barons of the quoif of the uke bai1 In court of Exchequer for the time being, or any two of them, whereof the l e coumr l' - chief baron for the time being to be one for the faid court of Exchequer, fhall or may, by one or more com million or commiffions under the feveral feals of the faid relpective courts, from time to time, as need fhall re- quire, tmpow.er fuch and fo many perfons, other than common attorneys and lolif'tors, as they fhall think fit and neceflary, in all and every the: feveral (hires and counties within the kingdom of England, dominion of Wales, and town of Berwick upon Tweed, to take and receive all and Juflice;, &c. every fuch recognizance or recognizances of bail or bails, as any perfon t0 receive lhe or perfons fhall be willing or defirous to acknowledge or make before pie £, e j ■ any of the perfons fo impowered in any action or fuir, depending or here- ^f ™ a * jx^ after *o be depending in the faid refpective courts, or any of them, in tiou. fuch manner and form, and by fuch recognizance or bail-piece, as the 4 juftices 230 JB'ftfl* juftices and barons of the faid refpeftive courts have ufed to take the lame ; which faid recognizance or recognizances of bail or bail-piece, fo taken as aforefaid, fhall be tranfmitted to fome or one of the juftices or barons of the laid relpective courts where fuch action or foil fhall be de- pending, who, upon affidavit made of the due taking of the recognizance of fuch bail or bail-piece by fome credible perfon prefent at the taking thereof, fuch juftice or baron fhall receive the fame upon payment of fuch fees as have been ufually received for the taking of ipecial bails by the juftices and barons clerks, and other the officers of the faid refpective Bail taken be- courts ; which recognizance of bail or bail-piece fo taken and tranfmitted, low to be de ffiall be of the like effect as if the fame were taken de bene effe before any bene ejje. of the faid juftices and barons ; for the taking of every which recogni- tors fee. zance or recognizances of bail or bail-piece, the perfon or perfons fo im- powered fhall receive only the fum or fee of two (hillings, and no more. Power given SeS. 2. " And be it further enacted by the authority aforefaid, That to juftices.&c. the juftices and barons reflectively in the feveral courts fhall make fuch to make rules rules and orders for the iuftifying of fuch bails, and making of the fame /* * (l*f " !■* -I/O ' O tor jurying, aD i l u t e , as to them fhall feem meet, fo as the cognizor or cognizors of dertheper- ^ ucn Da '' or bails De not compelled to appear in perfon in any of the faid fon's appear- courts, to juilify him or themfelves, but the fame may and is hereby di- ance. rected to be determined by affidavit or affidavits duly taken before the faid commiffioners, who are hereby impowered and required to take the fame, and alfo to examine the fureties upon oath, touching the value of their re- London &c. fpcctive eftates -, unlefs the cognizor or cognizors of fuch bail do live faved. within the cities of London and IVejlminfler, or within ten miles thereof. Juftices of af- &*&' 3- " And be it further enacted by the authority aforefaid, That fize may take any judge of affize in his circuit fhall and may take and receive all and bail. every fuch recognizance and recognizances of bail or bails, as any perfon fhall be willing and defirous to make and acknowledge before him, which being tranfmitted in like manner as aforefaid, fhall (without oath) be received in manner as aforefaid, upon payment of the ufual fees. Felony for Set!. 4. " And be it further enacted by the authority aforefaid, That any perfon to any perfon or perfons, who fhall (before any perfon or perfons impowered bebailmano- Dv virtue of this act, as aforefaid, to take bail or bails') reprefent or per- name ' fonate any other perfon or perfons, whereby the perfon or perfons fo repre- fented and perfonated may be liable to the payment of any fum or funis of money for debt or damages to be recovered in the fame fuit or action, wherein fuch perfon or perfons are reprefented and perfonated, as if they had really acknowledged and entred into the fame, being lawfully con- victed thereof, fhall be adjudged, efteemed, and taken to be felons, and fuffer the pains of death, and incur fuch forfeitures and penalties as felons in other cafes convicted or attainted do by the law of England lofe and forfeit." 25aftcc. 231 i$afcet\ A BAKER is a perfon whofe trade is to bake. Johnf. By ftatute 29 Car. 2. c. 7. \_A. D. 1676. intituled, " An aft for the better ob- fervation of the Lord's day, commonly called Sunday"] feci. 1. it is en- acted, " That no trade/man, artificer, workman, labourer, or other per- fon whatfoever, (hall do or exercife any worldly labour, bufinefs or work of their ordinary callings, upon the Lord's day, or any part thereof, works of neceffity and charity only excepted" Sell. 3. " Provided, that nothing in this act contained mail extend to the prohibiting ofdrefllng of meat in families, or drefling or felling of meat in inns, cooks fhops or victualling houfes, for fuch as otherwife can- not be provided" The court had granted a rule for the defendant, a juftice of peace for Baking pud- the county of Middle/ex, to fhew caufe why an information mould not be dings, pies, granted againft him, for refufing to receive an information regularly and and f uctl duly laid before him againft a baker for exercifing his trade on a Sunday, If 5 on . a contrary to the ftatute of 29 Car. 2. c. 7. (" for the better obfervation of an ^l' n ^ e ** the Lord's day •,") Mr. Cox giving it as a reafon for his refufal, " That meant by flat. " the juftices of Middlefex and of Weslminfter had come to fuch an agree- 29 Car. 2. " ment amongft themfelves, not to receive fuch informations." They c '7, but is laid the ftrefs of the cafe upon the juftices refufal to receive the informa- n r e t L_ tion at all : though Mr. juftice Fosler on the original motion, thought that provi'foin the there was no need to receive it, if the juftice was of opinion, upon its be- 3d feftion of ing opened to him, " that the cafe ftated to him was not an offence within ll ' asa co0 ^' " the aft," And he intimated his own opinion, pretty ftrongly, " that^. 5 . an ^ " it vvas not fo; and that it was better that one baker and his men fhould exception of " ftay at home, than many families and fervants." He laid He was as works of r.e- much for the obfervation ot the Sabbath, as any one : but he did not "Jfi'y and think a Pharifaical or a Jewifti obfervation of it to be neceffary. Lord "'£"'- ) ' R Mansfield likewife at the fame time hinted His opinion, "that the Sab- . 8 . L ^_. s e |' " bath would be much more generally obferved by a baker's ftaying at Eaft. 32 " home to bake the dinners of a number of families, than by his going Geo- *• R« " to church, and thole families or their fervants ftaying at home to drels v- Btr J amin " dinners for themfelves." However, they all agreed that it would be °' x ' e q * by no means amifs, that the juftices at Hicks's Hall fhould have an oppor- tunity of knowing the opinion of this court upon this fubjeft : and (for that purpofe principally, as it feemed to Me,) they granted a rule to fhew caufe. Mr. ferje'ant Nares and Mr. Stowe now fhewed caufe ; and ob- ferved that the charge was not for baking bread, but for baking puddino-s, pies, and other fuch things for dinner. And that the aft of 29 Car. 2. c. 7./ 3. allows of drej/ing meat, on a Sunday, for dinner; and excepts works of necefiity and charity. And all the juftices of peace of Middlefex and IVeilminsler have agreed, that this is not an offence which that ftatute meant 232 Bafccr. meant to punifli. And this gentleman, Mr. Cox, heard the whole com- plaint, and then declared the opinion of himfelf and of his brethren, " That it was not an offence within the meaning of the air. of parliament " or any other law : for that He and the other juftices confidered it as a " cook's fhop, and as a matter of necejjity, and of relief to poor people." Mr. Norton, Mr. Morton, and Mr. AJhitrSl contra, for the information, cited two cafes of Rex v. Serge/on, and Rex v. Daw/on. This does not ap- pear, they faid, to have been a baking for the poor only, or for the poor at all; which cannot be prefumed : lb that it does not appear to be a work of charity or neceffity. Nor is it to be ranked under the appella- tion or nature of a cook's fhop •, and conlequently not within the provifo in the third lection. Lord Mansfield The complaint now appears to have been founded upon a mifreprefentation of the fact : for the affidavit charges this juftice of peace to have refufed receiving the information ■, and that He told them the juftices had come to an agreement " not to grant warrants againft per- fons for baking on a Sunday." Whereas it now appears that He did hear the charge •, and that it was not baking in general on a Sunday ; but baking pies, puddings and meat for dinner ; not faying a word about bread, which is the bulinefs of a baker's ordinary calling. And He told them, " That " this fort of baking or drejfing meat on a Sunday was not, in his opinion, " and in the opinion of the reft of the juftices, an offence within the aft." I am not fatislied that their opinion was wrong. And if he really judged it not to be within the provifion of any law, and had conlulted his brethren who thought lb too, the court would never grant an information againft him • even though fuch opinion had been erroneous. Mr. juftice Denifon This court will never grant an information againft a juftice of peace for a mere error in judgment. And He de- clared that He thought the juftices to be in the right in their opinion ; and that this was not a cafe within the meaning of the law : it feems to be within the equity, tho' not within the words of the provifo of feci:. 3. Therefore the rule ought to be difcharged. Mr. juftice Fojler concurred that the rule ought to be difcharged. He was clear that this cafe was not within the provifion of the act: but it falls within the exception of works of ne- ceffity and charity, and alio within the provifo, as being a cook's fhop. And it is as reafonable that the baker fhould bake for the poor, as that a cook fhould roaft or boil for them : there is no reafon for any diftinction. And as the juftice has acted rightly, and alio upon right motives, the rule ought to be difcharged with cosls. A juftice of peace has a right to judge for himfelf, whether the matter charged is an offence within the law : and if upon hearing the charge opened, he thinks it not to be an offence within the law, he ought not to proceed upon it •, which could be to no purpofe, but merely to put perfons to unneceffary trouble and charge. Mr. juft. Wihnot It comes out now, that the juftice did not refufe to hear and receive the complaint*, though when it was opened to him, He judged that he ought not to proceed upon it. And in this he judged right : for it is not an offence within the provifion of the ad ; it is parti- cularly within the equity of the exception of cooks Jhops. Therefore I think Baftetr. ni think the juftice had no jurifdiftiort to proceed upon the complaint. I think that no juftice of peace ought to be puniftied by an information,, for an error in judgment. But I think that the juftice was in the right in the prefent cafe. And therefore that the rule ought to be difcharged with (ofls. Per cur. Rule difcharged with cofts. BALLAST is fomething put at the bottom of a fhip to keep k fteady. John/. S>tat. 34 & 35 Hen. 8. cap. 9. \_A. D. 1542. intituled'] " An aft for H sr 3 -Hew, the prefervation of the river of Severn." 8 c. 9. Seel. 6. " And be it alfo enafted by the authority aforefaid, That no The penalty perfon or perfons, after the firft day of Auguft next coming, do caft or un- for caftmgof lade out of any manner of fhip, crayer, or any other veffel, being within baliaft, rub- any haven, road, channel, or river, flowing or running to any port-town, • * c - in |° or to any city, borough, or town within this realm, or any other the ^veri ""ad* king's dominions, any manner of ballad, rubbifh, gravel, or any other 01 river, wreck or filth, but only upon the land above the full fea mark ; (2) upon pain that every perfi.n and perfons offending this aft, to lofe and forfeit for every time fo offending 5 /. the one half to the king our fovereign lord, and the other half thereof to fuch perfon and perfons as will fue for the fame, by bill, plaint, original writ, or information, in any the king's courts of record, in which aftion or fuit, no wager of law fhall be admit- ted, nor any eflbin or proteftion allowed." S)ti1t« 19 Geo. 2. c. 22. \_A. D. 1746. intituled] " An aft for the better , g Geo. 2, prefervation of havens, roads, channels, and navigable rivers, within that c. 22. part of Great Britain called England." " Whereas mafters and owners of, and other perfons belonging to fhips, crayers, or other veflels coming into havens, ' ports, roads, channels, or navigable rivers, within that part of Great Britain called England, do caft, throw out, and unlade their baliaft, either on the fhore, or on the fide, and below the ufual full lea-mark, and frequently do other annoyances, to the detriment and obftruftion of navigation, and the offenders often go un- punifhed, for want of a further and more lpeedy method of bringing them to juftice: For remedy whereof, may it pieafe your majefty, that it may be enafted ; and be it enacted by the king's moft excellent majefty, by and with the advice and content of the lords fpiritual and temporal, and commons, in this prefent parliament afiembled, and by the authority of the fame, That if at any time, from and after the firft day of June one Mafters, &c. Vol. I. N° X. Hh thoufand tbrowin g° ut baliaft, &e. 234 Bauaft. thoufand feven hundred and forty-fix, any mafter or owner, or any per- fon acting as mafter of any fhip, pink, crayer, lighter, keil-boat, or other veffel whatfoever, fhall caft, throw out, or unlade; or if at any time, fhip°&c n m fr° m anc ^ after the day aforefaid, there fhall be caft, thrown out, or un- harbouri&c. laden from and out of any fhip, pink, crayer, lighter, keil-boat, or other veffel whatfoever, being or riding within any haven, port, road, channel, or navigable river, within thatpait of Great Britain called England, any ballaft, rubbilh, gravel, earth, ftone, wreck, or filth, but only upon the but upon dry land where the tide or water never flows or runs •, it fhall and may land only. be lawful for any one or more juftice or juftices of the peace for the Juiiii.es may county, city, town corporate, liberty, or place, where or near which irtue warrants, ^^ ff ence fhall be committed, upon information thereof, and he and they are hereby authorized and required, to fummon, or iffue out his or their warrant or warrants, to apprehend and bring before him or them the mafter or mafters, owner or owners of any fuch fhip, pink, crayer, lighter, keil-boat, or other veffel, or other perfon or perfons acting as fuch, aCTainft whom fuch complaint or information fhall be made or given ; d upon ar, d upon his, her, or their appearance or default, to proceed to examine proof, &c. the matter of fact, and upon due proof made (either by the confeftion of the party offending, or on view of fuch juftice or juftices, or upon the oath or oaths of one or more credible witnefs or witneffes, which oaths the laid juftices are hereby impowered and required to adminifter) that any ballaft, rubbilh, earth, gravel, ftone, wreck, or filth, had been caft, unladen, or thrown out of, or from any fhip, pink, crayer, lighter, keil- boat, or other veffel, the mafter or mafters, or perfon or perfons acting as mafter or mafters thereof, fhall be adjudged, and he and they are here- fine them not by refpectively declared to be the offenders againft this ad •, and he and more than 5I. they being by fuch juftice or juftices (or any of the ways and means afore- norlefsthan fc^ thereof convicted, fhall forfeit and pay for every fuch offence any 5 0S ' fum, not exceeding the fum of five pounds, nor under fifty fhillings, at the difcretion of fuch juftice or juftices, the one moiety thereof to the in- former, and the other moiety thereof to the overfeers of the poor of the parifh, town, or place wherein fuch conviction fhall be pronounced, for. the ufe of the poor there. Penalties how Se£t. 2. " And be it further enacted, That the penalties inflicted or in- recoverable, curred by this act, fhall be recovered and levied by diftrefs and fale either of the goods and chattels of the perfons fo convicted reflectively as afore- faid, or of the fhip, pink, crayer, lighter, keil-boat, or other veffel, or of their tackle, apparel, or furniture (by warrant or warrants under the hand and leal, or hands and feals of fuch juftice or juftices, and which he and they are hereby impowered and required, on fuch conviction as afore- faid to make, and to direct the fame to the conftables, or to the tything- man, or other proper officer of the parifh, town, or place where fuch war- rants are refpectively to be executed •, and which warrants the conftables and tythingmen, and officers aforefaid are hereby refpectively required to execute) together with the charges of fuch diftrefs and fale, rendering the overplus (if any be, after demand in writing) to the refpective owners . . . thereof; Z Bauaft. 2 35 t hereof •, and for want of fufficient diftrefs, the faid juftice or juftices are For want of hereby impowered and required to commit fuch matter or matters, d'ftrefs to be or perfon or perfons acting as fuch, and fo convi&ed as aforefaid, to the comm,ted - common gaol of the county, city, town corporate, or to the houfe of correction of the county where the offenders (hall be refpectively convi&ed as aforefaid, there to remain for the fpace of two months, or until pay- ment (hall be made of the penalties and forfeitures, or fo much thereof, as for the nonpayment of which fuch commitment (hall be. Sefl. 3. " And whereas it frequently happens, that (hips and veffels are Ship funk or run on (hore, funk, or ftranded in harbours, ports, channels, and navigable ftranded > &<• rivers, or are brought or drove into the fame in a ruinous or mattered condi- tion, and the owner, or fome other perfon having, or pretending to have the command or power of fuch (hip or vefTel, frequently (hip off or take away the rigging, tackle, and other valuable parts thereof, and permit the hulk to fink in the fand, in fuch harbours and places as aforefaid, and there to remain •, and great damages often happen thereby, not only by other fhipa and veflels (licking or running thereon, but by filling up the channel in fuch harbours and places, fo as to render the fame impracticable, or very difficult or dangerous for navigation, before the fame can be removed by any of the laws now in being : Now, for the more effectually remedying fuch mifchiefs for the future, Be it further enacted by the authority aforefaid, that as foon as any (hip or veffel (hall, after the faid firft day of June, be funk, ftranded, or run on (hore in any harbour, port, channel, or navigable ; n an harbour, river, or (hall be brought or drove in, or be there in a ruinous or (hattered and permitted condition as aforefaid, and permitted to remain there, and the owner, or ■» remain fome other perfon having, or pretending to have any property therein, or e * the command or power thereof, or any other perfon or perfons by their or any of their order, privity, or affent, (hall begin to take down, or carry away any of the rigging or tackle, or if there (hall not be any perfon to take care of the faid fnip or veffel, it fhall be lawful for any one or more juftice or juftices of the peace for the county or place where or near fuch juftices to fad, accident, or offence fhall happen, upon information thereof, and hefummonthe and they are hereby authorized and required, to fummon, or iffue out his own er, &c, or their warrant or warrants to apprehend and bring before him or them the owner, or other perfon having, or pretending to have the command or power over fuch (hip or veffel-, and upon his or their appearance, or de- fault, to proceed to examine the matter of fact, in manner and form afore- faid ; and in cafe, upon fuch examination, fuch juftice or juftices (ball find any owner, or other perfon having, or pretending to have the command or power over fuch (hip or veffel, or any of the perfons aforefaid, guilty of fuch offence as aforefaid, fuch juftice or juftices fhall, and he and they is and upon con- and are hereby required to iffue his and their warrant or warrants for feizing v >ftion, to if- and removing fuch (hip or veffel, and alfo the rigging or tackle thereof, in j« e vwrrants fuch manner as fuch juftice or juftices fhall order and direct •, and if the rem0 vin'cfthe owner, or fuch other perfon aforefaid, fhall not within five days give fhj p and lecurity, according to the approbation of fuch juftice or juflices, to clear tackle, the harbour, port, channel, or river of fuch veffel, and of all wreck, and and unlefs the H h 2 parts ° WT >" g»*'e 236 Ballaft. fecurky with- parts: belonging ro the fame, and pay the charges and expences of feizing, in ; days, removing, and difpofing of fuch (hip or veffel, tackle or furniture, then to to make fale caufe the hulk, rigging, or tackle to be fold, and with or out of the mo/iey ef the fame. ar jf ]ri g by fuch fale to pay the charges and expences of clearing the harbour or place where fuch Chip or veffel ihall lie •, and alfo the charges and ex- pences of feizing, removing, and felling fuch fhip, veffel, furniture, and tackle, rendering the overplus, if any be, to the owner or owners of fuch manor where the fame fhall happen." Jullices to ex- Se&. 4. " And be it further enacted by the authority aforefaid, That all ecute this aft an( j ever y t ] ie j u fti ces aforefaid may, and they are hereby reflectively nately. authorized and required to put this act in execution againft any perfon or perfons within their feveral jurisdictions, although fuch juftice or juftices fhall or may be rated or affeffed, or do, or fhall, or may actually pay for or towards the maintenance or relief of the poor of any parifh, town, or place, in which any conviction in purfuance of this act fhall be pronounced ; any law or ftatute to the contrary thereof notwithstanding." Conviaions to 5^ ^. " And be it alfo enacted that all convictions, to be pronounced be fina . ^ ( .j ie allt j lor j t y Q f t i lls a ft ? fhall be final to all intents and purpofes, not to be appealed from, or removed into any court of record at Wefiminfter" Diftrefs not to Seci. 6. " Provided always, and it is hereby further enacted, That none be fold till of the difiretTes to be at any time made by virtue of this act, or any part of after 5 days. f uc h diftreffes, fhall be fold till after the expiration of five days from the day of making fuch diftreffes reflectively ; but that it fhall and may be lawful to and for the perfons convicted in the mean while (to wit, at any time before the expiration of the faid five days) to redeem fuch diftrefs, by payment of the money for which the fame fhall have been made by virtue hereof, to and for the ufes and purpofes of this act, together with the cofts and charges of and for the making, feizing, and detaining fuch diftrefs. Limitation of SeR. 7. " Provided neverthelefs, that nothing in this act contained fhall the powers of extend, or be conftrued to extend, to take away, abridge, diminifh, or alter this adt. an y r ight, benefit, or lawful ufe, that the lord or lords, lady or ladies of any manor or manors adjoining to or bordering upon any haven, port, road, channel, or river, or that any other perfon or perfons whatfoever hath or have to fuch haven, port, channel, or river, or to the banks, fhores, or fides thereof, or any fifhery, manufactures, or royalties therein; nor extend to the calling out, unlading, or throwing out of any fhip, pink, crayer, lighter, keil-boat, or other veffel, any ftone, rocks, bricks, lime, or other materials, ufed, or to be ufed, in or towards the building, amending, repairing, and keeping in repair, any quay, pier, wharf, wear or bridge, or the banks or fides of any haven, port, road, channel, or navigable river within this realm •, but, on the contrary, this act fhall be conftrued and taken to prevent the mifchiefs to be done in, or to, or upon the faid havens, ports, roads, channels, or rivers, which may any ways tend to obftruct, prejudice, incommode, hinder, or do any annoyance in the faid havens, ports, roads, channels, or rivers, or prejudice the navigation therein, and not otherwife. Self. 2B*Uaft. 2 37 SeEi. 8. " Provided alfo, that nothing herein contained fhall extend to take away, abridge, diminifh. or limit any former or other jurifdiction, or right, or remedy, to punifh any nufance to be done or committed in any haven, port, road, channel, or navigable river. This was a fpecial verdict from Northumberland afllzes, upon an aftion Navigation of trefpafs for breaking and entering the plaintiffs (hip in the river Tyne, at ^trua'cd^ Newcaftk upon Tyne, and taking and carrying away an anchor — : to which carting rub- the defendant pleaded " Not guilty". The fpecial verdict finds that the bifh, or ur.ia- defendant was a juftice of the peace of and for the town and county of ding ballad, in Newcaftk upon Tyne ; and that the plaintiff was mafter of a (hip called the an >' " ave,is > Leeds-Merchant, floating, &c. in the river Tyne, being a navigable river : ne j s> ^ c bjt that 3 tons of ballaft and more were unloaded out of the faid (hip, into a only upon the machine or veffel called a hopper, in the faid river with intent that it fhould /W, where be carried therein, into the high and open feas ; And that it was accordingly ' tid ^ never carried out of the faid river into the high and open fea, and was there caft out & ' - of the faid hopper, where the water was more than 14 fathom deep, at a H en . 8. c 9. diftance from any port, haven, channel or navigable river. It finds that and 19 Geo. Thomas Field, before the time of the fuppofed trefpafs, viz. on fuch a day, 2C zz - ,n ? &c. came before the defendant being a juftice of peace, &c. and laid " in- " n n ° 2 , ng 1C formation of the facts of" putting the ballaft into the hopper with an intent Wit h intern to' that it Jhouldbe dropped out of the faid hopper into the water, and not be carry it oat to caft, lie. upon the land where the tide and water never flows or runs" contrary feai-anoffence to the ftatute. It finds that the plaintiff was fummoned to appear, and that a 8 a ' nftlhe ;**- he did appear before the faid juftice; and that proof was then and there ofthe latter' " made, by his confefllon, " That it was fo put on board the hopper, in the faid aft, which fays river, with intent that it fhould be therein carried out of the laid river into " That it ihall the high and open fea, and caft therein at the depth of 1 4 fathom and upwards, not be j* at the diftance from any haven, & c . (ut fupra) where the tide or water ^^ on ut never flows or runs." It is found that the defendant thereupon convitled the land;'' but plaintiff, and adjudged him to be an offender againft the ftatute of 19 G. 2. putting it into c. 22. Then it finds the conviction before the juftice, in h/ec verba ; and a no PP er > '"• that the then defendant (the now plaintiff) was adjudged to forfeit 2 /. 10s. on ? er t0 j ar " for the faid offence. It finds that the juftice of peace (the now defendant) would not be iffued his warrant under his hand and leal, to levy the fame by diftrefs, &c. fo, nor fhifting And that William Bruce a ferjeant at mace (to whom the warrant was jt out .of one directed,) by virtue of the faid warrant, took the faid anchor, tsV. (hip into This cafe was firft argued on Friday the 9th of June laft, by Mr. Winn j MeDt j |, ^ for the plaintiff; and Mr. ferjeant Fool for the defendants. Mr. H Inn — drop it any rehearfed the ftatute of 19 G. 2. c. 22. f. 1, 2. And faid that the fact found *vbert. 2 Bur. to have been proved, is no offence zvithin this acf : And confequently, the ^ e P' 6 5°- defendant was a trefpaffer in levying the penalty. Nothing is found to r - lc ' 32 „ nave been proved but a 'mere intention. I his is a penal law, and muft r. Brutkkf- be con\kx\.Kd ftriclly. 34, 35 H. 8. c. 9./ ult. gives the penalty for eating bank v. Smith. rubbifti into havens, roads, channels, &c. Then 19 G. 2. c. 2:. defcribes E( 4- the offence to be catting, throwing, out, or unlading any ballaft, rubbifh tsc. " but only upon the land, where the tide or water never flows or runs." And the preamble defcribes the mifchief to be " Calling, throwing out, and unlading their ballaft, either on the fhore, or on the fide, and below the ufual 23 8 Ballaft. ufual and full fea-mark, and doing other annoyances, to the detriment and fibftruflion of navigation. In the Thames, this method of difpofing of the fballaft is never treated as an offence: And that is under the care and in- ffpeftion of the Trinity- Houfe. The mifchief which the legiflature had in view, was throwing the ballaft, &c. either on the fhore, or on the fides of rivers, and below the full fea-mark. But this was in the open and high fea, above 1 4 fathom deep, at a diftance from any port, haven, channel, or river. He relied upon the intention and fpirit of this law, rather than upon the letter of it : which intention of the aft, he faid, would plainly appear from the provifo at the end of it, (V. feci, penult.) and that was in- tended folely to prevent prejudice to the navigation, in havens, ports, roads, channels or rivers, and for no other purpofe. But nothing is ftated here of any fort of prejudice actually done to the navigation, or even of any fuch intention to prejudice the navigation of the haven, port, road, channel or river. The ballaft was carried out of the river, into the high and open fea ; and there caft out, at above 1 4 fathom depth, and at a diftance from any port, haven, channel, or river. — And the intention only is laid accordingly. And the confeffion is of nothing more than fuch an intention. But there is neither proof nor confeffion of any fail whatfoever : Nor was any aclual injury done. Mr. ferjeant Pool contra, for the defendant — It was impoffible for us, in the nature of the thing, to prove " That the ballaft was actually dropped in the river :" For this is done privately from the bottom of the hopper. It was neceffary therefore for us to charge the intent as the offence. And this intent the defendant has confeffed. And the offence, as we have charged it, is within the a£t-, viz. " Putting the ballaft into the hopper, with intent, &c. This is a pofitive law, " That no perfon fhall caft, throw out, or difcharge out of, &c. any ballaft, &c. but only upon the land, where the tide or water never flows or runs." To which pofitive law the fact, charged is direclly contrary. The prelent act of 19 G. 2. was made to inforce and make more eafy the profecuting offences againft the former ftatute of 34, 35 H. 8. upon which it was difficult to prolecute the offender, in fome cafes. And here are proper exceptions, upon proper occafions : In all other refpecls it is a general law. It is faid indeed, on the part of the plaintiff, " That here is no actual prejudice done to the navigation." But what the plaintiff has done, may, by fome means or other prejudice the navigation of the river : It is in their power to drop the ballaft out of this hopper, in the channel of the river, without any polfibility ot being difcovered. And this ftatute is in negative words, viz. but only upon the land." Co. Lit. 115. affirms that there is a diverfity between an acl: of parliament in the negative, and one in the affirmative •, and ihews fuch diverfity. Therefore he prayed judgment for the defendant. Mr. Wtnn, in reply — This act ought to be conftrued Jlriilly ; as it is a reftraint of a common-law right which a man has to lay his ballaft where he pleaies •, provided he be not guilty of a nufance, in fo doing. And this is no offence againft the fpirit and intention of this law. Nothing is charo-. ed, but an intent. Which intent was not, even if it had been executed, a fubftantial offence againft this law. Lord Mansfield — This is agenera queflio/ Bauaft. 239 queftion, which goes further than this particular cafe. Mr. juftice Fojier afked if the corporation of Newcaftle were not confervators of the river Tyne. It was anfwered " That they were." Mr. juflice Fojier — Cor- porations ought to be protected in their juft and ancient rights. The court did not upon this firft argument, give any opinion : but it was ordered to ftand for a further argument. Ulterius concilium. And now, Mr. Clayton argued on behalf of the plaintiff, as before, " That this fact was found not an offence within the aft." Mr. Norton was going to anfwer him on the part of the defendant. But Lord Mansfield ftopped him, from entering into it at all; it being a very plain cafe, and clearly againft the exprefs prohibition of the aft: which provides that it (hall not be thrown but upon the land. Whereas this man fays that he has found a better way, than that which the aft has ex- pre/sly prcfcribed. But here is fuch an opening to fraud, in this way that he has thought a better one, that it would be dangerous to truft to this method, though it were not prohibited. However, it is enough, that it is contrary to the direil and exprefs provifion of the act. Indeed if it was put upon the hopper, in order merely to carry it upon the land ; that would only be the proper means of doing it, and therefore would not be an offence againft the act. But this is with intent to lay it in the water. And there can be no Security as to the place where the hopper may drop it. It is mighty eafy, from the conftruftion of the hopper, to drop it privately : and it is alio the intereft of the perfon who carries in the hop- per, to drop it as foon as he can ; that he may come the fooner again, to fetch more. The Sh if ting it out of one Ship into another, without in- tention to drop it any where, would not be a cafe within the act. : for that would not be a cafling or throwing out at all, within the meaning of the aft. The other three judges agreed, in terms, with lord Mansfield; and all of them fpoke explicitly to the fame effeft. Per cur. unanimously, judgment for the defendant. For regulating ballajlage and laftage in the riier Thames, fee 6 Geo. 2. c. 29. 1 1 Geo. 2. c. 12. 18 Geo. 2. c. 21. 32 Geo. 2. c. 16. See ftttWJJ* ^anKrupf. BANKRUPT is a trader, who fecrets himfelf, or does certain other afts, tending to defraud his creditors. 2 Black. Com. 285. The word itfelf is derived from the word bancus or banque, which Signifies the table or counter of a.tradefman (1 Du Frefne 969.) and ruptus, broken ; denoting thereby one whofe Ihop or place of trade is broken and gone ; though others rather choofe to adopt the word route, which in French Signifies a trace or. track, and tell us that, a bankrupt is one who hath re- moved 2 4 o JBattlmtpt. moved his banque, leaving but a trace behind. (4 Inft. 277.) And it is obfervable that the title or the firft Englifh ftatute concerning this offence, viz. 34 Hen. 8. c. 4. " againlt fuch perlbns as do make bankrupt," is a literal tranflation of the French idiom, qui font banque route. 2 Black. Com. 472. Cowell. The granting commiffions of bankruptcy feems to be derived from the civil lav/, which constituted a guardian to a prodigal in the fame manner as to a madman ; and fuch guardian the pretor appointed on the petition or application of relations as well as creditors •, but the feudal law, though it admitted of commiffions of lunacy ex neceffitatc, would allow of none for prodigality, which was not reckoned injurious ; becaufe fuch prodigal could not alien his lands without leave of the lord •, and the condition of a freeman was not to be altered without the crime of felony : but as trade and commerce increafed, it was found neceffary for the fupport of credit, to introduce fuch a law amongft us, and therefore our acts of parliament have confined it to traders and creditors only. 1 Bac. Abr. 246. Lege duodecim tahdarum prcdigo interdicitttr bonorum fuorum adminifiratio ; quod moribus quidem ab initio introduclum eft. Sed folent hodie pratores, vel pr without benefit of clergy," ' G <-o. z.c 42. ©tat* 27 Geo. i.e. 15. [J.D. 1754. Intituled] « An aft to explain and amend an aft made in the ninth year of the reign of his late majefty kin^ George the firft, intituled, An aft for the more effectual punifhin^ wicked and evil-dilpofed perfons going armed and difguifed, and doin^ injuries ' and violences to the perfons and properties of his majefty's fubjefts ; and for the fpeedy bringing the offenders to juftice." ** Whereas by an aft made in the ninth year of the reio-n of his late 9 Geo. 1. c. majefty king George the firft, intituled, An aft for the more efTeftual pu- 2 " niftiing wicked and evil-difpofed perfons going armed and difguifed, and doing injuries and violences to the perfons and properties of h?s majefty's fubjefts; and for the fpeedy bringing the offenders to juftice; it is amonoft other things enafted, That if any perfon or perfons, from and 'after the firft of June in the year of our lord one thoufand feven hundred and twenty- three, fhall knowingly fend any letter without any name fubferibed thereto or figned with a fictitious name, demanding money, venifon or other valuJ Vol. I. N°. XV. Z ?. ab j e 354 JBiaclt*3to. able thing, or fhall forcibly refcue any p?rfon being lawfully in cuftody of any officer or other perfon, for any of the offences in the faid aft menti- oned, every perfon lb offending, being thereof lawfully convicted, fhall be adjudged guilty of felony, and fhall fuffer death as in cafes of felony with- out benefit of clergy : And whereas divers letters have been fent to feveral of his majefty's fubjefts, threatening their lives or burning their houfes, which letters not demanding money, venifon or any valuable effefts, are not fubjeft to the penalties of the faid aft : To prevent the like mifchiev- ous and iniquitous proceedings for the future, Be it enafted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, Perfons con- anc j by tne authority of the fame, That if any perfon or perfons, from and f'nd^n ° a ^ cer tne firft d av °f May one thoufand feven hundred and fifty -four, (hall threatening knowingly fend any letter without any name fubicribed thereto, or figned or incendiary with afictitious name or names, letter or letters, threatening to kill ormurder letters, an y f his majefty's fubjeft or fubjefts, or to burn their houfes, out-houfes, : barns, ftacks of corn or grain, hay or ftraw, though no money or venifon or of refcuine or otr >er valuable thing fhall be demanded in or by fuch letter or letters •, or perfons in cu" fhall forcibly refcue any perfon being lawfully in cuftody of any officer or itody for fuch other perfon for the faid offence •, every perfon fo offending, being thereof f'fr™^' C< h l aw f u lly convifted,. fhall be adjudged guilty of felony, and fhall fuffer er eat ' death as in cafes of felony without benefit of clergy." Mu\ leak STAT. 25 Geo. 2. c. 10. [A. D. J752. 'Intituled] " An aft for the more effeftual fecuring mines of black lead from theft and robbery." " Whereas by experience it hath been found,, that wad or black cawke,. commonly called black lead, is and hath been neceflary for divers ufeful purpofes, and more particularly in the cafting bomb fhells, round fhot, and cannon balls •, and that fuch wad, black cawke, or black lead, hath hi- therto been difcovered in one mountain, or ridge of hills only in this realm •, and that great wafte and deftruftion therein, hath of late years been made by wicked and evil-difpofed perfons, who, by reafon of the fituation of the mine or mines, wad-hole or wad-holes of the faid wad, black cawke or black lead, and of the great difficulty to fecure and preferve the fame from being unlawfully broke, or by force enter- ed into ; and alfo by reafon of the fmall punifhment by the laws now in being, annexed to offences of the like kind, have been encou- raged unlawfully to enter, and by force to keep poffefTion of the fame ; and from thence unlawfully to take and carry away great quantities of the faid wad, black cawke or black lead ; for the more effeftual fecurity of all and iBiacft mean. 355 and every mine or mines, wad-hole or wad-holes of wad or black cawke, commonly called black lead ; and for preventing the unlawful breaking -and entering into the lame ; or the unlawful taking and carrying away from -fuch mine or mines, wad-hole or wad-holes, any wad, black cawke or black lead ; and for punifhing fuch offenders in a more exemplary manner, than by the laws in being can now be done ; May it therefore pleafe your moft excellent majeity, that it may be enacted ; and be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, inthis prefent parliament affem- bled, and by the authority of the fame, That all and every perfon or perfons that mall, from and after the twenty-fourth day of June which fhall be in Tne entering the year of our lord one thoufand feven hundred and fifty-two, unlaw- a P y . m j n " ot fully break, or by force enter into any mine or mines, wad-hole or wad- wi;ll ^ ten ' t t0 holes of wad or black cawke, commonly called black lead, or into any ileal, pit, fhaft, adit or vein of wad, black cawke or black lead, with an intent to take and carry away from thence any wad, black cawke or black lead ; or fhall unlawfully from thence take and carry away any wad, black cawke or black lead, although fuch mine or mines, wad-hole or wad-holes, pit, {haft, adit or vein, be not actually broke, or by force entered into by fuch offender or offenders •, or fhall aid, abet, afiift, hire or command any per- fon or perfons to commit fuch offence or offences as aforefaid; that then °^ e - a s (-1/-111 ~ir r f% niring per- and in every fuch caie, all and every luch perfon or perlons (hall be deem- f ns to do fo, ed and conftrued to be guilty of felony •, and it fhall and may be lawful for deemed the court, or judge, before whom any fuch perfon or perfons fo offending felon y; as aforefaid, fhall be lawfully convicted, to order fuch offender or offen- ders to be committed to the prifon or gaol of the faid county, appointed and the offen for criminals, or to fome houfe of correction within the fame county, for aderstobecom- time not exceeding one year* there to be kept to hard labour during all muted f or a -the faid time, and to.be publickly whipt by the common hangman, or byy. ear,and P ub - the mafter of fuch houfe of correction, at fuch times, and at fuch places, y whl P t; and in fuch manner, as fuch court or judge fhall think proper; or it fhall and may be lawful to and for fuch court or judge, or for any other or t0 ^ e tranf * fubfequent court held at the fame place, with the like authority as the for- ^". or 7 mer, to order fuch offender or offenders to be tranfported to fome of his inajefty's plantations beyond the feas, for a term not exceeding feven years, as fuch court or judge fhall think moft proper •, and thereupon judgment fhall be given, that the perfon or perfons fo convicted fhall be committed and whipt, or trarfported accordingly ; and if tranfportation fhall be di- rected, the fame fhall be executed in fuch manner, as is or fhall be pro- vided by law for the tranfportation of felons •, and if any fuch perfon or per- fons fo committed or tranfported, fhall voluntarily efcape or break prifon, j)" ca * ( or return from tranfportation before the expiration of the time for which prifon, or re- he, fhe or they fhall be ordered to be tranfported, as aforefaid, fuch per- turn from fon or perfons being thereof lawfully convicted, fhall fuffer death as a fe- tranfportation. Ion, without benefit of clergy, and fhall be tried for fuch felony in the t0 fufFer death * county where he, fhe or they fo efcaped, or where he, fhe or they fhall be apprehended. Z z 2 Setl. 356 BiacfcHeaD. and a certifi- &?J7. 2. " And be it further enacted by the authority aforefaid, That if cjteof the for- any perfon fhall be convicted or attainted of any of the offences aforefaid, mer convic- and fhall voluntarily efcape, break prifon or return from tranfportation as tion deemed aforefaid, and (hall be apprehended in any other county or city different thereof" 1 " 00 ^ rom tna£ wnerem tne f a *d offence was committed, the clerk of the affize, or clerk of the peace for the county or city where fuch conviction or at- tainder for the faid offence or offences was had, (hall, at the requeft of the profecutor, or of any other on his majefty's behalf, certify the fame by a tranfcript in few words, containing the effect and tenor of fuch con- viction or attainder, for which certificate two fhillings and fix pence, and no more fhall be paid ; and fuch certificate being produced in court fhall be fufficient proof of fuch former conviction or attainder. Receivers of Sett. 3. " And be it further enacted by the authority aforefaid, That Jead, knowing all and every perfon orperfons, who fhall, from and after the faid twenty- fuch to be fto- fourth day of June one thoufand feven hundred and fifty-two, buy or re- fdony J ' ^ ° ce ' ve an y wa d or black cawke, commonly called Black Lead, knowing the fame to be fo unlawfully taken and carried away as aforefaid, fhall be deemed and conftrued to be guilty of felony, and being convicted thereof, fhall be fubject and liable to all the pains and penalties, which any per- fon or perfons can or may by the laws and ftatutes of this realm be fub- ject and liable to, for buying or receiving any goods or chattels that have been felonioufiy taken or ftolen, knowing the lame to have been ftolen.' 1. BLASPHEMY (from the Greek B>i*Vrw, laedo, and ?»>», fama) is art injury to God, by denying that which is due and belonging to him, or attributing to him what is not agreeable to his nature. Lindw. prov. Conft. c . 1 . Profanenefs is irreverence of what is facred. Johnf. All blafphemies againft God, as denying his being or providence ; all profane fcoffing at the holy fcripture, or expofing any part thereof to contempt or ridicule •, impoftures in religion, as falfly pretending to ex- traordinary commiffions from God, and terrifying or abufing the people with falfe denunciations of judgment, &c. All open lewdnefs grofly fcan- dalous, fuch as was that of thole perfons who expofed themfelves naked to the people in a balcony in Covent-Garden with mod: abominable circum- ftances ; offences of this nature, becaufe they tend to fubvert all religion or morality, which are the foundation of government, are punifhable by the temporal judges with fine and imprifonment, and alio fuch corporal infamous puniihment as to the court in difcretion fhall feem meet, accord- ing to the heinoufnefs of the crime. 1 Hawk. P. C. 6, 7. Seditious words in derogation of the eftablifhed religion are indictable, as tending to a breach of the peace i as thele, your religion is a new reli- gion, Blafptyemp ana $jofanetufs. zsi gion, and preaching is but prattling, and prayer once a day is more edi- fying, i Hawk. P. C. 7. €>tdt. 3 7^. 1. c 21. [y/. Z>. 1605. intituled] " An aft to reftrain the abufes of players," " For the preventing and avoiding of the great abufe of the holy name The penalty of God, in ftage-plays, interludes, May-games, (hews, and fuch like ; ° { P la yen oa (2) Be it enacted by our fovereign lord the king's majefty, and by the p ^fandv'a- lords fpiritual and temporal, and the commons, in this prefent parliament bufing the affembled, and by the authority of the fame, That if at any time or times name of God. after the end of this prefent leffion of parliament, any perfon or perfons do or (hall, in any ftage-play, interlude, (hew, May-game or pageant, jeftingly or prophanely ipeak or ufe the holy name -of God, or of Chrilt Jefus, or of the Holy Ghoft, or of the Trinity, which are not to be Spo- ken but with fear and reverence, (hall forfeit for every fuch offence by him or them committed, ten pounds : (3) The one moiety thereof to the king's majefty, his heirs and fucceffors, the other moiety thereof to him or them that will fue for the fame in sny court of record at Weftminfier, wherein no effoin, protection or wager of law ihall be allowed." By the toleration aft, 1 Will. & M. feJJ' i.e. 18. feci. 17. No perfon (hall have any benefit of that aft, who (hall deny in his preaching or wri- ting, the doctrine of the Bleffed Trinity, as it is let forth in the thirty- nine articles. %tdt 9 & 10 Will. c. 32. [A. D. 1698. intituled] " An aft for the more effectual fuppreffing of blafphemy and profanenefs." " Whereas many perfons have of late years openly avowed and publiihed many blafphemous and impious opinions, contrary to the doctrines and prin- ciples of the chriftian religion, greatly tending to the dilhonour of Almighty God, and may prove deftruftive co the peace and welfare of this kingdom : Wherefore, for the more effectual fuppreffing of the (aid deteftable crimes, Be it enacted by the king's moil excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and the commons, in this prefent parliament affembled, and by the authority of the fame, That if any perfon or perfons, having been educated in, or at any time having madepro- feffion of, the chriftian religion within this realm, (hall, by writing, printing, Perfons deny." teaching, or advifed fpeaking, deny any one of the perfons of the Holy ingtheTrini- Trinity to be God, or (hall aifert or maintain there are more Gods than V*'**™**^ one, or (hall deny the chriftian religion to be true, or the holy fcriptures Go^s'than of the Old and New Teftament to be of divine authority, and (hall upon one, or deny- indiftment or information in any of his majefty's courts at IVeflmi-fter, ing the ehtif- or at the affizes, be thereof lawfully convifted by the oath of two or mdre ' un reli 8 , ' ont <» credible witneffes, fuch perfon or perfons for the firft ofence (hall be ad- , ° e Uu "' . judged incapable and difabled in law, to all intents and purpofes whatib- te «i thereof ever, to have or enjoy any office or offices, employment or employments, difabled to ecclefiaftical, civil, or military, or any part in them, or any profit or ad- ho,d an y of - 1 ' vantage fice '^'-- Further difa- vantage appertaining to them, or any of them : And if any perfon or per- bilitiei if afe- fons lb convicted, as aforefaid, fhall at the time of his or their con- c,nd ' 1I " econ " viclion enjoy or poflefs any office, place or employment, fuch office, Vi £0 :,'place or employment, ffiall be void, and is hereby declared void: And if fuch perfon or perlbns fhall be a fecond time lawfully convicted, as aforelaid, of all or any the aforefaid crime or crimes, that then he or they fhall from thenceforth be difabled to fue, profecute, plead, or ufe any action or information in any court of law or equity, or to be guardian of any child, or executor or adminiftrator of any perfon, or capable of any le- gacy or deed of gift, or to bear any office, civil or military, or benefice ecclefiaftical for ever within this realm, and fhall alfo fuffer imprifonment for the fpace of three years, without bail or mainprize, from the time of fuch conviction. No profccu- S g H- 2 - " Provided always, and be it enacted by the authority afore - ttion unlefs in- faid, That no perfon fhall be proiecuted by virtue of this act, for any formation bz words fpoken, unlefs the information of fuch words fhall be given upon given m four oatn b e f ore one or more juftice orjuftices of the peace, within four days wonbfooken ar * ter ^ nc ^ worc ^ s fpoken, and the profecution of fuch offence be within tzc. ' ' three months after fuch information, Perfon for the Sett. 3. " Provided alfo, and be it enacted by the authority aforefaid, firtt offence, That any perfon or perfons, convicted of all or any of the aforefaid crime (on renoun- or crimes, in manner aforefaid, fhall for the firfl: offence (upon his, her cing his opi- Qr t j ie j r ac i cn owledgment and renunciation of fuch offence or erroneous months after opinions, in the fame court where fuch perfon or perfons was or were convidion) convicted, as aforefaid, within the fpace of four months, after his, her fhall be dif- or their conviction) be difcharged from all penalties and difabilities incur- charged from rec j j^y f ucn conviction ; any tiling in this act contained to the contrary penalty, tif f . thereof - any wifc notw i t hftanding, B z2 Geo. 2. By flat. 22 Geo. 2. c. 33. art. 2. All perfons in or belonging to his ma- c. 33. jetty's fhips or veffels of war, being guilty of profane oaths, curfings, execrations, drunkennefs, uncleanneis, or other fcandalous actions, in de- rogation of God's honour, and corruption of good manners, fhall incur fuch punifhment as a court martial fhall think fit to impofe. ehriftianity is He was convicted on four informations for his blafphemous difcourfes part of the on the miracles of our Saviour : and attempting to move in arreft of law. Strange judgment, the court declared they would not fuffer it to be debated, whe- 834. Ealt. tner tQ wr j te a gainft ehriftianity in general was not an offence punifhable in Rex v ' Wool- tne temporal courts at common law ; it having been fettled fo to be in lion. ' Taylor's cafe in 1 Vent. 293. 3 Keb. 607, 621. and in the cafe of the King v. Hall, (S trait. 416.) They defired it might be taken notice of, that they laid their ftrefs upon the word general, and did not intend to in- clude difputes between learned men upon particular controverted points. The next term he was brought up, and fined 25/. for each of his. four difcourfes, to fuffer a year's imprifonment, and to enter into a recogni- zance for his good behaviour during his life, himfelf in 3000/. and 2000/. by others. Information TBUfyfytmv artn $uofanencte. 359 Information exhibited by the attorney general againft the defendanFAn obfcene Edmund Curl, for that he exiflens homo iniquus el feeler at us ac nequiter book is pu- machinans et intendens bonos mores fubditorum hujus regni corrumpere, et eos n,(ll ' b ' e ad nequitiam indueere quendam turpem iniquum et obfeaenum libellum i-ititulai' a ": r q re j;__ Venus in the eloifter, or the Nun in her fmock, impie et nequiter imprejft et g, n and mo* publicavit, ac imprimiet publicari caufavit, (letting out the feveral lewd rality. Stra. p.ffages,.) in malum exemplum, &c. And of this the defendant was found 7 88 Mich - guilty. And in 'Trinity term laft it was moved in arreft of judgment by R ^ ' t ' ur ; Mr. Marjh, that however the defendant may be punifhable for this in the fpiritual court as an offence contra bonos mores, yet it can't be a libel for which he is punifhable in the temporal court. Libellus is a diminutive of the word liber, and. 'tis libellus from it's being a book, and not from the matter of its contents. In the cafe de libellis famojis, my lord Coke fays, that it muff be againft the public, or fome private perfon, to be a libel-, and I don't remember ever to have heard this opinion contradicted. Whatever tends to corrupt the morals of the people, ought to be cen r . fured in the fpiritual court, to which properly all fuch caufes belong : what their proceedings are I am a Arranger to ; but for me 'tis fufficient to fay, I don't find any cafe wherein they were, ever prohibited in fuch a. caufe-.. In the reign of king Charles the fecond there was a filthy run of obfcene writings, for which we meet with no profecution in the temporal courts -, and fince thefe were things not fit to go unpunifhed, it is to be fuppofed that my lords the bifhops animadverted upon them in their courts. In the cafe of The Queen- v. Read, 6 Ann. in B. R. there was an information for a libel in writing an obfcene book called The fifteen Plagues of a Maidenhead, and after conviction it was moved in> arreft of judgment, that this was not punifhable in the temporal courts •,. and the opinion of . chief juftice Holt was fo ftrong with the objection, that the profecutor never thought fit to ftir it again. Mr. attorney general contra : I do not obferve it is pretended there is any other way of punifhing the defendant : for if the fpiritual court had done it,, inflances might be given -, and it is no argument to fay we meet with no prohibitions ; fuch a, way, of arguing would conftrue them into all. forts of jurifdictions. What 1 infill upon is, that this is an offence at common law, as it tends to corrupt the morals of the king's fubjects, and is againft the peace of the king. Peace includes good order and government, and that peace may be broken in many inftances without an actual force, r. If it be an act againft the conftitution or civil government; 2. If it be againft religion , and 3. If againft morality. » 1. Under the firft head fall all the cafes of feditious words or writings. 2 Roll. Abr. 78. pi. 2. 1 Vent. 324. 3 Keb. 841. and the cafe of The Queen v. Bedford, Mich. 12 Ann. whofe treatife of hereditary right was held to be a libel, though it contained no reflection upon any part of the then government. 2. It is a libel if it reflects upon religion, that great bafis of civil go- vernment and fociety •, and it may be both a fpiritual and temporal offence. a Gro, 360 Biafpljcmy ana $;tofancncfc. Cro. Jac. 4.21. 2 i2c//. v#r. 78. pi. 2. 1 #e»f. 293. 3 )&£. 607, 621.' In Tremayne's Entries 226. there is a fentence to have a paper fixed over the defendant's head, intimating that he had uttered blafphemous words tending to the fubverfion of government. There is one Hall now in cuf- tody on a conviction as for a libel, intitled Afober Reply to the Merry Ar- guments about the Trinity, and Pafch. 10 Ann. Regina v. Clendon, there was a fpecial verdict on a libel about the Trinity, and it was not made a doubt of in that cafe. 3. As to morality. Deftroying that, is deftroying the peace of the go- vernment, for government is no more than public order, which is mo- rality. My lord chief juftice Hale ufed to fay, chriftianity is part of the law, and why not morality too ? I do not infift that every immoral act is indictable, fuch as telling a lie, or the like-, but if it is deftructive of morality in general, if it does, or may, affect all the king's fubjects, it then is an offence of a public nature. And upon this diftinction it is, that particular a£ts of fornication are not punifhable in the tem- poral courts, and bawdy- houfes are. In Sir Charles Sedley's cafe it was laid, that this court is the cuftos morum of the king's fubjects. 1 Sid. 16S. And upon this foundation there have been many profecutions againft the players for obfcene plays, tho' they have had intereft enough to get the proceedings flayed before judgment. Tremayne's Entries 209, 213, 214, 215. 3d Vol. State Trials, lord Grey's cafe. Mich. 10 W. 3. Rex v. Hill, the defendant was indicted for printing fome obfcene poems of my lord Roehejler's, tending to the corruption of youth •, upon which he went abroad, and was outlawed ; which he would not have done if his counfel had thought it no libel. The fpiritual courts punifh only perfbnal fpiritual defamation by words ; if it is reduced to writing, it is a temporal offence. Salk. 552. Mo. 62 7. and it is punifhable as a libel. My lord Coke in the cafe de UbMlis famojis had nothing in view but fcandalous defamatory libels. Libellus is not al- ways to be taken as a technical word •, in this cafe it may (land as an ob- fcene little book. And as to the cafe of Read, there was no judgment, but it went off upon the chief juftice's faying, Why don't you go to the fpiritual court ; which was giving a falfe reafon for that fudden opinion, now it appears there is no inftance of the fpiritual court's intermeddling, where it is reduced to writing or in print. ; Chief juftice : I think this a cafe of very great confequence, though if it was not for the cafe of The Queen v. Read, I fhould make no great diffi- culty of it. Certainly the fpiritual court has nothing to do with it, if in writing : and if it reflects on religion, virtue, or morality, if it tends to difturb the civil order of fociety, I think it is a temporal offence. I do not think libellus is always to be taken as a technical word. Would not trover lie de quodam libello intitulat' the New Teftament, and does not the fpiritual court proceed upon a libel ? Forte/cue J. I own this is a great offence, but I know of no law, by which we can punifh it. Common law is common ufage, and where there is no Jaw there can be no tranfgreffion. At common law drunkennefs, or cur- ling J6lafpljctnp ants $;ofanenef& 361 fing and fwearing, were nor punifliable ; and yet I do not find the fpiritual court took notice of them. This is but a general folicitation of chaftity, and not indictable. Lady Purkeck's cafe was for procuring men and wo- men to meet at her houfe, and held not indictable, unlefs there had been particular facts to make it a bawdy-houfe. To make it indictable there 4hould be a breach of the peace, or fomething tending to it, of which there is nothing in this cafe. A libel is a technical word at common law, and I mult own the cafe of The Queen v. Read flicks with me, for there was a rule to arreft the judgment niji. And in Sir Charles 5 edley's cafe there was a force in throwing out bottles upon peoples heads. Reynolds J. It is much to be lamented if this is not punifliable : I agree there may be many inftances, where acts of immorality are of fpiritual cognizance only ; but then thofe are particular acts, where the profecution is pro falute animae of the offender, and not where they are of a general immral tendency : which I take to be a reafonable diftinction. Read's cafe is indeed a cafe in point. But I confefs I fhould not have been of that opinion. Libcllus does not ex vi termini import defamation, but is to be governed by the epithet which is added to it. This is furely worfe than Sir Charles Sedley's cafe, who only expofed himfelf to the people then prefent, who might choofe whether they would look upon him or not ; whereas this book goes all over the kingdom. Drunkennefs and fwearing were punifliable in the fpiritual court before the acts which made them temporal offences, and in which the jurifdiction of the fpiritual court is faved. Probyn J. inclined this to be punifliable at common law, as an offence - againft the peace, in tending to weaken the bonds of civil fociety, virtue, and morality. But it being a cafe of great confequence, it was ordered to ftand over for a further argument. And this term Page J. being come into the King's Bench in the room of juftice Fortefiue, it was to have been fpoke to by Mr. folicitor general and myfelf. But Curl not having attended me in time, I acquainted the £ourt I was not prepared : and my want of being ready proceeding from his own neglect, they refufed to indulge him to the next term. And in two or three days, they gave it as their unanimous opinion, that this was a temporal offence. They faid it was plain the force ufed in Sedley's cafe was but a fmall ingredient in the judgment of the court, who fined him 2000/. And if the force was all they went upon, there was no occafion to talk of the court's being cenfor morum of the king's fubjects. They faid if Read's cafe was to be adjudged, they fhould rule itotherwife: and therefore in this cafe they gave judgment for the king. And the defen- dant was afterwards fet in the pillory, as he well deferved. In the year 1656, James Nayler, for perfonaring our Saviour and fuffer- 1 State Tn'«, jng his followers to worfhip him, and pay him divine honours, was fen- 8 ° 2 - tenced to be fet in the pillory, and to have his tongue bored through with a red hot iron, and to be whipped, and ftigmatized in the forehead with the letter B, See g>U)Cfll'iHlJ* Vou I. N p XVI. 3 A Ti300&#. 362 STAT. 7 Ann. c. 14. [A. D. 1708. intituled] " An act for the better prefervation of parochial libraries in that part of Great Britain called England." Sell. 10. " And it is further enacted and declared by the authority aforefaid, that in cafe any book or books be taken or otherwife loft out of the faid library, it fliall and may be lawful to or for any juftice of peace within the county, riding, or divifion, to grant his warrant to fearch for the fame, and in cafe the fame be found, fuch book or books fo found fhall immediately, by order of fuch juftice, be reftored to the faid li- brary •, any law, ftatute, or ufage to the contrary in any wife notwith- ftanding." 4Sjea&. S TATUTE 31 Geo. i.e. 29. [A. D. 1757- intituled] " An act for the due making of bread ; and to regulate the price and affize there- of ; and to punifh perfons who fhall adulterate meal, flour or bread." Preamble, re- Whereas by an act of parliament made in the one and fiftieth year of citing.aft the reign of king Henry the third, intituled, Ajjifa Panis cj? cervijite, 51 Hen. 3. provifion was made, amongft other things, for fettling the affize of and 8 Ann. bread: And whereas by an aft of parliament made in the eighth year of the reign of her late majefty queen Ann, intituled, An aft to regulate the price and ajfize of bread, fo much of the faid aft (intituled, AJfifa Panis & cer- vijite) as related to the affize of bread, was repealed, annulled, and made void ; and the faid aft made in the faid eighth year of the reign of her faid late majefty queen Ann, was only made to continue in force for three years, and from thence to the end of the then next feffion of parliament, but by fome fubfequent afts of parliament, the faid in part recited aft made in the faid eighth year of her laid majefty queen Ann, with feveral alterations and amendments thereto, hath been continued until the twenty-fourth day of "June one thoufand feven hundred and fifty-feven, and from thence to the end of the then next feffion of parliament : And whereas it is expedient to reduce into one aft the feveral laws now in force relating to the due ma- king, and to the price and affize of bread, and to make fome alterations in, and amendments to, the fame ; Be it therefore enafted by the king's meft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prelent parliament afleaibled, and by The recited tne authority of the fame, That the faid aft made in the faid eighth year of aft of 8 Ann. the reign of her faid late majefty queen Ann, and all alterations and amerxl- aud other afts 4 meats ments made by any acts of parliament fubfequent thereto, for continuing, fubfequenr, explaining, or amending the fame, is and are hereby further continued from and relating the expiration thereof, until the twenty-ninth day of September one thou- there '°> con - fand feven hundred and fifty-eight ; and that from and after the laid twenty- Se t< ° 8 Z ? ninth day of September one thouland feven hundred and fifty-eight, fo much f . om . . ' of the laid ftatute*(intituled, Jjjifa Partis id cervifue) as relates to the alfize t ; me f ' mucn , of bread, and which would otherwife be revived, when the faid recited act of the aft of made in the faid eighth year of her faid late majefty queen Ann, {hall expire-, 5 ' Hen - 3- as and alfo the faid act of parliament made in the faid eighth year of the reign j^",-^* of her faid late majefty queen Ann., and all the alterations and amendments , made by any acts of parliament fubfequent thereto, for continuing, ex- a "j ^ er a ^" s * plaining, or amending the fame, fhall be and are hereby repealed, annulled, continuing, cr and made void. amending, the Sett. 2. " And, to the intent that from and after the fa'id twenty-ninth day fanie ' are re - of September, a plain and conftant rule and method may be duly obferved and pea ' e ' kept in the making and allizing of the feveral forts of bread which fhall be made for fale in any place or places where an affize of bread fhall at any time be thought proper to be fet in purfuance of this aft ; Be it further enacted by the authority aforefaid, That from and after the faid twenty- ninth day of September it fhall be lawful for the court, or perfon or perfons General or«i;- herein after authorized by this act to fet the affize of bread, to fet, afcertain, nance fcr fet " and appoint, in any place or places within their refpecYivejurifdictions, the ^1*" * £ e affize and weight of all forts of bread, which fhall, in any fuch place or bread, places, be made for fale, or expofed to fale, and the price to be paid for the fame reflectively, when, and as often, from time to time, as any fuch court, or perfon or perfons as aforefaid, fhall think proper; and that in every affize of bread which fhall be fet in purfuance of this act, refpedt fhall, from Affize tobe re< time to time, be had by the court, perfon or perfons as aforefaid, who fhall guiated by the fet the fame, to the price which the grain, meal, or flour, whereof fuch pnce the grain, bread fhall be made, fhall bear in the publick market or markets, in or near meaI ° r flour the place or places for which any fuch affize fhall be fo at any time fet •, and ? In ? making, from time to time, reafonable allowance to the makers of bread trie pro fi t t0 be for fale, where any fuch affize fhall be fo fet for their charges, labour, pains, allowed to the livelihood, and profit, as fuch court, or perfon or perfons as aforefaid re- baker, fpectively, who fhall at any time think fit to fet any fuch affize, fhall, from time to time, deem proper. Se5t. 3. " And be it further enacted by the authority aforefaid, that from \Vhere3nal"- and after the faid twenty ninth day of September, where an affize of bread fizefhall be fet, fhall at any time be thought proper to be fet for any place or places by "° r ° rt of virtue of this act, no perfon or perfons fhall there make for fale, or fell, /^" eaten an( j or expofe to or for fale, any fort of bread, except wheaten and houfhold, houfehold ex- otherwife brown bread, and fuch other fort or forts of bread, as in fuch cepted) other place orjplaces fhall be publickly allowed to be made or fold, by the court, or than what is perfon or perfons, who by this aft are authorized to fet an affize of bread tnereb >' a ' !ow - for any fuch place or places •, but where it hath been ufual to make bread ma deforfale ; with the meal or flour of rye, barley oats, beans, or peafe, or with the meal or flour of any fuch different forts of grain mixed together, or the 3 A 2 court, court, or perfon or perfons impowered to fet an affize of bread by virtue of this act, ihall at any time think fit to order or allow in any place or places within the limits of their refpedtive jurifdictions, bread to be made with rye, barley, oats, beans or peale, or with the flour or meal thereof,. or with the meal or flour of any fuch different forts of grain mixed together, fuch bread ihall and may be there made and fold ; and if any perfon (hall under penalty offend in the premiffes, and ihall be convicted of any fuch offence, either of forfeiting Dv his, her, or their own confeffion, or by the oath of one or more credible not excee in § w i tne [" s or witnefTes, before any magiftrate or magiftrates,juftice orjuftices than 2os. °f the peace, within the limits of his or their jurifdidtion, every one fo offending fliall, on every fuch conviction, forfeit and pay any fum not exceeding forty ihillings, rior lefs than twenty (hillings, as any fuch magif- trate or magiftrates, juffice orjuftices, fhall think fit and order. AiBze and Sell. 4. And be it alfo enacted by the authority aforefaid, That from and price of bread after the faid twenty-ninth day of September, in every place and places for to be fet ac which an affize of bread fhall at any time be thought proper to be fet by cording to the v j mie f this act, the affize and weight of the feveral forts of bread which: tables matk'd fhaff be there made for fale, or fold, or expofed to or for fale, and the price N° I. and to be paid for the fame refpectively, fhall be fet and afcertained according N.° lh to the tables hereafter following, marked N° I. and II. No I. A TABLE. JBM&> 3 6 5 N° I. ATABLE of the AiTize and Pi ice of bread made of Wheat, in Two Parts. Part the Firft, or The-Affize Table, Contains, in column N° I. the price of the bufhel of wheat Wincbefier meafure, from 2 s. od. to 14 s. 6d. the bufhel, the allowance of the magiftrates or juftices to the baker, for baking, being included ; and in column N Q II. are the weights of the feveral loaves : fo that for ex ample) if the price of wheat in the market is 5 s. the bufhel, and the magiftrates allow 1 s. 6 d.the bufhel to the baker for baking, find 6 s. 6. d. in column N° I. and even therewith, under N° IT. will be found the weights of the feveral loaves •, but if the price in the market is 3 s. and the allowance 1 s. then the weight of- the laid loaves will be found even with 4 s. Note, That the wheaten loaves are three-fourths of the weight of the houfehold loaves •, and if the magiftrates or juftices fhall think fit to allow of any white loaves of the price of one penny or two pence, they are to weigh at all times three-fourths of the weight of the wheaten loaves of the fame price. Part the Second, or, The Price Table,' Contains, in column N*° II. the- price of the bufhel of wheat Winchejler meafure, from 2 s. 9 d. to 14 s. 6 d. the bufhel, the allowance of the magiftrates or juftices to the baker, for baking, being included ; and in, column N° I. are the prices of the peck, half peck, and quartern, wheaten and houfehold loaves : fo that (for example) if the price of wheat in the market is 5 s. the bufhel, and the magiftrates allow is. 6 d. to the baker for baking, find 6s. 6d. in N° II. and even therewith under N° I. will be found the prices of the feveral loaves •, but if the price in the market is 3 s. the bufhel, and the allowance 1 s. then the prices of the faid loaves will be found even with 4 s. Note, That the prices of the houfehold loaves are always three-fourths of the prices of the wheaten loaves ; and where it fhall be thought proper to allow of half quartern loaves, the prices of fuch loaves (if fold fingly) are to be half a farthing higher than is allowed by this table, when it fhall fo happen that the farthing is fplit. And magiftrates and juftices, within their refpective jurifdictions, being to fet the affize, and fix the price, of the feveral loaves of bread, having refpect to the price which the grain, meal or flour, of which the fame are made, fhall bear in the market ; but no provifion being made how they fhould know what price the refpective forts of meal and flour fhould be efteemed to bear, in proportion to the price of wheat, they are there- fore to take notice, That the peck loaf of each fort of bread is to weigh, when wel! baken, 17 lb. 6 ounces averdupois, and the reft in propor- tion-, and that every fack of meal or flour is to weigh 2 cwt. 2qrs. net-,- and that from every fack of meal or flour there ought to be produced, on the average, 20 fuch peck loaves of bread ; and by obfeFving the faid rule, magiftrates and juftices may at all times know if the baker hath more.orlefs than the allowance they intend to give him, N° & 3 66 BK&&* N° I. N »rf. Part the Firft; or, The Affize Table. E 1' ta-i I.? — *U Small Aflize Bread. Large Affize Bread. The Penny Loaf.1 Twopenny Loaf. Sixpenny Loaf. 1 Twelvepenny Lo< [oufll f. Eigliteenpenry Loaf. Wheaten Hog (hold Vhtaten 1 ouih old Whearen l fJoufhold. | Wheatcn 1 ild VV lieaten Hnu/hold s. d. oz dr oz. dr. lb .oz, dr. lb . OZ dr. lb oz. dr. lb. oz. dr.lb. cz. dr. lb. OZ dr lb. oz. dr lb. oz. dr. z 3 3 9 o 3 22 20 IS 4 9 2 9 '7 2 > 42 1 2 42 12 8 8 8 5 ' 3 3 3 10 6 2 8 z 9 i 7 6 5 8 9 8 '5 4 10 10 9 15 9' 1 6 11 c 2 615 3 c 7 "|'3 '4 7 21 20 18 'S 4 '5 2 1 2 5 25 22 20 12 '3 8 8 1 1 32 14 n 30 7 z zS 7 3 3 4 6 9 o '7 16 •5 6 6 4 -3 ! 1 20 ig •7 '7 3 6 4 1 •5 1 2 2 1 2 1 2 1 1 14 8 2 Z Z •4 10 8 S 1 2 8 5 8 4 2 2 11 8 8 8 7 11 013 9 5Ji2 4 4 9 S|ii 7 '7 16 '5 6 3 1 1 '9 18 17 8 6 2 ■3 / 8 26 1 1 24 1 22 12 8 4 • 4 4 3 6 9 '4 '3 I z 4 9 I 2 1 1 1 ■ 12 8 1 1 2 9 9 Z Z z 6 3 2 2 H 2 ! + 5 9 1 6 12 II 7 6 6 2 6 1 1 10 6 7 10 1 1 2 10 2 12 9 9 7 ■4 '3 1 2 4 7 1 z 12 4 '4 16 •5 '4 4 6 1 i 2 t 2172 20 2 14 '9 3 5 S 5 5 o 3 6 I z I I 1 1 1 9 .6 '5 '4 V io;i 8 3 7 3 6 4 z '4 •3 1 1 4 4 4 + 8 9 S 8 z 12 6 S 5 2 2 12 11 7 >3 9 ' ' 8 11 1 8 5 8 12 1 1 10 4 9 ">- 4 6 10 '3 '3 IZ 9 8 01 9 3 18 6 7 '7 6 1 16 7 7 S 6 6 9 o 3 10 10 9 8 2 I I '4 •3 '3 9' ili 5 4 4 3 6 12 1 1 10 8 2 1 3 3 3 15 IZ 12 10 2 5 5 4 S 9 1 6 '4 3 7 14 7 9 8 7 4 4 10 10 9 1 1 2 12 2 12 6 1 1 11 IO '3 6 H 4 6 16 11 15 4 2 14 10 9 6 6 7 6 9 o 9 9 8 4 o 1 1 1 2 1 2 1 1 10 1 1 9' 1 2 9 ' '5 i 6 9 8 7 4 3 3 3 3 3 7 10 5 '3 4 2 4 4 4 11 13 8 9 5 8 615 4 611 10 6 8 4 9 9 8 7 1 1 1 1 1 1 1 10 10 9 6 1 12 '3 7 7 '4 3 S 13 9 '0 13 9 7 7 7 3 6 9 8 8 7 7 3 >4 it 10 16 2 I I 6 t 1 14 6 15 12 6 5 4. 4 6 12 3 3 2 2 9 1 1 '? 4 4 4 3 z 12 5 '4 5 652 62 2 5 14 8 8 8 7 7 7 7 S 12 8 S 10 9 9 8 7 3 '3 1 1 3 1 2 iz 8 3 :z 8 11 10 15 8 8 8 3 6 7 7 7 10 5 2 16 9 9 2 1 ■\° 90 •5 4 14 10 14 4 4 3 3 4 '4 3 2 2 2 13 12 II 14 IO I 2 3 3 3 12 12 I! 9 9 8 ; 1 1 8 5 7 '3 S ? 9 9 7 3 8 3 1 8 8 8 9 3 4 1 1 5. 11 64 n 2 12 (O 12 9 8 9 9 9 o 3 6 6 6 '5 '3 9 9 8 8 40 150 1 20 13 14 13 9 13 z 1 1 1 9 14 8 2 2 2 9 " 8 11 7 7 3 3 3 7 10 5 " 4 9 S3 7 5 1 6 4 '4 «4 6 6 6 '5 1 1 9 4 6 2 7 7 7 '3 10 6 2 1 5 10 6 13 IO I I 9 '3 'o 9 9 IO 6 9 o 6 6 6 7 4 i 8 8 8 8 S 2 1 z 14 12 8 12 1 1 10 5 2 2 2 6 9 5 S 4 4 3 3 3 2 15 1 14 1; 4 '3 2 411 c 489 6 6 6 5 3 4 12 '4 7 7 6 3 1 2 1 1 $ '3 9 8 13 9 5 10 9 2 13 10 IO IO 3 6 9 5 5 5 '5 >3 i i 7 7 7 •5 12 9 ■ II I 3 II 9 11 6 '5 'S ij '4 7 2 3 8 2 12 2 ■ 2 2 z 15 11 •4 5 •3 3 47c 4 5 8 4 4 2 5 5 5 15 12 10 5 i 1 t 6 6 6 10 8 6 8 4 2 8 ij 8 11 879 1 1 1 1 1 1 3 6 5 5 S 9 6 5 7 7 7 5 3 1 I 2*0 IO ISO IO IO f O '4 '4 '4 IC 5 2 2 2 I 1 6 7 15 14 2 2 2 11 14 10 15 10 6 4212 4014 315 I2 5 5 7 S 4 •3 H 1 2 6 6 3 4 1 ■S 2 s ro 8 3 10 S 13 7 15 2 1 1 12 12 9 o 3 S 5 4 2 I '5 6 6 6 •5 '3 10 10 5,0 10 2 9 150 '3 «3 »3 '4 9 4 1 I 1 14 14 '4 5 13 13' 2 2 2 9 " 8 11 7 1 2 3 '3 '3 312 11 3 n 9 5 5 4 3 1 '5 7 6 7 5 5 5 12 n 9 1 1 c 6 7 13 2 7 10 1 7 7 3 12 12 '3 6 9 o 4 4 4 '4 13 6 6 6 I 4 9 '20 9 9,° 9 5J° 12 1 2 I 2 1; ; IC 8 I I I •3 4 12 12 II I S 2 2 Z 6 13 S "5 5 8 3 '° 9 3 9 8 3 7 H 4 4 4 r 3 1 1 1 1 10 '3 5 5 7 6 3 '3 5 13 7 4 7 7 112 708 '3 •3 '3 3 6 9 4 4 4 9 8 7 6 6 5 3i° '5,° 9 20 9 00 8 130 1 2 12 I I c 1 «3 I I I 11 5 1 1 10 7 2 2 2 5 ' 4 4 3 8 3610 360 3 4 14 4 4 4 10 8 7 2 9 5 5 4 1 1 '5 '5 5 6.'S- 4 6 12 13 6 10 8 '4 '4 '4 o 3 6 4 4 4 5 4 3 5 S 5 130 8 iio 8 8 ! o 8 6|o 1 I I I I I c 6 2 I 1 I 1 1 9 9 9 2 2 2 2 2 1 2 2 1 1 6 3 4 =1 4 3 3 2 j 4 3 2 4] 4 5 4 2 8 2 12 4 4 4 '4 12 1 1 3 1 1 6 684 662 642 26*ea&. 3 6 7 N°I. N°II. Part the Second. Prized Bread. a. r> 2: £.3 Quartern Loaf. Halfpeck Loaf. Peck Loaf. Wheaten. Houlhold Wheaten Houlhold Wheaten Houlhold s. d. s. d. s. d. s. d. s. d. s. d. s. d. o 3 I o 3 1 o 3 1 2 A a 2 1 O 2 j o 6 A o 7 ° 7 4 4 3 s 5 1 1 4 , , 3 ■*;,*• .4 1 3 094 O IO A O 11 2 9 3 3 3 o 4 3 4 I o 4 4 o 3 ° 3 I "34 o 8 o 8 4 o 9 6 6 4 6 | 1 4 1 s « 6 A I I I • 1 I 3 6 3 9 4 o 4 I ° 5 o 5 1 ° 3 I ° 3 -J o 4 ° 9 ? o IO -' O IO 2 ° 7 4 7 l 8 1 7 4 1 8 4 I 9 i ' 2 4 1 3 4 « 4 4 4 3 4 6 4 9 ° H ■ o 6 o 6 i ^ 4 % o 4 A o 4 i Oil A I o I ° i 8 4 9 9 I 1 11 z 2 1 1 S 1 6 1 7 5 S 3 5 6 o 6 I o 7 o 7 1 S ° S J ° 5 4 « i 4 1 ■ 1 « 2 1 9 | O IO A OIO 1 2 2-4 2 3 4 2 4 -I 1 7 4 1 8 4 1 9 4 5 9 6 6 3 o 7 1 o 7 3 o 8 o $ I ° S 1 o 6 > 3 ' 3 i » 4 O I I on 4 1 2 6 2 7 2 8 1 10 1 H 2 6 6 6 9 7 o 8 | o 8 i o 8 1 © 6 | o 6 4 o 6 1 ■ 4 4 1 5 > 5 k 1 4 1 1 1 ■ i z g 2 10 2 II A 2 1 2 2 2 2 li 7 3 7 6 7 9 o 9 | o 9 4 o 9 | o 6 | o 7 o 7 ' 1 6 A " 7 1 7 4 « > 1 1 2 I 2 A 3 | 3 2 3 3 2 3 4 2 4 2 9 8 8 3 8 6 O IO IO i IO 4 ■o 7 4 o 7 | o 8 I 8 I 8 a • 9 ' 3 • 3 4 ' 3 4 3 4 5 S 3 6 a 2 6 2 7 2 7 | 8 9 9 9 3 O IO | I I O II A o 8 i o 8 i o 8 A ' 9 3 I IO a i 1 1 » 4 4 • 4 1 1 5 3 7 4 3 8 4 3 10 2 8 1] 2 9 I 2 10 9 6 9 9 10 o .. 3 1 o i o i o 8 | o 9 O A 1 11 4 2 9 2 O j 1 5 4 1 6 1 6 j 3 J i 4 4 > 2 1 1 3 3 • 10 3 10 6 10 9 I o 4| o 9 a i o ij o 9 -1 1 I | O 10 2 I 2 ' 1 2 2 A 1 7 • 7 4 ■ 7 ! 4 2 1 3 2 |i 1 4 3 i 3 2 5 " 3 4 4 4| 3 3 4«i6 I I A. o IO I I M O IO A 4l H 12 | IO i 2 3 2 3 ' 2 4 1 8 1 8 i 1 9 4 6 4 7 4 8 3 4 3 5 3 6 n 9 1 2 12 3 I * M'o IO J I 2 4, O 11 , j Ion -' 2 4 3 2 5 2 5 1 1 9 I 1 10 ' 1? i 4 9 4 10 4 >> \ 3 7 I12 6 38 12 9 3. 8 i|,3 . 3 flo.M i i 3 ion a . 3 Ho M -I 2 6 | 2 7 2 t 2. / 2 1 10 4 1 1 1 in 4 5 ' 5 2 5 3 3 9 3 '3 3 11 '3 5 .3 6 *3 9_ 14 '4 3 .4 6 14 1 i o 2 8 284 2 9 z 2 4 a 1 5 4 4 ° : \ \ i o I i o ; 5 5 4 1 56 | 4 2 3 68 »#a&« N? II. A TABLE of the Sflize and price of bread made cf the fcveral grains hereunder mentioned.. This table is divided into feven columns : columns the lft and 7th contain the prices of the bufhel of grain, the allowance for baking included ; which prices are adapted fo as to lerve either for the li'inchcfier bufhel of rye, the Wincbefter bufliel of barley, the Wincbefler bufhel of oats, the Win.hejltr buihel of beans, the Wihcbefttr bulnel of maflin alias mifcellany, confining of two- thirds wheat and one-third rye; the price of either of which bufhdsin the market being known, the magiftratesare to add the intended allowance there- to ; the amount of which being found either in column N s I. or VII the weights which the feveral penny, twopenn), fixpenny, and twelvepenny loaves ought to be of, will be found under columns N° II. III. IV. and V. and the price of the refpeclive peck loaves (which are to ,weigh 1 7 lb. 6 02. each) under N°. VI. Example, when the price of the bufhel of barley in the market, with the allowance to the baker, is 4s. look for that fum in column the 1 ft or 7th, and under their refpeftive titles in the fame line will be found the weights which the feveral affize barley loaves fhould be of, and the price of the peck barley loaf, and fo of each of the other forts. Note, Where bread is allowed at any time to be made for fale of peafe only, the aflize and price there.? of are to be fet and fixed from the bean columns ; and where bread is ordered to be made for fale of a coarfefort of maflin or mifcellany grain, confiding of one-third rye, one third barley, and one third either peafe or beans, the aflize and price thereof are to be fet and fixed from the barley columns. Note alfi, That this table is framed for bread to be made of the whole produce of the faid feveral grains, except the bran or hull thereof only. N° I. ■ N° II. ■ N° III to c 5" 3" ■n tr pa c y B- - Weight of the Penny Loaf. Weight of the twopenny loaf Rye Barley. Oa ts. Beans. Mail in. Rye. Barley. Oats. Beans. Maflin. S. d. oz c oz. d. oz. d oz. d oz. d. lb. oz. d.jlb. oz. d.Vb. oz. a lb. oz. i. lb. oz. d. I 62 S 67 8 3 1 4 «3 1 2 70 7 13 08 7 O 3 '4 s 10 7 8 8 12 O I I 5° 54 c 25 c 67 56 6 4 06 .12 3 2 8 6 G 7 O O I 9 + I 10 45 c 20 14 55 12 46 10 ,5 3 5 5 IO c 2 9 I 2 6 ,5 i- ! 5 •3 4 35 1 1 38 9 '7 '4 +7 M 40 4 7 64 '3 2 2 3 I 2 5 '5 1 : 5 2 i l 4 33 12 ■5 IC 41 H 55 3 >4 «4 3 S ' '5 4 5 3 ' ; 4 6 2 ■i 27 '3 3C ■3 M 37 4 3> 2 3 7 103 12 O 1 1 1 I 2 4 10 a 3 14 4 2 b 25 2 7 12 8 33 S 28 3 2 03 6 O « 9 O 4 3 c 3 8 2 9 22 1 1 24 9 11 6 30 7 25 6 2 M 6,3 1 2 1 6 12 3 «2 '4 .3 2 12 3 3 c 3 20 13 22 8 10 7 27 '4 23 5 z 9 102 13 1 4 '4 3 7 1 2 2 14 10 '9 4 20 12 9 10 25 12 21 8 2 6 8> 9 8 1 3 4 3 3 S 2 11 3 17 '3 '9 4 8 15 23 »S 20 2 3 112: 6 8ji 1 M z 15 '4 2 8 _3_ 4 _5 16 11 :tf 8 5:22 5' 18 10 2 1 62 4 o'i 1 1 2 I 2 10 2 •5 4 : 5 ic 16 '4 7 I? zo 6J19 '5 17 8 1 '5 4z 1 1 2 jo IJ 10 2 9 14 2 3 4 3 '4 12 •s 14 7 i 1 16 8 1 1 n 81 15 1 3(0 14 12 2 7 6 2 1 4 (i •3 14 '5 b 15I18 10 ■5 9 ,' 1 1 '3i ! 4 °|° '3 14 2 5 3 '5 z 4 9 '3 2 '4 4 9 l 7 1 1 '4 12 . 10 5 1 12 9,° '3 3 2 3 6 13 8 s iz 8 ij a b 416 12 '4 9 01 11 8 2 I 8 12 5 3 " 14 22 «4 5 '5>5 15 2 3 5 1 7 i 3 'i g , 3 |o „ ■3 « 15 '4 IO IO 5 6 «■' 5 i2 4 5 n 13 3 1 z 1 1 6 hi 8 •J 1 1 6 I H 7 9 6 5 9 .0 13 II 12 5 7'4 9 2 2 5 nil 7 8 10 "4 ! 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U -f +■ ui^w l» <-m n N N t4 N N — _. - _ - c — OO^-l VI <>» — — ccvi + - M - U - - -.^ - CO c--f- N — O VI V-. t^J - - vO *- - ^ tr> ft fl r> J M "- O-O NO 00 VJ CNVI -fk - : 1 ; O^C 1 CN vt vi VI vi 4* 4* 4* 4>- WINU1 l»» it N N N » - - _ 01 pu •3uc?|r a t '|3l0n a ■A. 1 , no o-<-»i OX) N ->i NO CNW O ^O C '-■- CN '^i CN'JJ O Q * 3 4 J° »!» the for the time being, or fuch other perfons as the faid court of mayor and i 1MCeor "bread, aldermen fliall from time to time appoint to return the price of grain, w l,£t meal and flour, fhall leave in wiiting at the common hall of the company to leave at the of bakers in the faid city of London, a copy of every return of the price of bakers hall a grain, meal and flour, which they fliall make, and enter in fuch book to C0 Py ot the be provided and kept at the town clerk's office as aforefaid, fome time of [^"T made the fame day on which fuch meal weighers or other perfons fliall make every fuch return and entry as aforefaid-, to the intent that the faid com- that the com- pany of bakers may the morning of the next day, after every fuch return P*ny may and entry fliall be made, and before any afllze fliall be fet, from time to ha y e Ume t0 time, have an opportunity to offer to the faid court of mayor and alder- £ J r e ' theret ?» men, if fuch court fhall then fit, and if fuch court fhall not then fit, to flzebefet the mayor of the faid city of London for the time being, all fuch objections as the faid company of bakers fhall have and think fit to offer againlt any advance or reduction being that day made in London in the price of bread. Se£i. 7. " And be it further enacted by the authority aforefaid, That The court of from and after the faid twenty-ninth day of September, the court of mayor '"ayor and and aldermen of every other city, where there fliall be any fuch court, aldernicn . and and when fuch court fhall fit •, and where there fliall be no fuch court, or, yj ■ fa***.' there being any fuch, when the fame fliall not fit, the mayor, bailiffs, or cities, towns other chief magiftrate or magiflrates of every fuch other refpective city, aw boroughs, and in towns corporate, or boroughs, the mayor, bailiffs, aldermen, or ma >'' in like other chief magiftrate or mag-iftrates for the time beinp- of every fuch n,3nr,cr ' caufe u 1 . • n_- r 1 • r , retu rns to be town corporate or borough ; or two or more ]ulhces of the peace in fuch mnde them of towns and places where there fhall be no fuch mayor, bailiffs, aldermen, the prices or chief magiflrates ; fliall and may feverally and reflectively, from time lvhich che &-" to time, as there fhall be occafion, within their feveral and refpective ju- verdl forts of ■ rifdictions, caufe the refpective prices, which the feveral forts of grain, fndflour^fit meal and flour, fit and proper to make, the different forts of bread which for bead! fhall be allowed to be made in every fuch other refpective city, town cor- fcaJI be pub- porate, borough, town, or place, fliall, from time to time, bona fide, feU H ck,jr fo '* at for, in the refpective pnblick markets in or near to every fuch other town i" ' e m V iu 1 j-iiii 1 ke,s Wltn "i corporate, borough, town, or place, during the whole market, and not their jarii'Jic- at particular times thereof, or on particular contracts only, from time to tions ; time be given in and certified, upon oath, unto fuch court, mayor, bai- liffs, aldermen, chief magiftrate or magiflrates, or juflices, as aforefaid refpeclivelv, within their feveral jurifdiclions, in fuch manner, and by fuch perfon or perfons, and on fuch day in every week, as any fuch refpec- tive court, mayor, bailiffs, aldermen, chief magiftrate or magiflrates, or juflices, as aforefaid, within their refpective jurifdictions, fliall from time 3 B 2 to "it? 372 $*ea&. the prices to to time appoint •, and the price which fhall be fo certified (hall, from be entered and time to time, be entered by the refpective perfon or perfons who (hall cer iticd in a certify the fame in fome book or books to be provided by fuch refpec- proper book ; t j ve er r on or p er f on s, and kept by him or them for that purpofe : And and pri^'of 6 within two days after every fuch price fhall be fo returned, the affize and Wad to be weight of bread for every fuch other refpective city, town corporate, bo- fet wirhm 2 roii"-h, town, and place, and the price to be paid for the fame, fhall, days after ; f mm time to time, be fet by the court of mayor and aldermen of every fuch other city where there fhall be any fuch court, and when the fame fhall fit-, and when fuch court fhall not fit, by the mayor of every fuch other refpective city •, and where there fhall be no fuch court of mayor and aldermen in any fuch other city, then by the mayor, bailiffs, or other chief magiftrate or magiftrates of every fuch other city ; and in towns cor- porate, and boroughs, by the mayor, bailiffs, aldermen, or other chief magiftrate or magiftrates of every fuch town corporate, or borough; and by two or more ju ft ices of the peace in towns or places where there fhall be no fuch mayor, bailiffs, aldermen, or chief magiftrate or magiftrates : And the afiize and weight of bread, and price to be paid for the fame, which fhall be fo from time to time let in every fuch other city, and in every town corporate, or borough, and in every town and place where there fhall' be no fuch mayor, bailiffs, aldermen, or chief magiftrate or and to take magiftrates, as aforefaid, fhall commence and take place on fuch day in place, and cver y week, and be in force for fuch time, not exceeding feven days from e ° nd edin (m)t the rettir| g of evei 7 fuch affize ' and ^ a]l be made P ublick in fuch man- day" and to ner, as fuch court of mayor and aldermen in every fuch other city where be publifbed, there fhall be any fuch court, and when the fame fhall fit •, and where asthecourtor t h ere ma il be no fuch court of mayor and aldermen, or there being any Tu'd^'ft ^ uc ^' w ' ien tne ** ame ^ a ^ not ***' as tbe ma y or ' bailiffs, or other chief mao-iftrate or magiftrates, as aforefaid, of every fuch other city ; and as the mayor, bailiffs, aldermen, or other chief magiftrate or magiftrates, as aforefaid, of every fuch town corporate, or borough ; and in towns and places where there fhall be no fuch mayor, bailiffs, aldermen, or chief magiftrate or magiftrates, as aforefaid, as any two juftices, as afore>- faid, fhall, within their refpective jurifdictions, from time to time direct. Two or more Sett. 8. " And be it further enacted by the authority aforefaid, That juftices with f rom am } a f ter ,-he f a id twenty-ninth day of September, if any two or more d*a^ e,r ^ma J u ft ices of the peace of counties at large, ridings or divifions, fhall at fe^aTaffiaeof any time think fit to fet an affize of bread, for any place or places within bread, and the limits of their refpective jurifdidlions, then, and in any fuch cafe, it caufe returns rf^]} be lawful for any fuch two or more juftices, within the limits of to be made : j? y their refpective jurifdictions, to caufe the price, which grain, meal and' rheneighbour- flour, fit to make the feveral forts of bread which fhall be made for fale jng markets of in any fuch place or places, fhall, from time to time, bona fide, fell for in the price at t h e refpective public corn market or corn markets, in or near any fuch which grain, pi ace or p] aces re fpectively, during the whole market, and not at parti- flTur fhall be cuter times thereof, or on fpecial contracts only, to be from time to time there fold; given, and certified on oath, to them at their refpeclive houfes or places of SBjcarj. 373 of abode, in any fuch county, riding, or divifion, on fuch day in every the returns to week, as any inch two or more juitices fhall for that purpofe fix on and be made on ■ appoint, by the refpedive clerks of the market of the feveral markets in cerUm da y> or near fuch refpedive place or places, or fuch other perfon or perfons as any fuch two or more jullices as aforefaid refpedively, within their refpec- tive jurifdidions, fhall for that purpofe appoint; and that the price ofandtobeen- grain, meal and flour, which fhall be lb returned, fhall, from time to teredandfign- time, be entered, by the refpedive perfon or perfons who fhall fo return ."V bjo f k; the fame, in fome book or books to be provided by him or them, and that v lfL°J. kept for that purpofe; and within two days after any fuch return of the aiiizeand' the price of grain, meal and flour, fhall be made to any fuch two or p ric e of bread more juftices, as aforefiid, the price and affize of bread" may be by them,' be j" w "' 1 * or any two of them, fet for every fuch place or places, for any time noc ^ " *£* " * exceeding fourteen days from every fetting thereof: And the affize which continue (not fhall be fo from time 10 time fet, fhall commence and be in force, at fuch exceeding 14 time afrer every fetting thereof, and be made public in fuch place or da y s ) and t0 places for which the fame fhall be fo fet, in fuch manner as the juftices c °Tf ence . who fhall fet the fame, fhall order or direct. Mied^fhall Sea". 9. " And be it further enacted by the authority aforefaid, That be ordered, any maker of bread for fale in any fuch other city, town corporate, bo- Bakers may rough, or place, where the price and affize of bread, in purfuance of this feethere ^' n % act, fhall at any time be thought proper to be fet, fhall have liberty, at tn g (am ^ fl "^ all feafonable times, in the day time, the next day after every return of be made, the price of grain, meal and flour, fhall be made for any fuch other city, town corporate, borough, town, or place, and entered in the proper book hereby directed to be provided and kept for that purpofe, to fee the entry which fhall be made in fuch book, of the price of grain, meal and flour, without paying any thing for the fame ; to the intent that that they may every fuch maker of bread for fale may have an opportunity, on the faid have time to next day after any fuch entry as aforefaid fhall be made as hereby is di- objed to the rected, to offer to any fuch court, mayor, bailiffs, aldermen or other j dv r arceo V e " chief magiftrate or magiftrates, or juftices, as aforefaid, who fhall think JsdeTn the 6 fit to fet any fuch affize of bread within their refpective jurifdictions, and price of breads before any fuch affize fhall be fet, fuch objections as any fuch maker of before the af- bread for fale can reafonably make againft any advance or reduction beino- fize beiet - at any time made in the affize or price of bread in any fuch other city, town corporate, borough, town or place. Seel. 10. " And be it further enacted by the authority aforefaid, That r>ak->n • li-> no baker or maker of bread for fale fhall be liable or compellable to pay blew pay fee? any fee, gratuity, or reward, to any perfon or perfons for, or by means on account of of, any affize of bread being at any time fet, altered, or publifbed, by the affize of virtue of or under this act. ' b,ead - Sea. 11." And be it further enaded by the authority aforefaid, That Form of the the form of the return, or the certificate of the price of grain, meal or returns- to be flour, fhall, from time to time, be to the purport or effect as followeth ; n,ade of the Chat is to lay.,. ' price-of grain. meal 01 fU Tha 374- mm: The prices of grain, meal and flour, as fold in the corn market in in the cf the day of jy The bed wheat The fecond The third The bed wheaten flour — Houiehold flour ■- Rye ■ ■ Rye meal, or flour, — — Barley Barley meal ■ Oats . Oatmeal — ■ — "White peas • White pea flour, or meal, Beans Bean meal, or flour, — at at at at at at at at at • at at at at at at by the bufliel. by ditto. by ditto. by the fack. by ditto. by the bufliel. by the bufliel. by ditto. by ditto. by ditto. by by the bufliel. by by the bufliel. by Returns to be To every of which returns the perfon or perfons, who fliall be appointed ilgned. to make the fame, (hall, from time to time, fign their refpective names or marks. Form of pub- Seil. 12. " And be it further enacted by the authority aforefaid, That hcation of the when an aflize of bread fhall a h any time be fet in purfuance of this acl, aiUze of bread. ^ f ame ft^u b e made public in the form or to the effecl: following; that is to fay, To iw7, The aflize of bread, fet the day of to take place on the day of and to be in force for the faid for now next enfuing, And in places where penny, twopenny, fixpenny, twelvepenny, and •eicrhteenpenny loaves, fliall be made, asfolloweth; The penny loaf wheaten is to weigh Ditto houfehold is to weigh The twopenny loaf wheaten is to weigh Ditto houiehold is to weigh The fixpenny loaf wheaten is to weigh Ditto houiehold is to weigh ■ ( The twelvepenny loaf wheaten is to weigh ''Ditto houfehold is t6 weigh Ih. oz. dr. The Bjeao. The eighteen penny loaf wheaten is to weigh Ditto houfehold is to weigh • 375 lb. oz. dr And in places where quartern, half peck, and peck loaves, fhall be made, then as follows ; s. 'd. The peck loaf wheaten is to weigh Ditto houfehold is to weigh lb. oz. dr. and is to be fold for and is to be fold for And the half peck and quarter of a peck loaves of wheaten and houfe- Halfpeclc,. hold bread. are to weigh, from time to time, in proportion to the weight and quartern • a peck loaf of wheaten or houfehold bread ought to weigh, and are to be ioave ^» t0 fold according to the price a peck loaf of wheaten or houfehold bread J*^ 8 j'n^ue ' reflectively is to be fold •, and whenever any bread fhall be ordered to be proportion to made by any fuch magiftrate or magiftrates, orjuftices, within the limits the peck loaf, of their jurisdiction, with the meal or flour of rye, barley, oats, peas or ^ a 8' ltrate to beans, either alone, or mixed with the meal or flour of any other grain or a ^ of ^ vt e grains, the ailize of fuch bread fhall be made public in fuch manner as barley, or * the faid magistrate or magiftrates, or juftices, who fhall fet fuch affize, mixed bread, fhall, from time to time, direct. when ordered to be mr.de, fhall be publilhed. Self. 13. " And be it alfo enacted by the authority aforefaid, That in Where bread places where any fixpenny, twelvepenny, and eighteenpenny loaves fhall of a certain at any time be ordered or allowed to be made or fold, no peck, half- denomination peck, or quarter of a peck loaves, fhall be permitted or allowed at the? ndva , Iuel ? ul1 £ ■ l l j ru • 1 r 1 r be ordered, or fame time to be there made or fold •, to the intent that one cf thofe lorts allowed to be- of loaves of bread may not be fold designedly, or otherwife, for the other made, no fort thereof, to the injury of unwary people; upon pain that every one bread ofa d'f- who fhall offend in the premiffes, and Shall be thereof convicted in man- ferent den0 " ner herein after prefcribed, fhall, for every fuch offence, forfeit a fum not be'ro!d°at ' the exceeding forty (hillings, nor lefs than twenty Shillings, as the magistrate fame time, or magiftrates, juftice orjuftices, before whom any fuch offender lhall be ""der penalty convicted, fhall from time to time think fit. or f ° : f' e| tmg not exceeding. 40s. nor lefs than 20s. for lueb offence. Sen. 14. " And be it further enacted by the authority aforefaid, That The luffices, if, for the better carrying into execution this act, the juftices of the peace a: a general" orher place or places, in any fuch county, riding or division, ought to hundred or be eft muted or considered, as of*or in. any one particular hundred,. ri- P Iace w 'thim ,i;,,~ a certain dif- 6> -rid, ioc.i the- 3?6 j&jeaa.' afilzeof bread ding or divifion, of any fuch county, riding or divifion, in order that fct for the -the afiize of bread which fhall be let for fuch particular hundred, place or fame may ex- places} miy extend to or comprize fuch other hundred, place or places, wnd thereto. tri i n} aiu ] , n anv i' uc h cafe, it fhall be lawful for them fo to do; but by 'fo doing thereof, no juftice of the peace of any fuch county, riding or divifion, fhall be excluded or debarred from. acting as a juftice of the peace in any hundred, riding or divifion, of any fuch county, in which any fuch particular towns, diftricts or places fhall lie, or the afiize for them {hall be fet. Entry to be Sec?. 1 5. " And be it likewife enacted by the authority aforefaid, That made byevery an entry ihall, from time to time, be made by every clerk of the market, clerk of the or ot ] lcr perfon or perfons, who, in purfuance of this act, fhall be ap- market, tsv. p j ntec i t o make fuch return and certificate as hereby is directed refpec- boeks, of the tively, in fome book or books to be provided and kept by them refpec- returnsmade tively for that purpofe, of every return which fhall be made, in purfu- by him, ance f this act, by them refpectively ; and alio of the rate at which the tnd of the price, afiize and weight of bread fhall, from time to time, be fet or and price of' fixed within the jurifdiction of every fuch clerk of the market, or other bread fhall be perfons who fhall, in purfuance of this act, be appointed to make fuch let at from return or certificate as aforefaid-; which book or books any inhabitant of time to time; ever y f ucn c jty^ town corporate, borough, franchife, hundred, riding, lie' en°to S divifion, liberty, lath, rape or wapentake, fhall, at all feafonable times the infneclion in the day-time, have liberty to fee and infpect, without any fee or re- ef any inha- ward being to be paid for the fame. bitant. Setl. 1 6. " And be it alfo enacted by the authority aforefaid, That af- ^° b'"^^" ter an al ^ ze °^ ^ rea d fl"> a M> at an y ^ me zi'ter tne ^ a 'd twenty-ninth day of in affize of September, be fet, no alteration fhall be made therein in any fubfequent bread, unlefs week, either to rife the fame higher, or to fink the fame lower, unlefs the price of ant J except when the price of wheat, or other grain, fhall be returned as wheat, or having rofe three pence each bufhcl more than the laft return made, or ^^"vary' 1 *' d having fallen three pence each bufnel lower than the laid laft return ; no in the bnfhel provilion being made by the laid affize tables for altering any aftize, when from the laft the variation in the price of wheat, or other grain, fhall not in any week return. have amounted to, and have been returned three pence a bufhel. Any meal Seel, i 7. " And be it likewife enacted by the authority aforefaid, That weigher, clerk if any meal weigher, clerk of any market, or other perfon or perfons, who .of the mar- f] ia j} be appointed to certify or return, as hereby is directed, the price of ket, ,l5c. who g.j.gjp^ mea j and flour, fhall in any wife neglect, omit or refufe to do 1 1 dTv or a - n >' rn atters or things by this act required or directed to be done by him or make a Life them refpectively, or (ball defignedly or knowingly make any falfe certi- rctum; ficate or return •, or if any conllable, headborough or other peace officer, ami any peace fc & \\ re f u f e or neglect to obferve or obey any warrant in writing, which ftalTdilbbey ma!1 be delivered ro him under the hand and feal of any magiftrate or zhn warrant of juflice of the peace, or to do any other aft requifite to be done by him any magi- or them for the carrying this act, or any of the powers or authorities here- ftrate, or jiif- by given, into execution •, then every perfon fo offending in any of the tice, or other- prern ; ffes on being convicted of any fuch offence, fhall forfeit and pay iv ife neglect r ■ » o ) V' iis dm/, IUf Bnar*. 377 for every fuch offence, any fum not exceeding five pounds, nor lefs than forfeit not ex- twenty fhillings , as the magift.ate or magiftrates, juftice or juftices, be- cced 'ng yl. fore whom any fuch offender or offenders fhall be convicted, (hall think nor lels than fit and order, every time he or they lhall fo offend and be convicted, as hereby is directed. Sett, i i. " And be it further enacted by the authority aforefaid, That Any buyer, in cafe any buyers or fellers of, or dealers in corn, grain, meal or flour, feiltr, or dea- at anytime after the laid twenty-ninth day of September, on reafonable ler > who ^ a " requelt to him, her or them made by the meal weighers of the cky of j ? e J°. " London in London, or by the refpective clerks of the markets, or other meal weirh- perfons, who, in purfuance of this act, lhall be appointed to give in and ers in Lor.don, certify, as hereby is directed, the prices of grain, meal and flour, from or clerl< - ot " the refpective markets or places within their refpective jurildictions, lhall l A e maike:s » refufe to difclofe and make known to fuch meal weighers, clerks of the p i a ' ce , tne markets, or other perfons, who lhall be appointed to make fuch returns true p-'ces the and certificates as hereby are directed refpectively, and alfo fh;.ll rcqueft Several forts the fame within their refpective jurifdiccions, the true real prices the feve- of g rain * ral forts of grain, meal and flour, lhall be bona fide bought at, or fold, bv S" ed ?i" n u r , ■ ? i r . , J , ° ' '■' flour, fhall be or for him, her, or them relpectively, at any corn market or corn markets, bought or fold or other place, where corn, grain, meal or flour, is or lhall be ufually, at in the pub. openly- or publickly fold, within the jurifdiction of any fuch perfon or lic k market, perfons as aforefaid, who lhall requeit any fuch account to be given to him or them ; or fhall knowingly give in to any fuch meal weigher, clerk of or fhall give the market, or other perfon, who fhall be appointed in purfuance of this '" a falfc °* act to give in and certify the price of grain, meal and flour, any falfe co . u or untrue price or prices of any grain, meal or flour, bought or fold, or pn ' agreed fo to be, or any price which hath been made by any deceitful means ; then, and in every fuch cafe, he, fhe or they fo offending, on being convicted of any fuch offence by the oath of one or more credible witnefs or- witneffes, or folemn affirmation of any credible witnefs or wit- nefles, being a quaker, or on the confedion of the party accufed, fhall r orf - e ; t rot e3t , forfeit any fum not exceeding ten pounds, nor lefs than forty {hillings, as cee ding ior. the magistrate or magiftrates, juftice or juftices, before whom any fuch nor lefs than offender or offenders fhall be convicted, lhall think fit and order,'every time4 0S - he, fhe or they fhall fo offend, and be convicted of any fuch offence. Sett. 19. "And be it further enacted by the authority aforefaid, That Where any if any fuch court, magiftrate or magiftrates, juftice or juftices, as afore- falfe return faid, who fhall have thought proper to have ordered any return to be/ 13 !! f fu L made of the price of grain, meal, or flour, within their refpective juril- m a( j e x ^ e dictions, fhall, at any time within the fpace of three days after any fuch court, magi- return fhall have been made, fufpect that the fame was not truly and bona ^ rate . or juf- fide made, then, and in any fuch cafe, it fhall be lawful for any fuch t,ce - n,a y. court, magiftrate or magiftrates, juftice or juftices, within their refpec- fu mrn " n * y9 ' tivejurifdictions, to fummon before them relpectively any perfon or per- buyer orfeij. fons who fhall have bought or fold, or fhall be fufpected to have bought er, or other or fold, or agreed to buy or fell, any grain, meal or flour, within their P crl " n likt 'y refpective jurildictions, or who fhall be thought to be likely to o-ive anv to s ' ve 1D • Vol. I. N°. XVI. *C itfforma- ""^ 3?s $jea&. and examine information concerning the premises, and to examine them reflectively ihftm upon upon their feveral oaths touching the rates and prices the feveral forts of ° ith ' t ? uchin S grain, meal and flour, or any of them, were there really and bona fide prain^'meal bou ght at, or fold for, or agreed fo to be, by him/her or them, refpec- a;d iiour, tively, at any time or times within the fpace of feven days preceding the within 7 days fummoning of him, her or them, reflectively : And if any perfon or per- beiore ; fons, who lhall be fo fummoned as aforefaid, fhall neglect or refufe to ap- T d a *h P full P ear on ^ UC ^ f ummons ( ar) d proof mail be made on oath of fuch fummons not appear having been duly ferved upon him, her or them, for that purpofe) or if thereto, with- any perfon or perfons fo fummoned fhall appear, and neglect or refufe to outjjftcaule an f we r fuch lawful queftions touching the premiffes, as fhall be propofed Ihewn, orfjiall j. Q ^ m ^ ^ cr or t ^ em ^ by an y f Llcri cou n, magiftrate or magiftrates, juf- evid'sDce tice or juftices, as aforefaid, within their refpective jurifdictions, without fome juft or reafonable excufe, to be allowed of by any fuch court, ma- giftrate or magiftrates, juftice or juftices, as aforefaid, he, (he or they, lb offending, on being convicted of any fuch offence, either by the oath of one or more credible witnefs or witneffes, or his, her or their own con- fefllon, before any fuch court, magiftrate or magiftrates, juftice or j un- ices, fhall, on every fuch conviction, forfeit and pay any fum not exceed- forfVus not ing ten pounds, and not lefs than forty fhillings, as any fuch court, ma- exceeding iol.-^ rate or magistrates, juftice or juftices lhall think fit and order : And n * 1 p !t*ls r i in ^^ " ' j j m ' if any perfon, who lhall be fo examined on oath, fhall wilfully forfwear aiid fcrfwear- him or herfelf, every fuch perfon lhall be fubject and liable to be profe- ing iv.mieli-, cuted as for perjury, by indictment or information by due courfe at law; in;ursihe P e ' and, if convicted, fhall be liable to the penalties perfons convicted of ra ties o P er_ w ;jf u ] and corrupt perjury are fubject and liable to; provided that the Party fum- party or parties fo fummoned be not obliged to travel above five miles moned, not from the place or places of his, her or their abode. obliged to tra- g e fc 2a « And be it further enacted by the authority rforefaid, That vel above j whenever any court as aforefaid, magiftrate or magiftrates, or juftices of place of ins tne peace, fhall order any bread to be made within their refpective jurif- abode. dictions, of or with the flour or meal of any other grain or grains than When an or- wheat, or to be mixt with the flour of wheat, or to be made with the flour der fhall be Q[ . mea i f anv ot i ier f orc or forts of grain or grains, either feparate or mixed Hn^bread for together, all perfons who fhall make any bread for fale, in any place where l'ale°of any any fuch order or orders fhall at any time be made, fhall, from time to time, other grain make bread with fuch mixed meal or flour, in every fuch place and places, than wheat, ; n fo^ manner as they fnall be required and ordered by any fuch court, ""flour- magiftrate or magiftrates, or juftices, as afo/efaid, within their refpective Eil.c t'tocom jurifdictions, and lhall, from time to time, make the fame of fuch weight form to ij^h and goodnefs, and fnall fell the fame at fuch prices, as any fuch court, order, and magiftrate or magiftrates, or juftices, within their refpective jurifdictions, T^d ' h'u h ^ ri " * rom t ' me t0 time orc ' er or direct •, upon pain that every perfon who J i ht and fhall at any time offend in the premiffes, and fhall be convicted of any fucfi goodnefs; a?..! offence in the manner herein after prefcribed by this act, lhall forfeit any fum not exceeding five pounds, nor lefs than forty fhillings, as the magiftrate or magiftrates-before whom any fuch offender or offenders fhall be be convicted (hall think fit and order, every time he, fhe or they (hall To at foch P"' «. offend and be convicted." as H [hcre ; in be direcle i, on penalty of forfeiting not exceeding 5 1. nor lefs than jo s. &?#. 21. " And be it further enacted by the authority aforefaid, That The feveral from and after the twenty-fourth day of June one thoufand feven hundred °** of bre * d and fifty-eight, the feveral forts of bread which fhall be made for fale, or aretobeal- ' fold, or expofed to or for fale, in any place or places, fhall always be well ways well made, and in their feveral and refpective degrees, according to the good- made > and > "» nefs of the feveral forts of meal or flour whereof the fame ought to be r d . f S rees ' made; and that no allum, or preparation or mixture in which allum fhall t |, e ^ co d. e c s be an ingredient, or any other mixture or ingredient whatfoever (except of the forts of only the genuine meal or flour which ought to be put therein, and common mei1 or flour fait, pure water, eggs, milk, yeaft and barm, or fuch leaven as fhall at anv th£ / am e°"ghc time be allowed to be put therein by the court, or perfon or perfons who withoT' 1 ' 'fhall, by virtue of this aft, have fet an afilze of bread, for the place or adulteration or places where any fuch leaven fhall be ufed, and where no fuch aflize fhall mixture except have been fet, then fuch leaven as any magiftme or m3giftrates, juilice or (ne S enu i n c juftices of the peace, within his or their jurisdiction, fhall allow to be ufed in £\ eal or ^ our ' making of bread) (hall be put into, or in any wife ufed in making dough, eo g S m yjJ" or any bread to be fold, or as or for leaven to ferment any dough, or on any yeatt, and' other account, in the trade or myftery of making bread, under any colour barai > or ^ch or pretence whatfoever, upon pain that every perfon (other than a fervant or ' eaven as ma " journeyman,) who fhall knowingly offend in the premiffes, and (hall be con- allowed- ' vidted of any fuch offence, either by his, her or their own confeflion, or by the penalty of the oath of one or more credible witnefs or witneffes, before any fuch magiftrate offender for. or magiftrates, juftice or juftices of the peace, within the limits of his or Siting!' not be- their jurifdiclion, (hall, on every fuch conviction, forfeit and pay any fum in S. the ' ervant of money not exceeding ten pounds, and not lefs than forty (hillings ; or mViJhnot 5 " (hall, by warrant under the hand and feal, or hands and feals, of any fuch ceeding 1 1" magiftrate or magiftrates, juftice or juftices, within his or their refpective nor left than jurisdiction, be apprehended and committed to the houfe of correction, or +° s- fome prifon of the county, city, town corporate, borough, riding, divifion, or bem gcom- or place, where the offence fliall have been committed, or the offender or ™' !ted ' and offenders fliall be apprehended, there to remain and be kept to hard labour ^0011^0/3™ for any time not exceeding one calendar month, nor lefs than ten days, from time not ex- the time of fuch commitment, as any fuch magiftrate or magiftrates, juftice ceedin g ' or juftices, (hall think fit and order; and if any fervant or journeyman n " nth ' n ° r,e '' 3 baker (hall knowingly offend in the premiffes, and (hall be convicted of any an d"-r i, ^r 5 fuch offence, either by his, her or their own confelTion, or by the oath offender be a " one or more credible witnefs or witneffes, before any fuch magiftrate or fen-ant or magiftrates, juftice or juftices of the peace within the limits of his or theirJ ourne >' man . jurisdiction, he, (lie or they, who (hall fo offend, fhall, on every fuch con-? n ? en ! J ff of viction, forfeit and pay any fum of money not exceeding five pounds, and „o t exceedin not lefs than twenty (hillings ; or (hall, by warrant under the hand and feal, 5I. nor lefs or hands and feals, of any fuch magiftrate or magiftrates, juftice or juftices, tnan 2 ° 5 - within his or their refpective jurifdiction, be apprehended "and committed to or . boii 'S coni - C 2 the, C£ mitted, and kept to hai labour for any 380 ttieftft* time not ex- the houfe of correction, or fome prifon of the county, city, town corporate ceedmg 1 borough, riding, divifion, liberty or place, where the offence (hall month, norlefs naye ^ en cQQjajjt^e^ or t he offender or offenders (hall be apprehended, a ^ s ' there to remain and be kept to hard labour for any time not exceeding one and the im- calendar month, nor lels than ten days, from the time of every fuch com- giitrate may, jjjjujjjg,,^ as an y f uc h magiftrate or magiftrates, juftice or juftices, fhall money of the think fit and order ; and it fhall and may be lawful for the magiftrate or forfeiture, magiftrates, juftice or juftices, before whom any fuch offender fhall be con- publifhinfome victed, out of the money forfeited, when recovered, to caufe the offender's news paper the name, place of abode, and offence, to be publifhed in fome news paper, name place of wn ' cn m all be printed or publifhed in or near the county, city or place, abode', and of- where any fuch offence fhall have been committed." fence. Se8. 22. "And be it further enacted by the authority aforefaid, That The penalty from and after the faid twenty-ninth day of September, no perlbn fhall of adulterating knowingly put into any corn, meal or flour, which fhall be ground, dreffed, com, mei.ory . manufactured for fale, either at the time of grinding, dreffine;, flour, whe her ... ' . . - r ' . , - & P* . S> at the time of bolting, or in any wile manufacturing the lame, or at any other time or grinding.dref- times, any ingredient, mixture, or thing whatfoever; or fhall knowingly fing, bolting, fell, offer or expofe to or for fale, any meal or flour of one fort of grain as or \r M- n for the meal or flour of any other fort of grain, or any thing as or for, or the meal or m ' xe| J with, the meal or flour of any grain, which fhall not be the real and flour of one genuine meal or flour of the grain the fame fhall import to be, and ought fort of grain to be, upon pain that every perfon who fhall offend in the premiffes, for another anc j jj^jj ^ e tnereo f convicted in manner herein after prefcribed, fhall for- orVny thing te ' lt an ^ P a y» for every fuch offence, any fum not exceeding five pounds, mixed, which nor lefs than forty (hillings, as the magiftrate or magiftrates, juftice or fhall not be of juftices, before whom any fuch offender or offenders fhall be convidted, fhall the genuine t hink fit or order." meal or flour of the grain the fame is fold for ; is not to exceed 5 1. nor be lefs than 40 s. Where bread Sett. 23. And be it further enacted by the authority aforefaid, That from fhall be of a ant j a f ter tne j^jj twenty-ninth day of September, no perfon fhall knowingly tureoTcorn " P ut ^ nto an y Drea d' which (hall be made for fale, any mixture of meal or than what it flour of any ocher fort of grain than of the grain the fame (hall import to importeth to be, and fhall be allowed to be made of, in purfuance of this act ; or fhall be of, or is ^ t ; nto anv bread which (hall be made for fale, any larger or other pro- 3 °T / the P ort ' on °f an y other or different fort or forts of grain, or the meal or flour proportion of thereof, than what fhall be appointed or allowed to be put therein by this act; the mixture or any mixture or thing as for or in lieu of flour which fhall not really be allowed of t ne genuine flour the fame fhall import to be, and ought to be ; upon pain dl "bf v i tnat ever y P er f° n who fhall offend in the premiffes, and fhall be convicted or where any' of any fuch offence in manner herein after prefcribed, fhall forfeit and pay thing fhall be any fum not exceeding five pounds, nor lefs than twenty fhillings, as the fold as flour, magiftrate or magiftrates, juftice or juftices, before whom any fuch offender wh "*e S 1^ or offenders fhall be convicted, flial'l think fit and order, every time he, (he offender is to or tne y fhall fo offend, and be convicted." forfeit not ex- Seff, ceeding jl.nor lefs than 20 s. Seft. 24. " And be it further enafted by the authority aforefaid, That where bread if any perfon or perfons who fhall make any bread for fale, or who fend ftll!i bt n a :e our, or fell, or expofe to or for fale, any bread, fhall at any time from u weight, and after the faid twenty-ninth day of September, make, fend out, fell or expofe to or for fale, any bread which fhall be deficient in weight, accord- ing to the affize which fhall be fet for any fuch bread from time to time to be fold at, in purfuance of this act, he, or they fo offending in the pre- the offender miffes, and being thereof convicted, in manner herein after prefcribed, of forfeits not ex- any fuch offence, fhall forfeit and pay a fum not exceeding five fhillings, ""'"gjs-nur nor lefs than one fhilling, for every ounce of bread which fhall at any f or ev ^ tin/e be wanting or deficient in the weight every fuch loaf ought to be of; deficient; ar./l for every loaf of bread which fhall be found wanting lefs than an a "d if under o/mce of the weight the fame ought to be of, a fum not exceeding two an ° z - note *- i/iillings and fix pence, nor lefs than fix pence ; as any fuch magiftrate or ^ '"^ z , s f 'magiftrates, jufticeor juftices, before whom any fuch bread which fhall not than 6d. be of the due weight the fame ought to be, fhall be brought, fhall think fit to order ; fo as fuch bread which ihall be complained of as wanting at any provided fuch time in the weight the fame ought to be of, in any city, town corpo- bread com- rate, borough, liberty, or franchife, or the jurisdiction thereof, or P la >ned of, if within the weekly bills of mortality, fhall from time to time be brought ln any Clty ' before fome magiftrate or magiftrates, juftice or juftices, having jurifdic- rate 0°^°" tion in the premiffes, and fhall be weighed before fuch magiftrate or ma- rough, giftrates, juftice or juftices, within twenty-four hours after the fame fhall De weighed have been baked, fold or expofed to or for fale ; and fo as fuch bread before the which fhall be complained of as wanting at any time in the weight the within 1 " 81 ** fame ought to be of, in any hundred, riding, divifion, liberty, rape, hours after wapentake or place, fhall from time to time be brought before fome the fame ftall juftice or juftices of the peace of fuch hundred, riding, divifion, liberty, be baked » rape or wapentake, or other place, and fhall be weighed before fuch juf- f ', ot "' tice or juftices within three days after the fame fhall have been baked, and if Tn any fold, or expofed to or for fale ; unlefs it fhall be made out to the fatif- hundred, faction of any fuch magiftrate or magiftrates, juftice or juftices, by or on ridin g, or the behalf of the party or parties againft whom any fuch complaint or dlV| ^. on > &V- information fhall be made, that fuch deficiency in weight wholly arofe V f" tn ' e n b ^ a> ' s from fome unavoidable accident in baking, or otherwife, or was occafi- or fale the're^' oned by or through fome contrivance or confederacy. of j unlefs fuch deficiency arofe from fome unavoidable accident, or by contrivance or confederacy. Se5f. 25. " And be it further enacted by the authority aforefaid, That All bread from and after the faid twenty-ninth day of September, every perfon who | nade for fe'e, fhall make for fale, or fell, expofe or fend out, to or for fale, any fort is tc '^ e fairI y of bread whatfoever, fhall, from time to time, caufe to be fairly imprinted" or marked on every loaf of each refpedlive fort of bread which he, fhe the wheaten or they fhall make or fell, or carry out, or expofe to or for fale, the Ro- bread with a man letters herein after mentioned •, that is to fay, Upon every loaf of lar § e Roman bread which fhall be made, fold, carried our, or expofed to or for fale, ^"^h as wheaten bread, a large Roman W ; and upon every loaf of bread which fhall 382 vbitm* fhall be made, fold, carried out, or expofed to or for fale, as houfehold or brown bread, a large Roman H ; and that every perfon who fhall make for fale, or fliall fell, carry out, or expofe to or for fale, any loaf of any fort of bread, which fhall be allowed to be made in purfuance of this aft, which fhall not be marked purfuant to the directions of this aft, fo as in order to the fame may, on the view thereof, be afcertained, from time to time, afcertain un- under what denomination or fort of bread every fuch loaf was made, and der whatde- 0U g] u t0 De weighed (except as to fuch loaves which fliall be rafped after waTrnade'^ ^ befpeaking or purchafing thereof, by the particular defire of any per- and ought to f° n who fliall order the fame to be {o rafped, for his, her or their own be- weighed; ufe or ufes) fliall, for every time he, fhe or they fhall offend in the pre- under penalty mifles, and be thereof convifted in manner herein after prefcribed, forfeit "a s^nar \tk anc * P a ^ a *" um not excee ding twenty fliillings, nor lefs than five fhillings, than 5 s. as anv magiftrate or magiftrates, juftice or juftices, before whom the of- fender fliall be convifted, fhall direft, for every loaf of bread not marked as hereby is direfted. Baker? de- SeEI. 26. " And be it further enafted by the authority aforefaid, That maiding or from and after the faid twenty-ninth day of September, no baker, or other If'h** 1 perfon or perfons, fliall afk, demand or take, for any bread which he, for bread, fh e or trie y fhall fell, or expofe to or for fale, any greater or higher than what the price than fuch bread fliall be afcertained to be fold for or at by the court, fame (hall be magiftrate or magiftrates, or juftices, hereby authorized to fet the price let at by the anc l a ffi Z e of bread, within their refpeftive jurifdiftions ; and that no ba- or'refufine to ^er, or ot h er perfon who fliall make any bread for fale, fhall refufe or de- fell to any cline to fell any loaf or loaves of any of the forts of bread, which in pur- perfon any of fuance of this aft fliall be allowed or ordered to be made, to any perfon the forts a!- or p er f ns who fnall tender ready money in payment for the fame, at or dered w be ^ or c ' lc P r * ce ^ ucn bread, by the affize which fliall have been fet in refpeft made, thereof, fliall be fixed at, or afcertained to be fold for, when any fuch when he (hall baker, or other perfon who fliall make bread for fale, fhall have any loaf have more of any fuch bread in his or their houfe, bakehoufe, fliop, or [poffeffion, to than is ne, be fold, more than fliall be requifite for the immediate neceffary ufe of immediate ufe h' s > ner o f their own family, or cuftomers ; and which it fhall be in- of his family cutnbent on fuch baker, or other perfon who IhaU be complained of, for o.- cuitomers, refufing or declining to fell any fuch bread, to prove before the magiftrate or magiftrates, juftice or juftices, to whom any fuch complaint fliall be forfeits not made, if thereunto required by the party or parties who fhall make any exceeding f^^ complaint ; upon pain that every perfon who fliall be convifted of 40 s. nor lefs & ^ ^^ ff ence5 iri manner herein after prefcribed, fliall forfeit and pay a fum not exceeding forty fhillings, nor lefs than ten fliillings, as the ma- giftrate or magiftrates, juftice or juftices, before whom any fuch offender or offenders fhall be convifted, fliall think fit and order, every time he, flie or they fliall fo offend and be convifted. Bread of any Sett. 27. " Provided further, and it is hereby likewife enafted, That interior qua- from and after the faid twenty-ninth day of September, no perfon fhall fell, lity to whea- or Q ^ tQ ^1^ an y bread of an inferior quality to wheaten bread, at a beVldTt a° higher price than houfehold bread fhall be fet at by the affize ; and if any perfon perfon fhall offend in the premiffes, he fhall forfeit and pay for every fuch higher price offence, on being convicted thereof, either by his, her, or their confcf- than houfe- fion, or by the oath of one or more credible witnefs or witneffes, before J? oW bread 1S any magiftrate or magiftrates, juftice or juftices, within whole jurifdic- Q e n p e ' ra i, y f tion any fuch offence fhall have been committed, the fum of twenty fhil- zos . lings. Seel. 28. " And, that the good defign of this ftatute may be the more effectually accomplished, be it further enacted by the authority aforefaid, That from and after the laid twenty-ninth day of September, it (hall be Mandates, lawful for any magiftrate or magiftrates, juftice or juftices of the peace, jMicn, or within the limits of their refpectivejurifdictions, and alio for any peace of- F eace officer.*, ficer or officers, authorized by warrant under the hand and leal, or hands P ro F erI .y au ' and feals, of any fuch magiftrate or magiftrates, juftice or juftices (and which ^iei'in the^ warrant any fuch magiftrate or magiftrates, juftice or juftices, is and are day tirr.e the hereby impowered to grant) at feafonable times in the day time, to enter houfes, flops, into any houfe, fhop, ftall, bakehoufe, warehoufe or outhoufe of or *vj ° rl)a ^ er5 » belonging to any baker, or feller of bread, to fearch for, view, weigh and * Q n r e *j C try all or any the bread, which lhall be there found : And if any bread, weigh, the on any fuch fearch, fhall be found to be wanting either in the goodnefs bread there- of the fluff whereof the fame lhall be made, or to be deficient in the due '">" baking; or working thereof, or lhall be wanting; in the due weig-ht, or fhall fr" 13 ? „ e o o * o o * iuCil 2S (null not be truly marked according to the directions of this act, or fhall be of ^ e found any other fort of bread than fhall be allowed to be made by virtue of this wanting in act; any fuch magiftrate or magiftrates, juftice or juftices, peace officer gocdnefs, due or peace officers, within the limits of their refpective jurisdictions, may Dal : ,n S' or feize the fame; and any fuch magiftrate or magiftrates, juftice or juftices, o/r.ot rrcrcr- may difpofe thereof as he or they, in his or their difcretion, fhall think ] y marked, fit. or of any dif- ferent fort than is allowed of, and difpofe thereof at their difcretiqo. Seel. 29. " And be it further enacted by the authority aforefaid, That where any if, at any time after the faid twenty-ninth of September, information fhall miller, meal- be given on oath, to any magiftrate or magiftrates, juftice or juftices of man, or ba- the peace, that there is reafonable caufe to fufpect that any miller who ker » flu " ke grinds any grain for toll or reward, or any perfon or perfons who doth or ^y'^ do drefs, bolt, or in any wife manufacture any meal or flour for fide, or meaUr 'fluur. any maker of bread for fale, within the limits of the jurifdiction of any fuch magiftrate or magiftrates, juftice or juftices, doth or do mix up with, or put into, any meal or flour ground or manufactured for fale, any mix- ture, ingredient, or thing whatsoever, not the genuine produce of the grain fuch meal or flour fhall import and ought to be, or whereby the purity of any meal or flour, in the poffeffion of any fuch miller, meal- man, or baker, is or fhall be in any wife adulterated ; then, and in every , fuch cafe, it fhall be lawful for any fuch magiftrate or magiftrates, juftice ft r ativl?V. or juftices, and alfo for any peace officer or officers, authorized by war- upoo'infbr- rant or warrants to him or them directed under the hand and feal, or hand's nation made! and feals of ar.v magiftrate or magiftrates, juftice or juftices, within the trtI ' ' " ° J •> ' ... oath, may en- IimUSfertnepre, 3 8+ jBjeaD* mifies of fuch limits of their refpeftive jurifdiftions ; and which warrant or warrants fufpefted p - „ , on complaint, ■baker, (hall, at any time after the twenty-ninth dav of September, make ws kt it »p Vol. I. N XVII. 3D complaint psar, that the 3 86 JBjeat>> ff e he complaint to any magiftrate or magiftrates, juftice or juftices of the peace, ^"charged within theif\ jurifdiction, and make appear to them, by the oath of any with, and paid credible witnds, that any offence, which any fuch perfon who fhall fo the penalty of, carr y on or follow the laid trade of a baker fhall have been charged with, wasoccahon- anc j q^jj ^ ve incurred and paid any penalty under this act, fhall have ful deiLVo'f been occafioned by or through the wilful neglect or default of any jour- his journey- neyman, or other fervant employed by or under any fuch perfon who fhall man or fer- fofollow or carry on the laid trade of a baker; then, and in anyfuch cafe, any vant, fuch magiftrate or magiftrates, juftice or juftices, may and are hereby requi- fhallTffu e^hiT rec * ro '^ ue out ^ s or tne ' r warrant > under his or their respective hands and warrant for feals, for bringing any fuch journeyman or fervant before any fuch magi- apprehending ftrate or magiftrates, juftice or juftices, or any magiftrate or juftice of the the party ; county, city, riding, divifion or place, where the offender can be found ; and, on any fuch journeyman or fervant being thereupon apprehended, and brought before any fuch magiftrate or magiftrates, juftice or juftices, he or they, within their refpective jurifdictions, is and are hereby autho- and uponcon- rized and required to examine into the matter of fuch complaint ; and, on •viaion of the p roo f thereof being made upon oath, to the fatisfa&ion of any fuch magi- oftence, (ha g jfl. rate or rnaeiftrates, iuftice or juftices of the peace who fhall hear fuch faid decree a rea- 6 & 'J J ■ n- ■ n- ibnable re- complaint, then any fuch magiftrate or magiftrates, juftice or juftices, is and compence to are hereby directed and authorized, by any order under his or their refpective be paid to the nan( j or hands, to adjudge and order what reafonable fum of money fhall be mafl "' paid by any fuch journeyman or fervant to his mafier or miftrefs, as or by way of recompence to him or her, for the money he or fhe fhall have paid by reafon of the wilful neglect or default of any fuch journeyman or fervant : and on non- And if any fuch journeyman or fervant fhall neglect or refufe, on his con- payment viction, to make immediate payment of the fum of money which any commit the f ucn ma ghtrate or magiftrates, juftice or juftices, fhall order him to pay offender; by reafon of fuch his faid wilful neglect or default; then any fuch magi- ftrate or magiftrates, juftice or juftices, within their refpective jurifdicti- ons, is and are hereby authorized and required, by warrant under his or to be kept to their hands and feals, to caufe every fuch journeyman or fervant to be ap- hard labour prehended and committed to the houfe of correction, or fome other pri- for any time 4 - on Q f tne coun ty, riding, divifion, city, town corporate, borough, or ""month e u'n- S pl ace ' in which any fuch journeyman or fervant fhall be apprehended or lets payment convicted, to be there kept to hard labour for any time not exceeding be fooner one calendar month from the time of fuch commitment, as to fuch magi- made, ftrate or magiftrates, juftice or juftices, fhall feem reafonable, unlefs pay- ment fhall be made of the money ordered after fuch commitment, and be- fore the expiration of the faid term of one calendar month. SeEl. 34. " And, for the better and more eafy recovery of the feveral penalties and forfeitures to be incurred by difobedience to this act, and the powers herein contained, and difpofing of the money which fhall be forfeited by breach or non-obfervance of any part of this act ; be it fur- All offences ther enacted by the authority aforefaid, That it fhall and may be lawful to againfl this ar ,d f or the mayor of the faid city of London for the time being, or any * d ™ ay , b( \ alderman of the faid city, within the faid city or liberties thereof; and to temiined in a an ^ f° r an y other °f his majefty's juftices of the peace, or any one of them, fummary 4 Within within their refpective counties, ridings, divifions, cities, towns corporate, way, by ma- boroughs, liberties or jurifdictions, to hear and determine, in a fummary giflrates wiih- way, all offences committed againft the true intent and meaning of this ' n t . ! J e,r '«-. ac~t ; and, for that purpofe, to fummon before them, or any of them, f^-^ Jlir ' within their refpective jurisdictions, any party or parties acculed of being Offenderstnay an offender or offenders againft the true intent and meaning of this act : befummoncd; And in cafe the party acculed fhall not appear on fuch fummons, or of- and not ap- fer fome reafonable excufe for his default ; then, upon oath by any ere- pearing there- dible witnefs of any offence committed contrary to the true intent and t0> OT0 -^' r -g meaning of this act, any fuch magiftrate or magiftrates, juftice orjuftices, g^t „— fhall ilTuehis or their warrant or warrants for apprehending the offender or be apprehend - offenders within thejurifdiction of any fuch magiftrate or magiftrates,juftire ed. or juftices : And upon the appearance of the party or parties acculed, or Matter of the in cafe he or they fhall not appear, on notice being given to, or left for complaint to him or them, at his or their ul'ual place of abode, or if he or they cannot be enquired be- apprehended on a warrant granted againft him or them as herein before In ' c • j j u j ■ r 1 r r l T T oatn, ana ex- is directed ; then, and in any iuch cafe, any inch magritrate or magiltrates, a mi»ation of juftice orjuftices, is and and are hereby authorized and required to pro witntiles; ceed to make inquiry touching the matters complained of, and to examine any witnefs or witneffes, who fhall be offered on either fide, on oath, as aforefaid, and which every fuch magiftrate or magiftrates, juftice or juf- tices, is and are hereby authorized, impowered and required to admi- nister-, and, after hearing of the parties who fhall appear, and the wit- and the party neffes who fliall be offered on either fide, fuch magiftrate or magiftrates, t0 , e conv | ft - ■ n- • n- n 11 -n. • 1 j- j ed or acquit- lultice or justices, mail convict, or acquit, the party or parties acculed : ted thereupon And if the penalty, or money forfeited, on any fuch conviction, fliall not be The penalty paid within the fpace of twenty-four hours after any fuch conviclion, every °n nonpay- fuch magiftrate or magiftrates, juftice orjuftices, fhall thereupon iffue a me !' t tnere °f warrant or warrants under his hand and feal, or their hands and feals, re- j, + fpectively, directed to any peace officer or officers within their refpective is to be levied jurifdictions, impowering him or them to make diftrefs of the goods or by diftrefs chattels of the offender or offenders : And if any offender fhall convey and fa'e; away his goods out of the jurisdiction of any fuch magiftrate or magi- * n ! ' ? Urates, juftice or juftices, before whom he was convicted, or fo much chattels of the thereof that the penalty cannot be levied, then fome magiftrate or juf- party fhall be tice within whole jurisdiction the offender fhall have removed his goods, removed into lhall back the warrant granted by any fuch magiftrate or juftice, magi- pother junf- itrates or juftices ; and thereupon the penalty forfeited fhall be levied on m3 giii rate the offender's goods and chattels, by diftrefs and fale thereof; and if hereof is to within five days from the diftrefs being taken, the money forfeited lhall back the war-' not be paid, the goods Seized fhall be appraifed and fold, rendering the r „ in l o{ di " overplus (if any) after deducting the penalty or forfeiture, and the cofts a ^ S tne [0 . jury fhall find that no fuch tender was made, or that the amends tendered c ^ s owed hls were not fufficient, or {hall find againll the defendant or defendants, on any Plaintiff reco- plea or pleas by him or them pleaded ; they fhall then give a verdict for vering, inti- the plaintiff, and fuch damages as they fhall think proper, and the plaintiff tle any thing done in purfuance of this act, the defendant or defendants in any may p ! ea ~ ,h * fuch action or fuit may plead the general iffue, and give this act and the lpecial matter, in evidence, at any trial to be had thereupon •, and that the fame was done in purfuance and by the authority of this act : And if it fhall appear fo to have been done, or if a verdict fhall be recorded for the 1 defendant or defendants •, or if the plaintiff fhall be nonfuited, or difcon- tinue his action, after the defendant or defendants fhall have appeared ; or if judgment fhall be given upon a verdict or demurrer, againft the plaintiff or plaintiffs ; the defendant or defendants in every fuch action fhall and an d obtaining may recover treble cofts-, and have the like remedy for the fame as any a veroia, re- defer.dant or defendants hath or have in other cafes by law for recovery of cover treble his, her, or their cofts." co(ls - ScH. 42. " Provided always, That no perfon fhall be convicted, in manner p ro f ecut ; on aforelaid, for any of the before- mentioned offences, unlefs theprofecution, be commenced in within 3 oays 392 ^eaa* after the of- in order to fuch conviction, be commenced within three days next after the fence. offence commmitted. Setl. 43. Provided alfo, and be it enacted, That this act, or any thing General refer- } iere i n contained, fhall not extend to prejudice any right or cuftom of the T ht" ° CIt y °^ London, or the practice there ufed, or any right or cuftom of any lord or lords of any leet, to fet, inquire and punifh the breach of affize of bread, within their respective leets or views ot" frank pledge, or the right of any clerk or clerks of the market in any place. R f tionof ^ e ^' 44' P rov 'ded further, and it is hereby likewife enacted, That neither rights of the tn ' s act, or any thing herein contained, fhall extend, or be conftrued to ex- dean and high tend, to prejudice the ancient right or cuftom of the dean of the collegiate fteward of church of Saint Peter IVeft?ninfter, or the high fteward of the city of Weftminfter, jy e j} m j n ji er ^ zn( \ t he liberties thereof, or his deputy, or any of them, 6f bread with- to * et 5 afcertain and appoint the affize and weight of all forts of bread in the city and to be fold or expofed to fale within the faid city of IVeftminfter, and the liberty of liberties thereof ; but they, and every of them, fhall and may feverally Weltminrter; anc j re fpectively, from time to time, as there fhall be occafion, fet, afcertain and appoint, within the faid city of Wejiminjler and the liberties thereof, according to the true intent and meaning of this act, the affize and weight of all forts of bread which fhall be made, fold or expofed to fale, by any perfon or perfons within the limits of the faid city of Weftminfter and the , .- liberties thereof-, and fhall and may inquire and punifh the breach of every any breach ^* L1cn a ft ]Ze an d weight of bread, as fully and freely in all refpects, as they, thereof. or any of them, have hitherto been accuftomed to do, and as if this act had never been made ; any thing contained to the contrary thereof notwith- ftanding." Seel. 45. " Provided likewife, That neither this act, nor any thing here- e , e , rV ,!. 1 f | n » in contained, fhall extend, or be conftrued to extend, to prejudice the ri£ntS tO tile m m r \ * r* * s~\ r 1 j"> * • 7 umverftcies of ancient right or cuftom or the two univerfmes or Oxford or Cambridge, or Oxford and either of them, or of their or either of their clerks of the marker, or the Cambridge, top ra( nj ce within the feveral jurifdictions of the faid univerfities, or either of let ana.iizeof ^em, ufed, to fet, afcertain and appoint the affize and weight of all forts of their jurifdic- bread to be fold or expofed to fale within their feveral jurifdictions •, but tions ; that they, and every of them, fhall and may feverally and refpectively, from time to time, as there fhall be occafion, fet, afcertain and appoint, within their feveral and refpective jurifdictions, the affize and weight of all forts of bread to be fold or expofed to fale by any baker or other perfon whatfoever, sndpunifliany w } tn j n tne limits of their feveral jurifdictions; and fhall and may inquire breach there- anc | p Un jfh tne breach thereof, as fully and freely in all refpects as they ufed to do, and as if this act had never been made; any thing herein con- tained to the contrary thereof notwithftanding." ©tat ' %tdt- 32 Geo. 2. e. 18. [//. D. 1758.] made, among other purpt,fes y ct Ti> appropriate certain penalties mentioned in an act made in the Jail ieffion of parliament, for the due making of bread ; and to regulate the price ami afTrze thereof; and to punifh perfons who (hall adulterate meal, flour or bread." SeH. 2. And whereas feveral of the penalties or forfeitures made payable by an aft pafled in the thirty-first year of his prefent majesty's reign, in- tituled, " An aft for the due making of bread ; and to regulate the price Ad31Geo.II. and affize thereof; and to punifh perfons who mall adulterate meal, flour or bread" ; were not by fuch faid last mentioned aft appropriated how or to whom the fame fhould, when paid or recovered, go or be distributed ; Be it therefore further enafted by the authority aforefaid, That fuch of the penalties or forfeitures which, from and after the twenty-fourth day of jy* ., . June one thoufand feven hundred and fifty-nine, fhall incur or become f tn( , u ' ro j payable by or under the faid laft-mentioned act, or by reafon of any thing priated pe- therein contained (as by the faid aft are not particularly difpofed of, or nalties and appropriated, how or to whom the fame fhould go or be applied) fhall, for J eitu f e s when the fame fhall be recovered or paid, go and be distributed in manner ^ . er ' e a following ; that is to fay, one moiety thereof, where any offender or of- viz. one fenders fhall be convifted, either by his, her or their own confeflion, or by moiety to the the oath of one or more credible witnefs or witneffes, fhall go and be paid P ro( «utor, to theperfon or perfons, who fhall inform againft and profecute to convic- ^^'j,"'" tion, any fuch offender or offenders ; and the other moiety thereof, and convifled by alfo all penalties and forfeitures, which, from the faid twenty-fourth day of oatb, or fdf- June one thoufand feven hundred and fifty-nine, fhall incur, be due or confeflion ; payable, under the faid laft-mentioned aft, on the weighing, trying or an< ! ^ e °'.' 1 5 r feizure of any bread, by any magiltrate or magiftrar.es, juftice orjuftices, ^'pe^'alties fhall go and be applied for the better carrying into execution the purpofes on weighing* of the faid laft-mentioned aft, as any fuch magistrate or magistrates, juftice tr y>ng. or orjuftices, within his or their refpeftive jurifdiftion, fhall from time to [ ei » ure °f time think fit and order." Si y ' magiltrate, to fuch purpofej S>tilt« 3 Geo. 3. c. 11. [A. D. iy$3. intituled] "An aft for explain- as the magi- ing and amending an aft made in the thirty-firft year of the reign of his ftrate flia11 late majefty king George the fecond, intituled, An aft for the due making th fit * of bread ; and to regulate the price and affize thereof : and to punifh perfons who fhall adulterate meal, flour or bread." Whereas the statute made in the thirty-firft year of the reign of his late p rea roble; majefty king George the fecond, intituled, " An aft for the due making of bread, and to regulate the price and affize thereof; and to punifh perfons who fhall adulterate meal, flour or bread" ; is deficient in feveral of the provifions thereby made when an affize of bread is not kt purfuant to the directions of the laid aft: For remedy wherein, and in order that makers of br^ad for fale, and the fellers thereof, may in all places, although the affize of bread fhall at any time not be fet, be under due regulations ; Be it Vol. I. N^ XVII. 3 E enacted 394 B^eat). enabled by the king's mod excellent majefly, by and with the advice and confcnt of the lords fpiritual and temporal, and commons, in this prefent parliament affembled and by the authority of the fame, That from and after the firft day of May one thoufand feven hundred and fixty-three, i^bx "noaf- though no affize of bread fhall be kt in purfuance of the faid aft, no fized 'and pri- loaf or loaves of bread, called or deemed affize loaf or loaves in the zed breadtobe tables of the affize and price of bread in the faid act enacted and made at the referred to, and the weight of which varies according to the variatioa ame time in -^ ^ price of grain, (hall be made for fale, fold or carried out for fale, ' or be offered or expofed to or for fale, or be allowed to be fold in any place, where any loaf or loaves of the bread called or deemed prized loaf or loaves in the faid tables of the affize and price of bread, in and by the faid act enacted and referred to, and the price of which varies according to the variation in the price of grain, fhall at the fame time be made for fale, or be allowed to be fold ; that is to fay, no affize loaves of the price of three pence, and prized loaves called half quartern loaves, nor affize loaves of the price of fix pence, and prized loaves called quartern loaves, nor affize loaves of the price of twelve pence, and prized loaves called half peck loaves, nor affize loaves of the price of eighteen pence, and prized loaves called peck loaves, fhall at the fame time, in any place be made for fale, fold, or carried out for fale, or be offered or expofed to or for fale, or allowed to be fold ; that unwary perfons may not in any wife be impofed on, and prejudiced by buying affize loaves referred to in the faid tables, as. or for prized loaves referred to in the faid tables, or by buying fuch prized upon penalty i oaves as or for fuch affize loaves ; and every perfon who fhall offend in the o or eitl ^S premiffes, and be convicted of any fuch offence in manner hereafter fpecified, 40s.norlefs fhall, for every fuch offence, forfeit and pay a fum not exceeding forty than ios. fhillings, nor lefs than ten fhillings, as the juftice or juftices, before whom any fuch offender or offenders fhall be convicted, fhall, from time to time, adjudge." Juftices, at any $ e ft_ 2 . " And be it further enacted by the authority aforefaid, That from general, quar- anc j a f ter ^ ^^ ^ r ^ ^ Q f -^^ Qne t h ou f anc i feven hundred and fixty- {effien, may three, although no affize of bread fhall be fet purfuant to the directions appoint which of the faid act, the juftices of the peace of every county, riding, divifion, city of the forts of town, liberty and place, fhall and may, at any general or quarter feffion of affize orpnzed ^g p eace wri ich fhall be held within their refpective counties, divifions, cities, towns, liberties or jurfdictions, or at any petty feffion which fhall be held by any fuch juftices within their refpective jurifdictions, from time and what other tQ t \ me ^ afcertain and appoint (as often as they fhall think proper) for all and of what ' or anv P art °^ tne ' r refpective jurifdictons, which of the forts of affize or grain, (hall prized loaves fhall be allowed from time to time to be made and fold be made for within their refpective jurifdictions ; and alfo what other forts of bread,, fale, theycaul an( j f w ^ at fo n an j j- orts f grain, fhall be allowed to be made and fold be S madeof '° Wltmn tne ' r refpective jurifdictions, or within any part thereof; and every fuch orders ; order which fhall be fo from time to time made in or touching the premifies which is to be by any fuch juftices, fhall be entered in a book to lie provided and kept free forinfpec- f or fa t purpofe by fuch iuftic'es, and which book fhall and may be in- « 10n ' fpefted Bjeaa. 395 fpected by the makers of bread for fale, within the refpective jurifdiction of any fuch juftices, at all feafonable times in the day time, and without paying any fee or reward in refpect thereof; and after the making every fuc border by any fuch juftices, the juftices who (hall make the fame fhall, a " d a "P^ with all convenient fpeed, caule a copy of every fuch order to be affixed or f et up in ( omc put up in fome market or other public town within the divifion or part of market, or the county, riding, liberty, rape, wapentake, city, town, or place, in which other public fuch order is to be obferved and take place : or elfe every fuch juftices, P lace » or within their refpective jurifdictions, fhall caufe a copy of every fuch order to be, with all convenient fpeed after the making thereof reflectively, in- ferted in fome public news paper which fhall be publifhed in the county, P ubll " ,ed m ..-*• • * ■ * the country riding, divifion, liberty, rape, wapentake, city, town or place, or fome news pa p e j S part thereof, in which every fuch order refpectively is to be obferved and take place." Seel. 3. " Provided always, and be it enacted by the authority aforefaid, Theonly forts That no juftices, within their refpective jurifdiction, fhall at any time allow \ )Ze ( 7 ac , . . J - ' -,,. r r '-_ , . . ' - . _ made ot wheat the making for iale, or felling, any forts or affize bread made of the flour wn ich fhall be or meal of wheat, other than and befides wheaten and houfhold bread, allowed. and loaves of white bread of the price of two pence or under." Sell. 4. " And be it further enacted by the authority aforefaid, That A like propor- from and after the faid firft day of May one thoufand feven hundred and tl0D ' as . t0 . fixty-three, although the affize of bread fhall not be fet purfuant to the faid J^fjS, ^ ^° act, every maker oi bread for fale fhall obferve and keep the fame or like tween t h e proportion between white and wheaten bread, and wheaten and houfhold white and affize bread, as to weight, as is mentioned or intended, enacted and referred wheaten bread to in the faid affize gables •, that is to fay every white loaf of the price of an , , two pence, or under, fhall always weigh three parts in four of the weight of houfhold affize the wheaten loaf of the like price, as near as may be; and every wheaten bread ; viz. affize loaf j of bread, of whatfoever price the fame fhall be, fhall always weigh three parts in four of the weight of every houfhold afiize loaf of -bread of the like price as near as may be •. and that every houfhold affize loaf of bread, of whatever price the fame fhall be, fhall always weigh one third part more than every wheaten affize loaf of the like price as near as may be ; and every perfon who fhall make for fale, fell, offer or expofe to or for fale, or have in his or her cuftody for fale, any loaf of white, wheaten, or houfhold bread, in which the laid proportions or regulations fhall not be obferved and kept, as near as may be, ihall on being convicted of any fuch offence in manner herein after-mentioned, forfeit and pay, for every fuch on penalty of ^offence, a fum not exceeding forty (hillings, as the juftice or juftices before forfeit,n 2> not whom any fuch offender or offenders fhall be convicted, fhall, from time to excee in S4 os - time, adjudge." Sett. 5. " ,And be it further enacted by the authority aforefaid, That a proportion . from and after the laid firft day of Alcy one thoufand feven hundred and in the price is fixty-three, although the affize of bread fhall not be fet purfuant to the t0 be ke P c in faid act, every peck, half peck, quarter of a peck, and half quarter °f a ' „a h"f ' °*k peck loaf, made for fale, of the meal or flour of wheat, and called -wheaten™^ ;,* ^ t ' bread, fhall always be fold in proportion to each other refpectively, as tofubdivifions, 3 E 2 price }b°r. nintne in'houftold P rice ' and that every peck, half peck, quarter of a peck, and half quar- bread ; ter of a peck loaf, made for fale, of the meal or flour of wheat, and called and the houf- houjhold. bread, (hall always be fold in proportion to each other, and for hold is to be one f ollrtn lefs in price than the loaf made for fale with the meal or flour one fourth Q £ wneat) ca u e d wheaten bread, of the fame denomination ; and every tbewheaten; perfon who fhall in any wife offend in the premiffes, fhall, for every loaf of either the faid wheaten or houfhold bread which fhall be fold by him or her, or offered or expofed to or for fale, or found in his or her cuftody on penalty of for fale, contrary to the true intent and meaning of this acf, forfeit and forfeiting, not p av a f um not exceeding forty {hillings, nor lefs than ten {hillings, as the exceeding ; u ft-; ce or i u (lices before whom any fuch offender or offenders fhall be 40 -. nor lefs ■> % .J H ._ f< . . . J ... than 10s. convicted, {hall, from time to time, adjudge. The - ■ h ^ e ^ - 6- " -And De ' l father enadfed by the authority aforefaid, That from the peck"loaf, an d after the faid firft day of May one thoufand feven hundred and fixty- and its fubdi- ' three, although the alTize of bread fhall not be fet purfuant to the faid visions, aie to recited adf, the feveral loaves herein after-mentioned of every fort of weigh, m bread which fhall be made for fale, fhall always weigh in averdupois b^ld w°hich weight as follows -, that is to fay, every peck loaf, feventen pounds fix fhall be made ounces •, every half peck loaf, eight pounds eleven ounces •, every quarter for fale, although the aflize of bread fhall not be fet purfuant to the impreffedwith directions of the faid act, every loaf of every fort of bread made of the fuch letter as meal or flour of any other fort of grain than wheat, which fhall be made thejuilices f or f a ] e? or be fold, carried our, offered or expofed, in any wife, to {ball order; or f Qr j- a j e ^ j^ a jj De mar k e d w j t h fome fignificant anddiftinct letter or let- ters, not more than two thereon reflectively, as the juftices of any county, riding, divifion, liberty, city, town or place, at any general or quarter-fefiion of the peace which (hall beholden within their refpective counties, ridings, divifions, liberties, cities, towns or places within their refpective junfdic- tions, or at any petty feffion which fhall be held by any fuch juftices with- in their refpective jurifdictions, (hall from time to time, for their refpec- they caafing tive counties, ridings, divifions, liberties, rapes, wapentakes, cities, an entry to be towns, or places, or any part thereof, order or direct ; and every fuch made of fuch order fhall, with all convenient fpeed after the making thereof, be entered •"t^b It ' n *° me k °k t0 ^ e f° r tnat purpofe provided and kept by fuch juftices, for infpedion ; ar >d whereunto any maker of bread for fale refiding within any fuch county, divifion, liberty, rape, wapentake, city, town or place, fhall be at liberty to refort at feafonable times in the day-time, and to perufe every fuch order without being fubject or liable to pay any fee or reward and a copy in refpect thereof •, and fuch juftices as aforeiaid (hall, with all convenient thereof to be fpeed after the making any fuch order as aforefaid, caufe a copy thereof fet up in fome to De affixed or put up in fome market or other public town within the other^ubi' divifion or part of the county, riding, liberty or place, in which, fuch or- place, der as aforefaid is to be obferved or take place, or in fome publick place in every city, town or place, where fuch order is to be obferved or take or publifhed place ; or otherwife fuch juftices, within their refpective jurifdictions, (hall in the country caufe a copy of every fuch their refpeftive order, with all convenient fpeed news papers. a f ter tne making thereof, to be inferred in fome public news paper which (hall be ufually publifhed . in the county, riding, divifion, liberty, rape, wapentake, city, town or place, or fome part thereof, in which fuch Where the order as aforefaid is to be obferved or take place •, and if the juftices as juftices ne- aforefaid fhall at any time, in any place, neglect or omit to make any or- gleclto make c j er ^ f rom c ; me t0 time, with what letter or letters fuch bread which the maker is ma ^' be made for fale, of the meal or flour of any other fort of grain than to mark every wheat, (hall be marked, then the maker of all fuch bread for fale (hall, fuch loaf with in every place where no fuch order fhall be made or be/in force, caufc 2 diitmft ca everv i oa f of fuch bread he or (lie (hall make, or caufe to be made for pita .ettersj ^^ ^ fj ia n fe\\^ or offer or expofe to or for fale, to be reflectively mark- ed with any two diftinct. capital letters as he or (he fhall think fit ; and every perfon who, after the firft day of May one thoufand feven hundred and fixty-three, fhall make for fale, fell, offer or expofe to or for fale, or have in his or her cuftody, for. fale, any loaf of any fuch fort of bread which fhall be made with the meal or flour of any other fort of grain than wheat, 26jea&. 399 wheat, which fhall not be marked as herein before is directed, fo as that the fame may, on view thereof, be afcertained under what denomination every fuch loaf was made (except fuch loaves thereof which fhall be rafped after the befpeaking or purchafing thereof, by the particular defire of the perfon who fhall order the fame to be rafped for his or her own ufe) on penalty of fhall, for every time he, fhe or they fhall fo offend in the premiffes, for*e,ting not and be thereof convi&ed in manner herein after directed, forfeit and pay needing a fum not exceeding forty (hillings, nor lefs than five millings, for every ^ n ° r f e * loaf of fuch bread which fhall not be fo marked as herein before is firft di- every fuch un- reeled, as the juftice or juftices before whom any fuch offender fhall be marked loaf, convicted fhall, from time to time, adjudge. Sett. 10. " And to the end the good defign of this ftatute may be more effectually accomplifhed ; be it further enacted by the authority aforefaid, That from and after the faid firft day of May one thoufand {'even hundred Juftices,. and fixty -three, it fhall and may be lawful for any juftice or juftices within the limits of their refpective jurifdictions, although the affize of bread fhali nor. be there fet according to the faid herein before in part recited act-, and alio for any peace officer or officers authorized by warrant under the and peace cf- hand and leal, or hands and fer.ls, of any fuch juftice or juftices (and ficers ( auth °- which warrant any fuch juftice or juftices is and are hereby empowered ^" f ^* ar " to grant within their refpective jurifdictions), to enter into any houie, fhop, ft; ce ) . ftall, bakehoufe, warehoufe, or outhoufe, or other place, of or belonging may enter the to any baker or feller of bread, and to fearch, view, weigh, examine and houfesofba- try all or any bread which fhall be there found; and alfo to view, weigh and ^ ' h f try all bread made for fale, which at any time fhall be offered or expofed exiSime ' aB & to or for fale, or found in anyone's cuftody for fale, in any wife howfo- weigh all ever, within the refpective jurifdiction of any fuch juftice or juftices : and bread made if anv loaf or loaves of bread of any denomination, fhall, on any fearch, view, J° r < or "P°" weighing, trial or examination thereof, by any juftice or juftices, or on e t0 e ' c ' any complaint made to, or information given before, any juftice or juf- tices, and proved by the oath of one or more credible witnefs or witneffes, and bread be found to be deficient in the due weight the fame ought to be, or not (omd defec- to be marked according to the directions and intent of this act, or to be tIV ? '" the deficient in the due baking or working thereof, or to be wanting in the ^* t '^ u j' °' goodnefs of the fluff whereof or wherewith any fuch loaf fhall have been marked, or made, or to have been made with any mixture of meal or flour of any other wanting in fort of grain than of the grain the fame fhall import to be made with, or oue ba k ,r) g» to be made with any larger or other proportion of any other or different"' j^° n ,^L fort or forts of grain, or the meal or flour thereof, than what ought to be dulemly mut, put therein, or to be made with any mixture or ingredient which by the cifc. faid in part recked act ought not to be put therein •, or to be made with any thing as for or in lieu of flour which fhall not really be the genuine flour the fame fhall impo t to be and ought to be, or that any fuch bread mall be made with any leaven not allowed by the faid in part recited act to be ufed in making bread ; then, and in every or any of the faid cafes, every fuch juftice or juftices, peace officer and officers as aforefaid, is and are hereby reflectively, within the limits of their feveral jurifdictions, im- i powered miy be feized, powered and required by the authority of this act, to feize every loaf of and given to fuch bread, and to difpofe thereof to poor perfons, as fuch juftice or juf- the poor ; t j ces j n \ us or trie i r difcretion fhall, from time to time, within their re- unlefsfuchde- fpeftive jurifdiftions, think fit ; unlefs it fhall be made out to the fatisfac- fault fhall be t | on f an y f ucri juftice or juftices, by or on the behalf of the party or accounted for • P art ' es a g a ' n ft whom any fuch complaint or information as aforefaid fhall ' be made, that the default found or complained of wholly arofe from fome unavoidable accident, or was occafioned by or through fome contrivance or confederacy ; and every maker and feller of bread refpeftively as afore- faid, whofe bread fhall at any time be found before any juftice or juftices wanting in the goodnefs of the fluff, whereof or wherewith the fame fliould have been made, or to be made with any mixture of meal or flour of any other fort of grain than of the grain the fame fhall import to be made with, or to be made with any larger or other proportion of any other or different fort or forts of grain, or the meal or flour thereof, than what ought to be put therein, or to be made with any mixture or ingre- dient not allowed by the faid in part recited aft to be put therein, or to be made with any thing as for or in lieu of flour, which fhall not really be the genuine flour the fame fhall import to be and ought to be, or to and the maker be made with any leaven not allowed by the faid in part recited aft to be and feller (hall L1 f ec j ; n making fuch bread, fhall, for every fuch offence, on being con- alio forfeit yjftej thereof in manner herein after mentioned, alfo forfeit and pay a H nor lefs * um not exceeding five pounds, nor lefs than twenty fhillings, as the juf- than. zos. tice or juftices, before whom any fuch offender or offenders fhall be con- for every fuch vifted, fhall from time to time adjudge, unlefs the default found or offence ' complained of fhall be made out to the fatisfaftion of any fuch juftice or flukVaU be* juftices, by or on the behalf of the party or parties againft whom fuch, fatisfaftorily complaint or information as aforefaid fhall be made, to have wholly arofe accounted for. from fome unavoidable accident, or to have been occafioned by or through fome contrivance or confederacy. Sett. ii. " And be it further enacted by the authority aforefaid, That from and after the faid firft day of May one thoufand feven hundred and fixty three, although the affize of bread fhall not be kt according to the Penalty of op- faid in part recited act, if any perfon or perfons fhall wilfully obftruft, pofmg any le- hinder, refill, or in any wife oppofe any fearch, view, weighing, try- gal fearch, ; n g or f e j z j n g f ar) y i oa f or loaves of bread, authorized by this aft r^e*' trying or *° De ma de or tried, he, fhe or they, who fhall fo offend in the pre- ferring of 3 miffes, fhall, for every fuch offence, on being convicted thereof in man- bread, is not ner herein after mentioned, forfeit and pay fuch fum of money not ex- to exceed 403. ceec Ji n g f ort y (hillings, nor lefs than twenty fhillings, as the juftice or juf- n , or e e a tices before whom any fuch offender or offenders fhall be convicted fhall, than 20s. ...•'... •» from time to time, adjudge. No miller, Se£f. 12. " Provided always, and be it further enacted by the autho- mealman or rity aforefaid, That no perfon who fhall follow, or be concerned in the b ^ ker ' ™^ bufinefs of a miller, mealman or baker, fhall be capable of afting, or in theexecu- ^ a ^" ^ e allowed to aft as a juftice of the peace under this act, or in put- tion of this ting in execution any of the powers in or by this aft granted; and if any aft, on penalty miller^ of 50,1. o miller, mealman or baker fhall pre fume fo to do, he or they fo offend- ing in the premifles fhall, for every fuch offence, forfeit and pay the fum of fifty pounds to any perfon or perfons who will inform or me f .- the fame •, to be recovered in any of his maje'ty's courts of record at IJ'cJl- fninjter, by action of debt, bill, plaint or information, wherein no effoin, wap-er of law, or more than one imparlance fhall be allowed, or by way of fummary complaint, before the court of feffion in that part of Great Britain called Scotland. Seel. 13. " Provided always, and be it alfo enacted by the authority c a t :er ^-t-v,, aforefaid, That if any perfon, who fhall carry on or follow the trade of a itappear, that baker, mall, at any time after the faid firft day of May one thoufand feven an . v offence hundred and fixty-three, make complaint to any juftice or juftices of the ^ r ,. v : mfl1 he , peace within his or their jurifdiftion, and make appear to him or them , ne penalty*' by the oath of any credible witnefs, that any offence which any fuch per- was occafion- fon who fhall fo carry on, or follow the laid trade of a baker, fhall have ed by the ne- been charged with, and fhall have incuned and paid any penalty under | lc ^ tor Se- this act, fhall have been occafioned by or through the wilful neglect or /"J ° . 11S default of any journeyman or other iervant employed by or under any fuch perfon, who fhall fo follow or carry on the faid trade of a baker ; then, and in any fuch cafe, every fuch juftice and juftices may, and is Juftice to if- and are hereby required to iffue out his or their warrant under his or (ae b» war- their repective hand and feal, or hands and feals, for bringing any fuch ™ nt ° ucfor journeyman or fervant before any fuch juftice or juftices, or any juftice ofeifdefbe- 8 of the county, city, riding, divifion or place, where the offender can be fore him ; found ; and on any fuch journeyman or fervant being thereupon appre- hended, and brought before any fuch juftice or juftices, he or they, with- in their refpective jurifdictions, is and are hereby authorized and required to examine into the matter of fuch complaint ; and on proof thereof being and on con-' made upon oath to the fatisfaction of any fuch juftice or juftices who fhall vidion, hear fuch faid complaint, fuch juftice and juftices is and are hereby di- rected and authorized by any order under his or their refpective hand or hands, to adjudge and order what reaibnable fum of money fhall be paid orderafomte by every fuch journeyman or fervant to his mafter or miftrefs, as or by b= paid by way of recompence to him or her for the money he or fhe fhall have paid, wav of fatif " by reafon of the wilful neglect or default of any fuch journeyman or fer- a ionj vant ; and if any fuch journeyman or fervant fhall neglect or refufe on his an <3 n non- conviction, to make immediate payment of the fum of money which any payment fuch juftice or juftices fhall order to be paid, by reafon of fuch faid wilful thereof, neglect or default, then any fuch juftice and juftices within their refpec- tive jurifdictions is and are hereby authorized and required by warrant under his hand and feal, or their hands and feals, to caufe every fuch jour- i s to commit neyman or fervant to be apprehended and committed to the houfe of cor- fuch fervant rection, or fome other prifon of the county, riding, divifion, city, town, t0 hard la " liberty or place, in which any fuch journeyman or fervant fhall be appre- b . our ' for any hended, and there to be kept to hard labour, for any time not exceedino- cee - part of'Great Britain called England, in manner prefcribed by this act, fhall fe " ed "! C0B " caufe every fuch refpective conviction to be drawn up in the form or to England'* virions i on to De arawn up in tne rorm or t< the effect following ; that is to fay, (To wit) "O E *'/ remembered., That on this day of in D the year of the reign of A. B. is con- victed before majejly's juftices of the peace for the faid county of or for the or for the city, liberty, or town of (as the cafe fhall happen to be) for and do adjudge {him, her, or them, as the cafe fhall be) to pay and forfeit for the fame, the fum of Given under the day and year aforefaid. Sett. 16. " And be it further enacted by the authority aforefaid, That Form in Scot- In cafe any perfon or perfons fhall be convicted of any offence againft this land lobe a * act, before any juftice or juftices of the peace in that part of Great Britain f ° r 0!ht [ ° f * called Scotland, every fuch conviction fhall proceed and be drawn up in ]ike Mure* the form commonly ufed and practifed before fuch juftices of the peace, on convictions for other offences of the like nature. Sett. 17. " And be it further enacted by the authority aforefaid, That No convIftU no certiorari, letters of advocation, or of fufpenfion, fhall be granted to on > ***■ re " remove any conviction, or other proceedings had thereon in purfuance of movab,e by 1 ■ x o r certiorari. this act. Sett. 18. " Provided always, and be it further enacted by the autho- p er f ons a „; rity aforefaid, That if any perfon convicted of any offence punifhable by grieved bythe 3 F 2 this judgment of a juftice, a;;.r 4 o4 2&jea&, appeal to the this act, fhall think him, her or themfelves aggrieved by the judgment quarterfef- of any juftice or juftices before whom he, fhe or they {hall have been con- fions; victed, fiich perfon fhall have liberty, from time to time, to appeal to the jufticesatthe next general or general quarter-feffions of the peace which fhall be held for the county, riding, divifion, city, liberty, town or place, where fuch judgment fhall have been given ; and that the execution of the faid judgment fhall, in fuch cafe, be fufpended •, the perfon fo convicted en- entering into tering into a recognizance at the time of fuch conviction, with two fuffi- a recogni- cient fureties, in double the fum which fuch perfon fhall have been ad- zance, with judged to pay or forfeit, upon condition to profecute fuch appeal with ef- fureties to j g ^ anc j tQ ^ forthcoming, to abide the judgment and determination of appeal. tne juftices at their faid next general or general quarter-feflion •, which re- cognizance the juftice or juftices, before whom fuch conviction fhall be juftices at the had, is and are hereby impowered and required to take; and the juftices quarter-fef- in the laid general or general quarter-feflion are hereby authorized and re- fions to hear quired to hear and finally determine the matter of every fuch appeal, and and determine awarc j f ucn co fl- s as to them fhall appear juft and reafonable to be paid the matter of ... , . r , . rr , 2 ., , , • , r ' fuch appeal, by either party •, and if, upon hearing the laid appeal, the judgment of and award the juftice or juftices, before whom the appellant or appellants fhall have colls, been convicted, fhall be affirmed, fuch appellant or appellants fhall Im- mediately pay down the fum he, fhe or they fhall have been adjudged to forfeit, together with fuch cofts as the juftices in their faid general or general quarter-feflion fhall award to be paid to the profecutor or informer o th al * or defraying the expences fuftained by reafon of any fuch appeal ; and in being affirm- default of the appellant's paying the fame, any juftice or juftices having ed, the appel jurisdiction in the place into which any fuch appellant or appellants fhall lant may be efcape, or where he, fhe of they fhall refide, fhall and may, by warrant commuted till un ^ er t heir hands and feals, or his hand and feal, commit every fuch ap- the colts ° pellant and appellants to the common gaol of the county, riding, divifion, liberty, city, town or place, where he, fhe or they fhall be apprehended, there to remain, until he, fhe or they fhall pay the penalty or money or compofiti- f or f- e ; tetl an j co ft; S as aforefaid, or fhall compound in refpect thereof with on be made. ,. r , , r • j i • ,- the informer, and pay the compontion-money agreed on to the informer ; lant make = ^ut ^ l ^ e a PP e " ant or appellants in any fuch appeal fhall make good his, good his ap- her or their appeal, and be difcharged of the faid conviction, reafonable peal, reafon cofts fhall be awarded to the appellant or appellants, againft fuch infor- abie cods to be m eror informers, who (in cafe of fuch conviction having been affirmed) awarded him. wou ] c ^ nave k een inticled to the penalty to have been recovered as afore- faid -, and which cofts fhall and may be recovered by the appellant or ap- pellants againft ar.y fuch informer or informers, in like manner as cofts given at any general or general quarter-feflion of the peace are recover- able. Sefl. 19. " Provided always, and be it further enacted by the autho- Where there "T aforefaid, That if any fuch conviction fhall happen to be made within isnotfuffi- fix days before any general or general quarter-feflion of the peace, which cient time be- fhall be held for the county, riding, divifion, city, town corporate, bo- tween the ro ugh or place, where fuch conviction fhall have been made ; then the conv;„ c tJoaand party 16lt&b. 405 party or parties who fhall think him, her or themfelves aggrieved by any f e flions, ap - fuch conviction, (hall and may, on entering into a recognizance in manner peal may be and for the purpofes before directed, be at liberty to appeal, either to the made t0 the then next, or the next following general or general quarter-feffion of the f effi ^ arter ' peace which fhall be held for any fuch county, riding, divifion, city, town corporate, borough, liberty or place, where any fuch conviction fhall have been made. Sett. 20. " And be it further enacted by the authority aforefaid, That Limitation of every action or fuit which fhall be brought or commenced againft any juf- a &'°ns tice or iuftices, or any peace officer or officers in that part of Great Britain rou .f .*'. J \ — J * i*i -ji' r gainit lulticcs called England, for any matter or thing done or committed by virtue or or and pe 3 Ce under this act, fhall be commenced within fix calendar months next after officers, the fact committed, and not afterwards, and fhall be laid or brought in the county, city or place, where the matter in difpute fhall arife, and not Aft 24 G. If. elfewhere ; and that the ftatute made in the twenty-fourth year of king extended to George the fecond, intituled, An ail for rendering the jujlices of the peace ^j lces , aa, " g more fafe in the execution of their office ; and for indemnifying conjlables, and ethers, ailing in obedience to their warrants ; fo far as the faid act relates to the rendering thejuftices more fafe in the execution of their office, fhall extend, and be conflrued to extend, to the juftice or juftices of the peace acting under the authority or in purfuance of this act • and that no action or fuit fhall be had or commenced againft, nor fhall any writ be fued out, Notice to be or copy of any writ be ferved upon any peace officer or officers, for any S^' en t0 peace thing done in the execution of this act, until feven days after a notice in f or " a r *' *"• writing fhall have been given to, or left for him or them, at his or their De foed. ut ufual place of abode, by the attorney for the party intending to commence againil them ; fuch action •, which notice fhall contain the name and place of abode of the perfon intending to bring fuch action, and alfo of his attorney, and likewife the caufe of aclion or complaint ; and any peace officer or officers and if tender fhall be at liberty, and may by virtue of this act, at any time within {'even ofan, ends be days after any fuch notice fhall have been given to or left for him, t ™ a m e y tender, or caufe to be tendered any fum or fums of money, as amends for the injury complained of, to the party complaining, or to the attorney named in any fuch notice •, and, if the fame is not accepted of, the de- fendant or defendants in any fuch action or actions may plead fuch tender in bar of fuch action or actions, together with the general iffue, or any other plea, with leave of the court in which the action fhall be commenced : and if, upon iffue joined on fuch tender, the jury fhall find the amends ten- and the fame dered to have been fufficient, they fnall find a verdict for the defendant or fhall befornd' defendants: and in every fuch cafe, or if the plaintiff fhall become nonfuit, l°J? a . ve b " n or difcontinue his aft ion ; or if judgment fhall be given for the defendant u n f.n' S~ or defendants upon demurrer -, or if any action or fuit fhall be brought after f oun d for the time limited by this act for bringing the fame, or fhall be brought in them, with any other county or place than as aforefaid ; then, and in every fuch cafe, col,s - the jury fhall find a verdict for the defendant or defendants •, and the de- fendant or defendants fhall be intitled to his or their cofts : but if the jury Plaintiff re- fhall find that no fuch tender was made, or that the amends tendered were C0VC,ln S- '* titled to fh- n mages ani colli. 4-c6 Limitation of other actions. General ifl'ue. Double colls. Limitations and remedies for rendering jultices, peace officers, and other perfons, fafe in their duty, extend- ed to Scot- land. Limitation of profecutions for offences againil this act. Penalties and forfeitures how to be re- covered and applied. not fufficient, or (hall find a verdict againft the defendant or defendants, on any plea or pleas by him or them pleaded •, then they fhall give a ver- dict for the plaintiff, and fuch damages, as they fhall think proper-, and the plaintiff fhall thereupon recover his or her cofts, againft every fuch de- fendant and defendants. SeH. 21. " And be it further enacted by the authority aforefaid, That if any action or iu.it fhall be commenced againft any other perfon or per- fons than a juftice or juftices, or peace officer, for any thing done inpur- fuance of this act, the defendant or defendants in any fuch action or fuit may plead the general iffue, and give this act, and the fpecial matter, in evidence at any trial to be had thereupon ; and that the fame was done in purfuance and by the authority of this act •, and if it fhall appear fo to have been done, or if a verdict fhall be found for the defendant or defendants ; or if the plaintiff fhall be nonfuited, or difcontinue his action, after the defendant or defendants fhall have appeared ; or if judgment fhall be given upon a verdict or demurrer againft the plaintiff or plaintiffs, the defendant or defendants in every fuch action fhall and may recover double cofts, and have the like remedy for the fame, as any defendant or defend- ants hath or have in other cafes by law for recovery of his or their cofts. Set!. 22. " And be it enacted by the authority aforefaid, That the above limitations and remedies for rendering juftices of peace, peace offi- cers, and all other perfons, fafe in the execution of their feveral offices under this act, fhall extend to and be available to all fuch juftices of peace, peace officers, and other perfons in that part of Great Britain called Scotland; and fhall be pleaded by them, and fuftained by the court or courts before which they, or any of them may happen to be fued, ac- cording to the forms of the law of Scotland. Seel. 23. " Provided alfo, and be it likewife enacted by the authority aforefaid, That no perfon fhall be convicted of any offence under this act, unlefs the profecution in order for fuch conviction fhall be commenced within three days after the offence committed ; and that no perfon, who fhall be profecuted to conviction for any offence done or committed againft this act, fhall be fubject or liable to be profecuted for the fame offence under any other law. Seel. 24. " And be it further enacted by the authority aforefaid, That all penalties and forfeitures by this act inflicted fhall, when recovered or paid, go and be diftributed in manner following •, that is to fay, one moiety thereof, where any offender or offenders fhall be convicted, either by his, her or their own confeffion, or by the oath of one or more cre- dible witnefs or witneffes, fhall go and be paid to the perfon or perfons who fhall inform againft and profecute to conviction any fuch offender or offenders; and the other moiety thereof as the juftice or juftices, before whom any offender or offenders againft this act fhall be convicted, fhall from time to time think fit and order, for the better carrying into exe- cution the purpofes of this act, and defraying the charges attending the carrying the fame into execution. 1 Seel. Seel. 25. " Provided likewife, and it is hereby enacted, That this aft, Rights of the or any thing herein contained, fhall not extend, or be conftrued to extend, two univerfi- to prejudice the ancient right or cuftom of the two univerfities of Oxford ties refcrved * or Cambridge, or either of them, or of their or either of their clerks of the market, or the practice within the feveral jurifdictions of the faid univerfi- ties, or either of them, ufed, to afcertain and appoint the weight of all forts of bread to be fold or expofed to fale within their feveral jurisdicti- ons ; but that they, and every of them, fhall and may, feverally and re- flectively, from time to time, as there fhall be occafion, afcertain and appoint within their feveral and refpective jurifdictions, the weight of all forts of bread to be fold or expofed to fale by any baker or other perfon whatfoever, within the limits of their feveral jurifdictions ; and fhall and may punifh the breach thereof as fully and freely, in all refpects, as they ufed to do, and as if this act had never been made •, any thing herein con- tained to the contrary thereof in any wife notwithflanding." fijetoer*. STATUTE 2 & 3 Ed. 6. c. 15. [A. D. 154.8. intituled] " The bill of confpiracies of Victuallers and craftfmen." Forafmuch as of late divers fellers of victuals, not contented with y . .. moderate and' reafonable gain, but minding to have and to take for their C0n fpirin2 to victuals fo much as luft them, have confpired and covenanted together to fell their vic- fell their victuals at unreafonable prices : (2) And likewife arificers, handi- tuals but at craftfmen and labourers, have made confederacies and promifes, and have certain prices, fworn mutual oaths, not only that they fhould not meddle one with others conferring 6 ™ work, and perform and finifh. that another hath begun, but alfo to confti- touching their tute and appoint how much work they fhall do in a day, and what hours works, (hall be and times they fhall work, contrary to the laws and ftatutes of this realm, p<"»(hed. and to the great hurt and impoverifhment of the king's majefty's Subjects:. (3) For reformation thereof, it is ordained and enacted by the king our fovereign lord, the lords and commons, in this prefent parliament affembled, and by the authority of the fame, That if any butchers, brewers, bakers, poulterers, cooks, coftermongers or fruiterers, fhall, at any time from and after the firfc day of March next coming, confpire, covenant, promife or make any oaths, that they fhall not fell their victuals but at certain prices ; (4) or if any artificers, workmen or labourers, do confpire, covenant or The puniflj- promife together, or make any oaths, that they fhall not make or do their mer.ts of the works, but at a certain price or rate, or fhall not enterprife or take upon labourers cce- them to finifh that another hath begun, or fhall do but a certain work in a *f mn 8 the day, or fhall not work but at certain hours and times •, (5) That then every " e ^* /^I M perfon fo confpiring, covenanting, fwearing or offending, being lawfully work. 5 El. convict c. 4. 4o3 J<VMtS. company victuallers. convict thereof by witne fs, confeffion, or otherwife, fhall forfeit for the firft offence ten pound ta the king's highnefs, and if he have fufficient to pay the fame, and do alio pay the fame within fix days next after his con- viction •, or elfe fhall fuffer for the fame offence twenty days imprifonment and fhall only have bread and water for his fullenance : (6) And for the fecond offence fhall forfeit twenty pound to the king, if he have fufficient to pay the fame, and do pay the fame within fix days next after his con- viction ; or elfe fhall fuffer for the fecond offence punifnment of the pillory. (y) And for the third offence fhall forfeit forty pound to the kino-, if he have fufficient to pay the fame, and alio do pay the fame within fix days next after his conviction j or elfe fhall fit on the pillory, and lofe one of his ears, and alfo fhall at all times after that be taken as a man infamous, and his faying, depofitions or oath not to be credited at any time in any matters of judgment." A confpiracy Seft. 2. And if it fortune any fuch confpiracy, covenant or promife to be by a fociety or ] iac j anc j mac | e by anv fociety, brotherhood or company of any craft, myftery or occupation of the victuallers above mentioned, with the pre- fence or confent of the more part of them, that then immediately upon fuch act of confpiracy, covenant or promife, had or made, over and befides the particular punifhment before in this aft appointed for the offender, their corporation fhall be difiblved to all intents, conftructions and purpofes." SeSl. 3. " And it is further ordained and enacted by the authority afore - faid, That all and fingular juftices of aflize, juftices of peace, mayors, bailiffs, and Rewards of leets, at all and every their feffions, leets and courts, fhall have full power and authority to inquire, hear and determine all and fingular offences committed againfl: this flatute, and to punifh, or caufe to be punifhed the offender, according to the tenor of this ftatute." @tilt. 2 Geo. 3. c. 14. [A. D. 1 76 1.] Made among other purpofes, " to prevent vexatious proceedings againfl brewers, victuallers, and others, with refpect to the prices of beer and ale." Whereas brewers, inn-keepers, victuallers, or other retailers of ftrong beer or ale, have been threatened with, and may be fubject to, vexatious profecutions for advancing, or having advanced, the price of ftrong beer or ale, however juftly and reafonably : now, in order to prevent fuch vexatious proceedings, may it pleafe your moft excellent majefty, that it may be enacted ; and Be it therefore further enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That no brewer, inn-keeper, victualler, or other retailer of ftrong beer or ale fhall, at any time hereafter, be fued, im- pleaded, or molefted, by indictment, information, popular action, or other- wife, for advancing, or having advanced, the price of ftrong beer or ale in a reafonable degree ; any law or ftatute to the contrary notwith- Which magi- ftra:es may in quire of and punilh offen- ders. Preamble. The price of firong beer and ale may be reafonably advanced without fub- jecting the vender topro- fecution. ftanding.' ©tat* IBltVottS. 409 %tdt. 1 Will 6? M. c. 24. [^. D. 1688. intituled] "An act for an additional duty upon beer, ale, and other liquors." SeSi. 17. " And be it further enacted by the authority aforefaid, That, 100!. penalty from and after the firft of September one thoufand fix hundred eighty-nine, for ufin g mel " no common brewer, or retailer of beer or ale, fhall ufe in the brewing or afles 111>brew - working of any beer or ale any mellafies, coarfe fugar, honey, or compofition or extract of fugar. upon the penalty of the forfeiture, for every fuch offence, of all fuch liquors wherein any mellafies, or coarfe fugar, honey, or fuch compofition or extracl: fhall be put, and alfo of the fum of one hundred pounds •, one moiety of all the faid forfeitures to be to their majefties, the other moiety to the informer, to be recovered by action of debt, bill, plaint or information, in any of their majefties courts of record, wherein no efibign, wager of law, or any more than one imparlance fhall be allowed, fo as fuch fuic be commenced within fix months after fuch for- feiture incurred." ©tilt- 10 6? 1 1 Will. 3. c. 21. [A. D. 1699] made, among other purpofes, " for preventing of abufes in the brewing of beer and ale." Se5f. 34. And whereas it is found by experience, That notwithftanding any law now in force, many common brewers do ufe great quantities of mellafies m the brewing ale and beer, whereby the confumption of malt is very much hindred, and his majefty defrauded of a great part of the duties of fuch ale and beer fo brewed, as aforefaid : Be it therefore enacted by the authority aforefaid, That if any common brewer, or retailer of beer or ale, Penalty on fhall, after the faid tenth day of May one thoufand fix hundred ninety- brewer, ufing nine, make ufe of any mellaffes, coarfe fugar, honey, or compofition or mellaiTes, isc. extract of fugar, in the brewing, making, or working of any ale or beer, or if any common brewer fhall receive or take into his cuftody or pofieffion any quantity of mellafies, coarfe fugar, honey, or compofition or extract of fugar, exceeding ten pounds, every fuch brewer and retailer fhall forfeit and lofe for every fuch offence refpectively the fum of one hundred pounds ; and every fervant of fuch brewer, and every other perfon, who fhall be . aiding and affifting in the ufing any mellafies, coarfe fugar, honey, or ex- brewers l'er- tract of fugar, in the brewing or working of fuch ale or beer, or in carry- vams. ing or conveying the fame into the houfe, brewhoufe or other place belonging to fuch brewer, fhall alfo forfeit and lofe, for every fuch offence, the fum of twen:y pounds, and in default of payment thereof fhall fuffer three months imprifonment." ©tat. 9 Ann. c. 12. [A. D. 2710. intituled] " An act for laying a duty upon hops." SeSl. 24. " And in regard it is found by experience, That hops ufed in Brewer, fcV. the making of malt-drinks are more wholfome for thofe that drink or not to ufe confume the fame, and greater advantage to the drink itfelf, than any b,00m • fer '-°" other bitter ingredient that can be ufed inftead thereof, It is hereby further f ' ain ° Vol. I. N° XVIII. ',3 G enaded 410 7&liMt8* enacted by the authority aforefaid, That during the continuance of this aft, no common brewer, inn-keeper, or victualler, (hall ufe any broom, wormwood, or any other bitter ingredient, (to ferve inftead of hops) in brewing or making any beer or ale to be brewed or made by him, her or them for fale in any part of Great Britain, under the penalty of forfeiting Exception, the fum of twenty pounds for every fuch offence ; the infufing of broom or wormwood into beer or ale, by the retailer, after the fame is brewed and tunned, to make the fame broom or wormwood ale, or broom or worm- wood beer,always excepted." Seel. 2 6. Penalties to be recovered as by the laws of excife. And by flat. 12 Ann. Jlat. r. c. 2. feci. 32. No common brewer, err tailer of beer or ale, fhall ufe any fugar, honey, foreign grains, Guinea pepper, effentia Una, coculus india, or any unholfome ingredients in the brew- ing of beer or ale, or mix any of them therewith, on pain of 20 /. to be recovered and mitigated as by the laws of excife, half to the king, and half to him fhall fue. @)titt. 24 Geo. 2. c. 40. [A. D. 1751-] made, among other purpofes, " for granting to his majefty an additional duty upon fpirituous liquors, " and upon licences for retailing the fame." Brewers, inn- ^^ 22 _ « And be it further enafted by the authority aforefaid, That, Stealers f r0 m and after the laid firft day of July one thoufand feven hundred in fpirits, &c. and fifty-one, no perfon or perfons whatlbever, being a common nottoaftasja- brewer of ale or beer, or innkeeper, diftiller or other feller of or dealer in ftices relating an y fc mc [ f fpirituous liquors, or who is, or are or fhall be interefted in totheMillery. ^ q{ - ^ ^ trac j es or bufineffes, fhall, during fuch time as he or they fhall be fuch common brewer, innkeeper, diftiller or other feller of or dealer in fpirituous liquors, or interefted in any of the faid trades or bufineffes, be capable or have any power to aft, or fhall be directly or indireftly concerned in afting as a juftice of the peace, in any matter or thincr whatfoever, which fhall any ways concern the execution of the pow- ers or authorities given or granted by any aft or afts of parliament, in any wife relating to diftillers or makers of low wines, fpirits or ftrong waters for fale, or to the duty or duties impofed upon low wines, fpirits or ftrong waters, or any other kind of fpirituous liquors whatfoever, or to the grant- ing licences to the retailers of fpirituous liquors." And by Jlat. 26 Geo. 2. c. 13. feci. 12. Brewers, who are jufiices of the peace, are prohibited from granting licences for felling ale, &c. See this feclicn at large under title $Uc[)OUfC0, page 25. Tndiament jyj r _ 7VV/0/7, for the profecutor, fliewed caufe why judgment mould not a § a,n r {t k f n b o r ^ w ' be arrefted : A rule for that purpofe having been obtained, upon a motion ingly felHng made by Mr. Norton on Monday 26th January laft, in arreft of judgment and delivering upon this indiftment for knowingly felling amber-beer fhortofthe due and 16 gallons of j u ft meafure (whereof the defendant had been convifted.) The charge in the 3mbe ledge." . c 16. For the expofition of this a£l of 12 Rich. 2. fee the trial of the earl of Macclesfield. ©tat 5 y 6 Ed. 6. c. 16. [A. D. 1552. intituled] * Againft buying and felling of offices." " For the avoiding of corruption which may hereafter happen to be in The penally the officers and minifters in thofe courts, places or rooms wherein there is for buying er requifke to be had the true administration of juftice, or fervices of trult ; J* llin | f ° rae (2) and to the intent that perfons worthy and meet to be advanced to the „ Bul | !r ' place where juftice is to be miniftred, or any fervice of truft executed, 1 r h 157,' lhould hereafter be preferred to the fame, and no other: 236. z Salk-. Seft. 2. " Be it therefore enacted by the king our fovereign lcrd, the 4 68 - 3 LeY « lords fpiritual and temporal, and the commons, in this prefent parliament 2 ^' affemb!ed, and by the authority of the fame, That if any perfon or per- fons at any time hereafter bargain or fell any office or offices, or deputa- tion of any office or offices, or any part or parcel of any of them, (2) or receive, have or take any money, fee, reward, or any other profit di- rectly or indirectly, (3) or take any promife, agreement, covenant, bond, or any affurance to receive or have any money, fee, reward or other pro- fir, directly or indirectly, for any office or offices, or for the deputation of any office or offices, or any part of any of them •, (4) or to the intent Hob. 75. that any perfon fhould have, excrcife or enjoy any office or offices, or the Cro.Jac. 269. deputation of any office or offices, or any part of any of them ; (5) which office or offices, or any part or parcel of them, fhall in any wife touch or concern the adminiftration or execution of juftice; (6) or the receipt, comp- trolment or payment of any of the king's highnefs treafure, money, rent, 4 revenue, 4i 6 ftlfttt?. revenue, account, aulnage, auditorfhip, or furveying of any of the king's majefty's honours, catties, manors, lands, tenements, woods or heredi- taments-, (7) or any of the king's majefty's cuftoms, or any adminiitration or necefTary attendance to be had, done, or executed in any of the king's majefty's cuftom-houfe or houfes •, (8) or the keeping of any of the king's majefty's towns, caftles or fortreffes, being ufed, occupied or appointed for a place of ftrength and defence •, (9") or which mall concern or touch any clerkfhip to be occupied in any manner of court of record wherein juftice is to be miniftredj. (10) That then all and every fuch perfon and perlbns, that mall lb bargain or fell any of the faid office or offices, depu- tation or deputations, or that mall take any money, fee, reward or profit for any of the laid office or offices, deputation or deputations of any of the faid offices, or any part of any of them, or that fhall take any promife, covenant, bond, or afTurance for any money, reward or profit to be given for any of the faid office or offices, deputation or deputations of any of the faid of- fice or offices, or any part of any of them, ihall not only lofe and forfeit all his and their right, intereft and eftate which fuch perfon or perfons fhall then have, of, in or to any of the faid office or offices, deputation or de- putations, or any part of any of them, or of, in or to the gift or nomina- tion of any of the faid office or offices, deputation or deputations, for the which office or offices, or for the deputation or deputations of which of- fice or offices, or for any part of any of them, any fuch perlbns fhall fo make any bargain or fale, or take or receive any fum of money, fee, re- ward or profit, or any promife, covenant, bond or afTurance to have or receive any fee, reward, money or profit : (n) But alfo that all and every fuch perfon or perfons, that fhall give or pay any fum of money, reward or fee, or fhall make any promife, agreement, bond or afTurance for any of the faid offices, or for the deputation or deputations of any of the faid office or offices, or any part of any ofthem, fhall immediately by and upon the fame fee, money or reward given or paid, or upon any fuch promife, covenant, bond or agreement had or made, for any fee, fum of money or reward to be paid, as is aforefaid, be adjudged a difabled perfon in the law, to all intents and purpofes, to have, occupy or enjoy the faid office or offices, deputation or deputations, or any part of any ofthem, for the which fuch perfon or perfons fhall lb give or pay any fum of money, fee or re- ward, or make any promife, covenant, bond or other afTurance, to give or pay any fum of money, fee or reward. The bargain* Sefl. 3. " And be it alfo enacted by the authority aforefaid, That all and aflurances and every fuch bargains, fales, promifes, bonds, agreements, cove- fiiall be void. nants anc j afTurances as be before fpecified, fhall be void, to and againft c "•?',. 2Q 5Z9 " him and them by whom any fuch bargain, fale, bond, promife, covenant or afTurance fhall be had or made. To what of- Seft. 4.. " Provided always That this aft, or any thing therein con- fices this fta- tained, mall not in any wife extend to any office or offices, whereof any tute (hall not perfon or perfons is or fhall be feifed of any eftate of inheritance ; (2) nor extend. t0 ar) y fft ce f parkerfhip, or of the keeping of any park, houfe, manor, garden, &*lberp* 417 garden, chafe or foreft, or to any of chem ; any thing in this ad hereto- fore mentioned to the contrary thereof in any wife notwithstanding. Seel. 5. " Provided alfo, That if any perfon or perfons do hereafter offend A8.s done by in any thing contrary to the tenor and effect of this aft, yet that notwith- an officer re- ftanding, all judgments given, and all other aft and afts executed or done, j" ovable ' ^ a11 by any fuch perfon or perfons fo offending by authority or colour of the e B °°' office or deputation which ought to be forfeited, or not occupied, or not enjoyed by the perfon fo offending as is aforefaid, after the faid offence fo by fuch perfon committed or done, and before fuch perfon fo offending, for the fame offence be removed from the exercife, adminiftration and occu- pation of the faid office or deputation, fhall be and remain good and Suf- ficient in law, to all intents, conftruftions and purpofes, in fuch like manner and form as the fame mould or ought to have remained and been, if this aft had never been had or made. Seel. 6. " Provided alfo, That this aft or any thing therein contained, a bargain for fhall not in any wife extend to any bargain, fale, gift, grant, nomination, an office be- bond, covenant, promife, agreement, or affurance, whatfoever it be, of, |° re the firft or for any the office or offices, deputation or deputations aforefaid, or any ^- yo c ' part of any of them had, made, done, concluded or agreed before the firft day of March next coming, but that the fame bargain, fale, gift, grant, nomination, bond, covenant, promife, agreement or affurance had, made, done, concluded or agreed before the faid firft day of March, fhall always remain, continue and be in fuch force, ftrength and effeft, as if this aft had never been had or made •, any thing before in this aft mentioned to the contrary thereof in any wife notwithstanding. Seel. 7. " Provided always, and be it enafted by the authority afore- Office) given faid, That this aft, or any thing therein contained, fhall not in any wife by the two extend or be prejudicial or hurtful to any of the chief juftices of the king's • i^°5 courts, commonly called the King's Bench or Common Place, or to any of a g;j^ the juftices of affile that now be, or hereafter fhall be, but that they and every of them may do in every behalf, touching or concerning any office or offices to be given or granted by them or any of them, as they or any of them might have done before the making of this aft ; any thing above mentioned to the contrary in any wife notwithstanding." In the conftruftion of this ftatute of 5 and 6 Edw. 6. the following points have been refolved ; 1. That the office of chancellor, regifter, and commiffary in ecclefiaftical courts, are within the meaning of the ftatute, in as much as thofe courts do not only determine matters which are brought before them, merely pro faint e amm 3^5- It hath been refolved, that it is not fufficient for the defendant to an indictment for not repairing a bridge, to excufe themfelves by fhewing that they are not bound either to repair the whole, or any part of the bridge, without fhewing what other perfon is bound to repair the fame ; and it is faid, that in fuch cafe the whole charge fhall be laid upon fucrv defendants, by reafon of rheir ill plea. 1 Hawk. P. C. 221. Pep. 192. It is faid that where fuch defendants plead, that A. B. ought to repair the bridge mentioned in the indictment, and take a traverfe to the charge againft themfelves, the attorney general in this fpecial cafe, may take a traverfe upon a traverfe, and infill that the defendants are bound to the repairs, and traverfe the charge alledged againft A. B. and that an ilTue ought to be taken of fuch a traverfe, and that the attorney general may afterwards furmife that the defendants are bound to repair it, and that the whole matter fhall be tried by an indifferent jury. 1 Hawk. P. C. 221, 1 Sid. 140. It feems clear that thofe who are bound to repair fuch bridges, muft make them of fuch height and ftrength as fhall be anfwerable for the courfe of the water, whether it continue in the old channel, or make a new one •, and that they are not punifhable as trelpaflers for entring on any adjoining land for fuch purpofe, or for laying on the materials re- quifite for fuch repairs. 1 Hawk. P.C. 221. S^ngnn Cljarta, 9 Hen. 3. c. 15. {A. D. 1225. intituled] " Making of bridges and banks." " No town nor freeman fhall be diftrained to make bridges nor banks, but fuch as of old time and of right have been accuftomed to make them in the time of King Henry our grandfather." Here it is to be obierved, fays lord Coke in his comment, on this chap- ter, that in the reign of king John, and of his elder brother king Rich- ard, which were troublefome and irregular times, divers oppeinons, ex- actions, and injuries, were incroached upon the fubjecl: in thefe king's names, for making of bulwarks, fortrefTes, bridges and banks, contrary to law and right. But the reign of king Henry 2. is commended for three things; firft, that his privy council were wife, and expert in the laws of the realm. Secondly, that he was a great defender, and maintainer of the rights of his crown, and of the laws of his realm. Thirdly, that he had learned and upright judges, who executed juflice according to his 3 H 2 laws; 4 2o BtfDge^ laws; therefore for his great and never dying honour, this and many other a£ts made in the reign of Henry 3. do refer to his reign, that matters mould be put in practice, as they were of right accuftomed in his time ; fo that this chapter is a declaration of the common law, and fo in the reign of H. 4. and H. 5. the parliaments refer to the reign of king Edward 1 . who was a prince of great fortitude, wifdom and juftice. 2 Inft. 29. %tt\U 22 H. 8. c. 5. [A. D. 1530. intituled] • For bridges and high- ways." A remedy to " Be it enacted by the king our fovereign lord, and the lords fpiritual repair decayed anc j temporal, and the commons, in this prefent parliament affembled, hi" hwa "» and and b y authority of the fame, That the juftices of peace in every fhire, by S whom! an of this realm, franchife, city or borough, or four of them at leaft, where- 1 3 Co. 3 3. of one to be of the quorum, (hall have power and authority to inquire, hear Poph. 192. anc j determine in the king's general feffions of peace, of all manner of 2 Inft. 700. ann0 y ances f bridges broken in the highways, to the damage of the king's peacTmay a- hege people, and to make fuch procefs and pains upon every prefentment ward procefs afore them for the reformation of the fame, againft fuch as owen to be againft them charged for the making or amending of fuch bridges, as the king's juf- who ought to t ; ces Q £ his Denc h ufe. commonly to do, or as it (hall feem by their dif- Thi'aaVen- cretions to be neceffary and convenient for the fpeedy amendment of fuch forced by bridges." 1 An. fiat. 1, Se£i. 2. " And where in many parts of this realm it cannot be known c. li fo far and proved, what hundred, riding, wapentake, city, borough, town or pa- as not altered • i-.-'i i . *• • i *. by thattatute rifh ' nor what P erfon certain > or bod y politick, ought of right to make ' fuch bridges decayed, by reafon whereof fuch decayed bridges, for lack of knowledge of fuch as owen to make them, for the moft part lie long without any amendment, to the great annoyance of the king's fubjects :" SeR. 3. " For the remedy thereof, be it enacted by authority aforefaid, That in every fuch cafe the faid bridges, if they be without city, or town corporate, (hall be made by the inhabitants of the (hire or riding within the which the faid bridge decayed (hall happen to be ; (2) and if it be within any city or town corporate, then by the inhabitants of every fuch city or town corporate wherein fuch bridges (hall happen to be; (3) and if part of any fuch bridges fo decayed happen to be in one fhire, riding, city or town corporate, and the other part thereof in another (hire, riding, city or town corporate, or if part be within the limits of any city or town corporate, and part without, or part within one riding, and part within another ; that then in every fuch cafe, the inhabitants of the (hires, ridings, cities or towns corporate (hall be charged, and chargeable to amend, make and repair fuch part and portion of fuch bridges fo de- cayed, as (hall lie and be within the limits of the fhire, riding, city or town corporate, wherein they be inhabited at the time of the fame decays." SeS. 4. " And be it further enacted, That in every fuch cafe where it cannot be known and proved, what perfons, lands, tenements and bodies politick owen to make and repair fuch bridges, that for fpeedy reforma- tion TBiibQts. 421 tion and amending of fuch bridges, the juftices of the peace within the fhires or ridings wherein fuch decayed bridges been out of cities and towns corporate, and if it be within cities or towns corporate, then the juftices The juftices of peace within every fuch city or town corporate, or four of the faid juf- may tax the tices at the leaft, whereof one to be of the quorum, fhall have power and '"habitants authority within the limits of their feveral commiffions and authorities, to w f Kl ? thea ^ ent call before them the conftables of every town and parifh, being within the j^ e ccn lhire, riding, city or town corporate, as well within liberty as without, wherein fuch bridges, or any parcel thereof fhall happen to be, or elfe two of the mod honeft inhabitants within every fuch town, or parifh in the faid fhire, riding, city or town corporate, by the difcretion of the faid juftices of peace, or four of them at the leaft, whereof one to be of the quorum • (2) and at and upon the appearances of fuch conftables or inhabitants By 1 An. flat., the faid juftices of peace, or four of them, whereof one to be of the quo- '-c. 18. fef- rum, with the affent of the faid conftables or inhabitants, fhall have power fions of the and authority to tax and fet every inhabitant in any fuch city, town or pa- fhe feveral "* rifh within the limits of their commiffions and authorities, to fuch reafon- townfhips, able aid and fum of money, as they fhall think by their difcretions conve- &c. nient and fufficient for the repairing, re-edifying, and amendment of fuch bridges •, (3) and after fuch taxation made, the faid juftices fhall caufe the names and fums of every particular perfon fo by them taxed, to be writ- ten in a roll indented : (4) and fhall alio have power and authority to Two collecl- make two collectors of every hundred, for collection of all fuch fums of mo- ° rs o{ ever / ney by them fet and taxed ; which collectors, receiving the one part of the un te ' faid roll indented under the feals of the faid juftices, fhall have power and authority to collect and receive all the particular fums of money therein contained, and to diftrain every fuch inhabitant, as fhall be taxed and re- fufe payment thereof, in his lands, goods and chattels, and to fell fuch diftrefs, and of the fale thereof retain and perceive all the money taxed, and the refidue (if the diftrefs be better) to deliver to the owner thereof; (5) and that the fame juftices, or four of them, within the limits of their The juftices commiffions and authorities, fhall alfo have power and authority to name mail appoint and appoint two furveyors, which fhall fee every fuch decayed bridge re- two vvh ° 'hall paired and amended from time to time, as often as need fhall require, to bridge whofe hands the faid collectors fhall pay the faid fums of money taxed, and by them received; (6) and that the collectors and furveyors, and The collector* every of them, and their executors and adminiftrators, and the executors ar,d farveyora and adminiftrators of them, and every of them, from time to time (hall mthf^^^' make a true declaration and account to the juftices of peace of the fhire, riding, city or town co porate, wherein they fhall be appointed collectors or furveyors, or to four of the fame juftices, whereof one to be of the quorum, of the receipts, payments, and expences of the faid fums of mo- ney : (7) and if they or any of them refufe that to do, that then the fame juftices of peace, or four of them, from time to time by their dif- cretions fhall have power and authority to make procefs againft the faid collectors and furveyors, and every of them, their executors and admi- niftrators, and the executors and adminiftrators of every of them, by at- tachments- 422 $2tose& tachments under their Teals, returnable at the general feffions of peace-, (8) and if they appear, .hen to compel them to account as is afore faid ; or elfe if they or any of them refufe that to do, then to commit fuch of them as lhall refufe, to ward, there to remain without bail or mainprife till the faid declaration" and account be truly made." Sett. 5. " And where any bridge or bridges lien in one fhire or riding, and fuch perfons inhabitants, bodies politic, lands or tenements, which owen to be charged to the making and amending of fuch bridges, lien and abiden in another fhire or riding, or where iuch bridges been within any city or town corporate, and the perfons inhabitants, bodies politic, lands or tenements, that owen to make or repair any fuch bridges, lien and been out of the faid cities and towns corporate ; Be it enacted, That in every fuch cafe the juftices of peace of the fhire, city or town corporate, within the which fuch decayed bridges, or any part thereof fhall happen to be, fhall have power to enquire, hear and determine all fuch annoyances, The juftices being within the limits of their commiffions or authorities ; (2) and if the may ni ke annoyances be prefented, then to make procefs into every fhire within this P ve" (hire realm againft fuch as owen to make or amend any fuch bridges fo prefented aga n of- before them to be decayed, to the annoyance and let of the paffage of the fenders. king's fubjects, and 10 do further in every behalf in every fuch cafe, as they might by authority of this act, in cafe chat the perfons or bodies politic, lands or tenements, which owen to be charged to the amending or ma- king of fuch bridges or any part thereof, were in the fame fhire, riding, city Sheriffs, f&e. or towr) corporate, where fuch annoyance fhall happen to be. (2) And efe'fonthe ' chat a11 meriffs and bailiffs of libercies and francbifes fhall truly ferve and offenders. execute fuch procefs, as fhall come to their hands from the faid juftices of peace afore whom any prefentment fhall be had for any fuch annoy- ance, according to the tenour and effect of the faid procefs to them directed, without favour, affection or corruption-, upon pain to make fuch fine as fhall be let upon them or any of them by the difcretion of the faid juftices. The five ports Sett. 6. " Provided alway, that this act, or any thing therein contained, excepted. ^e noc prejudicial to the liberties of the five ports, or members of the fame. And for reformation of annoyance of bridges within the faid ports and members. Sett. 7. " Be it enacted by authority of this prefent parliament, That the warden, mayors and bailiffs elected, and j urates of the fame ports, and every of them, have power and authority to enquire, hear and determine all manner of common annoyances of bridges within the fame ports and members, and to make fuch procefs, pains, taxations, and all other things within the fame ports and members, as the juftices of peace may do in other fhires or places out of the fame ports, by virtue and authorityjof this prefent act in every behalf." Allowance Sett. 8. " And be it further enacted by the authority aforefaid, That the m.K to 'lie juices f peace, or four of them, fhall have full power and authority to jurveyors # a llow fuch reafonable cofts and charges to the faid iurveyors and collectors, collectors. & .' J as by their dncretions lhall be thought convenient. Sett., Seel. 9. " Forafmuch that albeit bridges decayed were amended and repaired according to the tenour of this act, yet neverthelefs if fpeedy rpanedy for the amendment of the ways next adjoining to every of the ends of fuch bridges fhould not be had and made, the king's fubjedts fhould take little or none avail or commodity in many parts of this realm by the making of the bridges : (2) In confederation whereof, Be it enadled by the king our lbvereign lord, and the lords fpiritual and temporal, and the An or(Jer f° r commons, in this prefent parliament afTembled, and by authority of the tl ! e ^ end fame, That fuch part and portion of the high-ways in every part of this^J^^ ^ a realm, as well within franchife, as without, as lie next adjoining to any ends bridges. of any bridges within this realm, diftant from any of the faid ends by the fpace of three hundred foot, be made, repaired and amended as often as need fhall require-, (3) and that the juflices of the peace in every (hire of this realm, franchife city or borough, or four of them at the leaft, whereof one to be of the Quorum, within the limits of their commiflions and au- thorities, fhall have power and authority to inquire, hear and determine in the king's general felfions of peace, all manner of annoyances of and in fuch high-ways, fo being and lying next adjoining to any ends of bridges with- in this realm, diftant from any one of the ends of fuch bridges three hun- dred foot, and to do in every thing and things concerning the making, repairing and amending of fuch highways, and every of them, in as large and ample manner, as they might and may do to and for the making, repairing, and amending of bridges, by virtue and authority of this prefent aft." ©tcit- 1 Ann. flat. i.e. 18. [A. D. 1701.] Made, among other purpofes, " to explain and alter the act made in the two and twentieth year of king Henry the eighth, concerning repairing and amending of bridges in the highways." " Whereas by an aft of parliament in the two and twentieth year of the 22 H. S.c. 5. reign of king Henry the eighth, intituled, " An adt concerning repairing and concerning the amending of bridges in the highways," it is amongft other things therein f m !" cins enacted, That in every cafe where it cannot be known and proved, what per- ° fons, lands, tenements, and bodies politic ought to make and repair fuch bridges, that for fpeedy reformation and amending of fuch bridges, the iuftices of the peace within their feveral counties, (hires, ridings and divi- iions, cities and towns corporate, or any four of them, whereof one to be of the Quorum, (hall within the limits of their feveral commifTions call before them the conftables of every town and parifh, or elfe two of the moft honeft inhabitants of every fuch town and parifh, and, with the affent of the faid conftables or inhabitants, fhall tax and fet every inhabitant in fuch city, town and parifh, to fuch reafonable aid, and fums of money, as they fhall think by their difcretions convenient for the repairing of fuch bridges, and after fuch taxation made, (hall caufe the names and fums of every particular perfon fo by them taxed, to be written in a roll indented, one part whereof is to be delivered, under the hands and feals of the faid juftices, to two 3 collectors 424 ' iBito$t#: collectors appointed by the faid juftices for every hundred, who are there- by impowered to collect the fame ; which method and manner of taxing and collecting the faid money for repair of decayed bridges and die high- ways thereunto adjoining, having by long experince been found very trouble- fome, burthenfome and chargeable to the feveral counties, cities, towns corporate, ridings, and divifions : And whereas in many places within this kingdom, more money than is neceffary for the repair of fuch bridges, hath been taxed and collected, or the money which hath been fo taxed and collecled, hath been mifimployed, and not laid out in the repair of fuch bridges, as was intended ; For remedy of all which mifchiefs and incon- veniencies for the future, may it pleafe your moft excellent majefty that it may be enacted ; and Be it enacted by the queen's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That all and every the claufes, matters and things in the faid further con- ac ~t °f the two and twentieth year of the reign of the faid king Henry the tinued. eighth, not hereby altered, fhall be and continue in full force and virtue, to all intents, conftructions and purpofes whatfoever, relating to the re- pairing of decayed bridges, and the highways thereunto adjoining." Forcollefting Sett. 2. " And be it further enacted by the authority aforefaid, That money for re^ f or fae more eafy taxing and collecting of the money for the repair of bridpeMuf- 2 decayed bridges, and that the fame may be duly applied to the purpofes tices^of peace for which it is intended, the juftices of the peace, within the feveral limits may aflefs of their commiffions, fhall, at their general or quarter feffions of the peace, every town, f rom anc j a ft e r the firft of May, which fhall be in the year of our lord one portion*" " tnou f an d feven hundred and two, have full power and authority, upon due prefentment to them made, that any bridge within their refpectivecommiffions or authorities is out of repair, and which by them hath ufually, or ought to have been repaired and maintained, to afiefs upon every town, parifh or place within their refpective commifilons, in proportions upon each respec- tive town and parifh, as they ufually have been affeffed towards the repair Afieflments of bridges •, which money fo affeffed, as aforefaid, fhall be levied and col- how to :be lected by the refpeclive conftables of each parifh, townfhip, hamlet or vill, levied, &c. or ^ f uc h other perfon and perfons, and in fuch manner, as the faid juftices, by their order at fuch feffions, fhall in that behalf direct and appoint; and the money thereby raifed fhall (by fuch conftables or other perfons fo as aforefaid by them collected) be paid over by them to the high conftables of every hundred, in any fuch county, city, riding or divifion, in fix days after they fhall have received the fame, and the high conftables fhall, and are hereby required, in ten days after their receipt, to pay the fame into the hands of fuch perfon and perfons, as the faid juftices by their order at TVeafurersto fuch feffions fhall direct and appoint to be treafurers and receivers of the bs appointed f ame5 an( j [ne m oney thereby raifed fhall be employed and accounted for, how imploy- according to the orders and directions of the faid juftices, for and towards ed. the amending of fuch decayed bridges, and the highways at the end of the On non pay- faid bridges, from time to time, as need fhall require ; and the faid affeff- meat to be men r. s fhall be levied by diftrefs and fale of the goods of every perfon fo i affeffed, affeffcd, not paying the fame ten days after demand, rendering the over- ]ev ; e j b d; _ plus of the value of the goods fo diltrained to the owner and owners there- ftreft. of, the neceffary charges of making and felling fuch diftrefs being firft deducted/' Seil. 3. " And to the end that the money, which is hereby intended to be affeffed and levied, may be duly collected, paid and applied to the feveral purpofes for which it is intended, Be it further enacted by the authority aforefaid, That every high conftable, church-warden, overfecr of the poor Penalry on or petty conftable, or other perfon that (hall neglect to aflefs, collect or pay conftable, Wa the money hereby intended to be raifed, as is herein before directed, fhall for every fuch offence forfeit the fum of forty fhillings ; and every treafurer, that fhall pay any money but by the order of fuch juftices of the peace at fuch feffions, which order the faid juftices are hereby required and com- manded to make, only for the building, repairing or amending fuch bridges, and the highways at the end of fuch bridges, as aforefaid, fhall for every fuch offence forfeit the fum of five pounds." Seil 4. " And whereas upon prefentments and indictments for not re- pairing fuch bridges, and the highways at the end of fuch bridges, the fines impofed and fet upon fuch prefentments and indictments, and other fines and iffues, for not repairing, building and amending fuch bridges, and the highways at the end of fuch bridges, are returned into xht Court of Exchequer, or other courts •, Be it therefore further enacted by the authority aforefaid, Fines £?<-. to That no fine, iffue, penalty or forfeiture fhall hereafter be returned into tl e be P a,d t0 the Court of Exchequer, or other court, but fhall be levied and paid into the trea urer ' hands of the treafurer or treafurers fo, as aforefaid, appointed by the faid juftices, to be accounted for by the faid treafurer, and to be applied by the faidjuftices towards the building, repairing or amending fuch bridges, and the highways at the end of fuch bridges, and to no other end or purpofe whatsoever." Seel. 5. " And be it enacted by the authority aforefaid, That all matters y[ mt concerning the repairing and amending of the bridges and highways, herein cerning repjr before mentioned, fhall be determined in the county where they lie, and of bridges, not elfewhere •, and that no prefentment, or indictment for not repairino- ^V. "hereto fuch bridges, or the highways at the end of fuch bridges, fhall be removed ermmed- by certiorari out of the fsid county into any other court." Set!. 6. " And be it further enacted by the authority aforefaid, That the Juftices to al- faid juftices of the peace at fuch general quarter-feffions, as aforefaid, fhall lovv 5d ' in the have full power and authority to allow fuch perfons concerned in the P ° un ' execution of this prefent act any fum not exceeding three pence in the pound." Seil. 7. " And be it further enacted by the authority aforefaid, That if any action or fuit (hall be hereafter commenced or profecuted againftany perfon or perfons by this act authorized to put the fame in execution, every General hTuc, perfon or perfons fo fued may plead the general iffue, and give this act, or the faid recited act, made in the two and twentieth year of the re'iem of Henry the eighth, and the fpecial matter, in evidence ; and if the plaintiff fhall become nonfuit, or forbear further profecution, or fuffer difcontinu- Vol. I. N°. XVIII. 3 I ance, 426 IBiftge*. ance, or if a verdict pafs againft him or her, the faid defendant and defendants fhall recover his and their double cofts, for which he and they lhall have the like remedy, as in cafes where cofts by law are given to the defendants." Perfons and Sett. 8. " Provided always, That this act nor any thing therein contained thmgs exemp- fh a u excufe or difcharge any particular perfons, eftates or places from re- ted " pairing any bridge, which they have heretofore ufually repaired." Penalties how Sell. 9- '' ^nd be lt f urtner enacted by the authority aforefaid, That all to be levied, the penalties and forfeitures incurred by this act fhall be applied towards the repairing the faid bridges and highways at the ends of the fame." @ti1t. izGeo. 2. c. 29. [A. D. IJ29- Intituled'] " An act for the more eafy afleffing, collecting, and levying of county rates." Preamble, re- " Whereas by an act parted in the twenty-fecond year of the reign of citing the afts, king Henry the eighth, for repairing and amending bridges and highways : 2z Htn. VII. anc j w j iereas by another act palled in the firft year of the reign of her late i'Jw o at majefty queen Anne, to explain and alter the laid act, it is, for the more i.e. \i. ' eafy taxing and collecting the money for the repair of fuch bridges and highways thereunto adjoining (amongft other things J enacted, That the juftices of the peace within the feveral limits of their commiffions fhall, at their general or quarter-feffions of the peace, have full power and autho- rity, upon due prefentment to them made that any bridge within their re- fpective commiffions or authorities is out of repair, and winch by them hath ufually, or ought to have been repaired and maintained, to make aiTeffments upon every town, parifh or place, within their refpective com- miflions for that purpofe, in proportions upon each refpective town and parifh, as they ufually have been afleiTed towards the repair of bridges ; which affeflments are to be levied and collected in the manner prefenbed by the faid act." No repairs of Sett. 13. " And be it further enacted by the authority aforefaid, That bridges, Wc. no part of" the money to be railed and collected in purfuance of this act bat upon pre- rj^ji ^ e applied to the repair of any bridges, gaols, prifons, or houles of thT'rand ° correction, until prefentments be made by the refpective grand juries, at jury. the aflize, great lemons, general gaol-delivery, or general or quarter-feffi- ons of the peace held for any county, riding, divifion, city, town corpo- rate or liberty, of the infufficiency, inconveniency, or want of reparati- on of their bridges, gaols, prifons or houfes of correction. Juflices to Se£i. 14. " And be it further enacted by the authority aforefaid, That contraa with from and after the firft day of June one thoufand feven hundred and thir- perfons for ty-nine, when any public bridges, ramparts, banks or cops, or other public re- vvorks, are to be repaired at the expence of any county, city, riding, ' ' hundred, divifion, liberty or town corporate ; it lhall and may be lawful to and for the juftices of the peace at their general or quarter-feffions re- fpectively, or the greater part of them then and there affembled, if they think proper and convenient, after prefentment to be made as aforefaid of the want of reparation of fuch bridges, ramparts, banks or cops, to con- tract and agree with any perfon or perfons for rebuilding, repairing, and amending of fuch bridges, ramparts, banks or cops, as fhall be within their their refpective counties, cities, ridings, hundreds, divifions, liberties or towns corporate, and all other works which are to be repaired and done by a.TeiTment on the refpective counties, cities, ridings, hundreds, divifions, Liberties or towns corporate, for any term or terms of years, not ex- ceeding feven years, at a certain annual fum, payment, or allowance for the fame-, fuch contractor or contractors giving fufficient fecurity for the due performance thereof, to the refpective clerk of the peace for the time being, or the town clerk, high bailiff, or chief officer cf any city, town corporate or liberty ; and that fuch juftices at their refpective general or u P or ' P a Mk*i quarter-lemons fhall give public notice of their intention of contracting with rKKi any perfon or perfons for rebuilding, repairing and amending the bridges, ramparts, banks or cops, and other works aforefaid ; and that fuch con- tracts fhall be made at the moft reafonable price or prices which fhall be propofed by fuch contractors refpecfively •, arid that all contracts when agreed to, and all orders relating thereto, fhall be entered in a book, to be kept by the refpective clerk of the peace for the time being, or the town clerk, high bailiff or chief officer of any city, town corporate or liberty, for that purpofe •, who is and are hereby required to keep them amongft the records of fuch county, city, town corporate or liberty, to be from time to time infpected at all feafonable times by any of the faid juftices within the limits of their commifTions ; and by any perfon or per- fons employed or to be employed by any parifh, townfhip or place, con- tributing to the purpofes of this act, without fee or reward. @)tflt- 14 Geo. 2. c. 33. [A. D. 1 741.] Made, among other purpofes, " to fupply fome defects in the laws for repairing and rebuilding coun- ty bridges." "Whereas it does and may happen, that when county bridges are to be p rea mble re- rebuilt or repaired, a piece or parcel of ground thereto adjoining may be citing the aft, of great ufe orfervice, either for enlarging fuch bridges, or more com- '3 0'». z.c modioufly rebuilding them : And whereas there is no power given by the 2 +" laws in being for the rebuilding or repairing of county bridges to the juftices of the peace, to purchafe any fuch pieces or parcels of ground : And whereas by an act made in the thirteenth year of the reign of his pre- fent majefty, intituled, " An act for amending and enforcing the laws rela- ting to rogues, vagabonds, and other idle and diforderly perfons, and for reducing the fame into one act of parliament ; and alfo for amending the laws for erecting, providing, and regulating houfes of correction ;" it is Camongft other things) enacted, That upon the prefentment of the grand jury at the affizes, great feffion, or general gaol-delivery, held for any county or liberty, that there is no houfe of correction, and that it will be neceffary to provide one or more houfe or houfes of correction in fuch county or liberty, or that the houfe or houfes of correction in any fuch county or liberty is or are not fufficient, and want to be enlarged ; the juftices of the peace at their general or quarter-feffions fhall have power to build, erect, or enlarge one or more fit or convenient houfe or houfes of correction, or to purchafe one or more convenient houfe or houfes I i i 2 for 428 Stages. for that purpofe, or to purchafe land to ered fuch houfc or houfes of cor- rection upon, and to make a convenient backfide or backfides, outlet or outlets thereto : And whereas in fome counties and liberties, where it is ne- ceftary to have a houfe or houfes of correction, there is or may be no affife, great feffion, or general gaol-delivery, and in confequence there can be no preferment of fuch grand jury, fo that in fuch cafes the faid act is ren- dered ineffectual : Therefore for the better repairing and rebuilding coun- ty bridges, and for fupplying the defects of the laid recited act, fo far as- the fame relates to the repairing, enlarging, building and providing houfes of correction, Be it enacted by the king's mo ft excellent majefty, by and with the advice and content of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority lattices at their of the fame, That from and after the twenty-fourth day of June one thou- quarter-fef- land feven hundred and forty-one, the juftices of the peace of any county,, lions may pur- c j t y ? riding, liberty or divifion, at their general feffions, or general quarter- chafe lands to j- e fj- J0ns affembled, or the major part of them, fhall have power, and are bridge^ 11 " 17 hereby authorized, to purchafe of, or agree or contract with, any perfon or peifons, bodies politick or co'rporate for any piece or parcel of land ad- j jining or near to any county bridge within the limits of their refpeclive commiffions, for the more commodious enlarging or convenient rebuilding the fame ; which pieces or parcels of land fhall not exceed one acre in the whole for any fuch bridge, and fhall from time to time be paid for by the re- ipeclive county treafurers, out of any monies jaifed or to be raifed by vir- tue of an act made in the twelfth year of the' .reign of his prefent majefty, intituled, An del for the more eafy ajfeffing, col/efiing, and levying of county rates-, fuch treafurers being thereunto authorized, by orders under the hands and feals of the refpective juftices of the peace at their general M- Jions, or general quarter-feflions, or the major part of them ; which lands fo purchai'ed fhall be conveyed to fuch perfon or perfons , as the faid juf- tices of the peace at their general feffions, or general quarter-feflions, or the major part of them fhall reflectively appoint, in truft, and for the ufes and purpofes of enlarging or rebuilding fuch bridges reflectively. Certiorari Upon motion to qualh a certiorari to remove an indictment againft the may be grant- defendants at feffions, for not repairing a bridge ; it was infilled, that by ed where pri- x ^ nn ( jg_ ^q certiorari is taken away. To which it was anfwered, and vate perfons r tf Q \ vcr \ by the court, that this act extended only to bridges where the are charged to ., J , • T - . , , ■ • . f ° .„ . repair a county is charged to repair j and that where a private perlon or panfh is bridge. charged, and the right will come in queftion, the act 5 & 6 W. £5? M. c. Stran. 900. x , na ,i allowed the granting a certiorari. And therefore they refufed Eaft p 4G2 ° to quafhit. 2. Rex. v. " inhab. of Hamworth in co. Stafford. Tenant at will The defendant V/atfon was indicted, for that he was fuch a day pofleffed is obliged to Q f a n -, u f e j n Lvfin Regis adjoining to the common bridge ; that he ought repair a houle tQ re p a j r cne \\ VlL ] houfe ratione tenurae ; but that he permitted it to be fo eow'moif much out of repair, that it was ready to fall upon the queen's fubjeds palling bridge. Ld. over the laid bridge, &?c. Upon Not guilty pleaded, the jury found a fpe- cial JBjfofie*. 429 cial verdict, that Watfon was but tenant at will of the faid houfe, and con- Ra E . ft elude with a fpecial conclufion, praying the judgment of the court, whe- 2 Ann. Re- ther he was obliged ratione tenurae, to repair the houfe. And after ar- gina v. Wat- gument by Mr. Montague for the defendant, and by Mr. Weld for the fon - queen, it was adjudged, that the defendant, as tenant at will only, ought to repair the houfe, lo that the public be not prejudiced by the want of repairs, but that he is not compellable to repair as to his landlord. And that is (hewn well enough in this indictment. The only objection is, that he is not chargeable to repair ratione tenurae ; but though that is impro- per, yet it fhall be intended of the poffeffion, and not of a fervice. And judgment was given againft the defendant. An information was exhibited againfl the defendant, for that, that he and [h&tancftm all the lords of the manor of D. have time whereof, &c. been obliged to re- wi ". not lie pair a bridge, &V. which was out of repair, &c. Upon Not guilty pleaded, a S a,nft a ,ord and trial before Holt chief juftice at Niji prius Hertford fummer ajfifes 1 Ann. w h„ is bound reg. it was held by him, that a prefcription, that the lords of the manor to repair a ought to repair the bridge, without faying ratione tenurae, or ratione ter- bridge, with- rae, was good; becaufe (by him,) the manor may have been granted to out fa }' ln g ra ~ be held by the fervice of repairing of this bridge before the ftatute of Quia jhewinea pre-' emptores terrarum ; or the king may make fuch a grant at this day, he not tcriptioo. Ld. being bound by the faid ftatute. And in pleading one may fay, that he Raym. 792, is obliged as lord of the manor. But indeed it is by reafon of the de- 8c 4- mefnes of the manor ; and therefore if part of the demefhes be granted to D ™' ' "e-" J. b. he will be obliged to contribute to the repairs ; but the information j h n Euck- or indictment may be againft any of them ; and though it appear upon nail. the evidence, that another is obliged alfo, yet the defendant muft be con- victed. And fo the defendant was convict in this cafe ; though he proved upon the evidence, that others were obliged to repair as well as'himfelf. Afterward in Michaelmas term Mr. Broderick moved in arreft of judg- ment, that it does not fufficiently appear by this information, that the de- fendant is obliged to repair this bridge ; for regularly the county ought to repair the public bridges •, and no man fhall be charged with the repa- ration of them, except ratione tenurae, or by prefcription ; and therefore it ought to have been fhewn here, by which of thefe two means the defend- ant became chargeable with thefe repairs. And he cited Noy 93. Latch 206. Stile 108. Sir H. SpiHer's cafe. And. 400. And at the afTifes, as alfo up- on the firft motion here, Holt chief juftice faid, that this amounted to a ratione tenurae. But judgment was ftayed, quoufque, (sfc. But afterwards at another day, Mr. IV-tfliams moving for judgment for the queen, Holt chief juftice mutata opinione, faid, that altho' the defendant was lord of the manor, yet that was no reafon that he Ihould repair the bridge; but fome particular charge ought to be fhewn, as ratione tenurae, or by pre- fcription. And in fuch cafe, where a man is obliged to repair a bridge, his tenant for years being in pofTelTion will be obliged to do it ; and if he fail, he will be indictable for it. But he faid, that where a man is obliged to make fences againt another, it is enough to fiy, that omnes taupatores ought to repair, (Sc. becaufe that lays a charge upon the right of 1 430 25?it>SC£. of another, which it may be, he cannot particularly know. See Cro. Jac. 665. Holbakh v. Warner. All the other judges were of the fame opinion, and judgment was arretted. A mandamus A mandamus was directed to them, reciting, that whereas an ancient to make a rate bridge called Tadcajler bridge, fituate partly in the county of the city of bnd'Tmuft be ^ or ^-> an ^ partly in the weft-riding of the county of York, was lately fal- ditettedtothe l en down, and that it ought to be repaired by the inhabitants of the juftices of county of the city, and of the weft-riding of the county reipectively •, and peace of the that it was fo done by them, except only the inhabitants of the liberty of county and g c _ p eier ' s \ n t ] ie c ; ty an j count: y f tne c i C y . an d that the inhabitants of not to the juf- ..... . *. ■ r 1 ■ 1 ] 1 in r ticesofapar- tlie Clt y ^ ax< ^ out ln the repair of their part 1449/. and that the ihare of ticular liberty the inhabitants of the liberty of St. Peier's came to 30/. which they had Id. Raym. refuted to pay, and the juftices refufed to make a race for it according to 1249 Eait. tne form of the ftatute ; and therefore commanded them to make and Queen v. Juf- ' m P°f e a rate upon the inhabitants within the liberty in the city and coun- ties of the ty of the city, for fuch their part of the charges about the building and peace of (he repairing of the bridge according to the form of the ftatute, and caufe it to liberty of St. be collected and levied and paid to the mavor and citizens, or their attor- rcter in York • 'ney or treafurer, to their ufe, &c. To this the juftices returned, that the city of York is an ancient city, and the citizens and inhabitants time out of mind have been a body politick-, and that the city of York and luburbs and precincts of the fame, 11 February 27 Hen. 6. and long be- fore, were a county by itfelf, and called the county of the city of York ; and that the hundred of Aniftie was part of the weft-riding of the county of York, and that Hen, 6. 11 February 27th of his reign, by his letters patent granted, that the hundred of Anijlie fhould be annexed to the county of the city of York, and that the city and fuburbs of York, and the precinct of the hundred of Anijlie, fhould be the county of the city of York, divided from the county of York, faving to the church of York, and the archbifhop, dean and chapter of the fame, and to all com- munities ecclefiaftical and temporal, and all other perfons, all man- ner of franchiies, privileges, rights commodities, and cuftoms, to them or any of them of right belonging, ita quod by that grant no preju- dice in any manner fhould be done to them, in pojjeffione, feu proprietate of any liberties, franchifes, privileges, rights, commodities, or cuftoms of which they were then feifed or poiTefied, or which did then belong to them : that the liberty of St. Peter's in York in the city and coun- ty of the faid city is, and at the making of the faid letters patent and long before was an ancient liberty, of which the dean and chapter of 2~ork is feifed in fee, and that by all that time they had juftices of peace there, and that the juftices of peace of the county of York, or of the county of the city of York, had nothing to do there : that the part of the bridge in queftion at the making of the letters patent lay in the hundred of Anijlie, out of the liberty of St. Peter's, and out of the jurifdiction of the juftices of peace of that liberty, and before that time was, and ought to be repaired by the inhabitants of the weft-riding of the county of York, and from that time, and at the time of making the act of 22 Hen. 8. and ever fince was ufed, and ought to be repaired by the inhabitants 4 of Bjt'Dges. 431 of the city, and of the hundred of Anijlie without any contribution from the inhabitants of the liberty, and that it was known and could be eafily proved at 1 he time of making the faid act, and is known and can be eafily proved to be fo, &c. In this cafe it was refolved, firft, that the return was ill in fubftance, becaufe this charge came upon the city by uniting the hundred of Anijlie to it, and confequently the liberty of St. Peters, which is part of the city, muft be fubject to the charge as well as reft of the city. That the aft of Hen. 8 . had taken away all exemptions, and franchifes, and made them all liable to be charged : that there can no reafon be given for exemp ing the liberty of St. Peter's., which would not as well hold for exempting all the reft of the city, and lay the whole burden on the hundred of Anijlie. Powell agreed. And he faid, that as to theperfons, who of right ought to repair bridges, the act of 22 Hen. 8. was only declaratory of the com- mon law; which Holt chief juftice agreed and faid, that the charge of re- pairing bridges was incumbent on the county by common law, unlefs where particular perfons were charged with it by tenure or prefcription. What was new in it, was the appointing the method of doing it, that a hundred might be charged with the repair of a bridge by prefcription, but that was not the cafe here ; for the hundred had not ufed to repair the bridge, but the weft-riding of the county : that upon the annexing of this hundred, to the county of the city, there might have been an agreement made between the corporation and the dean and chapter, that they ftiould have been exempted from the charges of repairing this bridge •, but if there were any iuch, that ought to have been returned : that there had been no inftance of the liberties contributing, becaufe this bridge had never been repaired before. Serjeant Wynne againft the return faid, that the latter part of it, that it was known that the county of the city ought to repair it, was ill ; becaufe it did not fay, how they were obliged to repair it, by tenure or prefcription-, for that was what was meant by the ought in the act of parlia- ment. But then the writ was quafhed, becaufe by the act the juftices of the liberty had no power to afiefs or rate the inhabitants of the liberty, or to intermeddle in this matter ; but the juftices of the county of the city. And the chief juftice laid, that the juftices of the county of the city had power in this cafe, to fummon the conftables of the parilhes within the liberty, out of the liberty, and fo the juftice of a county had conftables within a corporation, where corporations are part of a county ; for it is they muft: put this act in execution, and not the juftices of the corporation. There was another objection taken to the writ, that it would not lie in this cafe, becaufe the money was laid out firft ■, whereas by the act of parliament, the rate ought to have been made firft, like the cafe of oveifeers of the poor on the 43 Eliz. and Tourney's cafe cited, where a writ of Mandamus to make a writ to reimburfe an overfeer of the poor was quafhed, becaule the rate ought to have been made firft. The court feemed to be of opinion, that the money might be laid our, before a rate made, and that the juftices of peace might make a rate to reimburse 43 2 BjfogCS. reimburfe the money. But then the chief juftice faid, that the perform that were to be charged to the repair of the bridge, ought to be made privy to the laying out of the money ; and the rate to be made, ought to be for the repairing the bridge, and not for reimburfing money laid out in the repair of a bridge, and that in the cafe of an overfeer of the poor the juttices might order a rate to be made for the relief of the poor, and out of that the overfeer might be reimburfed the money he had laid out, and that that was the regular way, but the rate mull not be for reimburfing the overfeer. I did not, fays lord Raymond, take this to be fo certainly refolved, but the other being a plain exception, the court as I apprehended, went upon that. The king by Information for not repairing three public bridges called Herford bridges, letters patents lying within the county of the city of Norwich, leading from the market may enlarge crol " s to lpf w icb, and fets out that they are out of repair, and that it cannot be the boundaries £ ounc j that an y p er fon or body politic is bound by tenure or otherwife to Cour't^of repair them, and therefore the inhabitants of the county of the city are King's Kench bound by the ftatute notwithstanding which they have not repaired them, has a concur- b ut fuffer them to continue in decay. rent J un f dl <=- Jacob Robins and Samuel Fremoult, two of the' inhabitants of the city and feilions about ^ou"ty of the city, come in the name of all the inhabitants of the city, and repairing plead Not guilty. Then the record takes notice by way of fuggeltion, bridges, i that the queftion is between the citizens of Norwich and the inhabitants of Stran 177. t i ie count y f Norfolk, and they being interefted, there can be no indifferent Rex v inh°bi- tria ^ na ^ there, And Suffolk being the next county, the venire is awarded unte civitatis thither : And at the trial the jury find this fpecial verdict. Nirivid. That the city of Norwich is an ancient city, and has been time out of mind a county of itfelf, diftinct from the county of Norfolk. That the three bridges were at the time of making the ftatute 22 H. 8. c. 5. within the county of Norfolk, and not within the county of the city of Norwich. That Philip and Mary 1 April, fecond of their reign, reciting the many in- conveniencies which had happened by not knowing the true bounds and limits of the county of the city, fevered fuch an extent of ground from the .county of Norfolk, and annexed it to the city. That the three bridges are within the annexed boundaries, which are made to extend ufque ad Herford bridge, which is the fartheft of the three. That they are public bridges, and no particular perfon bound to repair them. That they are out of re- pair. But whether the inhabitants of the county of the city are bound to repair them, is the doubt of the jury, upon which they pray the advice of the court. Et Ji CJV. Reynolds, ferjeant pro Rege, made three points, i. Whether the king can make a county of a city, or enlarge the boundaries of a prefcriptive city, and make the enlargements parcel of it. 2. Admitting he may, whether the enlarged part fhall be confidered as parcel of the old city, fo as to charge them with repairing within 22 H. 8. 3. Whether in this cafe the fartheft bridge be within the bounds of the enlargements. 1. As WiiDQts. 433 i." As to the firft queflion, there is no doubt but that the king may enlarge the boundaries of any city. Mod of the cities of England are inftances of the execution of fuch a power, and has been generally done by charter, which was efteemed fufficient without an aft of parliament. This city of Norwich was fo made at one time or other, for in Bradley's Treatife of cities and boroughs it is mentioned as a borough, and part of the county of Nor- folk. Henry the feventh made Chefier a county of itfelf, as appears by 4-InJl. 215. 4 Co. 33. a. 2. Taking it then, that the king can enlarge any city, the next queflion is, where the charge of repairing bridges within fuch enlarge- ment lies. The ftatute lays no ablblute charge, till the bridges are in decay, fo that when the ftatute was made, though thele bridges were within the county of Norfolk, yet as they were not in decay, the ftatute had no operation upon them, before they were annexed to the city of Norwich. If an hundred were to be made at this day, the ftatute of hue and cry would take place within it. So the prerogative of the king, in collating to a benefice void by the promotion of the incumbent to a bifhoprick, extends to a new erefted parifh, as was refolved in Dr. Birch's cafe in Shower, where there are many inftances of this nature. 3. The third point is, whether one of the bridges be within the annexed bounds -, the words are tifque ad pontem de Harford ad exteriorem partem rivi, and that will take it in. There is a great difference, where tifque ad is ufed to terminate a way, and where it is only ufed as a mark or defignation of any confpicuous place. Calvin in his Lexicon juridicum, fays ufque ad is fome- times inclufionis not a. It is objefted, that the defendants having pleaded the general ifiue, could give nothing in evidence, but that the bridges are in repair, and therefore that the trial fhould have been in Norfolk. To this I anfwer, that generally it is fo, as 2 Lev. 112. 1 Sid. 140. 1 Keb. 49 8. 1 Mod. 112. 3 Keb 301. bcca.uk prima facie the inhabitants are chargeable, and if they would dif- charge themfelves, they mult do it by fpecial pleading, and not upon the general ifiue, for the charge upon the inhabitants is a common law charge. 2 hft. 701. 1 Fen. 256. Etit theie defendants were not chargeable de communi jure, but the county of Norfolk was ; lb that they are not obliged to find out who ought to repair, as when prima facie the charge lies upon them. They might conteft the right with the county of Norfolk upon the general ifiue (as indeed they did), and therefore it was proper to carry ic into Suffolk, the next county. Faugh. 303. 2 Roll. Mr. 576. Cro. Eliz. 664. Gcdb. 420. Rdby contra. This information is grounded upon the ftatute ; now the ftatute gives the jurikUclion to thefefiions and where a ilatute preferibes a particular method, that mult be followed. Cro. Jac. 643. 2 Rolf. Rep. 398 4. Alcd. 144. 1 Lijl. 702, 70.'. 2. The city and county of the city mull be taken to be diftinft, and if fo, then the c itizens only have appeared, for the appearance is in nor,, omnium inhabitantium civit' Ncrwh , and then the ifiue is not well joined. 3. It is a mil-trial, it fhould have been in Norfolk. That is the next county, and intirely dilintereiled •, for the only queftion on this ifiue is, Vol. I. N^.XIX. 3 K " whether 434- Bn'&gcs. whether the bridges be in repair, for that only can be given in evidence on Not guilty, i Ven. 256. \ Mod. 112. And on the record it appears not to be a trial in the next county, for the venire is awarded to Suffolk as the next county, Norfolk excepted, and there the trial fhould have been. 1 Lift. 125 155. 1 Roll. Rep. 28. Dy. 279. 2 Roll. Abr. 596, 597. I agree, the king may annex land to a city or county in point of jurif- diction, bat not in point of charge •, for as to that it ftill continues parcel of the old county. Ufque ad is exclufive of one of the bridges. As if I prefcribe for common ufque ad Michaelmas- day, I have no right of common upon Michaelmas-day. Reynolds replied. The charge to repair is at common law, and upon that this information is founded. The ftatute gives a concurrent, but not an exclufive jurifdiction, for here are no negative words, nor is this a new offence made by the ftatute, and upon thole grounds it is that the cafes went. As to the fault in the appearance, which was defigned as a trick, the inhabitants of the city and of the county of the city are all one, for they are commenfurate. It is abfurd to fay the jurifdiction of the county fhall be abridged in point of intereft, and not in point of charge. The city has the land annexed to them, et tranfit cum cnere. C. J. They who are not chargeable of common right, may difcharge themfelves upon Not guilty. And if fo, the trial was well in Suffolk. If they could only give reparation in evidence, then it ought to have been in Norfolk. There is no doubt but the information lies in this cafe, and as to the appearance, we may take them to be the fame perfons. It feems to me that the fartheft bridge is in- cluded, for it extends ad exteriorem partem rivi. There is nothing in that notion about diftinguifhing between jurifdiction and charge, for certainly both muft go together. Eyre J. inclined, that the trial was right in Suffolk, upon the diftinction taken by Reynolds. Sed adjournatur to be further argued. And at another day, Reeve pro Rege. Firft exception. That no information lies in B. R. becaufe the 22 H. 8. gives the jurisdiction to four juftices. Cro. Jac. 643. 2 Roll. Rep. 398. 4 Mod. 144. Anfwer ; I agree thofe-cafes, for there the ftatute makes a new offence, and chalks out a particular method ; but this was an offence at common law, and the ftatute does not give an exclufive, but only a concurrent jurifdiction. Here are no negative words, though if there were, it has been held that negative words fhall not take away the jurifdiction of this court. 1 Sid. 359. 2 Keb. 340. 1 1 Co. 64. Second exception. They fay this cannot be taken to be an information at common law, becaufe it lays that the defendants debent reparare virtute, &c. and concludes contra formam ftatutu Anfwer; Such a conclufion will not make it an information upon the ftatute •, for nothing is here alledged, but what the common law faid before •, and fo it has been refolved Cro. Eliz. 148. Cro. Car. 340. 2 Roll. Abr. 82. pi. 6. If a ftatute fhould add circumftances to a common law offence, yet the indictment need not conclude contra formam Jlatuti. 1 Fen. 13. 1 Sid. 409. 2 Keb. 479. Third 2BjfogC& 4 3 5 Third exception. The information is againfh the inhabitants of the county of the city, and the appearance for thole of the city only. Anfwer. Throughout the whole record the inhabitants of the city and county of the city are taken notice of to be the fame. The bounds of the city and county of the city are generally the fame, i Roll. Abr. 803. pi. 6. Thefe are all the exceptions taken to the information and proceedings. I come now to the fpecial verdict, upon which two points have been railed. t. Whether thefe bridges are within the annexed boundaries, for the defendants fay, that ufque being terminus ad quern, and a, terminus a quo, all the bridges are excluded. There can be no difpute but that two of the bridges are included. The queftion turns upon the third, ufque ad pontem de Harford ad exteriorem partem rivi. This ufque ad is only ufed to (hew the circumference, for the other words take in the river. Now if it be taken exclufively, then the whole breadth of the bridge all round muft be excluded. Words have been taken "hirehi(ively according to the fubject matter. 5 Co. 7, 103, 111. 6 Co. 62, 6y. 1 Fen. 292. 3 Keb. 594. 3 Leon 211. The bridges are only mentioned as notorious places. 2. They fay here is a miftrial, for on Notguilty the defendants could give nothing in evidence, but that, the bridges are in repair, and therefore the trial fhould have been in Norfolk. Anfwer; Defendants by not denying our fuggeftion have admitted the queftion to be? whether the city or county ought to repairs The cafes cited of the other fide are only, that the perfon chargeable de communi jure fhall not give evidence, that another is bound ratione tenurae, but that is not our cafe. If a parifh be indicted for not re- pairing a highway, you muft prove it to be a highway, that it lies within the parilh, and that it is out of repair ; and if there be a failure in either of thefe, the defendants muft be acquitted. 9 H. 6. 62. Bro. General ijfue 5 2 > 5h 94- 34 H. 6. 43. Show. 270. Branthwayte ferjeant contra. I (hall fpeak only to the point of the miftrial, and upon the information. As to the firft. No admiffion of the parties can alter the law. It muft appear to the court, that the queftion is of fuch a nature, as to draw the trial out of the proper county. 2 Cro. 597. Hardr. 311. Here the only queftion is, whether the city of Norwich is bound to repair ; for they cannot throw it any where elfe, without fpecial pleading. 3 Keb. 301. 1 Mod. 112. 3 Keb. 370. 2 Roll. Abr. 597. pi. 1. Secondly, I agree the information would have laid as at common law, if that method had been purfued ■, but here they make it a ftatute offence, and therefore they ought to have purfued the ftatute remedy. The whole court were unanimous for the king upon all the points, but the miftrial. As to which the C. J. Powyi and Eyre were of opinion it was well in Suffclk : For the queftion naturally arifes, whether the bridges are in Norfolk or Norwich, and the refult of that is, that either the one or the other is bound to repair : And not guilty puts all in iflue. There was no other way to make this appear upon record, but by fuggeftion ; which not being denied, it is as well as if it had appeared by fpecial pleading. 3 K 2 - And 436 BjfoStS. And it fhall not be in the power of the defendants, to difappomt the king of a proper trial by their refufing to plead fpecially. Forte/cue J. contra, thought the right ought to be tried in this iffue. Etfu adjournatur. The caufe came now to be fpoke to upon the angle point of the miftrial. Chefhyre ferjeant pro rege. The defendant in this cafe might put us to prove, in what county thefe bridges lie •, and then the right of repair is a confequence, wherefore the trial is right in Suffolk. They could not fafely plead the fpecial matter, becaufe it will amount to the general iffue, and lb be demurrable. 34 //. 6. 28, 43. Bro. Iffue 53. 18 //. 6. 21. Fitzh. Action fur fiat. 4. 19 H. 8. 9. 2 Roll.Abr. 683. The defendants might have provided thefe to be private bridges on Not guilty. 1 Ven. 256. The refolution of the cafe of the King v. Inhab. Hornfey was contrary to the opinion of Holt C. J. in Show. 270. for Eyre, Dolbin and Gregory denied the diftinction, though the reporter takes no notice of it. Mich. 8 IV. 3. Rex v. Inhab. Ireton. The reafon of this fuggeftionwas to prevent delay, and is therefore to be favoured, fince it hinders the defendant from challenging. If he confeffes fas he has done here) the truth of the fuggeftion •, then he is eftopped. If he denies it, that denial is entered of record, and after that he fhall never come and alledge that matter as a fault. There is no other way to come at the truth of this fact, but by putting him to confefs or deny it, for it is not a matter ifiuable. Iri. per pais 140. Plow. 74. b. 10 H. 6. 54. 14 H. 6. 2. Nient dedire amounts to a con- feffion, though it does not go on, fore verum concedit, as fome of the entries are. This confeffion is as much an eftoppel, as in S'alk. 310. where an executor fuffered judgment by default, and then was eftopped to fay he had no affets. Pengelly fer'jeant contra. The matter of this fuggeftion does not warrant the award of the venire into Suffolk. It is not averred the county of Norfolk is concerned, but only by way of conclufion, ideoque, which is not fupported by the premiffes. I agree the fituation might have been contefted at the trial. The court might have refufed this fuggeftion, as was done in Delme's cafe. So 2 -Roll. Abr. 597. pi. 1. If the jury had come out of Norfolk, we could not have challenged the array. Hard. 311. Cafe for difturbing the plaintiff in taking the profits of a judge of the fheriffs court in London. On Not guilty, it was fugefted, that the office was grantable by the mayor and aldermen, and prayed the venire to the next county. But Hale C. J. refufed to award it, becaufe it did not appear by neceffary collection from the record, that the title of the mayor and aldermen to fill up this place would come in queftion. Though the fituation may come in queftion, yet that does not determine the right-, for the defendants will be acquitted without trying the right, fo that is not a matter within the extent of this fuggeftion. Befides, this is a matter of law, whereas fuggef- tions fhould be of matters of fact only. Co. Ent. 59, 60. 2 Roll. Abr. r,qj. 'pi. 8. 1 Ven. 58, 93. Quo warranto 28. Nient dedire alone is not a con- fefTion. Cro. Jac. 547. Dy. 367, pi. 40. 4 C.J. 25^'D0C5. 437 C. J. Since it is admitted, the fituation may come in queftion ; that will by way of confequence determine the other point, who ought to repair; and therefore the trial could not be in Norfolk. I take Nient dedire to be as much a confellion, as cognovit aclionem. The matter of law in the fuggeftion arifes neceffarily out of the matter of fact, and without it, would not be compleat. To which Powys J. agreed. El per Eyre J. On Not guilty, the defendant may controvert every thing the profecutor is bound to prove. He is bound to prove, where the bridges lie, and therefore Norfolk was an improper counry. If a man would difcharge himfelf upon a particular ac- count, he mult plead it fpecially •, but not where the common right is his defence. If a man is charged to repair ratione tenurae, he may throw it upon the parifh by the general iffue. The fame fuggeftion was made in Sir Richard Onflow's, cafe, and no exception taken. There is judgment entered in that cafe of Hornfey, Paf 2 W. & M. Ret. 3 1 . And in the debate, as I find in my notes, Holt C. J. faid, the defendants might lhew it not to be a highway. ForUfcue J. thought, parcel or not parcel, could not be given in evi- dence on Not guilty. For 1 Mod. 112. Hale C. J. faid, Not guilty goes only to the repair or not •, fo that as to all other queftions the defendant mult plead fpecially. And Parker C. J. held fo, Mich. 10 Ann. There being three judges to one, judicium pro rege. M>u%%tx$. BUGGERY ffrom the Italian bugeria,) fays Lord Coke, is adeteftable, and abominable fin, amongft chriftians not to be named, committed by carnal knowledge againft the ordinance of the creator, and order of nature, by mankind with mankind, or with brute beaft, or by woman kind with brute beaft. 3 Lift. 58. It was complained of in parliament (Rot. Pari. 50 Ed. 3. N. 58.) that the Lombards had brought into the realm the fhameful fin of fodomy, that is not to be named, as there it is faid. Our ancient authors conclude, that it deferveth death, uliimimfupplicium, though they differ in the manner of the punithment. BriUcu (ca. 9.) faith, diar. fodomites and mifcreants {hall be burnt, and fo were the Ibdomites by Almighty God. (Gen. 19.9.) Fleta faith, P.ecorctties & fodomittflt. 25 Hen. 8. c. 6. \_A. D. 1533. intituled] " The punimment of the vice of buggery." 3 Inft. 59. " Forafmuch as there is not yet fufficient and condign punifhment ap-" He that com- pointed and limited by the due courfe of the laws of this real™, for the mitteth bug- deteftable and abominable vice of buggery committed with mankind or mankind o beaft : (2) It may theretore pleafe the king's highnefs, with the affent of beaft, fli aii be his lords fpiritual and temporal, and the commons, of this prefent parlia- adjudged a ment aiTembled, that it may be enacted by authority of the fame, That felon. tne f ame offence be from henceforth adjudged felony, and fuch order and 1 a e P e JP e - form of procefs therein to be ufed againft the offenders as in cafes of felony c. 3. and re- at t ' ie con^on law •, (3) and that the offenders being thereof convict by pealed in part verdict, confeffion, or outlawry, fhall fuffer fuch pains of death, and by 2 & 3 Ed. loffes and penalties of their goods, chattels, debts, lands, tenements and h 29 h i 3nd h ere ditaments, as felons be accuftomed to do, according to the order of by 1 Mar* 6 tne common l aws of this realm ; (^4) and that no perfon offending in any feff. i.e. 1. fuch offence, fhall be admitted to his clergy •, (5) and that juftices of peace and revived fhall have power and authority, within the limits of their commiffions and and made per- jurifdicYion, to hear and determine the faid offence, as they do ufe to do pe 5J', a y in cafes of other felonies. (6) This act to endure till the laft day of the next parliament. The act of 25 Hen. 8. hath adjudged it felony, and therefore the judg- ment for felony doth now belong to this offence, viz. to be hanged by the neck till he be dead. He that readeth the preamble of this act, will fee the necefilty of reading our ancient authors: the ftatute doth take away the benefit of clergy from the delinquent, 3 Injl. 59. The 26ujjgerp. 439 The words, amongft Chriflians not to be named, are in the ufual indict- ment for this offence, and are in effect in the parliament roll of 50 Ed. 3. nu. 58. 3 Inft. 59. The words of the indictment are, Contra ordinaticnem creatcris, et na- ture ordinem, rem habu.it venereum, diclunfque puerum carnaliter cognovit, k3c. So that there muft be penetratio, that is, res in re, either with mankind, or with heart, but the leait penetration maketh it carnal knowledge. See the indictment of Stafford, (Co. Ent. 352.) which was drawn by great ad- vice, for committing buggery with a boy, for which he was attainted and hanged. 3 Inft. $g. The Sodomites, fays lord Coke, came to this abomination by four means, viz. by pride, excefs of diet, idlenefs, and contempt of the poor. Otiofus nihil cogitat, nifi de ventre & venere. Both the agent and perfon consenting are felons : and this is confonant to the law of God. Lev. c. 20. v. 30. 1 Cor. c. 6. v. 10. And this accordeth with the ancient rule of law, Agent es tif confentientes pari pcena pleilentur. 3 Inft. gy. Emiffw feminis maketh it not buggery, but is an evidence in cafe of buggery of penetration : and fo in rape the words are alfo carnaliter cognovit, and therefore there muft be penetration-, and emiffw feminis without pene- tration maketh no rape. If the party buggered be within the age of dif- cretion, it is no felony in him, but in the agent only. When any offence is felony either by the common law, or by ftatute, all acceffories both be- fore and after, are incidently included. So if any be prefent, abetting and aiding any to do the act, though the offence be perfonal, and to be done by one only, as to commit rape, not only he that doth the act is a principal, but alfo they who are prefent, abetting, and aiding the mifdoer, are principals alfo, which is a proof of the other cafe of fodomy. 3 In ft\ 59- This ftatute extends as well to a woman, as to a man ; and therefore if fhe commit buggery with a beaft, fhe is a perfon guilty of this offence ; and therefore the word perfon is ufed in the act. And the rather, for that fome time before the making of this act, a great lady had committed buggery with a baboon, and had conceived by it, &JV. 3 Inft. $g. By the articles of the navy (22 Geo. 2. c. 33.) if any perfon in the fleet fhall commit the unnatural and deteftable fin of buggery or fodomy, with a man or beaft ; he fhall be punifhed with death by the fentence of a court martial. OBurgfarp. 44-0 ^urjjlar^ BURGLARY is a felony at the common law, in breaking and enter- ing the manfion houfe of another, or, as fome fay, the walls or gates of a walled town in the night, to the intent to commit fome felony within the fame, whether the felonious intent be executed or not. i Hawk. P. C. 101. In breaking] It feems agreed, that fuch a breaking as is implied by law in every unlawful entry on the pofTeffion of another, whether it lie open or be inclofed, and will maintain a common indictment, or action of trefpafs, quare c la ufutn f regit, will not fatisfy the words felonice & burglariter fregit, except in fome fpecial cafes, in which it is accompanied with fuch circum- ftances as make it as heinous as an actual breaking : and from hence it follows, that if one enter Into a houfe by a door which. he finds open, or through a hole which was made there before, and ileal goods, &c. or draw any thing out of a houle through a door or window which were open before ; or enter into a houfe by the doors open in the day-time, and lie there till night, and then rob and go away, without breaking any part of the houfe, he is not guilty of burglary. But it is certain, that he would have been guilty thereof if he had opened the window, or unlocked the door, or broken a hole in the wall, and then had entered, &c. or if bav- in" entered by a door which he found open, or having lain in the houfe by the owner's confent, he had but unlatched a chamber-door •, or if he had come down by the chimney : (in which cafe though it might be laid, that the houfe was open there, and lb not actually broken -, yet it -was as much inclofed as the nature of the thing would bear.) And according to fome opinions, he would have been in like maianer guilty, if upon an affault made by him upon the houfe, with an intent to rob it, che owner had opened the door in order to drive him off, and thereupon l?e had en- tered : (in which cafe, as fome fay, the opening of the door by the owner, being occafioned by the felonious attempt of the other, is as much im- putable -to him as if it had been actually done by his own hands.) iHaiok. P. C. I02. And it has alfo been refolved, that where divers perfons. came to a houfe with an intent to rob it, and knocked at the door, pretending to have bufinefs with the owner, and being by that means let in, rifled the houfe, they were guilty of burglary. Alfo it hath been adjudged, that thofe were no lefs guilty, who having a delign to rob a houfe, took lodg- ings in it, and then fell on the landlord and robbed him •, for the law will not endure to have its juftice defrauded by fuch evafions. And for the like reafon, a fortiori it has been refolved, that where perfons, intending to rob a houfe, raifed a hue and cry, and prevailed with a conftable to make a fearc'i in the houfe, and having got in by that means, with the owner's confent, bound the conftable, and robbed the inhabitants, they were guilty of burglary; for there cannot be a greater affron: to public!: juftice, juftice, than to make ufe of legal procefs as a ftale for fuch villainous purpofes ; and therefore the whole act is efteemed tortious ab initio. i Hawk. P. C. 1 02. And lord Hale fays the following adts amount to an aftual breaking, viz. opening the cafement, or breaking the glafs window, picking open a lock of a door with a falfe key, or putting back the lock with a knife or dagger, unlatching the door that is only latched, to put back the leaf of a window with a dagger, to take down a pane of glafs of a glafs win- dow by taking out or bending afide the nails that fatten it, is a breaking, becaufe the glafs-window is parcel of the houfe. 1 Hal. H. P. C. 552. One of the fervants in the houfe opened his lady's chamber door (which 1 Stran. 481. was fattened with a brafs bolt) with defign to commit a rape : and C. J. ^ lch ^G- '• King ruled it to be burglary, and the defendant was convicted, and tranfported. He was indicted with another perfon for burglary. And upon the evi- Servant lets in. dence it appeared that he was a fervant in the houfe where the robbery a ,hl f f > K1S was committed, and in the night-time opened the ftreet-door, and let in ^J^jf " 8 gi the other prifoner, and fhewed him the fide-board, from whence .he other j (huaCorn-' prifoner took the plate : then the defendant opened the door and lee him wal's cafe, out ; but the defendant did not go out with him, but went to bed. Upon the trial before lord chief juftice Raymond, juftice Denton and baron Co- myns at the Old-Bailey, it was doubted, whether this was burglary in the fervant, he not going out with the other : and it being laid down in H. P. C. 81. Halt. 317. that it is not burglary in the fervant; the judges ordered it to be found fpecially. And afterwards at a meeting of all the judges at Serjeants-Inn, they were all of opinion that it was burglary in both, and not to be diitinguifhed from the cafe that had been often ruled and allowed in the fame page in Hale, that if one watches at the ftreet end while the others go in, it is burglary in all : and upon report of this opinion the next feffions the defendant was executed. At a meeting of the judges, fays Mr. juftice Fojler, upon a fpecial ver- Fort. Rep. diet in January 1690. they were divided upon the queftion, whether 108, 109. breaking open the door of a cupboard let into the wall of the houfe was burglary or no. Hale faith that fuch breaking is not burglary at common law ; but thinketh it would be fufficient to bring the cafe wichin the fta- tutes I have juft cited. This diftinction he groundeth on Simpfon's cafe, and even faith that in that cafe the breaking open a cheft in the houfe brought the cafe within the 39th of Eliz. which, I fpeak it with great de- ference, if a moveable cheft be meant, cannot be law. Siinpfon's cafe, as truly ftated by Hale in one part of his work, (2 Hal. 358.} and by Kehng, C 3 1 ) doth not in my opinion warrant any fuch diftinction. It did not, nor poffibly could, turn on the circumftance of breaking a cheft or fixed cup- board or any thing like it •, nor doth it appear from the ftate of the cafe, that there was the leaft occafion to refort to any fuch constructive breaking. For in fact, both outer and inner doors were broke open. The cafe, in my opinion, turned fingly on this point. The man had broke open the cheft and brought the goods into the hall in order to carry them off, but Vol. I. N° XIX. q L was 442 26tuglarp. was apprehended in the houfe. It was made a queftion whether this amounted to a ftealing in the houfe within the 39th of Eliz. and it was held that it did : the man had once poffeffed himfelf of the goods animo furandi. This at common law, amounted to a caption and afportation, otherwife few perfons who are taken in the facT, could be convidted of larceny, and this being fo, the conftrudtion of the ftatute muft be accom- modated to the rules of the common law in like cafes. With regard to cupboards, prefles, lockers, and other fixtures of the like kind, I think we muft, in favour of life, diftinguifh between cafes relative to mere property, and fuch wherein life is concerned. In queftions between the heir or devifee and the executor, thofe fixtures may with propriety enough be confidered as annexed to, and parts of the freehold. The law will pre- sume that it was the intention of the owner under whcfe bounty the executor thirtieth, that they fhould be fo confidered •, to the end that the houfe might remain to thofe, who, by operation of law, or by his bequeft, fhould become intitled to it, in the fame plight he put it or fhould leave it, en- tire and undefaced. But in capital cafes, I am of opinion, that fuch fix- tures which merely fupply the place of chefts and other ordinary utenfils of houfhold, fhould be confidered in no other light than as mere move- ables, partaking of the nature of thofe utenfils and adapted to the fame tile. And entering] It feems agreed, that any the lead entry, either with the whole, or but with part of the body, or with any inftrument, or weapon, will fatisfy the word intravit in an indidlment of burglary ; as if one do but put his foot over a threfhold, or his hand, or a hook, or piftol, with- in a window, or turn the key of a door which is locked on the infide, or difcharge a loaded gun into a houfe, &c. Nay, it is certain, that in fome cafes one may be guilty of burglary, who never made any adtual entry at all •, as where divers come to commit a burglary together, and fome ftand to watch in adjacent places, and the others enter and rob, &Y. for in all fuch cafes, the aft of one is in judgment of law the adt of all. And upon the like ground, I can fee no reafon why a fervant, who, confederat- ing with a rogue, lets him in to rob a houfe, £sff. fhould not be guilty of burglary as much as he ; for it is clear, that if the fervant were out of the houfe, the entry of the other would be adjudged to be his alio ; and what difference is there, when he is in the houfe ? 1 Hawk. P. C. 103. £©ft Rep. At the Old-Bailey in June 1752, prefent Lord chief baron, Mr. juftice 107, 108! Fofter, and Mr. juftice Birch, George Gibbons was indidted for burglary in the dwelling-houfe of John Allen. It appeared in evidence that the pri- foner in the night-time cut a hole in the window fhutters of the profecu- tor's fhop, which was part of his dwelling-houfe ; and putting his hand thro' the hole took out watches and other things which hung in the fhop within his reach : but no entry was proved otherwife than by putting his hand through the whole. This was held to be burglary and the prifoner was convidted. 3 Insl. 64. N. B. This hath been always fo held. The law requireth an entry, to complete the crime of burglary, but if any any part of the body be within the houfe, hand or foot, this at common, law is fufficient. And I conceive that fuch a kind of entry will be fuffi- cient to bring the cafe within the (latutes of Ed. 6. and Eliz. with regard tu houfe-breaking attended with larceny in the day-time. I am likewife of opinion, fays Mr. jultice Fojler, that with regard to the fingle point of breaking the houfe, whatever kind of breaking will make a man guilty of burglary at common law, will bring him within thofe ftatutes ; and that no act of violence fhort of a common law burglary, will. Manfion-houfe] It feems to be the current opinion at this day, that it can be only in a dwelling-houfe, and that the indictment for it mult ne- ceflarily alledge the fact in domo manfiomli. And Sir Edward Coke feems to fay, that the breaking a church, &c. is therefore burglary, becaufe the church is the manfion-houfe of God : but I can find nothing in the more ancient authors to countenance this nicety ; for the general tenor of the old books feems to be, that burglary may be committed in breaking houfes, or churches, or the walls, or gates of a town. And Standford and Anderfon mention precedents of indictments of burglary in domo, without adding manjionali : however the conftant courfe of late precedents and opinions makes it certainly a very dangerous, if not an incurable fault, to omit the word manfionalis in an indictment of burglary in a houfe ; and therefore without queftion, it ought always to be inferted, where the truth of the cafe will bear it. But fure it cannot be necefiary or proper to have any fuch word in an indictment of burglary in a church, which by all the books above cited, feems to be taken as a diftinct burglary from that in a houfe. i Hawk. P. C. 103. However it is agreed by all, that a houfe wherein a man dwells but for part of the year, or a houfe which one has hired to live in, and brought part of his goods into, but has not yet lodged in ; or a chamber in one- of the inns of court wherein a perfon ufually lodges, or a houfe which a man's wife hires without his privity, and lives in by herfelf without him, may be called his dwelling-houfe •, and will fufficiendy fatisfy the words domus manfionalis in the indictment, whether ariy perfon were actually therein, or not, at the time of the offence. 1 Hawk. 103. Alfo all out-buildings, as barns, ftables, dairy-houfes, csV. adjoining to a houfe, are looked upon as part thereof, and confequently burglary may be committed in them ; but if they be removed at any diitance from the houfe, it feems that it has not been ufual of late to proceed againlt of- fences therein as burglaries. 1 Hawk. 104. If feveral perfons dwell in one houfe as fervants, guefts, or tenants at will, or otherwife having no fixed and certain intereft in any part thereof, and a burglary be committed in any of their apartments ; it feems clear, that the indictment fhall lay the offence in the manfion-houfe of the pro- prietor, &c. But if one hire a diftinct apartment in a houfe for his lodg- ing for a certain time, and a burglary be committed therein, I can fee no good reafon why the indictment may not lay the offence in domo manfio- nali of the owner of the chamber ; and why may not fuch an apartment, with as much propriety, be called the manfion-houfe of him that takes 3 L 2 it. 444 $ttrsiatp. it, during the time that he has a certain intereft in it ? For fo long as it is fevered by the leafe, it feems in the eye of the law to be as diftinct from the other parts of the houfe, as if the perfon who rents it, had a freehold or inheritance in it. And as to the objection, that he goes into- the houfe by the fame door with the other inhabitants, and therefore is but an inmate, and the whole ought to be confidered but as one houfe ; I anfwer, that he muft have fome way to his apartment as incident to his intereft in it, and that fuch way lying through a door which is common to him with others, doth not make the apartment itfelf in any refpeft lefs his own, than a way through a door belonging to himfelf only would have done, i Haw. 104. And if the law be fo in this cafe, it feems to me very reafonable alfo, that if fuch a lodger takes alio a cellar in the faid houfe, a burglary com- mitted in fuch cellar, may be alledged in domo nanfionali of the lodger, whether the cellar had any communication with the houfe or not ; for iince it feems to be agreed, that a barn or ftable, or other out-building near to a houfe, fhall be looked on as part thereof, why mould not fuch a cellar have the like eftimation ? Sed quaere •, for Kelynge (83) feems to in- cline to a different opinion. 1 Haw. 104. However it is agreed by all, that if one hire a part of a houfe to lodge in, which is actually divided from the reft, and have a door of its own to the ftreet, a burglary therein may be alledged in domo manf.onali of fuch perfon. 1 Haw. 104. But if he had taken it as a fhop or work-houfe for his ufe in the day- time only, it feems that a felony therein cannot be alledged in a manfion- houfe, not of him that lets it, becaufe it is fevered by the leafe from that part of the houfe which belongs to him, nor of him to whom it is let,, becaufe he takes it not to lodge in. 1 Haw. 104. From what has been faid, it clearly appears, that no burglary can be committed by breaking into any ground inclofed, or booth, or tent, &c. for there feems to be no colour from any authority ancient or modern, to make any offence burglary, that is not done either againft fome houfe, or church, or the walls, or gates of fome town. 1 Haw. 104. Foil Rep." ' At Newgate fefficns in January 1750, John Nut brown and Miles Nut- 76, 77. brown were indicted for burglary in the dwelling- houfe of one Mr. Fakney at Hackney, and ftealing divers goods. It appeared by Mr. Fakney' 5 evi- dence, that he held this houfe for a term of years which is not yet expired,, and made ufe of it as a country-houfe in the fummer, his chief refidence be- ing in London. That about the latter end of the laft fummer, he removed with his whole family to his houfe in the city, and brought away a con- fiderable part of his goods : that in November laft his houfe was broke open and in part rifled ; upon which he removed the remainder of his houthold furniture, except a clock, and a few old bedfteads, and fome lumber of very little value-, leaving no bed or kitchen furniture, or any thing elfe for the accommodation of a family. Mr. Fakney being afked whether at the time he fo disfurniftied his houfe he had any intention of returning to refide there, declared that he had not come to any fettled refo- lutioQ Btttglatp. 445 lution whether to return or not •, but was rather inclined totally to quit the houfe, and to let it for the remainder of his term. The fact the prifoners were charged with was fufficiently proved ; and was committed about mid- night the firft of January laft. The court was of opinion, that the pro- fecutor having left his houfe, and disfurnifhed it in the manner before mentioned, without any fettled refolution of returning, but rather incli- ning to the contrary, it could not, under thefe circumltances, be deemed bis dwelling-houfe at the time the fad was committed. And accordingly diredted the jury to acquit the prifoners of the burglary, which they did - y but found them guilty of felony in dealing the clock and fome other fmall matters. And they were ordered for tranfportation. — N. B. Where the owner quitteth the houfe animo revertendi, it may itill be confidered as his manfion-houfe, though no perfon be left in it ; many citizens, and fome lawyers, do fo from a principle of good hufbandry in the fummer or for a long vacation. See Pop. 42, 52. 4 Co. 40. and MSi. Denton* and Chappie, a cafe upon a burglary in the houfe of Mr. Nichols, Ea/ler fefli- ons io Will. 3. But there muft be an intention of returning, otherwife it will not be burglary. In the night'] There are fome opinions, that burglary may be commit- ted any time after fun-fet, and before fun-rifing ; but it feems the much- better opinion, that the word notlanter, which is precifely neceffary in every indictment for this offence, cannot be fatisfied in a legal fenfe, if it appear upon the evidence, that there was fo much day-light at the time, that a man's countenance might be difcerned thereby. 1 Haw. 101, 102. To the intent to commit fome felony] It feems clear, that there can be no burglary but where the indictment both exprefly alledges, and the verdict, alio finds, an intention to commit fome felony •, for if it appear that the offender meant only to commit a trefpafs, as to beat the party, &c. he is not guilty of burglary. However, it feems much the better opinion, that an intention to commit a rape, or fuch other crime which is made felony by ftatute, and was a trefpafs only at common law, will make a man guilty of burglary, as much as if fuch offence were a felony at com- mon law, becaufe where-ever a ftatute makes any offence felony, it inci- dentally gives it all the properties of a felony at common law. 1 Haw. 104, 105. @>tat. 24 Hen. 8. c. 5. [A. Z>. 1532. intituled] " That a man killing a. thief in his defence, ftull not forfeit his goods." " Forafmuch as it hath been in queftion and ambiguity, that if any 2 In( * , evil difpofed perfon or perfons do attempt feionioufly to rob or murder 6-, 220. ' any perfon or perfons in or nigh any common high-way, cart-way, horfe- Braflon way, or foot- way, or in their mannons, meffuages, or dwelling places, or '4+- b - that felonionfly do attempt to break any dwelling houfe in the nighwhncj ' AlRier k 4 T ' fhoukl happen, in his or their being in their fuch felonious intent,, to be flakw 44-6 burglary. attempted to murder or fob. Hain by him or them whom the faid evil doers fliould To attempt to rob or murder, or by any peribn or peribns, being in their dwelling houfe, which the fame evil doers fliould lb attempt burglarily to break by night -, if the laid perfon fo happening in fuch cafes to flay any fuch peribn, fy attempting to commit fuch murder or burglary, fhould for the death of the faid evil-difpofed perfon forfeit or lofe his goods and chattels for the fame, as any other perfon fhould do that by chance-medley fliould happen to kill or flay any other perfon in his or their defence •, (2) for the decla- ration of the which ambiguity and doubt, Be it enacted by the king our fovereign lard, with the affent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority There (hall be of the fame, That if any perfon or perfons, at any time hereafter, be in- no forfeiture dieted or appealed of or for the death of any fuch evil difpofed perfon or of lands or perfons, attempting to murder, rob, or burgarily to break manfion- goods for the houfes, as \ s a fj ve faid, that the perfon or perfons fo indicted or appealed perfon tha^ thereof, and of the fame by verdict fo found and tried, fliall not forfeit or lofe any lands, tenements, goods or chattels, for the death of any fuch evil difpofed perfon in fuch manner flain, but fliall be thereof, and for the fame fully acquitted and difcharged, in like manner as the fame perfon or perfons fliould be if he or they were lawfully acquitted of the death of the faid evil difpofed perfon or perfons." S)tat- 18 Eliz. c. 7. [A. D. 1576. intituled] " An act to take away clergy from the offenders in rape or burglary, and an order for the deli- very of clerks convict without purgation." " For the repreffing of the moft wicked and felonious rapes or ravifh- ments of women, maids, wives and dutnofels, and of felonious burgla- ries, and for the avoiding of fundry perjuries and other abufes, in and about the purgation of clerks convict, delivered to the ordinaries, (2) Be it enacted and ordained by the authority of this prefent parliament, That if any perfon or perfons fhall fortune at any time after the firft day of June next enfuing, to commit or do any manner of felonious rape, ravifh- nient or burglary, and to be found guilty by verdict, of any fuch feloni- ous rape or burglary, (3) or that any perfon or perfons fhall fortune to be outlawed for any of the offences aforefaid, (4) or upon his or their ar- raignment fhall confefs any fuch felonious rape or burglary, (5) That in every fuch cafe, every perfon and perfons fo being found guilty, out- lawed, or confeffing any of the faid felonious rapes or burglaries, fliall -fuffer pains of death, and forfeit, as in cafes of felony hath been ufed and accuftomed by the common laws of this realm, without any allowance of the privilege or benefit of clergy •, any law, cuftom or ufage heretofore had, made or ufed to the contrary notwithstanding. No mar. al- Sett. z. " And moreover, be it further enacted by the authority afore- lowed his f a ' ]c ] j That every perfon and perfons, which at any time after the end of dergy (hall tn j s p re r ent f e ffjon of parliament, fhall be admitted and allowed to have to the'ordina- tae benefit or privilege of his or their clergy, fhall not thereupon be de- ry, but pre. . . livered 3 Inl* 214. Hob. •6* 291. None (hall have clergy that commit- teth rape or .burglary. ,11 Co. 33. JBttrglarp. 447 livered to the ordinary, as hath been accuftomed, but after fuch clergy al- (im] y del '; , _j ._j . • • .l. l j j: .u„ ft :„ .u„.. u„u„i<:vered. 4 H 4 «3- lowed, and burning in the hand, according to the ftatute in that behalf provided, fhall forthwith be enlarged and delivered out of priibn by the 3 ' E d. , jultices before whom fuch clergy ihall be granted, that caufe notwith- 5 Co no. Handing. Cr0 J ac - 43°- Seel. 3. " Provided neverthelefs, and be it alfo enacted by the authority The juftices aforefaid, That the jultices, before whom any fuch allowance of clergy {hall ma y reta,n of * 1 , \ .. , ' f 1 f 1 r ■ r r 1 1- i_ fenders in pn- be had, fliall and may, for the further correction or lucn perions to whom f 0I1 f or a t ime. clergy fliall be allowed, detain and keep them in prifon for fuch convenient 2 Built. 137. time as the fame juftices in their difcretions fhall think convenient, fo as the fame do not exceed one year's impriionment •, any law or ulage here- tofore had or ufed to the contrary in any wife notwithftanding." Se8. 4. " And for plain declaration of law, Be it enacted, That if any To know a perfon fhall unlawfully and carnally know and abufe any woman-child ^j" 3 ""^' under the age of ten years, every fuch unlawful' and carnal knowledge thea^eof fhall be felony, and the offender thereof being duly convicted, fhall fuffer ten years, (hall as a felon without allowance of clergy." ^ e tcl " n y. Seel. 5. "Provided always, That all and every perfon and perfons, i^^h's which fhall hereafter be admitted to have the benefit of his or their clergy, cjergyj ^1 fhall notwithftanding his or their admiffion to the fame, be pu: to anfwer to aniwei toother all other felonies whereof he or they fhall be hereafter indicted or appealed, .felonies. 2^ and not being thereof before acquitted, convicted, attainted or pardoned, Ed ^3' ftac - (2) and fhall in fuch manner and form be arraigned,, tried, adjudged and J E1 \ ' ?' fuffer fuch execution for the fame, as he or they fhould have done, if, as Dyer 214. pi. clerk or clerks convict, they had been delivered to the ordinary, and there 4$. had made his or their purgations •, any thing in this act contained to the contrary notwithftanding." ©tat. 3 Will, fc? Ma.c. 9. [A. D. 1691. intituled] " An act to take away clergy from fome offenders, and to bring other to punifhment." " Forafmuch as divers wicked and ill difpofed perfons are encouraged to commit robberies upon mens perfons, and in their houfes, and other offenders, by the privilege, as the law now is^ of demanding the benefit of their clergy : Be it therefore enacted by the king's and queen's moft A ar - tt f ott excellent majefties, and by and with the advice and confent of the lords convift ofrol* fpiritual and temporal, and commons, in this prefent parliament affembled, bing a dwelU and by the authority of the fame, That all and every perfon or perfons ing-fcoifc that fhall, at any time from and after the firft day of March in the year of*" erem !ne " our lord one thoufand fix hundred ninety-one, rob any other perfon, or p er (on, 4?>. ci fhall felonioufly take away any goods or chattel, being in any dwelling- Handing mute, houfe, the owner or any other perfon being therein, and put in fear,, or fliall te, judge to any luch perfon or perlons was or were convided, as aforefaid, and alio a rp° ! 't the that luch felon or felons was or were difcovered and taken, or dilcovered ^^'"j,^ or taken by the perfon or perlons lb difcovering or apprehending any the i,y 5 G f0 . 1. faid felon or felons -, and in cafe any difpute mall happen to arile becween c. 23. f 8 By any of the perlons fo difcovering or apprehending any the laid lelon or 5 Anr.ae,c.3i. felons, fo convid as aforelaid, touching; their right or title to the faid certifi- , ' rpr f e ' 1 - • • 1 • , • • « ■ 1 • c l nenders of cate, that then the laid judge, juttice or juitice;., or the major part or them burglars and fo refpedively making luch certificate as arorefaid, fhall, in and by his or houic brcak- their certificate, dired and appoint the faid certificate into fo many ihares, e "> have a to be divided amongll the perfons therein concerned, as to the laid judge, ' artherrewartflt- 3 Geo. i.e. 15. [A. D. 1716. intituled] " An act for the better regulating the office of fheriffs, and for afcertaining their fees, and the fees for fuing out their patents, and paffing their accounts." Seel. 4. " And whereas by virtue of an act made in the fourth and 4& 5 w< & fifth years of the reign of their late majefties king William and queen c ' 8- Mary, for encouraging the apprehending of highway-men ; and of one other act made in the fixth and feventh years of his faid late majefty king William the third, to prevent counterfeiting and clipping the coin of this 6 Sc 7 W. 3. kingdom ; and of one other act made in the fifth year of her late majefty c- '7- queen Anne, for encouraging the apprehending of houfe breakers, the re- 5 Annas c ji. ipective fheriffs of England and Wales are obliged to pay the feveral re- wards of forty pounds, as in thofe acts is directed, upon the convictions of highwaymen, clippers, coiners, or houfe-breakers, to fuch perfon or perfons who fhall bring to fuch fheriff a certificate under the hand of the judge or juftices before whom fuch offenders were convicted, directing payment 454 Butgiatp* payment thereof, under the penalty of forfeiting to the party entitled thereunto double the fum fo certified, with treble cofts of fuit ; which faid reward of forty pounds being lb paid, as aforefaid, is by the faid feve- ral acts ordered to be allowed to fuch fheriff upon his account ; and if there (hould not be remaining in the hands of fuch fheriff monies lufli- cient for that purpofe, that in fuch cafe the furplufage occafioned thereby mould be repaid to fuch fheriff by the lord high treafurer, or the com- After 9 July miffioners of the treafury for the time being, out of the revenue of the 1717, fheriff cr own, upon certificate thereof from the clerk of the pipe, or by the au- n ° tob| ig ed to c]itor of Wales, as by the faid refpective afts may more at large appear : £ or ar a ge L^° ney And whereas fince the making of the faid acts it hath been found, that hending high- many fheriffs have been put under great difficulties and inconveniencies way men, or thereby, not only by reafon of paying down great fums of money for the for preventing rewar d s aforefaid, before the publick revenue writ out to them in procefs feTtine "Sf* could be levied or collected by them, but alfo by reafon that fuch fheriff of the coin, or cannot have a certificate of his furplufage from the clerk of the pipe, or for appre- the auditor of Wales, until he hath fully finifhed his account, and be dif- hending miffed the court •, by which means the fheriff is kept a long time out of houfe-brea- ^ mone y fo difburfed for the rewards aforefaid : Be it therefore ena&ed on the judged by the authority aforefaid, That no fheriff fball be obliged to bring or certificate of charge in his accounts any fum or fums of money to be paid for the re- the conviaion W ards above-mentioned, or any of them, from and after the ninth-day of and receipt ° f y u jy one thoufand feven hundred and feventeen, but fhall and may imme- tided KHhe"* diately apply for the fame to the lord high treafurer of Great Britain, or reward, apply commiffioners of the treafury for the time being, who, upon infpecting to the lord a due certificate of the conviction of fuch offender or offenders, for which treafurer, tifo fa^ reward fhall be ordered to be paid, as aforefaid, by virtue of the faid acts, or any of them, together with the receipts or acquittances of the who fhall pay parties entitled to receive the fame, fhall forthwith repay to fuch fheriff him the fums or meriffs refpectively, all fuch monies fo difburfed and paid, as aforefaid, difburfed, without any fee or reward whatfoever ; any thing in the aforefaid acts, or wit out ee. a q £ t ^ em ^ con r a j nec i t o the contrary thereof in any wife notwith- itanding;." a' ©tflt. 6 Geo. 1. c. 23. [A. D. 1 719. intituled'] " An aft for the further preventing robbery, burglary, and other felonies, and for the more effec- tual tranfportation of felons." Sefi. 10. " And be it further declared by the authority aforefaid, That the reward of forty pounds for the apprehending and convicting any per- fon or perfons for burglary, fhall be paid without any deduction, as afore- faid, for every offender who fhall be apprehended and convicted for the faid crime.'-' star. Btttfiiatp. 455 @>tfit. 25 Geo. 2.C..36. [J. D. 1752.] Made, among other purpefcs, ** for the better preventing thefts and robberies." Se£l. 1 1. " And whereas many perfons are deterred from profecuting perfons g uilty of felony, upon account of the expence attending fuch profecutions, which is another great caufe and encouragement of thefts and robberies; In order therefore to encourage the bringing offenders to juftice, Be it enacted by the authority aforefaid, That it fhall and may be in profecuii- in the power of the court, before whom any perfon has been tried and °ns for fe- conviy declared and enacted by tiic ovciiccs the authority aforefaid, That nothing in this act contained fhall extend to the C P fti° r ° i'npo.ver fa^ court, or any juftice or juftices of the peace, to make war- wr)ere t | ie f. rants or orders on the treakirer of the county of Middlefex for the pay- fender was ment of the expences of the conftable or other officer in conveying any taken, to pay perfon to gaol, or for the payment of any perfon for his time, trouble and ailiuch exoence, who fhall appear on his recognizance to give evidence as afore- char°es l 1 ■ 1 6 ' faid ; but that within the f id county of Middlefex the expences of the con- ftable or other officer, occafioned by his conveying of any perfon to gaol by virtue of a warrant from any juftice or juftices of the peace, fhall (af- ter iuch expences have been examined into upon oath, and allowed by fuch jultice or juftices, and for which no fee or reward fhall be taken) be paid by the overfeer or overleers of the poor of the pariih or place where the faid perfon was apprehended, who is and a e hereby authorized and required to pay the fame ; and the fum or fums fo paid fhall be allowed in his or their accounts." Certificate of This was a cafe from Warwickfkire affizes. The defendant was origi- hav 1 g i.p- nally indicted at the quarter-feffions holden at Warwick on the 4th of April prehended, 1758, fur refuling to take upon himfelf the office of conftable of and for arid ^orr ided tne manor of Birmingham, having been duly nominated and elected there- a felon, un- to. And the indictment let forth, that at a court-leet holden on the 1 8th derio&n of Oclober 31 G. 2. in and for the manor of Birmingham, the defendant, Will. 3 c. according to the cuftom of the fame manor, was duly nominated and (S ? £ ' Z 's ) e ^ ec ^ ei ^ by tne j ur y5 O ne of the conftables of the laid manor of Birming- 15 affignable ham for the year then next enfuing : he then being an inhabitant and refi- over, onceand dent of and within the faid manor, and being a fit perfon fo to be nomi- no more ; nated and elected to the faid office. That the defendant had notice, &c. provided it ^hat tn e fteward certified his appointment to a juftice of peace ; by whom uled before: he was fummoned to appear on, &c. at, Wc. to take the oath of office as it tempts conftable nominated and elected of and for the faid manor of Birmingham from all /.i- as aforefaid. That although he perfonally appeared according to the fum- r^andw«jV monS) aRC j was t i ien an j there required by the faid juftice to take the , njrjA, or faid oath of office of conftable of and for the faid manor of Birmingham wird wherein according to the nomination and election aforefaid, he unlawfully, wil- the felony was fully and contumacioufly did neglect and refufe to take it, and to be duly comm'fted '• fworn into the faid office, and to take it upon him. There was a fecond r rirt " 0t counC ' n tne indictment, alledging that he was perfonally prefent in court exempt 'he at the leet, and being required by the fteward to be fworn and take the conitbleof office upon him, neglected and refufed, ciff. This indictment being re- a manor, moved hither by certiorari, the defendant pleaded " Not guilty :" and * h T™h tne caufe was tric ^ at Warwick fummer-affizes in Augufl 1759, before niX/Ttown lord chief baron Parker. It appeared upon the evidence, that the facts and pariih laid in the indictment were true ; and that the defendant was a fit perfon where the to oe nominated and elected as aforefaid ; and liable to ferve the faid office felo . y was Q [ con fi- a ble, unless difcharged or exempt therefrom by reafon of the cer- VrT'more ' tificate and affign ment thereof herein after mentioned : alfo, that the ufage 2 Bur. Rep. at Birmingham has been, " annually at the court-leet there, to elect two conftables 26ttt0iarp* 457 •conftables for the manor of Birmingham generally, and one conftable for n32. Trin. the hamlet of Deri lend (a diftinct vill within the laid manor) particularly." ' Geo. 3. That the manor of Birmingham extends itfelf into and comprehends the whole Rexv - D * r " town and farifh of Birmingham, and alfo the faid hamlet of Derilend. That y " .the conftables fo elected for the faid manor of Birmingham generally, have jurifdiction and authority, as conftables, no I only throughout the faid town and farijh of Birmingham, but also within and throughout the faid hamlet of Deritend. That the conftable of Derilend is elected out of the inhabi- tants of Deritend only : and the conftable fo elected for Deritend particu- larly, and the faid conftable fo elected for the faid manor of Birmingham have federally equal and concurrent jurifdiction within the faid hamlet of Deritend. That the defendant had a certificate according to the fta- tute of 10 fc? 11 W. 3. c. 23. difcharging one Plowden Jennett from all parifh offices within the parifh of Birmingham \ and an alignment thereof figned and executed on the feveral and refpective days of the dates thereof refpedtively. And the fame was duly inrolled according to the ftatute j and had not been before affigned. Upon this cafe, the queftion referved for the opinion of his majefty's court of King's Bench, is, Whether the faid John Darby/hire, upon the circumftances of this cafe, is, notwithftanding the certificate, guilty of the indictment, or Not guilty. Mr. ferjeant Hewitt for the king, argued thac he is not exempted from ferving this office herein defcribed. The dif- charge is ("by the act; from all " parish W ward offices," within the parifh or ward wherein the felony was committed. But the limits of this man's office extend beyond the parifh of Birmingham : therefore this is not a parish office. And there is no fuch diviiion in this place, as a ward: therefore no ward officer. But a constable is not a parifa officer at all. It was a common-law office, before parifhes exifted. Con- ftables were, by common law, confervators of the peace. " The office is as ancient as turns or leets," 4 Infl. 265. Therefore more ancient than pari/hes. A parifh is not a comimn-law divifion ; but an ecckfiaftical one : and fo it was afferted in Freeman's Rep. 228. in the cafe of Adefon v. Sir John Otway, by Mr. juftice Atkins. And in Mich. 10 IV. 3. an appoint- ment of a conftable was quafhed, becaufe it was not alledged in the or- der, " that he was an inhabitant of the liberty" but only " of the parifh" Cafes Temp. IV. 3. 256. Anonymous. Here, this man is appointed conftable in and for the manor of Birmingham. The office of conftable is always annexed to a vill, not to a pariflj. But the felony, in this cafe, was committed in the parijh of Birmingham, not in the vill of Deritend. Mr. Caldecott, for the defendant. He is at leajl a parish-^ot, (whatever more he may be;) becaufe his office extends throughout the whole parifh of Birmingham: and he is an inhabitant of the parifh of Bir- mingham. Therefore, though he be alfo conftable of the manor which includes the parifh; yet he is certainly a parifh officer, notwithftanding that greater extent of his jurifdiction or power. This act is to be conftrued favourably. And it has been determined on 3 Of 4 IF. ci? M. c. 11. " That ferving the office of conftable for a city at large, (though he was Vol. I. N°. XX. 3 N appointed 458 BUtSlW- appointed by the corporation, and exercifed it throughout the whole city,) gained a fettlement in the parifh where he inhabited." 2 Strange 1 01 4. Between the parijhes of St. Maurice and St. Mary Calendar in Win- chefter. P. 29 G. 2. B. R. Rex v. Davis, collector of the rates and duties of the highways of the parifh of St. Leonard Shoreditch, who was appointed by the truftee3 under the aft of parliament, and not chofen by the pari ft : yet it was holden to be a parifij-office ; and " That this aft ought to re- ceive the mofi liberal conftruftion." In the liberty of ' Weflminfler, the con- ftables are chofen by the burgefies for the liberty of Weftminsler, and aft throughout the whole liberty : yet they always enjoy the benefit of thefe certi- ficates. This cafe is executing an office in the parifh where the man lives ; and is certainly within the intention of the legiflature. For the aft of parliament direfts the judge to certify in what parifh or place the felony was committed. Mr. ferjeant Hewitt, in reply The reward is only a difcharge from ■parifh and ward offices ; and from no others. As to 2 Strange 1014.- — — It depends upon the words of the aft of parliament of 9 & iolV.o,-c. 11. which only requires executing a publick annual office, within the parifh : It does not at all fpeak of parifo-offices ; nor is confined to them, as this is. As to the cafe of Rex v. Davis The man was chofen by trufcees, under an aft of parliament for repairing the highways of that parifh, col- leftor of fuch highway rates within the parifh : fo that that was ftriftly and properly a parifh office. In IFeslminsler, I believe, the confhbles are appointed for a particular parifh, not for the liberty in general. The prefent cafe, molt manifeftly, is not confined to the parifh where the fe- lony was committed: which, by the aft, it ought to be; for it is clear that the aft does not mean to extend it further than that limit. Lord Mansfield. — The only queftion upon this cale is, " Whether the conftableof ihemanor of Birmingham is a p ARiSH-'fiicer of the parifh of Bir- mingham ? This term " parijh-officer," does not include every office exercifed in the parifh : if it did, it might even take in the office of high-ffieriff of the county. A parijh-officer is relative to the parifh, and confined to the parifh only. A conftable of a parifh may be called a parifh-oiricer : but this man has a much larger jurifdiftion than the parifh only : for he has a jurifdiftion over the whole manor, which extends much beyond the pa- rifh; and the parifh is only a part of that diftrift over which it is to be exeicifed. And the aft does not intend the certificate to be a difcharge from an office, whereof the funftions are to be exercifed out of the limits of the parifh. This man cannot be efteemed a parifo-officer, either from the origin of his office, or the nature, or the exercife of it. Mr. jufiice Denifon. If it had been fhted " that the manor of Bir- mingham and parifh of Birmingham were co-extenfive, this certificate might have been a fufficient difcharge. But this is ilated quite otherwife, name- ly, " That the jurifdiftion of the conftables elected for the manor gene- rally, extends not only throughout the town and parifh, but also within and throughout the hamlet of Deritend." The aft only meant to excufe the pro- MltQUtV. 459 proprietor of the certificate, from ferving parifh and ward offices within the parifh or ward where the felony was committed •, and not from offices to be exercifed out of the parifh or ward. If fo, this is not an office within the words or meaning of the act of parliament, upon this ftate of the cafe now before us : for this is not an office of conflable in and for the parijh; but in and for the manor, which is more exlenfive than the parifh is ; and a different fpecies of divifion too, one being ecclefiaftical, the otiier civil. ' Mr. juftice Wihnnt —The act of parliament means thefe certificates to be exemptions from fuch offices only, the functions of which are confined within that fort of divifion which is now called a parijh ; which is not a civil, but an * ecclefiaftical divifion. No fuch fpecies of divifion was * y F known at * common law: the temporal or civil divifion was into vills, not man's Rep. into parifhes. And this office now under our confideration, as the cafe 228. per At- is dated, could be only a partial exercife of the functions of this office, k' ns » accord. within the parijh of Birmingham : for he could only exercife within the pa- rifh of Birmingham, the functions of fuch part of the jurifdiction as the limits of the parijfj extended to; but not thofe of the reji of his jurifdiction which lay beyond the limits of it. Confequently, the exemption he could pretend to claim under this certificate could be, as this cafe is ftated, only partial: but it would be abfurd to conftrue the act to exempt him from ferving the fame identical office within the parijh, and yet leave him liaide to ferve it in the vill. Mr. Caldecot's cafe cited from 2 Strange is very flrong for the prefent opinion of the court. That cafe was upon the cer- tificate act of 9 -foL 146. etiy JJJ'.-4±. mentions, that iris felony. 462 burning. felony to burn the houfe of another, and 10 Ed. 4. 14. 3 H. 7. 10. et 10 H. 7. 1. f/ Ctilt. 23 Hen. 8. c. 1. [A. D. 153 1. intituled] " An aft concerning convidb in petit treafon, murder, &c." Clergy not al- " Where at a parliament holden ztWefiminfier in the third year of lowed to any j,- n g £^ war ^ t he firft, the fame king moved the prelates of the realm, a fubdeacan a "d them enjoined upon their faith that they owed to him, that in no wife committing they (bould deliver thofe clerks which were indicted for felony, without petit treafon. due purgation, fo that the king fhould have no need to put other remedy tin that behalf: (2) and that, notwithstanding after that monition, divers and many clerks convict were accuftomably delivered, and fuffered to make their purgation, to the great courage of evil-doers : Seel. 2. " By occalion whereof afterward, at another parliament holden 4 H. 4. c. 3. at Wejlmnfter in the fourth year of king Henry the fourth, upon the com- plaint of the commons, the fame king Henry the fourth then advertifed the prelates of the realm of the premifies, intending them to have prc- vided remedy by authority of the faid parliament, as appertained to his prerogative royal, for the confervation of the peace of the crown ; (2) At Thepromife vvhich time the archbifhop of Canterbury, for himfelf and all other bifhops o t e cergy f ^ p rov ; ncc then openly promifed to the fame kinp- Henry the fourth, to the king r » r J r p s » for the die *oat if any perlon from thenceforth were convict of any trealon which touched ZStttnfttg. 5 touched not the king nor his royal majeSty, and fuch as were notoriously fce f- : known and reputed for thieves, and for fuch caufe delivered to any ordi- klli ^ , nary as a clerk convict, that the ordinary, to whom fuch perion or per- v ia ions were delivered, Should fafely keep them after the effect of a confti- purgation tution provincial, to be made by the laid archbilhop and bishops after the effect of the letters of Simon, then ?fore that time archbifhop of Canter- bury, bearing date the xij. calends of March the year of our lord God M.CCC.L. (3) And that no fuch traitor nor felon fhould make hi$ pur- gation againft the faid constitution ; (4) which constitution the Said arch- bifhop then promifed to deliver to the fame king before Jus ne::t parlia- ment, to the intent that if it Should feem to the fame king, that the lame constitution were not fufficient remedy for the premiffes, that then the laid king might provide fuch remedy as fhould appertain in that b The ©rdf- Sithen which time, the fame constitution was never notified ne Shewed by pary' 5 abu Se the prelates of this realm, but continually fuhen that time manifest thieves ,n fu f e,in S and murderers, indicted and found guilty of their mifdeeds by good and Sub- f e i ons t0 make Itantial inqueSts, and upon plain and provable evidence before the king's purgation. juftices, and afterward by the ufages of the common laws of the land deli- vered to the ordinaries as clerks convict, be fpeedily and haftily delivered and fet at large by the ministers of the faid ordinaries, for corruption and lucre ; (6) or elle becaufe the ordinaries, enclaiming fuch offenders by the liberties of the church, will in no wife take the charges in fare keeping of them, but little regarding the trial and conviction of the faid offenders by the due and plain courfe of the common laws of the land, do fuffer them to make their purgations by fuch as nothing know of their mifdeeds ; (7) and by (uco fraud adnul and make void all the good and provable trial that is ufed againft fuch offender by the king's laws, to the great Slander of fuch as purfue fuch mildoers, and to the pernicious example, increafe and courage of fuch offenders, if the king's highnefs by his authority royal put not fpeedy remedy in the premiffes, as appertained!." Sefit. ?. " Be it therefore enacted by the king our fovereigh lord, and Co. pi. {552. the lords fpiritual and temporal, andthe commons, in this prefent parliament f r omf-Ve»ai affembled and by authority of the fame, That no perfon nor perfons, which perfons hereafter Shall happen to be found guilty after the lavs of this land For any whiclrdo co'm- manner of petit treafon, or for any wilful murder of mali:e prepenfcd, or j?" div "- °'~ for robbing of any churches, chapels, or other holy places, or for robbing ^^j [0 X of anyperfort or perfons in their dwelling houfes. or dwelling place, the owner C our,tie' er » benefit of his or their clergy, but utterly to be excluded thereof, and iiiffer ^ c ' death in fuch manner and form, as they fhould have done for any the te r.'d£d to mb- caufes or offences abovefaid, if they were r.o clerks; fuch as be witjiir oths Vol. I. N°.XX. 3 O holy of '«*> 466 ftvimiW' by5&6E. 6. holy orders, that is to fay, of the orders of fub-deacon, "or above, only e. 9, 1 Bulftr. except." I! 2 ' Seel. 4. "And be it further enacted by the authority aforefaid, That within holy every fuch perfon and perfons within fuch orders of fub-deacon, or above, orders, convift which at any time hereafter be found guilty of any petit treafon, or of any t>(murder,t2c. murder of malice prepenfed, or of any of the felonies above rehearfed, or ftiall make £ an acce fTary to petit treafon, wilful murder, or to any other the felonies lefshebffiome above fpecified, and admitted to his or their clergy, and delivered to the bound with ordinary for the fame, fhall not in any wife from henceforth be fuffered to fureties for his any purgation, nor be fet at liberty, but remain and abide in perpetual goodabearing. prif on , under the keeping of the ordinary, to whom he fhall be committed, and his fucceffors, without any manner purgation during the natural life of every fuch convict, (2) except only fuch perfon or perfons fo being within fuch holy orders, and convict of or for any of the offences aforefaid, and delivered to the ordinary for the fame, do find two fufficient fureties by recognizance before two of the king's juftices of his peace, within the fame (hire wherein the petit treafon, murder, or felony, whereof he was convicted, was committed and done, whereof one of them to be of the quorum, that fuch convict fhall be of' good abearing againft the king our fovereign lord, his laws and fubjects; every fuch convict to be bound in the fum of xl. li. and every his fureties in xx. li. (3J and that no furety Of what eltate be taken, unlefs fuch as may difpend in lands, tenements, or hereditaments the fureties yearly, above all charges of eftate of inheritance of charterhold, xxvi. s. ihall be. v jjj ^ Qr e jj- e k e worl [j xx _ y u [ n moveable fubftance at the time of taking of fuch recognizance •, (4) and that two juftices of peace, whereof one to be of the quorum, by authority aforefaid, have power and authority to take fuch recognizance; (5) and that the faid juftices afore whom any fuch recognizance fhall be taken, fhall certify the fame into the King's Bench, within four months next after the taking thereof; upon pain to lofe and forfeit C. s. for every default thereof." He that is at- g^ ^ u Provided alway, That this act extend not to give any benefit to jjjjl ° ot m °£g any fuch perfon or perfons, which, after their confeffion, or judgment Jus purgation, given againft them, of or for felony, or murder, or after they be outlawed for any fuch caufe, be admitted to their clergy, and delivered to the ordinary for the fame, but that they and every of them fhall remain in the cuftody of the ordinaries without making purgation, upon fuch peril, and in fuch manner and form, as it was ufed by the common law before the making of this prefent act ; this act or any thing therein contained notwith- ftanding." An ordinary Se8. 6. " Provided always, and it is further enacted, That every may difgrade ordinary, to whole cuftody any fuch convict for any of the offences above a convia per- r ehearfed fhall be committed, may at his liberty difgrade every fuch convict fon, and fend ^^ ^ j aws Q f t ^ e c h urc h 5 if he fee caufe fo to do, and fend the convict Kio&'° Bench. f° difgraded, in fure and fafe keeping, into the King's Bench, with a certifi- cate under his feal, teftifying the faid difgrading, (2) upon which the juftices of the King's Bench, having afore them the record upon which the faid perfon fo difgraded was firft convict, fhall give fuch like judgment of ftttttlftlg* 467 of death upon the fame record, againft every fuch perfon fo convict and difgraded, as the juftices afore whom he was convict might have done, if the faid perfon fo difgraded at the time of his conviction afore them had been no clerk ; his admiffion to his clergy, and committing to the ordinary, ne any other thing, ufe or cuftom to the contary hereof notwithftanding ; (3) and that every fuch judgment mall be executed accordingly ; (4) and n Co.f. 303; that every ordinary, fo fending any fuch convict difgraded into the King's Bench, fhall be difcharged againft: the king our fovereign lord, his heirs *£ „" | ' f" ' ' and fucceffors, of or for any further cuftody, or keeping of the fame con- Made per. vict: (5) this act to continue unto the laft day of the next parlia- petuai by 32 ment." H. 8. c. 3. @)tc\t- 25 Hen. 8. c 3. \_A. D. 1533- intituled] " For fuch as ftand mute, &c" " Where at your parliament holden at Weftminjier, in the three and iAnderf.114," twentieth year of your moft noble reign, among other things it was Clergy not al- ordained, eftablifhed and enacted, That no perfon or perfons which there- lowed to thofe after fhould happen to be found guilty, after the laws of this land, for any j**^ ^ manner of petit treafon, or for any wilful murther of malice prepenfed, or "• • c * 3 * ing of any hou/e by day or by night, any perfon being then in the fame houfe where the fame breaking had been, or after that time fhould be committed, being put in fear or dread ; or of or for robbing of any per- fon or perfons in the highway, or near the highway, or'for felonious fteal- ing of horfes, geldings or mares ; (4) or of felonious taking of any goods out of any parifh church, or other church or chapel •, (5) or being in- dicted or appealed of any of the fame offences, and thereupon found guilty by verdict of xii. men, or fhould confefs the fame upon his or their arraignment, or would not anfwer directly according to the laws of this realm, or fhould ftand wilfully or of malice mute, (6) fhould not be ad- mitted to have or enjoy the privilege or benefit of his or their clergy or fanctuary, but fhould be put from the fame. Seel. 4. " And that in all other cafes of felony, other than fuch as be before mentioned, all and Angular perfon and perfons, which after the faid firft day of March then next following fhould be arraigned, or found guilty upon his or their arraignment, or lbould confefs the fame, or ftand mute in form aforefaid, or would not anfwer directly in form abovefaid, fhould have and enjoy the privilege and benefit of his or their clergy, and the _ tlia liberty and privilege of fanftuary, in like manner and. fonm. as he or L they mrgfit of 'ffibufdlhave don! betore the xxiv. day of April in the firft .year of tiie reign of the laid late king Hetiryibt eighth, as in the laid aft ie in the. faid fifft year, among other things, 'mere plainly appeareth : (2) By reafon of which article and claufe contained in t\\e faid aft made in the faid firft year, the faid (tatute made in the faidxxv. year of the faid late kino-, which did put fuch felons and burglarors from their' clergy, that do fuch offence in one county, and after are taken with the goods ilolen in another county, and there indicted, arraigned and found guilty, was made void ; by reafon whereof, divers and many perfons that fkhen the faid firft year have committed fuch robberies and burglaries in one county, and after have been taken with the manner in another county, ' and there indicted, arraigned and found guilty, have had and enjoyed their clergy, which they cculd not have had in' cafe the faid aft, made in the faid xxv, year had flood in force, to the great holding and comfort of The (la?, of fuch offend rs : (3) For redrefs whereof from henceforth to be had, be it 2; H. 8.c. 3 enafted by the authority of this prefent parliament, That the faid aft made hnd,n in the faid xxv. year, touching the putting of fuch offenders from their withftand:n° ctefgy, and every article, claufe or fentence contained in the fame touch- a claufe co°i ing clergy, [hall from henceforth, touching fuch offences from henceforth prii'eJ in the t0 be committed and done, ftand, remain and be in full flrength and Out. of 1 Ed. v j rtL)e5 - in r uc u manner and form as it did before the making of the faid " C ' 12 ' aft made in the laid firft year of the reign of cur faid fovereign lord the king that now is ; any claufe, article or fentence comprifed in the faid aft made in the faid fifft year, to the contrary thereof not withflanding." €?tat. 4^ J 5T/.7. £5? Ma. c. 4. [A. D. 1557. intituled'] " An aft that acceffaries in murder and divers felonies, fhall not have benefit of clergy." AcceZ^z- : n " For the due puniihment of fuch as command, counfel, or petty treafon, hire any perfon or perfons, to commit, perpetrate, or do any jtlony, mur- t£ y trea f ori? wilful murder, or any of the offences in this pre- have*beL n0C ' fent aft mentioned: (2) Be it enafted by the authority of this pre- Jergy. lent parliament, That all and every perfon and perfons, that after the firft z&3.P.&M fc v day,of March next coming fhall malicioully command, hire or counfel c - '7- , any periun or perfons to commit of do any petty treafon, wilful murder, iTe f 8 or t0 do an y ro ' bbe, 7 * n an Y dwelling-houfe or houfes, or to commit or do , ,.' ' ' any robbery in or near any highway in this realm of England, cr in any 11 Co. 26. other the queen's dominions, or to commit or do any robbery in any place within the marches of England againft Scotland, or wilfully to burn any dwellingj-Jhoufe, or any part thereof, or any barn then having corn or i i the fame •, that then. every fuch offender or offenders, and every ■ ©I beissg outlawed thereof, or being thereof arraigned and found v by the order of the law, or being otherwife lawfully attainted or convifted of the fame offence ; or by being arraigned thereof, do ftand e of malice or froward mind, or do challenge peremptory above the number Burntrts- 473 number of twenty perfohs, or will not anfwer directly to fuch offence, (hall •not have the benefit of his or their clergy. Sell. 2. " Provided always, and be it enacted, That every lord and Trial ofa Ior4 lords of the parliament, and peer and peers of this realm, having place bj his pe«rs. and voice in parliament, upon every indictment for any of the offences aforefaid, (ball be tried by their peers, as hath been accuftomed by the laws of this realm. The following are lord Hale's obfervations on the preceding ails of 2 3 Hen. 8. c. 1. 25 Hen. 8. c. 3. 1 Ed. 6. c. 12. 5 & 6 Ed. 6. c. 10. and 4 &? 5 Phil, y Ma. c. 4. It feems unqueftionable, that the burning of a dwelling-houfe, or any 1 Hale's Hift. part thereof, or any out-houfe or part thereof, was a felony at common law, P. C. 57°- and fo was alfo the burning of a barn with hay or corn in it, though not parcel of a dwelling-houfe, but (landing at a diftance. Co. P. C. p. 6y. 11 H. 7. 1. b. But as to the point of the not allowance of clergy therein, there may be fome matters to be examined : certain it is, that at this day clergy is not allowable to a party convicted of wilful and malicious burning of a dwell- ing-houfe, or of a barn with corn; quod vide 11 Co. Rep. 34. Poulter\ cafe, adjudged per omnes jufiic\ Plow. Com. 475. Co. P. C. p. 6-j. and the conftant practice hath been to deny clergy to thofe convict of this crime ; quod vide in the refolution of Poulier's cafe. And the ftatute of 4 & 5 P. & M. cap. 4. takes away clergy from all acceffaries before to the offences of wilful burning any dwelling-houfe, or of any barn then having corn or grain in the fame ; And furely they took the law to be, that the principal was by law oufted of his clergy, or otherwife they would not have oufted the acceffary of his clergy. But then the queftion remains, what it was that oufted the principal of his clergy. By the ftatute of 23 //. 8. cap. r. clergy was oufted from all perlbns , Hale's Hift. found guilty of burning of any dwelling-houfe or barn, wherein any grain P. C. 571. or corn ihould happen to be, and from all perlbns found guilty of abetting, aiding or counfelling thereof, viz. acceffaries before; except perfons in order of fubdeacon, or above. The ftatute of 1 Ed. 6. cap. 12. as to divers offences therein particularly mentioned, which are for the moft part alfo included in the ftatute of 23 H. 8. carried the exclufion of clergy farther, viz. as to (landing mute, or not direclly anfwering, but mentions not at all wilful burning of houle?, or barns with grain ; And ena&ed, that in all other cafes of felony, perlbns indicted (ball have their clergy, as they fhould have had before 1 H. 8. So that by the act of 1 E. 6. clergy was reftored to burning of houfes and barns with corn, notwithstanding the ftatute of 23 H. 8. or any other ftatute made fince the firft year of Henry 8. and if the oufting of the prin- cipal in arfon from his clergy refted upon the ftatute of 23 H. 8. then the ftatute of 1 Ed. 6. had reftored him to his clergy. The folution therefore of this matter is upon two accounts. Vol. I. N° XX. 3 P ,. Some 474 Buttling. i. Some have thought that the wilful burning of houfes was not within clergy by the common law, nor. by the ftatute of 25 E. 3. cap. 4. becaufe it was an hoflile act, and therefore, as until the ftatute of 4 H. 4. cap. 2. Injidiatores viarum 13 depopulatores agrorum joined with another felony, and fo found, were oufted of their clergy, becaufe favouring of acts of hoftility., fo incendiatores domorum were even by the common law oufted of clergy before the ftatute of 23 H. 8. and fo are not reftored to clergy by the general claufe of the ftatute of 1 E. 6. and this I remember was delivered as the reafon of the exclufion of clergy from wilful burning by Mr. attorney Noy, 8 Car. 1. in the King's Bench, and feemtd to be aflented to by the court. 1 Hale's Hift. g ut I think, fays lord Hale, this will hardly help the matter, 1. Becaufe r. C.571. though poffibly clergy might not be allowed at common law to wilful burning, yet the ftatute of 25 E. 3. cap. 4. pro clero extends clergy to ail treafons and felonies touching other perfons than the king himielf, and his royal majefty. 2. Becaufe then as well a burning of a barn with hay, as a barn with corn, would be excluded from clergy, for the one is as hoftile as the other. 2. Others have thought that the ftatute of 4 l£ 5 P. &? M. cap. 4. taking away clergy from the acceflaries before, doth not take away, by neceflary confequence, the clergy from the principal, for it were not reafon to think the acceflary before ftiould be in a worfe condition, than the principal offender, and therefore virtually and implicatively, and by neceflary confequence, it takes away clergy from the principal in all thofe cafes, where it takes it from the acceflary before, and befides, if the principal had his clergy, the acceflary could not be arraigned ; and this I think is true, though this cafe needs not this help. 1 Hale's P. C. But I think, fays lord Hale, and fo is the book of 1 1 Co. Rep. 34, 25- 572. that the ftatute of 25 H. 8. cap. 3. which extends to take away clergy in all thofe cafes, which were within 23 H. 8. cap. 1. and particularly recites that of burning houfes and barns with grain, and farther extends that exclufion to ftanding mute, not directly anfwering, challenging above twenty ; I fay that ftatute of 25 H. 8. was in great part repealed by the ftatute of 1 E. 6 and is entirely revived by the ftatute of 5 & 6 E. 6. cap. 10. not only as to the point of oufting clergy upon examination, but alio as to the exclufion of clergy in thofe cafes mentioned in the acl: of . 25 H. 8. wherein burning of houfes and barns with corn is exprefsly mentioned, fo that confequently this ftatute of 5 &? 6 E. 6. reviving the ftatute of 25 H. 8. repeals the generality of that claufe in 1 E. 6. whereby clergy was let in, in all cafes not there enumerated. 1 Hale's P. C. And confequently the periods of this cafe of clergy in wilful burning 573- ftanding thus: 1. Before 23 H. 8. clergy was allowable therein by force of the ftatute of 25 E. 3. pro clero. 2. After 23 H. 8. until ?5 H. 8. clergy was allowable for the acceflary in all cafes, and for the principal in all cafes, but finding him guilty. 3. after 2Bttrm'tiff v +75 3. After 25 H. 8. until 1 2L 6. clergy was taken' away from the principal as well where he ftands mute, not directly anfwers, or challenges above twenty, as where he is found guilty. But the acceflaries as well before as after were to have clergy. 4. After i E. 6. till 5 & 6 E. 6. when the ftatute of 25 H. 8. was revived, both principal and acceflaries had their clergy in all cafes of burning. 5. After 5 fc? 6 E. 6. till 4 & 5 P. fc? M cap. 4- the principal was excluded in all cafes, wherein he was excluded by the ftatute of 25 H. 8. as well where he ftood mute, challenged above twenty, did not directly anfwer, as where found guilty. But the acceflaries before as well as after had their clergy. 6. By the ftatute of 4 &? 5 P. £ff M. cap. 4. until this day acceflaries before are excluded of clergy in all cafes, but acceflaries after have their clergy. But yet there ft ill remains two doubts. 1. Whereas the ftatute of 4 C5? 5 P. &? M. cap. 4. extends to euft: clergy from the acceflary, as well as if he be attainted as convicted, and consequently if outlawed, he fhall not have clergy, becaule it is an attainder; the ftatute of 25 H. 8. extends only to finding guilty, challeng- ing above twenty, ftanding mute, or not directly anfwering, and it feems in attainder of the principal by outlawry he (hall have his clergy ; therefore quare, whether an attainder by outlawry ouft the principal of clergy upon the ftatute of 23 or 25 H. 8. 2. Whereas the ftatute 4 &? 5 P. & M. cap. 4. hath no exception of , Hale's P. C: perfons in the order of fub-deacon •, but acceflaries before are oufted of their 574. clergy in all cafes by that ftatute, though in orders. Yet by the ftatute of 25 H. 8. which is relative to the ftatute of 2 3 \H. 8. principals in the order of fub-deacon, or above, have their clergy in the cafe of arfon ■, for by the ftatute of 23 H. 8. clergy is faved to men in orders, where found guilty ; and by the ftatute of 25 H. 8. in cafes of ftanding mute, &c. they are oufted of their clergy as if found guilty, in which cafe men in orders had their clergy, and fo the reviving of the ftatute of 25 H. 8. by that of 5 & 6 E. 6 lets in men in orders to their clergy in cafe of arfon, which feems to make this abfurdity, that the principal in arfon fhall have the benefit of clergy if in orders, but the acceflaries before, though in orders, are excluded by the general penning of the act of 4 y 5 P. fc? M. And herein there will arife a difference as to men in orders in relation to the benefit of clergy, between the cafe of being principal in wilful burn- ing of houfes, and the cafe of being principal in robbery in or near the highway, or robbing in a dwelling-houie, putting the dweller in fear, or murder of malice prepenfe ; for the act of 1 E. 6. cap. 12. excludeth them from their clergy generally without exception of men in orders, though they were excepted by the ftatutes of 23 and 25 H. 8. 3 P 2 But 476 26utm'ttg. But this ftattite of i E. 6. making no mention of burning of houfes, the exclufion of them from clergy, if refting upon the ftatute of 25 H. 8. revived by 5 £? 6 E. 6. excepts them. ©tat 37 Hen. S. c.6. of frames."] [A. D. 1545. intituled] " The bill for burning Burning a laden cart or firewood Seel. 4. " If any perfon (hall malicioufiy, willingly, and unlawfully, burn or caufe to be burnt, any wain or cart laden with coals, or with any o-oods or merchandizes, or any heap of wood prepared, cut or felled for making coals, billets, or talwood, he (hall forfeit treble damages to the party grieved, to be recovered by action of trefpafs and alfo 10/. as a fine to the king." @>tnt- 43 Eliz. c. 13. [A. D. 1 60 1. intituled] " An aft for the more peaceable government of the parts of Cumberland, Northumberland, IVeil^ morland, and the bifhoprick of Durefme." Forafmuch as now of late years, very many of her majefty's fubjects, dwelling and inhabiting within the counties of Cumberland, Northumber^ land, Wejlmcrland, and the bifhoprick of Durefme, have been taken, lbme forth of their own houfes, and fome in travelling by the highway, or otherwife, and carried out of the fame counties, or to fome other places within fome of the faid feveral counties, as prifoners, and kept barbaroufly and cruelly, until they have been redeemed by great ranfoms : (2) And ' where now of late time there have been many incurfions, roads, robberies, and burning and fpoiling of towns, villages and houfes within the laid counties, that divers and fundry of her majefty's loving fubjects within the faid' counties, and the inhabitants of divers towns there, have been forced to pay a certain rate of money, corn, cattle, or other confideration, com- monly there called by the name of Black-mail, unto divers and fundry in- habiting upon or near the borders, being men of name, and friended and allied with divers in thofe parts, who are commonly known to be great robbers and fpoil-takers within the faid counties, to the end thereby to be by them freed, protected and kept in fafety from the danger of fuch as do ufually rob and fteal in thofe parts : (3) By reafon whereof, many of the inhabitants thereabouts being her majefty's tenants, or other good fub- jects, are much impoverifhed, and theft and robbery much increafed, and the maintainers thereof greatly encouraged, and the fervice of thofe bor- ders and frontiers much weakened and decayed, and divers towns there- abouts much difpeopled and laid wafte, and her majefty's own revenue greatly diminifhed : (4) Which heinous and outragious mifdemeanors there, cannot fo well by the ordinary officers of her majefty in thofe parts be fpeedily prevented or fupprefTed, without further provifio.i of law: Seel. 2. " For remedy whereof, Be it enacted by the authority of this %ay r ord S euin-P re ^ ent P ar ^i arnenI: ' That whofoever fhall at any time hereafter, without good and lawful warrant and authority, take any of her majefty's fubject s again .x Several out- ragious mifde aieanors com mitted in Cumberland, %vay or < fturtifng. 477 againft his or their will or wills, and carry them out of the fame counties, j rg acy per . or to any other place within any of the faid counties, or detain, force or fon againft ha impriibn him or them as prifoners, or againft his or their wills, to ranfom wi,! - them, or to make a prey or fpoil of his or their perfon or goods, upon A ff ent,r 'g or deadly feud, or otherwiie : (2) Or whofoever fhall be privy, confenting, taking ord'e*- aiding or affifting unto any fuch taking, detaining, or carrying away, or taining of u,y procure the taking, detaining, or carrying away of any fuch perfon or ferioa. perfons prifoners, as aforefaid : (3) Or whofoever fhall take, receive or . carry, to the ufe of himfelf, or wittingly to the ufe of any other, any ^^^c" money, corn, cattle, or other confideration, commonly called Black- Biaxls mail, mail, for the protecting or defending of him or them, or his or their Giving of lands, tenements, goods or chattels from fuch thefts, fpoils and rob- Ehck-mailfo* beries, as is aforefaid : (4) Or whofoever fhall give any fuch money, corn, £ rot '^' on " r cattle or other confideration, called Black-mail, for fuch protecl ion, as is barns or flacks aforefaid: (5) Or fhall wilfully, and of malice burn, or caufe to be burn- of ccm. ed, or aid, procure, or confent to the burning of any barn, or flack of. The aforefaid corn or grain, within any the faid counties or places aforefaid ; (6) and £ n " a " fhall be of the faid feveral offences, or of any of them indicted, and law- w :,k ont [L. fully convicted, or fhall fland mute, or fhall challenge peremptorily above gy, &e. the number of twenty, before the juflices of affzes, juflices of gaol-deli- slnft. 66, 6r> very, juflices of Oyer and Terminer, or juflices of peace within any of the faid counties, at fome of their general feffions within fome of the faid counties to be holden, fhall be reputed, adjudged and taken to be as felons; (7) and fhall fuffer pains of death, without any benefit of clergv, fanctuary or abjuration, and fhall forfeit as in cafe of felony. Seel. 3. " And where divers and fundry perfons within the faid counties, being indicted and outlawed for murders, robberies, burglaries, or other felonies, do notwithftanding ordinarily refort and come to markets, fairs, and other publick affemblies and meetings, and do there converfe, traffick and trade with other her majefly's fubjects, and are entertained, and have the privilege as men obedient to laws, and yet do never yield themfelves to trial of law, nor are apprehended, whereby the ordinary proceeding of law, and execution of juft ice in thole parts are grown into very great contempt : Setl. 4. " Be it therefore likewife further enacted, That every clerk of _, . the peace within every of the faid counties fhall, within the fpace of two a u ou; i aws * months next after any outlawry within any of the faid counties, deliver or (hall be decla- caufe to be delivered by writing under his hand, the names of all and red to the every fuch as are or fhall be hereafter outlawed within their feveral coun- ^ eriff - ties, to all and every the fheriffs of the faid feveral counties: (2) And all p roc];:mat j 0O and every the faid fheriffs fhall proclaim and publifh them to be outlawed oftheout- in their feveral county-courts, and in the city of Carlile, the towns of laws. Penretb and Cockermouth in the county of Cumberland, and in the towns of Appulby and Kendal in the county of IVejlmorland, and in the town of Newcaftle upon Tine, in the county of the town of NewcafHe upon Tine, and in the towns of Morpeth, Alncwitk and Hexam in the county of Northumberland, and in the city of Durefme, and towns of Darlington, Bijhop Awcland, and Bemard-Cajlle within the bifhoprick of. Durefme, and in the town of Berwick, upon Tweed ; {3) and that the faid. 47 8 ttttrntag* faid (herifts having notice, as aforefaid, (hall from time to time, once in the month at their county-court, proclaim every of the faid peribns fo outlawed, or hereafter to be outlawed, until they fhall yield their bodies to prifon : (4) And likewife, that the mayors, bailiffs, aldermen, and other chief officers within the faid feveral cities and towns (hall proclaim the like at every fair or fairs to be kept within the faid cities or towns, and once every fix weeks at their markets. The punifh- Se &- S- " And be w a ^° ena & e d, That if any perfon or perfons, inha- ment for re- biting within any the faid feveral counties, (hall wittingly and willingly Iievmgor con- have conference, talk, or in any fort (hall relieve, entertain or confer femng with Wlt ^ an y f QC h p er [ on or perfons fo outlawed, or hereafter to be outlawed for an outlaw for ^ ^ c ^ murc j erSj burglaries robberies or other felonies, having knowledge of the fame outlawries, by reafon of the fame proclamation, or otherwise, and then fhall not with convenient fpeed do his bed endeavour to take and arreft any fuch perfon or perfons fo outlawed, or to be outlawed, as is aforefaid, (hall fuffer imprifonment by the fpace of fix months, without bail or mainprife, and be bound with two fufficient fureties for his good behaviour for the fpace of one year after, before he be enlarged of his T , . imprifonment. andpanijh/ Sett. 6. " And be it further enacted, That the juftices of affife within mentof the any of the faid counties, juftices of gaol-delivery, juftices of Oyer and offenders. Terminer, or juftices of peace within any of the faid counties, at any of their general feffions, fhall have power and authority by virtue of this act, to enquire, hear and determine of the offences and defaults of the faid fheriffs, mayors, bailiffs, aldermen and other officers, and of the clerks of the peace within the faid counties, and proceed againft them by in- formation or indictment, and punifh them by fine, imprifonment, or Th authority otherwife, as they (hall think fit. ofthelords ^e£l. 7. " Provided always, That this acl, nor any thing therein con- wardens (hall tained, fhall not extend to abridge or impeach the jurifdiction or autho- not be im- r ity of any the lords Wardens of any the marches of England, for and peached. anenft Scotland; any thing in this prefent acl: to the contrary notwithftand- mg. @5tat 22 y 23 Car. 2. c. 7. [A. D. 1670. Intituled'] " An aft to prevent the malicious burning of houfes, ftacks of corn and hay, and killing or maiming of cattle." Felony for wilful burning " Whereas divers lewd and evil difpofed perfons intending the ruin and of any neks impoverithment of their fellow fubjecls, have devifed, and of latefecretly &f "or* barn' ' n the night-time, and at other times when they think their deeds are not csV. in the ' known, frequently praclifed in feveral parts of this kingdom, unlawful night time and wicked courfes in burning of ricks and ftacks of hay, corn and grain, 3 Inft.66, 67. deftroying of buildings, trees, and cutting, maiming, wounding and • " c " " killing of horfes, fheep, beafts, and other cattle, in contempt of the 3 & 4 Ed. 6. iaws 5 ar >d to the infupportable v/rong and damage of many of his ma- c. 5. jefty's good iubjtds : 43 El. c. 13. 2 Seel, 25imifns. 479 Sett. 2. " For prevention whereof, and difcovery of the offenders, Be it enacted by the king's moil excellent majefty, by and with the advice and conlent of the lords fpiritual and temporal, and of the commons in this prefent parliament affembled, and by the authority of the fame, That where, in any part of this kingdom, any perfon or perfons, after the fiiff. day of March in the year of our lord one thoufand fix hundred and feventy, fhall in the night-time malicioufly, unlawfully, and willingly burn, or caufe to be burnt or deftroyed, any ricks or flacks of corn, hay, or grain, barns, or other houfes or buildings, or kilns, or fhall in the night-time malicioufly, unlawfully and willingly kill or deftroy any horfes, lheep, or other cattle, of any perfon or perfons whatfoever ; every Qich offence fhall be adjudged felony, and the offenders and every of them (hall fuffer as in cafe of felony. Sett. .. " Provided always, That no attainder for any the offences made Attainder (hall felony by virtue of this act, fhall make or work any corruption of blood, "°' t ^° f cor " lofs of dower, or disinheritance of. heir or heirs. blood (s'c. Sett. 4. " And be it further enafted and declared, That in cafe any per- The party at fon or perfons, who fhall be convict or attainted of any the offences made liberty to be felony by virtue of this aft, as aforefaid, (to avoid judgment of death, trar,f P ortedfor or execution thereupon for fuch offencej fhall make his election to be tranfported beyond the feas, to any of his majefiy's plantations: That then the juftices of alTrze, Oyer and Terminer^ gaol-delivery or juftices of the peace before whom fuch offender fhall be convict or attaint by virtue of this aft, and every of them respectively, fhall caufe judgment to be entred againft every fuch offender, that he be tranfported beyond the feas, to fome of his majefiy's plantations, in the laid judgment to be particu- larly mentioned and expreffed, there to remain for the fpace of (even years; and that inpurfuance of the laid judgment, the fheriff or (heriffs of the county or city where fuch offender fhall be fo convift or attainted, fhall caufe the faid offender to be fafely conveyed and embarked to be tranfported, as aforefaid ; and if any fuch offender fhall return into this Felony to re- kingdom before the expiration of the faid fevcn years, he fhall fuffer death ' urnbe ' oretl) e Icvcn v ct rs as a felon, and as if no fuch election to be tranfported had been made by exp [ re d him. Sett. 5. " And be it further enacted by the authority aforefaid, That if any perfon or perfons fhall in the night-time malicioufly, unlawfully, and Treble da- willingly maim, wound, or otherwife hurt any horfes, fheep, or other mages for cattle, whereby the fame fhall not be killed or utterly deftroyed, or fhall ma,min g of deflroy any plantations of trees, or throw down any inclofures in man- thrOW '- ner aforefaid ; That then every fuch offender or offenders fhall Iofe and down inclo- forfeit to the party grieved, treble the damage which he or they fhall ("re*. tsC in thereby fuflain ; the fame to be recovered by action of trefpafs, or upon the ni g ht - the cafe, or be taken at the common law. Sett. 6. " And be it enacted by the authority aforefaid, That upon the Jhreeormore complaint and requeft of the party or parties injured in any fuch manner, J utti «s of the any three or more juftices of the peace for the county, divifion, ciry, b^t,, 3 ^. - town 4 8o burning. quire of die * town corporate, or place where fuch offence fhall be committee], whereof offeree, ami one to be of the quorum, fhall and may, and they are thereunto autho- punlfn iiie of- rized and required by virtue of this aft to enquire, as well by the oaths fenders. f twe l ve lawful men or more of the fame county, as by examination of ' witnelTes upon oath, or by any lawful ways or means which to them fhall feem meet, of and concerning any the offences before incurred, and of- fenders therein •, and in order thereunto, to ifTue out warrants, as well for the fummoning of jurors, as for the apprehending of all fuch perfons, as fhall or may be thereof fufpecled, and to take their examination touching the fame ; as alfo to caufe all fuch other perfons, as to them fhall feem likely to make difcovery thereof, to appear before them, and to give information upon oath, of and concerning their knowledge of the pre- mises, lb as no perfon fo to be examined by the faid juftices of the peace, ihall be convicted, or in any wife proceeded againft, for or by reafon of any offence concerning which he or they fhall be fo examined as a witnefs, and fhall upon fuch his examination make a true difcovery thereof: (2) A witnefs re- And in cafe any perfon or perfons, who by the faid juftices be thought Ming to ap- likely to make difcovery, as aforefaid, fhall refufe to appear or to be ex- pear, (hall be amined as a witnefs, being duly fummoned by the faid juftices in purfuance committed to Q £ t j 1 i s a ft 5 i t fhall and may be lawful for the faid juftices of the peace to commit the party fo refufing to the common gaol for the faid county, without bail or mainprize, until he fhall fubmit to be examined upon oath, of and concerning his knowledge touching the fame offence, or the offenders by whom the fame was committed. No perfon 5^ y m « Provided that no perfon, who fhall be punifhedfor any offence ihd'f"" ^ virtue of this act, fhall be punifhed for the fame offence by virtue of this offence. an y other act or law whatfoever ; nor fhall be queftioned for the fame, The profecu- unlefs he be proceeded againft within fix months after the offence com- tion mult be mitted. within fix ~ c - or Heatb-polts, no perfon whatfoever, on any mountains, hills, heaths, u P on ea s - moor ^ forelts, chafes or other waftes, fhall prefume to burn, between the fecond day of February and twenty-fourth day of June, any grig, ling, heath, furz, gofs, or fern, upon pain that the offender or offenders fhall be committed to the houfe of correction, for any time not exceeding one month, and not lefs than ten days, there to be whipt, and kept to hard labour." Stat. 25ttttifng* 4 8i ©tat. i Ann. St. z. c. 9. [A. D. 1701.J made, among other purpofes y *' to prevent the wilful burning and deftroying of fhips." Sell. 4. " And for the effectual preventing the wilful cafting away, Captain, ma- burning, or otherwife deftroying, by mafters and mariners, of fhips under iler> ^ ff - wil their charge : Be it enacted by the authority aforefaid, That if any captain, * cart '"g mafter, mariner, or other officer, belonging to any fhip (hall, after the faid i D g, £*' any" twelfth day of February one thoufand feven hundred and two, wilfully caft fh:p, (hall away, burn, or otherwife deftroy the fhip unto which he belongeth, or pro- *" ffer death, cure the fame to be done, to the prejudice of the owner or owners thereof, or of any merchant or merchants, that fhall load goods thereon, he fhall fuffer death as a felon. Sell. 5. " And be it further enacted by the authority aforefaid, That all O.Tence com- and every the faid offence and offences committed on the hicrh fcas, or In .'" ed on tne where the admiralty hath jurifdiction, fhall be inquired, tried, heard, de- ^'S h /« s ma y termined and judged, in fuch fhires and places in the realm, as fhall be Owen Eng'-^ limited by the queen's commiffion under the great feal of England, in land, fuch manner and form, as in and by an aft, made in the twenty-eighth year of the reign of the late king Henry the eighth, is directed and ap- in fuch man- pointed for the trial of pirates •, and that all and every perfon and perfons, „ r w by zS who, from and after the faid twelfth day of February one thoufand feven ; s jj^S j ? " hundred and two, fhall be convict of any of the faid offence or offences laft Perfon con- mentioned, or fhall ftand mute, or peremptorily challenge above the num- v '^ed thereof ber of twenty perfons returned to ferve of the jury, fhall fuffer death with- t0 fuffer death out benefit of clergy. E^uier™* ©tflt. 6 Ann. c. 31. [A. D. 1707.] Made, " for the better preventing mifchiefs that may happen by fire." Sell, 3. " And whereas fires often happen by the negligence and care- Servants who lefnefs of fervants, Be it therefore enacted by the authority aforefaid, That th . rou g h Re - if any menial, or other fervant or fervants, through negligence or carelefnefs, E ^l n "{" f£ fhall fire or cauie to be fired any dwelling-houfe, or out-houfe or houfes, t0 forfeit loci. fuch fervant or fervants, being thereof lawfully convicted by the oath of or be fen t to one or more credible witneffes made before two or more of her majefty's the «ork- juftices of the peace, fnall forfeit and pay the fum of one hundred houle for jS pounds unto the church-wardens of fuch parilh where fuch fire fhall hap- pen, to be diftributed amongft the iufferers by fuch fire, in fuch proporti- ons as to the faid church-wardens fhall feem j u ft •, and in cafe of default or refufal to pay the fame immediately after fuch conviction, the ^fame being lawfully demanded by the faid church-wardens, that then and in fuch cafe fuch fervant or fervants fhall, by warrant under the hand of two or more of her majefty's juftices of the peace, be committed to fome workhoufe, or houfe of correction, as the faid juftices fhall think fit, for the fpace of eighteen months, there to kept to hard labour. Stat. 1 Geo. 1. St. 2. c. 48. [A. D. 1715. Intituled] " An act to en- courage the planting of timber-trees, fruit-trees, and other trees, for cr- Vol. I. N°. XXI. 3 Q^ nament, 482 Muntm* naments fhelter, or profit ; and for the better prefervation of the fame •, and for the preventing the burning of woods." T , . „ . Self, i ■ " Whereas the raifing and planting of timber-trees, fruit-trees plained and a- an( i other trees, is of very great profit and advantage to the kingdom of mended by Great Britain .- And whereas divers lewd and diforderly perfons, and 6 Geo. i. c. others, have riotoufiy, and fometimes in a clandeftine and malicious man- l6, ner broke down, cut up, or otherwife defiroyed fuch timber-trees, fruit- trees, and other trees, to the great difcouragement of the planters and owners thereof, and the parties whofe trees are fo deftroyed are remedilefs, for lack of knowing the parties fo offending : Therefore for the better encouraging of perfons to raife, plant, and preferve timber-trees, fruit- trees and other trees, in fields, hedge- rows, gardens and walks, and ellewhere, either for ornament, fhelter or profit, and for the preventing the malicious deftroying or lpoiling the fame, and to give remedy to luch perfons for making them fatisfaction for all damages to be occasioned by fuch breaking down, cutting up, lpoiling, or otherwife deftroying fuch trees ; Be it enacted by the king's moft excellent majefty, by and with the S" 1 maUd"' a dvice and confent qf the lords fpiritual and temporal, and commons, in oufl'y broken this prefent parliament afiembled, and by the authority of the fame, That down, &c. if any perfon or perfons whatfoever, from and after the twenty-fourth day theparifh, Q f y M ^ in the year of our lord one thoufand feven hundred and fixteen, It ^ d h ma ^ tnalicioufly break down, cut up, pluck up, throw down, bark, or damage°o the otherwife deftroy, deface or fpoil any timber-tree or trees, fruit-tree or owner. trees, or any other tree or trees, the perfon or perfons, body politick or corporate, that is, are, fhall or may be damaged by the fame, fhall receive fuch fatisfaction and recompence of and from the inhabitants of the parifh, town, hamlet, vill or place, where fuch tree or trees fhall be fo malici- oufly broken down, cut up, pluckt up, throw down, barked, deftroyed, defaced or fpoiled, and to be viewed, and damages and cofts to be reco- verable and recovered againft fuch parifh, town, hamlet, vill or place, by the perfon or perfons, whofe tree or trees fhall be fo malicioufly broke down, cut up, pluckt up, thrown down, barked, deftroyed, defaced or fe l^be fpoiled, in the fame manner and form as hedges and dikes overthrown by recovered in perfons in the night, in and by an acl of parliament made in the thirteenth England. year of the reign of king Edward the firft, intituled, Lords may approve 13 Ed. i.ftat. a g a inft their neighbours: Ufurpations of commons during the eftate of ,1. c. 46. particular tenants, are to be levied, and damages yielded : And where fuch offence or offences fhall be committed in that prrt of Great Britain called Scotland, to be recoverable and recovered by way of fummar action, and How in Scot- - n ^ j- ame manner anc j f orm as d am ages in other cafes of riot are to be recovered by the laws there, unlefs the party or parties fo offending fhall, by fuch parifh, town, hamlet, vill or place, be convicted of fuch offence within the fpace of fix months from the committing fuch offence or of- fences ; any law or conftru&ion to the contrary in any wife notwithftand- ine. Sell. land. Sefi. .2.." And be it further enacted and declared by the authority Two jufiices aforelaid, That it fliall and may be lawful to and for any two or more juf- or qua"" Of- fices of the peace of the county, riding, divifion, ftewartry, regality, city, ^ onb fina ">' '° town, borough or corporation, wherein any fuch offence or offences fliall (f ence , # be committed, or the jufiices in open feffions, upon complaint to them made by any inhabitant of the aforefaid parifb, hamlet, vill or place, or of the owner of fuch tree or trees, or of any other, to caufe fuch of- fender or offenders to be apprehended for the trefpaffes and offences afore- faid, or any of them, and to hear and finally determine and adjudge all and every the offence and offences aforefaid: And if fuch juftices fhall ^J e n d d t e rs ^ a * convict any perfon or perfons of all or any the trefpaffes or offences afore- f ent t0 the faid, then fuch juftices, immediately after fuch conviction, fhall commit houfe of cor- fuch offender and offenders to the houfe of correction, there to continue rettion for and be kept to hard labour for the fpace of three months, without bail or tluee " lontbs » 1 , , , \ r c n • • or to the eaol mampnze; and where there are no houies or correction, in any county, {ot m0 ni\>K riding, divifion, ftewartry, regality, city, town or borough, where fuch an d to be offender or offenders fhall be convicted, the faid juftices fhall commit fuch whipt. offender or offenders to fuch prifon as is appointed for other criminals, there to continue for the fpace of four months ; and fliall alfo order and adjudge that fuch offender and offenders fhall be publickly whipt by the matter of fuch houfe of correction once every month, during fuch three months, in fuch borough or corporation, if the offence be committed therein, and not otherwife ; or in the market-town where fuch houfe of correction (lands, or in the next market-town next adjacent to fuch houfe of correction, and in the county where fuch offence fhall be committed, on the market-day of fuch town, between the hours of eleven and two of the clock ; and in fuch places where there is no houfe of correction, the faid juftices fhall order and adjudge that fuch offender or offenders fhall be publickly whipt by the hand of the common hangman or executioner once every month, during fuch four months, on the market-day of any borough or corporation where fuch offender fhall be committed, or on the market-day of fome town, between the hours of eleven and two of the clock. Se5i. 2. " And be it further enacted, That before any fuch offender or ™™ , offenders fliall be difcharged, he, fhe and they fhall 6nd fufneient fure- ^n ^ ties for his, her or their good behaviour for the fpace of two years thence fureties for next enfuing •, any law, etiftom, or conftruction to the contrary notwiih-g°° d °eha- ftanding. ™ r for tw0 Sea. 4. " And whereas divers woods, underwoods and coppices have y ' been heretofore, and lately fet on fire, or burnt, to the great difcourage- Setting any ment of planting : Be it therefore enacted and declared by the authority wood> .**'• on aforefaid, That if any perfon or perfons fhall, from and afrer the faid re ' e 0Dy " twenty-fourth day of 'June one thoufand feven hundred and fixteen, ma- licioufly fet on fire, or burn or caufe to be burnt, any wood, under- wood or coppice, or any part thereof, fuch malicious fetting on fire, burn- ing or caufing to be burnt, fhall be and is hereby declared and made felony, and the offender and offenders fhall fuffer, and be liable to all the 3 Q^2 penalties 4B4 2&ttttU'ttg. Offenders in penalties and forfeitures, as other felons by the law now are : And where Scotland to be fuch offences are committed in that part of Great Britain called Scotland, punifhed as fuch offender and offenders fhall fuffer and be liable as wilful fire-raifers, wilful fire- according to an act pad: in the feventh year of her late majefty queen Anne, ™ 'V l e intituled, " An act for improving the union of the two kingdoms " any c ^ ;,,' ' tiling in this act contained, or in any other law or ftatute to the contrary in any wife notwithstanding. £§>tAt. 6 Geo. i. c. 15. \A. D. 17 19. Intituled] " An act to explain and amend an act patted in thefirft year of his majefty's reign, [intituled, " An act to encourage the planting of timber-trees, fruit-trees, and other trees, for ornament, fhelter, or profit, and for the better prefervation of the fame, and for the preventing the burning of woods,"] and for the better prefervation of the fences of fuch woods." Set!. 1. " Whereas divers lewd, lawlefs, turbulent and diforderly per- fons and others, fome times in an open, riotous, and tumultuous man- ner, and at other times in a clandeftine, malicious and private manner, do (without the confent of the owners) enter the woods, wood-grounds, cop- pices, plantations, parks and chafes of divers lords of manors, and other owners and proprietors thereof, and make great havock and deftruc-* tion, by cutting down, breaking, throwing down, barking, plucking up, defacing, fpoiling, taking or carrying away the wood, or fprings of wood, poles, woods, tops of trees, fruit-trees, thorns, quickfets and underwoods, there growing or being, and alfo by breaking open, throw- ing down, levelling or deftroying the hedges, gates, polls, (tiles, railing, fences, ditches, banks, walls or other inclofures of fuch woods, wood- grounds, parks chafes or coppices, and the offenders therein, being not dilcovered, pafs with impunity, to the great difcouragement of alt owners, planters, and prefervers of wood, and to the great wrong and in- jury of fuch lords of manors and other owners and proprietors of fuch woods, wood-grounds, parks, chafes, coppices, plantations, timber-trees, fruit-trees or other trees, thorns or quickfets : And whereas fome doubts have arifen, whether the offences committed inthe day-time, mentioned in ft 2° V'48. an ai ^ P a A" e d in the firft year of his majefty's reign, [intituled, " An act to encourage the planting of timber-trees, fruit-trees and other trees, for or- nament, fhelter, or profit, and for the better prefervation of the fame, and for the preventing the burning of woods,"] are punifhable by the faid a<5t : And whereas there is no provifion made in the faid aft for pu- nifhing the offences committed by perfons who fhall break open, throw down, level or deftroy the hedges, gates, pofts, ftiles, railing, fences, ditches, banks, walls or other inclofures of fuch woods, wood-grounds, plantations and coppices: Therefore for the explaining and amending the faid act, and for remedying the feveral mifchiefs herein before-menti- oned, and for the better prefervingof zWfucb wood-fprings or fprings of wood, poles, quick-woods, plantations, under-woods, woods, coppice- woods, gates, pofts, ftiles, railing, fences, hedges, walls and other in- clofures of woods, from being unlawfully cut, taken, fpoiled, broken, burnt, ace in me mau. Bttrttfag. 4»5 burnt, destroyed, defaced or carried away ; and for the better discovering and more effectual punifhment of fuch offenders therein, their aiders and abbetors ; and for the providing fatisfaction for the damages the refpective Af . proprietors thereof fhall fuftain thereby : Be it enacted by the king's mod i 7 zo. Owner" excellent majefty, by and with the advice and confent of the lords fpiritual of trees, and temporal, and commons, in this prefent parliament afTembled, and by hedges, csV. the authority of the fame, That if any perfon or perfons whatfoever, from and r Ut I d ^ w, V. after the twenty-fourth day of June which fhall be in the year of our lord ^ e \ '. c ' one thoufand feven hundred and twenty, fhall either bydayor by night cur, r by night, take, deftroy, break, throw down, bark, pluck up, burn, deface, fpoil, or (hall have fa- carry away any wood-fprings, or fprings of wood, trees, poles, wood, tops tj»fa3»ii/iw» of trees, under-woods or coppice-woods, thorns or quickfets', without the ^ e ! r ; ° " confent of the owner or owners of fuch woods, wood-grounds, parks, t heA,n» chafes or coppices, plantations, timber-trees, fruit-trees or other trees, ner as for thorns or quickfets, or of the perfon chiefly intruded with the care and dikes, &V. cuftody thereof, or fhall break open, throw down, level or deftroy any 0Klt!l ™ wn . |[ > hedges, gates, ports, ftiles, railing, walls, fences, dikes, ditches, banks or pr0VJ£ f ed ' by s other inclofures of fuch woods, wood-grounds, parks, chafes or coppices, 13 Ed. 1, plantations, timber-trees, fruit-trees or other trees, thorns or quickfets, fuch lords of manors, owners and proprietors of the fame, that is, are, fhall or may be damaged thereby, fhsll have fuch remedy, and have and receive fuch fatisfaftion and recompence of and from the inhabitants of the parifhes, towns, hamlets, villages or places joining on fuch wood-fprings, or fprings of wood, wood-grounds, parks, chafes or copices, and recover fuch damages againft the parifh, town, hamlet, vill or place, parifhes, towns, hamlets, villages or places aforefaid, and in the fame manner and form as for dikes and hedges overthrown by perfons in the night, or at another feafon when they fuppofe not to be efpied, as in and by an act of parliament made in the thirteenth year of the reign of king Edward the firft, [intituled, Lords may approve againft their neighbours uftirpations of com- 1 3 Ed. 1. mons during the eflate of particular tenants^ is fet forth and provided ; ?? ': J." c ' 4<5, unlefs the party or parties fo offending fhall, by fuch parifh, town, hamlet, f enc | er b ec rm- vill or place, parifhes, towns, hamlets, villages or places, be convicted of vieted in fix fuch offences within the fpace of fix months from the committing fuch months. offence or offences ; any law or conftruction to the contrary in any wife notwithftanding." Seel. 2. "And be it further enacted and declared by the authority Twojoftfcwi aforefaid, That if any perfon or perfons, at any time or times, from and °| P eaceof "the after the faid twenty-fourth day of June, in a riotous, open, tumultuous, j^i^ ^' 6 or in a fecret and clandestine manner, forceably or wrongfully and compla'mts malicioufly, and without the confent of the proprietor, wood-reeve, wood- and finely keeper, or perfon chiefly intrufted with the care, over-fight and cuftody of determine all fuch woods, wood-grounds, parks, chafes, coppices or plantations, fhall ° ( / nc ,i , 1 • ft cut down, deftroy, break, bark, throw down, burn, take, deface, fpoil ° or carry away any wood or fprings of wood, underwood or coppice-wood, or fhall in fuch a riotous, forceable, tumultuous, fecret or clandeftine manner, as aforefaid, malicioufly break open, throw down, level, or deftroy any 486 Burtutig. any hedges, gates, pofts, ftiles, rails, fences, ditches, banks or inclofures of fuch woods, wood-grounds, coppices, plantations, timber-trees, fruit-trees or other trees, thorns or quickfets, that then it fhall and may be lawful to and for any two or morejuftices of the peace of the county, riding, divifion,city, town, borough or corporation, wherein any fuch offence or offences fhall be committed, or for the juftices in open feffions, upon complaint to them made by any inhabitant of the aforefaid parifh, hamlet, vill or place, or of the owner of fuch tree or trees, woods, wood-grounds, parks, chafes, coppices or plantations, or of any other, to caufe fuch offender or offenders to be apprehended for the trefpaffes and offences aforefaid, or any of them, and to hear and finally determine and adjudge all and every the offence and And if they offences aforefaid : And if fuch juftices (hall convict any perfcn or perfons perfon fhall °^ a ^ or anv tne tre ^P anT es and offences aforefaid, then fuch juftices, im-, inflift the fame mediately after fuch conviction, fhall and are hereby required to inflict all. penalties, &c. and every the fame penalties and punifhments in the faid act of the firft as m the aft vear f his majefty's reign herein before mentioned, as fully and largely, 2 c' 's 3t " anc ^ * n tne f ame manner, for all and every the crimes and offences herein before expreffed, although not contained in the faid act, as if the fame were here again repeated and re-enacted. Perfons fued SeEi. 3. " Provided always, and be it enacted by the authority aforefaid, may plead the That in cafe any action or actions, fuit or fuits, fhall at any time hereafter PJwLii r gf ' be brought, commenced or profecuted againft any perfon or perfons for cover treble anv caufe, matter or thing done in purfuance of this act, or the before coils. recited acts, that the defendant or defendants in fuch fuit or fuits fhall and may plead the general iffue, and thereupon give the fpecial matter of his defence in evidence ; and in cafe a verdict paffes therein for fuch defendant or defendants, or the plaintiff becomes nonfuit, or difcontinues his action, the defendant or defendants in fuch cafe fhall have and recover treble cofts ; any law or cuftom to the contrary thereof in any wife not- withftanding." See the att of 9 Geo. 1. c. 22 under title TSIflCft-flS. ^»tflt. 10 Geo. 2. c. 32. [yf. D. 1737.] made, among other purpofes, " for the more effectual punifhment of perfons malicioufly fetting on fire any mine, pit or delph of coal, or cannel coal." made per- S £ H- &■ " And be it further enacted by the authority aforefaid, That petual by from and after the twenty-fourth day of June one thoufand feven hundred 31G. 2.C.42. andthirty-feven, and during the continuance of the before mentioned act of Perfons fettmg t ^ e n j nt h y ear f t ^ e r eign of his late majefly king George the firft, if any on fire to fuf- P er f° n or perfons fhall wilfully and malicioufly fet on fire, or caufe to be fcr death. fet on fire, any mine, pit or delph of coal or cannel coal, every perfon fo offending, being thereof lawfully convicted, fhall be adjudged guilty of felony, and fhall fuffer death as in cafes of felony without benefit of clergy." And by the articles of the navy, 22 Geo. 2. c. 33. every perfon who fhall unlawfully burn or fet fire to any magazine, or ftore of powder, or 2 Ihip, Bttrnftig. 487 fliip, boat, ketch, hoy, or veffel or tackle or furniture thereunto belonging, not appertaining to an enemy or rebel, (hall be punifhed with death by the fentence of a court martial." S>titt- 28 Geo. 2. c. 19. [A. D. 1755-] made, among other purpofes, " for the preventing the burning or deltroying of gofs, furze or feme, in forefts or chafes." Se£l. 3. " Whereas the burning and deftroying of gofs, furze and fern, in and upon forefts and chafes, as it is frequently done by divers diforderly and diflblute perfons, doth not only deftroy the cover neceffary for the prefervation of the deer and game there, but hath alfo been the occafion of burning, damaging and deftroying of great quantities of timber, young fprings of wood and underwood and fences, within the faid forefts and chafes, and places thereunto adjacent, to the great damage and prejudice of the owners and proprietors thereof; and the laws now in being are Perfons con- not fufficient to prevent the fame : Be it therefore enacted by the authority \ 1&e ° of aforefaid, That if any perfon or perfons, not having a right or legal licence J ^ J* to do the fame, fhall, at any time after the firft day of Auguff one thoufand heath or fern, feven hundred and fifty-five, fet fire to, burn or deftroy, or fhall abet, aid in chafes or or affift in, or at the burning or deftroying of any gofs, furze or fern, f° refts - growing or being in or upon any foreft or chafe, within that part of Great Britain called England, without the licence or confent of the owner or proprietor, or the perfon chiefly intruded with the care, overfight and cuftody of fuch foreft or chace, or fome part thereof, and being brought before one or more juftice or juftices of the peace for the county, riding, divifion or place, where fuch foreft or chafe fhall lie, and fhall be thereof convicted by confeffion, or upon the oath of one or more credible witnefs or witneffes (which oath fuch juftice or juftices is and are hereby im- powered to adminifter) or upon the view of fuch juftice or juftices, every fuch perfon or perfons being fo convicted, fhall for every fuch offence forfeit and pay any fum not exceeding five pounds, nor lefs than forty to forfeit not millings, one moiety thereot to the informer, and the other moiety to lefs than 40 s. the ufc of the poor of the parifh where the offence fhall be committed; ormore than which penalty, in cafe the fame be not forthwith paid, fhall and may be ' " levied by diftrcfs and fale of the offender's goods and chattels, by warrant , , . ,, or warrants under the hand and feal, or hands and feals of fuch juftice or Jftrefs and juftices; and in cafe no fufficient diftrefs can be found, then it fhall and fale, CsV. may be lawful for fuch juftice or juftices to commit fuch offender or offen- ders to the common gaol of the county or place where fuch offence fhall be committed, for any time not exceeding three months, nor lcfs than one month." T6UtCljClT- &utrt)m. STATUTES made during the reigns of king Hen. 3. king Ed. 1 . or king Ed. 2. but uncertain when or in which of their times. 1 Vol. of Hawk. Stat. p. 181. Sitnt- c. 7. [intituled] " The punifhment of a butcher felling un- wholfome flefh." A butcher that felleth fwines flefh meazled, or flefh dead of the murrain, or that buyeth flefh of jews, and felleth the fame unto chriftians, after he fhal! be convict thereof, for the firft time he fhall be grievoufly amerced, (2) the fecond time he fhall fuffer judgment of the pillory, (3J and the third time he fhall be imprifoned and make fine, and the fourth time he fhall forfwear the town. And in this manner fhall it be done of all that offend in like cafe. ©tat. 4 Hen. 7. c. 3. [A. D. 1487. intituled] " Butchers fhall kill no beafts within any walled town, or Cambridge." " Item, it was (hewed by a petition put to the kingourfaid fovereign lord, in the laid parliament, by his fubjefts and parifhioners of the parifh of St. Faith's, and St. Gregory's in London, near adjoining unto the cathedral -church of St. Paul's, That whereas great concourfe of people, as well of his royal perfon, as of great lords and ftates, with other his true fubjefts, oftentimes was had unto the faid cathedral church, and that moft part throughout the parifh aforefaid, the which oftentimes been greatly annoyed and diltempered by corrupt airs engendered in the faid parifhes, by occafion of blood, and other fouler things, by reafon of the flaughter of beafts, and fcaldincr of fwine, had and done in the butchery of St. Nichols's flefh- fhambles, whofe corruption and foul ordure, by violence of unclean, corrupt and putrified waters, is born down through the faid parifhes, and compaf- feth two parts of the palace, where the king's moft royal perfon is wont to abide when he cometh to the cathedral church for any aft there to be done, to the jeopardous abiding of his moft noble perfon, and to over-great annoyance of the parifhioners there, and of other the king's fubjefts and ftrangers that pafs by the fame-, (2 ) complaint whereof, at many and divers feafons, alio by the fpace of fixteen years continually, as well by the canons, and petty canons of the faid cathedral church, landlords there, asalfobymany other of the king's fubjefts of right honeft behaviour, hath been made unto divers mayors and aldermen of the city of London, and no remedy had ne found-, (3) that it may pleafe our faid fovereign lord, of his abundant grace, toprovide for the confervation as well of his moft royal perfon, as to fuccour his poor fubiefts and fuppliants in this behalf, confidering that in few noble cties, aides and towns, or none within chriftendom, whereas travelling men have laboured, the common flaughter-houie of beafts mould be kept in any fpecial part within the walls of the fame, left it might ingender ficknefs, unto the deftruction of die people : (4) The king our fovereign lord, in confideration of the premiftes, hath by the advice and affent of the lords fpiritualand temporal, and the commons, in the faid parliament afiembled,, and by authority of the fame, ordained and enacted, That no butcher, nor his fervant, (lay no manner beaft within the faid houfe called the fcalding-houfe, or within the wall of London; upon pain to forfeit for every ox twelve-pence, and every cow, and every other beaft eight pence ; (5) the one half thereof to the king our fovereign lord, and the other half to every of the king's lieges that will fue for the fame by action of debt, and no protection or eflbin be allowed to any of the defendants againft whom any fuch action fhall be conceived ; and that in the fame action of debt fuch procefs be made, as in other actions of debt fued at the common law. (6) And over this it is ordained and enacted by the faid authority, that the faid ordinance, act and law extend, and be obferved and kept in every city, borough, and town, walled within his realm of England, and in the town of Cambridge (the towns of Berwick and Carlijle except and foreprifed.) Provided alway, that this prefent act begin and take effect at the feaft of the annunciation of our lady next enfuing, and not afore." S>tat. 2^ 3 Ed. 6. c. 15. See this atl under title T^etrJCltf. 2 & 3 Ed. 6. @>tat« 1 Jac. 1 c. 22. See this act under title HtftXtyX- ijac. i.c.22. ©tat. 1 Car. 1. c. 1. [A. D. 1627. intituled] " An act for the further 1 Car. i.e. 1. reformation of fundry abyfes. committed on the Lord's day, commonly called Sunday." " Forafmuch as the Lord's day, commonly called Sunday, is much broken A carrier, &e. and prophaned by carriers, waggoners, carters, wain-men, butchers and 'l 1 '/ 13 !! .°° drovers of cattle, to the great difhonour of God, and reproach of religion ; fh a u forfeit^' (2) Be it therefore enacted by the king's moft excellent majefty, and the ;os. lords fpiritual and temporal, and by the commons, in this prefent parlia- ment afiembled, and by the authority of the fame, That no carrier with any horfe or horfes, nor waggon-men with any waggon or waggons, nor carmen with any cart or carts, nor wain-man with any wain or wains, nor drovers with any cattle, fhall after forty days next after the end of this prefent feffion of parliament, by themfelves, or any other, travel upon the faid day •, upon pain that every perfon and perfons fo offending fhall lofe and forfeit twenty fhillings for every fuch offence: (3) or if any butcher B utcner , that by himfelf, or any other for him, by his privity or confent, fhall after the fell or kill vic- end of the faid forty days kill or fell any victual upon the faid day, that tual upon that then every fuch -butcher fhall forfeit and lofe for every fuch offence the ^ a 7 ^ aU for - fum of fix fhillings and eight pence •, (4) the faid offences, and every of " s,8d * them being done in view of any juftice of peace, mayor, or other head Vol. I. N". XXI. 3 R officer, 490 26tttcl)et£* officer, ofanycity, or town corporate within their limits refpeftivety, or being proved upon oath by two or more witneffes, or by the confeffion of the party offending, before any fuch juftice, mayor or head officer, within their feveral limits reflectively, wherein fuch offence fhall be committed: To which end every fuch juftice, mayor or head-officer, fhall have power After con- by this aft to minifter an oath to fuch witnefs or witneffes : (5) All which by warrant fums or penalties fhall or may be levied by any conftable, or churchwarden, from a juftice, by warrant from any fuch juftice or juftices of the peace, mayor or other tfc. the head-officer, as aforefaid, within their feveral limits where fuch offence conftables, fl^ be committed or done, by diftrefs and fale of the offender's goods, the'f^d fo"^ rcnQ, ering to the party the overplus, or fhall be recovered by any perfon feitures to the or perlbns that will fue for the fame, by bill, plaint or information, in any ufeof the of his majefty's courts of record, in any city or town corporate, before his poor ; or they majefty's juftices of the peace in their general feffions of the peace : "rVb T"" (^ -^ which forfeitures fhall be imployed to and for the ufe of the poor of the parifhes where the fiid offences fhall be committed or done, faving only that it fhall be lawful to and for any fuch juftice, mayor or head officer, out of the faid forfeitures, to reward any fuch perfon or perfons that fhall inform or otherwife profecute any perfon or perfons offending againft this prefent aft, according to their difcretions, fo that fuch reward exceed not the third part of the forfeiture: (7) provided that fuch bill, plaint or information, fhall be commenced, fued and profecuted in the county, city or town corporate where fuch offence fhall be committed and done, and not elfewhere ; wherein no effoin, protection or wager of law fhall be allowed to the defendant: (8) provided always, that it fnall be lawful for any conftable or curchwarden, that fhall have any fuit or action brought againft them for any diftrefs by them or any of them to be taken by force of this prefent aft, to plead the general iffue, and to give the fpecial matter in evidence : (9) provided likewife, That no perfon or perfons whatioever fhall be impeached by this aft, unlefs he be thereof queftioned within fix months after the offence committed: (10) provided further, That this aft fhall not in any fort abridge or take away the authority of the court ecclefiaftical. (11) This aft to continue to the end of the firft feffion of the next parliament. Enforced by 29 Car. 2. cap. 7." @>tat- 1 5 Car. 2. c. 8. [A. D. 1663. intituled] " An aft to prevent the felling of live fat cattle by butchers." 3 & 4 Ed. 6. " Whereas by an aft made in the third and fourth years of the reign of c. 19. fedl 3. king Edward the fixth, it is enafted, That no perfon ufing the crafc or 22 & 23 Car. myftery of a butcher, fhould buy any fat oxen, fteers, runts, kine, heif- 1''qJ 9 ^ c , ers, calves or fheep, and fell the fame again alive, upon pain of forfeiture 1 'a-. 2 "c. 17! of the cattle fo fold ; (2) which law hath not wrought fuch effectual re- 4&.-W.&M formation as was intended, by reafon of the difficulty in the proof of c'24. .1-,^ buying and felling, being for the moft part at places far diftant, if 1,12 ' not in feveral counties, by means whereof the parties fo offending have 5 Annse,'c. 34. efcaped unpunifhed : 7 Anns, c. 6. . SeiJ x &?<57. 2. ec Be it therefore enacted by the king's mod excellent majefly, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament aflembled, and by authority cf the fame, That no perfon ufing the trade of a butcher, (hail at any time from and after the feaft of St. Michael the archangel next enfuing, fell, offer or expofe to fale in any market, or elfewhere, either by himfelf, or any fer- vant or agent whatfoever, any fat oxen, fleers, runts, kine, heifers, calves, fheep or lambs alive •, (2) upon pain to forfeit the double value of the cat- p ena | t tie fo fold, or offered or expofed to fale, as aforefaid •, the one moiety of bmche s for which forfeiture fhall be to the king's majefty, his heirs and fucceffors •, felling live fat and the other moiety to him or them that will fue for the fame in any of his catt ie- majefty's courts of record, by bill, plaint, action of debt or information, wherein no effoin, protection or wager of law fhall be allowed." ©tat 9 Ann. c. 11. See this aft under title jLcatljEf- utter anli Cfjeefe. STATUTE 9 Hen. 6. c. 8. [A. D. 1430. intituled] " The weight of a wey of cheefe." Item, Whereas it hath been of old times accuftomed in all the counties of 8 H. 6. c. 5, England, that all the cheefes which ought to be fold by the wey fhould be weighed by the auncel, and becaufe that at the laft parliament holden at Wefiminjler it was ordained, that the faid auncels in refpecl of the great de- ceit of the fame, fhould be deftroyed, and other weights touching fhould be in this behalf ordained ; and it is fo, that the poor people of the realm j t fh ou id be be greatly deceived by the faid weights touching, for that they know not couching, that how many pounds the wey of cheefe doth contain by the faid weights is. bowing touching. (2 ) And therefore to the intent that the faid poor people fhall downwards ' not be in this behalf deceived, as they have been fithence the faid laft par- liament, it is ordained by authority of this parliament, that the weight of a wey of cheefe may contain xxxii. cloves, that is to fay, every clove vii. li. by the faid weights touching. @>ttlt 3&4-Ed. 6.C.21. [A.D. 1549. intituled] " An aft concerning the buying and felling of butter and cheefe." "Be it enacted by the authority of this prefent parliament,' That Butter or no perfon or perfons, after the feaft of the Annunciation of our lady next cheefe fhall coming, fhall buy to fell again any butter or cheefe, unlefs he or they fell r,ot be b ° u S nt the fame again by retail in open fhop, fair or market, and not in grofs ; in exc * it {2) upon pain of forfeiture of the double value of the fame butterbe by retail ia and cheefe fo fold contrary to the tenor of this prefent act : The one open (hop, moiety of all which forfeiture to be to our fovereign lord the king, his J a,r or mar- 3 R 2 heirs ket< 492 15tttter atiD Cfteefe. Lane 19, 59. heirs and fucceffors, and the other moiety to him or them that will fuefor the fame in any of the king's courts of record, wherein no wager of law, eflbin or protection mall be allowed for the defendant or defendants. Retailing. Sett. 2. " Provided always, and be it enafted by the authority aforefaid, Lond ° n ' s i c - That the faid word of retail mentioned in this aft, lhall be expounded, bvTi Ta °i declared and taken, only where a weight of cheefe, or a barrel of butter, c. 22. f. 6. ' or °f kk quantity, and not above, lhall be fold at any time to any perfon or perfons in open Ihop, fair or market, and that to be done without fraud or covin. Inholders and Sett. 3. Provided always, That this aft, or any thing therein con- viauallers. tained, lhall not extend to any innholder or victualler, for llich butter or cheefe as fhall be fpent or uttered by retail in any of their houfes ; any thing contained in this aft to the contrary notwithstanding. (2) This aft to endure to the next parliament. 3 Car. 1. c. 4. Continued until the end • 2,c- + - of the firft feffion of the next parliament, and farther continued by 16 Ca. 1. c. 4. By Stat. 5 & 6 Ed. 6. c. 14. ft£l. 3. "Whofoever fhall ingrofs or get in- to his hands any butter or cheefe, to fell the fame again, lhall be deemed an ingrolfer. But by feci. 7. the buying and felling again of any butter or cheefe, by any licenfed badger, lader, kidder or carrier, fhall not be deemed regrating. See this aft at large under title TBflDgCtS, -page 191* And fee 5 Eliz. c. 12. under the fame title. ©tat- 21 Jac. 1. c. 22. {A. D. 1623. intituled] " An aft for the expla- nation of the ftatutes made in the third, fourth, and fifth years of king Edward the fixth, concerning the traders of butter and cheefe." " Whereas in a parliament holden at TVeflminJler in the third and fourth & e g^" years of the reign of the moft excellent prince of happy memory, king c 21. and s Edward the Sixth, it was enafted, That no perfon or perfons, after the & 6 Ed. 6. c feaft of the Annunciation of our lady then next coming, fhould buy to 14. explained. f e u again, any butter or cheefe, unlefs he or they fold the fame again by retail in open fhop, fair or market, and not in grofs ; upon pain of forfei ture of double the value of the fame butter and cheefe fo fold contrary to the tenor of the faid aft j SeH. 2. "In and by which aft it is provided and enafted, That the faid word of retail mentioned in the faid aft fhall be expounded, declared, and taken only where a wey of cheefe, or a barrel of butter, or a lefs quan- tity, and not above, fhould be fold at one time to any perfon or perfons in open Ihop, fair or market ; and that to be done without fraud or covin : SeQ. 3. " And whereas alfo by one other aft made in a parliament holden I ' ' at IVetlminsler^ in the fifth year of the reign of the faid late king, it was enafted, (amongft other things) That whatfoever perfon or perfons fhould jngrofsor get into his hands any butteror cheefe within the realm of Eng- land, to the intent to fell the fame again, fhould be accepted, reputed and taken to be an unlawful ingrolfer, and mould lofe and forfeit the value of J5itttet ano Cljeefe. 493 of the faid goods : (2) In which aft there is no provifo for retailers at all •, by occalion whereof the traders for butter and cheefe for the city of Lon- don are continually vexed and molefted by common informers, fometimes upon the one ftatute, and fometimes upon the other, to their great lofs and charge : Sell. 4. " Now for that by daily experience it is found, that the traders of butter and cheefe for the city of London, which fetch and provide the faid butter and cheefe out of divers counties, upon their great travel, charge and adventure, for provifion of the faid city, and of others thereunto reforting, and there fell the fame in their (hops in open market, not only for the general ufe and fervice of the faid city, and the countries adjoining, but alfo for any occafion which may be offered for the better expedition of his majefty's fervice ; as alfo for victualling of ihips which daily are victual- led from this port of London, which poffibly cannot be performed by the fmall quantities aforefaid, and according to the ftatute : Setl. 5. " And whereas the common informers, finding that the letter of the faid ftatute extendeth againft fuch as do fell above the quantity of a wey of cheefe, or of a barrel of butter at one time, though it be in open fhop, fair or market, and that in the other act no provifo at all is made, as aforefaid, for retailers, have of late years much troubled the traders of butter and cheefe within the city of London, with many informations, as well upon the one ftatute as the other, and have gotten feve- ral fums of money for compofition of them, albeit they then were and are men that have been apprentices, trained up in the faid trade, and have no other living or trade of life, to their great hindrance and impoverifh- ment : Seel. 6. " For remedy whereof, Be it enacted by the authority of this pre- T , r f fent parliament, That the faid acts, or any of them, or any other act, fta- a ft s ftatuot tute, law, ordinance, or other provifion whatever heretofore, for or con- extend ;o cerning thefale of butter or cheefe in open (hop, fair or market, or the London, providing or buying of any butter or cheefe, (hall not in any wife extend w 'tt min fter to any perfon or perfons, being cheefe-mongers, or tallow-chandlers free of ° r ouchw * rk - the faid city, and having been brought up as apprentices by the fpace of feven years, trading in butter and cheefe, for fuch butter and cheefe, and either of them, as he and they (hall utter and fell within London, and the liberties thereof, or within the borough of Soutbwark, or the city of JVeJlminJier, for the victualling of any of the (hipping of his majefty, his heirs or fuccefibrs, or for the (hips of any other his majefty's fubjects, or to fuch butter or cheefe which he or they (hall fell by any quantities at one time, and to one perfon, not exceeding four wey of cheefe, or four bar- rels of butter, without fraud or covin, fo as he or they fell the fame in open (hop, fair or market; any thing in the faid acts and ftatutes, or any of them, to the contrary notwithftanding. Seel. j. "Provided neverthelefs, and be it enacted by the authority The i ufllc « of aforefaid, That if thejuftices of the peace of any of the counties of this{f a "T ay re ' realm of England, or the dominion of Wales, at their quarter-feffions ofd er s"i n but" anyterandchcrie, 494 iButttt ana C&tefe. to buy thofe an Y °f tne ^ a '^ counties, fhall declare and publifh in open feffions, commodities that the traders aforefaid in butter and cheefe fhall forbear to buy any but- in thecountry. ter or cheefe, for any time within the faid county or counties, or within 'any parts or places of the fame, that then, for and during the time of fuch reftraint, the faid traders in butter and cheefe that fhall buy any fuch butter or cheefe, and fell the fame again by retail, contrary to any the acts aforefaid, fhall not be freed of or from any the penalties of the faid aits, but fhall be fubject to the fame, as if this aft had never been made. rS H. 6. c. 3; (z) This act to continue unto the end of the firft feffion of the next par- 2 3c 3 P Sc M. liament. 3 Car. i.e. 4. Continued until the end of the firft feffion of the c - >• next parliament, and further continued by 16 Car. i.e. 4. 13^ 14 Car. 2. c. 26. @>tat. 13 fc? 14 Car. 2. c. 26. [J. D.1662. intituled] "An act for reform- ing of the abufes committed in the weight and falfe packing of butter." The contents " Forafmuch as butter is one of the principal commodities of the pro- of a kilderkin duct of this kingdom, and is not only of an univerfal ufe and expence at of butter. home, but very great quantities thereof are tranfported beyond the feas : (2) And whereas, by cuftom time out of mind ufed, every kilderkin of butter ought to weigh one hundred thirty and two pounds grofs at the leaft -, that is to fay, one hundred and twelve pounds of neat butter, and The firkin, the cafk twenty pounds : (3) The firkin of butter ought to weigh fixty and four pounds, viz. fifty and fix pounds of good and merchantable The pot. butter neat, and the cafk eight pounds •, (4) and the pot of butter ought to weio-h twenty pounds, viz. fourteen pounds of good and merchantable butter neat, and the pot fix pounds : (5) And whereas great complaint hath been made by the traders in butter and cheefe, That by the fraudu- lent dealing and practice of feveral farmers, owners and packers of butter, and by their irregular manner of weighing with ftones, iron wedges, bricks, and other unwarrantable weights, the fame quantities of butter are not put up into the refpective cafks and pots aforefaid, and the kilderkin is commonly made to weigh fix and twenty pounds, and fometimes eight and twenty pounds, and the firkin to weigh ten pounds or twelve pounds, and fometimes thirteen or fourteen pounds weight, and the pots are made generally to weigh feven pounds, and fome of them eight pounds or nine pounds weight; (6j and much bad and decayed butter is mixed, and packed up into kilderkins, firkins, and other cafks and pots, with found and o-ood butter, and immoderate quantities of fait intermixed, to the fpoil of the fame, and to the great wrong and abufe of his majefty in the victualling of his navy, of merchants in the victualling of their fhips, and of all traders in the faid commodity, and of all houlholders who buy. the fame for their expence, and to the great difhonour of the Englijh nati- on, in the parts beyond the feas, and to the bringing of the faid commo- dity into great difrepute abroad, whereby it yields not that price, nor is vented there in fuch quantities as otherwife it would. Seel. Gutter ana Cfteefc, 495 Sett. 2. " For remedy whereof, Be it enacted by the king's mod ex- A kilderkin of cellent majefty, by and the advice and confent of the lords fpiritual and butter lhall temporal, and commons, in this prefent parliament affem bled, That from "^ be and after the firft day of June, which mall be in the year of our lord one fi< J* tbe ufc thouiand fix hundred fixty and two, every kilderkin of butter do and fhall contain one hundred and twelve pounds neat, or above, every pound containing fixteen ounces befides the tare of the cafk, and not lefs, of good and merchantable butter: (2) Every firkin of butter do and fhall The firkin contain fifty-fix pounds neat, or above, befides the weight of the cafk, of 56 lb. good and merchantable butter; (3) and every pot of butter do and fhall The pot contain fourteen pounds neat, or above, befides the weight of the pot, of ' + lb - good and merchantable butter : (4) And that no butter which is old or N° o\A butter corrupt (hall be mixed or packed up into any kilderkin, firkin, or other fhaI ' be m,xed r r r / 'i> V ■ j'-j WItn new, nor calk, veffel or pot whatfoever, with any butter which is new and iound ; wne y. butter. nor any whey-butter fhall be packed or mixed with any butter that is made of cream, but that the laid refpective forts of butter fhall be packed up feverally and apart by themfelves, and fhall not be mixed one with another ; and that every cafk or pot of butter fhall be of one fort and goodnefs throughout fuch cafk and pot; (5) and that no butter fhall b- faked with any great fait, but that all butter fhall be faked and faved with fmall fait, nor more fait fhall be intermixed with it than fhall be needful for its prefervation ; (6) upon pain and penalty that every owner, The penalty. farmer or packer of butter not putting up in each kilderkin, firkin and pot of butter to be fold, or to be expofed to fale reflectively, fuch quantities, as aforefaid, or offending in falfe packing, as aforefaid, for every fuch offence fhall forfeit the value of all the butter fo falfe packed ; (7) and for every offence where any kilderkin, firkin or pot fhall be found to contain a leffer quantity of butter than by this act is appointed, fix times the value of every pound of butter that fhall be wanting in any fuch cafk or pot. Sett. 3. " And to the intent that the benefit intended by this aft may Cheefemon- be extended with full effect to all perfons who do either cut out butter by gers, and all retail, or expend it, (2) Be it further enacted by the authority aforefaid, [ e]!ers o( but- That every cheefemono;er or other perfon whatfoever, which fhall fell Eo £[.//. e - - 1 -i 1 1 • 1 1 1 1 • r 1 • e "1 "■ Kilderkin, or, any perfon or perlons any kilderkin or kilderkins, hrkin or nrkins, pot or y Cm ^\\ de _ pots, or other cafk of butter made after the faid firft day of June, which liver tbe full fhall be in the year of our Lord one thouiand fix hundred fixty and two, quantity to the fhall deliver in every fuch kilderkin, firkin, and other cafk and pot re- §"*''"£ fpectively, the full quantity and due quality appointed by this act, and c 2 _ not lefs ; or in default thereof, fhall be liable to make fctisfaction to him or them that buy the fame, for what fTiall be wanting, according to the price for which the fame was fold. Farther provided for by 4 tjf 5 IV. ti? M. c. 7. fett. 2. Sett. 4. " And be it further enacted by the authority aforefaid, That from and after the faid firft day of June, which fhall be in the year of our Lord one thoufand fix hundred fixty and two, no cheefemonger or other perfon or perfons whatfoever, fhall repack for fale any butter in any kil- N'onefta!] re- 4 derkin, P ack buu «- Farmers and other fellers (hall fet their marks of the weight upon good and fuf- hcient cafks, and their 49 6 l&ntttt anu Cljeefe* The penalty, derkin, firkin, or other cafk or pot whatsoever •, (2) upon pain and pe- nalty, that every cheefemonger or other perfon whatsoever, which fhall re- pack any butter into any kilderkin or kilderkins, firkin or firkins, cafk or cafks, pot or pots, to fell the fame again, fhall for every firkin, cafk or pot fo packed, forfeit the fum of double the value of all fuch butter. Sett. 5. " And for the better difcovery of all frauds and abufes which fhall be committed againft this act, Be it further enacted by the authority aforefaid, That every farmer and other perfon and perfons packing up butter in kilderkins, firkins, or any other caik whatfoever, for fale, do from and after the faid firftday of June, which fhall be in the year of our Lord one thoufand fix hundred fixty-two, pack up his butter into o-ood and iufficient cafk, made of found, dry, and well-feaibned timber, and fhall fet upon every firkin and cafk whatfoever, when the fame is throughly and fully feafoned in water, a continuing vifible mark of the juft weight of" the empty cafk, and do likewife fet upon every kilderkin, firkin and cafk when the fame is filled with butter, the firft letter of his or their chriftian name, and his or their firname at length, with an iron-brand ; (2) upon pain and penalty that every farmer, or other perfon or perfons whatfoever offending in not putting on the mark of fuch weight of kilder- kin, firkin or other cafk after feafoning, or not fetting the firft letter of his or their chriftian name, and his or their firname at length on every firkin and cafk, as aforefaid, fhall for every fuch offence refpectively for- feit the fum of ten fhillings for every hundred weight of butter, and fo proportionably for a greater or leffer quantity that fhall be in every fuch cafk. Se£i. 6. " And be it further enacted by the authority aforefaid, That every potter fhall fet upon every pot which he fhall fell for packing up butter, the juft weight which fhall be of every fuch pot when it is firft burnt, together with the firft letter of his or their chriftian name, and his or their firname at length-, (2) upon pain and penalty that every potter, which fhall not fo do, fhall forfeit and pay for every pot which he fhall expofe to fale for the ufe aforefaid, whereupon he fhall not have firft fet the juft weight, and the firft letter of his chriftian name, and his firname at length, as aforefaid, the fum of one fhilling; (3) and that no farmer or other perfon whatfoever fhall expofe to fale any butter packed up in any other pot than fuch as fhall be marked by the potter, as aforefaid, upon penalty of two fhillings for every pot of butter which he fhall expofe to fale as is not fo marked •, (4) all and every of which faid offences are to be enquired of, fued for, heard and determined in the feffions of peace for the county, city, borough, town or liberty, or in the court of record of the city, borough, town or liberty wherein fuch offence fhall be commit- ted, by action of debt, indictment, information or presentment, wherein no effoin, protection or wager of law fhall be allowed to the defendant •, How to be (5) and the one half of all fuch forfeitures fhall be to the ule of the poor difpofed. people inhabiting within the parifh where fuch offence fhall be from time to time committed, to be paid to the churchwardens and overfeers of th 2 poo Potters (hall fet the weight of every pot burnt, and their names. Gutter ana CjKcfe. 497 poor of and in fuch parifh, and the other half to him or them that will fuc DcuW e coCu. for the lame, befides his double cofts thereby expended. Within w!m Setf. 7. *« Provided, That every fuit and information which fcalLJbe j™ fuit a IBa * brought upon this aft, fhall be commenced within four months after the u _, oa ° hij a ft, fale of fuch butter." Stat 32 Car. 2. c. 2. [A. D. 1680. intituled] " An aft prohibiting the importation of butter from Ireland." Seel. 9. " And whereas the prefent laws do not fufficiently provide Want of pro - againft the importation of butter and cheefe out of Ireland into this king- yifion sgainft dom, but that great quantities thereof are daily imported and fold, to the "^f°^ s "° n ** great lofs and prejudice of this kingdom; (2) Be it therefore enacted jj utter- by the authority aforefaid, That from and after the faid fecond day ofN butter or February, no butter or cheefe fhall be imported into this kingdom from cheefe fhall the kingdom of Ireland: (3) And all butter and cheefe imported from b f imported. Ireland, or that fhall be expofed to fale within this kingdom, fhall be fub- c^efeitrport- jecTt to the like feizures, and the importers or fellers thereof refpeftively, e j an d to the like penalties as are provided or appointed in any former law expofed againft any importer or feller, or importation of any beef, bacon or pork f° fale, fub- from the kingdom of Ireland, or any foreign parts ; any thing in this or ,e ^ e ° rme * any former law or ftatute to the contrary notwithstanding." @>tat. 3 Will, fc? Mar. c. 8. [A. D. 1691. intituled] " An aft for the encouragement of the breeding and feeding of cattle." " For the encouragement of breeding and fatting of cattle for the common good and welfare of this kingdom, Be it enacted by the king's and Bee p por j_ queen's moft excellent majefties, by and with the advice and content of butter, cheefe, the lords fpiritual and temporal, and the commons, in this prefent parlia- &<• may be ment afTembled, and by authority of the fame, That from and after the £x P°J. ted cuf " firft day of March in the year of our Lord one thoufand fix hundred and tom fCe ' ninety-one, and from thence forward, it {hall be lawful for all and every perfon or perfons, native or foreign, at any time or times, to (hip, lade, carry and tranfport, or export, from and out of any port, harbour, .or place within the kingdom of England, dominion of JVales, or town of Berwick upon Tweed, into any part of the world in amity with their ma- jefties, all forts of beef, pork, or hogs-flefh, butter, cheefe or candles, free from any cuftom or impofition whatfoever ; the aft made in the fecond year of their prefent majefties, intituled, An acl for granting to their majefties 2 y/_ andM. a fubfidy of tunnage and poundage, and other funis of money payable upon f. i.e. 4. merchandizes exported and imported, or any other law, ftatute, ufage, or other prohibition to the contrary thereof, in any wife notwithftanding." Vol. I. N° XXI. 3 S ©fitt 49 8 Butter ana Cljeefc ©tat. 4 ^il' &? Mar. c. 7. [J. D. 1692. intituled] " An ad to pre- vent abufes committed by the traders in butter and cheefe." " Forafmuch as divers counties of this kingdom confift chiefly of dairy- farms, and are in great meafure fupported by the fale of butter and cheefe, the growth and product of the fame ; and by an act of parliament 13 & i4.Car. made in the fourteenth year of the reign of his late majefty king Charles a. c. 26. the fecond, intituled, An ail for reforming abufes in the weighing and folfe ■packing of butter, the weight thereof is afcertained, and the goodneis of the butter is fecured, under the pains and penalties therein mentioned : And whereas the cheefemongers of London, their factors or agents (with- out any authority j have appointed in all or mod of the iea-port towns in the laid counties a certain officer, called ^Weigher, who often times, feve- ral weeks after the cheefe and butter hath been bought and approved by the factors and agents of the faid cheefemongers at the feller's houfe, have taken upon them (without any authority) to weigh and fearch the faid but- ter when the fame comes to the fea-ports to beihipped, and there pretend that the fame is faulty, and fet rates of deduction thereupon, and give notes thereof to the factors, who bought fuch butter ; and when the fac- tors come to pay the feller for the fame, they demand the abatement accordingly, which if the feller refufeth to allow, there are frequent indict- ments or informations exhibited againft the fellers, upon the faid act of the fourteenth of the faid late king, and great oppreffions have been and are daily committed, to the great lofs and damage of divers land owners and farmers in the faid counties, contrary to the true intent and meaning of the faid act : For prevention whereof, Seller ol^but- &&• 2. " Be it enafted by the king's and queen's molt excellent ma- ter, &c. dif- jellies, by and with the advice and conlent of the lords fpiritual and tem- charged from poral, and commons, in this prefent parliament affembled, and by the i he &T Car autnor ' t y of the fame, That after the factor or buyer hath bought and con- 2. c. 26, tradted for the faid commodity, and approved the fame at the feller's after the buy- houfe, or the place where he expofes the fame to fale, by fearching and *r hath bought weighing the fame (if he think fit) the feller fhall not after be charged or and approve* cnar g ea ble with, or liable to any of the penalties in the faid recited act of modify. tne fourteenth year of the faid late king Charles the fecond, mentioned or inflicted, 'upon any pretence of want of weight, falie packing, or mouldy butter, or the tare of weight not being fet upon the calk, or otherwiie ; but from thenceforth fhall be and is hereby difcharged of and from the faid act •, any other law, ftatute, or ufage to the contrary thereof in any wife notwithstanding. Penalty upon Seel. 3. And for the preventing any fraud in the feller, after the factor feller chang- or t> uver hath bought and contracted for the faid butter, and approved of commodity 6 tne f ame "' Be it further enacted by the authority aforefaid, That the faid after fold. factor or buyer fhall fet his feal or mark upon the faid butter, or the cafk in which it is, or his name at length •, and in cafe the fame fhall after- wards be exchanged or be opened, and the cafk wherein the fame is put up changed, or any bad and decayed butter fhall be mixed and packed up w;tfe iBttttet ana Cljeefe, 499 with found and good butter, or any other fraud be committed by the fel> ler, and the offender be thereof convi&ed upon oath made of the faid offence before one or more of their majeftiesjuftice or juftices of the peace by one or more witnefs or witneffes (which oath the faid juftice or juftices are hereby impowered and required to adminifterj, or upon confeflion of the offender or offenders before fuch juftice or juftices, the faid party or parties ihall forfeit the fum of twenty (hillings for every fuch firkin and offence, to be levied by diftrefs and iale of the offender's goods and chat- tels •, the overplus to be reftored after all charges of the faid diftrefs de- frayed : And every conftable of the parifh, or chief conftable of the hundred, where fuch offence (hall be committed, are hereby authorized and required to levy the fame accordingly by warrant under the hand and feal of the faid juftice or juftices fo to do. Sefl. 4. " And to the end the trade for butter and cheefe may not be in- The weigher grafted by particular perfons, but may be free and open to all perfons, and o{ bu « er and efpecially to all the cheefemongers who are free of the city of London . cneefe fliaU Be it further ena£ted by the authority aforefaid, That all and every ware- felon^lo'fhe houfe-keeper, weigher, fearcher, or fhipper of butter and cheefe, at any London ° port or place in this kingdom, fhall receive, into his or their pofieffion or cheefemon- warehoufe, all butter and cheefe that fhall be brought to him or them for S ers * any of the cheefemongers free of the city of London, or other perfon making the faid commodities, and fhall take due care thereof until the fame can be fhipped, and fhall fhip the faid butter and cheefe fucceffively, as it fhall come to his or their hands refpectively (without undue preferring one man's goods before another's) on the next fhip, or hoy or veffel, that fhall come to fuch port or place to lade butter or cheefe for London ('ex- cept the owners of the faid goods fhall give orders to the contrary), and Fee t0 the Ihall receive for his and their refpeclive care and pains therein, of the wei £ her - owners of the faid goods, the fum of two (hillings and fix-pence for every load, and no more, and fo proportionably : And if any fuch perfon or per- fons, or his or their fervant or fervants, fhall refufe or neglect to receive fuch goods, or to take due care thereof, or fhall not fhip the faid goods Penalty upon as they come to his or their hands fucceffively as aforefaid, that every fuch weighers of- offender and offenders, being thereof convict in manner as aforefaid, fhall fending, forfeit for every firkin of butter ten {hillings, and for every weio-h of cheefe five fhillings, to be levied in manner as aforefaid. SeSf. 5. " And for the prevention of frauds and undue practices herein, Weigher, £3V. be it further enadted by the authority aforefaid, That all and every ware- ftallkeepa houfe-keeper, weigher, fearcher, or fhipper of butter and cheefe, in any bool r of the fuch port or place, fhall, from and after the firft day of April one thoufand fhT'In^th"' 1 fix hundred ninety and three, keep a book, wherein he and they fhall duly butter, Off. and fairly enter all butter and cheefe that fhall be brought to him or them, as the fame comes to his or their refpeclive hands -, in which entry fhall be inferred the time when fuch goods were received, and the quantity of fuch go ;ds, and the name of the owner of the fame •, and fhall make the like entries when the faid goods are fhipped or put on board, of the time 3 s 2 when s°o JBttttct ant> Cl)ee€e* when the fame were (hipped on board, and the mailer's name, and the veffel's name in which the fame are fhipped or put on board, and to whom the fame are configned •, which book fo kept fhall be free and open for all perfons to fee and fearch at all times, without paying any thing for fuch fearch ; and if fuch warehoufe-keeper, weigher, fearcher, or fhipper convict'ion'be- °^ Gutter and cheefe, fhall not keep fuch book as aforefaid, or fhall re- iore a juilice. fufe, negleft, or omit to make fuch entries therein as aforefaid, or fhall . make any undue entries therein (by undue preferring one man's goods before anotherj, or fhall refufe in the day time to produce fuch book to be fearched as aforefaid ; that every fuch offender or offenders, being thereof convift in manner as aforefaid, mall forfeit for every firkin of butter two mil- lings and fixpence, and for every weigh of cheefe two fhillings and fix pence, and for every other the aforefaid offence the fum of two fhillings and fix pence, to be levied in manner as aforefaid: And in cafe fuch offender or offenders fhall not have goods and chattels fufficient for the levying the faid penalty, that then it fhall and may be lawful for the juftice orjuftices, before whom fuch conviction fhall be made, to commit fuch offender and offenders to the gaol without bail or mainprize, there to remain until fuch penalties fhall be paid and fatisfied." Penalty upon Sefi. 6. " And be it further enacted by the authority aforefaid, that if mailer of fhip anv mafter of any fhip, hoy or veffel coming to fuch port or place 'to u gtotake.hcte butter and cheefe, or his or their fervant or fervants, fhall refufe to ' take and receive on board his and their refpeftive veffels any fuch butter and cheefe, as fhall be tendred to be fhipped by fuch warehoufe-keeper, weigher, fearcher, or fhipper of butter and cheefe, before the fame be fufficiently laden, that then every fuch offender and offenders, being thereof convicl: in manner as aforefaid, fhall forfeit for every firkin of butter fo refufed five fhillings, and for every weigh of cheefe fo refufed two fhillings and fix pence, to be levied in manner as aforefaid." divlddbe- ^e£l. 7> " Provided, That one half of all penalties and forfeitures within twixt informer this aft fhall be to the ufe of the poor inhabiting within the parifh where and poor. fuch offence fhall be from time to time committed, to be paid to the churchwardens and overfeers of the poor of and in fuch parifh, and the other half to the informer, to be diftributed by the faid juftice orjuftices before whom the offender or offenders fhall be convicted." movers Erf* ^efl- $' " Provided always, that this aft nor any thing therein contained may make ufe fhall extend to exclude any cheefemonger or cheefemongers, free of the city of their own of London, from fending his and their own proper veffels for his and their veiiels. t own proper and refpeftive goods •, but that it ftiall and may be lawful to and for fuch perfon and perfons to fend his and their own proper veffels, or fuch other veffels as he or they fhall hire and fend from London to freight by charter-party for his and their own refpeftive proper goods, and to and for the warehoufe-keeper at fuch ports, where fuch veffels fhall be lent, to fhip the aforefaid goods on board, and to and for fuch matters of fuch veffels, and their fervants, to receive the fame, as he, they, or any of them, could or might have done before the making of this aft." Se3. Butter ant> Cljeefe* 501 Seel. 9. " Provided that nothing in this act contained fhall extend or be conftrued to extend to any warehoufe which now is, or hereafter fhall be, within the counties or" Chewier or Lancafter, or within the county of the city of Cbejier, nor to any veflel or boat at any time belong- ^ in £ u h ^' ep ing to, or that fhall come into, any the ports or havens of any the faid an d Lancafter counties." faved. Seft. 10. " Provided always, That if any perfon or perfons fhall think. him or themfelves aggrieved by the determination of anyjuftice of the peace, who fhall at any time ad in purluance of the powers to him given by Appeal lies this act, it fhall and may be lawful to and for fuch perfon or perfons to fromjuftice to appeal to the next general quaner-feflions of the peace to be held for the ' e " 10DS : ' ecu * 1 • **- ritv Dcint* county, riding, city or town corporate, where the faid offence fhall be com- pivenforcofts. mitted, the determination of which juftices fhall be final and conclufive to all parties ; the perfon fo appealing firft giving to the party accufed a bond of the penalty of twenty pounds, with one or more fufficient fureties to the liking of the faid juftice of peace, from whom the faid appeal fhall be fo made, to pay fuch cofts to the faid party accufed, as the laid court of quarter-feffions fhall allow, in cafe the appellant be not relieved upon his faid appeal ; the faid colts fo to be paid within one month afore the hearing and determining the faid appeal." ©tilt. 8 Geo. 1. c. 27. [A D. 1721. Intituled] " An act for the better preventing abufes committed in weighing and packing of butter in the city of Tork." Sett. 1. " Forafmuch as butter is one of the chief commodities of the product of feveral parts of the county of Tork, and county of the fame city, and great quantities thereof are brought into the city of Tork, from thence to be tranfported beyond the feas, and otherwife difpofed of: And whereas there hath, time out of mind, been within the faid city a free market for butter, which for many years laft paft hath been kept in Micklegate in the faid city : And whereas the bringing of butter to the faid market, where the fame was fearched and weighed, hath been found to be the mod effectual means of preventing the falle weighing and packing of butter, and did formerly gain a great reputation both at home and abroad, to butter brought to the faid market ; but of hte years feveral farmers of dairies, owners, and other traders in butter, the better to con- ceal the falfe weighing and packing of their butter, to be by them dif- pofed of, have neglected to bring the fame to the faid market to be fearch- ed and weighed, by means whereof not only the traders in the faid com- modity at home, but foreigners alio, have been greatly deceived in the weight, goodnefs, and foundnefs thereof, and thereby the faid commo- dity yields not that price, nor is fold in fuch quantities, as otherwife ic would be : For remedy whereof, and for the better encouraging the faid butter-trade, and (in order thereunto) for the better preventing the frauds and 502 Bntttt ana Cijeefe. and abufes in the weighing and packing of butter ; may it pleafe your moft excellent majefty (at the humble requeft of the mayor and common- alty of the faid city) That it may be enacted, and be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament af- fembled, and by authority of the fame, That, from and after the five and After March twentieth day of March one thoufand feven hundred and twentv-two m-'l-i" 22 Micklegate market aforefaid, or any other part or place of or in the faid any C other te '° r clt Y ( wn i cn the mayor and commonalty of the faid city fhall from time to place in York, time, judge moft commodious and convenient, and for that purpofe ap- (at the elefti- point) fhall be every day in the week, (except Sundays) a free and open on of the market for butter, and that it fhall and may be lawful for any perfon or per- Aafuveryday f° nsto buy or fell any butter in the faid market, without any difturbance ; and in the week, that, from and after the faid five and twentieth day of March one thoufand except Sun- feven hundred and twenty-two, all butter brought to the faid city of York days be a free i n firkins, half-firkins, tubs or other cafks, or in pots or other veffels, to market for k e fo\^ or to De eX ported or waterborn from the faid city, or from any part of the river of Oufe, as far as the river of Wharf e, fhall be brought All butter to t h e faid market to be viewed, fearched, weighed, and fealed with the brought to f ea j Q £ £ j ie kjj mar fc et) w hich the proper officer for the time being is here^ fold, exported, by required to do ; and that it fhall and may be lawful to and for the faid is'c. fhall be mayor and commonalty, and their fuccefibrs, or their proper officer for weighed, the time being appointed, from time to time, and at all times after fearch'd a " d the faid five and twentieth day of March one thoufand feven hundred and faid market 6 twenty-two, to afk, demand, receive and take, of and from every per- fon and perfons that fhall bring any butter to the faid market to be fearched and weighed, for the fearching, weighing, and fealing thereof, the feveral antient and accuftomed rates and duties herein after mentioned, and no more ; (that is to fay J For every fuch firkin, half-firkin, or other cafk or Rates to be p or> or other veffel of butter, as aforefaid, one half-peny, and fo propor- F h° r tsf tionably for any butter put into every tub or veffel containing any greater quantity of butter than a firkin •, and in cafe of refufal, negieel or denial of payment on demand of the faid feveral rates and prices before menti- on non^pay- oned, the faid mayor and commonalty, and their fuccefibrs, fhall or may meM \^\' detain and make ftay of any firkin, half-firkin, cafk, pot, tub or veffel Myfirkjn,&ff. °f butter, for which the laid rates and prices ought to be paid, until they fhall be paid and fatisfied the fame. SeSi. 2. And for the further prevention of any fraud or abufe in the weight Da-ry • far mer, or fdfe packing of butter, Be it further enafted by the authority aforefaid, csV felling or That if any dairy-farmer, owner, or trader, or any other perfons whatfo- tranfporting everj jo or fhall, from and after the faid five and twentieth day of March it^broVTt one tnoil f an d feven hundred and twenty-two, bring any butter in firkins, to the market half-firkins, or other calks, pots, or veffels, as aforefaid, to the faid city to be viewed, of York to be fold thee, or to be exported or water-born from thence, as lit. (hall for- aforefaid, from any part of the river Oufe, as far as the river of Wharfe, feit for every ^ fl^all fell or transport the fame before it be brought to the butter-mar- hrkin, (St. r D . 3 s. 4 d. 2 ket, Butter ant) Cljeefc. 5°s ket, to be there viewed, fearched, and weighed, fhall, upon proof thereof by one or more credible witnefs or witneffes upon oath before any juftice of the peace of the faid city, or county of the fame city, forfeit for every firkin, half- firkin, or other calk, pot, or other veffel, the fum of three killings and four pence; and in default of payment thereof upon de- To be levied mand, the fame fhall or may be levied by diftrefs and fale of the ofTen- D >' diftrefs. der's goods, by warrant under the hand and feal of any one or more juf- tice or juftices of the peace of the faid city, and county of the fame city, rendring to the offender the overplus (the charges of diftraining being firft deducted) •, and the one half of fuch forfeitures fhall be to the ufe of the o ne half to poor people inhabiting within the parifli where the offence (ball, from time the poor, to time, be committed, to be paid to the church-wardens and overfeers of where, £rv. the poor of and in fuch parifli, and the other half to the informer or the other ta informers. tfce kfo,mcr - Seii. 3. " And whereas by an act of parliament made in the 13th and ij&, + Ca. I4di years of the reign of the late king Charles the fecond, [intituled, "An z.c. 26. (. z. acl for reforming of the abufes committed in the weight and falfe packing of butter,] the weight thereof is afcertained, and the goodnefs of the butter is fecured, under the pains and penalties therein mentioned ; Be it further enacted by the authority aforefaid, that if any firkin, half- If any firkin, firkin, or pot, or other veffel of butter, which, from and after the faid five & e - of butter, and twentieth day of March, fhall be brought to the market aforefaid by f 113 " be { . iull Y any owner, farmer, or packer of butter, fhall be found, upon the fearching or quailtyfthe and weighing thereof, to be faulty in the full quantity or due quality ap- owner fhall be pointed by the laid recited act, every fuch owner, farmer, or packer of but- liable to the ter, fhall be liable to fuch pains, penalties and forfeitures, as are mentioned, ' orfeitures in contained, and expreffed in the faid recited act, to be levied as aforefaid. \ 3 C *£ a ' Sell. 4. " Provided, that every profecution or fuit, which fhall be p ro f ecut - brought for any offence committed againft this act, fhall be commenced be in four within four months after the offence committed. months. Seel. 5. " Provided always, That the officer or other perfon to be ap- The mayor to pointed for the fearching, weighing and fealing of the faid firkins, half- a PP 0,nt tne firkins, or other cafks or pots of butter, fhall be appointed by the mayor foaH^riwr of the faid city for the time being, and fhall be fworn at the general quar- at Eaflerfeffi- ter-feffions to be held for the faid city of York, and county of the fame, ons. nsxt after Eafter-day yearly, for the due execution of the laid office. Set!. 6. " Provided alfo, That if any perfon or perfons fhall think him Perfol " a g- or themfelves aggrieved by any determination of any juftice or juftices of j 5 "".^ t ™ a3f peace, who fhall at any time act in purfuance to the power to him given quarter- feffi- by this act, it fliall and may be lawful to and for fuch perfon or perfons ons, whofe to appeal to the next general quarter-feffions of the peace to be held for ^termination the faid city, and county of the fame city, the determination whereof e fhall be final and conclufive to all parties, and they are hereby impower- ed to ajvard cofts to either party, as to them fhall feem meet, in refpect of fuch appeal. Sett. 7. " Provided alfo, and be it further enacted, That nothing in this act contained fhall extend to compel the bringing to the faid market any veffel 5°4 Btxtut ana Cljeefr. This aft (hall veflel of butter, which fhall contain but the quantity of four pounds of not extend to butter, or under, or to make the faid veffels liable to the faid duty ; any any veflel, ^ thing in this aft contained to the contrary notwithftanding. ty'foiu poinds ^ e£i ' **■ " And be lt enact ed, That in all aftions and fuits, that (hall be or under. brought againft any perfon or perfons, for what he or they (h all do by virtue of the true intent and meaning of this aft, the perfon or perfons General lflue. fo f ue d or molefted, fhall or may plead the general ilfue of not guilty, and give the fpecial matter in evidence •, and in every fuch cafe, if the verdict (hall pais for fuch perfon or perfons, or that the plaintiff or plain- tiffs be nonfuit therein, or in cafe fuch aftion or fuit (hall be difcontinued, Double colls. tne perfon lb fued (hall have his double cofts, and (hall recover the fame as in cafes where colls by law are accuftomed to be recovered." ©tflt. 17 Geo. 2. c. 8. [A. D. 1744. intituled] "An aft to prevent the committing of abufes in the weighing and packing of butter, in the town and borough of New Malt on in the county of York" " Whereas great quantities of butter made and produced in feveral parts of the county of York, are brought into the town and borough of New Malton, where there is a navigable river, in order to be from thence tranfported beyond the feas, and otherwife fold and difpofed of: And whereas there hath been time out of mind a free market for butter 1 within the faid town and borough of New Malton ; but there is not fas in fome other adjacent markets) any particular place provided and appointed, within the faid town and borough, to which fuch butter (hall be brought, in order to be fearched, weighed, and fealed before the fame be fold at the" faid market ; and for want of which, great frauds and impofitions have been made and committed by feveral farmers, dairymen, and other perfons trading in butter, which hath tended to the dilparagement of the faid commodity, in the markets both at home and abroad, and to the great prejudice of the fair dealer, and cf the butter trade in general: Wherefore, for preventing fuch frauds and abufes for the future, and for the better en- couraging the faid butter trade •, may it pleafe your mod excellent majefty, at the humble requeft of the borough bailiff, and inhabitants of the faid borough of New Malton, and of feveral other perfons refiding near the faid borough, that it may be enacted, &e." Borough bailiff to appoint the place where the market is to be kept. Duty for fearching, weighing, CSV. Penalty for not bringing butter to market. Officer for fearching, (Jc. to be appointed by the bailiff. ©tflt. 3 Geo. 3. c. 20. A. D. 1763. intituled] " An aft for permitting the importation, from Ireland, of dale and dirty butter, not fit for eating, commonly called greafe butter." " Whereas dale and dirty butter not fit for eating, called greafe butter, is an effential ingredient in the manufaftury of woollen cloth, commonly called broad and narrow bays, which is carried on to a great extent : And whereas, from the fcarcity of the faid ingredient, the faid manufactury i?, at l&atttt tins Cljeefe 505 at prefent, greatly diftrefied, and is in danger of being reduced, and the exportation of fuch goods greatly lefiened : And whereas the permitting the importation, from Ireland, of fuch greafe butter will be advantageous to the laid manufrftury, and of great public utility -, Be it therefore enacled by the king's molt excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament allembled, and by the authority of the fame, That from and after the pafling Importation of this act, the importation of (tale and dirty butter, not fit to eat, called of greafe but- greafe butter, from Ireland, fhall be and is hereby permitted, allowed and ' er P er m ,!ted authorized for and during the term of five years from thence next enfuing, d r °™ , " a f r ' and from thence to the end of the then next feffion of parliament ; and that t h e term of » allperfons fhall be and are hereby exempted, freed and difcharged from years, the payment of all fubfidies, cuftoms, rates, duties, or other impofitions, and alfo from all penalties, forfeitures, payments and punifhments, for or upon account of importing or bringing into any port within the kingdom of Great Britain, ftale and dirty butter, not fit for eating, commonly called u . . greafe butter, from Ireland, during the term aforefaid; provided fuch te ,j ng the butter, and the package and quantity thereof, fhall be duly entered at thefame at the cuftom-houfe at any fuch port." cjuom-houfe. Sett. 2. " And be it further enacted by the authority aforefaid, That in Where any cafe any fuch greafe butter fhall be flopped or feized by any of the officers fhail be feized. of his majefty's cuftoms at fuch port, under pretence of its being fit to eat, as " ot co mu.g or otherwife, as not coming within the intent and meaning of this act, it WIt !n ' e r 1 ©« o . meaning or fhall be lawful for any two juftices of the peace for the county, diitrict or t!lls actj , divifion, where the fame fnall be ftopped or feized, and fuch juft ices are juitices of the hereby authorized and required, within fourteen days after application P eace ira y made to them for that purpofe, to hear and determine the matter in a e " and «e- fummary way ; and, for that purpofe, to infpect, if they think fit, the butter matter In a in queftion ; and alfo to call before them, and examine on oath, any rWafummarywaj., reputable perfons, dealers in butter; one whereof fhall be allowed to be by irrfpe&ion, chofen by the importer or proprietor, and the other by the officer or other ar " «camvra. perfon fo flopping or feizing fuch greafe butter, and alfo fuch other on "° h p ^ or witnefies as fhall be defired by either party, and the determination of the relation thero- faid juftices therein, fhall be binding and conclufive to and upon all parties, to. wherein no certiorari fhall be allowed." Se3. 3. " And be it further enabled by the authority aforefaid, That if any aftion or fuit fhall be commenced againft any perfon or perfons for any thing done in purfuance of this aft, the defendant or defendants in any fuch action, or fuit, may plead the general ifTue, and give this aft General iffue. and the fpecial matter in evidence, at any trial'to be had thereupon •, and that the fame was done in purfuance and by the authority of this aft •, and if it fhall appear fo to have been done, the jury fhall find for the defendant or defendants ; and if the plaintiff fhall be nonfuited, or discontinue his aftion, after the defendant or defendants fhall have appeared, or if judg- ment fhall be given upon any verdift or demurrer againft the plaintiff-, the defendant or defendants fhall and may recover treble cofls, and have the Treble cods; Vol. I. N°. XXII. 3 T like 5 o6 j&ttttet anu €tytU. like remedy for the fame, as any defendant or defendants hath or have irt other cafes by law." ©tnt- 5 Geo. 3. c. r. [J. D. 1765. intituled] " An aft for the im- portation of faked beef, pork, bacon and butter, from Ireland, for a limited time " Preamble. " Whereas the permitting the importation of faked beef, pork, bacoa and butter, into the kingdom of Great Britain, from Ireland, for a limited time, may, at this time, be a great advantage to both kigdoms ; Be it therefore enafted by the king's/moil excellent majefty, by and with the Theimporta- advice and confent of the lords fpiritual and temporal, and commons, in tion of faked this prefent parliament affembled, and by the authority of the fame, That provifions al- tne importation of all faked beef, pork, bacon and butter, into the king- l°T d / r f° m i2 ^ om °f Great Britain, from Ireland, ihall be and is hereby permitted, momhs ; allowed and authorized, for and during the term of twelve months from the Continued by commencement of this act; and that allperfons fhall be and are hereby 7 Geo. 3. exempted, freed and difcharged from the payment of all fubfidies, f h """'fis cuftoms, rates, duties, or other impofitions, and alfo from all penalties, ' ' • f or f e j uireS5 payments and punifhments, for or upon account of importing or bringing faked beef, pork, bacon or butter into the kingdom of Great Britain, from Ireland, during the term aforefaid, other than fuch as herein after are mencioned in refpect thereof; any act or acts of parliament to the contrary notwithstanding, upon payment SeEl. 2. " Provided always, and to the intent that the revenue arifing, of the follow- f rom f a ] t mav not be prejudiced by fuch importation of faked beef, pork,, ir 'g a ' ' bacon or butter from Ireland, be it enacted, That from the commence- ment of this prefent act, during the continuance thereof, there fhall be paid to fuch officer as the commiffioners for the duties on fait for the time ■viz. 3s. 4 d. being fhall appoint, at the port of Great Britain into which fuch faked per barrel for (-, ee f } p 0r k, bacon or butter fhall, in purfuance of this act, be imported beef or pork; £ rom j re / a „^ anc j before any part thereof fhall be delivered out to the perfon or perfons to whom the fame fhall belong or be configned, the fum of three fhillings and four pence for every barrel or cafk of faked beef or pork to be imported during the continuance of this act, containing thirty- two gallons, and fo in proportion for any greater or leffer quantity ; and for every hundred weight of bacon, faked beef called dried beef, dried is. 3d. per neats tongues, and dried hog-meat, the fum of one fhilling and three pence; fo^alTdned anc * f° r every hundred weight of all fuch faked butter, the fum of four beef, neats pence ; and fo in proportion for every greater or leffer quantky than an tongues, and hundred weight of any fuch faked beef called dried beef, bacon, dried iog-mejt; neats tongues, or dried hog-meat, as or for cuftom or for duty, or in \ 00 weight re fp e & thereof: the money fo arifing by the importation of the faid faked forallfalted beef, pork, bacon, dried beef, dried neats tongues, dried hog-meat, or butter ; and fo butter, to be paid into his majefty's exchequer, as part of the duties on in proportion f a ] t) i a id by an act of the fifth year of the reign of his late majefty king for a lie er Q £or „ e trie fecond, and continued by feveral fubfequent acts." quantities. ° / * . • * - The duties to be paid over into the exchequer as part of the duties on fait. Se8. tb\xtttt anfe Cfytttt. 507 StB. 3. " And be it further enacted by the authority aforefaid, That if" p rov :f IOOJ any perfon or perfons fhall, after the commencement and during the con- landed witl*- tinuance of this act, land any fuch faked beef, po:k, bacon or butter, or out the (aid any faked beef called dried beef, dried ncats tongues, or dried hog-meat, d ' Jtiesbein g into the kingdom of Great Britain, from Ireland, before payment of the foffeked' •* 7 duty or duties by this act fpecified and directed, the fame mail be forfeited gether with, and loft, and twenty millings per barrel for every barrel or cafk of fuch zcs. per bar- faked beef or pork, and twenty fhillings per hundred weight for every rtl for a!1 Deef hundred weight of fuch bacon, faked beef called dried beef, dried neats and pork ' and tongues, dried hog-meat, or faked butter, and fo in proportion for any weighTfor alt greater or leffer quantity, to be recovered of the importer or proprietor dried meat thereof; and that it fhall and may be lawful to and for any perfon or and butter, perfons, being an officer or officers of the cuftoms, or of his majefty's duties upon fait, to take and feize all fuch commodities as fhall be imported and landed contrary to the true intent and meaning of this act, together with the cafks, veffels, and package containing the fame ; and that all fuch penalties and forfeitures fhall be distributed in manner following ; that is to fay, one moiety thereof to the king, his heirs and fuc- cefTors, and the other moiety thereof, to the perfon or perfons who fhall feize, fue or inform for the fame •, to be recovered by action of debt, bill, plaint Recovery, m»- or information, in any of his majefty's courts of record at Wejiminjler, or t, g at,on » and in the court of exchequer in Scotland; or may be fued for, recovered and ^ per.alties° mitigated as any forfeiture or penalty may be fued for, recovered and mitigated, by any of the laws relating to the duties on fait." Seil. 4. " Provided always, and be it hereby enacted, That no draw- No drawback back fhall be allowed or paid for any fuch faked beef, pork, bacon, or t0 ^ allowed butter, fo imported into the kingdom of Great Britain, from Ireland, and ^"jo^then-o''" which fhall be exported from Great Britain elfewhere." elfewhere. Seel. 5. " And be it further enacted by the authority aforefaid, That if any action or fuit fhall be commenced againft any perfon or perfons for any thing done in purfuance of this act, the defendant or defendants in any fuch action or fuit, may plead the general iiTue, and give this act and General iflue. the fpecial matter, in evidence at any trial to be had thereupon ; and that the fame was done in purfuance and by the authority of this act •, and if it fhall appear fo to have been done, the jury mall find for the defendant or defendants : and if the plaintiff fhall be nonfuited, ordifcontinue his action, after the defendant or defendants fhall have appeared ; or if judgment fhall be given upon any verdict or demurrer againft the plaintiff, the defendant or defendants fhall and may recover treble coits, and have the Treble cofi-- like remedy for the fame, as any defendant or defendants hath or have in other cafes by law." This was a conviction for importing Irijh butter from Lifion into England, Corviftion contrary to the act 32 Car. 2. c. z.fetl. 9. (fee page 497.) Which con- on Stat - J 2 viction was to the effect following. Town and county of the town of je ^' 2 ' c ; *• Kingfion upon Hull — Be it remembered, that on the 2d of Augujl 34 G. 2. j m p' ort ; n - at the faid town and county, Edxvard Burrow Efq-, collector of his majefty's butter imc 3 T 2 fubfidies 5 o8 mtttt ant> Cfteefe. , . , m fubfidies and cuftoms within the port of the faid town and county, and an from Ireland, inhabitant thereof, cometh in his own proper perfon before John Wood and was quafhed, William Cogan Efquires, two juftices of our faid lord the king affigned to becauf'e the l ie ep the peace of our faid lord the king within the faid town and county ; bu.ter had at ^ fuing as well for the poor of the parifh of St. 'Trinity in the faid town ortei from an ^ county, as for himfelf in this behalf, giveth the faidjuftices to be in- lreland, to formed and to underftand, That certain butter, to wit, 547 barrels thereof, Lifbon, and containing all together in weight 301 hundred-weight, was on the 8th day from Lifbon Q { July \,x[\ -p^W imported into this kingdom, to wit at the port of the faid Re her . ( Z ^ ar town an d county, the fame butter and every part thereof having been ex- Eait 1 Geo. pureed from out of the kingdom of Ireland to Lisbon in the kingdom 3. Rexv.Bell. of Portugal, and having been from thence imported into this kingdom, to wit at the port aforefaid, in fraud of the revenue of our faid lord the king, and contrary to the form of the ftatutes in that cafe made and provided •, And that the faid butter had been duly and legally seized, an and i;i the faid town, on the 28th day oijuly aforefaid, between the hours of ten and twelve in the forenoon, and duly and legally preferved and kept from that time to the time of exhibiting this information; And that the owner or owners of the faid butter or any part thereof, or any perfon for or on the behalf of him, them or any of them, had not made it appear to any juftice of the peace of and for the faid town and county, by the oath of two credible witneffes orotherwife howfever, " That the faid butter was not imported in manner and form aforefaid, from the faid kingdom of Ireland into this kingdom." Whereupon the faidjuftices did, on the 2d day of Augufl, duly and legally order Mr. Richard Bell of the faid town and country merchant, the confignee and apparent owner of the faid butter and every part thereof, to be fummoned to appear before them at the houfe of Archibald Brown, at the fign of the Dog and duck in the faid town and county, on the 5th day of the faid month of Augufl, then and there to anfwer the faid information and premifTes,, At which time and place come, before them the fame juftices, as well the faid Edward Burrow as the faid Richard Bell. And then the faid Richard Bell having heard the faid information read to him, and being afked by the faid juftices, " Why the faid butter fhould not be forfeited" faith, That he hath nothing to objeel againft the truth of the faid premifTes contained in the faid information. Whereupon, and upon the examination of a credible witnefs in that behalf in the prefence of the faid Richard Bell, and becaufe the faid Richard Bell hath nothing to fay, nor can fay any thing touching the faid premifTes, but doth acknowledge the fame to be true as the fame are charged in the faid information ; It appears unto them the faid juftices, That the faid information and every part thereof is true : And they the faid juftices do adjudge the fame to be true accordingly. It is therefore confidered and adjudged by them the faid juftices, That the faid butter and every part thereof is forfeited ; and that one moiety or half part thereof be difpofed to the ufe of the poor of the faid parifh of St. Trinity in the faid town and county, and the other moiety Bttttet ant> Cfteefc 509 moiety or half part thereof to be to the proper ufe of the faid Edward Burrow. Given under our hands and feals, at the town and county of the town of Kingfton upon Hull, this 5th day of Augujl in the 34th year of, &c. and in the year of our Lord 1760. Mr. Morton, for the defendant, infilled that this conviction ought to be quafhed. This butter was exported from Ireland to Lifhon ; and from Lifhon re-exported to England, and imported here at Hull: Which (he infilled) did not occafion a forfeiture of the butter. Therefore this con- viction is wrong, in making it abfolutely/cr/«7ft/; even though it fhould be liable to the greater duty, and not to the lefs. Befides the diflribittion of the penalty is not agreeable to the aft of parliament. Mr. Norton contra, in fupport of the conviction : Irifh butter, imported N B. the atfs from Lifhon or any other place, is confifcatable, by 18 Car. 2. c. 2. 'Star. 2. and 32 Car. 2. c. 2. / 9. and 20 C. 2. c. 7. feci. 3. all thefe ads are to be " Car 2 - c 7> confidered as one law. And by them, All Irifh butter, imported hither bu °° r """"*■ from any place whatfoever, is forfeitable, jult as much as if it was imported cattle,' ftieep,. directly and immediately from Ireland. The acts of parliament would fwine, beet, be nugatorv, if they might be evaded by touching at the IJle of Man, or P otl< . awi any other place. The conviction is founded on thefe three tlatutes of C. 2. bacon - And this importation from Lifhon is not protected by the act of 31 G. 2. c. 28 : Which allows the importation of butter from Ireland into England during fix months, paying \d.per hundred weight. Becaufe the butter permitted by that act to be imported mull be imported immediately from Ireland. He compared this law to fome others, where the impoitation muft be direclly from the place. — 12 Geo. 2. c. 21. (An act for taking off the duties upon woollen and bay yarn imported from Ireland to England;) 23 G. 2. c. 29. (An act to encourage the importation of pig and bar iron from his majefty's colonies in America-,) and 32 Geo. 2. c. 11, 12. How- ever, this conviction was unneceffary, and only ex majori cautela. For the goods were aclually and ipfo faclo forfeited by not being claimed and pro- ved, &c. within forty-eight hours. Mr. Morton was going to reply — But lord Mansfield faid it was needlefs. — Here is no fufpicion of fraud. If there had, it might be a different cafe. It would not be worthwhile to go round by Lifbon, to evade the act ; and to pay feven fhilhngs and eight pence to avoid paying four pence. And if it be within the prohibition, it is within the permimon. His lordfhip however propofed to the parties, That the officer of the cuftoms (Mr. Edward Burrow, collector at Hull) fhoul.i pay the proprietor,, (the confignee,) the value of the butter at the time of the feizure, together with the cofts. And, in order to compramife the matter, and fave the bringing an action, he ordered it to ftj.n<\ over from Saturday lail to thi3 day. A third perfon having now named twenty-fix fhillings per barrel as the price that Mr. Burrow ought to refund to the confignee of it t And Mr. Norton thinking that too much ; the compromiie. came to nothing. i'oi sio Bttttet ants Cljeefe. For Mr. Norton thought it better for his client, to ftand an action, and luffer judgment to go by default, and leave the matter to a jury, upon a writ of inquiry of the damages fuftained by the feizure. Whereupon Per Cur'' conviction was quafhed." buttons, STATUTE 13 £5? 14 Car. 2. c. 13. [A. D. 1662. Intituled] " An aft prohibiting the importation of foreign bone-lace, cut-work, im- broidery, fringe, band-ftrings, buttons and needle-work." " Whereas great numbers of the inhabitants of this kingdom are im- ployed in the making of bone-lace, band-ftrings, buttons, needle-work, fringe and imbroideries, who by their induftry and labour have attained and gained fo great {kill and dexterity in the making thereof, that they make as good of all forts thereof, as is made in any foreign parts, by rea- fon whereof they have been heretofore able to relieve their poor neigh- bours, and maintained their families, and alfo enabled to let on work many poor children, and other perfons who have very fmall means, or maintenance of living, other than by their labours and endeavours in the faid art: (2) And whereas the perfons fo imployed in the faid myftery have heretofore ferved moft parts of this kingdom with bone-lace, band- ftrings, buttons, needle-work and imbroidery -, and for the carrying on, and managing of the faid trade, they have procured great quantities of fhread and filk to be brought into the kingdom from foreign parts, where- by hismajefty's cuftoms and revenues have been much advanced, (3) until of late, that great quantities of foreign bone-lance, band-ftrings, needle- work, cut-work, fringe, filk, bone-lace, buttons and imbroidery were brought into this kingdom by foreigners and inhabitants of this kingdom, and ibid to {hop-keepers, and others, dealers in the faid commodity, as well by wholefale as retail, without ever entring of the fame in any his majefty's cuftom-houfes, or paying any duty or cuftom for the fame -, (4) by means whereof, the faid trade and calling is of late very much de- cayed, thofe employed in the faid callings very much impoverilhed, the manufacture much decreafed, and great quantities thereof already made, left on their hands that make it, his majefty defrauded and deceived in his cuftoms, and many thoufand poor people formerly kept on work in the faid art, like to perifh for want of imployment •, (5) there being daily great fums of money exported out of this kingdom for the buying and fetching in of the faid commodity, to the great impoverifhmentof the na- tion by the confumption of the bullion and treafure thereof, and con- trary Buttons. 5 * 5 trary to feveral ftatutes made in the firft of king Richard the third, in the 3 E d - 4- *• 4- third of king Edward the fourth, in the nineteenth of king Henry the ' ^7 c IT fevench, and the fifth of queen Elizabeth, and to a late proclamation made s 9 Eli2 c ?| ' by his majefty that now is, dated the twentieth day of November laft, for the putting the faid laws in execution : Seel. 2. " For redrefs whereof, and prevention of the like mifchiefs Foreign bone- for the future, and the better relief, comfort, and fubfiftence of thofe ^kjmbroi- imployed in the faid art and manufacture, and for the quickning, revi- dery ' frirge> ving, explaining, amending, and more effectual execution of the faid fta- band things, tutes •, (2) Be it enacted by the king's moft excellent majefty, by and with prohibited to the advice and confent of the lords fpiritual and temporal, and commons, t0 h *^' in this prefent parliament affembled, and by authority of the fame, That j rc £/ b ond no perfon or perfons whatfover fhall, from and after the twenty-fourth day f ea . of June one thoufand fix hundred fixty-two, fell or caufe to be fold, or offer This aft en- to fale, within the kingdom of England, or dominion of Wales, or export '^ r8e V y by A T any foreign bone-lace, cut-work, imbroidery, fringe, band-firings, buttons c * o as (0 or needle-work made of thread, filk, or any or either of them, in parts foreign but- beyond the feas, or import, bring in, fend, or convey, or caufe to be tons made of brought in, fent or conveyed into the kingdom of England, or dominion ha,r ' and re - of Wales, any fuch foreign bone-lace, cut-work, fringe, imbroidery, band- P"^ c y ' firings, buttons or needle-work, made of thread, filk, or any, or either { ,. a s to fb- of them, beyond the feas, after the firft day of May, which fhall be in the reign lace faid year of our lord one thoufand fix hundred fixty and two ; (3) up- made °f on pain that all and every perfon or perfons who fhall fell, or caufe to be thread> fold, or offered to fale any fuch foreign bone-lace, cut-work, imbroi- dery, fringe, band-fixings, buttons or needle-work, fhall forfeit and lofe fot every fuch offence by him committed contrary to this act, the fum of fifty pounds, and the whole bone-lace, cut-work, imbroidery, fringe, band- ftrings, buttons or needle-work fo fold, or caufed to be fold, or offered to fale : (4.) And upon further pain, That all and every perfon or perfons who fhall import, bring in, fend or convey, or caufe to be brought in, fent or conveyed into this kingdom of England, or dominion of Wales, any fuch bone-lance, cut-work, imbroidery, fringe, band-ftrings, buttons or needle-work, fhall forfeit and lofe for every offence by him committed T , . contrary to this act, the fum of one hundred pounds, and the whole bone-lace, cut-work, imbroidery, fringe, band-ftrings, buttons or needle- work fo imported, brought in, fent or conveyed, or caufed to be import- ed, brought in, lent or conveyed contrary to the form and effect of thij prefent act, as aforefaid : (5) The moieties of all which forfeitures to be to the ufe of our fovereign lord the king's majeftv, his heirs and fucceflbrs;- ° nerrip| et7 to and the other moiety to him or them that fhall fue for the fame in any .^ ing ' r fr of the king's courts of record, by bill, plaint, action of debr, informa-prefecto^ tion or otherwife, wherein no effoin, protection, or wager of law fhall be allowed, at every time, and as often as any perfon fhall be foun J to of- fend in felling, importing, conveying or bringing in, as aforefaid, " Sett. 3. And be it further enacled by the authority aforefaid, That for Every juftfcfc the preventing of the importing of the faid manufactures, as aforefaid, of peace upon n; *- v s ranb *■ warrants ta 512 Buttons. fearch for U p 0n complaint and information given to the juftices of the peace, or Tr^td?' an y' ore » tner °f them within their respective counties, cities and towns this aft. y corporate, at times reafonable, he or they are hereby authorized and re- quired to ifTue forth his or their warrants to the conftables of their refpec- tive counties, cities and towns corporate, to enter and fearch for fuch manufactures in the (hops being open, or ware-houfes, and dwellino-- houfes of fuch perfon or perfons as fhall be fufpedted to have any fuch foreign bone-laces, imbroideries, cut-work, fringe, band-firings, buttons or needle-work, within their refpective counties, cities and towns corpo- rate, and to fcize the fame ; any act, ftatute or ordinance to the contrary thereof in any wife notwithstanding. The time li- Seel. 4. " Provided always, and be it hereby enacted and declared, that raited for ac- all informations actions and fuits, that fhall be commenced for any offence tions upon this committed againft this law, fhall be brought and commenced within twelve months after the difcovery of fuch offence ; any former act or law to the contrary notwithstanding." aft @>tnt 4 Will. IS Ma. c. 10. ]/f. D. 1692. Intituled'] " An act for prohi- biting the importation of all foreign hair buttons." 13 & 14 Car. " Whereas by an act made in the fourteenth year of the reign of his £-c,, 3- late majefty king Charles the fecond, intituled, " An act for prohibiting the importation of foreign bone-lance, cut-work, imbroidery, fringe, band-ftrings, buttons, and needle work," amongft other things in the faid act mentioned, all foreign buttons made of thread or filk are prohibited to be imported and fold in the kingdom of England, or dominion of Wales .- And whereas fince the making of the faid act, hair buttons are chiefly ufed and worn, and the button makers of England do make better hair but- tons than any that are imported from foreign parts, and are able to fupply this kingdom with greater quantities of them than they can make ufe of; yet becauie buttons made of hair are not exprefly mentioned in the faid act (although they were thereby intended to be prohibited) many perfons who are enemies to the manufactures of this kingdom, taking advantage of the faid omiffion, do daily import fuch great quantities of hair buttons, and the button trade of England is very much decayed, and many thousands of poor people, that were formerly kept at work in the faid trade, are like to perifh for want of imployment, and all the other mifchiefs men- tioned in the laid act, which relate to the button trade, and were thereby intended to be remedied, are become as great as they were at the time of making of the faid act, for redrefs, whereof, and the more effectual pre- vention of the like mifchiefs for the future : Foreign hair Seel. 2. "Be it enacted by the king's and queen's mod excel- ■buttons not to i en t majefties, by and with the advice and confent of the lords fpiritual beinpcrted, afi j x£vs\]>Qxa\, and commons, in this prefent parliament aflembled, and by the authority of the fame, That from and after the five and twentieth day of March in the year of our lord one thoufand fix hundred ninety and three, no foreign buttons made or to be made of hair, nor any other foreign 26ttttOtt£. 5 i 3 foreign buttons whatfoever, fliall be imported, brought in, fent or con- veyed into the kingdom of England, dominion of Wales, or port or town of Berwick upon Tweed, or bartered, fold, exchanged, or offered to be bartered, fold or exchanged, upon pain of forfeiting all the laid buttons Pena ' t )' 1 fo imported, brought in, bartered, fold or exchanged, or offered to be bartered, fold, or exchanged, and upon fuch further and other pains, penalties, and forfeitures as are mentioned, contained and exprefled in the faid recited aft ; one moiety of all which forfeitures to be to the ufe of our fovereign lor.. . d lady the king and queen, their heirs and fuccef- fors, and the other moiety thereof to the perfon or perfons, that (hall fue for the fame in any of their majefties courts of record, by bill, plaint, aftion of debt, information, or otherwife, wherein no effoign, protection or wager of law fhall be allowed. Seel. 3. " And be it further enafted by the authority aforefaid, That T u( t; ces of for the preventing the importing, bartering, felling, vending, or expofing p eace have to fale any foreign buttons whatfoever, the juftices of the peace within the power to feize.' kingdom of England, dominion of Wales, or port or town of Berwick upon Tweed, within their feveral and refpeftive coumies, cities and towns corporate, have the fame authority and power, and the fame au- thority and power is hereby given unto the faid juftices, to iffue forth their warrants to feize, or caufe to be feized, all foreign buttons whatfo- ever, as by the faid aft is given unto them for the feizing of foreign but- tons made of thread or filk, and other the manufaftures in the faid aft mentioned." @)tat- 10 Will. 3. c. 2. \_A. D. 1698. Intituled'] " An aft to prevent the making or felling buttons, made of cloth, ferge, drugget, or other fluffs.'* " Whereas the maintenance and fubfiftence of many thoufandsof men, women, and children, within this kingdom, depends upon the making of filk, mohair, gimp, and thread buttons with the needle, and great num- bers of throwfters, twifters, fpinners, winders, dyers and others are im- ployed in preparing the materials of which fuch buttons are made: And whereas the filk and mohair, wherewith the faid buttons are made, is pur- chafed in Turkey, and other foreign parts, in exchange for our woollen manufafture, to the great confumption and encouragement thereof : And whereas the making of fuch needle-wrought buttons hath of late been much leffened and difcouraged by the making and wearing of buttons made of the fhreds of cloth, ferge, drugget, frize, camlet, and other ftuffs and materials of which clothes are ufually made, and alfo by buttons made of wood only, and turned in imitation of other buttons ; to the great impoverishment of all thole whofe livelyhood depended upon the making the faid needle-wrought buttons, and preparing the material* thereof-, and to the great prejudice of the woollen manufafture wherewith fuch materials are purchafed, as aforefaid ; by which means great numbers of the faid poor people are become burdenfome to their refpeftive pa- rifhes : For remedy whereof Be it enafted by the king's moft excellent Vol. I. N° XXIf. 3 U majefty. 514 Button*. majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That from and after the tenth day of February No buttons t0 one thoufand fix hundred ninety and eight, no perfon or perfons whatfo- madeof cloth ever ' within the kingdom of England, dominion of Wales, and town of ferge, &e. or Berwick upon Tweed, (hall make, fell or fet on, or caufe to be made, of wood. fold or fet on any clothes or wearing garments whatfoever, any buttons Penalty. made of cloth, ferge, drugget, frize, camlet, or any other fluffs of The P enal 'y w hich clothes and wearing garments are ufually made, or any buttons 8 AniL C 6. made of wood only, and turned in imitation of other buttons, upon for- and 4 o s'. laid feiture of the fum of forty millings for every dozen of fuch buttons on the wearer f made, fold or fet on, or caufed to be made, fold or fet on, as afore- by 7 Geo. 1. ^-^ an j j n jjk e p r0 p 0rt i on f or anv lefTer quantity ; one moiety thereof f a ,' '" to be to the uie of his majefty, his heirs and fucceffors, and the other 2 Salk.612. moiety thereof to him, her or them that fhall fue for the fame, by ac- tion of debt, bill, plaint or information, in any of his majefly's courts of record, wherein no effoign, protection or wager of law, or more than one imparlance fhall be allowed." By Stat. 11 ts* 12 Will. 3./. 3. feci. 15. Englijh bone-lace, needle- work, point, or cut-work may be exported cuflom-free. ©tnt 8 Ann. c. 6. [A. D. 1709. Intituled] " An act for employing the manufactures by encouraging the confumption of raw filk and mohair yarn." " Whereas the maintenance and fubfiftence of many thoufands of men, women and children, within this kingdom of Great Britain, depends upon the making of filk, mohair, gimp and thread buttons and but- ton-holes with the needle, and great numbers of throwflers, twifters, fpinners, winders, dyers and others are employed in preparing the ma- terials of which fuch buttons and button-holes are made : And whereas the filk and mohair wherewith the faid buttons and button-holes are made, is purchafed in Turkey and other foreign parts, in exchange for the wool- len manufactures of Great Britain, to the great confumption thereof ; and for the encouragement of fuch numerous manufacturers and manufac- rures, an act was made in the tenth year of the reign of his late ma- 10 W. 3 c. j e Q.y j c j n g tf/Mj am t h e t hird (of glorious memory) (intituled, " An act to prevent the making or felling buttons, made of cloth, ferge, drugget or other fluffs or materials,") under the forfeitures therein mentioned •, but that the intended encouragement by the faid act has, in a great meafure, been rendred ineffectual, by a late and unforefeen practice of making and binding of button-holes with cloth, ferge, drugget or other fluffs, to the great difcouracrement of and abatement in the confumption of raw filk and mohair yarn, and the utter ruin of numerous families, who ufed to manufacture the faid materials, if not fpeedily prevented : For remedy whereof, and making the faid recited act of parliament more effectual, Be it enacted by the queen's moft excellent majefty, by and with the advice and and confent of the lords fpirkual and temporal, and commons, in this pre- l'ent parliament affembled, and by the authority of the fame, That, from After Msrcfc and after the five and twentieth day of March one thoufand feven hun- 25, 1710. dred and ten, no taylor, nor other perfon orperfons whatfoever, within the kingdom of Great Britain, fhaU make, fell, fet on, ufe or bind, or caufe N . to be made, fold, fet on, ufed or bound on any clothes, or wearing gar- maka> f e ij^ ft ments whatfoever, any buttons or button-holes made of, or ufed, or bound any buttons w with ferge, drugget, frize, camlet, or any other ftuffs of which clothes b-itcon-holes and wearing garments are ufually made, upon forfeiture of the fumof five ""aoeorboniwi pounds for every dozen of fuch buttons or button-holes fo made, fold, fet ^ c erse ' on, ufed or bound, or caufed to be made, fold, fet on, ufed or bound, on forfeiture as aforefaid, and in like proportion for any leffer quantity; one moiety of 5 1. for eve- thereof to be to the ufe of her majefty her heirs and fuccellors, and the : ? dozen » & e - other moiety thereof to him, her or them that (hall fue for the fame, by ^ ne mo,et y "> _. c ,' . . ... . . . c r , • n 5 the queen, the action or debt, bill, plaint or information, in any or her majeity s courts other t0 him of record, wherein no eflbin, protection or wager of law, or more than who will fue, one imparlance fhall be allowed ; or upon complaint to any two juftices of & c - the peace of the county, riding, divifion, city or town corporate, where juftice* the matter in controverfy ariieth, who are hereby impowered to fummon, " an ^ i e vtTthe and examine witneffes on oath concerning the fame, and levy the penalty penalty. in this aft mentioned, and return the overplus, if any be, to the owner or owners thereof : But in cafe any perfon fhall think himfelf aggrieved by But persons any judgment or order of the faid juftices, it fhall and may be lawful for a gg rievecima y fuch perfon to appeal againft the judgment and order of the faid two ap P ° the juftices to the juftices of the peace, in the general quarter-feffions of the peace, which fhall be held for the fame county, riding, divifion, city or town corporate, next after notice of fuch order of the faid two iuftices ; . , 1 ■"«- e 1 -ir-i 1 r r,- 1 'who are im- and the juftices or the peace in the laid general quarter-iefiions, are here- p 0W er - d final- by impowered to fummon and examine witneffes on oath, and to hear and lytodetermine finally determine the matter of the faid appeal ; and in cafe the fame the matter, juftices in the faid general quarter-feffions fhall give judgment againft ea PP e ' ,ant fuch appellant, then the fame juftices fhall award and order to the party, jf determined on whole behalf the fame appeal is determined, fuch reafonable cofts againft him. and charges to be paid by fuch appellant, in regard of fuch appeal, as to the fame juftices fhall feem meet. And this aft fhall be taken and al- This to be ta- lowed, in all courts within this kingdom, as a publick act, and all judges, j^" a ' a P ub " juftices, and all other perfons therein concerned, are hereby required as fuch to take notice thereof, without fpecial pleading the fame. This act is altered and farther enforced by 4 Geo. i.e. 7. and by 7 Geo. l.Jiat. 1. c. 12. feci. 1. The penalty of forty (hillings per dozen is laid on the wearer. @>tflt. 4 Geo. i.e. 7. [A. D. 1 71 7. Intituled] "An act for making more effectual an act made in the eighth year of the reign of the late queen Anne" [intituled, An ail for employing the manufaclures, by encouraging the eonfumption of raw fdk and mohair yarn. ,] Seel. 1. Whereas by an act made in the eighth year of the reign of her g ^ c 6 late majefty queen Anne, [intituled, " An act for employing the manu- 3 U 2 factures, 5 i6 jButtons. failures, by encourging the confumption of raw filk and mohair yarn"] the laid act having proved ineffectual to prevent the mifchiefs intended to be remedied by the faid act : For remedy whereof, and making the faid After March rec [ te( j a ft f parliament more effectual, Be it enacted by the king's no uyior, csV. m °ft excellent majerty, by and with the advice and conlent of the ftall make.fdl, lords fpiritual and temporal, and commons, in this prefent parlia- fet on, £sv. ment affembled, and by the authority of the fame, That, from any buttons anc j a ^j. tne twenty-fifth day of March one thoufand feven hundred hoferrude of ar >d eighteen, no taylor, or other perfon or perlbns whatfoever, within cloth, ferge, the kingdom of Great Britain, fhall make, fell, fet on, ufe or bind, or tzfc on any f^all caufe to be made, fold, fet on, ufed or bound, on any clothes or clothe, what- wear i n g garments whatfover, any buttons or button-holes made of, or ufed n°alty r o° n +ot or bound with cloth, ferge, drugget, frize, camlet, or any fluffs thac per dozen. clothes or wearing garments are ufually made of, upon the forfeiture By 7 Geo. i. f the fum of forty {hillings for every dozen of fuch buttons and button- ftat i.e. 1-2. holes fo made, fold, fet on, ufed or bound, or fhall caufe to be made, laid oti°the ' S f°^' f et Q n > ufed or bound, as aforefaid, or in proportion for any leffer wearer. quantity, every perfon or perfons fo offending, and being thereof law- fully convicted upon the oath of one or more credible witneis or witneffes, fhall forfeit, as aforefaid, to be recovered and diftributed as is afterwards provided for by this act. Not to extend Sefl: 2. " Provided, That nothing in this act contained fhall extend, to clothes or be conftrued to extend to any clothes or wearing garments made of madeofvel- ^j^ Perfonsdwell- SeSi. 3. And be it ena&ed by the authority aforefaid, That any perfon ing in gaols, or perfons inhabiting, or being in any gaol or houfe of correction, or is'c. offending w ithin the rules or liberties of any gaol or houfe of correction, or fhall againft this inhabit or dwell in any privileged place, or within the liberties of the ffb'ea a to b the f ame ' committing any offence or offences againft this act, he, fhe or penalties. they fo offending, as aforefaid, and being lawfully convicted of the fame, as is before directed by this act, he, fhe or they fhall be fubject to the for- feitures and penalties as in this act mentioned ; any law, ftatute, cuftom or thino- to the contrary in any wife notwithftanding. Profecution in Self. 4. " And be it enacted by the authority aforefaid, That all offences three months, committed againft this act, fhall be profecuted within three months after the fame is committed or difcovered. Offences to be ^^ ^ « And be it enacted by the authority aforefaid, That all offences determined by a g am fl- tms a & ma n be heard and determined by one or more of his ma- peace. 50 j eft y' s j"ft ice or juftices of the peace of the county, city, town or place where the fame fhall be difcovered, or where fuch offender doth inhabit, fuch juftice or juftices being not concerned in the matter of the faid com- plaint-, upon the oath of one or more credible witnefs or witneffes, which On oath of Q ^ f U ch juftice or juftices is and are hereby impowered and required to one witne s. a( j m j n jft er . ^ n( j a jj anc j everv tne faid penalties and forfeitures, which fhall One half of happen by virtue of this act, fhall be diftributed and paid, after the the penalty to charges of fuch conviction being firft deducted ; one moiety to him or the informer, them who fhall inform or profecute for the fame, the other moiety to the the other to poor f t fe parifh, townfhip or place where the offence fhall be difco- thepoor. * vered JBtttttMS; 417 vered ; and in cafe any offender fhall neglect or refufe to pay any fuch To be levied penalties and forfeitures, being lawfully demanded, by the fpace of fourteen b y tJlftre< ). lf days next after conviction for fuch offence, as aforefaid, that then fuch "° | a a " £ ia jullice or juftices is and are hereby required to iffue out one or more conviction, warrant or warrants under his or their hands and feals to the conftable or conftables of the parilh, town or place where fuch offender doth inhabit, or can be found, to levy the fame by diflreis and fale of the offender's goods, rendering the overplus (if any be) to the owner; and where no fufficient dif- For want of trefs can be found, to commit the offender or offenders to the common gaol diitrek, offen- for the county, city, town or place, where fuch offender fhall be found, there ders to b ^ to be kept to hard labour for and during the fpaceof three calendar months." "™ e morit f, s Se5l. 6. " Provided, That if any peribn or perfons find him or them- Per r on5 felves aggrieved by any order or warrant made by any juftice or juftices of aggiieved the peace, upon any fuch conviction before him or them, as aforefaid, fuch may appeal te perfon or perfons may appeal to the general quarter- feffions to be holden quarter fef- for the county, riding, city or corporation, where fuch conviction fliall be 10n£; made, giving fufficient notice of fuch appeal ; and the determination of w h f e deter- fuch jultices in fuch feflions (hall be final; and the faid juftices fhall allow mation (hall fuch cofts and charges to the party aggrieved as they fhall think realonable, be final ; and to be levied and paid in fuch manner, as is ufual in other cafes of appeals ma . y '" from the orders of any juftices of the peace to the quarter-feffions." Sell. 7. And be it enacted by the authority aforefaid, That if any action Perfons fued or fuit fhall hereafter be commenced or profecuted againft any perfon or may plead the perfons fo fued or profecuted, fuch perfon or perfons may plead the general S eneral lffue > iffue, and give this act and the fpecial matter in evidence; and if the plaintiff fliall become nonfuited, or forbear further profecution, or fuffer ar " ia "'f- j-r • j-r, .- • /1 1 • ■ ii j cover table difcontinuance, or a verdict pals againft him, or judgment upon demurer, col j s- the defendant or defendants fhall recover his or their treble cofts, for which he and they fhall have like remedy, as in cafes where cofts by law are given to defendants." Seff. 8. " And be it enacted by the authority aforefaid, That all clothes SlK jj c i otne3 or wearing garments, which fhall be made with buttons and button-holes expofed to fale of the fame cloth, ferge, drugget, frize, camlet or other fluffs, of which may befcifed, the faid clothes or wearing garments are made, and fhall be expofed to fale in any fair or market, or in any fhop or ware-houfe, or in any dwelling-houfe, or other place whatfoever, the fame fhall be fubject and liable to be forfeited and feifed, and applied to the ufes in this act mentioned, to be recovered as other forfeitures and penalties are by this act to be recovered." Sefl. 9 " And be it enacted by the authority aforefaid, That if any taylor, or other perfon or perfons, fhall caufe his or their apprentice or Taylors, &V. fervants to make any clothes or wearing garments contrary to this act, that "ufirg their in fuch cafes the faid mafter-taylor, or fuch other perfon or perfons which fSf^ 1153 ^ caufed the faid clothes or wearing garments to be fo made, or fliall be any c i thescoiy.ra- ways entitled to the monies for making the faid clothes or wearing ry to this aft, garments made as aforefaid, fhall be fubject to the forfeitures and frail be fubjeft penalties tothe P snalti€,> 5i8 JBttttOttg; penalties in this act mentioned, to be had and recovered, as other forfeitures and penalties are to be recovered by this act ; any thing herein contained J°uMick aft ' t0 the contrar y notwithftanding. And this act fhall be taken and allowed to be a publick act in all courts within this kingdom ; and all judges and juftices of the peace are hereby required to take notice thereof, as fuch, without fpecial pleading the fame." S>tflt- 7 Geo. i.fl.i.c. 12. [A. D. 1720. intituled] " An act for im- ploying the manufactures, and incouraging the confumption of raw filk and mohair yarn, by prohibiting the wearing of button-holes made of cloth, ferge or other fluffs." 8 Ann. c. 6. " Whereas by an act made in the eighth year of the reign of her late majefty queen Anne, [intituled, An all for employing the manufaclurers by incouraging the confumption of raw filk and mohair yarn,] fuggefting therein, amongft other things, that the maintenance of many thoufands of men, women and children, within this kingdom of Great Britain, depends on the making of filk, mohair yarn, and thread buttons and button-holes, with the needle ; and that great number of throwfters, twifters, fpinners, winders, dyers and others are employed in preparing materials of which fuch buttons and button-holes are made, It was provided, That, from and after the five and twentieth day of March one thoufand feven hundred and ten, no buttons or button-holes, made of cloth, ferge, drugget, frize, camlet, or any other fluffs, fhould be made, fet or bound on any clothes or wear- ing garments whatfoever, by any taylor or other perfon or perfons what- ibever, on the forfeitures and the penalties in the laid act contained : And whereas for making the faid recited act more effectual, another act was made in the fourth year of his prefent majefty, [intituled, An ail for ma- 4 Geo. 1 . c. 7. king more effeclual an atl made in the eighth year of the late queen Anne, intituled, "An act for imploying the manufacturers by incouraging the coafumption of raw filk and mohair yarn."] And whereas the faid feveral acts have net effecually anfwered the good ends thereby propofed, and buttons and button-holes made of cloth, ferge, drugget, frizes, camlet and other the faid Huffs, are ftill ufually made, fet and bound on clothes and wearing garments, to the great impoverifhment of the faid manufacturers of needle- work, buttons and button-holes, and other the faid perfons imployed in preparing the materials thereof, and to the exceffive increafe of the poor, and if not prevented, may be the utter ruin of the faid manufaclurers, and many thoufands of your majefty's fubjects and their families, whofe liveli- hoods do intirely depend thereupon: For remedy whereof, may it pleafe your mod excellent majefty, that it may be enacted ; and Be it enacted by the king's moft excellent majefty, by and with the advice and confentof Af » the lords fpiritual and temporal, and commons, in this prefent parliament 1722. No ' affembled, and by the authority of the fame, That from and after the nine Perfon (hall and twentieth day of September, which fliall be in the year of our lord one wear on any thoufand feven hundred and twenty-two, it fliall not be lawful for any clother buttons p er f on or p er f on s whatfoever, within the kingdom of Great Britain, to ufe ' ' 4 or or wear on any clothes, garments, or apparel whatfoever, any buttons or &e. en penalty button-holes made of or bound with cloth, ferge, drugget, frize, camlet, °U° *• P« or any fluffs, whereof clothes or wearing garments are ufually made •, and that if any perfon or perfons whatfoever, within the kingdom of Great Bri- tain, (hall uie or wear any buttons or button-holes, made of or bound with cloth, ferge, drugget, frize, camlet or other fluffs, as aforefaid, fuch perfon or perfons, being thereof lawfully convicted by the oath of one or more credible witnefs or witnefies, or by confefflon of the party, in man- ner as is herein after mentioned, fhall forfeit, for every dozen of fuch but- tons or button-holes fo ufed or worn, the fum of forty (hillings, or in pro- portion for every leffer quantity of fuch buttons and button-holes •, to be recovered and distributed as herein after is provided. " Se51. 2. " And for the more eafy conviction of offenders againft this conviaion act, and for the more eafy recovery of the penalties and forfeitures afore- before one ju- faid, Be it further enacted by the authority aforefaid, That it (hall and dice of peace, may be lawful to and for any one or more of his majefty's juftices of the peace of the county, riding, city, town or place, where any offence fhall be committed againft this aft, or where fuch offender fhall inhabit, and fuch juftice or juftices are hereby required and enjoined, upon any com- plaint or information upon the oath of one or more credible perfon or per- fons (which oath fuch juftice or juftices is and are hereby impowered and required to administer) to fummon the party or parties accufed, and upon his, her or their appearance or contempt, to proceed to the examination of the matter of fact, and upon due proof made, either by confefflon of the party, or the oath or oaths of one or more credible perfon or perfons, of any offence committed contrary to this act, to determine the fame, and convict the offender or offenders thereof; and upon conviction to caufe the Penalties to be faid penalties or forfeitures, upon the offender or offenders refufing to pay levied by di- the fame on demand, at fuch time or times as the faid juftice or juftices ftref6, fhall appoint, by warrant or warrants under his or their hands and feals, to be levied by diftrefs and fale of the goods and chattels of fuch offender or offenders, lendering to him, her or them, the overplus, if any fhall be, the charges of fuch diftrefs and fale being thereout firft deducted ; and all and every the penalties and forfeitures under this act, fhall be distributed and paid in manner following, (that is to fay) One moiety thereof to him, One moiety to her or them, on whole oath or oaths any perfon or perfons fhall be con- the informer, vifted cf sny offence againft this a<5t, and the other moiety to the poor off' 6 other t0 the parifh where fuch offence or offences fhall be committed." " Seft. 3. " Provided nevertheless, That it fhall and may be lawful to or Appeal to for any party or parties aggrieved by the order, determination, or warrant Qiurter-fef- of fuch juftice or juftices, as aforefaid, to appeal to the justices of the peace . fl ° ns ' whofe at the next general quarter-feffions, to be holden for the county, riding, fh^u'be'final city or place where the faid offence or offences fhall have been commit- ted, giving eight days notice at the lead, of fuch appeal to the profecucor or profecutors •, which juftices at the faid feffions are hereby authorifed and required to hear and determine the fame, and their judgment therein fhall be final. Self. 4. 5 2o jStmons. Profecution in Setl. 4: " Provided alfo, That all offences againft this act fhall be pro- one month, fecuted within one month after fuch offence committed, and not after." Not to extend *#■ 5- " Pr° vided alfo > That nothing in this act contained fliall ex- to clothes of tend or be conftrued to extend to any clothes or wearing apparel made of velvet. velvet." Sen. 6. " Provided alfo, That if any action or fuit fliall hereafter be commenced or profecuted againft any perfon or perfons fo fued or profe- General iflue, cuted, as aforefaid, fuch perfon or perfons may plead the general iffue, &c and give this aft and the fpecial matter in evidence ; and if the plaintiff fhall become nonfuited, or forbear further profecution, or fuffer difconti- nuance, or a verdict to pafs againft him or her, or judgment upon de- Treble colls, muirer, the defendant or defendants fhall recover his, her or their treble cofts, for which he, fhe or they fhall have like remedy as in cafes where cofts by law are given to defendants." Publick aft. Setl. 7. " And be it further enacted by the authority aforefaid, That this act fhall be taken and allowed to be a publick. act in all courts within this kingdom of Great Britain ; and all judges and juftices of the peace are hereby required to take notice thereof as fuch, without fpecial pleading the fame." Lord Raym. An information was exhibited againft the defendant for having made 712. Hil. wooden buttons, contrary to the late act of parliament. Upon not guilty 13 Will 3. pi eac j ec ] 5 i twas tried before Gould }\\R.\ce at Lincoln, being juftice of affife; berte and a fpecial verdict was found there, viz. That all the button was of wood, but there was in it a fhank of wire. And after argument by Mr. ferjeant Neve for the king, and Mr. ferjeant Mundy for the defendant, judgment was given for the king, viz. that this was a button of wood, notwithftanding the fhank, which is no effential part of buttons ; for but- Salk 612 tons °f fi'k anc * ^ a ' r ^ ave n0 ^ an k s - Adjudged accordingly Pafch. Pach. 5 Ann. 5 Ann, B. R. Dunne qui tarn, cifr. verf. Hinchdy. 6. R. Dunn Debt upon the ftatute 10 W. 3. c. 2. for twelve dozen of buttons made qui tam v. fe ^ m tantum in imitation of, &c. The jury found the buttons were all dy. wood but the flianks, which were brafs, and that they were made in imi- tation, &c. and that they were buttons made de ligno tantum, &c. Weld faid, that it now appeared the ftatute was applicable, and might have its effect upon other buttons, and that a penal law was to be conftrued ftrictly, and not by intendment. Vide 2 Infi. 199. Plo. 47. a. But the court refolved they were prohibited by the act •, for the fhank is no part of the button, but added to fatten it. And if buttons thus made in imitation, crV. by having a brafs fhank added, fhould be out of the act, it would be in every body's power to evade it. Adjudged. Cambtfcfctf. 521 Camtm'cfcs. STATUTE lSGeo. i.e. 39. [A. D. \~;\$- intituled] « An act for prohibiting the wearing and importation of cambricks and French lawns." " Whereas it is evidently for the advantage of this kingdom, that the wearing of cambricks and French lawns fhould be prohibited ; Be it enacted by the king's moft excellent majefty, by and with the advice and content n„ cambrick ofthekrds fpiritual and temporal, and commons, in this prefent parlia- or French ment alltmbled, and by the authority of the lame, That from and after lawn tob * the twenty-fourth day of June, which fhall be in the year of our Lord one IJ^2i y ™"f ,[, thoufand feven hundred and forty-eight, it fhall not be lawful for any per- s ee 21 Geo. fon or perfons whatfoever to wear in Great Britain, in any garment or ap- 2. c. 26. parel whatfoever, any cambrick or French lawn, under the penalty of for- feiting to the informer the fumof five pounds, of lawful money of Great Britain, for every fuch offence, being lawfully convicted thereof by the oath or oaths -of one or more credible witnefs or witneiles, before any one j uft ; ce t0 fum . ■or more juftice or juftices of the peace ; which juftice or juftices is and are mon the party refpectively authorized, and ftrictly injoined and required, upon any com- accufed. plaint or information upon oath, exhibited or brought of any fuch offence committed contrary to this act, within fix days after commitment thereof, to fummon the party accufed, and upon his or her appearance or con- tempt, to proceed to examination of the matter of fact; and upon due proof thereof made, either by voluntary confeffion of the party, or by the oath or oaths of one or more credible witnefs or witneffes (which oath or oaths the laid juftice or juftices is and are hereby refpectively impowered and required to adminiiter) to hear and determine the fame ; and upon fuch conviction, to caufe the faid penalty, by warrant under his or their hand and feal, or hands andfeals refpectively, to be levied by diftrefs and Penalty to be fale of the offenders goods and chattels, rendering the overplus (the char- levied by di- ges of fuch diftrefs and fale being firft deducted); neverthelefs it fhall be ftrefs and fale - lawful for the party aggrieved, to appeal to the juftices of the peace at Appeal to the the next general quarter- feffions to be holden for the count}-, city, riding quarter-fef- or place, where the faid offence or offences fhall have been committed, flons ; giving fix days notice at kaft of fuch appeal to the profecutor or profecu- giving fix tors ; which juftices, at fuch general quarter-feffions, are hereby autho- days notice, nzed and impowered to hear and determine the fame, whole determina- tion fhall be final." 'Seel. 2. " And be it further enacted by the authority aforefaid, That if Sellers of any perfon or perfons fhall, from and after the faid twenty-fourth day of cambrick to yuns one thoufand feven hundred and forty-eight, vend, utter, fell or lt > expofe to fale any cambricks or French lawns, made or not made up, fuch perfon or perfons fo vending, uttering, felling or expofing the fame to fale (except for exportation only) and fhall thereof be convic- Vol. I. N° XXII. 3 X ted, 522 Cambtfcttg* ted, fhall forfeit and pay the fum of five pounds, to be recovered and le- vied as aforeiaid." The perfon Se£l. 3. " Provided always, and it is hereby declared, That if any per- weanrg cam f on or p er f on s fhall, from and after the faid twenty-fourth day of June nc b 1 co one t j lou f an j feven hundred and forty-eight, be proiecuted by this aft for venng the .. 1 1 • 1 r^i, feller, (hall be wearing in or on any garment or apparel, any cambncks or trench lawns, difcharged. and fuch perfon or perfons fhall dilcover upon oath, before any one or more jufticeor juftices of the peace, the perfon or perfons who fold fuch cambricks or French lawns to fuch perfon or perfons fo wearing the fame, fuch perfon or perfons fo difcovering as aforeiaid, fhall be, and is and are hereby freed and difcharged of and from all and every fuch penalties and forfeitures, as aforefaid, for wearing fuch camb icks or French lawns ; and the perfon and perfons, fo felling fuch cambricks or French lawns to fuch perion or perfons as fhall wear the fame, fhall be liable to the penalties and forfeitures herein before laid and inflicted -, and the fame fhall be re- covered and levied, and difpofed of in fuch manner, as the penalties and forfeitures which are inflicted by this act; for wearing of cambricks and French lawns." No cam- Seel. 4. " And it is further enacted by the authority aforefaid, That, bricks, Esfa. from and after the tenth day of May one thoufand feven hundred and for- to b * im P ort- ty five, no cambricks or French lawns fhall be admitted to be imported or made that entered into any port of Great Britain, until after proof upon oath fhall they are the have been made by the importer, or if a Quaker, by affirmation, at the propery of time of entering the fame, before the proper officer or officers of the cu- his m .jetty's ft orns a t the port of importation ('which oath or affirmation fuch officer or Je officers are hereby impowered and required to adminifter) either that the If any alien fame are the fole property of the importer, or of fome other of his majefty's hath intereft fobjects, and that no alien or foreigner hath any property, intereft or therein, proof concern vvhatfoever therein ; or otherwife, if any alien or foreigner hath that they were anv intereft or property therein, then, and in that cafe, proof fhall be Shipped for given by the importer, to the fatisfaction of the aforefaid officers of his importation majefty's cuftoms, that the fame were really and bona fide fhipped in order before May f or dj rec t importation into Great Britain, on or before the faid tenth day »°. '74v f jtf a y one thoufand feven hundred and forty-five." No foreign &&' 5- " ^ nc * ^ e lt f l,rtner enabled by the authority aforefaid, That cambricks to from and after the firft day of Auguji one thoufand feven hundred and be imported, forty-five, it fhall not be lawful for any perfon or perfons whatfoever, to import or enter into any port of Great Britain, any foreign cambricks or French lawns, unlefs bills of loading be produced for the fame, or fuch other proof or evidence be given to the commiffioners of his majefty's cu- ftoms, or to the chief officer or officers of the cuftoms at the port of im- portation, as they fhall think fufficient or require, that the faid cambricks or French lawns were really and bona fide fhipped for direct importation in- to Great Britain, on or before the faid firft day of Auguji one thoufand feven hundred and forty five." Conditions on Sett. 6. *i Provided always, That it fhall and may be lawful to import which cam- or enter into any part of Great Britain, after the firft day of Auguft one bricks, &c. thoufand Cauvbtfcttg. 5^3 thousand Seven hundred and forty-fix, any cambricks, Frtnch lawns, or may be to- other linen whatfoever, of the kind ufually entered under the denomina- po«td, tion of cambricks, upon the importer making oath, or if a Quaker, affir- mation, that they are intended for exportation only, and that they are on proof that really and bona fide the property of the importer, or of ibme other of h»j252w- majefty's Subjects, and that no alien or foreigner hath any intereft or pro- perty therein > and alfo upon the laid importer giving fufficient fecurity by and fecariqr bond, to the fatisfaction of the commiffioners of the cu Horns, or the chief g™^* 1 ^ officer or officers thereof, at the port of importation, for the ufe of his ex ^ rted in majerty, his heirs and fucceflbrs, in double the value of the goods fo im- , ye4rs> ported, fuch value to be afcertained by the oath or affirmation of the im- porter as aforefaid ; and which bonds, oaths and affirmation reflectively, the proper officers are hereby authorized and required to receive and ad- minifter, for payment of the fum of five pounds for each and every piece of fuch cambricks and French lawns, which ffiall not be exported out of this kingdom, within the term of three years, after the entry of the fame •, any thing to the contrary in this prefent act in any wife notwithstand- ing." °Secl. 7. " Provided alfo, That in cafe any piece or pieces of cambrick Jj'^^jj or lawn fo imported as aforefaid, fhall by fire, or any other unavoidable ,/y e ^'^ accident, be loft or deftroyed, then and in that cafe, and upon making penalty, proof of fuch lofs, to the fatisfaction of his majefty's commiffioners of the cuftoms, or of the chief officer or officers thereof, at the port of im- portation, the faid commiffioners, or chief officer or officers, are hereby authorized and required to remit to the faid importer the faid penalty of five pounds, payable for each and every piece not fo exported as afore- faid ; any thing to the contrary in this prefent act in any wife notwith- standing." Sltflt. 21 Geo. 2. c. 26. [A. D. 1748. Intituled] " An ad for explain- ing, amending and enfoicing an act made in the eighteenth year of the reign of his prefent majefty, intituled, An acl for prohibiting the f Fearing and Importation of cambricks and French lawns." " Whereas by an aft made in the eighteenth year of the reign of his l8 Q e0 2j prefent maiefty (intituled, " An act for prohibiting the wearing and im- c. 36. portation of cambricks and French lawns,) it is (amongft other things) enacted, That from and after the twenty-fourth day of June, which (hall be in the year of our lord one thoufand feven hundred and forty-eight, it fhall not be lawful for any perfon or perfons whatfoever to wear in Great Britain, in any garment or apparel whatfoever, any cambrick or French lawn, under penalty to the informer of five pounds of lawful money of Great Britain, for every fuch offence, being thereof lawfully convicted by the oath or oaths of one or more witnefs or witneffes, before any one or more juftice or justices of the peace, to be levied and recovered as is therein directed •, And whereas it is further enafted by the aforefaid act, That, from and after the laid twenty-fourth day of June one thoufand 3X2 feveh 524 Camim'cfts. feven hundred and forty-eight, if any perfon fhall vend, utter, fell or ex- pofe to fale any cambricks or French lawns, made, or not made up, fuch perfon or perfons fo vending, uttering, felling or expofing the fame to fale (except for exportation only) who fhall be thereof convicted, mall forfeit and pay the like fum of five pounds, to be recovered and levied as aforefaid : And whereas it is further provided and declared by the faid act, That if any perfon fhall, after the faid twenty-fourth day of June one thoufand feven hundred and forty-eight, be profecuted for wearing fuch cambrick or French lawn, and fuch perfon fhall difcover upon oath, be- fore any one or more juftice or juftices of the peace, the perfon or per- fons who fold fuch cambricks or French lawns to fuch perfon wearing the fame, fUch perfon fo difcovering as aforefaid', fhall be and is thereby difcharged from all penalties and forfeitures inflicted by the faid act •, and that the perfon or perfons fo felling fuch cambrick or French lawns,, fhall be liable to the penalties and forfeirares laid and inflicted by the faid act: And whereas fome doubts have arifen, or may arife, whether by the words of the faid recited' act any penalty can be inflicted', either upon the wearer of any fuch cambrick or French lawn, who fhall difcover the vender or feller thereof, or upon the vender or feller fo difcovered by the wearer thereof, in cafe it mail appear that: the faid cambrick or French lawn was fold to fuch wearer, previous to the aforefaid twenty-fourth day of June ' one thoufand feven hundred and forty-eight •, by which means fuch cam- bricks and French lawns may happen to be worn for a great number of years, without any penalty whatfoever laid or inflicted, either on the wearer or feller thereof, contrary to the true intent and meaning of the faid act, fo evidently advantageous to this kingdom : And whereas it may be difficult for many perfons to afcertain upon oath, where or from ■whom fuch cambricks or French lawns were bought, which have been for any confiderable time in their pofleflionj For the avoiding therefore of all fuch doubts and difficulties as aforefaid, Be it enacted and declared j and it is hereby enacted and declared by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That if any perfon or perfons, who after the twenty-fourth Perfons profe- j a y f J une , one thoufand feven hundred and forty-eight, and before the cutedfor twenty-fifth day of March one thoufand kven hundred and forty-nine, brkk^produ- ma ^ be profecuted for wearing in or on any garment or apparel, any c^ni- cingproofthat bricks or French lawns, fhall make an affidavit, or bring fufficient proof, the fame was or by t h e oath or affidavit of the hufband or wife of the party accufed,' or bought before ^ t he oath or affidavit of any other credible perfon, before one or more ttiiTdif juftice or juftices of the peace, that- the fame was bought on or before charged. the twenty-fourth day of June one thoufand kvcn hundred and forty- eight, fuch wearer fhall be and is hereby difcharged from any penalty or forfeiture inflicted by the faid act. The vender Set! 2. " And be it further enacted by the authority aforefaid, That conviflid of ac anv t j me £ ro{r) anc j a f ter tne twenty-fourth day of June one thoufand farick g a"er" *" even nu "dred and forty-eight, if any wearer of cambrick or French lawn €ambjfcft& 525 lawn, who fhall be profecuted by virtue of the faid in part recited act 24 June for wearing the fame, and who (hall have purchafed the fame after the '7*8. to ba twenty-fourth day of June one thoufand feven hundred and forty-eight, ]lMe - fhall difcover, to the fatisfaction of the juftice or juftices, the vender or feller of fuch cambrick or French lawn, and likwife that the fame was fold by fuch vender or feller after the faid twenty-fourth day of June one thoufand {even hundred and forty-eight, (b as fuch vender or feller be convicted, and become liable to the penalties and forfeitures laid and in- flicted by the faid aft, then, and nototherwife, fuch wearer fo profecuted fhall be and is hereby difcharged from any penalty or forfeiture laid or in- Aided by the faid act ; any thing in this or in the faid act to the contrary notwithstanding. Seel; 3. " And it is hereby further enacted by the authority aforefaid, Penalties toga That whenever any perfon informed againit for wearing fuch cambrick or to tiie in(or " French lawn fliall be exeufed from the penalty by difcovering the vender or mer " feller thereof, the penalty to be levied and inflicted on fuch vender or feller, in every fuch cafe, fhall go and belong to the perfon who informed againll the wearer thereof. Seel. 4.. " And whereas- the penalties, to which wearers of cambricks or French lawns are made fubject, either by the faid former law, or this prefent act, cannot, in cafe the perfon convicted be a feme covert, be levied by law on the goods and chattels of her hufband, by means of which the intent of the faid former and of this prefent act may happen to be evaded : For cu e r "* ,"" in " remedy thereof, be it further enacted by the authority aforefaid, Tftatf f eme a ^ at in all cafes where the offender fhall, at the time of the offence committed, to be levied on or at the time of the conviction, happen to be a feme covert, living with the goods of her hufband, the penalties which fhould be levied on the goods and chat- the hufl>and - tels of fuch offender, in cafe fhe had been then unmarried, fhall and may be levied On the goods and chattels of her hufband ; any law to the con- trary notwithftanding. SeH. 5. " And be it further enacted by the authority aforefaid, That if Milliners any milliner, fempflxefs, or other perfon whatlbever, fhall for hire, from making up and after the laid twenty-fourth day of June one thoufand feven hundred " a ^'j cks ' and. forty-eight, make up any cambrick or French lawn for, in or upon penalties. any garment or wearing apparel, fuch milliner, fempftrefs, or other perfon, fhall be liable to the like penalties and forfeiture 1- , as the fellers of cam- brick or French lawn are liable to, by virtue of the faid act of the eigh- teenth year of his majefty's reign, to be profecuted and levied ; and the faid penalties and forfeitures to be applied in the like manner, as the feve- ral penalties and forfeitures are directed to be profecuted, levied and ap- plied by this or the faid in part recited act. Sctl.6. " And be it further enacted by the authority aforefaid, That in Quaker's affir. all cafes wherein by this act an oath is required to be made and taken, the mation to b folemn affirmation of any perfon, being a Quaker, fhall and may be ac- taken - cepted and taken in lieu thereof ; and that every inftance of wilful and corrupt falfe affirminp- iball fubject fuch perfon to the fame penalties and f™ "2 ° f - forleitures, as he would by law have been liable to, 1. the lame matter had been declared upon oath or affidavit directed by this act." ©tat. £ 526 Cambjt'cfeS. ©tat 32 Geo. 2. e. 32. [A. D. 1758. intituled] "An act for the more effectual preventing the fraudulent importation of cambricks and French lawns." "Whereas the acts made in the eighteenth and twenty-firft years of the reign of his prefent majefty, for prohibiting the wearing and importation of cambricks and French lawns, have not been effectual to prevent the fraudulent importation thereof-, therefore, for the amending and enforcing the faid acts, Be it enacted by the king's mod excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and com- mons, in this prefent parliament affembled, and by the authority of the No cambricks fame, That from and after the firft day of Augufi one thoufand feven or French hundred and fifty-nine, no cambricks, French lawns, or other linens what- imported but foever, of the kind ufually entered under the denomination of cambricks, in bales, &c. fhall be imported, or brought into any port or place whatfoever within covered with Great Britain, unlefs the fame be packed in bails, cafes or boxes-, covered cloth, con- vv j t h f ac k c i th or canvas, each of which bales, cafes or boxes fhall contain ^o" "whole one hundred whole pieces, or two hundred demi or half pieces of fuch pieces, or 200 cambricks or French lawns." Half pieces ; Sett. 2. " And be it further enacted, That in cafe any cambricks or on penalty of F ranc h lawns fhall be imported in any other form or manner, or in any lefs forfeiture quantity, than is herein before mentioned and allowed, in each and every of the faid cafes, the cambricks or French lawns fo imported, or found on board any fhip or veflel in this kingdom, fhall be forfeited, and fhall and may be feized by any officer or officers of the cuftoms." The fame to Sell. 3. "And be it further enacted by the authority aforefaid, That,, be imported from and after the faid firft day of Augufi one thoufand feven hundred and for exporta fifty-nine, cambricks and French lawns fhall be imported for exportation tI0 " °, nl J' e a d n only, and fhall be lodged in fuch warehoufe belonging to his majefty, his in the king's heirs and fucceffors, as the commiffioners of the cuftoms, or any three or warehoufes, more of them, for the time being, fhall appoint ; and fhall not be delivered and delivered out f f uc h warehoufe, but under the like fecurity and reft.ri6r.ions as Eaji out under like ^i- gooc ] s prohibited to be confumed in Great Britain, are now liable fecurity and „ ° ^ prohibited Sett. 4. "And be it further enacted by the authority aforefaid, That' Eail India from and after the faid firft day of Augufi, there fhall be no cuftoms or goods- duties whatfoever paid, or fecured to be paid, for any cambricks or French ldfubfidV C ' awns imported, or which fhall be imported, and depofited in fuch ware- payable only houfe as aforefaid, other than one half of the old fubfidy, which is to remain upon the im- by law, after the goods are exported again." portation. Sefl. 5. " And be it further enacted by the authority aforefaid, That all fhJnb S i°n° H- anc ^ evei 7 perfon and perfons having in their cuftody any cambricks or vate cuftody, French lawns imported before the faid firft day of Augufi, for the exportation are to be de- whereof, within the time limited by the law, bond has been given, fhall, pofued by 1 on or before the firft day of Augufi next, bring and depofit, or caufe to be Auguft next in brought and depofited, all fuch cambricks and French lawns, in fuch Warelufufes ; warehoufe as fhall be approved of by the commiffioners aforefaid for that purpofe i Cam Wefts. 527 purpofe -, and upon the depoficing of fuch goods in fuch warchoufe as and (he Bonds aforefaid, the bonds for the exportation thereof fhall be delivered up to thereupon to the peribn or perfons who gave the fame, or his or their heirs, executors, bt deiivere<1 adminiftrators or aligns, who fhall likewife receive at the fame time from ^ th . the collector, or other proper officer of the cuftoms at the port where fuch back upon ex- bond was given, all the duties which fuch goods would be intitled to draw portion to be back upon exportation : And fuch goods fhall not be again delivered out P aid > of the faid warehoufe but for the exportation thereof, in like manner and thl f s ° , d * as if the fame had been dcpofited therein at the importation : And in cafe ve-ed out a- " any perfon or perfons fhall fell, offer or expofe to fale, or after the faid gain but tor firftday of Atigujl have in his, her or their cuftody or pofTefTion, for that e *P°"atioo. purpofe, any cambricks or French lawns (other than in fuch warehoufe as < -'" oas **- fhall be approved of by the faid commiffioners as aforefaid) the fame fhall o?four° \ *' be forfeited, and fhall be liable to be fearched for and feized in like man- private pof- ner as other prohibited and uncuftomed goods are •, and every fuch perfon rdfionj after fhall alfo forfeit two hundred pounds, over and above all other penalties ,he laid . da y» and forfeitures inflicled upon fuch perfon or perfons by any former " n a J eltl » «*". fender to for- Sefi. 6. " And be it further enacted by the authority aforefaid, That if frit 200I. ex- any doubt or queftion fhall arife with refpect to the fpecies or quality of the tra \ faid goods feized by virtue of this act, or where the fame were manu- n GOubts factured, the proof fhall lie on the owner or owners thereof, and not upon the fpecies or the profecutor ; any law, cuflom or ufage to the contrary notwithftand- quality, £sr#. ino-. of the goods, Sett. 7. " And be it further enacted by the authority aforefaid, That all °?' t roiamB the goods feized by virtue of this aft, or any other caufe of forfeiture, fhall owner " upon feizure thereof be carried to the next cuftom-houfe, and after con- Goods feized demation in due courfe of law, fhall not be confumed or ufed in this kin°-- t0 be carried dom, but fhall be exported •, and fhall not be fold or delivered out of fuch to ' he next warehoufe, otherwife than on condition to be exported, nor until the buyer ^j "?' ° 1 n 11 1 • c ■ r 1 • i r , J , and a,ter con " or buyers fhall have given fecunty for the exportation thereof, and ob-dennation, to- ferving all the regulations and reftrictions prefcribed for the exporta- be exported. tion of Eaft India goods prohibited to be confumed or ufed in Great Britain." SeH. 8. " And be it further enacted by the authority aforefaid, That all Recovery and the penalties and forfeitures by this act impofed, fhall and may be fued a PP Ilca " on o£ for and recovered in any of his majefty's courts of record at IVeJiminJier, or x e P ena " ie5> in the court of Exchequer at Edinburgh^ refpectively, by action, bill, plaint or information, in the name of his majefty's attorney general, or in the name of his majefty's advocate in Scotland, or in the name or names of fome officer or officers of the cuftoms ; and that one moiety of every fuch penalty and forfeiture fhall be to his majefty, his heirs and fucceflbrs, and the other moiety thereof to fuch officer or officers of the cuftoms who fhall feize, inform or profecute for the fame." U pon a a,on» Seil. 9. "And be it further enacted by the authority aforefaid,. That entered for upon every action, bill, plaint or information entered and filed as afore- P ec u"'"y pe- J faid naltles ' aca " 1 iai %iasinthefim procefs to be 528 Camtyttfes* and the de- faid, for any pecuniary penalty impofed by this act, a capias in the firii fendantsmay procefs (hall and may ilfue, i'pecifying the fum of the penalty fued for ; gwe bail ar ,j t i ie defendant or defendants fliall be obliged to give fufficient bailor thereto, tsc. f ecur ; t y ^y na tural-born fubjects or denifons, to the perfon or perfons. to whom fuch capias (hall be directed, to appear in the court out of which fuch capias ihall ifiiie, at the day of the return of fuch writ, to anfwer fuch fuit or profecution ; and (hall likewile, at the time of fuch appearance, give fufficient bail or fecurity, by fuch perfons as aforefaid in the faid court, to anfwer and pay all the forfeitures and penalties incurred for fuch offence or offences, in cafe he, fire, or they fliall be convicted thereof, or to yield his, her or their body or bodies to prifon. Setl. 10. " And be it further enacted by the authority aforefaid, Thar if any- action or fuit fliall be commenced againft any perfon or perfons for G ral '(T ^Y tn ' n S done in purfuance of this act, the defendant or defendants in fuch action or fuit may plead the general iflue, and give this act, and the fpecial matter, in evidence, at any trial to be had thereupon ; and that the fame was done in purfuance and by the authority of this act: And if it (hall appear fo to have been done, then the jury (hall find for the de- fendant or defendants ; and if the plaintiff Ihall be nonluited, or dif- continue his action after the defendant or defendants fliall have appeared ; or if judgment (hall be given upon any verdict or demurrer againtt the plaintiff; the defendant or defendants fliall recover treble cofts, and have the like remedy for the fame, as defendants have in other cafes by law. Treble colls. @>tflt. 4 Geo. 3. c. 37. \_A. D. 1764. Intituled'] " An act for the better eflablifhing a manufactory of cambricks and lawns, or goods of the kind ufually known under thofe denominations, now carrying on at Winchelfea, in the county of Sujfex ; and for improving, regulating, and extending the manufacture of cambricks and lawns, or goods of the kind ufually known under thofe denominations, in that part of Great Britain called England." " Whereas the eftablilhing a manufacture of linens in England, of the FreambiC. J^ind ufually known under the denomination of cambricks and French lawns, will be of great utility to this kingdom, as well by the employment of a great number of poor, as by preventing the illegal importation of foreign cambricks and French lawns : And whereas a manufactory of cam- bricks and lawns hath been already fet up at IVincheljea in the county of Suffix, and large quantities of fuch goods have been made there, and may be made in other parts of this kingdom, equal, if not fuperior, in quality to thofe made in foreign parts; and many perfons are delirous of fubferibing large fums towards the fupport and extenfion of the (aid . ma- nufactory (for the effectual carrying on of which a large fund will be ne- ceflary), but are apprehenflve that difficulties may arife, as well in reco- vering debts which may grow due to the proprietors of the faid manufac- tury, as in defending iuits or actions which may be brought or com - 4 menced menced againft them for any matter or thing relative thereto, as, by law, all the feveral proprietors or fubfcribers to the faid manufactury mud, in fuch cafes, both l'ue and be fued, implead and be impleaded, by their feveral and diftincTt names and defcriptions; and therefore, for the more eafily carrying on the manufacture, and avoiding the difficulties aforefaid, are defirous of being incorporated and having a common feal and name by which they may fue and be fued ; and many perfons are defirous of fubfcribing large turns thereto, but are deterred from lb doing, left they may thereby become liable, in cafe the faid manufactury fhould not be fuccefsful, to pay large fums of money over and above the fum by them fubfcribed, to make good the debts to be incurred therefrom ; and many perfons who are not now liable to become bankrupts, within the in- tent and meaning of any of the laws now in force concerning bankrupts, are likewife fearful of fubfcribing money to carry on the faid manufac- ture ; as, by becoming fubfcribers to and part-owners thereof, they may be liable to have commiffions of bankrupt ifiued againft them as traders : and whereas fome doubts have arifen, whether fuch cambricks and lawns, fo made and fabricated in England, can, confident with the laws now in being relating to cambricks and French lawns, be legally fold, difpofed of, and ufed in Great Britain ; may it therefore pleafe your majefty that it may be enadfed ; and Be it enadled by the king's moft excellent majefty, by and with the confent of the lords fpiritual and temporal and commons, in this prefent parliament aftembled, and by the authority of the fame, That it (hall and may be lawful to and for any perfon or perfons whom- An >' V^oa foever, to make and vend, or caufe to be made and vended, all fuch linen "i7cambrickf goods called cambricks or lawns, or goods of the kind ufually known by a nd lawns in or under either of thofe denominations, as (hall be made in this kingdom, this kingdom, and (lamped in the manner herein after direcled ; and that fuch lawns or cambricks, or other fuch like goods fo made and (lamped, may be ex- pofed to fale, and worn by any perfon or perfons in this kingdom ; any law, ufage or cuflom to the contrary notwithftanding. Se£f. 2. " And whereas the fole right and prerogative of granting char- ters of incorporation (not being fuch as are repugnant to any law or ftatute of this kingdom) doth belong to your majefty; Be it therefore enacVd by the authority aforefaid, That it mall and may be lawful to and for his The king may majefty, his heirs and fucceflbrs, by one charter, indenture, or letters incorporate patent, under the great feal of Great Britain., to declare and grant, That tne P er <"° ,is the right honourable the earl Verney in the kingdom of Ireland, the right !lhT VfenT* honourable Charles Townjhend, Sir George Colebrcoke baronet, Sir Lawrence fubfcribers) Dundas baronet, Arnold Nejbitt efquire, Peregrine Cujl efquire, George Prefcott efquire, Barlow Trecothick efquire, Gilbert Heathcote efquire, Mofes Franks efquire, mafter Edward Bridgen, mafter Benjamin Bar- nett, mafter William Grace, mafter Thomas Bidwell, and every ether perfon or perfons who fhall hereafter either in their own right, or as executors, adminiftrators, fucceflbrs or affigns, in right of any othffr perfon or perfons, become proprietors of, or interefted in, any part or (hare of the joint capital (lock or fund herein after mentioned, by the rune (ball be one diftinft. and feparate body politick and corporate, in deed and ot l he En 8* Vol. I. N?J XXIII. 3Y ^ 1 lift List n 53° Cambn'c&s. Company, in name, by the name and ftile of The Englifh Linen Company, or fuch with fuch other name as his majefty mail think proper •, and that fuch corporation power of re- fhall have perpetual fucceffion, fubject to fuch power of revocation as to vocation asto , . . n r n r „ ,. j 1 r i • n 11 i his maleily nis niajelty fnall leem meet; and that iuch corporation lhall have power, (hall leem from time to time, to chufe ten directors, and all proper officers and meet; fervants, for the better management of the affairs of the faid corpora- They may \^ on , in fuch manner, and under fuch reftrictions and qualifications, as c/s" "cif 160 " are nere ' n a ^ ter directed, or fuch as fhall be preicribed in that behalf in and by fuch charter •, neverthelefs the firft directors of the faid corpora- tion ihall and may be appointed by his majefty in and by the fame char- ter ; and that the faid firft directors fhall continue in their respective offices from the time of their appointment by his majefty, until the firft Wed- iiefday in Mdrch next after fuch appointment ; and all fubfequent directors fhall continue in their refpec'tive offices for one year from the time of their respective appointments •, and in cafe of death, removal, or disqualifica- tion, be fupplied in fuch manner as herein after is directed •, and that the faid corporation fhall and may have and ufe a common feal for the bufi- nefs only of the faid corporation ; and fuch feal, from time to time, may break, change, make new or alter, as fhall be found moft expedient •, and purchafe and that the faid corporation fhall be able and capable in law, to purchafe, lands, lsc. take, and enjoy, melTuages, lands, tenements or hereditaments, not not excec v>g exceet jj n g t [ ]e value of five hundred pounds per annum, and to grant, cool p:r an- alien, demife, or difpofe of, the fame, or any part thereof, at their free num; wills and pleafures •, and in their corporate name, fhall be able and capable in law, to fue and implead, be fued and impleaded, anfwer and be an- may Aie and fwered, in any court of record, or eliewhere, in all caufes and actions be iued ; whatsoever, for, touching or concerning, fuch corporation, or the manu- faclury by them carried on as aforefaid. and may raife Sett. 3. " And be it further enacted by the authority aforefaid, That it a capital, not fhall and may be lawful to and for fuch corporation, when conftituted, exceeding tQ - ra j{- e a capital joint ftock, to be applied for the carrying on the faid ma- ico,oo . n ufacture, and effecting the purpoles of the faid charter, not exceeding one hundred thoufand pounds of lawful money of Great Britain, at fuch times, and in fuch proportions, as at any general court or courts of fuch corporation, to be holden purfuant to the directions of this act, or of fuch charter, fhall be directed, either by taking fubferiptions from parti- cular perfons (being or not being members of fuch corporation) for ad- vancing money for that purpofe, according to the orders of fuch general courts reflectively, or by calls of money from the members of the faid corporation for the time being, or fuch other methods as the faid ge- neral courts fhall think expedient for making up the faid capital ; Subfcribers anc j that all and every perfon or perfons, by or from whom any fub- mtitled to a f cr iptions fhall be accepted, or payment made, purfuant to any order or t",\a oropor- orders of the faid general courts, towards raifing the faid capital ftock, tion to their their executors, adminiftrators and affigns fhall be intitled to a fhare of Lbfcriptions, the faid capital ftock, in proportion to the money which they fhall con- tribute, and to fuch intereft thereon, and alfo to fuch fhare of the profits and advantages attending the faid capital ftock, and payable at fuch times, and in fuch proportions, as fhall be directed and agreed upon by the faid Cambtfcit& 531 faid corporation at any of their general courts ; and fuch fubfcriber ° r am j fobe fubfcribers, not being then a member or members of fuch corporati- mem bers of on, upon making their feveral fubferiptions and payments in manner the corpora- herein after directed, (hall be admitted, and are hereby declared to be, tl0I >. members thereof; which faid fubferiptions, and all other fubferiptions to the faid capital flock or fund of the faid corporation, fhall be diftinctly and feparately entered in a proper book or books to be provided for that pur- pofe, and figned by the refpective perfon or perfons making fuch fubferip- tions-, andthefums fubferibed fhall be entered in fuch book or books, in t0 be entered words at length, and alio in figures, together with the day of the month figned, and and year on which fuch fubferiptions fhall refpectively be made -, and all attefted. and every fuch fubfeription arid fubferiptions fhall be made in the pre- fence of, and attefted by, one or more witnefs or witneffes, who fhall, by order of the faid directors, have the cuftody of the faid book. Sett. 4. " Provided always, and be it enacted by the authority afore- y^ c j™ faid, That it fhall and may be lawful to and for his majefty, his heirs may grant and fuccefibrs, by warrant under his or their fign manual, from time to power to en- time, to impower fuch corporation to enlarge the capital flock of fuch lir S e theca P'- corporation, from time to time, as the affairs of the faid corporation fhall require, on the like terms and conditions with the original capital. Sett. 5. " And be it further enacted by the authority aforefaid, That Subfcribeis to all and every perfon and perfons who fhall fubferibe any fum or fums of pay a lourth money for or towards raifing fuch capital flock as aforefaid, fhall anfwer at 'betuaeof and pay all fuch fum and fums of money, which he or they fhall lb fub- a cri ing * fcribe, unto the directors of the faid corporation for the time being, or to the cafhier of the faid corporation for the time being, or to fuch other perfon or perfons who (hall be authorized to receive the fame in manner following ; that isr'to fay, one fourth part (the whole in four equal parts being divided) of every fuch fum fo fubferibed, fhall be paid down at the time of making; each fubfeription : and the remaining; three fourth n ■ , . /• l • j • /- i_ • S mairder at parts thereof at fuch times, and in fuch proportions, as any court or f uch callsas courts of directors of the faid corporation fhall think proper to call for or th« direflors demand the fame ; notice of every fuch call or demand having been firft fta " appoint. published in the London Gazette, ten days at leafl before the day limited lf** y f n °l\T and appointed for the making of any payment, purfuant to any fuch call toberublifhed or demand: and if any perfon or perfons, who fhall have fo fubferibed in the London as aforefaid, do not pay down one full fourth part of all fuch fum or Gazette, fums as he or they fhall fubferibe, upon or at the time of his or their fub- V 1 " ne g !f ft of fcription, then every fuch fubfeription, without fuch payment, fhall be fubf^ptjon to utterly void and of none effect •, and if any perfon or perfons, who fhall be void ; have fubferibed, as aforefaid, his or theirexecutors, administrators oralTigns, and on negleft having paid, in manner aforefaid, any part or parts of the fum or fums fo of f u b :e q uer, t by him or them fubferibed, fhall make default in any of the fubfequent F/!,^ 1 ^ 111 ,'' ' • 1 u 1 • ii- - • 1 bait or ther.rlt payments which fhall be called tor or demanded, in manner afoieiaid, for to be forfeited, the fpace of ten days after the time or times in fuch notice or notices, as ts'c aforefaid, limited and appointed for the payment of fuch calls refpec- tively ; then, and in every fuch cafe, one moiety or half part of the firft fum paid by fuch perfon or perfons, or his or their refpective fubfeription, 3 Y 2 fhall 53 Directors to appoint a fcoufe in or near London or Weftmin- fier to tranf- aft their bu- finefs. Directors to be a court, and nominate all officers and fervants ; Cantfm'c&£ fhall be loft and forfeited to the faid corporation ; and the ftiare or intercft of all and every fuch perfon or perfons fo making default of and in the capital ftock of the faid corporation, and the intereft and profits which he or they would otherwife have been intitled to receive therefrom, fhall be reduced, leffened, or proportioned, according to the money actually paid upon every fuch fubfcription refpettively, after an abatement or de- duction of one moiety or half part of the firft payment to be forfeited as aforefaid. Seel. 6. " And be it further enacted by the authority aforefaid, That it fhall and may be lawful to and for his majefty, in and by fuch charter, to impower the court of directors of the faid company or corporation for the time being, and fuch court of directors fhall and may, from time to time, fix upon and appoint a proper place or houie in or near the cities of London or IVetfmin&er, for the tranfacting the affairs and bufinefs of the faid company, and that the directors in the faid charter named, and their fuccefibrs, or any five or more of them, fhall be and be called 3 court of directors, and have full power and authority to act as fuch -, and that it fhall and may be lawful to and for the faid court of directors to meet as often as they fhall think neceffary or proper •, and they are hereby authorized and impowered to nominate and appoint fuch officers and fer- vants, or other perfons, as fhall be any ways neceffary to be employed in the management and carrying on the affairs of the faid company, and from time to time to difmifs fuch officers and fervants from their employ, and nominate and appoint new ones in their (lead or fteads, or to encreafe or leffen their number, as fuch court of directors fhall from time to time think proper, and to give fuch orders and directions for the manage- atvd to take apprentices, ment of the affairs of the faid corporation as they fhall think proper, and are confident with the general rules and orders made by the faid corpora- tion-, and to take, from time to time, any number apprentices to be employed in the manufactury carried on by the faid company, upon fuch terms and conditions, and for fuch number of years, as to them lhall feem meetj and to affix the common feal of the faid corporation to 3 counter-part of the articles of agreement, or indentures of apprencefhip, made with fuch apprentices reflectively, their parents, guardians or other perfons authorized to put out and bind fuch apprentices reflectively. • Seel. 7. " And be it further enacted by the authority aforefaid, That A genera! an- t h er e fhall be one general annual court of the faid corporation, held on Bual COBrt ° the firft JVednefday in March in every year, and as many other general Wednefday in courts as fhall be neceffary •, which faid general courts fhall be held at any March, fer houfe or place in the cities of London or Wejiminjler., which fhall be ap- eftaing di- pointed by the faid couit of directors ; of which laid general court, or any other general courts to be called by any court of directors of the faid company, and which general Courts fuch directors are hereby authorized to hold and call as often as fuch court of directors fhall think the fame neceffary, ten days notice at the leaft fhall be given in the London Ga- zette; and that faid general court, held on the firft JVednefday in March yearly, fhall be chofen out of and from the members of the faid corpo- ation, by the majority of votes of all the members then prefent. Sttl. reAors. Camfyictt*. 53 3 Seff. 8. " And be it further ena&ed by the authority aforefaid, That no Qualification* pcrfon (hall be capable of being elected into, or exerciiing the office of, a of director*, diredtor of the faid corporation but under the qualification following, (that is to fay) That the directors of the faid corporation fhall feverally be pofTefied of a (hare or intereft in the faid flock in their own right re- fpe&ively, not lefs than five hundred pounds capital ; and that the directors fhall not continue in their refpedtive offices any longer than they fhall refpeftively continue to be poffefled of the faid fhare and intereft in the faid capital flock, in his or their own name and right refpeftively ; and that no perfon fhall be qualified to vote at any general court, who fhall not then be pofiefied of a fhare or intereft in the faid capital flock, to the amount of two hundred pounds at the leaft in his own right ; and that fuch perfon, and voters, who in his own right fhall be pofTefied of five hundred pounds capital and the num- flock, fhall have two votes at fuch general court; and that fuch perfon berofvote* who fhall be poffeffed in his own right of one thoufand pounds capital [^ m3y flock, fhall have three votes at fuch general court ; but no perfon fhall have more than three votes upon any account whatfoever ; and if fuch fhare or intereft of any proprietor in the faid capital flock fhall be at any time afterwards diminifhed from the proportion herein before afcertained, that then the fame fhall be no longer a qualification for voting in any general court." Seel. 9. " And be it further enafled by the authority aforefaid, That all Members vo- proprietors fhall, (if required) before they vote at any court, take an oath t,n g» t0 <*'«* in the form which fhall be approved of by a general court, to be admi- < 0,neir 9. ua, >- niftered to them by one of the directors (who are hereby authorized and [*<— «-,/ ' impowered to adminifter the fame, or to direct fuch oath to be admini- flered by any other perfon or perfons in his or their prefencej declaring their property, fhare, or intereft in the capital ftock of the faid corporation, and the quantum thereof, and that the fame, or any part thereof, is not in truft for any other perfon or perfons, and that no perfon fhall be admitted to vote at any fuch court who fhall refufe to take fuch oath ; and all offi- officers &c. cers and fervants of the faid corporation fhall, if required by the court of to be fworn directors before they enter on their refpeftive offices, likewife take an »«ording to oath in the form which for that purpofe fhall be approved by a general the iot ^f' court of the faid corporation, to be adminiftered by the dire&ors of the general dm i faid corporation, or any one of them, for the due and faithful difcharge of their refpeclive offices ; which uath fuch dire&ors, or any one of them, are hereby authorized and impowered to adminifter, or direct the fame to be adminiftered by any other perfon or perfons in his or their prefence ; re f ufi or and in cafe any fuch officer or fervant fhall refufe or neglecl: to take fuch neglecling to oath for the fpace often days after he or they fhall be chofen or appointed take fuch oath to any fuch office or offices as aforefaid, if required, fuch choice or ap- {oT '.° da y*» pointment fhall be void, and a new election or appointment made. election void. Setl. 10. " And be it further enacted by the authority aforefaid, That G , the court of direftors of the faid corporation for the time being fhall be , De called 00 obliged, upon demand made to them by any ten or more members of the demandof «r- faid corporation, who fhall in the whole, or together, be pofTefied of not ,a,n fnbwi- lefs bers ; 53+ Camlufcit*. lei's than five thoufand pounds in the capital or joint {lock of the faid cor- poration, fuch demand being made in writing, and figned by the mem- bers demanding the lame, and delivered at a court of directors to any one member of fuch court then prefent, to call a general court ; and upon on refufal, fuch court of directors refufing, or for the fpace of ten days neglecting fo they may call t0 ^ t ^ e members demanding fuch court (hall be at liberty to call and themfelves ^old fuch general court, upon the like notice as fhould have been given by the faid court of directors •, and any general court, either called by the General court CO urt of directors of the faid corporation, or by any of the members or pro- may difplace p r ; etors f tne faid corporation, in manner aforefaid, fhall have full power and authority, and are hereby fully authorized and impowered to remove or difplace any director, for milbehaviour, breach of truft, or other juft caufe, and to elect a new director or directors in his or their ftead, in the fame manner as if he or they was or were dead, or had difqualified him- felf or themfelves, or his or their office, truft or employ was in any other manner become void. Sett, ii." And be it further enacted by the authority aforefaid, That li ble^toany no mem ber or members of the faid corporation, or any perlbn or perfons debt of the having the conduct or direction of the faid manufactury, his or their heirs, corporation, executors or adminillrators, lands or hereditaments, goods, chattels or further than effefts, other than his or their (hare or fhares in the capital ftock and h ' s(h ^' a 1 effects of the faid corporation, (hall be liable or fubjeft to the payment of any debt or debts contracted by or on account of the faid corporation, or the manufactury carried on by the faid corporation, in any other man- ner than is herein after directed and provided. . , SeSi. 12. " Provided always, and be it enacted by the authority afore- rate debts faid, That if the fum total of all the debts which the faid corporation fhall (hall exceed owe at any one time to any perfon or perfons, bodies politick or corpo- the value of rate? mall exceed the value of the principal or capital ftock and effects of the capital t j ie ^y c01T1 pany or corporation, which at fuch time fhall be and remain un jvi e , ^^ ^ e ^. j cor p 0rat j on undivided •, or if the faid corporation, by any divi- or if they re dend or dividends whatfoever, either in the name of intereft, or other- duce their ca- wife, to be made amongft themfelves, or in their private or perfonal capa- pital, fo that cities, fhall reduce or leffen their joint ftock, principal or capital, fo that the their ibek value of their joint (lock, principal or capital (hall not be diffident to anfwer fufficient to tne ^ r J L1 ^ debts then remaining unpaid ; in every fuch cafe the particular pay their members of the faid corporation, and every of them refpeclively, who in their debts ; private or perfonal capacities fh ill receive any (hare or dividend of the capital Perfons re- or ftock Q f the faid corporation, by which the capital ftock of the faid corpo- " IV ' ng , a " y ration fhall be fo reduced or leiTened, fhall be feverally liable, and they are which the ca- hereby made liable, fo far as their refpective fhares fo by them refpectively pital fhall be received upon fuch dividend or dividends fhall extend, to pay and fatisfy the reduced, are debts which fhall remain due and unpaid by the faid company or corporation-, . tl \\ b ! pe [ and the perfon or perfons, bodies politick or corporate, to whom fuch debts ruike^eood ma " be ( -' ue zn ^ owing, fhall and may fue for and recover the fame-, any inch deficien- thing in this act contained to the contrary thereof in any wife notwithftanding. cv, to far as the dividends they (lull have received fhall extend. Self. Camlufcit*. 535 SeSk 13. " And be it further enacted by the authority aforefaid, That Members not no perfon being or becoming a member of, or fubfcriber to the faid cor- liable to bank- poration, for carrying on the faid manufacture in purfuance of this act,_ ru P cc /» Avail, by means of becoming a member of, or fufcriber to, or in refpect of his mare or intereft in the capital ftock of the faid corporation, be, or be nor the effe(ag adjudged liable to be a bankrupt, within the intent or meaning of all or ofthecom- any of the ftatutes made againft or concerning bankrupts ; nor lhall the pany orany capital ftock or effects of the laid corporation, or the ihare or intereft of £™ ,[ iUe any particular member therein, be liable to any foreign attachment what- to io ' :etgn at _ foever ; any law, ufage or cuftom to the contrary notwithstanding." tachmenc. Sett. 14. " And be it further enacted by the authority aforefaid, That ^ the particular fhare of every member in the capital ftock or fund of the ^""J," . but faid corporation, and all lands, tenements, hereditaments, and eftates not ti]] jev ' en whatfoever, held by or in truft for them or their fucceflbrs, fhall, from time y ear s from the to time, be affignable, transferrable and devifeable ; but no member or confutation of members of the faid corporation fhall be at liberty to fell or aiTign his or Jj^JJJJ^ their {hare or intereft therein, till after the expiration of feven years, from cafe 'J dt:L \ h the time of the conftitution of the faid corporation -, but it luch member or bank . or members (hall die, or become bankrupt, then the ihare and intereft of ruptcy. fuch member or members fo dying, or becoming bankrupt, of and in the capital ftock of the faid corporation, fhall and may be alfigned and tranf- ferred by his or their executors or administrators, afiignee or affignees, at any time within the faid term of feven years, in like manner as the fame might have been done, had the faid term of feven years been fully expired j and all the right, title, intereft, claim and demand of each and every ^^^^ particular member of the faid corporation, in or to the capital ftock and ft, areSi Wc. effects whatfoever of the faid corporation, and the gains and increale to be perfonal thereof, fhall be, and be adjudged, taken, accepted, in conftrurtion of law, elites, by all judges, and in all courts of law and juftice, and in all places what- foever, to be a perfonal and not a real eftate, and fhall go to the executors or adminiftators, or other legal reprefentatives intitled to the perfonal eftate of the perfon or perfons dying pofTeffed thereof, or intitled thereunto, and not to the heirs of fuch perfon or perfons ; any law, ftatute, ufage or cuftom whatfoever to the contrary notwithftanding." Sett. 15. " And be it further enacted by the authorityaforefaid, That Forging the if any perfon or perfons fhall forge or counterfeit the common feal of the ^ *?'■ of faid corporation, to be eftablifhed in purfuance of this act, or fhall forge, t j^° c r [ °ny.' counterfeit or alter any deed, bill, bond or obligation, under the com- mon feal of the faid corporation, or fhall offer to difpofe of, or pay away any fuch forged, counterfeited or altered bill, bond or obligation, knowing the fame to be fuch, or fhall demand any money therein mentioned or pretended to be due thereon, or on any part thereof, of and from the faid corporation, or any members, officers or fervants thereof, knowing fuch bill, bond or obligation to be forged, counterfeited or altered, with intent to defraud the faid corporation, or their fucceflbrs, or any other perfon or perfons whomfoever ; every perfon fo offending, and being I convicted 536 Cambtfcfcg. convicted thereof in due form of law, (hall be judged guilty of felony, and fhall i'uffer as in cafes of felony, without benefit of clergy." Breaking into Se£l. 1 6, " And be it further enaded by the authority aforefaid, That if a (hop, &c. any peribn or perfons fhall by day or night break into any houfe, fhop, with mtent to cellar, vault or other place or building, or by force enter into any houfe, fteal or. de- ^op, ce ii ar> vault, or other place or building, with intent to fteal, cut or material o* ny dcltroy any linen yarn, or any linen cloth, or any manufact ure of linen yarn implements belonging to any manufactury, or the looms, tools or implements ufed declared to be therein ; or fhall wilfully or malicioufly cut in pieces or deft roy any fuch felony. goods, either when expofed to bleach or dry ; every fuch offender, being thereof lawfully convicted, fhall be judged guilty of felony, and fhall fuffcr as in cafes of felony, without benefit of clergy." Seff. 1 7. " And be it further enacted by the authority aforefaid, That Cambricks a jj cam bricks and lawns, or goods of the kind ufually known under either an uT»»-« of thofe denominations, which from and after the tenth day of May, now made in ung- ' ; , . ' . . -". - land after 10 next enfuing, fhall be wove or fabricated in England, or the principality or day of May Wales, fhall be marked orfealed at each end of every piece with fuch mark 1765, to be or f ea ] s anc j Dv f uc h officer or officers, as the commiffioners of excife in fealed at both Eng]and fl^jj d[reQ . Qr appo i nt f or tnat pur pofe." Commif- &"#• !%• " And for the greater eafe and convenience of the perfon or fionersofex- perfons, who fhall make, weave, or fabricate any fuch cambricks or lawns, cife, upon re- or goods of the kind ufually known by or under either of thofe denomina- q v? ft f l °] Pr °H t ' ons ' ^ e ]t enac ^ e d by the authority aforefaid, That it fhall and may be appoint ' lawful to and for the commiffioners of excife for the time being, or the officers to major part of them, from time to time, upon requeft made to them by mark the any fuch perfon or perfons, and at the expence of fuch perfon or perfons, goods ; t0 p ro vide fuch feal or marks as to them the faid commiffioners, or the major part of them, fhall feem proper-, and to direct or appoint One or more fupervifor, or other officer or officers of the excife, of the diftrict or divifion in which any fuch manufacture fliall be carried on, to feal or make each and every piece of fuch cambrick or lawn, or goods of the kind ufu- ally known under either of thofe denominations, which fhall be made, wove, or fabricated, by fuch perfon or perfons applying as aforefaid, who are to be w J t h f uc h feal or mark, or feals or marks, in manner herein after men- P a,d j? r "l ar k' tioned and directed ; and the officer or officers of excife, who fhall be fo ap- goods before pointed to mark or feal fuch goods, fhall by the fabricator, maker, wea- taken out of ver or proprietor of fuch goods, be paid for every piece of fuch goods, the loom. which he or they fliall mark or feal in purfuance of this act, before the fame fhall be cut or taken out of the loom, fuch fum as the commiffioners of excife for the time being, or the major part of them, fhall direct and appoint." Manufacturer Sell. 19. " And be it further enacted by the authority aforefaid, That to g've notice a yi and every perfon and perfons who fhall weave, fabricate, or make any thefinifhin be fo as aforefaid appointed by the commiffioners of excife, or the major ^° th ' J part of them, to mark or feal fuch goods, upon reafonable notice given to the beginning! him or them by any perlbn or perfons who fhall make, weave or fabricate and ends, and any fuch goods, that any piece of fuch goods is finifhed, fhall forthwith, or fet a number as foon as conveniently may be confident with other the duty and bufinefs of ° D eac P iece ,. _ . , ] . ' , r ,-oj 1 r-111 ir before takea his office, in manner herein before directed, mark or leal both ends or every out f tne fuch piece of goods with fuch mark or feal which fhall be fo as aforefaid ap- loom ; pointed and provided for that purpofe, and alio fix or fet a diftinct and feparate number to every piece of fuch goods before the fame fhall be taken out of the loom ; and alfo make a juft and true entry in writing, in proper . . books to be provided for that purpofe at the expence of the manufacturer a true entrjr of fuch goods, of the number fet to each piece of goods, and of the num- of the num- ber of yards which each piece of fuch goods fhall contain in length, and alfo bf rs > lengths, of the number of threads contained in the warp of each piece of fuch goods •, ? nd £ e h ni T" upon pain that every fupervifor, or other officer or officers fo appointed as ; n t j, e warp [ aforefaid, who fhall, upon reafonable notice given as aforefaid of the finifh- each piece oa ing of any piece of fuch goods, neglect or refufe to mark or feal the forfeiture of beginning and end of every piece of fuch goods in manner herein before ,o1, directed, or to fix or fet a diftinct and feparate number on each piece of fuch goods, or to make a true and juft entry in manner aforefaid, of the number fet or affixed to each piece of fuch goods, and of the number of yards which each piece thereof fhall contain in length, and alfo the number of threads contained in the warp of each piece of fuch goods, fhall, for every fuch refufal or neglect, forfeit the fum of ten pounds." Sett. 21. " And be it further enacted by the authority aforefaid, That 9 ffice " mark * if any fuch fupervifor, or other officer or officers of the excife, who fhall in g cambnck$ be fo appointed to mark or feal fuch cambricks or lawns, or who fhall ma d e , n £ n£ . have the cuftody of any mark or feal which fhall be fo provided and ap- land, pointed to mark or feal fuch goods, fhall therewith mark or feal any cambricks or lawns, or goods of the kind ufually known by or under Vol. I. N:ifh port of London from any parts beyond the feas, except in Britijli ihips na- ( ? 5 nav 'g a vigated according to law •, and except notice be firft given to the com mil- 10 ] aw . ' mg fioners of his majefty's cuftomsof the fpecies, and quantity, and maiks of Notice thereof the packages, of fuch cambricks and French lawns, and the name of the all ° b,«««g firft fhip in'which the fame are intended to be imported •, and a licence given g ,ven f° 11 1 • 1 • yV „ ■ . J , ■ .are liable to lawns fhall be imported into Great Britain contrary to the true intention forfeiture to- of this aft, or without fuch licence as is herein before directed, fuch gether with goods, with the package containing the fame, together with the fhip or lhe veffel. vefTel in which the fame fhall be imported, fhall be forfeited and loft, and fhall and may be feized and profecuted as herein after mentioned ; any law, cuftom or ufage to the contrary notwithftanding. Seel. 3. " Provided always, That no fuch licence fhall be granted for Licence to be the importation or landing of any cambricks or French lawns in any other reilrained to package, or in any lefs quantity, than is directed and allowed by the laft , P acka S e » recited act of the thirty-fecond year of the reign of his late majefty king prefcTibed'b * George the fecond. aft 32 G. 2. Seel. 4. " And it is hereby further enacted, That fuch licence fhall be and to be de- produced and delivered up by the mafter or perfon taking charge of the )ive red up by fhip wherein fuch cambricks or French lawns fhall be imported, together li e marter ' with the marks, numbers, and contents of each package, endorfed on the the back thereof, to the collector and comptroller of the cuftoms, at the ** the time of time of entering and reporting fuch fhip, on the forfeiture of one huh- enter "'g a "d dred pounds •, and fuch cambricks and French lawns fhall, upon landing, vefl°] s "^ s j f be warehoufed under the like rules, regulations, and reftrictions ; and fhall goods' to be not be afterwards delivered out of fuch warehoufe, but on condition to be warehoufed ; exported to fome of the Rritijh colonies or plantations in America, under an( * delivered the like fecurities and reftrictions as are exprefled and directed in the fai d out e ^F°i> laft recited act of the thirty-fecond year of the reign of king George the fe- cond, and upon payment of the fame duties as they are now liable to by law. Sc3. 5+4 Cambn'cks. No cambrick Sett. 5. " And be it further enacted by the authority aforefaid, That or lawn to be from and after the twenty-fourth day of "June one thoufand feven hundred im P°" edfr ° m and fixty-eight, no cambrick or lawn whatfoever (ball be imported from thelmporta- tne kingdom of Ireland, into any part of Great Britain, until the impor- tion of cam- tation of cambricks and French lawns into the kingdom of Ireland fhall be bricks and prohibited by law ; upon pain of forfeiting the faid goods, and the further French lawns p ena i f um f five pounds for every piece of cambrick or lawn fo im- into that r „i » , . , . ported. prohibited by Se&. 6. " And be it further enaded by the authority aforefaid, That law. from and after the faid firft day of July one thoufand feven hundred and Veflels from fixty-feven, where any (hip or velTel whatfoever coming or arriving from foreign parts foreign parts, and having on board any cambrick or French lawns, with- found hover- out fuch licence as is herein before directed, fhall be found at anchor, or jngon the hovering within the limits of any of the ports of Great Britain, or within ha* ' on two l ea o ues °f tne fhore, or fhall be difcovered to have been within the li- board any niits of any port, and not proceeding on her voyage, wind and weather cambrick or permitting, (unlefs in cafe of unavoidable neceffity and diftrefs of weather, French lawns, f wn j c h neceffity and diftrefs the mafter, purler, or other perfon, having not hcenfed, or ta ki n g tne charge or command of fuch fhip or veffel, fhall give notice to, and make proof of before, the collector or other chief officer of the cuftoms of fuch port as aforefaid, immediately after the arrival of fuch ihip or veffel into the faid port), all fuch cambrick or French lawn, together with the chefts, boxes and other package whatfoever, containing the the fame goods, and the fhip or veffel on board which the fame fhall be found, or the value thereof, fhall be forfeited and loft (whether bulk are liable to fhall have been then broken or not), and the fame goods and package forfeiture, q^jj anc j may ^ e j" e j zec j anc ] p ro fecuted, or the value thereof be thTgoods^ recovered, by any officer or officers of the cuftoms or excife, in manner herein after mentioned-, any law, ftatute or cuftom to the contrary not- wichftanding." Foreign cam- &#_ ^ « And be it further enacted by the authority aforefaid, That F h°l from and after the firft day of July one thoufand feven hundred and fixty- found in pof-' feven, if any foreign cambrick or French lawn fhall be found in the poffef- feflion of any fion of any hawker, pedler, or petty chapman, fuch hawker, pedler, or hawker or petty chapman, fhall not only forfeit fuch foreign cambricks and French P h?' er ' r f" lawns, but alfo all the other goods contained in the pack where fuch ture 'with all g°°ds fhall be found ; and fhall alfo be adjudged to have forfeited his li- the 'other cence." goods in the Seel. 8. " And be it further enacted by the authority aforefaid, That pack. forthwith, after the feizure of any fuch cambricks or French lawns, or as foon Goods feifed after as conveniently may be, the fame fhall be fent to, and depofited in, one tobedepofit- of the king's warehoufes belonging to the curtom-houfe'in London; and all ed m the and every fuch cambricks and French lawns may, from time to time, be houfes, and "to viewed and infpecled by any perfon or perfons on behalf of the profecutor befr-ee'toin- or profecutors, or of the perfon or perfons interefted in, or claiming the /pedioa ; faid cambricks or French lawns j and the commiffioners of his majefty's cuftoms cuftoms are hereby required to make and give fufficient orders from time to time for that purpofe ; and after condemnation thereof, in due courfeand, after of law, all and every fuch cambricks or French lawns fhall be ftamped r coac,c,nna - marked in fuch manner as the commiffioners of the cuftoms in England, orj^' ^ any three or more of them, (hall direct ; and fhall be publickly fold, to the bed advantage, for exportation to the Britifh colonies or plantations and Cold for in America only ; and one moieiy of the produce or money arifing by the e *P ortauon - fale of fuch cambricks and French lawns fhall be to the ufe of his majefty, j he money . his heirs and fucceffors, and the other moiety thereof to the ufe of the of- arifing by the ficer or officers who fhall feize and fecure the fame : And no fuch cam- ftl* w be «U- bricks or French lawns fhall be fold otherwife than on condition to be ex- VKied °-' wee11 ported as aforefaid ; and fhall not be delivered out of the warehoufe or an J ( l * place wherein the fame fhall have been fecured, until fufficient fecurity, cer. by bond, fhall be firft given to the king's majefty, his heirs and fuccefTors, Bond t0 De which the commiffioners of his majefty's cuftoms are hereby impowered given for the and required to take, that the fame, and every part thereof, fhall be ex- due expona- ported as aforefaid, and not landed again in any place except the faid co- tl0n thereof * lonies or plantations ; which bonds fhall and may be difcharged without be difchar- fee or reward, upon certificate returned, figned by the collector or other ge d U p nn cer- proper officer of fuch colony or plantation, that the goods were there tificate accord* landed ; or upon proof by two credible perfons that fuch goods were taken in g thereto, by the enemies, or perifhed in the feas, the examination and proof thereof °, n P ro ° of being hereby left to the judgment of the faid commiffioners-, which com- having been miflioners are hereby impowered and required, from time to time, to call taken by the upon the perfon or perfons who have entered into fuch fecurity to produce encmy,_ or fuch certificate or proof as aforefaid •, and in default of producing fuch cer- lo ' 1 at lta : tificate, or proof to the fatisfaction of the faid commiffioners, fuch bonds otherwife to fhall and may be put in fuit, and profecuted by order of the faid commit- be F ut ln iu;t - fioners, againft the perfon or perfons who fhall fo make default, in fuch manner as offences of the like kind are fued or profecuted by any law or ftatute of this realm." Seel. 9. " And be it further enacted by the authority aforefaid, That if Where, after any officer or officers fhall neglect or refufe, for the fpace of one month c °ndemna- after the condemnation of fuch goods, to profecure to effect any perfon or J[°m' c c . c, ~ perfons for any penalty or forfeiture by this act inflicted upon offenders t0 f ue f or t j, e againft the fame •, that then, and in every fuch cafe, it fhall be lawful for penalty, any perfon or perfons whomfoever to fue for, profecute and recover the any per f on refpective penalties or forfeitures by this act inflifted, by action of debt, may fue for, bill, plaint or information, in any of his majefty's courts of record at a nd recover Wefiminfter, or court of exchequer in Scotland, together with cofts of fuit-, the fanie : wherein no effoin, protection, privilege or wager of law, or more than one imparlance, fhall be allowed ; and that one moiety of fuch penalties to be divided and forfeitures fhall be to the ufe of the king's majefty, his heirs and fue- between .the ceffors, and the other moiety thereof to fuch perfon or perfons as fhall fue crown ami for and recover the fame." proiecmor. Seel. 10. " And be it further enacted by the authority aforefaid, That Cambricks all cambricks, or goods of the kind ufually known under that denomina- fabricated in Vol. I. N° XXIII. 4 A tion, 546 Cambtfctt*. Great Britain tion, which from and after the twenty-ninth day of September one thoufand to be flampedf even hundred and fixty-feven, mail be woven or fabricated in Great Bri- at each end. tRm ^ ^jj ^ rnar i cec i or damped at each end of every piece with fuch mark or ftamp, and by fuch officer or officers, as the commiffioners of the excife in that part of Great Britain called England, and that part of Great Britain called Scotland, mall reflectively direct and appoint for that pur- pofe." c ._ Set!, ii. " And be it further enacted by the authority aforefaid, That ers of excife lt ^ a ^ anc ' ma y ^ e lawful to and for the faid refpeclive commiffioners of upon requeft excife for the time being, or the major part of them, from time to time, made to them upon requeft made to them by any fuch perlbn or perfons, and at the ex- by the maker p ence f f uc h p er fon or perfons, to provide fuch marks or (lamps, as to the of ^cambMcks lai< ^ re fp e &i v e commiffioners, or the major part of them, fhall leem proper ; may order ■ or to direct and appoint one or more fupervifor or other officer or officers of ftamps to be the excife, of the dillrict or divifion in which any fuch manufacture (hall made; De ca rried ori? to mark or ftamp each and every piece of fuch cambrick, or direaand or goods of the kind ufually known under that denomination, which (hall appoint offi- De mac |e, wove or fabricated by fuch perfon or perfons applying as afore - ^ s ■ es arnp faid, with fuch mark or ftamp, or marks or ftamps, in manner herein af- ter mentioned and directed •, and the officer or officers of excife, who (hall the W are to be ^ *"° a PP°i nte d to mark or (lamp fuch goods, (hall, by the fabricator, paid as the maker, weaver or proprietor of fuch goods, be paid, for every piece of commi'Jioners fuch goods which he or they (hall mark or (lamps in purfuance of this act, fl»all direct. f uc h fum as the commiffioners of excife, for the time being, or the major part of them, (hall direct and appoint. Notice for the $etl. 12. " And be it further enacted by the authority aforefaid, That purpofe to be all and every perfon and perfons, who (hall weave, fabricate, or make any given to the fuch cambrick, or goods of the kind ufually known by that denomination, °, fficers ' ami (hall, before the fame (hall be taken or cut out of the loom, give notice in be ttarnped° w^^g °f finishing of every or any piece or pieces of fuch goods, to fuch before they fupervifor or other officer as aforefaid ; who, before any fuch piece of goods are cut out of (hall be cut out of the loom, (hall mark or ftamp both ends of fuch piece the loom, f g 00 ds with fuch mark or ftamp as (hall be provided and appointed for on penalty of that purpofe in manner aforefaid-, upon pain that every perfon, who fhall 5 1. weave, make or fabricate fuch cambrick, or goods of the kind ufually known by that denomination, and (hall cut or take any piece of fuch goods out of the loom after the fame (hall have been finifhed, or permit the fame to be done without having firft given fuch notice in writing, and having fuch piece marked or (lamped as aforefaid, fhall, for every fuch offence, and forfeiture forfeit the fum of five pounds •, and the goods fo cut out of the loom, cf the goods, without fuch notice being given, and luch marks or ftamps b;ing fet there- on, in manner herein before directed, fhall be forfeited, and (hall and may be feized by any officer or officers of the cuftoms oi"excife. Officer to at- Sei7. i 3. " And be it further enacted by the authority aforefaid, That tend, on rea every fupervifor, or other officer of the excife of the dillrict in which any fonab '^ notlce fuch manufacture of cambrick, or goods of the kind ufually known by or £IV ' under that denomination, fhall be carried on, who (hall be fo as aforefaid 4 appointed Camimcus. 5+7 appointed by the commiffioners of the excife, or the major part cf them, to mark or ftamp fuch goods, upon reafonable notice given to him or them by any perfon or peribns who (hall make, weave or fabricate any fuch goods, that any piece of fuch goods is finifhed, mail forthwith, or as foo.n as conveniently may be, confident with other the duty and buiinefs of his office, in manner herein before directed, mark or ftamp both ends of fuch piece of goods with fuch mark or ftamp as (hall be fo appointed and pro- vided for that purpofe ; and alfo fix or fet a diftindt and feparate number to j n or j er t0 a f_ every piece of fuch goods, before the fame fhall be taken out of the loom ; fix the (tamp , and alio make a juft and true entry in writing, in proper books to be pro- ^ , . vided for that purpofe at the expence of the manufacturer of fuch goods, mi ^ t e ot - of the number fet to each piece of fuch goods, and the number of yards the No. let to which each piece of fuch goods fhall contain in length ; and alfo the num- each piece, ber of threads contained in the warp of each piece of fuch goods •, upon andtheNo. or pain that every fupervifor, or other officer fo appointed as aforefaid, who [ a y n? 5 ' ar ™" he fhall, upon reafonable notice given as aforefaid of the finifriing of any piece No. 'oF threads of fuch goods, neglect or refute to mark or ftamp any piece of fuch goods in the warp ; in manner herein before directed, or to fix or fet a dittinct and feparate num- ber on each piece of fuch goods, or to make a true and juft entry in manner aforefaid of the number fet or affixed to each piece of fuch goods, and of the number of yards which each piece thereof fhall contain in length, and alfo the number of threads contained in the warp of each piece of fuch on forfeiture goods ; fhall, for every fuch refufal or neglect, forfeit and pay the fum of o{ 5 '■ five pounds fterling money. Sell. 14. " And be it further enacted by the authority aforefaid, That Officers frau- if any fuch fupervifor, or other officer or officers of the excife, who fhall be dulemly fo appointed to feal or ftamp fuch cambricks, or who fhall have the cuflody ftam P' n _g< or of any mark or ftamp which (hall be fo provided and appointed to mark or ^ f 'done, ftamp fuch goods, fhall therewith mark or ftamp nny cambricks or lawns,or any goods rot goods of the kind ufually known by or under thofe denominations, which fabricated in fhall not have been made, wove or fabricated in Great Britain, or (hall Great Bnta,n > knowingly permit it to be done ; or fhall mark or ftamp any piece of fuch 0T 3 f :eT their goods, after the fame fhall be taken out of the loom : every fuch fuper- being taken vifor, or other officer or officers fo marking or damping any fuch cam- out 0,f ^ e bricks or lawns, or goods of the kind ufually known under either of thofe co , m ; ,): . clts j •• -,r ,, . -i • ■ ir lj COI /.'r piece, denominations, or wilfully or knowingly permitting the i. me to be done, contrary to the true intent and meaning of this act, fhall forfeit the fum of fifty pounds for every piece of fuch goods which he or they fhall fo mark or ftamp, or permit or fufier to be marked or ftamped, contrary to the true intent and meaning of this act ; and fuch fupervifor, or other of- ^j i s incaps- ficer Or officers, upon being convicted of either or any of the offences citated ; aforefaid, (hall lofe his or their office or offices and employments, and is and are hereby declared and rendered ever after incapable of having, ufing or enjoying any office or place of truft under his majefty, his heirs and fucceflbrs." SeS. 15. " And be it further enacled by the authority aforefaid, That and the if any perfon or perfons fhall, by bribery, fraud, covin, deceit or impo- r on s concem- 4 A 2 fitiorf, ed in prccu- 548 Camtyicfcsf. ring fuch fraud fuion, or in any other manner whatfoever, prevail on, or procure any of- to be com- ficeror officers of the excife, or other perfon who fhall be appointed to mark nicied ; or {^ am p an y cambricks, or who (hall have the cuftody of any mark or ftamp, to mark or ftamp any piece or pieces of cambrick or lawn, or of goods of the kind ufually known under either of thofe denominations, which fhall not have been actually and bona fide made, wove or fabricated in Great Britain ; or after the fame (hall have been cut or taken out of the their aiders loom, contrary to the true intent and meaning of this act ; all and every ar.d abettors fuch offender and offenders, and his and their aiders and abettors, and af- forfeit i col. fiftants, being thereof lawfully convicted, (hall, for every fuch offence, an to an forfeit and lole the fum of one hundred pounds, and be adjudged to (land in the pillory ; . ■'-.«, , . , - r r - ,- n i, • in the pillory two hours : And if any perlon or perions (hall give, pay or and perfens fecure, or offer to give, pay or fecure, to any fuch officer or officers, or attempting by other perfon as aforefaid, any bribe, recompence or reward of any kind bribery, or whatfoever, in order to corrupt, perfuade or prevail on fuch officer orofficers, otherwife, to » r » f r » corrupt offi- or otn er perion, to iet or affix (uch mark or (tamp as aforefaid to any piece cers, to afiix or pieces of cambrick, directed by this act to be marked or ftamped, the itamps which ihall not have been actually and bona fide made, wove and fabrica- lalfely to any te j m Q reat £ r jtain, or after the fame (hall have been taken out of the ^' e ' loom •, fuch perfon or perfons fo offending fhall, for every fuch offence, forfeit 50 1. forfeit and lofe the fum of fifty pounds." CfHcer to Sett. 1 6. " And be it further enacted by the authority aforefaid, That tianfmit to all and every fupervifor, or other officer or officers of excife, who (hall in the commit- manner aforefaid be appointed to mark or ftamp any cambricks in purfu- fionero of ex- anCc £ jj^ a( c t5 fl ia ij y ear jy anc j every year (while fuch officers (hail have count yearly tne cu tt ot ty °f an y f ucn ftamp provided and appointed for that purpofe in of the No. of manner aforefaid) in the month of June, tranimit and fend to the com- piecesftampt miffioners of excife in London or Edinburgh reipectively, a full, true and by him ; ] U [\ account in writing, of all and every piece and pieces of fuch goods f which he or they fhall mark or ftamp in purfuance of this act; and alfo a and a copy of . * ■ c ijur i-i hi* entiies; true C0 P V c * all and every entry or entries, of any kind whatloever, which he or they fhall make in any fuch book or books provided for that purpofe, in any wife relating thereto, for and during the twelve calendar months next preceding the faid month oijune ; diftinguifhingin fuch accounts the diflinguifhing f evera l manufacturers or proprietors, if there lhall be more than one fuch the manufac- j n ^ uc ^ jj; cer > s diftrict, who fhall have made or be owners of fuch goods ; upon pain of being difmifled from his or their employ as an officer or of- on penalty of fi cers f the excife : And all and every fuch officer or officers having the difmiffioo. cu ftody of any fuch mark or ftamp as aforefaid, his or their executors or The (lamps adminiftrators, or fuch other perfon or perfons in whofe cuftody or power t0 ,^ e d ^ ^ er ' the fame fhall fall or come by the death of fuch officer or officers, or in any mand or or- other manner, fhall, upon demand or order from or by the commiffioners derofthe ofexcife, or the major part of them, deliver up to fuch commiffioners, commiffion- or f uc h perfon or perfons as they fhall appoint to receive the fame, all and * rs ' every fuch mark or ftamp which (hall have been delivered to fuch officer or officers, or by any other means come or fallen into the hands, cuftody or power of fuch officer or officers, or other perfons whatfoever ; upon pain that Cambjfc&sf. 549 that any fuch officer or officers, or other perfon refilling or neglecting fo to do, upon any fuch order or demand as aforefaid, fhall forfeit and lofe the i'um of two hundred pounds; to be recovered and applied in manner here- on forfeiture in after mentioned." - of 20 ° '■ Setl. 1 7. " And be it further enacted by the authority aforefaid, That r , . if any cambrick, or goods of the kind ufually known by or under that de- rot i e „,u y nomination, made, wove or fabricated in GreatBritain, after the laid twenty- ftamped, ninth day of September one thoufand feven hundred and fixty-feven, fhall be found in any place whatfoever in Great Britain, without being marked are liable to or ttamped at each end of every whole and intire piece, and at one end of forfeiture, every remnant of fuch cambrick, or goods of the kind ufually known by * . "'^ De or under that denomination, all fuch goods fhall be forfeited, and fhall ^ d'epofued and may be ieized by any officer of the exciie or cuitoms ; and luch officer in the King's or officers is and are hereby indemnified for feizing fuch goods ; and fuch warehouies ; goods fo feized fhall be depofited in the king's warehoule at the cuftom- and after con- houfe at London, or in the exciie office next to the place where the fame ' Tw'm fhall be feized ; and after condemnation thereof, by due courfe of law, Money arifing fhall be publickly fold to the belt bidder ; and that one moiety of the pro- by the fale, duce arifing from the fale thereof, after deducting the charges and ex- after deduft. pences atcending the condemnation and fale of fuch goods, fhall be to the lrs cliar " ule of his majefty, his heirs and fucceffors, and the other moiety to fuch f"^ divided officer or officers who fhall feize or fue for the fame •, and all and ever per- between the fon or perfons who fhall fell or expofe to fale, or have in his or their cu- <*own and ftody for that purpofe, any cambrick, or goods of the kind ufually called ttie cf K cer - or known by or under that denomination, made and fabricated in Great Perfons ex- Britain, and not marked or ftamped at both ends of every intire piece, or P of J n g t0 fale at one end of every remnant of fuch goods, in manner by this act directed, pood^forfefc fhall, for every fuch offence, forfeit the fum of two hundred pounds ; to 200 1.' be recovered and applied in manner herein after directed." Seel. 18. " And be it further enacted by the authority aforefaid, That Penalty of if any perfon or perfons fhall, at any time or times hereafter, forge or forging or counterfeit any mark or ftamp, to refemble any mark or ftamp which counterfeiting fhall be provided or ufed in purfuance of this act-, or fhall forge, refemble Dy ' mp ' or counterfeit the impreffion of any fuch mark or ftamp upon any goods required by this act to be marked or ftamped ; or fhall import or bring or importing, into Great Britain any foreign cimbricks or lawns, or goods of the kind ° T . ex P ofin g to ufually called or known by or under either of thofe denominations, having ' ds Jjj^ any fuch counterfeit mark, ftamp or impreffion thereon •, or fell or ex- counterfeit pole to fale any cambricks or lawns, or goods of the kind ufually known rtamp thereon, by or under either of thofe denominations, with fuch counterfeit mark, ftamp or impreffion thereon, knowing fuch mark or ftamp to be coun- terfeited •, every fuch perfon fo offending, being thereof lawfully convict- is felony. ed, fhall be judged guilty of felony, and fhall fuffer as in cafes of felony without benefit of clergy." Seel. 19. " Provided always, and be it enacted by the authority afore- The comtnif- faid, That it fhall and may be lawful to and for the commifiioners of ex- fior.ers may cifc in England, for the time being, or the major part of them, at any orde r all fuch time goods made, 55° Catnbtfctts. or begun to timeVithin 'two months next after the commencement of this act, to or- be made in ^er and direct all fuch cambrick, or goods of the kind ufually known by Gr j at . B " tain or under that denomination, which fhall have been made, or begun to be before ^he' made, wove and fabricated in Great Britain or Ireland, at any time before commence- the commencement of this act, to be marked or ftamped at both ends of mentof the every piece thereof, with fuch mark or ftamp which (hall be provided and ad, to be ^ appointed as aforefaid, notwithftanding the fame fhall have been taken ftamped, tho Qut ^ ^ j oom (p roo f being made to the fatisfacrion of the faid com- iheloom; miffioners, that all fuch goods were really and bona fide made, or begun to be made, wove and fabricated in Great Britain or Ireland, before the commencement of this act) which goods fo marked or ftamped, and and the fame numbered, in purfuance of fuch directions, fhall and may be fold, dif- rnny be law- p f ec j f ? anc i u f ec j } j n like manner as if the fame had been made or y ° ' wrought after the commencement of this act, and all the directions there- of fully complied with ; any thing in this act contained to the contrary Officers to thereof in any wife notwithftanding : And the fupervifor, or other officer make due en- or officers of the excife, who fhall be directed to mark or ftamp, and num- try of all fuch ^ ^^ g 00c j Sj fh a u make the like entry of the number of yards pie in length of each piece of fuch goods, and the number fet thereon, in like manner, and under the like penalties, as herein before directed, with refpect to cambricks made after the commencement of this act." , SeSl. 20. " Provided always, and be it further enacted and declared, reffedof^arn- That if any perfon or perfons fhall, before the faid firftday of 'July one thou- bricks or clear fand feven hundred and fixty-feven, be poffeffed of any cambricks or lawns, before c i ear l awn s, or goods ufually known by either of thofe denominations, 1 July 1767, wn i c h have not been ftamped in the manner required by law; fuch per- ftamp^ f° n anc * P erlons ma ^ ant ^ mil Y' on or before the firft day of Auguft one may depofit thoufand feven hundred and fixty-feven, depofit fuch cambricks or clear the fame, be- lawns in any warehoufeor warehoufes, to be appointed for (hat purpoie by tore 1 Auguft t j ie co mmiffioners of the cuiloms in England, for exportation to his tSia- - iext ' u„,r«ieftv's colonies or plantations in America onlv, upon payment of the half in warenoulcsj / . . r ... ,. - . ' \ r J , . , for exporta- iubfidy which is to remain by law atter inch goods are exported, without tion ; any oath or other proof being required of the place where fuch goods upon payment were manufactured ; and no prolecution fhall. be commenced againft any "Vfd- h * !f perfon or perfons for having in their cuftody or poffeffion any fuch urn ftamped goods, between the faid firft day July and the firft day of .Auguft one thoufand feven hundred and fixty-feven •, any thing in this or any other act of parliament to the contrary notwithftanding. c , 1 Seil. 21. "And be it further enacted by the authority aforefaid, That ties and for- all fuch goods which fhall be feized and condemned in purfuance of this ieit'ures, in act, and all penalties and forfeitures whatfoever by this aft infiifted, (unlefs general .where otherwife directed to be condemned and recovered by this act) fhall and may not otherwife ^ f oec jf 01 -^ p ro fecuted and recovered in any of his majefty's courts of record where\obe at Wejlminfter, or in the court of exchequer in Scotland, by action of debt, iTued and re- bill, plaint or information, in the name of his majefty's attorney general, covered. r in the name or names of fuch fupervifor, or other officer or officers of the Cambjtefc*. 551 the excife or cuftoms as aforefaid ; and that one moiety of the clear pro- Produce from duce arifing from the fale of all fuch goods, and of all the penalties and for- '*? e fale . after feitures inflicted by this act, after all charges deducted, fhall be to his * ^divided majefty, his heirs and fuccefibrs, and the other moiety thereof to the between the officer or officers who fhall feize, inform or profecute for the fame. crown and Seil. 22, " And be it further enacted by the authority aforefaid, That P rc,( " ecu ">r. upon every action, bill, plaint or information, entered or filed as afore- Ca P> at t0 M- . faid, for any penalty impofed by this act, a capias in the firft procefs . upon en " fhall and may ifiue, fpecifying the fum of the penalty fued for ; and the de- a ai n is'c. fendant or defendants fhall be obliged to give fufficient bail or fecurity by n , natural born fubjects, perfons naturalized, or denizens, to the perfon or givVlufficient perfons to whom fuch capias fhall be directed, to appear in the court out bail thereto, of which fuch capias fhall ifiue, at the day of the return of fuch writ, to anfwer fuch fuit or profecution ; and fhall likewife, at the time of fuch appearance, give fufficient bail or fecurity by fuch perfons as aforefaid, in the faid court, to anfwer and pay all the forfeitures and penalties incurred for fuch offence or offences, in cafe he, fhe or they fhall be convicted there- of, or to yield his, her or their body or bodies to prifon." Seel. 23. " And be it further enacted by the authority aforefaid, That if any action or fuit fhall be commenced againft any perfon or perfons, for any thing done in purfuance of this act, the defendant or defendants in fuch action or fuit, fhall and may plead the general ifiue, and give this act, Genera ^ lffae - and the fpecial matter, in evidence, at any trial to be had thereon, and that the fame was done by the authority of this act ; and if it fhall appear to have been fo done, then' the jury fhall find for the defendant or defen- dants : And if the plaintiff or plaintiffs fhall become nonfuited, ordifcon- tinue his, her or their action or fuit, after the defendant or defendants fhall have appeared •, or if, upon verdict or demurrer, judgment fhall be given againft the plaintiff or plaintiffs, the defendant or defendants fhall recover Treble colli, treble cofts, and have fuch remedy for the fame as any defendant or de- fendants hath or have in other cafes by law." Seel. 24. " And be it further enacted by the authority aforefaid, That i n cafe of if any cambricks or lawns, or goods of the kind ufually known by or un- doubt or que- der either of thofe denominations, fhall be feized by virtue or in purfuance ftion > where of this or any other act now in force -, or if any action fhall be brought by tne g° od J w " e the owner or claimer of fuch goods againft any officer of the cuftoms or excife, or any other perfon, for any thing done in purfuance of this or any other act now in force, and any doubt or queftion fhall arife where fuch goods were manufactured ; the proof thereof fhall lie upon the owner or the P r0 °f" ta claimer of fuch goods, and not on the perfon who feized the fame, or^'J againft whom fuch action fhall be brought; any law, ufage or cuftom to claimer. the contrary notwithftanding." Cittrift& 55 r ■y Carriers. A L L perfons carrying goods for hire, as matters and owners of (hips, lighter-men, ftage-coach men, &c. come under the denomination of common carriers, and are chargeable on the general cuftom of the realm for their faults and mifcarriages. Co. Lit. 89. 1 Rol. Abr. 2, 338. Alfo if a pcrfon, who is no common carrier, takes upon himfelf to carry my goods, though I promife him no reward, yet if my goods are loft or damaged by his default, I fhall have an action againft him. 1 Bac. Abr. 343. But the mafter of a ftage-coach, who only carries paflengers for hire, fhall not be liable for the goods of his paflengers that are loft, and there- fore where A. delivered a trunk to the driver or fervant, who loft it out of his pofieffion, it was held, that the mafter was not liable in an action upon the cafe on the cuftom of the realm •, for though the fervant received money for it, yet that was but a gratuity •, and the mafter fhall not be chargeable with the acts of his fervant, otherwife than as he ads in execution of the authority given him. 1 Bac. Abr. 343. , , If a man deliver goods to a common carrier to carry them to a certain m'carrierTs" place, if he lofes them, an action upon the cafe lies againft him ; for by the chargeable for common cuftom of the realm he ought to carry them fafely. 1 Rol. Abr. a failure in his 2. Hob.\J. Cro.Jac.26z. Alfo if a common carrier, who is offered his hire, and who has con- venience, refufes to carry goods, he is liable to an action in the fame man- ner as an inn-keeper who refufes to entertain a gueft, or a fmith who refufes to fhoe a horfe. 2 Show. Rep. 327. If a man delivers goods to a common hoyman, who is a common carrier of goods, to carry them to a certain place, and pays him according to the cuftom for the carriage of them, and after for default of good keeping they are loft; an action upon the cafe lies againft him ; for by the common cuftom of the realm he ought to have kept and carried them fafely. Cro. Jac. 330. Hob. 17. If a man delivers goods to fuch common hoyman, to carry to a place, and after delivers them (being of good value,) to another to keep fafely in the boat, and does not difcharge the hoyman, and after they are loft through negligence, an action on the cafe lies againft him. 1 Rol. Abr. 2. Hob. 1 7. Cro. Jac* 330. S. C. If A. delivers goods at York to B. (who is a water-carrier between Hull and London) to carry them from Hull to London ; though the agreement is to carry the goods from Hull to London, and no mention is made of the carriage to Hull, yet if the goods are loft B. fhall anfwer for them, for 1 upon earners. 553 upon his general receipt of them at Tcrk, he is liable, i Sid. 36. fee 1 Rol. Abr. 338. 2 Show. 129. If a merchant lades goods aboard a fhip, to be tranfported at a reafon- able reward of freight to be paid to the owners, and in the night time while the fhip rides in the river 'Thames, notwithstanding a competent number of men are left aboard for the guard of the fhip and goods, yet feveral perfons, under pretence of prefling feamen, feize on the men aboard, and take away the goods ; an action will lie againft the matter, for in affect, he is paid by the merchants, for the merchant pays the owners, and the owners pay the mafter ; fo that the money of the merchant is but handed over by them to the mafter; adjudged and faid, That though by the admiral law, the mafter is not chargeable pro damno fatali, as in cafe of pirates, ftorm, &c. where there is no negligence in him •, yet becaufe this fhip was infra corpus comitatus, this cafe muft not be meafured by the rules of that law. 1 Vent. 190, 233. If A. and feveral others take their pafTage in a ferry-boat, and being upon the water a tempeft arifes, fo that they are in much danger of being drowned, upon which, to preferve their lives feveral of the goods were caft over-board, among which a pack of goods of A.'s of great value is thrown over ; A. fhall have no action againft the bargemen. 2 Bulfl. 280. It is clearly refolved, that if a carrier be robbed he fhall anfwer the value of the goods, for he hath his hire, which implies an undertaking for the fafe cultody and delivery of them, which charges him at all events-, and this political inftitution was introduced the better to fecure people in their dealings, and to prevent carriers who are often entrufted with things of the greateft value, from confederating with robbers, &c. Co Lit. 89. 4 Co. 84. Owen 57. 1 Rol. Abr. 2, 124. 2 Rol. Abr. 367. 1 Rol. Rep. 79. Hob. 17, 18. So if A. delivers a box to a carrier to carry, and he afks what is in it ; and A. tells him, a book and tobacco, and in truth there is 100/. befides, yet if the carrier is robbed, he fhall anfwer for the money ; for A. was not bound to tell him all the particulars in the box, and it was the bufinefs of the carrier to have made a ipecial acceptance. Ruled by Roll, at the Nifi Prius at Guildhall, but in regard of the intended cheat to the carrier, he told the jury, they might confider of it in damage?, but yet the jury gave the plaintiff 97 /. damages, abating 3 /. only for the carriage ; -qucd durum videbatur circumjlantibus. Allen 93. But if A. being a common carrier receives, by his book-keeper, from the fervant of B. two bags of money fealed up, containing, as was told him, 200/. And the book-keeper gives a receipt for his mafter to this effect, Received of, &c. two begs of money fealed up faid to contain 200 /. which Ipro- mife to deliver on fuch a day at Exeter, into — he to pay \os. per cent, for car- riage and rifajie; though the bags contain 450 /. and the carrier is robbed, he fhall be an'lwerable only for 200 /. for this is a particular undertaking, and as it is by reaibn of the reward that the carrier is liable, which when the Vol. I. N<\ XXIV. 4B plaintiff 554 Carriers* plaintiff endeavours to defraud him of, it is but reafonable he mould be barred of that remedy which is only founded on the reward. Cartb. 485. Of a carrier's A carrier who hath goods delivered to him, undertakes for his hire to intereft in the deliver them fafely, and he hath the poffelTion of them for no other things deliver- p ur p f e ; yet he hath fuch a fpecial limited property, that he may bring edto his trover and converfion againft a ftranger that takes them away, or he may c ar ^ e ' fue the hundred when robbed of them, becaufe he is anfwerable over in damages to the abfolute owner. Co. Lit. 89. 4 Co. 83. 2 Bulft. 31 r. 1 Sid. 438. 1 Mod. 30. 2 Sand. 47. So a carrier by reafon of his pofTeffion, and this fpecial kind of property, may have an appeal of larceny againft one who robs him of the goods committed to his charge. 2 Hawk. P. C. 1 6y. Alfo a carrier by not delivering the goods, or by imbeziling of them, cannot be guilty of felony •, but if he opens a pack and takes out part of the goods, with an intent to fteal that part, he is guilty of felony •, for a pofief- lion of part diftinct from the whole was gained by wrong, and not delivered by the owner, alfo it was obtained bafely, fraudulently and clandeftinely m hopes to prevent its being difcovered at all, or fixed upon any one when difcovered. 1 Rol. Abr. 37. 1 Hawk. P. C. 90. So if a carrier, after he has brought the goods to the place appointed, take them away again fecretly ammo fur audi, he is guilty of felony, becaufe the pofieffion which he received from the owner being determined, his fecond taking is in all refpects the fame as if he were a mere ftranger. 1 Hawk. P. C. 90. Alfo if a ftranger fteals the goods delivered to a carrier, he may be indicted generally, as having ftolen goods •, lb by reafon of this fpecial property, if the owner, with an intent to make the carrier anfvver for them, fraudulently and fecretly takes them away, he is guilty of felony, and may be indicted generally, as having Holen his goods-, for the injury is altogether as great, and the fraud as bafe, where they are taken away by the owner, as by a ftranger. Keilw. 70. 1 Hawk. P. C. 94. By flat. 3 Car. 1. c. 1. A carrier that travels on the Lord's day fhaU forfeit 20 s. See ibis oM at large under title 13litCljet!3. Stflt. 3 Will, y Ma. cm. [A. D. 1691.] made, among other purpofes, " for fettling the rates of carriages of goods." Jurtices once Seil. 24. " And whereas divers waggoners and other carriers, by combina- ayear to fettle t j ori amongft themfelves, have railed the prices of carriage of goods in many the rates of pj aces to excefuve rates, to the great injury of trade; Be it therefore enacted if'iages. ^ e authority aforefaid, That the juftices of the peace of every county and other place within the realm of England, or dominion of Wales, fhal'l have power and authority, and are hereby injoined, and required, at their next refpective quarter or general fedions after Eajler day yearly, to aflefs and rate the prices of all land carriage of goods whatfoever, to be brought into any place or places within their refpective limits and jurifdictions, by any common waggoner or carrier, and the rates and afTeiTments fo madr, 2 to Carri'erff. 555 to certify to the feveral mayors and other chief officers of each refpective market town within the limits and jurifdictions of fuch juftices of the peace, to be hung up in fome publick place in every fuch market town, to which all perfons may refort for their information ; and that no fuch common waggoner or carrier fhall take for carriage of fuch goods and 5 ' P eai]t y merchandizes above the rates and prices fo fet, upon pain to forfeit for taking above every fuch offence the fum of five pounds, to be levied by diftrefs and fale the rate, of his and their goods, by warrant of any two juftices of the peace where fuch waggoner or carrier fhall refide, in manner aforefaid, to the ufe of the party grieved. ©tflt. 21 Geo. 2. c. 28. [A. D. 1748.] made, among other pur pofes, " to explain and amend fo much of an act paffed in the third year of the reign of king William and queen Mary, [the preceding act] as relates to the fettling the rates of the carriage of goods." Sift. 3. " And whereas by an act made and palled in the third year of 3 W. &M. the reign of king William and queen Mary, intituled, An aft for the better*" I2, repairing and amending the highways, and for fettling the rates of carriage of goods, it is enacted, That the juftices of the peace of every county, and other place within the realm of England, or dominion oi Wales, mould have power and authority, and they were thereby injoined and required, at their next re- fpective quarter-fefiion after Eafler yearly, to affefs and rate the prices of all land carriage of goods whatfoever, to be brought into any place within their refpective limits and juridictions, by any common waggoner or carrier, to be certified and publifhed in fuch manner as is therein mentioned; and that no fuch common waggoner or carrier fhould take for the carriage of fuch goods or merchandize, above the rates and prices fo fet ; upon pain to forfeit for every fuch offence the fum of five pounds, to be levied and recovered as is by the faid aft directed : And whereas no rates for the carriage of goods, from diftant parts of the kingdom to the city oi London, and places adjacent, have been yet fettled, and feveral common waggoners and carriers have from thence taken occafion to enhance the price of carriage of goods to the prejudice and obftruftion of trade ; Be it therefore W a na J^° rs further enacted by the authority aforefaid, That if any common waggoner demanding a or carrier fhall, after the tenth day of June one thoufand feven hundred greater price and forty-eight, demand and take any greater price for the bringing of goods for carria g e to the city oi London, or to any place within the bills of mortality, than j s 'ban allowed, allowed and fettled by the juftices of the peace for the county or place from whence fuch goods are brought, for the carrying of goods from London to the faid county or place, every fuch carrier or waggoner fhall, for every fuch offence, forfeit and pay the fum of five pounds, to the ufe of the party grieved, to be recovered and levied in the manner by the laft- mentioned act directed, or by diftrefs and fale of his goods, by warrant under the hands and feals of any two juftices of the peace for the counties of Middlefex or Surry, or city of London, or city and liberty of clerks of the ■Weflminjler ; and the clerk of the peace for every county and place fhall, peace tocerti- 4 B 2 immediately V Y™ ] y *' be f of any open fair or market, for his or their provifion for their houfhold, ° r u ? 1 • I • . . ... ■ , V T 1 3 ' a,r 0r mar ~ teem or dairy, at his or their will and plealure, to be employed and fpent k e t. Exp. only in keeping and maintenance of his or their houfe, or for their teem or dairy, and not otherwife." Sett. 3. " And be it further enacted by the authority aforefaid, That no A butcher perfon being a butcher, and ufing the craft and myftery of butchery, fhall fiia " ™ coa Y at any time after the faid feaft buy any fat oxen, fleers, ronts, kine, heifers, c f ttle t nd calves or fheep, and fell or caufe to be fold the fame again alive, upon pain of forfeiture of every fuch ox, fleer, ront, cow, heifer, calves or fheep bar- gained or fold contrary to the form of this prefent act." Sett. 4. " Provided alway, That all and every perfon and perfons be^ ing a butcher, and ufing the art and myftery of butchery, fhall and may at his and their will and pleafure buy any fat oxen, fleers, ronts, kine, hei'- ers, calves and fheep, or any of them, out of any open fair or market : So that fuch butcher fell not, nor caufe the fame to be fold again alive, as is. aforefaid ; any thing contained in this aft to the contrary notwithftanding : (2) The one moiety of all which forfeitures to be to our fovereign lord the Vol. I. NS XXIV. 4 C king, 562 Cattle. king, his heirs and fucceflbrs, and the other moiety to him or them that will fue for the fame in any of the king's courts of record, wherein no wa- ger of law, eflbin or protection (hall be allowed for the defendant or de- fendants. (3) This aft to endure to the end of the next parliament. Con- tinued in part by 3 Car. 1. c. 4. and further continued by 16 Car. 1. c. 4. and altered by 15 Car. 2. c. 8. See tbislaft aft under 'BlltCl)Ct0. By the fiat. 5 & 6 Ed. 6. c. 14. [eft. 9, 10. No perfon fhall fell his cattle within five weeks after he bought them -, and the juftices may de- termine the fame. See thefe two feftions at large under 13flu"gCt0, p- 194. @)tat- 2 £5? 3 Phil, fcf Ma. [ A. D. 1555. intituled] "An aft for keep- ing of milch kine, and for breeding and rearing of calves." " Forafmuch as of late years a great number of perfons within this realm have laid their lands, farms and paftures to feeding of (heep, oxen, runts, fchrubs, fteers and heifers, and fuch other like cattle, having no regard or care to breed and rear up young beafts and cattle, whereby is grown great fcarcity of cattle, and victual neceflary for the fuftenance of divers forts of people within this realm, and more is like to be, if fpeedy remedy be not provided:" By tbe fiat. Seel. 2. " It is therefore by the authority of this prefent parliament en- cf 7 Jac. i.e. afted, That every perfon which, from the feaft of the Purification of our 8. thisftatme i ac |y next enfuing, (hall keep or feed above the number of fixfeore fijere fha " T^ t0 ^ ce P f° r tne m °ft P art °f tne y ear » "P on hi s or h er feveral paftures, lands, afterVbe en^ feedings or farms apt or meet for milch kine, and wherein no other per- clofed. fon hath at the making of this prefent aft, common for any cattle at any time of the year, (hall by authority of this aft, yearly fo long as he (hall keep or feed the faid number of fixfeore (here iheep, for every threefcore (here (heep fo kept or fed, keep one milch cow, and (hall breed and rear A cow fhall up yearly for every fixfeore (heep fo kept as is aforefaid, one calf; (2) be kept for upon pain of forfeiture for every month that any fuch perfon (hall not for fxxty iheep, everv threefcore (here (heep, as is aforefaid, keep and feed one milch cow, reared for xx s - f° r every cow fo not kept : (3) And for lack of rearing and breed of izofheep. one calf for every lixf.ore (here (heep, to forfeit likewife xx s. for every calf fo not reared and fed." A milch cow Se£I. 3. " And that every perfon which after the aforefaid feaft of the fhall be kept Purification of our lady, upon his or her feveral paftures as afore is faid, for ten beaiU ma n keep or feed above the number of twenty oxen, runts, (hrubs, fteers, fed, and for heifers or kine, fhall by authority of this aft, for every ten beads of the faid calf reared. ^ orts f° kept anc ^ ^> keep an ^ Rour 'fh one milch cow, and breed, rear and waine yearly, and keep for one whole year, one calf for every two milch kine lb charged to be kept-, upon the feveral pains and forfeitures afore rehearfed, except the faid calf or calves fhall chance to die within the faid year, without covin or fraud thereto added-, (2) the one half of which (aid forfeitures (hall be to the ufe of our fovereign lord and lady the king and queen's majefties -, and the other half to the ufe of the party, that with- in one year after the offence committed will fue for the fame in any of the kina Cattle s*3 king and queen's majefties courts of record, or before the juflices of peace in the fame fhire where any fuch caufe of forfeiture fhall be had, at the ge- neral fefiions (who by authority of this aft fhall have power to hear and determine the faid offences) by bill, information, preientment, action of debt or detinue •, in which aftion or fuit, no effoin, protection, wager of law or licence to the contrary fhall be allowed." Seel. 4. " Provided always, That this aft, nor any claufc thereof, fhall Sheep kept. be extended to bind any perfon to keep milch kine, nor yet to breed or or beaft; fed rear up calves, as afore is exprefTed, for fuch fheep or other beads as the l ? e pen . : Ia fame perfons fhall keep or feed, to the intent only to be fpent in his or n0u f e- their houfe or houfes, without fraud or covin (2) This aft to endure on- ly unto the end of feven years next following the feaft of the Purifica- tion of our lady aforefaid, and from thence to the end of the parliament then next following. Made perpetual by 13 El. c. 25. ©tilt. 7 Jac. 1. c. 8. [A. D. 1609. intituled'] " An aft to enlarge an aft of parliament made in the fecond and third year of king Philip and queen Mary, intituled, An a£l for the keeping of milch-kine, or breeding and rearing of calves." " Whereas in the fecond and third years of king Philip and queen Mary, 2 & 3 P. & a profitable aft was made for the avoiding of the fcarcity of cattle and M - c - 3* viftual, intituled, An acl for the keeping of milch-kine, and for the breed- ing and rearing of calves •, (2) which aft .being then made only to con- tinue to the end of the next fefTion of parliament, was found fo ne- ceflary for the good of the commonwealth, that after many con- tinuances of it by feveral parliaments, it was at length, in the thir- 1 3 Eliz. c. teenth year of the reign of our late queen Elizabeth of happy me- 25- mory, made perpetual: (3) Becaufe the faid aft hath not produced fo good effeft as was expected, in refpeft it did and doth extend only to fuch pafture grounds as were inclofed before the faid aft, and wherein no per- fon, at the making of the faid aft, had common for any cattle at any time of the year, and not to fuch pafture grounds as fithence have been con- verted from tillage, and inclofed, or taken out of commons, and inclofed, whereas in all equity and confeience, many of the faid late inclofures de- ferve no way to be kept and enjoyed with more liberty, than the faid for- mer and antient inclofures." Seel. 2. " Be it therefore enafted by the king's moll excellent The ftatute majefty, the lords fpiritual and temporal, and the commons, in this pre- of2i '3 Pi fent parliament aflembled, and by the authority of the fame, That the faid ^ ^ b c ' 3 ! former aft, and the pains and penalties therein contained, fhall, from and tended to after the feaft of faint Michael the archangel now next enfuing, be extended grounds fmce and conftrued, taken, expounded and adjudged to extend as fully to all inclofed or intents, conftruftions and purpoles, with the fame provifoes, and in like iV^ a c *? manner, to all and every the grounds apt and meet for milch-kine, fince inc ° e ■ the making of the faid aft, inclofed, or hereafter to be inclofed, and not to be laid open to common at any time of the year, and to the occupiers thereof, as to the grounds before the faid aft made feveral, and wherein 4 C 2 none 5 6 4 Cattle. none had intereft of common at the time of making the laid aft, and to the occupiers thereof, and as if the faid grounds fo lately inclofed, and hereafter to be inclofed and made feveral, had been fo inclofed, and held feveral at the time of the making the faid act, and as if no perfon or per- fons, other than the owners thereof, then had intereft of common therein ; any word, fentence or claufe in the faid former act to the contrary in any Wife notwithftanding." By flat. 3 Car. i. c. i. No drover with any cattle mail travel on the Lord's day, on pain of twenty ihillings. See the aft at large under Q5litCl> Ct*& page 489. intituled'] " An aft againft im- parts beyond the feas, and fifh 1 ; Car. 1- Importation of cattle a ' common nu- fance. Enforced by 20 Car. 2. c. 7. feft. 3. Importation of bacon pro- vided for by 5 & 6 W. & M. c. 2. fed 4'- The penalty. @>tat 18 Car. 2. c. 2. [A.D. 1666. porting cattle from Ireland, and other taken by foreigners." " Whereas by an aft of this prefent parliament, intituled, An a 5} for ' the encouragement of trade, amongft other things, fome provifion was made for the preventing of coming in of vaft numbers of cattle, whereby the rents and values of the land of this kingdom were much fallen, and like daily to fall more, to the great prejudice, detriment and impover- ifhment of this kingdom •, which neverthelefs hath by experience been found to be ineffectual; and the continuance of any importation, either of the lean or fat cattle, dead or alive, herein after fpecified, not only un- neceffary, but very deftruftive to the welfare of this kingdom : (2) Be it therefore enacted by the king's molt excellent majefty, by and with the ad- vice and content of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, That fuch importation, from and after the fecond day of February in this prefent year one thoufand fix hundred fixty and fix, is a publick and common nufance, and fhall be fo adjudged, deemed and taken to be to all intents and purpofes whatfoever. (3) And that if any great cattle, fheep or twine, or any beef, pork or bacon (ex- cept for the neceiTary provifion of the refpeftive fhips or velTels in which the fame fliall be brought, not expofing the fame, or any part thereof to fale) {hall from and after the faid fecond day of February, by any wife whatfo- ever, be imported or brought from beyond feas into this kindom of Eng- land, dominion of IVales, or town of Berwick upon 'Tweed; that then it fhall and may be lawful for any conftable, tithingman, headborough, churchwardens or overfeers of the poor, or any of them, within their re- fpeftive liberues, parifhes or places, to take and feize the fame ; (4) and keep the fame during the fpace of eight and forty hours in fome publick or convenient place where fuch feizure fhall be made ; within which time if the owner and owners, or any for them or him, fhall make it appear un- to fome juftice of the peace of the fame county where the fame fhall be fo feized, by the oath of two credible witneffes ; which oath the faid juftice of peace is hereby impowered and required to adminifter ; That the fame were not imported from Ireland, or from any other place beyond the feas, not herein after excepted, after the faid fecond day of February, then the fame, Cattle. 565 fame, upon the warrant of fuch juftice of peace, fhall be delivered without delay : (5) But in default of fuch proof and warrant, then the fame to be forfeited : One half thereof to be difpofed to the ufe of the poor of the parifh where the fame fhall be fo found or feized ; the other half to be to his or their own ufe that fhall fo feize the fame." Seel. 2. " And for the better encouragement of the fifhery of this king- Encourage-' dom, be it further enafted by the authority aforefaid, That if any ling, ment of herring, cod or pilchard, frefh or faked, dried or bloated, or any falmons, finery. eels or congers taken by any foreigners, aliens to this kingdom, fhall be E "l orced b 7 imported, uttered, fold or expofed to file in this kingdom : That then ,| at e 2 °' c '', g it fhall and may be lawful for any perfon or perfons to take and feize the 1". 2. fame •, the one half thereof to be difpofed of to the ufe of the poor of the parilh where the fame fhall be fo found or feized ; the other half to his or their own ufe, which fhall fo feize the fame." SeEl. 3. " Provided always, "That nodiing in this aft fhall be conftrued to hinder the importation of cattle from the IJle of Man in this kingdom ifl e f yiixu of England, fo as the number of the faid cattle do not exceed fix hundred head yearly: (2) And that they be not of any other breed than of the breed of the IJle of Man ; (3) and that they be landed at the port of Chejfer, or fome of the members thereof, and not elfewhere." Seel. 4. " This aft to continue until the end of feven years, and from thence to the end of the firft feffion of the next parliament. Made perpe- petual by 32 Car. 2. c. 2. feci. 2. ©tat 20 Car. 2. c. 7. [A.D. 1668. intituled] " An additional act againlt the importation of foreign cattle." " Whereas by an aft of this prefent parliament, intituled, An ail againfl „ c importing cattle from Ireland, and other parts beyond the feas, andffj taken by , foreigners ; amongft other things, provifion was made againft importation of cattle from parts beyond the feas : And it was thereby enacted,That fuch im- portation from and after the fecond day of February, which was in the year one thoufand fix hundred fixty-fix, was a publick nufance, and fhould be importation fo adjudged, deemed and taken to all intents and purpofes •, (2) and that if of cattle from any great cattle, fheep or fwine, or any beef, pork or bacon, (except for the beyond fea a neceffary provifion of the refpeftive fhips or veffels in which the fame fhould nulance - be brought, not expofing the fame to fale) fhould from and after the fecond day of February, by any wife whatfoever, be imported or brought from be- yond the feas into this kingdom of England, dominion of Wales, or town of Berwick upon Tweed, That then it fhould and might be lawful for any con- ftable, tithingman, headborough, church-warden, or overfeers of the poor, or any of them, within their refpeftive liberties, parifhes or places, to take and feize the fame; (3 ) and keep the fame, during the fpace of eight and forty hours, in fome publick or convenient place where fuch feizure fhould be made •, within which time, if the owner or owners, or any for them or him, fhould make it appear unto fome juftice of the peace of the fame county where the fame fhould fo be feized, by the oath of two credible witneQes 5 66 Cattle. witnefies, that the fame were not imported from Ireland, or from any other place beyond the feas not therein after excepted, after the faid fecond day of February, then the fame, upon the warrant of fuch juftice of peace, fhould be delivered without delay ; but in default of fuch proof and war- rant, then the fame to be forfeited ; one half thereof to be difpofed to the ufe of the poor of the parifh where the fame fhall be fo found or feized, the other to be to his or their own ufe that fhould feize the fame." Sett. 2. " Notwithstanding which act, and the good provifion thereby, great number of cattle, fheep and fwine, and great quantities of beef, pork and bacon, have fince the time limited by the faid aft been import- *8Ca. 2.c. i.ed from Ireland., and other places beyond the feas, as well in foreign as Englijh fhips and veffels, contrary to the good intent of the faid act, and in continuance of the faid nufance, and in high contempt of the authority of parliament : (2) And divers church-wardens, conftables, tithingmen and overfeers of the poor, living near the fea, for their own private lucre, having combined with the owners of fuch cattle, fheep, fwine, beef, pork and bacon imported, as aforefaid, or with their agents, have co- lourably feized, and afterwards privately and fraudulently fold the fame at very low and inconfiderable rates, to the faid owners or their agents : (3 J And other of the faid officers, who have difcharged their duties in the execution of the faid aft, have been molefted therefore, and feveral acti- ons, fuits, plaints and informations have been brought and prefented againft fome of them in counties and places far diftant from their habita- tions, to their great charge and difcouragement. (4) For the vindication therefore of the authority of parliament from fuch bold affronts, and the indemnifying as well of fuch officers, who have faithfully endeavoured the execution of the faid acl (although they have not ftrictly purfued the fame in every circumftance) as of fuch other perfon and perfons who have acted in their aid and affiftance, and for the better and further fuppreffion of the faid nufance ; (5) Be it enacted by the king's mod excellent majesty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That all and every conftable, tithingman, headborough, A21 officers church- warden, and overfeer of the poor, and every other perfon or per- who have fei- fons who have acted in, or concerning the feizure, keeping, detaining or z;d any im- difpofing of any cattle, fheep, fwine, beef, pork or bacon, imported con- Skvedharm*' trarv t0 t ' ie *" a '^ a< -t' a ^ ter tne *" a 'd fecond day of February, fhall be and l e f s , are hereby faved harmlefs, and indemnified in that behalf, againft the Importation owner or owners thereof at the time of fuch importation, their executors of bacon pro- anc j administrators, and every other perfon and peribns claiming from, by ^'/ w or & ^ or under their gift, grantor other difpofition ; and againft all and every c. z. feft. 4. perfon and peribns, to whom any fraudulent fale hath been made after fuch importation, as aforefaid, and their and every of their executors and administrators. Any perfon SeEl. 3. " And it is provided, and further enacted, That not only the may fe ze im- conitables and officers above-named, but every or any other inhabitant or .ported cattle, i n h aD ]r. ants f or within the liberties, parifhes, and places where fuch im- and deliver r r . portation Cattle. 567 portation fliall be made, (hall and may take and feize the cattle and goods them to the fo imported, and after fuch (eizure (hall forthwith deliver or caufe them to officer. be delivered to the conftable, tithingman, headborough, church-warden, or overfeers of the poor, or any of them within the refpective liberties, parifhes and places aforefaid, to be kept, ordered, and difpoied in the manner, and to the ufes and purpofes in this act, and in the faid recited act, or either of them mentioned and directed. Seel. 4. " And it is further enacted, That if no feizure at all mall be Theforfeiture made by the officers or inhabitants, nor any of them, within the liberty, offuch as . ne ' parifh, or place where fuch cattle or goods, as aforefaid, (hall be firft in> £left (0 "*"' ported, then fuch liberty, parifh, and place, and the inhabitants thereof, neglecting to make fuch feizure, for every default fhall forfeit the fum of one hundred pounds, which fliall be imployed for the ufe of the houfe of correction within the county or liberty where fuch default of feizure (hall be;. (2) and the monies fo forfeited, and other the penalties and forfeitures whi.ch are to accrue to the poor by virtue of this act, and the faid recited act, or either of them, (hall be accounted for to fuch perfons, at fuch times, and in fuch manner, as the overfeers of the poor are appointed to account by the (latute made in the three and fortieth year of the reign of 43 El. c, 2. queen Elizabeth, chapter the fecond. Sett. 5. "And be it further enacted by the authority aforefaid, That sh 'P s bringing every (hip or veflel, with all her tackle and apparel, in which any great cattle '^ ,f - cattle,, fwine, (hecp, beef, pork or bacon, from and after the four and feaftTb twentieth day of March) in the year of our lord one thoufand fix hundred forfeited, feiz- fixty and feven, (hall be imported from Ireland, or any other parts beyond ed and fold ; the feas, into the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and out of which they or any of them (hall be put on fhore there, (hall be forfeited: (2) And that it (hall and m.iy be lawful to and for any perfon or perfons, within the fpace of one year after fuch importation, to take and feize the fame (hip or veflel, with all her tackle The money and apparel, and to make ("ale thereof to the bed advantage ; and that one railed thereby, half of the monies to be railed by fuch fale, (hall be difpofed of to the one half t0 ufe of the poor of the parifh where the fame (hall be fo feized, the other other'^'th half to be to his or their ufe that (hall fo feize the fame : (3) And alfo that informer or it (hall and may be lawful to and for any juftice of peace of the county, feizor. or chief officer of the port-town, in or near the place where fuch impor- tation (hall be made, or where any of the cattle, (heep, fwine, beef, pork or bacon fo imported (hall be driven or brought, by warrant under the hand and leal of fuch juftice of the peace, or chief officer, to caufe to be apprehended all and every the mailers, mariners, and leamen, havino- The feamen charge of, or belonging to fuch (hip or veflel in which fuch importation tQ b« a ppre- fhall be made ; (4) and all and every other perfon and perfons actino- or h , < ; ncl f d > and ,,.,,,• j • j- 1 ■ ■ , ° all others con-, imployed in the landing, driving, attending on, or taking care or charge cerned and of the faid cattle, (heep, fwine, beef, pork or bacon imported, as afore- fent to the faid, and them to commit to the common gaol of the faid county, there common gaol. to remain without bail or mainprize, for the fpace of three months. Setl. 6. " And be it further enacted and declared by the authority afore- If any officer faid. That whenfoever, and as often as it fliall happen, either through any ° e ? lea to , ■ ** . P, ; J feize, anotner fraudulent 5 63 Cattle* al . ethem fraudulent agreement or unfaithful connivance of any conftable, head- ami have the borough, tithingham, church-warden, or overfeer of the poor, or that it one half, gi- fhall happen any otherwife howfoever, that any great cattle, fheep, ving the other fwine, beef, pork or bacon, after the firft feizure of them, or any of toiUepoor. tnern) by virtue of the aforeiaid act, fhall be driven, brought, carried into, or found in any other parifh or place, than where the fame fhall be firft feized, as aforeiaid •, that then and fo often, and from time to time, it -fhall and may be lawful to and for the conftable, tithingman, headbo- rough, church-warden, or overfeer of the poor of every or any fuch other parifh or place where fuch great cattle, fheep, fwine, beef, pork or bacon, fhall be brought, driven or carried into, or found, as aforefaid, to feize, take and difpofe the fame, and every or any of them as for- feited, the one moiety thereof to the ufe of the poor of fuch other parifh or place where fuch feizure fhall be made, the other to the ufe of fuch officer or officers who fhall feize the fame, as aforefaid •, any other or for- mer feizure or feizures in any other parifh or parifhes, place or places, notwithftanding. Trial in the Sett. 7. " And be it further enacted by the authority aforefaid, That if county where any action, bill, plaint, fuit or information is or fhall be commenced, the caufe of or profecuted againft any perfon or perfons, for any feizure, or other thing adion antes. mac i e or d onej or t0 be made or done, by virtue or colour of this, or the aforefaid act-, and upon the trial of fuch action, bill, plaint, fuit or in- formation, it fhall not be proved to the jury that fhall try the fame, that the caufe of fuch action, bill, plaint, fuit or information did arife within fuch county where fuch action, plaint, fuit or information is laid and tried, the defendant and defendants fhall be found not guilty, without having regard to any evidence given by, or for the plaintiff, informer or profecutor. Sett. S. " And be it further enafled by the authority aforefaid, That if any action, bill, plaint, fuit or information hath been, or fhall be com- menced or profecuted againft any perfon or perfons, for any feizure or other thing done or made, or to be done or made in purfuance or execu- tion of this, or the aforefaid act •, fuch perfon or perfons fo fued in any General lilue. court: whatfoever, may plead the general ifTue, and give this and the afore- faid act, and the fpecial matter in evidence for their excufe or juftification : (2) And if the plaintiff or profecutor fhall become nonfuit, or forbear pro- fecution, or fuffer difcontinuance, or if a verdict pafs againft him in any fuch action, bill, plaint, fuit or information, as aforefaid, the defendants fhall have treble cofts, for which they fhall have the like remedy, as in any cafe where cofts by the law are given to the defendant. Sec?. 9. " Provided always, That nothing in this act fhall be conftrued to hinder the importation of cattle from the ifle of Man into this king- dom of England, fo as the number of the faid cattle do not exceed fix hundred head yearly, and that they be not of any other breed than of the breed of the ifle of Man, and that they be landed at the port of Chejier, or fome of the members thereof, and not elfewhere. Seil. 10. " And it is laftly enacted, That if any perfon or perfons fhall wilfully and fraudulently confpire, confederate, or agree together, to avoid or Defendant to have treble coils. Provifo to im- port cattle from the ifle of Man. Confederacy to elude this ads incurs a Cattle. 569 or evade the feizures or forfeitures upon importation of cattle or goods in Pramunirt, this prefent aft particularly fpecified, and the fame fhall put in execution •, then every fuch perfon and perfons, being thereof lawfully indicted or prefented within one year next after fuch offence by him or them commit- ted, and being thereof lawfully convifted or attainted at any time after, according to the laws of this realm, fhall incur the dangers, penalties, pains and forfeitures contained and provided in and by the ftatute of pro- '6R. *• «• s- vifion and praemunires made in the iixtecnth year of the reign of king Richard the fecond." By Stat. 22 CS* 23 Car. 2. c. 7. Cutting, maiming, wounding and killing of horfes, fheep, beads and other cattle, is felony. See this ail at large un- der title I3urninrj, page+js. @ti1t- 32 Car. 2. c. 2. [J. D. 1680. Intituled] " An aft prohibiting the importation of cattle from Ireland." " Whereas an aft of parliament was made in the eighteenth year of a recital of the reign of our fovereign lord the king that now is, intituled, " An aft 18 Car. z. c. againft importing cattle from Ireland, and other parts beyond the feas, and 2 - fifh taken by foreigners ;" which was to continue until the end of feven years, and from thence to the end of the firft feffion of the next parliament, which is now expired : Seel. 2. " And forafmuch as by long experience the faid law hath been The benefit found to be very beneficial to this kingdom, (2) Be it enacted by the kino-'s of jt - moil excellent majefly, hy and with the advice and confent of the lords fpi- That ,8 /- ar * ritual and temporal, and the commons, in this prefent parliament afTembled, revWedand and by the authority of the fame, That the faid aft, and every claufe, ar- continued for tide, and thing therein contained, together with the additions and altera- ever - tions herein after mentioned and exprefled, fhall from and after the fecond day of February, which fhall be in the year of our lord God one thoufand fix hundred and eighty, be revived, continue and remain, and is hereby revived and continued in force, to all intents, conftruftions and purpofes for ever. Se£l. 3. " And be it further enafted by the authority aforefaid, That Not only offi- not only the conftables, officers, and inhabitants mentioned in the afore- cers, but all faid recited aft, but any and every other perfon and perfons whatfoever, peribns may fhall and may take and feize, in any place or places whatfoever, the cat- *f' ze Ir,fh cat " tie and goods imported contrary to the faid recited aft ; (2) and that all j^"^ 00 * and every fuch perfon and perfons, that fhall feize as aforefaid, fhall from All feizors to time to time have the benefit and advantage hereafter given by this act to have benefit, any feizor or feizors whatfoever. Setl. 4. " And to prevent all fraudulent feizures, fales and compofitions, To prevent to be made by any perfon or perfons whatfoever, in any parilh or place fraudulent whatfoever, where any great cattle, fheep or fwine fhall be imported or Sales ani found contrary to this or the act aforefaid, and to make the prohibitions com P ofuic,ns ' therein more effectual ; Vol. I. N° XXIV. 4 D &#. sjo Cattle. Seizor (hall Seft. 5. " Be it enacted by the authority aforefaid, That all and every caufethecattie t jj e re fp e <5r.ive feizor or feizors of fuch cattle, fheep or fwine, (hall within HJes'l'"^' *~ 1X ^ a y s a *~ ter convi & ion ancl forfeiture thereof, caule the faid cattle, fheep tallow \o be and fwine to be killed ; (2) and the hides and tallow of fuch great cattle, thefeizors.the fheep and fwine, fhall be and remain to the ufe of the faid feizor or feizors, red to be anc j tn e remainder of the faid great cattle, fheep and fwine fliall be attributed to f ort | lw i t h diltributed amongft the poor of the faid parifh, by the church- thechurclf- wardens and overfeers of the poor there, or fome of them, upon notice wardens, Isfc. thereof to be given them, or any of them by fuch feizor or feizors, as aforefaid ; any thing in the faid former law, or any other law, to the con- s . r trary notwithstanding." chorcbwar- SeS. 6. " And be it further enacted, That in cafe the faid feizor or densandover- feizors, or the churchwardens and overfeers of the poor, fhall fail in their feersonne- respective duties, in the execution of this act, they and every of them gleft forfeit r efpectively, fhall forfeit the fum of forty millings for every one of the preat cattle g reac catt ' e > an d ten (hillings for every fheep or fwine, which fhould have and 1 os. for been killed and diltributed, as aforefaid •, one moiety thereof to the poor each (heep or of the laid parifh, and the other moiety to the informer; (2) The fame to fwine. To be De i ev ; e d D y- diftrefs and fale of the goods and chattels of the perfon or diftefad perfons fo offending, by warrant under the hand and feal of any juftices fale of chattels of the peace of the faid county or place where the faid offence fliall by warrant of be committed, upon confeffion of the party, view of the faid juftice, or oath anyjuitice, thereof made before fuch juftice by .one or more credible witnefs or "'• witneffes, other than the informer: which oath the faid juftice hath hereby For want of P ower t0 adminifter, rendering the overplus to the owners thereof, necef- diftrefs, the WY charges of diftraining being firft deducted. (3) And for want of fuch party to be diftrefs, the faid offender or offenders to be committed to the common imprifoned „ ao j f tne f a ;d county or place, there to remain for the fpace of ('three See mSs months without bail or mainprize." Setl. 7. " Provided always, and be it further enacted by the authority Nothing here- aforefaid, That neither this act, nor any other act whatfoever hereafter lm to r hmder e made, fhall either hinder or be conftrued to extend to hinder the im- ftock fifaTnd portation of ftock-fifh or live eels into this kingdom of England; (2) but c«ls. that it fliall and may be lawful to and for all and every perfon and perfons Any perfon whatfoever, to import into this kingdom of England any ftock fifh or live may impart ee i s as a f or efaid •, any thing in this act, or any other law, itatute, ufage or itockhlh and „ , •■/•■• -.ua j- u live eels. cuftom to the contrary in any wiie notwithltanding. Altered as to Sell. 8. "And whereas the prefent laws do not fufficiently provide foreigners, by a^ainft the importation of mutton and lamb out of Ireland, and other parts 1 Geo. i.ftat. b e y 0nf j t he feas into this kingdom, but that great quantities thereof are *' ™*°' 1 dally imported and fold, to the great lofs and prejudice of this kingdom ; fulhcientpro (2) Be it therefore enacted by the authority aforefaid, That from and vifion againtt after the faid fecond day oi February, no mutton or lamb fhall be imported importation of i nto tn j s kingdom from the kingdom of Ireland or any foreign parts: J 11 "" 011 a " d (3) And all mutton and lamb imported from Ireland, or beyond the feas, mutton or °r that fhall be expofed to fale within this kingdom, fhall be fubject to the 4 like Cattle. 57 i like feizures, and the importers and fellers thereof refpectivcly to the like lamb (hall be penalties, as are provided and appointed in any former law agamlt any im- irn P orted - porter or feller, or importation of any beef, pork or bacon, from the kins- i 'f " ° r j r t 7 j r ■ l-u- c i lamt) ini P° rt - dom of Ireland, or any foreign parts \ any thing in this or any former law ec j or ex pofed or ftatute to the contrary notwithstanding." to fale, iubjeft Sett. 10. " And for the more effectual execution of this and the afore- to former pe- faid aft, (2) Be it further enacted by ,he authority aforefaid, That if any ra great cattle, fheep or fwine fhall be once or oftner feized in purfuance of this F ° r tflt- 15 Geo. 2. c. 34. [ A. D. 1741. intituled} "An act to explain an act made in the fourteenth year of the reign of his prefent majefty," intitu- led, An ail to render the laws more effectual for -preventing the jlealing and de- Jiroying ofjheep and other cattle." " Whereas by an act made in the fourteenth year of the reign of his '4 Geo. 2. c: prefent majefty, intituled, An ail to render the laws more effeilual for prevent- 6 " ing the Jlealing and dejlroying ofjheep and other cattle, it was enacted, That if any perfon or perfons fhould, at any time from and after the firft day of May in the year of our Lord one thoufand (even hundred and forty-one, felonioufly drive away, or in any other manner felonioufiy ileal, one or more fheep or other cattle of any other perfon or perfons whatfoever, or fhould wilfully kill one or more fheep or other cattle of any other perfon or perfons whatfoever, with a felonious intent to fteal the whole carcafe or carcafes, or any part or parts of the carcafe or carcafes of any one or more fheep or other cattle that fhould be fo killed, or fhould afTift or aid any perfon or perfons to commit any fuch of- fence or ^offences, that then the perfon or perfons guilty of any fuch offence, being thereof convicted in due form of law, fhould be adjudged guilty of felony, and fhould fuffer death as in cafes of felony without benefit of clergy : And whereas it is doubtful to what forts of cattle befides fheep the faid act was meant to extend , Be it therefore en- acted and declared by the king's moft excellent majefty, by and with To what fort „ the advice andconfent of the lords fpiritual and temporal, and commons, of cattle the in this prefent parliament afTembled, and by the authority of the fame, aft fhall ex- That the faid act was meant and intended, and fhall be conftiued, deem- tend - ed and taken to extend to any bull, cow, ox, fteer, bullock, heifer, calf and lamb, as well as fheep, and to no other cattle whatfoever." Bv 574 Cattle* By Stat. 31 Geo. 2. c. 40. Salefmen and others employed to fell cattle in London, or within the weekly bills of mortality, are not to buy and fell on their own account, on penalty of forfeiting double the value. See this ail at large under title JjKip. ©tilt- 5 Geo. 3. c. 10. {A. D. 176c. Intituled] " An act to permit the free importation of cattle from Ireland." " Whereas an aft, paffed in the thirty-fecond year of the reign of his Preamble, j ate majefty king George the fecond, intituled, " An aft to permit the free Aft 32 Geo. ml p 0rtat ion of cattle from Ireland for a limited time" is near expiring ; Be it 2 ' therefore enafted by the king's moll: excellent majefty, by and with the ad- vice and confent of the lords fpiritual and temporal, and commons, in this The free im- e r ent parliament affembled, and by the authority of the fame, That from ^'le'fVorrf and after the end of this feffion of parliament, the free importation of all "eland al- fores of cattle into this kingdom from Ireland fhall be and is hereby per- lowed for the m itted, allowed and authorized, for and during the fpace of feven years, term of 7 an j f rom t hence to the end of the then next feffion of parliament •, and yea u ' that all perfons fhall be and are hereby exempted, freed and difcharg- ment°of dT ed from the payment of all fubfidies, cuftoms, rates, duties, or other ties. impositions, and alfo from all penalties, forfeitures, payments, and pu- nifhments, for or on account of importing or bringing cattle into this kingdom from Ireland ; any act or acts of parliament to the contrary not- withftanding. Se8. 2. " And be it further enacted by the authority aforefaid, That if any action or fuit fhall be commenced againft any perfon or perfons for any thing done in purfance of this act, the defendant or defendants, in General iffue. f ucn ac ~ t ion or fuit, may plead the general iffue, and give this act and the fpecial matter in evidence at any trial to be had thereupon, and that the fame was done in purfuance and by the authority of this act ; and if it fhall appear fo to have been done, the jury fhall find for the defendant or defendants j and if the plaintiff fhall be nonfuited, or difcontinue his action after the defendant or defendants fhall have appeared, or if judg- ment fhall be given upon any verdict or demurrer againft the plaintiff, the {Treble colls, defendant or defendants fhall and may recover treble cofts •, and have the like remedy for the fame, as any defendant or defendants hath or have in other cafes by law. By Stat. 5- Geo. 3. c. 43. Beftials may be freely imported from the IJle of Man. Cettioaaru 575 Certiorari* CERTIORARI is an original writ iffuing out of Chancery or the King's Bench, directed in the king's name to the judges or officers of inferior courts, commanding them to return the record of a caufe de- pending before them j to the end the party may have the more fure and ipeedy juftice before him or fuch other juftices as he fhall affign to de- termine the fame F. N. B. 242. The court of King's Bench has a fuperintendancy over all courts of an inferior criminal jurifdiction, and may by the plentitude of its power award a certiorari, to have any indictment removed and brought before itfelf •, and where fuch certiorari is allowable, ought of right to award it at the inftance of the king, becaufe every indictment is the fuit of the king, and he has a prerogative of fuing in what court he pleafes. 1 Vent. 63. 1 Mod. 4. 2 Hawk. P. C. 287. But though the court is to grant it at the fuit of the king, yet it has a difcretionary power in granting or refufing it at the fuit of the de- fendant, and agreeably hereto it is laid down as a general rule, That the court will never grant it for the removal of an indictment before juftices of gaol-delivery, without fome fpecial caufe ; as where there is juft rea- fon to apprehend that the court below may be unreafonably prejudiced againft the defendant-, or where there is fo much difficulty in the cafe, that the judge below defires that it may be determined in the King's Bench •, or where the king himfelf gives fpecial direction that the caufe fhall be removed ; or where the profecution appears to be for a caufe not properly criminal. 2 Hawk. P. C. 287. Neither will the court of King's Bench ordinarily, at the prayer of the defendant, grant a certiorari for the removal of an indictment of perjury, or forgery, or other heinous mifdemeanor ; for fuch crimes deferve all poffible difcountenance, and the certiorari might delay, if not wholly difcourage their profecution. 2 Hawk. P. C. 287. Nor will the court of King's Bench grant it for a conviction of recu- fancy on a default at the feffions, becaufe by the ftatute fuch convictions are to be removed into the Exchequer, and procefs on them is to go from thence. 2 Hawk. P. C. 287, 288. A certiorari lies in all judicial proceedings, in which a writ of error does not lie •, and it is a confrquence of all inferior jurifdictions erected by act of parliament, to have their proceedings returnable in the King's Bench. Ld. Raym. 469, 580. And therefore a certiorari lies to juftices of the peace, even in fuch cafes which they are impowered by ftatute finally to hear and determine -, and the fuperintendency of the court of King's Bench is not taken away without exprefs words. 2 Hawk. 286. It 57 6 €tttioiatt It feems agreed, that a certiorari fhall never be granted to remove art indictment after a conviction, unlefs for ibme fpecial caufe ; as where the judge below is doubtful what judgment is proper to be given ; for unlefs there be fome fuch reafon, the judge who tried the caufe, (hall not be prevented from giving judgment in it ; for it cannot be intended but that he is beft acquainted with the circumftances of it, and confequently beft able to judge what fine or other puniftiment is proper for it. 2 Hawk. 288. 2 Stran. An indictment was removed into the King's Bench by certiorari, after 'rG conviction, and before judgment. Upon which a doubt arole, what the KinTv.Ni- court could do, the certiorari being brought before judgment ; and this cholTs. court not being apprized of the circumftances of the offence, could not tell what judgment to give : And in Carth. 6. it is faid they cannot give judgment. A rule therefore was made, to fhew caufe why the certiorari fhould not be quafhed, fo as to remit it back, to the feflions ; which was afterwards made abiblute. Certiorari to Lord Mansfield being abfent in the dutchy-court, the three other judo-es d^dmentfroro f on a defended motion) granted a procedendo, at the inftance of the defen- ttie quarter- dant, to the quarter-fefiions of Brecon, upon an indictment for an affault feflions not removed up hither •, becaufe the certiorari had not iffued till after the de- being iflued fendant had confejfed the affault below •, though the conviction was not feflion^o'the a ^ ter a tr ' a '' anc * tnou gh feveral of the juftices were fworn to be near rela- artault be- tl0ns °f Mr. Gwynne, one of the defendants j. namely, his father, two low, a proce- brothers, and an uncle. dendo was granted, z Bur Rep 749. Kil. 32 Geo 2. Rex v. Gwynne Sc al*. Certiorari lies Mr. Knowler and Mr. Filmer fhewed caufe againft ijfidng of a certiorari to remove or- to remove feveral orders made by Mr. Money penny, a juftice of peace in ders made Kent, upon the Conventicle-, 4fl, 22 Car. 2. c. 1. By which orders he had upon the con- conv i c ^ ec j a rnethodilt preacher, and the mafter of the houfe wherein he venticleact, . , ... . r c , ,. , r „■ , . .- ., 22 Car. 2. c preached, and ieveral or the audience, in the reipective penalties rollow- 1. even after ing. The preacher (Moreley) was convicted in 20/. The mafter of the appeal, trial houfe (OJlwrne) in2o/. and feveral of the perfons prelent in 51-. a-piece. byajury Two of the auditors (Reeve and Norris) had 10/. a-piece levied upon TuXmenT them, (by virtue of the third fection of this act)-, the preacher himfelf aot againft the being to be found. The penalty had been levied upon QJborne, (the ma- defendants fier of the houfe) as well as upon Reeve and Norris. They had all ap- notwithiland- pealed (within the week) to the feflions : And Mr. Maneypenny had re- A^jth fecti turne d to the feflions, the monies levied, and certified the evidence, with ons for the the record of the conviction, agreeable to the directions of the 6th fec- certiorari does tion ; and the defendants had pleaded and been tried by a jury at the quar- not go to try ter-felTions ; and there had been both verdict and judgment given againft the merits, ° but to fee them - whether the limited jjirifdiftion have exceeded their bounds or not. 2 Bur. Rep. 1040. T.-in. 33 & 34 Geo. 2. Rex v. Morely, Ofborne, Reeve and Norris. Mr. Knowler and Mr Filmer, on behalf of the profecution, urged, that after all this had paffed, a writ of error might lie •, but not a certiorari^ •which €ttti0Wi> 597 which will lie when there is no other remedy. And there is a claufe in the 6th fection, which expreffes, " That no other court whatfoever Jhall inter- *' meddle with any caufe or caufes of appeal upon this act ; but they lhall *' be finally determined in the quarter-feffions only." Which negative words muft include all the courts of judicature in the kingdom, and this court in particular, as being raoft likely to meddle with matters of this kind. And the 13th fection directs " that this act, and all claufes therein ** contained, fhall be conflrued mcjl largely and beneficially for the fapprejftng " of conventicles, and for the justification and encouragement of all perfons " to be employed in the execution thereof-, and that no record, warrant " or mittimus to be made by virtue of this act, or any proceedings there- *' upon, fhall be reverfed, avoided or any way impeached, by reafon of any " default informs." Therefore, to what purpofe fhould a certiorari ili'ue, when the court can neither intermeddle with the fail or form ? The penal- ties are (by the fecond fection) to be dijlriluted into three parts ; f to the king, f to the poor, f to the informer •, and thofe penalties have been fo diftributed •, and this court can not order rejlilution. As to the penalties under 10 s. the act gives no appeal : If the juftices have done any wrong in the manner of thefe, 'tis a matter coram nonjudice. Mr. Knowler and Mr. Filmer had affidavits of the facts which they alledged. Lord Manf- field, afked them whether the negative words in the 6th fection would not conclude ftrongly againft a writ of error. Mr. Knowler and Mr. Filmer anfwered, That as to fail, they might ; but, perhaps, not as to law. They cited a little printed book, faid to be written by lord chief juflice Saunders, (a comment on this conventicle-act) folio 6g. feci. 6. and feci. 13. which fhewed him to be of opinion "That no certiorari would lie upon it." Mr Juftice Dennifon obferved, that there have been many determina- tions to the contrary lince. Mr. Norton, Mr. Stow, and Mr. Leigh, who were for the certiorari, in- filled that the general jurifdicfion of this court is not taken away by mere negative words in an act of parliament : this court fhall never be oufledof its jurifditlion without fpecial words. Dr. Fofier's cafe, 1 1 Co. 64. b. 1 Ro. Rep. 92, 94. S. C. 1 Ventr. 66. Smith's cafe. 1 Mod. 45. S. C. Befides, thefe words, " that no other court whatfoever fhall intermeddle with any " caufe or caufes of appeal; but that they fhall be finally determined in the quarter-feffions only" mean no more than that the fails fhall not be re-ex- amined; but the legality may; or a want of jurifditlion may be taken ad- vantage of. The cafe may be fuch as that the juftices have no jurifditlion of the matter. And where a ftatute does not exprefsly and totidem verbis take .away a certiorari, and direct, " that, no certiorari fhall iflue," the court will grant one. And Peat's cafe, in 6 Mod. 228. proves, *' that a certi- " orari dees lie upon this very aft." The court there fay, " that the " juftices of peace being judges of the matter, if they wrong you, you " hnveycur remedy by certiorari, or appeal to the feffions." And it ap- pears in that cafe (at the end of it) that a certiorari had then atlually ■jffued. As to five of thefe convictions, which were againft perfons pre- fect at this aflembly, and under 10 s. (namely, only 5 s. a-piece,) no ap- Voul. N". XXV. 4 E t td 57% Certiorari* peal is given : And* confeqnently there can be no doubt but that a cet& • tierari does lie, as to them. Mr. Norton, being afked " What was the objection that he had to thefc " convictions," anfwered, that it was not alledged " That the defendants " ztere fubjeils of this realm: which is an eflcatial requifite. The court were unanimoufly of opinion, that a certiorari ought to ijfue. A certiorari does not go to try the merit of the queftion ; but to fee whe- ther the limited jurifdiction have exceeded their bounds. The jurifditlion of this court is not taken away, unlefs there be exprefs words to take it away: This is a point fetttled. Therefore a. certiorari ought to iflue: And after a return (hall be made to it, you will be at liberty, and it will be open to you to move to fuperfede it, if there fhould appear reafon for the court's ib doing. Rule made abfolute for a certiorari. %tdX- 21 Jac. i. tr. 8. \_A. D. 1623.] Made, among other purpofes, " To prevent the abufes in procuring writs of certiorari for the removing of in- dictments found before juftices of the peace in their general feffions." " Seel. 6. " And whereas divers bills of indictments of riot, forcible entry, or of afiault and battery, being found before the juftices of peace at their quarter-feffions of the peace, or otherwife, are oftentimes re- moved from the counties where fuch indictments are found, by writs of ■certiorari unto them directed out of the faid courts, by, or by the means ■of the perfons fo indicted, who well know that few or no perfons grieved by fuch their outrages and mildemeanors whereof they ftand fo indicted, will undergo the travel or charge of profecution of fuch indictment fo removed, by bringing the parties fo indicted to trial; by means whereof, fuch offenders for the moft part efcape unprofecuted or unpunifhed, and the king lofeth the fines which ought, and fhould have been im- pofed upon them, if fuch indictments had been profecuted, and not re- moved : eirtitmrhf ^eli. 7- " Be it therefore enacted, That all fuch writs of certiorari fliallnotbeal- (hall,' from and after the end of this prefent feffion of parliament, be deli- Sowed, unkfs vered at fome quarter-feflions of the peace in open court: (2) And that the indiftee ^ p art j es indicted fhall, before the allowance of fuch certiorates, become boun/to pay bound unto fuch perfon or perfons which fhall profecute fuch bills of in- eoife. dictment againft them, in the fum of ten pounds, with fuch fufficient Farther provi- fureties as the juftices of peace at their quarter-feffions of the peace fions relating fl^i .think fit, with condition to pay unto the faid profecutors of fuch t °, ^Tca'"' bi" s or " indictment, within one month after the conviction of fuch parties 2. c. 6. f. 16. indicted, iuch reafonable cofts and damages, as the faid juftices of peace 22 Car 2. c. of fuch counties where fuch bills of indictment fhall be found, in the faid 12 - j/ *• feffions of the peace fhall affefs or allow : (3) And that in default thereof, c & n '%*&*' lt fhall be lawful for the faid juftices to proceed to trial of fuch indict- w. 3. c. 33 ments ; any fuch writs of certiorari to remove the fame indictments not- 1 3 Geo. 2. withftanding." €tttiOlM. 579 €?utf. 5 IVill. ii Ma. c. ii. [A. D. 1694. intituled] "Anad toprertnt delays of proceedings at the quarter-feffions of the peace." " Whereas it is experienced that, notwithstanding the ftatutes made in 2I j ac , c R the one and twentieth year of the reign of king James the firft, and in the thirteenth and fourteenth and two and twentieth years of king Charles the , , & , . Car fecond, concerning the granting of writs of certiorari, to remove indict- z. c. 6. J ments of riots, forcible entry, aflault and battery, and other preferments - 2 c y- ~c. and indictments out of the courts of the general or quarter-feffions of the '-'■•: peace, in the counties or places wherein fuch indictments have been four., 1 , and proceedings thereupon recorded, into their majefties court of King's Bench, divers turbulent, contentious, lewd and evil difpofed perfons, ft ing to be defervedly punifhed, where they and their offences are^well known, have not only obtained writs of certiorari tor removing luch indictments found againft them as aforefaid, but alio indictments for fundry other tref- paffes, frauds, nufances, contempts and mifdemeanors, alter iffue joined, and the profecutors attending with their council and witnelTes to try the fame before the faid juftices of the peace in their faid fefiions, to the great difcourgement of the profecutors, and of fuch conftables and other officers, as according to their duty prefent perfons for thofe and fuch like trefpafifes, offences, and mifdemeanors : For remedy whereof, and that fuch offenders may be brought to condign puniihment-," Seel. 2. " Be it enacted by the king's and queen's moft excellent ma- Certiorarfin jefties, by and with the advice and confent of the lords fpiritual and term time temporal, and commons, in this prefent parliament affembled, and by theS rantable . on '? authority of the fame, that in term time no writ of certiorari whatfoever, UF ° n m0tl0u * at the profecution of any party indicted, be hereafter granted, awarded, or directed out of the faid court ox' King's Bench, to remove any fuch indictment or prefentment of trefpafs or mifdemeanor, before trial had, from before the faid juftices in the faid courts of general or quarter-feffions of the peace, unlefs fuch certiorari fhall be granted or awarded upon motion of council, and by rule of court made for the granting thereof, before the judge or judges of the faid court of King's Bench fitting in open court, and that all the parties indicted, profecuting fuch certiorari, before the allow- R ^ . ance thereof, fhall find two fufficient manucaptors, who fhall enter into a to heaven for recognizance before one or more juftices of the peace of the county or trying theiffw place, in the fum of twenty pounds, with condition at the return of fuch nextaffizes, writ to appear and plead to the faid indidtment or prefentment in the faid court of King's Bench, and at his and their own cofts and charges to caufe 2 Salk - 5 6 4« and procure the iffue that fhall be joined upon the faid indictment or pre- fentment, or any plea relating thereunto, to be tried at the next affizes to be held for the county wherein the faid indictment or prefentment was found, after fuch certiorari fhall be returnable, if not in the cities of London, exce p t ; n Weftminfter, or county of Middle/ex; and if in the faid cities or county, London and then to caufe or procure it to be tried the next term after, wherein fuch Weftminfter. certiorari fhall be granted, or at the fitting after the faid term, if the court of King's Bench fhall not appoint any other time for the trial thereof; and if 4 E 2 any 5 8o Certiorari. any other time (hall be appointed by the court, then at fuch other time, and to give due notice of fuch trial to the profecutor, or his clerk in court •, and that the faid recognizance and recognizances, taken as aforefaid, fhall be Certiorari certified into the faid court of Kings Bench, with the faid certiorari and granted with- j nt jj£t ment t0 De t here filed, and the name of the profecutor (if he be the zancTvold!" party grieved or injured) or fome publick officer, to be indorfed on the back of the faid indiclmenr, and if the perfon profecuting fuch certiorari, being the defendant, fhall not before allowance thereof, procure fuch manucaptors to be bound in a recognizance as aforefaid, the juftices of the peace may and fhall proceed to trial of the faid indictment at the faid fellions, not.vithftanding fuch writ of certiorari lb delivered." Oflieerspro- Sett. 3. " And be it further enacted, That if the defendant profecuting (ecuting fhall f uc h writ of certiorari be convicted of the offence, for which he was in- have double didted, that then the faid court of King's Bench fhall give reafonable cofts to the profecutor, if he be the party grieved or injured, or be a juftice of the peace, mayor, bailiff, conftable, headborough, tythingman, churchwarden, or overfeer, of the poor, or any other civil officer, who fhall profecute upon the account of any fact committed or done, that concerned him or them, as officer or officers, to profecute or prefent, which cofts fhall be taxed according to the courfe of the faid court, and that the profecutor, for the recovery of fuch cofts, fhall within ten days after demand made of the defendant, and refufal of payment on oath, have an attachment granted againll the defendant by the faid court for fuch his contempt ; and that the faid recognizance fhall not be difchai ged till the cofts fo taxed fhall be paid.'* r - 'how Sell. 4. " Provided always, and be it enacted by the authority aforefaid, grantable in That in any of the vacations, writs of certiorari may be granted by any of vacation. the juftices of their majeflies court of King's Bench, whole names fhall be indorfed on the faid writ, and alfo the name of fuch perfon at whole inftance the fame is granted, and that the party or parties indicted, profe- cuting fuch certiorari, fhall before the allowance of fuch writ or writs of certiorari, find fuch fureties in fuch fum, and with fuch conditions, as are be- fore mentioned and fpec::edin this prefent act." Certiorari in Seil. 5. " And be it, further enacted by the authority aforefaid, That Cterter, &c. U p 0n ever y certiorari granted or awarded within the counties palatine of bow grante . Qfcj}.^ L anca jl er ^ r Durham, to remove indictments or prefentments for any of the matters aforementioned, all the parties indicted, profecuting fuch certiorari, fhall find fuch fureties to be bound in fuch fums, and with fuch refpective conditions, and at his or their own cofts and charges fhall caufe and procure the iffue joined upon the faid indictments or prefent- ments, to be tried at the next alfizes or general gaol-delivery to be held for the faid refpective counties, and fhall give like notice to the profecutor ; and if convicted fhall be liable to like cofts, to be taxed as is by this act provided, for in cafes where the fame are granted, or awarded out of the court of King's Bench at IVeslminfter." Certiorari ^.^ g_ «. p rov ided always, and be it enacted by the authority aforefaid, h^hwaT" 11 ^ That if any indictment or prefentment be againft any perfon or perfonsy i/c See Stat. f° r noc repairing of any highways, caufeways, pavements, or bridges, and the Cetfrojarf. 581 the right or title to repair the fame may come in quefticn, upon fuch fug- 7 Geo. 3. c. geffion and affidavit made of the truth thereof, a certiorari may be granted 4^ fe& 53^ to remove the fame into the court of King's Bench ; any law or ftatute to the contrary in any wife notwithstanding. Provided neverthelefs, That the party or parties profecuting fuch certiorari fhall find two manucaptors to be bound in a recognizance and with condition as aforefaid." Seel. 7. " Provided always, and be it enacted by the authority aforefaid, This aft to That this act (hall continue and be in force for three years, and from thence continue for 3 to the end of the next feffion of parliament and no longer. Made perpetual^™' by 8 &f 9 W. 3. cap. 33. ©tat. 8 fc? 9 Will. 3. c. a. [A. D. 1697. intituled] " An act to make perpetual and more effectual an act, intituled, An acl to prevent delays at the quarter-feffions of the peace. " Whereas an act made in the fifth and fixth years of the reign of king William and the late queen Mary, intituled, An atl to prevent delays of proceed- Acl 5 & 6 Wi ings at the quart er-feffmis of the peace, which was to continue and be in force & ML c. 1 1. for three years, and from thence to the end of the next fefljon of parliament, ma e P cr P e " by experience hath been found ufeful and beneficial ; therefore for conti- nuing the fame, Be it enacted by the king's moft excellent majeffy, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That the faid act fhall be and is hereby continued, and fhall be in force and be made perpetual." Seel. 2. " And for making the Purpofe and defign of the faid act more effectual, be it enacted by the authority aforefaid, ; That from and after the one and twentieth day of April, which (hall be in the year of our Lord one p art ^ pro r ew thoufand fix hundred ninety-feven, the party or parties profecuting any cer- cming any tiorari, to remove any indictment or prefentment from the quarter or ge- certiorari to neral feffions of the peace, may find two fufficient manucaptors] who fhall en- rernove an in -' ter into a recnenizance before any one of his maiefty's iuftices of the court "\ mt " nt ™Y ^ r . j j j _ niiu two ma- of king's bench, in the fame (urn, and under the fame condition as is re- nucaptors to- quired by the faid act, whereof mention (hall be made on the back of fuch enter into a writ, under the hand of chejuftice taking the fame, which (hall be as ef- recognizance, fectual and available to all intents and purpofes, to ftay and fuperfede any further proceedings upon any indictment or prefentment, for the removal of which the faid writ of certiorari (hall be granted, as if the recognizance had been taken before any one of the jiift ices of the peace of the county or place where fuch indictment was found, or prefentment made ; and alio it "^T*^- fhall be added to the condition of every recognizance taken by virtue of tne King's this and the faid act, that the party or parties profecuting fuch writ of cer- bench court tiorari, (hall appear from day to day in the faid court of king's bench, and ur ' :i1 difcharj- not depart until he or they (hall be difcharged by the faid court. e In the conltruction of thefe ftatutes, fays Mr. ferjeant Hawkins, the fol- lowing points feem moft remarkable : Ftr/f'y 582 €at(®ml Firfi, That notwithstanding by the exprefs wards, juftices of peace may proceed to trial of the indictments, notwithstanding the certiorari, if a proper recognizance be not given •, yet they will be in contempt to the court that awarded the certiorari, if they make no return to it ; for all writs niufl be obeyed, unlefs good caufe be ("hewn to the contrary ; and the proper way of fhewing it is to return it. a Hawk. 292. Secondly, That it appears from the manifeft purport of thefe ftatutes, that they extend only to certiorates procured by perfons indicled; from whence it follows, that thofe which are procured by the profecutor of an indictment remain as they were at common lav/. 2 Hawk. P. C. 292. Thirdly, That thefe ftatutes, being in the affirmative as to the taking of recognizances, do not take away the power which the juftices of the king's bench have by the common law of taking recognizances upon their grant- ing certiorates, from whence it follows, that it any iuch juftice, granting a certiorari, ihall take a recognizance variant from that prefcribed by the act, either as to the fum or condition, tsV. fuch recognizance will have tire fame force as it would have had, if thefe ftatutes had not been made •. but it is faid, that the certiorari, if procured by the defendant, will not in fuch cafe be zjuperfedeas to the proceedings below, as it would have been at the common law •, for the ftatute feems to be exprefs, that the feffions may proceed notwithstanding any certiorari procured by a defendant where- on fuch recognizance is not given, as is exprefly prefcribed. 2 Hawk. P. C. 292. Fourthly, That if the perfons offering to be fureties, appear to be worth 20/. the juftices cannot refufe them. 2 Hawk. P. C. 292. Fifthly, That if divers be indicted in the fame indictment, and fome of them find fureties, and others not, the indictment ought to be removed as to thofe who find fureties, becaufe they fhall not be prejudiced by the default of the others : And, as fome fay, it fhall be removed as to the others alfo. 2 Hawk. P. C. 292. Sixthly, That the mafter of the crown-office, in taxing the cofts, ought only to confider thofe which are fubfequent to the certiorari. 2 Hawk. P. C. 292. Seventhly, That the profecutor, by accepting the cofts fo taxed, is not reftrained from aggravating the fine to be fet on the defendant, becaufe he has a right to fuch cofts by the exprefs words of the ftatute ; and therefore the defendant can claim no indulgence from having paid them : But in other cafes, after a profecutor has accepted cofts from a defendant, he cannot by the rules of the court aggravate his fine, becaufe in fuch cafes, having no right to demand cofts, if he take them at all, he muft take them by way of fatisfaction of the wrong, after which it is unreafonable in him to hairafs the defendant. And this I take to be a common prac- tice, though in Salkeld's reports (1 Salk. 55. pi. 5.) there feems to be a note to the contrary. 2 Hawk. P. C. 292. Eighthly, That notwithstanding the condition of the recognizance feems to be exprefs, that the defendant {hall procure a trial at the next affize, &c, yet Ccrtfojart\ 583 yet it fhall not be forfeited, unlefs the profecutor of the indictment »ive rules according to the courfe of the court. 2 Hawk. P. C. 293. Ninthly, That after fuch recognizance is forfeited, by the defendant's not procuring a trial according to the purport of the condition, the court will not hear any motion to qualh the indictment, or certiorari. 2 Hawk. P. C. 293. ©tat. 5 Geo. 2. c. 19. {A. D. 1732. intituled] "An aft to oblige the ju- ftices of the peace at their general or quarter felTions to determine appeals made to them according to the merits of the cafe, notwithftanding defects of form in the original proceedings •, and to oblige perfons fuingfonh writs of certiorari to remove orders made on fuch appeals into his majefty's court of King's Bench, to give fecurity to profecute the fame with effect." " Whereas in many cafes, where his majefty's juft ices of the peace by law areimpowered to give or make judgments or orders, great expences have been occafioned by reafon that fuch judgments or orders have, on appeals to the juftices of the peace at their refpective general or quarter feffions, been quafhed or fet afide upon exceptions or objections to the form or forms of the proceedings, without hearing or examining the truth and merits of the matter in queftion between the parties concerned : There- fore to prevent the fame for the future, may it pleafe your moft excellent majefty, that it may be enacted, and Be it enacted by the king's moft ex- cellent majefty, by and with the advice and confent of the lords fpi- ritual and temporal, and commons, in this prefent parliament afTembled, and by the authority of the fame, That after the twenty-fourth day of June one thoufand feven hundred and thirty-two, upon all appeals to be After 24. Tun^ made to the juftices of the peace at their refpective general or quarter fef- 1732, juitkea fions to be holden for any county, riding, city, liberty or precinct, within ma y rectify that part of Great Britain called England, againft judgments or orders' 1 ftsof given or made by any juftices of the peace as aforefaid, fuch juftices, fo p .™. ° n ^ ? afTembled at any general or quarter feffions, fhall, and they are hereby required from time to time, within their refpective jurifdictions, upon all and every fuch appeals fo made to them, to caufe any defect or defects of form, that fhall be found in any fuch original judgment or order?, to be rectified and amended without any coft or charge to the parties concerned, and after fuch amendment made fhall proceed to hear, examine and con- •fider the truth and merits of all matters concerning fuch original judg- , ments or orders •, and likewife to examine all witneffes upon oath, and c ec d to dJLr- hear all other proofs relating thereto, and to make fuch determinations mine thesj, thereupon, as by law they fhould or ought to have done, in cafe there had not been fuch defect or want of form in the original proceeding •, any "law, ufage or cuftom to the contrary notwithstanding." Serf. 2. " And whereas divers writs of certiorari have been procured to vremove fuch judgments or orders into his majefty's court of King's Bench At Wejlminjier, in hopes thereby to difcourage and weary out the parties .concerned 5 84 Ccrtfojatf. concerned in inch judgments or orders by great delays and expences : Be k> „„;, ri ri it therefore enacted by the authority aforefaid, That no certiorari fhall be to be allowed allowed to remove any luch judgment or order, unleis the party or parties to remove ju- profecuting fuch certiorari, before the allowance thereof, fhall enter into itices orders, a rec0 onizance, with fufficient fureties, before one or more juftices of the uuhoutare- ace ^ ^ count y D r place, or before the juflice at their general 'oTto^ro- quarter-feffions, or general feffions, where fuch judgment or order (hall iecme to ef : have been given or made, or before any one of his majefty's juftices of the fe&- faid court of King's Bench, in the fum of fifty pounds, with condition to profecute the fame at his or their own cofts and charges with effect, with- out any wilful or affected delay, and to pay the party or parties, in whofe favour and for whofe benefit fuch judgment or order was given or made, within one month after the faid judgment or order fhall be confirmed, their full cofts and charges, to be taxed according to the courfe of the court, where fuch judgments or orders fhall be confirmed ; and in cafe the party On refufal of or parties profecuting fuch certiorari, fhall not enter into fuch recogni- recognizance zanC e 5 or fhall not perform the conditions aforefaid, it fhall and may be juihces to lawful for the faid juftices to proceed, and make fuch further order or or- ders for the benefit of the party or parties, for whom fuch judgment fhall be given, in fuch manner as if no certiorari had been granted." R nizan- ^ecl. 3. " And it is hereby further enacted by the authority aforefaid, ces to be cer- that the recognizance and recognizances, to be taken as aforefaid, fhall be tified into the certified into the court of King's Bench at Weftminfter, and there filed with King's Bench. £ ne certiorari and order, or judgment removed thereby •, and if the faid or- der or judgment fhall be confirmed by the faid court, the perfons intitled to fuch cofts, for the recovery thereof, within ten days after the demand made, of the perfon or perfons who ought to pay the faid cofts, upon oath made of the making fuch demand and refufal of payment thereof, fhall have an attachment granted againft him or them by the laid court for fuch Attachment contem p t ; an d the faid recognizance fo given, upon the allowing of fuch emp . ceri i orar ^ fl ia u not - De difcharged until the cofts fhall be paid, and the or- der fo confirmed fhall be complied with and obeyed." §j)tat* 13 Geo. 2. c. 18. [ A. D. 1740.] made, among other purpofes, " for limiting the time for fuing forth writs of certiorari upon proceedings before juftices of the peace." Seel. 5. " And for the better preventing vexatious delays and expence, occafioned by the fuing forth writs of certiorari, for the removal of con- victions, judgments, orders and other proceedings jbefore juftices of the peace ; Be it further enacted by the authority aforefaid, That from and after the twenty-fourth day of June, which fhall be in the year of our Lord Writ of certi- one thoufand feven hundred and forty, no writ of certiorari fhall be grant- x>rari how to ed, iffued forth, or allowed, to remove any conviction, judgment, order or be. applied for. other proceedings had or made by or before any juftice or juftices of the peace of any county, city, borough, town corporate or liberty, or the re- ipeftive general or quarter feffions thereof, unlefs fuch certiorari be lnoved 1 or €tttiOlMi. 5*5 or applied for within fix kalendar months next after fuch conviction, judgment, order or other proceedings (hall be fo had or made, and un- leis it be duly proved upon oath, that the faid party or parties fuing forth the fame, hath or have given fix days notice thereof in writing to the ju- ftice or juftices, or to two of them, (if fo many there be) by and before whom fuch conviction, judgment, order or other proceeding fhall be fo had or made, to the end that fuch juftice or juftices, or the parties there- in concerned, may (hew caufe, if he or they fhall fo think fit, againft the ilfuing or granting fuch certiorari." Mr. Clayton had moved (on the 19th inftant) that the defendant might Certiorari on be at liberty (without paying any colts) to pay into court 40 s. being the 5 & 6 Will. penalty for his exerciftng the trade of a grocer, for the fpace of one month, * M - c. n. contrary to 5 Eliz. c. 4. whereof he had been convidted upon an indictment pa 3 e *f n(J . found at the laft Cumberland affizes -, (which proceedings the defendant colb are pay. had removed hither by certiorari ;) and that therefore the recognizance able, unlefs might be difcbarged : And he founded his motion upon the authority of | heind,iament Rex v. French, Pafch. 24 G. 2. B. R. Rex v. Fijher, TV. 24 G. 2. B. R. t ^'°"f htby (both on the motion of Mr. Ford •) in which cafes this was done ; becaufe^,./,,^ or |,„ by 5 and 6 IV. £5? M. c. 11. f. 3. no cofts are payable-, but upon indict- jurtices, may. menrs brought by the. party aggrieved, or upon profecutions by juftices, ors - ^f-. or &c. or other civil officers profecuting as fuch. And fo it was alio, in a °^ er C1V1 ! of " former cafe of Rex v. Mary Incledon, M. 20 G. 2. B. R. A rule was made cut j B g a ° be- to (hew caufe. And now, Mr. Norton not objecting to this motion, (being ing fuch. fatisfied with the cafes cited) the faid rule was made abfolute." » Bur. Rep. 431. Mich. 31 Geo. 2. Rex v. Strong,' A rule was made that no certiorari fhould be granted to remove orders Orders of jj- of juftices, from which die law has given an appeal to the fefiions, before j| ices nouo the matter be determined on the appeal, becaufe it hinders the privilege of j,^"'^ applying-, and that if any order be removed before appeal, it fhould be t imeofap- fent down again : But if the time of appeal be expired, that cafe is not peal expired, within the rule, per Holt Ch. J. But afterwards in Mich. 4 Ann. B. R. in 1 Salk - '47- the cafe of the inhabitants of Shellington, it was held, that advantage muftg V." Ann< be taken of this rule upon the motion to file the order, for that after it is '' filed, it is too late. Appeal from a poor's rate, and the fefiions ordered the churchwardens Certiorari to produce the books at an adjourned day, before which a certiorari was re m ve an brought to remove that order, and held to lie though the appeal is depend- order before ing, elfe the order mult be obeyed before the validity of it can be de- a PP e al, where termined. It was alio held, that art appointment of overfeers may be^ c t "| I ? e f ? r removed before an appeal to the fellions ; for the rule laid down in Salk. no[ u,,,"^. 147. extends only to the cafe where there is a limited time for appealing, 2 Stra 991*. as to the next quarter-feffions •, but the ftatute 43 Eliz. cap. 2. is not fo Mich. $ reftrained •, and confequently it can never be faid, that the time for appeal- ^ eo - 2- Cafe ing is out. And if the appeal from an appointment is lodged, there can be no ^.'^borougi* certiorari, till the feffions had made a determination, and a certiorari brought pending fuch appeal fhall be fuppreiVed. Vol. I. N<\ XXV. 4 F It 5 86 €itti ojatt. How far * It is clearly fettled, that after a certiorari is allowed by the court below, •ertiorari is a a ]\ f u bfequent proceedings on the record are erroneous. Alfo before fup.rfedeas to ^ j j a ^ % , w hich requires that all certiorari 's for indictments, forcible Lw^ entries, at feflions, (hall be delivered in court, the delivery of fuch certiorari to any one juftice of the peace of the fame place, made all fubfequent proceedings erroneous; and if any procefs had been before awarded on the indictment, the juftice to whom the certiorari was delivered, ought immedi- ately to have awarded zfuperfedeas to the fheriff, in order to have flopped the execution of it ; and it feems that the delivery of fuch a fuperfedeas to the fherifi before he has begun to put a procefs in execution, makes his fubfequent execution of it wholly void, becaufe it is but a minifterial act ; but if it be not delivered till after the execution is begun, he may after- wards go through with it, by virtue of a writ of venditioni exponas. 2 Hawk. p. a 293, 294. It is faid that the bare delivery of a certiorari makes all fubfequent pro- ceedings on the record, whether before or after the return of the certiorari y erroneous, by force of the words coram nobis terminari voluntas & non alibi ; in which refpect a certiorari is of greater force than a writ of error ; for that becomes of no effect if the record be not certified in a reafonable time ; alfo it hath been held that the very iffuing of a certiorari is of itfelf a fuperfedeas, though it be never delivered ; in the fame manner as an appearance in the court above ; and a fuperfedeas purchafed there, though not delivered to the fheriff till after the quinto exailus, will avoid an outlawry pronounced after ; but it feems the better opinion, that if a certiorari be delivered before iflue is joined, or at leaft before the return of it is expired, it is of no effect; however it is of no force at this day, as to indictments at feflions without a proper recognizance, purfuant to the faid acts of parliament. 2 Hawk. P. C. 295, 294. A certiorari for the removal of a recognizance for the good behaviour, or for an appearance at the feflions, will not fuperfede its obligation, becaufe it would be highly inconvenient that the party, againft whom there may be very juft matter of complaint, fliould be let loofe upon the bare bringing a writ. 2 Hawk. P. C. 294. The return of a certiorari ought to be under the feal of the inferior court, or of the juftice or juftices to whom it is directed, and if fuch court have no proper feal, it may be under any other feal. Alfo it muft be made by the perfon to whom the certiorari is directed, to the juftices of peace of fuch-a place, and the clerk of the peace only return it, or to the conftable, or to the recorder of B. and the deputy conftable or deputy recorder, return it, (without fhewing in the return, that the principal had power to make a deputy) or to the fleward of St. Paul's,, and the fteward of the church of St. Pettr and St- Paul return it, -nothing is removed. 2 Hawk. P. C. 294. But if it be directed to the juftice of Chefter, it may be returned by A. B. ehief juftice, for. the fame officer is known to be meant in the writ and return, and his defcription in both is in fubftance the fame. 2 Hawk. P. C. &*< A £ntiowu 5*7 A recognizance taken by a juftice of peace, ought to be certified by lY juftice only, till it be made a record of the feffions, after which it fhall De- certified in the fame manner as the other records of the feffions. 2 Hast ( P. C. 295. The return to a certiorari, directed to juftices of the peace, for the re- moval of an indictment, ought to have the claufe, as alfo to hear and determine divers felonies, &c in the defcription of the juftices who make the return, where luch claufe is neceffany in the caption of an indictment- 2 Hawk. P. C. 295. The perfon to whom a certiorari is directed, may make what return to it he pleafes, and the court will not ftop the filing of it, on affidavit of its falfity, except only where the publick good requires it ; as in the cafe of the commifiioners of fewers, or for fome other efpecial reafon. 2 Hawk. P. C. 295. Whatfoever is put into the return of a certiorari, by way of explanation or otherwife, befides what is ordered to be returned, is put in without warrant, and not to be regarded. 2 Hawk. 295. Generally the record itfelf or the tenor of it, or the tenor of the tenor, is to be certified in the return to a certiorari according as the writ requires ■, for if, on a certiorari to return an order of juftices of the peace, the tenor of it be only certified, the return is nought, but the return of the tenor of an indictment from London is good, by the city charter; alfo it is faid to be fufficient to certify the tenor only in all cafes where the purport of the certiorari is not to proceed on the record removed, but only to try the ifiue of nul tiel record. However it feems clear, that if the court, which awards a certiorari, have no jurifdiction to proceed on the record ordered to be removed, as where the court of Common Pleas awarded a certiorari for an indictment, the tenor only fhall be removed, left there fhould be a failure of juftice. 2 Hawk. P. C. 295. CJjeat THOSE cheats which are punifhable by the common law, may in general be defcribed to be deceitful practices, in defrauding or en- deavouring to defraud another of his own right by means of fome artful device, contrary to the plain rules of common honefty-, as by playing with falfe dice •, or by caufing an illiterate perfon to execute a deed to his pre- judice by reading it over to him in words different from thofe in which it was written, or by perfwading a woman to execute writings to another, as her truftee upon an intended marriage, which in truth contained on fuch thing, but only a warrant of attorney to confefs a judgment, CsV. or by fuppreffing a will, or by levying a fine in another's name, or fuing out an execution upon a judgment for him, or acknowledging an aclion in his 4 F 2 name 5 88 Cjjeat name without his privity, and againft his will, in which cafes, by fome good opinions, the record may be vacated, i Hawk. P. C. 187. It feemeth to be the better opinion, That the deceitful receiving of money from one man to another's ufe, upon a falfe pretence of having a mefiage and order to that purpofe, is not punifhable by a criminal profe- cution, becaufeitis accompanied with no manner of artful contrivance, but wholly depends on a bare naked lie-, and it is faid to be needlefs to provide fevere laws for fuch mifchiefs, againft which common prudence and caution may be a fufficient fecurity. 1 Hawk. P. C. 188. Some of the above mentioned offences are punifhable, not only with fine and imprifonment, but alfo with farther infamous punifhment, (as. cheating with falfe dice, efpecially if the offender be a common gamefter); others are punifhable with fine and imprifonment only, by the discretion of the judges, which is regulated by the circumftances of each particular cafe. 1 Hawk. P. C. 188. . Indictment againft the defendant a miller, for changing corn delivered an/gmng^d t0 nim t0 be g roun d 5 and giving bad corn infkad of it. It was moved to/ inftead of it, quafh it, becaufe only a private cheat, and not of publick nature. It was held indidU- anfwered, that being a cheat in the way of trade, it concerned the publick,- ble. 1 Seff. anc j t h ere fore was indictable. The King againft Marfi, 2 Keb. 584. Mich. C 6G 7 2 2I C ar " ** ut t ' ie court unan ' moufl y agreed not to quafh the indict- Rex v. Wood. ment. Latch 202. A perfon falfely pretending that he had power to difcharge foldiers, Trin. 3 Car. i. took money of a foldier to difcharge him, and being indicted for the fame, Serlefted's ^g cour t held the indictment to be good. cafe. S>tat 33 Hen. 8. c. 1. [J . D. 1741. Intituled.] " A bill againft them that counterfeit letters or privy tokens, to receive money or goods in other mens names." " Forafmuch as many light and evil difpofed perfons, not minding to get their livings by truth, according to the laws of this realm, but com- pafTing and devifing daily how they may unlawfully obtain and get into their hands and poffeffion goods, cattle, and jewels of other perfons, for the maintenance of their unthrifty living, and alfo knowing that if they come to any of the fame goods, cattels, and jewels by ftealth, that then they, being thereof lawfully convict according to the laws of the realm, fhall die therefore ; have now of late falfly and deceitfully contrived, de- vifed, and imagined privy tokens, and counterfeit letters in other mens names, unto divers perfons their fpecial friends and acquaintances, for the obtaininng of money, goods, cattels, and jewels of the fame perfons, their friends, and acquaintances, by colour whereof the faid light and evil- difpofed perfons have deceitfully and unlawfully obtained and gotten great fubftanceof money, goods, cattels, and jewels into their hands and pof- fefiions contrary to right and confcience : >Bulftr. 149. Set!. 2. " For reformation whereof, Be it ordained and enacted by the authority of this prefent parliament, That if any perfon or perfons, of what €\)ttlU 5 8 9 what eftate or degree foever he or they be, at any time after the firft day of April next coming, falfly and deceitfully obtain, or get into his or their hands or poffeffions, any money, goods, cattels, jewels, or other things of any other perfon or perfons, by colour and means of any fuch falfe token or counterfeit letter made in any other man'? name, as is aforefaid, that then every fuch perfon and perfons fo offending, and being thereof lawfully convict by witneffes taken before the lord chancellor of England for the time being, or by examination of witneffes, or confeffion taken in the ftar-chamber ntlVeJlminfter before the king's moft honourable council, or before the juftices of affile in their circuits for the time being, or be- fore the iuftices of peace within any part of the king's dominions in their general feffons, or by action in any of the king's courts of record, (2) fhall have and fuffer fuch correction and punifhment, by imprifonment of his body, letting upon the pillory, or otherwife by any corporal pain Cexcept pains of death,) as fhall be unto him or them limited, adjudged, or ap- pointed by the perfon or perfons before whom he fhall be fo convict of the laid offences, or of any of them. Seft. 3. " And be it further enacted by the authority aforefaid, That T}ie \ ^; lca as well the juftices of affile for the time being, as alio two juftices of peace authority in every county, whereof the one to be of the quorum, fhall have full touching the power and authority to call and convent, by procefs or otherwife, to the fdld offie,ldei ■■ laid affifes or general feffions, any perfon or perfons being lulpecled of any of the offences aforefaid, and to commit him or them to ward, or let him or them to bail till the next affifes or general feffions, there to be examin- ed, and further to be ordered by their difcretions, as is abovefaid. Seft. 4. " Provided always, and be it further enacted by authority The authority aforefaid, That juftices of the peace within every city, borough, town, 0l l uft . l «s of and franchife within this realm or other the king's dominions, fhall have ^" ce in CU1CS » like jurisdiction, power and authority, at their general feffions and other- wife, to do and execute all and every thing and things in all points, as other juftices of the affifes in their circuits, or juftices of the peace in the counties, by virtue of this act, be limited and appointed to do and execute for the punifhment and correction of like offenders, as by this aforefaid act is Specified and declared : (2) Saving to the party grieved by fuch deceit, The reme jy. fuch remedy by way of action or otherwife, of and for the fame money,. f the pan/ oroods, cattels, jewels, or other things fo obtained, as he might have had grieved, if this act had never been had ne made ; any thing in the fame contained to the contrary in any wife notwithstanding. Sebl. 5. " Provided always, and be it further enacted by the authority The king's aforefaid, That the king's highnefs council of his town of Calice, or three " uncl1 c ^ of them for the time being, fhall have fuch and like authority for the ex- amination, bailment, and punifhment of fuch offender or offenders, and for fuch offences hereafter to be committed and done within the town and marches of Calice, and counties of Guifnes, as the aforefaid juftices of affile or juftices of peace have by force of this act within their jurisdic- tions and authorities." Sir 59° Cfjeat* 3 InH. 123. Sir Edward Coke is of opinion, fays Mr. ferjeant Hawkins, that the of- fender cannot be fined in a profecution upon this ftatute, becaufe fomc Cro Car. corporal punifhment fhall be inflicted, and no other is mentioned ; how- 564. ' ever, there is a precedent in Crake's reports, by which it appears, that one convicted on fuch a profecution hath been adjudged not only to ftand on the pillory, but alfo to pay a fine of five hundred pounds, and to be bound with good fureties to his behaviour. Indiflmentfor The defendant was indicted for attempting to defraud one Langlej, a attempting to mercer in Ludgate-Jlreet, offome pieces of velvet and filks, pretending defraud a ^ e was f ervant to a lady his cuftomer who wanted the goods, and that his Roods" not me was t0 carI 7 them back with her. This appeared on the evidence at faid with'falfe Guildhall before my lord chief juftice Raymond, and the profecutor fufpect- tokens, and j na her refufed to let her have the goods fhe afked for, and which were juegment ar- mentioned in a letter fhe faid was fent by the lady ; he carried her before zSeffCa. 27. a juftice of the peace ; fhe was found guilty on that indictment •, and now Eatt. 3 G. z. moved in arreft of judgment, that by the record it does not appeat (he Rex v. Mar- made ufe of any falfe tokens, and then it is not an indictable offence ; The tha Bnan, King agamtt. Jones, Salk. 379. 6 Mod. 105. And as it appeared that (he did not get any of the profecutor's goods into her poffeflion, fhe cannot be charged by force of the ftatute 33 H. 8. c. 7. and that has been refolved, Vent. 304. 5 Mod. 18. and therefore, as no damage has accrued by this attempt of the defendant, fhe ought to be freed of the judgment, 6 Mod. 311. and there is no authority to fupport this indictment. On the other fide it was faid, that the profecutor is a tradefman, £b the attempt is public in its own nature. This is an indictment at common law, and the faft is a mifdemeanor. No action would lie in this cafe, which is the rea- fon given in the books quoted, why an indictment fhould be maintained* But judgment was arrefted. The falfe to- H e was convicted for procuring from one Mary Kingsford by f a fe tokens kens mull be a promifibry note, under pretence that he would bring her money for it* ^^fen" a " And upon motion in arreft of judgment it was held, that it is necef- 3 Sran. 1 127. fary in an indictment to fpecify the falfe tokens, % Cro. 20. 4 Co. 40. Hil. 3 Geo. H. P. C. 265. 1 Lev. 299. So the judgment was returned. 2 . Rex v. Munoz. g^*, 3Q Gf0i 2> c 24- ya. D. 1757. Intituled] " An aft for the more effectual punifhment of perfons who fhall attain, or attempt to attain, pofieffion of goods or money, by falfe or untrue pretences •, for prevent- ing the unlawful pawning of goods ; for the eafy redemption of goods pawned-, and for preventing gaming in public houfes by journeymen, la- bourers, fervants and apprentices." " Whereas divers evil-difpofed perfons, to fupport their profligate way of life, have by various fubtle ftratagems, threats and devices, fraudu- lently obtained divers fums of money, goods, wares and merchan- dizes, to the great injury of induftrious families, and to the manifeft pre- judice of trade ad credit; Therefore for the punifhing all fuch offenders, Be it enacted by the king's moft excellent majefty, by and with the advice and Cijeat. 59 r and confentof the lords fpiritual and temporal, and commons, in this pre- fent parliament affembled, and by the authority of the fame, That from and after the twenty-ninth day of September one thoufand feven hundred and fifty-feven, all perfons who knowingly and defignedly, by falfe pre- Pe ^ ons con - tence or pretences, mall obtain from any perfon or perfons, money, goods, fining mone* wares or merchandizes, with intent to cheat or defraud any perfon or per- or goods by fons of the fame ; or fiiail knowingly fend or deliver any letter or writing, ^Ifepretencei, with or without a name or names fubfcribed thereto, or figned with a fie- or ot fei ? din g titious name or names, letter or letters, threatning to accufe any perfon of ] threatenin 2 any crime punifhable by law with death, tranfportation, pillory, or any t0 eTi mo" other infamous punifhment, with a view or intent to extort or gain money, ney or goods, goods, wares or merchandizes from the perfon or perfons fo threatened to be accufed, fhall be deemed offenders againft law and the publick peace; and the court before whom fuch offender or offenders fhall be ma ybepu- tried, fhall in cafe he, fhe or they fhall be convicted of any of the laid ni(hed b >\ fine offences, order fuch offender or offenders to be fined and imprifoned, or to ^eV^'lf" 1 "' be put in the pillojy, or publickly whipped, or to be tranfported, as foon as pMor'y™ V conveniently may be(according to the laws made for tranfportation of felons) whipping or to fome of his majefty's colonies or plantations in America, for the term tranf po"a»: of feven years, as the court in which any fuch offender or offenders 0D ' fhall be convicted 'fhall think fit and order. Seel. 2. " And be it further enacted by the authority aforefaid, that any Where a juftice or juftices of the peace of the county, riding, divifion, city, li- charge is made berty or place, before whom any perfon or perfons charged on oath, of an y of tr,e by any credible perfon or perfons, with having committed any of the of- f aidoffence5 > fences intended by this act to be punifhed, fhall be brought, fhall examine ^uirrtherein" by oath (which oath every fuch juftice or juftices is and are hereby im- uponoath, powered and required to adminifter) and fuch other lawful means as to any fuch juftices fhall feem meet, touching the matters complained of, and deal with the offender or offenders according to law-, and if the party or parties charged as being the offender or offenders, fhall be committed to prifon, or be admitted to bail, to anfwer the matters complained of at the next general or quarter feflions of the peace, or next feflions of Oyer and Terminer, which fhall be held for the county, riding, divifion, city, liberty or place wherein the offence fhall be charged on oath, to have been am j t0 u- j committed, then fuch juftice or juftices fhall bind over the profecutor and over the com-' profecutors of every fuch offender and offenders to appear at the next plainant, to general or quarter-fefiions of the peace, or next feflions of Oyer and appearar " i Terminer v/hich fhall be held for the county, riding, divifion, city, li- P rcfecute - ; berty or place wherein the offence fhall be charged to have been commit- ted, by recognizance, in fuch reafonable fum of money as to fuch juftice or juftices fhall feem requifite, to profecute fuch offender and offenders with effect; and if any money, goods, wares or merchandizes fraudulently obtained, fhall appear to fuch juftice or juftices to exceed the amount or an j yu value of twenty pounds, then the recognizance to be taken in that behalf nizance wbl' from the profecutor or profecutors, fhall be in not lefs than double the in proportion amount or value the fame fhall appear before any fuch juftice or juftices to ,0 lhe frattd " be worth. ,3 2V.7. 592 Clje&t* Seft> 3. " And whereas divers of his majefty's fubjects firffer great in- conveniencies and frequent loffes, by perfons pawning or unlawfully dif- pofing of the goods and chattels of others, and the perfons fo pawning •or unlawfully difpofing of the goods or chattels of others, from the mean- nefs of their circumftances, are feldom able to make reftitution or recom- pence to the parties injured, and the laws now in being are infufficient to punifh fuch offenders ; Be it therefore further enacted by the authority aforefaid, That from and after the faid twenty-ninth day of September one Penalty of t houfand feven hundred and fifty-feven, if any perfon or perfons {hall pawn?" ex . knowingly and defignedly pawn or exchange, or unlawfully difpofe of the changing, or goods or chattels of any other perfon or perfons, not being employed or difpofing of authorized by the owner or owners thereof fo to do, and fhall be goods with- t ] iereo f convicted by the oath of any credible witnefs or witneffes, or by ■the ovvner°i tne confeffion of the perfon or perfons charged with fuch offence, before any fuch juftice or juftices of the peace as aforefaid (which oath every fuch juftice as aforefaid is hereby impowered and required to adminifter)-, every fuch offender fhall, for every fuch offence, forfeit the fum of twenty fhil- and on non- " n S s > anc * ' n ca ^ e tne *" a 'd forfeiture fhall not be forthwith paid, the juftice payment, to juftices of the peace as aforefaid, before whom fuch conviction fhall be be committed had, fhall commit the party or parties fo convicted to the houfe of cor- for 14 days rection, or fome other publick prifon of the county, riding, divifion, city to hard la- or pj ace w h e rein the offender or offenders fhall refide or be convicted, there to remain and be kept to hard labour for the fpace of fourteen days, unlefs the faid forfeiture fhall be fooner paid ; and if within three days be- , . f fore the expiration of the faid fourteen days, the faid forfeiture fhall not paid'wilhin be paid, the faid juftice or juftices is and are hereby required to order, that time, to upon the application of the profecutor or profecutors, the perfon or per- be whipped, f ons f convicted to be publickly whipped in the houfe of correction or on application p r jf on to wn i c h the offender or offenders fhall be committed, or in fome cutoi- 6 Pr ° C * °P en publick place of the city, riding, divifion, town or place wherein the offence fhall have been committed, as to fuch juftice or juftices fhall .... ( feem proper ; and the faid refpective forfeitures when recovered, fhall be thefor C feitures. applied towards making fatisfaction thereout to the party or parties injur- ' ed, and defraying the cofts of the profecution, as fhall be adjudged rea- fonable by the juftice or juftices before whom fuch conviction fhall be had ; but if the party or parties injured fhall decline to accept of fuch fatisfaction and cofts ; or if there fhall be any overplus of the faid refpec- I tive forfeitures, after making fuch fatisfaction, and paying fuch cofts as aforefaid, then fuch refpective forfeitures, or the over-plus thereof (as the cafe (hall happen) fhall be paid and applied to and for the ufe of the poor of the parifh or place where the offence fhall have been committed, and fhall be paid to the overfeers of the poor of fuch parifh for thajc purpofe. Pawnbrokers Sect. 4. " And be it further enacted by the authority aforefaid, That to make entry all and every perfon and perfons who, from and after the twenty-ninth day of goods f September one thoufand feven hundred and fifty feven, fhall take by way- pawned, Q £ pawn piedp-e or exchange, of or from any perfon or perfons whom- P ,e ^ ed 7 . foever, •exchanged, J Cljeat 593 foever, any goods or chattels, of what kind foever the fame fhall be, fhall forthwith enter or caufe to be entered, in a fair or regular man- ner, in a book or books to be kept for that purpofe, a defcription of the goods or chattels which he, (lie or they fhall receive in pawn, pledge or exchange -, and alfo the fum of money advanced or paid thereon, with the day of the month and year on which, and the name and place of abode of the perfon or perfons by whom fuch goods and chattels were fo pawned, pledged or exchanged, and alfo the name and place of abode of the owner or owners thereof, according to the information of the perfon pawning or pledging, or exchanging the fame ; and fhall at the fame time give a du- and a dupli- plicate or copy thereof to the perfon or perfons fo pawning, pledging or cate ' , re " exchanging the Did goods or chattels, if required ; for which the perfon V^ n -'thereof or perfons giving fuch duplicate or copy, fhall be paid by the perfon or to the pawner, perfons who fhall fo pawn, pledge or exchange fuch goods or chattels upon paying the fum of one half-penny, on goods and chattels pawned for lefs than for tiie lame ' twenty (hillings, and one penny on goods or chattels pawned for twenty fhillings, and not exceeding five pounds ; and for every fuch duplicate up- on goods or chattels pawned for any larger fum, the fum of two pence, and no more •, and in default of making fuch entry, and giving fuch du- plicate or copy, if required as aforefaid, he, (he or they fhall reflectively for every offence forfeit the fum of five pounds, to be levied by diftrefs p ena [ tv -i on and fale of the goods and chattels of the offender or offenders, by warrant default of ma- under the hand and feal, or hands and feals of any juftice or juftices of king fuch en - the peace of the county, riding, divifion, city, liberty or place where the {OVjJw giv- offence fhall be committed ; which refpective forfeitures when levied, fhall "i^" C be paid and applied to the ufe of the poor of the parilli or place wherein the offence fhall be committed. Seft. 5. " And whereas it fometimes happens that the goods or chattels pledged and pawned as aforefaid, are fpoiled and damaged, or rendered of lefs value than when the fame were pledged or pawned, through the neglect, default, or mifbehaviour of the perfon or perfons to whom the fame were fo pledged or pawned, his, her or their agents or fervants, either by wearing or ufing thereof, or by letting the fame out to hire ; Be it there- fore enacted by the authority aforefaid, That if in the courfe of any of the aforefaid proceedings, before any juftice or juftices of the peace, in pur- fuance of, or under this act, it fhail appear or be proved to the fatisfaction d S /? ji S of the juftice or juftices upon oath or folemn affirmation as aforefaid, that £ e dipped any of the goods or chattels fo pawned as aforefaid, are become or have thro' regieft been rendered of lefs value than the feme were at the time of pawning or of tne pawn- pledging thereof, by or through the default, neglect, or wilful miibeha- oroker - viour of the perfon or perfons to whom the fame were fo pledged or pawn- ed, his, her or their executors, adminiftrators or affgns, agents or fervants-, then, and 'many fuch cafe, it fhall be lawful, and every fuch juftice or juftices is and are hereby required to allow or award a reafonable fatisfaction to the owner or owners of fuch goods or chattels, in refpect of fuch damage -, and the fum or fums of money fo allowed or awarded fhall be deducted out of the principal and intereft, and allowance for warehoufe-room, which fhall appear to be due to any perfon or perfons, to whom the fame Vol. I. N° XXV. 4 G were 594 Cjjeae. were fo pledged or pawned, his, her or their executors, adminiftrators or afligns ; and in all cafes where the goods and chattels pawned as aforefaid, mail have been damaged as aforefaid, it fhall be fufficient for the pawner or pawners, his, her or their executors, adminiftrators or afligns, to pay or tender the money upon the balance, after deducting out of the princi- pal and intereft, and money payable for warehoufe-room as aforefaid, for the goods or chattels pawned, fuch reafonable fatisfaction in refpect to fuch damage, as any fuch juftice or juftices fhall order or award ; and up- on fo doing, the juftice or juftices fhall proceed as if the pawner or pawn- ers, his, her or their executors, adminiftrators or afligns, had paid or ten- dered the whole money due for the principal, intereft, and warehoufe- room as aforefaid." Perfons buy- $f&- 6. " And be it enacted by the authority aforefaid, That from and ing or taking after the faid twenty-ninth day of September one thoufand feven hundred b pledge and fixty feven, if any perfon or perfons (hall knowingly buy or take in as 'aH °' r 3P ' a pk"g e an y hnen or apparel, intrufted to any other perfon or perfons to vufte'd to wafh, fcour, iron, mend or make up, and fhall be convicted of the fame, others to wafh on the oath of one credible witnefs, or on confeffion of the party, before or mend, fcrV. one or more juftice or juftices, every fuch perfon or perfons fhall for- to forfeit fe't double the fum given for or lent on the fame, to be paid to the poor double the of the parifh where the offence is committed, to be recovered in theman- * am > ner other forfeitures are by this act directed to be recovered ; and fhall and reftore likewife be obliged to reftore the faid goods to the owner in the prefence the goods. of the faid juftice or juftices." Perfons off r- *^' 7" " ^e ' lt ^ urtner enacted by the authority aforefaid, That ing goods to in ca ^ e an Y perfon or perfons, who fhall offer by way of pawn, pledge, iale, pawn or exchange or fale, any goods or chattels, fhall not be able, or fhall refute, exchange, not to give a fatisfaitory account of himlelf, herfelf or themfelves, or of the giving a good means fry wn ich he, fhe or they became pofTefled of fuch goods or chat- themfelves te ^ s » or ^ there fhall be any other reafon to fufpect that fuch goods or chattels are ftolen, or other-wife illegally or clandeftinely obtained ; it fhall may be de- and may be lawful for any perfon or perfons, his, her or their fervants or tame< H h"f a o ents » to whom fuch goods or chattels fhall be fo offered, to feize and aiuitice. t detain fuch perfon or perfons, and the faid goods or chattels, and to de- liver fuch perfon or perfons, as foon as conveniently may be, into the cu- ftody of the conftable, or other peace officer, who fhall, and is hereby re- quired, immediately to convey fuch perfon or perfons, and the faid goods or chattels, before fome juftice or juftices of the peace of the county, ri- ding, divifion, city, liberty or place, wherein the offence fhall be commit- ted •, and if fuch juftice or juftices fhall, upon examination and enquiry, com'miuhe ^ ave cau)e t0 f"fpedt that the faid goods or chattels were ftolen, or illegal- party, ly or clandeftinely obtained, it fhall and may be lawful for fuch juftice or juftices to commit fuch perfon or perfons into fafe cuftody, for any time not exceeding the fpace of fix days, in order to be further examined ; and if upon either of the faid examinations, it fhall appear to the fatisfaction of fuch juftice or juftices, that the faid goods or chattels were ftolen, or .illegally or clandeftinely obtained, the faid juftice or juftices is and are here- by Cljeat* 595 by authorized and required to commit the party or parties offending to the common gaol or houfe of correction of the county, riding, divifion, city, liberty or place, wherein the offence (hall be committed, there to be dealt with according to law." Sett. 8. " Provided neverthelefs, and be it further enacted, That in The perfoni cafe fuch goods or chattels fo feized and detained as aforefaid, {hall after- detaining the wards appear to be the property of the perfon or perfons who offered the P art y and fame to be pawned, pledged, exchanged or fold, or that he, fhe or they § oods " "}' „i_ • j l l i_ r i j demnified for was or were authorized by the owner or owners thereof to pawn, pledge, f ^ 0JnE exchange or fell the fame then and in fuch cafe, the perfon or perfons who fhall fo feize or detain the party or parties who offered the faid goods or chattels, fhall be, and he, fhe and they, is and are by this act indemni- fied for having fo done." SeSI. 9. " And, for the better enabling all perfons to recover their goods or chattels, which, after the faid twenty-ninth day of September one thoufand feven hundred and fifty-feven, fhall be unlawfully pawned or pledged to, or exchanged with, any perfon or perfons whatioever: Be it further enacted by the authority aforefaid, That if the owner or owners of j^g UM any goods or chattels, unlawfully pawned, pledged or exchanged, fhall oath of the make out, either on his, her or their oath, or by the oath of any credible owner, to iflue witnefs, or (being one of the people called Quakers) by iblemn affirmation, be- a warrai " to fore any juftice or juftices of the peace, within his or their jurifdiction, that ea !£j e fuch owner or owners has or have had, his, her or their goods and chat- f on > s houfe. tels unlawfully obtained or taken from him, her or them, and that there is juft caufe to fufpect that any perfon or perfons, within the jurifdiction of any fuch juftice or juftices, hath or have knowingly and unlawfully taken to pawn, or by way of pledge, or in exchange, any goods or chattels of fuch owner or owners, and without the privity of, or authority from fuch owner or owners thereof; and fhall make appear, to the fatisfaction of any fuch juftice or juftices, probable grounds for fuch the fufpicion of the owner or owners thereof; then and in any fuch cafe, any juftice or juftices of the peace, within his or their jurifdiction, may iffue his or their warrant for fearching, in the day-time, the houfe, warehoufe or other place of any fuch perfon or perfons, who fhall be charged on oath or affirmation, as aforefaid, as fufpected to have knowingly and unlawfully received or taken to pawn, or by way of pledge, or in exchange, any fuch goods or chattels, without the privity of, or authority from the owner or owners thereof; and if the occupier or occupiers of any houfe, warehoufe or other rj .. . place, wherein any fuch goods or chattels (hall, on oath or affirmation as f admittance, aforefaid, be charged or fufpected to be, fhall after the faid twenty-ninth officer may day of September one thoufand feven hundred and fifty-feven, on requeft break "P^ made to him, her or them, to open the fame, by any peace officer autho- p " rized to fearch there, by warrant from a juftice or juftices of the peace, for the county, riding, divifion, city, liberty, town or place, in which fuch houfe, warehoufe or other place (hall be fituate, refufe to open the fame, and permit the fame to be fearched, it fhall be lawful for any fuch peace officer to break open any fuch houfe, warehoufe or other place, in the day- 4 G 2 time, 596 Perfons hin- dering fuch fearch, for- feit 5 1. and on non- payment, are to be commit ted to hard labour. The goods found to be time, and to fearch as he fhall think fit therein, for the goods or chattels fufpected to be there, doing no wilful damage ; and if any pevfon or per- fons fhall oppofe or hinder any fuch fearch, and fhall thereof be convicted before any fuch juftice or juftices, by the oath of one or more credible, witnefs or witneftes, every perfon fo offending in the premifTes fhall forfeit for every fuch offence the fum of five pounds •, and in cafe fuch forfeiture be not immediately paid down, or within the fpace of twenty-four hours, the juftice or juftices, before whom fuch conviction fhall be had, fhall commit the party or parties fo convicted to the houfe of correction, or fome other publick prifon of fuch county, riding, divifion, city, liberty, town or place, there to be kept to hard labour for any time not exceeding one month, nor lefs than five days, unlefs in the mean time fuch forfeiture fhall be paid; and fuch forfeiture, when recovered, fhall forthwith go and be applied to and for the ufe of the poor of the parifh wherein fuch offence fhall have been committed •, and if upon the fearch of the houfe, ware- houfe or other place, of any fuch fufpected perfon or perfons, as aforefaid, reftored to the an y f the goods or chattels which fhall have been fo knowingly and un- ewaer. lawfully pawned, pledged or exchanged, as aforefaid, fhall be found, and the property of the owner or owners from whom the fame fhall have been unlawfully obtained or taken, fhall be made out, to the fatisfaction of any fuch juftice or juftices, by the oath of one or more credible witnefs or wit- neffes, or (if any fuch witnefs or witneffes be of the people called Qua- kers) by folemn affirmation, or by the confefilon of the perfon or perfons charged with any fuch offence, any fuch juftice or juftices fhall thereupon caufe the goods and chattels found on any fuch fearch, and unlawfully pawned, pledged or exchanged, as aforefaid, to be forthwith reftored to the owner or owners thereof." Seft. io. " And whereas goods and chattels are often pawned or pledg- ed for fecuring the payment of money lent thereon, and the intereft thereof; and altho' when the money becomes due, the borrowers, or their reprefenta- tives, aredefirous to repay the fame, and the intereft due thereon, and make tender thereof to the perfon or perfons with whom the fame are fo pawned or pledged, they are frequently under great difficulties to get back the goods and chattels fo pawned, and are often under neceffity to commence fuits at law for the recovery thereof, to their great expence ; for remedy whereof, Be Goods pawn- it enacted by the authority aforefaid, That from and after the faid twenty- ed for a fum nm th day of September one thoufand feven hundred and fifty-feven, if any rot exceeding g 00C j s or battels fhall be pawned or pledged for fecuring any money lent thereon, not exceeding in the whole the principal fum of ten pounds, and the intereft thereof; and if within two years after the pawning or pledg- ing thereof, proof having been made on oath, by one or more credible witnefs or witneffes, or by producing a duplicate of the entry directed to be o-iven by this act as aforefaid, before any fuch juftice or juftices, or by folemn affirmation (if the perfon be of the people called Quakers) to the fatisfaction of any fuch juftice or juftices, of the pawning or pledging of any fuch goods or chattels within the faid fpace of two years, any fuch pawner or pawners who was or were the real owner or owners of fuch goods may recovered within two years. Cljeat, 597 goods or chattels at the time of the pawning or pledging thereof, his, her or their executors, adminiftrators or affigns, fhall tender unto the perfon or perlbns who lent on the fecurity of the goods or chattels pawned, his executors, adminiftrators or affigns, the principal money borrowed there- on, and all intereft due for the fame, together with fuch charges for the warehoufe-room of the goods or chattels pawned, as fhall be agreed on at the time of the pawning of fuch goods and chattels; and the perfon who took fuch goods or chattels in pawn, his executors, adminiftrators or af- figns, fhall thereupon neglect or refufe to deliver back the goods or chattels fo pawned, for any fum or fums of money not exceeding the faid principal fum of ten pounds, to the perfon or perlbns who borrowed the money thereon, his, her or their executors, adminiftrators or affigns •, then, and i un,c ^ . on in any fuch cafe, on oath, or (if the perfon or perfons be of the people pawnbroker called Quakers) on folemn affirmation thereof, made by the pawner or refufingtode- pawners thereof, his, her or their executors, adminiftrators or affigns, or liver goods, fome other credible perfon, any juftice or juftices of the peace of the coun- t0 f ummon . ty, riding, divifion, city, liberty or place, where the perfon or perfons ^ p* rt ™ 5 n who took fuch pawn as aforefaid, his executors, adminiftrators or affigns, fhall dwell, on the application of the borrower or borrowers, his, her or their executors, adminiftrators or affigns, is and are hereby required to caufe fuch perfon or perfons who took fuch pawn, his, her or their execu- tors, adminiftrators or affigns, within the jurifdiction of the juftice or ju- ftices, to come before fuch juftice or juftices ; and fuch juftice or juflices is and are hereby authorized and required to examine on oath, or folemn affirmation, as the cafe may require, the parties themfelves, and fuch other credible perfons as fhall appear before him or them, touching the premiffes ; anci of ^ and if tender of the principal money due, and all intereft thereof, together ; ng ma de of with charges for warehoufe-room, as aforefaid, fhall be proved by oath or tender, and affirmation, as aforefaid, to have been made, fuch principal money not ex- payment of ceeding the faid fum of ten pounds, to the lender or lenders thereof, his, [^^"3^ her or their executors, adminiftrators or affigns, by the borrower or bor- charges ; rowers of fuch principal money, his, her or their executors, adminiftrators or affigns, within the faid fpace of two years after the faid pawning or or tender be- pledging of the goods or chattels, then on payment by the borrower or in g then alfo borrowers, his, her or their executors, adminiftrators or affigns, of fuch m * r j principal money, and the intereft due thereon, together with fuch charges for warehoufe-room of the goods or chattels fo pawned or pledged as afore- faid, to the lender or lenders, his, her or their executors, adminiftrators or affigns-, and in cafe the lender or lenders, his, her or their executors, ad-. -• t. miniftrators or affigns, fhall refufe to accept thereof, on tender thereof to him, an or( j er r or her or them made, by the borrower or borrowers thereof, his, her or their ex- the immediate cutors, adminiftrators or affigns, before any fuch juftice or juftices, fuch delivery of juftice or juftices fhall thereupon, by order under his hand, or their hands, tlie g oods > direct the goods or chattels fo pawned, forthwith to be delivered up to the pawner or pawners thereof, his, her or their executors, adminiftrators or affigns : And if the perfon or perfons, who fhall have lent any principal n refufal, to fum or fums of money, not exceeding in the whole the laid fum of ten to commit the pounds, J 59 8 €tytM. pawnbroker pounds, on any goods or chattels pawned, his, her or their executors, ad- till fatisfaftion min ift rators or a ffigns, fiull neglect or refufe to deliver up or make fatif- be made. f a fti on for the goods or chattels, which (hall be proved, to the fatisfaction of fuch juftice or juftices as aforefaid, to have been fo pawned, as any fuch juftice or juftices of the peace, as aforefaid, fhall order and direct ; then any fuch juftice or juftices fhall, and is and are hereby authorized and re- quired to commit the party or parties, fo refufing to deliver up or make fa- tisfaction tor the fame, to the houfe of correction, or fome other publick prifon of the county, riding, divifion city or place, wherein the offender or offenders fhall refide, or be convicted •, there to remain without bail or mainprize, until he, fhe or they, fhall deliver up the goods or chattels fo pawned, and continuing redeemable, as aforefaid, according to the order of fuch faid juftice or juftices, or make fatisfaction or compenfation for the va- lue thereof, to the party or parties intitled to the redemption of fuch goods or chattels fo pawned, and continuing redeemable as aforefaid." Goods re- Sett, ii. " And be it further enacted by the authority aforefaid, That mainingunre- if an y p awn Q r pledge of goods or chattels, of what kind foever, made by deemed for 2 Qr £ Qr ^ proprietor or proprietors thereof, fhall remain unredeemed for felted aie r * tne fp ace of two years, then every fuch pawn or pledge fhall be forfeited ; and may be and it fhall and may be lawful to and for every fuch perfon or perfons, to fold; whom fuch goods or chattels have been pawned or pledged, to fell the overplus to be fame ; any law, ftatute, cuftom or ufage to the contrary thereof notwith- accounted for. ft an ding •, fubject neverthelefs to account for the overplus, if any fhall be, of the produce of all fuch goods or chattels which have been pledged for two pounds and upwards, as by this act directed." Sett. 12. " Provided always, and be it further enacted by the authority E "d y \°n a f° rela 'd, That every perfon or perfons, to whom any goods or chattels fhall goodTpawnea nave been P awne d or pledged, fhall from time to time enter in a book or for 2I. or up- books to be kept for that purpofe, a true andjuft account of the fale of all wards. goods and chattels pawned to him, or them, for two pounds, or upwards, which fhall be fold by any fuch perfon or perfons, expreffing the day when, the money for which, and the name and place of abode of the perfon to whom fuch goods or effects pawned were fold •, and in cafe any fuch goods or effects fhall be fold for more than the principal money, with intereft, Overplus ari anc * tne cnar o e °f warehoufe-room, as aforefaid, due thereon at the time of fmg from the fuch fale, the overplus fhall by every fuch perfon or perfons be paid on fale, to be paid demand to the perfon by or on whofe account fuch goods or chattels were on demand to pawned, his, her or their executors, adminiftrators or affigns ; and fuch the owner; p er f on r perfons who pawned or pledged fuch goods or chattels, his hex or their executors, adminiftrators or affigns, fhall, for his her or their fatisfaction in this matter, be permitted to infpecT: the entry to be made as aforefaid of every fuch fale, paying for fuch inflection the fum of one lifpeaion ° P cnn y* ar| d no more; and in cafe any perfon or perfons fhall refufe to permit any fuch perfon or perfons, who pawned or pledged fuch goods or chattels, to infpect fuch entry as aforefaid in any fuch book or books, fuch perfon or perfons, if an executor or executors, adminiftrator or adminiftra- tors, or affignee or affignees, at fuch time producing his, her or their letters tefta- Cfjeat 599 teftamentary, letters of adminiftration or affignment ; or in cafe the goods or the goods or effects were fold for more than the fum entered in any fuch book or bein E fold for books -, or if any fuch perfon or perfons (hall not make fuch entry, or fhall more ,ban _, not have bona fida fold the goods or chattels pawned for the bed price that entered ' *** he, fhe or they might have reafonably had or got for the fame, without his, her or their wilful default ; or (hall refufe to pay fuch overplus, upon demand, to the pawner or pawners, his, her or their executors, adminiftra- tors or affignes ; he or they producing fuch letters teftamentary, letters of adminiftration or affignment; every fuch perfon or perfons fo offending fhall Pawnbroker to for every fuch offence forfeit treble the value of fuch goods and chattels to forfeit treble the perfon or perfons by whom, or on whofe account, fuch goods or the va,ue - chattels were pawned, his, her or their executors, adminiftrators or affigns, to be recovered by action of debt, bill, plaint or information, in any of his majefty's courts of record at IVeJiminiJier." Seft. 13. " Provided always, and be it further enacted by the authority Sommon f es aforefaid, That no fee or gratuity whatfoever fhall be had, taken or receiv- an i wa I ra " tJ ed, for any fummons or fummonfes, warrant or warrants, granted by any without^e. juftice or juftices of the peace, in purfuance of this act, fo far as the fame relates to goods and chattels pawned, pledged, taken in exchano-e, or unlawfully difpofed of." Seel. 14. " And whereas the occupiers of many Hcenfed publick houfes, and of other houfes wherein wines and liquors are fold, frequently fuffer gaming therein, and journeymen, labourers, fervants and apprentices by means of fuch gaming therein, not only mif-fpend their time, but are often reduced to poverty and great diftrefs ; Be it therefore further enacted by p u (,i; the authority aforefaid, That from and after the faid twenty-ninth day of micting September one thoufand feven hundred and fifty-feven, if any perfon or journeymen, perfons licenfed to fell any forts of liquors, or who fhall fell, or fuffer the *? c - ,0 8 ame lame to be fold, in his, her or their houfe or houfes, or in any outhoufes, mttieirhou f es > ground or apartments thereto belonging, fhall knowingly fuffer any gaming with cards, dice, draughts, fhuffle-boards, miffiffipi or billiard tables, (kittles, nine pins, or with any other implement of gaming, in his, her or their houfes, outhoufes, ground or apartments thereto belonging, by any fuch journeymen, labourers, fervants or apprentices ; and (hall be convicted of the faid offence on their own confeffion, or on the oaths of one or more credible witnefs or witneffes, before any juftice or juftices of the peace for the county, riding, divifion, city, liberty or place, wherein the offence fhall be committed, within fix days after any offence (hall be com- mitted he, (lie or they fo offending, (hall for every fuch offence forfeit and forfeit 4°*- pay the fum of forty (hillings •, and for every like offence which he, (he or and for evei 7 they (hall afterwards be convicted of, before any fuch juftice or juftices of £ ubfe< l uent °f- the peace, he, fhe or they fo offending, fhall forfeit the fum often pounds ; ' ' all which fums of money, fo forfeited, fhall be levied by diftrefs and fale t0 be levied by of the offenders goods and chattels, by warrant from the juftice or juftices diftrefs and before whom fuch offender or offenders fhall be convicted •, and which fal e. warrant every fuch juftice or juftices is and are hereby required and authorized to grant; and three fourths of all fums which fhall be fo for- feited 6o6 Cljeat feited (hall, on the recovery thereof, be paid to the churchwardens of the parifii in which the offence (hall be committed, for the ufe of the poor of fuch parifh ; and the other fourth part thereof (hall be paid to the peribn or perfons on whole information the party or parties offending (hall have been convicted of the offence." On complaint Seel. 15. " And be it further enacted by the authority aforefaid, That of journey- f rom an d after the faid twenty-ninth day of September one thoufand feven men, dsV. hundred and fifty-feven, if any journeyman, labourer, apprentice or fervant, publiUioufes, fhall game in any houfe, out-houfe, ground or apartments thereto belong- juftice to iflue ing wherein any liquors (hall be fold, and complaint thereof (hall be made on his warrant oat h before any juftice or juftices of the peace for the county, riding divifion, for appre- imj, liberty or place where the offence (hall have been committed, every en ltl S tn e m >f uc h j u fti ce or juftices (hall thereupon iflue his or their warrant to fome conftable, tythingman, headborough or other peace officer of the parifh, precinct or place, wherein the offence (hall be charged to have been committed, or where the offender (hall refide, to apprehend and carry every fuch offender before fome juftice or juftices of the peace acting for the county, riding, divifion, city, liberty or place, where the offence (hall be whouponcon- committed, or where the offender (hall refide; and if the peribn who (hall vidion are to be apprehended (hall be convicted of the faid offence by the oath of one or forfeit no^t ex- more cr edible witnefs or witneffes, or on his own confeffion, every fuch r.or Ids than' offender (hall' forfeit any fum not exceeding twenty (hillings, nor lefs than j s. five (hillings, as the juftice or juftices before whom any fuch offender or offenders (hall be convicted (hall think fit and order, every time he (hall fo offend, and be convicted as aforefaid •, and one fourth of all fuch money fo forfeited (hall, on the conviction of any fuch offender or offenders, be paid to the perfon or perfons on whofe information the party or parties of- fending (hall be convicted, and the other three fourths thereof (hall be applied for the ufe of the poor of the parifh wherein the offence fhall have been committed, and fhall be paid to the overfeers of the poor of fuch Offender not parifh ^ or tnac P ur P ole '» an d if the party who fhall be convicted of the payingthefor- offence laft-mentioned, fhall not forthwith pay down the faid fum fo for- feiture, to be feiced by him, any fuch juftice or juftices (hall, by warrant under his hand, committed to or t h e j r hands, commit every fuch offender to the houfe of correction, or hard labour. ^ Qmt ot h er prflbn, of the county, riding divifion, city, liberty or place, in which he fhall be apprehended-, there to remain and be kept to hard labour for any time not exceeding the fpace of one month, or until he fhall pay the fum of money fo forfeited." Juftice, upon^ SetL x g « And be it f urtner ena&ed by the authority aforefaid, That iilue^lvar- i- fhall and may be lawful to and for any juftice or juftices of the peace of rant for bring- any county, riding, divifion, city, liberty, town or place, and he and they ing the of- ; 5 anc i ai -e hereby required, upon complaint made to him upon oath of anv fender before or ]f ence committed againft this act, within the fame county, riding, divifion, city, liberty, town or place, to iflue his warrant for bringing before him, or fome other juftice or juftices of the peace of any county, riding, di- vifion, city, liberty, town or place, the perfon or perfons charged with fuch offence, and the juftice or juftices before whom fuch perfon or perfons fhall eijeat. 6o1 fliall be brought, is hereby authorized and required to hear and determine the matter of every fuch complaint, and to proceed to judgment and con- viction thereupon, as by this aft is directed ; and if it fhall appear by oath of any credible perfon or perfons, to the fatisfaftion of any fuch juftice or juftices, that any perlbn or'perfons, within the jurifdiclion of fuch juftice or juftices, can give or offer material evidence on behalf of the profecutor, againft any offender or offenders againft the true intent and meaning of this act, or on behalf of the perfon acculed, and who will not voluntarily ap- pear before fuch juftice or juftices to be examined, and give his, her or their evidence, concerning the premiffes ; every fuch juftice or juftices is and may fam- and are hereby authorized and required to iffue his or their fummons, to monwunefles. convene every fuch perfon or perfons within his or their jurifdiclion before him or them, to be examined upon oath concerning the premiffes ; and if any perfon lb fummoned fhall neglect or refufe to appear on fuch lummons^ and no juft excufe fhall be offered for fuch neglect or refufal, then (after proof by oath of fuch fummons having been duly ferved upon him, her or them for that purpofej any fuch juftice or juftices is and are hereby authorized and required to iffue his or their warrant to bring every fuch witnefs and wit- neffes, within his or their jurifdiclion, before him or them ; and on the appear- ance of any fuch witnefs before any fuch juftice or juftices, any fuch juftice or juftices is and are hereby authorized and impowered to examine upon oath every fuch witnefs ; and if any fuch witnefs, on his or her appearance, or be- '^'^j^*" ing brought before any fuch juftice or juftices, fliall refufe to be examined give evidence ° on oath concerning the premiffes, without offering any juft caufe for fuch re- he may be fufal, it fhall be lawful for any fuch juftice or juftices, by warrant under his committed to or their hand and feal, or hands and feals, to commit every perfon fo refufing hard labouf - to the publick prifon of the county, riding, divifion, city or place, in which the perfon or perfons fo refufing to be examined on oath, fhall be brought before any fuch juftice or juftices, there to remain for any time not exceed- ing three months, as any fuch juftice or juftices fhall direct ; and if on fuch examination, any fuch juftice or juftices fhall deem the evidence of Material wit- any fuch witnefs or witneffes to be material, any fuch juftice or juftices may nefs may be bind over any fuch witnefs, unlefs a feme covert, or one under the age of . untJ over t0 twenty-one years, by recognizance, in a reafonable penalty, to appear and § n r e •j I ° I err C L r rr btforea court. give evidence at the next general or quarter-lemons or the peace, or lemons of oyer and terminer, as in fuch recognizance fhall be mentioned." SeH. 17. " And be it further enacted by the authority aforefaid, That no Orders not perfons charged on oath with being guilty of any of the offences punifliable to Readmitted by this act, and which fhall requiie bail, fhall be admitted to bail before n t °^ ,, h ' J | llduc twenty-four hours notice, at leaft, fliall be proved by oath to have been been given to given in writing to the profecutor, of the mmes and places of abode of the theprofecutor, peifons propofed to be bail for any fuch offender or offenders, unlefs the & c - bail offered fhall be well known to the juftice or juftices, and he and they fliall approve of them ; and every fuch offender and offender?, who fhall 0ffen a " d been convicted, fhall be affirmed, fuch appellant fhall immediately pay the 0n 2 fiirmati- fum which he or fhe fhall have been adjudged to forfeit, together with fuch n of the cofts as the juftices in the faid general or quarter-feffions fhall award to be judgment, ap- paid, for defraying the expences fuftained by the defendant or defendants P e!iant t0 P a y in fuch appeal ; or in default of making fuch payments, fhall fuffer the |. a, neaD refpective pains and penalties by this act inflicted upon perfons refpectively, who fhall neglect to pay, or fhall not pay the refpective fums or forfei- tures by this act, to be paid by, or impofed upon, perfons refpectively, who fhall be convicted by virtue of this act. Sec?. 22. " And be it further enacted by the authority aforefaid, That ^ one to De no perfon, who, by virtue of this act, fhall be punifhed for any offence P umfl \ ed a or offences by him, her or them committed, fhall be punifhed for the fame ( 0Tt ^ e f ame offence or offences, under any other law or ftatute ; and that if any action offence, or fuit fhall be commenced againft any perfon or perfons for any thing done in purfuance of this act, the defendant or defendants in any fuch ac- tion or fuit may plead the general iffue, and give this act and the fpecial General iiTue. matter in evidence, at any trial to be had thereupon, and that the fame was done in purfuance and by the authority of this act ; and if it fhall appear fo to have been done, or a verdict fhall be recorded for the defendant or defendants ; and if the plaintiff fhall be nonfuited or difcontinue his ac- tion, after the defendant or defendants fhall have appeared ; or if judg- Double cods, ment fhall be given upon any verdict or demurrer againft the plaintiff, the defendant or defendants fhall and may recover double coftf, and have the like remedy for the fame, as any defendant or defendants hath or have in other cafes by law, for recovery of his or their cofts. Sett. 23. " And be it further enacted by the authority aforefaid, That Claufe in aft the ftatute made in the twenty-fourth year of his prefent majefty's reign, 2 * G - 2 ' ?', intituled, " An act for the rendering the juftices of the peace more fafe ^juftice" aft- in the execution of their office, and for indemnifying conftables and others ing under this acting in obedience to their warrant," fo far as the faid act relates to the ren- aft. dering the juftices more fafe in the execution of their office, fhall extend and be conftrued to extend to the juftice or juftices of the peace acting under 4 H 2 the 604 Cijeat ■nt .• . u the authority or in execution of this aft ; and no action or fuit fhall be .Notice to be , ' . . „ . .«. i . r , gwen to peace had or commenced againft, or writ ltiued out, or copy or writ ferved upon officer, before any peace officer or officers, for any thing done in the execution of this aft, commencing unt ;i no tice in writing fhall have been given to him or them, or left at his the fuitagamft Qr ^j^ x u fual place of abode, by the attorney for the party commencing fuch action, or fuing out or ierving the copy of the faid writ ; which faid notice in writing ihall contain the name and place of abode of the perfon who is to bring fuch action, together with the caufe of action or com- plaint ; and the name and place of abode of the faid attorney fhall be un- Tenderof der-wrote or indorfed thereon •, and any peace officer or officers fhall be at amends may liberty, and may by virtue of this act, at any time within fourteen days be made by after fuch notice, tender or caufe to be tendered any fum or fums of mo- him, ney, as amends for the injury complained of, to the party complaining, or and pleaded to the faid attorney •, and if the fame is not accepted of, the defendant or in bar of the defendants, in fuch action or actions, may plead fuch tender in bar of atfion. fuch action or actions, together with the general iffue, or any other plea, with leave of the court; and if upon iffue joined upon fuch tender, the jury fhall find the amends tendered to have been fufficient, the faid jury fhall find a verdict for the defendant or defendants •, and in fuch cafe, or if the plaintiff fhall become nonfuit or difcontinue his action, or if judg- ment fhall be given for the defendant or defendants upon demurrer, the If none, or in- defendant or defendants fhall be intitled to his and their cofts ; and if the fufficient ten- jury fhall find that no fuch tender was made, or that the amends tendered der has been were not fufficient, and alio fhall find againft the defendant or defendants made, plain- Qn ^^ ot i ier pj ea or pleas by them pleaded, the faid jury fhall give a ver'dift° to re- verdict for the plaintiff, and fuch damages as they fhall think proper, for cover.' which the plaintiff fhall have judgment, together with his, her or their full cofts." Cfmrcl) ant! Cfwrc|)^arti, LORD Coke fays, that by the common law and general cuftom of the realm, it was lawful for bifhops, earls and barons to build churches or chapels within their fees •, and hereof king John informed pope Innocent the third (naming only, honoris caufa, the bifhops and baronage of Eng- land, albeit this liberty extended to all,) with requeft, that this liberty to the baronage might be confirmed. To thefe letters the pope made this an- fwer, Quod enim de confuetudine regni Anglorum procedere regia ferenitas per fuas literal intimavit, ut liceat tarn epifcopis, quam comitibus et baronibus, eccle- fias in feodo fuo fundare ; laicis quidem principibus id licere nullatenus denegamus, dummodo diocefani epifcopi eis fuffragetur ajfenfus, et pernovam Jlrucluram ve- terum eccleftarum jujlitia non Udatur. Whereas the baronage had abfolute liberty before, now the pope addeth the confent of the bifhop ; but that addition Cljutcl) anu CJnttcf^yatt). 605 addition bound not, feeing it was againft the liberty of the baronage war- ranted by the common law; and he fays he would not have rehearf- ed this epiftle, but that it is a proof what the general cuftom of the realm was, concerning the building of churches by the baronage of England. And albeit they might build churches without the king's licence, yet could theynot erect a fpiritualpolitic body to continue in fucceffion, and capable of endowment, without the king's licence: but by the common law, be- fore the ftatute of mortmain, they might have endowed this fpiritual body once incorporated, perpetuis futuris temporibus, without any licence from the king or any other. 3 Inji. 201, 202. Which body lb incorporated, is not diffblved, tho' the church is drowned, or otherwife deftroyed •, but in that cafe, one may be prefented to the rectory, and (hall be liable to annuities and other charges ; the church in confideration of law, being properly the cure of fouls and the right of tithes. Gibf 189. But Dr. Gibfon obferveth on the contrary, that no perfon may erecl a church without the leave and confent of the bifhop. And this he fays, is agreeable to the rule, both of the civil and canon law, and was made an exprefs law of the church of England many years before the reion of king John, viz. in the council of IVeJlminfter in the time of king Stephen. Nor could this right of the bifhop be defeated by the exemption of reli°-i- ous perfons from epifcopal jurifdidion ; who might not, under colour of fuch exemptions, erect churches in any part of their poiTeffions not ex- empt, without leave from the bifhop-, as we find it efpecially adjudged, in the body of canon law. And to this, the pope's anfwer to king John is exactly agreeable, laicis quidem principibus id licere nullatenus denegamus, dummodo diocefani epifcopi eis fuffragetur ajfenfus. And kincr John's letter doth not relate to a right of erecting with or without licence ; fince the occafion of it was, the building of a collegiate chapel by the archbifhop, who was his own licence ; and the only objection was, that the building of it would be prejudicial to the church of Canterbury. Gibf. 188. 1 Burn Ec. L. 232. But it is to be obferved, that thefe two afiertions are not contradictory ; for the one fays only, that by the civil and canon law it might not be done ; and the other fays, that it might be done by the common law, altho' Lord Coke produceth no inftances, before the reign of king John or after, of churches erected without the licence of the diocefan. And it feemeth to amount to the fame thing, fo long as the bifhop hath power (unto which Lord Coke affentethj after the church is erected, to with-hold or deny the confecration. 1 Burn Ec. L. 233. And not only the bifhop, by refuting to confecrate, may hinder the eftablifhment of a new church or chapel in any parifh •, but alfo any other perfon thinking himfelf injured thereby, as by incroaching upon his ground, (topping his way, or the like, may apply to the temporal courts, who (as they fee caufe) will grant him redrefs. 1 B. Ec. L. 233. The ancient manner of founding churches was, after the founders had made their application to the bifhop of the diocefe, and had his licence, 4 the 6c6 Cljtttc!) ana Ctnttct>yatt>. the bifhop or his commiffioners fet up a crofs, and fet forth the ground, where the church was to be built ; and then the founders might proceed in the building of the church, and when the church was finifhed, the bilhop was to confecrate it, but not till it was endowed, and before the facramencs were not to be adminiftered in it.. Degge, part i. c. 12. For albeit churches or chapels may be built by any of the king's fub- jecfs, yet before the law takes notice of them to be churches or chapels, the bifhop is to confecrate or dedicate the fame. And this is the reafon, that a church or not a church, a chapel or not a chapel, fhall be tried and certified by the bifhop. 3 Inft. 203. Original of -j-* ne churchyard is called a dormitory, (from dormio, to deep) becaufe c urc -yar . ^ fezd bodies are faid there to fleep until the refurrecfion. 2 Inft. As to the original of burying places, many writers have obferved, that at the firft erection of churches, no part of the adjacent ground was allotted for interment of the dead, but fome place for this purpofe was appointed at a further diltance. Efpecially in cities and populous towns •, where agreeably to the old Roman law of the twelve tables, the place of inhumation was without the walls, firft indefinitely by the way fide, then in fome peculiar inclofure affigned to that ufe. Therefore the Roman pontifical, amongft other inventions, is in this refpect convi&ed of error, that it makes pope Marcellus under the tyrant Maxentius appoint twenty-five churches in Rome to bury martyrs in, when at that time laws and cuftoms did forbid all burial within the city. Hence the Auguftine monaftery was built without the walls of Canterbury (as Ethelbtrt and Auguftine in both their charters intimate) that it might be a dormitory to them and their fucceffors the kings and archbifhops for ever. This practice of remoter burials con- tinued to the age of Gregory the great, when the monks and priefts, begin- ning to offer for fouls departed, procured leave for their greater eafe and profit, that a liberty of fepulture might be in churches, or in churches adjoining to them. This mercenary reafon feems to be acknowledged by pope Gregory himfelf, whilft he allows, that when the par. ies deceafing are not burdened with heavy fins, it may then be a benefit to them to be buried in churches ; becaufe their friends and relations, as often as they come to thefe facred places, feeing their graves, mav remember them, and pray to Gcd for them. After this, Cutbbert archbilhop of Canterbury brought over from Rome this practice into England, about the year 750 -, from which time they date the original of church-yards in this ifiand. This was a fufficient argument of the learned Sir Henry Spelman, to prove an infcription at Glaftenbury to be a later forgery ; becaufe it pretends, dominus ecclefiam ipfam cum ceemeterio dedicarat, whereas there was no cce- metery in England till above 700 years after the date of that fiflion. The practice of burying within the churches did indeed (though more rarely) obtain before the ufe of church-yards •, but was by authority reftrained, when church-yards were frequent, and appropriated to that ufe. For .among thole canons which feem to have been made before Edward the £Onfeffor a the ninth bears this title De non fepdiendo in etcle/iis, and begins with Cljttrcl) ana Cfwrcfj^atD, 607 with a confeffion that fuch a cuftom had prevailed, but muft be how re- formed, and no fuch liberty allowed for the future, unlets die perfon be a prieft or fome holy man, who by the merits of his paft life might deferve fuch a peculiar favour. However, at firft it was the nave or body of the church, that was permitted to be a repofitory of the dead, and chiefly un- der arches by the fide of the walls. Lanfrank, archbifhop of Canterbury, feems to have been the firft, who brought up the practices of vaults in chancels, and under the very altars, when he had rebuilt the church of Canterbury, about the year 1075. Ken. Par. Ant. 592, §g^- ©tilt. 13 Ed. 1. ft. 2. c. 6. [A. D. 1285.] partly intituled "fairs or markets fhall not be kept in church-yards." " And the king commandeth and forbideth, that from henceforth neither fairs nor markets be kept in church-yards for the honour of the church." @)tat- 50 Ed. 3. c. 5. [A. D. 1376. intituled] " None fhall arreft priefts or clerks doing divine fervice." Item, Becaufe that complaint is made to our lord the king by the clergy of his faid realm of England, that as well divers priefts bearing the fweet ' ' 2C ' '** body of our lord Jefus Chrift to fick people and their clerks with them, as otherwife divers other perfons of holy church, whiles they attend to divine fervices in churches, churchyards,, and other places dedicate to God, be fundry times taken and arrefted, by authority royal, and commandment of other temporal lords, in offence of God, and of the liberties of holy church, and alio in disturbance of divine fervices aforeiaid ; (2) the fame our lord the king, who would be fore difpleafed if any did in fuch manner, will and granteth, and defendeth upon grievous forfeiture, that none do the fame from henceforth, fo that collufion or feigned caufe be not found in any of the laid perfons of holy, church in this behalf." ©tat. 1 Ric 2. c. 15 {A. D. 1378. intituled] "The penalty for arrefting of priefts doing divine fervice." Item, Becaufe that prelates do complain themfelves, that as well beneficed 50 Ed. 3. c. 5. people of holy church, as other, be arrefted and drawn out as well of 1 Mar. feff. 2. cathedral churches, as of other churches and their churchyards, and fome- c ' 3- time whiles they be intended to divine fervices, and alfo in other places, \ c " ' '* although they be bearing the body of our lord Jefus Chrift to fick perfons, p ]. / and fo arrefted and drawn out, be bound and brought to prifon, againft the liberty of holy church : (2) It is ordained, that if any minifter of the king, or other, do arreft any perfon of holy church by fuch manner, and thereof be duly convict, he fliall have imprifonment, and then be ranfomed at the king's will, and make gree to the parties fo arrefted ; (3) provided always, Browm 303. that the faid people of holy church fhall not hold them within the churches or fandtuaries by fraud or collufion in any manner. (4) And therefore we command, that thou caufe all the faid ftatutes to be cried and publifhed, and firmly kept through thy bailiwick, according to the form and tenour thereof 6o8 Cljttttfj ant> Clmtcf^patti, thereof, and that do not omit in any wife. Given under the witnefs of our great feal the firft day of February in the firft year of our reign. Alio it is faid,- that arrefts in civil cafes ought not to be of peribns going to or coming from church j but that a warrant from a juftice of the peace for the king may be executed in fuch cafe. Cro. Car. 602. Cro. Jac. 321. 2 Bulft. 72. But although the officer may be punifhed for the arreft either in the fpiritual or temporal courts, yet the arreft (if not on a Sunday) is good in law. fVatfoti's Comp. Incumb. c. 34. p. 344. @tctt- 5 &? 6 Ed. 6. c. 4. [A. D. 1552. intituled] " Againft quarrelling and fighting in churches and church-yards." The penalty Forafmuch as of late divers and many outragious and barbarous be- forfHkingor haviours and acts have been ufed and committed by divers ungodly and drawing a irreligious perfons, by quarrelling, brawling, fraying and fighting openly weapon m \ n churches and church-yards : (2) Therefore it is enafted by the king our church -vard f° verei g n lord, with the affent of the lords fpiritual and temporal, and the Hetley 86. commons, in this prefent parliament afTembled, and by the authority of the fame, That if any perfon whatfoever fhall, at any time after the firft day of May next coming, by words only, quarrel, chide or brawl in any church or church-yard, that then it fhall be lawful unto the ordinary of the place where the fame offence fhall be done, and proved by two lawful witneffes, to fufpend every perfon fo offending •, that is to fay, if he be a layman, ab ingrejfu ecclefia, and if he be a clerk, from the miniftration of his office for fo long time as the faid ordinary fhall by his difcretion think meet and convenient, according to the fault." . Sett. 2. " And further it is enacted by the authority aforefaid, That if forfmitine in anv P er f° n or perfons, after the faid firft day of May fhall finite or lay any a church, &c. violent hands upon any other, either in any church or church-yard, that then ipfo fallo every perfon fo offending fhall be deemed excommunicate, and be excluded from the fellowfhip and company of thrift's congre- gation." The penalty &efl. 3. " And alfo it is enacted by the authority aforefaid, That if any for drawing perfon after the faid firft day of May fhall malicLufly itrike any perfon orfmitmgwith w j tn anv we apon in any church or church-yard, or after the fame firft day "he'churdi of May fhall draw any weapon in any church or church-yard,' to the intent t_=-y. to ftrike another with the fame weapon, that then every perfon, fo offcnd- 2 Leon. 18S ing, and thereof being convifted by verdict of xij. men, or by his own con Cro - J ac -+ 6z - feffion, or by two lawful witneffes, before the juftices of affile, juftices of Oyer and Determiner, or juftices of peace in their feffions, by force of this act fhall be adjudged by the fame juftices before whom fuch perfon fhall be convicted, to have one of his ears cut off. (2 J And if the perfon or perfons fo offending have none ears, whereby they fhould receive fuch iunifhmenr. as is before declared, that then he or they to be marked and turned in the cheek with an hot iron, having the letter F. whereby he or they may be known and taken for fray-makers and fighters 5(3) and 1 befides C Cfmrcfj ana C!)ttt:cl>pat&. 6o 9 befides that, every fuch perfon to be and (land ipfofaclo excommuicated, as is aforefaid." In the expofition of this act, fays Mr. Serjeant Hawkins, it hath been holden : Firlt, that notwithstanding the words of the ftatute be expreffed, that he who fmites another in the church-yard, &c. fhall, ipfo fablo, be deemed excommunicate ; yet there ought either to be a precedent con- viction at law, which mud be tranfmitted to the ordinary, or elfe the ex- communication muft be declared in the fpiritual court upon a proper proof of the offence there •, for it is implied in every penal law, that no one Ihall incur the penalty thereof, till he be found guilty upon a lawful trial ; alio it mult be intended, in the conftruction of this ftatute, that the excom- munication ought to appear judicially, for otherwife, there could be no abfolution. i Haw. P.C. 139. Secondly, that he who ftrikes another in a church, &c . can no way excufe himfelf, by fhewing that the other affaulted him. 1 Hawk. P. C. 139. Thirdly, that Churchwardens, or perhaps private perfons, who whip boys for playing in the church, or pull off the hats of thofe who obfti- nately refufe to take them off themfelves, or gently lay their hands on thofe who dilturb the performance of any part of divine fervice, and turn them out of the church, are not within the meaning of the ftatute. 1 Hawk. 139. Mr. Serjeant Hewitt fhewed caufe againft a prohibition, which Mr. Ser- p ro hibition to jeantPec/had moved for, (on the 6th of July laft) to be directed to the the fpiritual archdeacon of Nottingham, to ltay his proceedings in a fuit againft Mr. If'il- foti, parfon of Newark, for brawling in the church, and alfo for fmiting in I* 3 ? P roceed - the church : But he prayed the prohibition, only as to the latter charge, gf *? " ' the fmiting in the church. V. 5, 6 E. 6. c. 4./ 2. Which aft contains r, 2 w h"i*h three diftincft claufes, levelled againft three diltinct offences committed in act contains churches and churchyards ; viz. the ift againft quarrelling, chiding, or tnree diftinct brawling by words only ; the 2d againft fmiting, or laying violent hands ; * h " fes ! e * eI - the 3d againft ftriking with a weapon, or drawing one with intent to ftrike. three^iftinct His objection was, That as to this offence of fmiting in the church, there offences in ought to have been ^previous conviction at law; though the ftatute churches and fays, " That he fhall ipfofaclo be deemed excommunicate." In proof f chur«h yard?, which he cited Cro. Eliz. 224. pi. 6. Dethick\ cafe. Where he was indicled, ]^y^ '3Jjl" upon this ftatute of 5, 6 E. 6. for ftriking in St. Paul's church-yard : ding.o'rbraw!- Though he got off indeed for want of being named Garter. 1 Vent, ing by words 146. The cafe of Dyer v. Eaft, is full in point, " That the ftriker in a onl 7. ; 2d, y» church-yard does not ftand ipfofaclo excommunicated, until he be there- , . !t '" s or , of convicted at law, and this tranfmitted to the ordinary." h^n'df ; ^d]v| ftriking with a weapon, or drawing one with intent to ftrike ; for which fecond offence, the offender is i(/a fnclo to be deemed excommunicate, ift. The exclefiaftical court may proceed upon the wof r ft claufes, and are not to be prohibited ; but upon the /£/>part> g i i and there might have been a confeflion. And there have been many in- dictments, he faid, on this ftatute : And this method of conviction was the ancient method. Lord Mansfield: The ftatute of 5, 6 Ed. 6. c. 4. has three degrees of offences, and three different punifhments. And whatever jurifdichon the fpiritual court might claim before the act, they are now proceeding fince the act. Therefore it is not very material how the matter ftood before the act. The puniihment is given, by this act, to the ecclefiaftical court : And the punifhment is fuch as can only be executed by the ordinary. The •cafe ftated with regard to the firft offence, is fufficiently a brawling, with- in the meaning of the act. The fecond offence is smiting in the church, or church-yard. Now this is indeed ft ill an offence at common law •, And he may be indicted for it : But, befides this, he may, by this act, be ipfo facio excommunicated. By whom ? By the ordinary. Indeed the or- dinary may ufe a conviction at law, as a proof of the fact. And the cafe in Raym. [2 Lord Raymond 850. IVenmouth v. Collins,'] is a plain proof that the ecclefiaftical court may proceed upon the two firft claufes, and are not to be prohibited. But then there is a third offence, and a third punifhment mentioned in the act of 5, 6 E. 6. c. 4. which has made all the confufion : This offence is malicioufly {hiking with any wea- pon, in any church or church-yard, or drawing any weapon there, with in- tent to {hike. For this third offence, the act inflicts a double punifh- ment, one temporal •, the other, fpiritual: The temporal punifhment ii lofs of an ear or marking in the cheek, after conviclion ; the fpiritual is, And befides every fuch perfon to be and ftand ipfo facio excommunicated as is aforefaid. Here, indeed, there muft be a previous conviction 3 and a tranfmiffion of the fentence •, and a declaration. But on the fecond claufe, no previous conviction is neceffary : (though, if there is one, it may be ufed as a proof of the fact.) This libel is upon the firft and fecaid claufes : not upon the third. And the proceedings of the two courts being diver- fo intuitu, it is no objection to fay, That a man will at this rate be twice punifhed for the fame offence. And this is common, in many cafes : For We proceed, to punijh, They to amend. 'Tis clear that upon the two first claufes, the ecclefiaftical court has a jurifdiction. And the cafes upon words do not apply to the prefent cafe. Mr. Juftice Denifon con- curred: Their proceedings are pro falute anima. Indeed if they proceed for damages, this court will prohibit them. And that was laid down by the court in the cafe of Large v. Alton, in Cro. Jac. 462. where the cofts being given only pro expenfis litis, the court would not prohibit them : But they declared that they would have done otherwife, if it had been pro damnis. And it is plain to me, that the cafe in 1 Ventr. 146. Dyer v. Eaft, was really a determination upon the third claufe of the act ; and is a miftake : I iuppofe the words with a weapon, are left out by miftake. The reporter was then a young man. But however, this is the only cafe to be met with, to this purpofe •, and it muft be a miftake, either in the {late of the cafe, or in the opinion : For on the fecond claufe, furely, we can not prohibit them •, becaufe they are exactly within the words of the ftatute, That if a perfon or perfons {ha\\ finite or lay any violent hands up- 4I 2 on 6 1 2 Cfjurcl) ann C!mrclM>att>. on any other, either in any church or church-yards, they fhall ipfo facie be deemed excommunicate. Per Cur. viz. the only two judges now pre- fent, the rule was dij charged. @>tflt. 17 Car. 2. c. 3. \_A. D. 1665. Intituled] " An a<5t for uniting churches in cities and towns corporate." Farther pro- " Forafmuch as the fettled provifion for minifters, in mod cities and vided for by towns corporate within this realm, is not fufficient for the maintenance of 4 & ; W. & aD ] e m inifters fit for fuch places, whereby mean and ftipendiary preachers M. c, 12. are enterta i n ed, t o ferve the cures there ; who wholly depending for their maintenance upon the good-will and liking of their audirors, have been, and are hereby under temptation of too much complying, and fuiting their doctrine and teaching to the humour rather than good of their audi- tors, which hath been a great occafion of faction and fchifm, and of the contempt of the miniftry : (2) The lords and commons in parliament af- lembled, being deeply fenfible of the ill confequence thereof, and pioufiy deiiring able minifters in fuch places, and a competent fettled mainte- nance for them by the union of churches-, which is alio become neceffary, by reafon of the great ruin of many churches and parifhes in the late ill ... times, and otherwife -, do therefore moft humbly beieech your molt ex- and^owns'"" cellent majefty, That it may be enacted-, (3) and Be it enacted by the and how ' king's moft excellent majefty, by and with the advice and .confent of the churches and lords fpiritual and temporal, and the commons, in this preient parliament chapels may a ff ern bled, and by the authority of the fame, That in every city or town be united. cor p 0ra te and their liberties, within the kingdom of England, and domini- on of Wales, which have a mayor and aldermen, and particular juftices of the peace by charter or commiffion, or bailiff or bailiffs, or other chief officer or officers, and other affiftants by like charter -, and where two or more churches or chapels, or a church and a chapel, and the parifhes there- unto belonging, do lie within the faid corporation, or liberties thereof, con- venient to be united : In fuch cafes the biibop of the diocefe where fuch pa- rifh and parifhes are, with the confent of the mayor, aldermen, and juftices of the peace, bailiff or bailiffs or other chief officer or officers, or the ma- jor part of them, and of the patron and patrons of fuch church or churches, chapel or chapels, fhall or may according to due form of law unite the faid churches or chapels, or church and chapel, or any of them ; (4) and fhall appoint at which church or chapel, churches or chapels the faid parifhioners and inhabitants of the faid parifhes or places to which the faid churches or chapels, or church and chapel do belong, fhall ufually meet for the worfhip of God, and which of the faid churches or chapels, or church or chapel fhall be united and annexed unto the other, which fhall be the church prefentative, unto which all prefentations fhall here- after be only made, and unto which the parifhioners fhall refort as their Mod. Cafes in proper church -, (5) and after fuch order made, the faid churches or chapels, Law 5, 6. or church and chapel fhall accordingly for ever ftand united : And the pa- rifhioners, landholders, and inhabitants of the faid parifhes and places belonging Cfmrcf) ant) ci>utci>ratD. 613 belonging to fuch churches or chapels, or church and chapel fo united and annexed, fhall as they, or any of them become void, and from thence- forward, pay all fuch tithes and other duties as belong, or did belong to the incumbent of any of the faid churches or chapels, or church and chapel fo united and annexed, unto the incumbent of the faid prefentative church or chapel, unto which the faid other churches or chapels, or church or chapel (hall be fo united and annexed." Sett. 2. " And it is hereby alfo enacted, That notwithftanding any fuch Parifhes fhall union to be made by virtue hereof, each of the parifhes fo united, fhall remaindifiinft continue diftinct, as to all rates, taxes, parochial rites, charges and duties, yotwithftand- and all other privileges, liberties and refpects whatfoever, other than whatofchurche"' " is herein before-mentioned and fpecified; and church-wardens fhall be Canhew z-8. elected and appointed for each parifh, as they were before fuch union made." Sett. 3. " And be it further enacted and provided, That where one or How and more of the faid churches or chapels, or church and chapel fo united and when fuch annexed, fhall be full at the time of making- fuch union, that then the un ">ng Ihall o ' take efie t faid union fhall take effect for every fuch church or chapel, upon the firft avoidance after fuch union made : (2) And that the feveral patrons of the faid churches and chapels fo united, fhall and may prefent by turns to that And how fe. church only which fhall remain and be prefentative from time to time, in veral p a '-fons fuch order as the faid bifhop, with the confent of the faid mayor, alder- J 1 P r | e "}' men, and juftices of peace, bailiff or bailiffs, or other chief officer or Il( j 4 b officers within fuch parifhes, or the major part of them, and of the patron or patrons of fuch church or churches, chapel or chapels, fhall determine and decree for the prefervation of their respective rights therein, refpect being therein had to the differences of the values of the yearly maintenance belonging to fuch churches or chapels, or any of them; (3) favingunto the king's majefty, his heirs and fucceffors, all the tenths and firft-fruits of all fuch churches and chapels fo to be united, according to the rates and valuations at which the faid churches and chapels are rated and valued in the office of firft-fruits and tenths, in his majefty's court of exchequer ? and alio relerving all procurations and penfions to all perfons to whom they are now, and have been formerly, or fhall be hereafter due and payable - r any thing herein contained notwithftanding." Sett. 4. " Provided always, That no union of parifhes or places to be How unions made by virtue of this act fhall commence or be effectual in law, until it mul j Dere g'- be regiftred in the regifter-book of the bifhop of the diocefe, which the re ' regifter is hereby required to do." Se5l. 5. "Provided always, That no union made by virtue hereof Parifhesha- fhall be good and effectual where the fettled maintenance belonging roving 100I. the parfons, vicars and incumbents of the church or chapel, or churches maintenance, or chapels fo united, fhall exceed the fum of one hundred pounds raay ? ot " , . , 1,1 1 -r 1-1.- united. per annum clear, and above all charges and repnles, unleis the reipec- tive parifhioners, or j;he major part of them, under their hands defire otherwife." 6i4 Cfmrcf) ft*fl Cljtttcfcpat&. Incumbents of Seff. 6. "Provided always, and be it enacted, That every minifter fuch united f et tled, as aforefaid, the incumbent of any church or chapel, or churches be r '!idul"efof and cha P els united according to this act, (hall be the full and lawful in- the univerfity. cumbent thereof to all intents and purpofes, fo as fuch minuter be a gradu- ate in one of the univerfities of this kingdom." Owners of im- Seft. 7. " And be it further enacted by the authority aforefaid, That propriations ever y owner or proprietor,owners or proprietors of any impropriation, tithes, may bellow or p 0rt [ on f tithes, in any parifh or chapelry within the kingdom of Eng- maintenance land, or dominion of Wales, is, are and fiiall be, by virtue of this act, tothechurchesinabled and impowered to give or beftow, unite and annex the fame, or where theylie. anv part thereof, unto the parfonage or vicarage of the faid parifh-church or chapel where the fame do lie, or arife, or fettle the fame in truft for the Without li- benefit of the faid parfonage or vicarage, or of the curate and curates there ceaceofmort- fuccefiively, where the parfonage is impropriate, and no vicar indowed ac- roain. cording to his or their refpective eftates, without any licence of mortmain; any law or ftatute to the contrary notwithstanding." Parfonsand Seff.8. " And be it further enacted, That if the fettled maintenance of vicars not j>a- j^,,^ p ar f on age, vicarages, churches and chapels fo united, or of any other mean; of tool, parfonage or vicarage with cure in the kingdom of England, or dominion of per annum, Wales, fhall not amount to the full fum of one hundred pounds per annum, may purchafe dear and above all charges and reprifes, That then it fhall be lawful for and annex ^ ^ parfon, vicar, and incumbent of the fame, and his fucceffors, to take, without li- 'receive, and purchafe to him and his fucceflfors, lands tenements, rents, cence of mort- tithes, or other hereditaments, without any licence of mortman ; any law main. or ftatute to the contrary notwithftanding." He who fteals goods belonging to a parifh church, may be indicted for ftealing the goods of the parifhioners ; and it hath been adjudged, that he who takes off a fliroud from a dead corps, may be indicted as having ftolen it from him who was the owner thereof when it was put on, for a dead man can have no property, i Hawk. P. C. 94. Clntrcltfuac&eng. 6.5 Cfturcl^toarticns. CHURCH-WARDENS, {ecclefiarum guardiani) are officers yearly chofen, by the confent of the minifter and parifhioners, according to the cuftom of every feveral place, to look to the churchy church-yard, and fuch things as belong to both, and to obferve the behaviours of their parifhioners for fuch faults as appertain to thejurifdiiftion or cenfure of the court ecclefiaftical. Thei'e are a kind of corporation, enabled by law to fue for any thing belonging to their church, or poor of their parifh. Cowell. Church-wardens are officers inftituted for the benefit and advantage of religion, whofe chief duty it is to fupprefs all prophanenefs and immorality, and to fee that the publick worfhip be performed with due decency and reverence. But though they deal chiefly in matters relating to the church, yet are they every where treated of in our law books, as temporal perfons, and are undoubtedly to be confidered as a lay corporation vefted with a temporal right in their offices, and a fpecial property in the goods belong- ing to the church, which farther appears by the duties injoined them by feveral afts of parliament herein after mentioned, i New Abr. 379. In the ancient epifcopal fynods, the bifhops were wont to fummon divers credible perfons out of every parifh, to give information of, and to atteft the diforders of clergy and people. Thefe were called tejles Jynodales y and were in after-times a kind of impanelled jury, confiding of two, three, or more perfons in every parifh, who were upon oath to prelent all here- ticks and other irregular perfons. Ken. Par. Ant. 649. And thefe in procefs of time became {landing officers in feveral places, efpecially in great cities, and from hence were called fynodlmen, and by corruption fidef.nen. They are alfo fometimes called queftmen, from the nature of their office, in making inquiry concerning offences. And thefe fidefmen or queltmtn are to be chofen yearly in Eajier-week, by the minifter and parifhi ners (if they can agree), othervvife to be appointed by the ordinary of the diocefe. But for the moft part, this whole office is now devolved upon the church-wardens, together with that other office which their name more properly imported-), of taking care of the church and the goods thereof, which they had of very ancient time. Dr. Burn's Ecclef. Law, tit. Church- wardens. By the common law, the right of choofing church-wardens belongs to of the right the parifhioners, who are to be at the charge of repairing the church, &c. and manner of and therefore it is but fitting that they fhould have it in their power to choofing determine what perfons are proper to be intruded in thefe concerns ; nor c hur ch-war r does any canon deprive them of this right ; for though by cuftom the parifhioners in fome places choofe one, and the parfon another, yet this is by 6i6 djtttct^fbattieng. by virtue of the cuftom, the validity of which, as of all other cufloms, muft be determined in the king's temporal courts •, nor can the archdeacon, or any others, who by virtue of their offices are to fwear and admit them, controul any fuch election, for herein their offices are purely minifterial. i New Abr. 371. cites Cro. Jac. 532, 670. Cro. Car. 552. Noy 31, 139. 2 Roll Abr. 234. Hard. 379. Raym. 439. And though by cuftom the rector or vicar may name one, yet where the vicar of St. Giles's, in Northampton was under a deprivation for not taking the oaths to king William and queen Mary, and the church being vacant, the parifhioners proceeded to the election of two church-wardens, and prefented them to be fworn, but the regifter of the confiftory court being a friend to the vicar, refufing to fwear them, unlefs that perfon whom the late vicar approved were nominated one, a mandamus was granted. Carth. 118. The parifhioners are alfo judges of the fitnefs and qualifications of the perfons they choofe for that office, and therefore where to a mandamus to fwear a church-warden chofen according to the cuftom, the archdeacon returned, that the perfon prefented was a poor dairyman, who had no eftate, and was perfona minus babilis £9* idonea for that office •, the court granted a peremptory mandamus. Carth. 393. Comb. 41 J. S. C. 1 Salk. 166. S. C. 5 Mod. 325. S. C. But where a prohibition was granted niji to the ecclefiaftical court, where J. S. fued as church-warden of &c. in Colchejler, on a fuggeflion, that in Colchejler there is a cuftom for the inhabitants to elect the church-wardens, and that A. and B. were duly elected, which matter the defendant had pleaded in the fpiritual court, but the plea was refufed •, but it appearing that J. S. was church-warden de faflo, chofen by the parfon, and that he all the year acted as fuch, and that he, with the inhabitants and another church-warden made the tax for which the defendant was fued in the ecclefiaftical court, the rule for a prohibition was difcharged ; for per cur. Where the queftion is only, who is church-warden, if fuch cuftom is alledg- ed, a prohibition fhall be granted •, but the matter here is for a tax for the repair of the church, and it is not material now, whether he was duly elected or not ; it is fufficientthat he was guardian de fa£to ; and it may be as well put in ifTue, whether the minifter was a rightful minifter •, befides, this tax is not rated by the church-wardens, for they have no fuch power, but it is a common charge, impofed by the major part of the parifhioners, and the church-wardens do no more in affefTing them than the other parifhioners, and the tax will be well afTefled by the major part of the inhabitants though the church-wardens are againft it ; their chief bufinefs is in collecting of it, and the matter is a matter of ecclefiaftical cognizance, for the fpiritual judge may inquire touching the want of reparation of the church. And note, that upon the rule for difcharging the prohibition, all this matter was ordered to be entered, for fear it fhould be afterwards thought, that a prohibition was decreed where a cuftom was in queftion. 3 Keb. 53$, 542- In Cf)ttrri);ttMtDettg, 617 In an aftion for a falfe return, a fpecial verdict found the cuftom to be for the parifhioners of annually to elect a church-warden •, that S. the plaintiff was elefted by the parifhioners to ferve for church-warden for the year 1734. and until another be chofen •, that at a veftry the eniu- ing year, he was re-elected by the parifhioners, but at the veftry then holden, the vicar and one church-warden adjourned the veftry to the next day, and the vicar then chofe Chapman. A mandamus had been directed to to admit and iwear in the plaintiff. It was argued for the plaintiff, that the eighty-ninth canon of 1603. that all church-wardens and queftmen fhall be chofen by the joint choice of the minifter and parifh, if it may be, if not, then the minifter to choofe one, and the parifh the other, has never been received as law ; and cited Cro. Jac. 532. War- tier's cafe. Cro. Car. 551. Hard. 378 and Carth. 118. where Holt chief juftice fays, that where the incumbent choofes one, it is only by ufage ; and that a church-warden is a temporal officer. Per Lee juftice. In all councils and elections the general rule is, that the major part binds, and cited j 8 E. 4. 2 and HackweWs Modus tenendi Parliament." The chief ju- ftice faid, that the queftion is, whether the adjourning by vicar jointly with one church-warden was a valid and a good adjournment ; and he thought not ; and that if vicar and church-wardens had fuch a power, it muft be by cuftom or by rule of common law ; but no cuftom is found, nor is there any rule of common law to veft this power in the vicar, nor is it in the power of the church-warden to adjourn •, and then the right is in the affembly itfelf. Per Probyn juftice : The vicar is not a neceffary party at the veftry ; and judgment for the plaintiff per to? cur'. Trin. 1J36. in B.R.^Vin. 528. By Can. 89. all church-wardens or queftmen in every parifh, fhall be chofen by the joint confent of the minifter and the parifhioners, if it may be-, but if they cannot agree upon fuch a choice, then the minifter fhall choofe one, and the parifhioners another : And without fuch a joint or feveral choice, none fhall take upon them to be church-wardens. Warner, one of the church-wardens of Allhqllo-jus in London, prayed a prohibition ; for that, whereas by the cuftom of the parifh, the parifhioners every year ufed to elect one of the parifh, who had born the office of fcavenger, fidefman, or conftable, to be church-warden ; and that every year one who had been fo elected church-warden, was to continue a year longer, and to be the upper church- warden, and another was to be chofen to him, who is called the under church-warden ; that fuch a choice being made in that parifh of the faid Warner to be church-warden, the parfon notwithftanding that eledtion nominated one Carter to be church-warden, and procured him to be fworn in the ecclefiaftical court, to be church-war- den, and denied the faid Warner to be church-warden according to the elec- tion of the parifhioners •, and this by colour of the late canon, that the parfon fhould have the election of one of the church-wardens ■, and this being againft the cuftom, a prohibition was prayed, and a precedent fhewn in the common bench, E. 5 Ja. for the parifhioners of Walbrook in Lon- don, where fuch a prohibition was granted ; for it being a fpecial cuftom, Vol. I. N° XXVI. 4 K the 6i8 Clntttf^tbatDens* the canons cannot alter it, efpecially in London, where the parfon and church-warden are a corporation, to purchafe and demife their lands ; if every parfon might have election of one church-warden, without the aiTent of the parifhioners, they might be much prejudiced thereby. Cro. Car. 532. Eaft. 17 Jac. 1. Warner's cafe. But although the greater! part of the parifhes in London choofe the church- wardens by cuftom; yet in all the new erected parifhes the canon fhall take place funlefs the aft of parliament, in virtue of which any church was creeled, fhall have fpecially provided that the parifhioners fhall choofe both •,) in lb much as no cuftom can be pleaded in fuch new parifhes. Gibf. 215. Wherccuf- xhe cuftom was, for the parfon to appoint one, and the two old ■° m h" Ci h°° f " church-wardens the other. But it went no further. In this cafe the wardensVn- church-wardens could not agree, lb the one preients Barwick, and the pa- not take place, rifhioners at large choofe Catten. It was infilled for Barwick, that his cafe they mull re- W as like that of coparceners, where, if they difagree, the ordinary may ad fort to the m j t tne p re f e ntee of which he will, except the eldeft alone prefents. On "stran 14.- tne otner fi^ e lt was f a 'd> £ h at tne calcs widely differed ; for in the cafe Hil 5 Geo' 1. of a prefentation, the ordinary hath a power to refufe,. but he hath not Catten v. fo in the cafe of church-wardens, for they are a corporation at common Berwick. j aw> arK j mo re temporal than fpiritual officers : And a cafe was cited to At a courto j iave k een a dj uc jg ec i i n t he King's Bench, where to a mandamus to fwear in Serjeants 'inn a church-warden, the ordinary returned that he was a very unfit perfon ; Flee-lreet, but a peremptory mandamus was granted, becaufe the ordinary was not a 37 Feb. 17 1 8. judge in that cafe. And the court held, that by this difagreement the cuftom was laid out of the cafe •, and then they muft refort to the canon : Under which, Catten being duly elected, they decreed for him, with 60/. cofts. In fome cafes the lord of a manor prefcribeth for the appointment of church-wardens : And this fhall not be tried in the ecclefiaflical court, although it be a prefcription of what appertains to a fpiritual thing. God. Ordinary has Prohibition was granted in the fpiritual court, where it was libelled nojuridiaion a g a i n ft the defendant, for not appearing to take upon him the office of 10 c church-warden, though thereunto appointed by the ordinary. And it was dens, though held, that although the parifhioners and parfon neglecT: for ever fo long to theparilhion- choofe church-wardens, yet the ordinary hath no jurifdiclion ; forchurch- ersand parfon war dens were a corporation at common law, and they are different from ihould negleft t ^ e q Ue fl. men wn0 were the creatures of the reformation, and came in by r^Eaft 3 " the canon law. The canons fay, that church-wardens fhall be chofen 3 Geo. i. by the parfon and parifhioners •, and if they difagree, then one bythe Stutter v. parfon, and the other by the parifhioners ; and otherwife they fhall Frefton. not ^ gy tne court> The proper way is, to take a mandamus out of the King's Bench. Who are ex- All peers-o{ the realm, by reafon of their dignity, are exempt from the empted from office^of church-wardens. Gibf. 215. So are all clergymen, by reafon of being church- their order. Id. In like manner all parliament men, by reafon of their wardens. privilege. Id. 2 If Cfmrcl^tbar&eng* 6l 9 If an attorney of the King's Bench be made a church-warden of a parifli, he (hall have a writ of privilege out of the King's Bench, (hew- ing his privilege to be difcharged thereof, by reafon of his attendance in the faid court. Felix Wilfon being an attorney of the King's Bench, was made church-warden of Hanwell, and he refufed, and was fued in the fpiritual court to take upon him the office, and a prohibition was granted. 60 in like manner, Mr. Baker being chofen church-warden of Alderman- bury, m London, fuchwrit was granted. 2 Roll. Abr. 272. Eaji. i + Car, 1. and Trin. 15 Car. 1. Stampe, clerk of the King's Bench, was chofen church-warden of King - Jion, and had a writ of privilege to the fpiritual court, requiring them not to compel him to take the oath; which writ being difobeyed, he had a prohibition. 1 Rol. Abr. 368. By flat. 6 JVM. 3.C 4. Apothecaries who have ferved feven years, mall be exempted from the office of church-warden. And by the fiat. 18 Geo. 2. c. 15. Freemen of the corporation of furgeons in London are ex- empted from being church-wardens. By fiat. 1 Will. feff. r. c. 18. diffenting teachers or preachers, in holy orders, or pretended holy orders, being duly qualified, are exempted from the office of church-wardens : And by the fame act other difienters, fcru- pling to take upon them the office, may execute the fame by a fufficient deputy, to be approved of in like manner as other church-wardens. By fiat. 10 £;? 1 1 JVM. 3. c. 23. feci. 2. All perfons who have profecuted a felon to conviction, are exempted from the office of church-warden, in the pariffi where the offence was committed. The church-wardens, when chofen, are a corporation intruded with the Of their in- care and management of the goods belonging to the church, which they tereft io, and are to order for the beft advantage of the parifhioners; they are like- power over wife enabled to take goods for the benefit of the church, but cannot dif- ! h ? thl f lgs pofe of them without the parifhioners. 1 Rol. Abr. 393. 2 Insl. 492. the°church. 1 Rol. Rep. 6y. Teh. 173. They have fuch a ipecial property in the organ, bells, pariiri-bor^ks, bible, chalice, furplice, &c. belonging to the church, that for the taking away, or for any damage done any of them, they may bring an action at law, and therefore the parfbn cannot fue for them in the fpiritual court. 1 New Abr. 372. If two church-wardens fue in the fpiritual court for a levy towards the reparation of their church, and have fentence to recover, and cofts afTeffed, and after one of them releafes, yet the other may proceed for the cofts, &c. for church-wardens have nothing but to the ule of the parifh, and the corporation confifts of both; and one only cannot releafe or give away the goods of the church. Cro. Jac. 235. Teh. 173. 2 Brounl. 215. S. C. Alfo they have fuch afpecial property in the goods of the church, that when they are ftolen, they may bring an appeal of robbery for them : They may alio fue the offenders in the fpiritual court, pro falute anhna, but not to recover damages. 2 Hawk. P. C. 167. 4 K 2 But 6 2 o ei)ttrct)4ttatt>ciisf. But the church- wardens have no right to, or intereft in the freehold and inheritance of the church, which alone belongs to the parfon or incum- bent. Comp. Incumb. 381. Alfo the feats in the church being fixed in the freehold^, the church-war- dens cannot difpofe of them alone, nor can the church-wardens and rec^ tors jointly difpofe of them without the confent of the ordinary ; and though fuch difpoiitions have been made, yet it has been always prefumed that it was fo done with the ccnfeht and approbation of the ordinary. See 12 Co. 105. Hetl. 94. Godb. 200. 2 Bu!Jl. 150. Hob.6g. Moor 878. Comp. Incumb. 1 Salk. i6y. But as feats are erecled for the more convenient attending of divine fer- vice, and as the parifhioners are. at the expence of erefting them, and keeping them in repair, if any of them be taken away, though they are fixed to the freehold, yet the church-wardens, and not the parfon, lhall bring the adlion againft the wrong-doer. Comp. Incumb. 382. It is faid to have been holden, that at common law a church-warden may maintain an adlion upon 'the cafe for defacing a monument in the church. Gold. 279. The church- wardens have no power to make any rate themfelves, exclu- Of their pow- f ive f t he parifhioners, their duty being only to fummon the parifhioners, er and duty w j 1Q are t0 meet f or tna t purpofe, and when they are afiembled, a rate 'a'es'ancfVe- ma ^e by the majority prefent lhall bind the whole parifh, although the fentments, church-wardens voted againft it. See Comp. Incumb. 389. and hindering But if the church-wardens give the parifhioners due notice, that they irreverence intend to meet for that purpofe, and the parifhioners refufe to come, or 10 ' 1 '^ church ' being afiembled refufe to make any rate, they may make one without power In fe- tne ' r concurrence •, for as they are liable to be punifhed in the ecclcfiaftical vcral other courts for not repairing the church, it would be unreafonable that they matters. ihould fuffer by the wilfulnefs and obftinacy of others. 1 Vent. %6j. 1 Mod. 79, 194. The church-wardens in fummoning the parifhioners need not to do it froci houfe to houfe, but a general public fummons at the church is fuf- ficient, and the major part of them that appear upon fuch fummons, will g bind the whole parifh. 1 Vent. 367. Comp. Incumb. 389. On a motion for a prohibition, it appeared, that the libel recited that die dean of, £s?f. had prcfented that the church and chancel of D. was out of repair, l£c. and that the church-wardens of the faid parifh did make, or caufe to be made, a certain rate upon the inhabitants thereof, towards the charge of repairing the faid church and chancel ; and that the church- wardens had accordingly repaired the church and chancel, and beautified the fame with ornaments, and that H. was a parifhioner of the faid pa- rifh, and refufed to pay his proportion of the faid rate; and it being ob- ]efled, frji, That the church-wardens only could not make a rate ; fecond- /y, That the parfon alone ought to repair the chancel •, a prohibition was granted generally, though it was ftrongly infifted on that the prohibition ought to go quoad the rate for the repairs of the chancel only. Carth. 360. 1 Salk. 365. Comb. 344. 5 Mod. 384. Si C. Prefentments made by church-wardens relate to the church, the parfon and CI)urd>tt)atDens. 621 and parifhioners in which they are to be guided by the articles delivered them, but thefe articles mull be agreeable to the laws of the church, and particularly to the canons made and agreed on in the year 1603. They need not take a particular oath upon all the prefentments they make, but may do it by virtue of their oath of church-wardens. Cro. Car. 291. 1 Vent. 114. 2 Vent. 42. The oath is to be general, viz. to do all things which appertain to their office ; and therefore, if the oath tendered requires them to prefent matters not prefentable by law, they are not obliged to take it, nor are they to be required to prefent or accufe themfelves. Hard. 364. Alio if the ecclefiaftical court proceeds againft the church-wardens in matters not within their jurifdiction, an a&ion on the cafe lies againft them. Hard. 264. And if the church-wardens malicioufly prefent an innocent perfon for any crime, by which he is put to expence, or fuffers in his good name or reputation, an aftion on the cafe lies. Cro. Car. 285. 1 Sid. 463. 1 Vent. 86. In affault and battery againft a church-warden, he juftified that the plaintiff was at church in time of prayers, with his hat on, and that he demanded of him to pull it off, and becaufe he did not do it, the church- warden took off his hat, and laid it by him ; and the court held this a good juftification, and that church-wardens may juftify to wake a man, to fvvitch boys that are at play, and turn an excommunicated perfon out of the church. 1 Lev. 196. Church-wardens may reftrain and hinder any ftranger not licenfed, from preaching in their church or chapel. Compl. Incurnb. 335. See 2 Buljl. 49. Every church-warden is alfo an overfeer of the poor ; by the ftatute of the 43 EL 2 - The church-wardens, or the conftables, fhall levy the penalty for keep- ing an unlicenfed akhoufe ; by the 3 C. c. 3. They fhall receive the penalties, for hawking fpirituous, liquors ; by the 9 Geo. 2. c. 23. They (or the overfeers of the poor) fhall levy the penalty for felling corn by wrong meafure •, by the 22 C. 2. c. 8. They, and the overfeers of the poor, fhall diftribute amongft the poor, foreign cattle imported, forfeited, and killed ; by the 32 C. 2. c .2. They, or the overfeers of the poor, fhall levy the penalties relating to weights and meafures ; by the 16 C. 2. c. 19. and 22 C. 2. c. 8. They fhall carry hawkers and pedlars trading without licence, before a juftice of the peace ; by 9 & 10 W. 3. c. 27. They, or the overfeers of the poor, fhall pay to the high conftable the general county rate, out of their money collected for the poor ; by the 1 2 G. 2. c. 29. They fhall receive the penalties for fervants carelejly firing houjts ; by the 6 Ann. c . 3 1 . They 622 eijtttclMbat&ettg. They (hall receive the penalties for tracking bares in the fnow t and other game penalties ; by the refpeftive game acts. They fhall join with the conftable and furveyor of the highways, in choofing and returning new furveyors. Stat. 7,W.i£ M. c. 1 z. See Stat. 7 Geo. 3. c. 42. Two church-wardens fue in the fpiritual court, for a levy towards the reparation of their church, and had a fentence to recover, and cofts afiefted, the one releafeth, and the other fues for the cofts, and there this releafe was pleaded, and difallowed. Whereupon he prays a prohibition ; and all this matter was difclofed in the prohibition, and the defendant , thereupon demurred in law. And now it was moved, that this releafe by the one, being in the perfonalty, fhould difcharge the intire. But it was reiblved by all the court to the contrary •, for church-wardens have nothing but to the ufe of the parifh, and therefore the corporation confifts in the church- wardens •, and the one folely cannot releafe, nor give away the goods of the church, and the cofts are of the fame nature, which the one without the other cannot difcharge. And of that opinion was all the court of King's Bench, wherefore it was adjudged for the defendant. Cro. Ja. counts "and of ^Y ^ an - %9- " AH church-wardens at the end of their year, or within a aftions month after at the moll, fhall before the minifter and the parilhioners give brought by up a juft account of fuch money as they have received, and alfo what and againft particulary they have beftowed in reparation, and otherwife for the ufe them. of the church. And laft of all, going out of their office, they fhall truly deliver up to the parilhioners whatfoever money, or other things of right belonging to the church or parifh, which remaineth in their hands, that it may be delivered over by them, to the next church-wardens, by bill in- dented." A juft account] If the cuftom of the parifh is, for a certain number of perfons to have the government thereof, and the account is given up to them i the cuftom is good of law, and the account given to them is a good account. Gibf. 216. By bill indented] Lindwood, fpeaking of the inventory of the goods of the church, to be delivered in writing to the archdeacon, fays, it were good that thefe writings fhould be indented, fo that one part might remain with the archdeacon, and the other with the parilhioners ; from whence this branch of this prefent canon feemeth to have been taken. Gibf. 216. If money be difburled by church-wardens for repairing the church, or any thing elfe merely ecclefiaftical, the fpiritual courts fhall allow their accounts. But if there be any thing elfe that is an agreement between the parilhioners, the fucceeding church-wardens may have an action of ac- count at law, and the fpiritual court in fuch cafe hath not jurifdiction. 12 Mod. 9. If the church-wardens, by the confent and agreement of the parilhioners, take a ruinous bell and deliver it to a, bell-founder ; and that he by their agreement fhall have for the cafting thereof 4/. and ft tall retain it till the 4 /. ise paid ; this agreement of the parilhioners fhall excufe the church- wardens, CfttttdNtofttfttn*. 623 wardens, in a writ of account brought againft them by their fuccefibrs. 1 Rol. Abr. i2i.pl. 9. If the church-wardens and parifhioners make an afleflment, and the church-wardens lay out the whole money •, but before the whole is collected their time is expired •, and new church-wardens are chofen, the former church-wardens, by having prefented llich parifhioners as refufed to pay before the determination of their time, may ftill proceed againft them; otherwife the new church-wardens mult collect luch arrears, and reimburfe their predeceffors. See Prec. in Chan. 42. 2 Ven. 262. If goods belonging to the church are taken away, and the church-wardens for the time being neglect to bring an action, the fucceeding church- wardens may, by virtue of their office, bring an aclion againft the wrong- doer, but they muft declare ad damnum parocbianorum, and not ipforum, though the old chureh-wardens, in whofe time the fact was done, may lay it either way. Cro. Eliz. 145, 179. 1 Leon. 177. If A. was church-warden of B. and at the end of the year gave up his accounts to his fucceflbr, and yet A. is falfly and malicioufly cited by D. into the ecclefiaftical court, to render an account, and at the requeft of D. he is excommunicated for not rendering up his account ; an action lies againft D. If a church-warden in any cafe is malicioufly fued in the fpiritual court for not making up his account, and is excommunicated, when in fact it hath been duly made; he may have a prohibition : And alfo an action upon the cafe will lie. Gibf. 216. Bunb. 247. Where church-wardens have pafled their accounts at a veftry, the fpiritual court ftiall not afterwards proceed againft them to account upon oath. Bunb. 289. The church-wardens were cited into the court of Litchfield to account. They pleaded, that they had accounted at the veftry, according to law; which was rejected ; and a prohibition was granted. For the ordinary is not to take the account; he can only give a judgment that they do ac- count ; and to what purpofe fhould they be fent back to thole, who have taken their account already ? Str. 974. The fpiritual court hath no jurifdiction to fettle the church-wardens ac- counts. And a prohibition was granted, after fentence allowing the ac- counts, and an appeal to the arches. Str. 1133. And if the church-wardens have laid out the parifh money imprudently and improvidently ; yet if it be truly and honeftly laid out, they muft be reimburfed again ; and the parifhioners can have no remedy herein, unlefs fome fraud or deceit be proved againft them ; becauie the parifh have made them their truftees. But if they be going on in an expenfive way, the parifhioners may complain to the ordinary, in order to give a check to them, or to procure (Dr. Gib/on fays) a removal of them from their office. Gibf. 196. Adjudged, that the church-wardens Prudence and Bond could not cita the defendant Bent into the fpiritual court, for non-payment of his church- rate j 24. £!)utcf>tt)at&cttS> rate, after their year was expired •, for they can only fue in their politick capacity, and cannot inftitute any fuit after that capacity is gone. It was agreed, that if the fuit had been begun within their year, they might have proceeded in it after their year was out, this being of neceffity to prevent people from delays in order to wear out the year ; but in regard this fuit was not commenced till the year was out, and no precedents were Ihewn to warrant this fuit, the defendant Dent was difmiffed. Str. 852. If the church-wardens for the time being, neglect to bring an action for any of the goods of the church taken away ; their fucceffors may bring trefpafs for them, in refpect of their office : but then the new church- wardens muft fay, to the damage of the parijhioncrs, and not of themfehes ; tho' the old church-wardens, in whofe time the goods were taken away, might fay either. Watf. c. 39. And if any of the goods of the church are detained, or not delivered by the predecefibr •, the fucceffor hath an action againlt him alfo. Gibf. 216. On a bill in chancery againft ninety parifhioners, by the executrix of one of the church-wardens of Woodford, to be reimburfed money laid out by the teftator as church-warden, for rebuilding the fteeple of the church •, it was objected, that this matter was proper for the ecclefiaftical court, and not for this court. But by Harcourt chancellor, The plaintiff is proper for relief in this court, and there are many precedents of the like nature. And it was decreed, that the parifhioners, (hould reimburfe the plainiff the money laid out by her teftator, with cofts of this fuit, and that the money mould be raifed by a parifh rate. 4 Fin. tit. Church- wardens. The church-wardens, as being a corporation for the goods of the parifh, commenced a fuit, with the confent and by order of the parifh, con- cerning a charity for the poor : in which fuit they mifcarried. And then they brought a bill againlt the fubfequent church-wardens, to be repaid the cofts by them expended ; and had a decree for it. It was proved, that from time to time the parifh was made acquainted with what they did •, and tho' there was no veftry by fubfcription, yet a veftry-book, kept for the parifh acts was allowed as evidence of their confent. They are the truftees of the parilh -, and the parifhioners ought to contribute, and not lay the burden upon thofe poor people the church-wardens. And the an- nual fucceffive church-wardens need not to be made parties, as they are renewed. By the matter of the Rolls. 4 Fin. tit. Church-wardens. C. Byjlat. 11 Geo. 2. c 26. Church-wardens, &c. are required to carry hawkers of brandy, &c. before juftices of peace. By the ft at. 3 C2? 4 IF. & M- c 1 1. In all actions to be brought in the courts of PFeJttninJier, or at the affifes, for money mifpent by church- wardens, the evidence of the parifhioners, other than fuch as receive alms, fhall be taken and admitted. Church-wardens are comprehended within the purview of the ftatutes 7 Jac. 1. cap. 5. and 21 Jac. 1. cap. 12. as to pleading the general ifliie to Clergy* 625 to anions brought againft them, and as to double cofts when they have judgment. But in action on the cafe againft a church-warden for a falfe and ma- licious prefentment, though there be judgment for him, yet he fhall not have double cofts ; for the ftatute does not extend to fpiritual affairs. Cro. Car. 285, 286. Clergy CLERGY, (Clerus) is diverfly taken ; fometimes for the whole num- ber of thofe who are de clero dotnini •, of our lord's lot or fhai e, as the tribe of Levi was in Jud of the kingdoms that admitted them, and only fo far forth as they were fo admitted. And therefore, Firft, As to the exemption of the clergy from civil fuits between party and party only, if upon the dijlringas he was returned clericus 6? beneficia- ' tus non habens laicum feodum, procefs ifiued to the bifhop to bring him in, and in cafe of a ftatute merchant they were by Special acts exempted from arrefts by Capias. But yet they v,ere not exempted from the jurifdic- tion of civil courts in civil caufes, yet anciently they atiempted this alfo in the king's courts, but with ill fuccefs, fo they never attempted it after, that I remember, fays Lord Hale. 2 Hale's Hijl. 325. M. J & 8 E. 1. B. R. Rot. 13. Cant. William Joye plaintiff brought an action againft Guy Mortimer rector of Kingfton, for beating him and cut- ting of his upper lip with a knife ; the defendant pleaded quod ipfe eft cleri- cus, & non debet hie refpondere; and that was all the anfwer he would give: Et quia querela ifta non tangit vitam &?. membrum. fed eft de quadam tranfgref- Jione perfonali, nee ipfe vult in curia demini regis refpondere ad querelam iftam. Judgment was given for the plaintiff to recover 100/. damages taxed by the court, and the defendant was committed to gaol, and afterwards paid twenty marks to the king for a fine. 2 Hale's Hift. 325. Secondly, If they were indicted in cafes criminal, but not capita], nor wherein they were to lofe life or limb, there privilegium clericum was not al- lowed them, and therefore not in indictments of trefpafs, petty larceny, or killing/^ defendendo. Stamf. P. C.fol. 124. a. Thirdly, If they were indicted of high rreaibn, clergy was not allowable, and therefore Hill 2 H. 4. Rot. 4. B. R. rex, where the biihop of Car- lifte was indi&ed of high treafon, and infuted upon his privilegium clerical, quia epifecpus uncius, yet this claim was difallovved, and he put upon his trial, and convicled. Yet Hill. 17 E. 2. Ret. Sy. 'in dorfo, Heref. coram rege, the bifhop of Hereford indicted of high treafon for levying war againft the king, al- leged, Clergy. 627 leged, that hs was . 14. The clerk of the crown, or of the peace, or of aflife, (hall certify a tranfcript briefly of the tenor of the indictment, outlawry, or conviction, and attainder, into the King's Bench in forty days: And thecleik of the crown, when the judges of affife, orjuftices of the peace write to him for the names of fuch perfons, fhall certify the fame with the caufes of the conviction or attainder. Another method is given by the Stat. 3 TV. & M. c. 9./ 7. which enacts that the clerk of the crown, clerk of the peace, or clerk of affize, where a perfon admitted to clergy fhall be convicted, (hall at the requeft of the profecutor, or any other on the king's behalf, certify a tranfcript briefly and in few words, containing the effect and tenor of the indictment and conviction, of his having the benefit of clergy, and the addition of the party, and the certainty of the felony and conviction, to the judges where fuch perfon fhall be indicted for any fubfequent offence. Alfo it feems, that if the party denies that he is the fame perfon, iffue mud be joined upon it, and it muft be found upon trial that he is the , . fame perfon, before he can be oufted of clergy. 2 77. 77. 373. clergy is to be By the ancient common law, the benefit of clergy was demanded as allowed, and foon as the prifoner was brought to the bar, before any indictment or the effeft of other proceeding againft him ; but this was found a great inconvenience allowing it. t0 ikg prifoner, becaufe poflibly he might have been acquitted of the fe- lony ; or if not, yet in cafe of an inquefl of office he loft his challenges to fuch inqueft, and yet upon fuch inqueft found, he forfeited his goods, and the profits of his lands j and therefore Prifot chief juftice, with the advice of the other judges, in the reign of Hen. 6. for the fafety of the innocent, would not allow the prifoner the benefit of clergy before he had pleaded to the felony, and (having the benefit of his challenges and other advantages^ had been convicted thereof-, which courfe hath been gene- rally oblerved ever fince. 2 hijl. 164. 2 77. 77. 378. And this benefit of clergy may be allowed by the court in difcretion, though the party challenges it not. Hale's PL 239. Perfons admitted to their clergy, may be continued in prifon, as a fur- ther punilhment, not exceeding one year. 18 Eliz. cap. 7. By Jlat. 4 Geo. 1. cap. it. perfons convicted of offences within benefit of clergy ('except receivers and buyers of ftolen goods) may, inftead of being whipped and burnt in the hand, be tranfported for feven years. A perfon admitted to his clergy, forfeits all his goods that he hath at the time of the conviction. 2 77. 77. 388. But prefently, upon burning in the hand, he ought to be reftored to the poirefTion of his lands, and from thenceforth to enjoy the profits thereof. 2 77. 77. 388. Alfo it reftores him to his credit ; and confcquently enables him to be a good witnefs. 2 Haw. 364. And it is holden, that after a man is admitted to his clergy, it is acti- onable to call him felon ; becaufe his offence beino pardoned by the fia- tute, all the infamy and other confequences of it arc difcharged. 2 Haw. 365- * CIctH $33 Cierfe of tf)e $eace* CLERK of the peace (Ckricus pads), is an officer belonging to the feffions of the peace. His duty is, in the feffions, to read the in- dictments, to enrol the acts, and draw the procels : To record the pro- clamation of rates for fervants wages, to enrol the difcharge of appren- tices, to keep the counterpart of the indentures of armour, to keep the regifter-book of licences given to badgers and laders of corn, and of thole that are licenfed to ihoot in guns, and to certify into the King's Bench tranferipts of indictments, outlawries, attainders, and convictions had before the juftices of the peace, within the time limited by ftatute. Lombard's Eiren. lib. 4. cap. 3. fol. 379. ©tflt. 37 Hen. 8. c. 1. [J. D. 1545. intituled] " A bill for cuflos ro- tulorum and the clerkfhip of the peace." " Where before this time the lord chancellor of England for the time be- Who fhall ap- ing hath, by reafon of his office of the chancellorship, the nomination and ap- P oint the '"A' pointment of the cuftos rotulorum within all and every {hire of this realm ^'V^ne" of England and Wales, and other the king's dominions, marches and ter- pea ce in every ritories of the fame, (2) and that in like manner all and every peribn, county. which had and enjoyed the laid office of the cujlos rotulorum, hath had, Inconveni- until now of late, the nomination and appointment of the clerk of the * nc " er ; fuin 5 peace within fuch (hires where he or they had and enjoyed the faid office of ^[eoKhe the cujlos rotulorum: (3) And where now of late divers and fundry per- clerk of the fons within this realm, being not learned, nor yet meet ne able for lack of peace, knowledge and learning to occupy and exercife the faid office of the cujlos rotulorum, and of the clerkfhip of the peace, have of late years by la- bour, friendlhip and means, attained and gotten for term of their lives, of the king's majefty, feveral grants by his highnefs letters patent to them made of the faid clerkfhips of the peace •, by reafon whereof, and for that that the parties to whom the faid feveral grants have been fo made and granted, have not been fufficiently learned to exercife and occupy the fame office and offices, many and fundry indictments, as well of felony, mur- der, and other offences and mifdemeanors, and the procefs awarded up- on the fame indictments, have not only by reafon thereof been made clearly fruftrate and void, fometime by reafon of the negligent ingrafting and keeping of the faid indictments, and fometime by reafon of the im- bezilling or rafure of the fame indictments, (4.) but alfo divers and fun- dry bargains and fales of divers and fundry manors, lands and tenements had and made between party and party, have been made fruftrate and void for lack of fufficient inrolment of the bargains and fales to be had and made, by the clerks of the peace, to the great hindrance of juftice, and to the difinheritance of divers of the king's moft loving fubjects. Vol. I. N« XXVII. 4 M Seel. 6^ Clerk of tlje peace, Thecuftos SeSl. 2. " For reformation whereof, to the intent that juftice may be rotulorum the better hereafter preferred, and that the fame offices may hereafter be fliall be ap- occupied and exercifed by fuch perfons learned in the laws of this realm, pointed in as q^jj ^ ^ s tQ eJcerc jf e anc j f U ppiy the fame : (2) Be it enacted by the by bill figned king our fovereign lord, with the afTent of the lords fpiritual and tempo- with the king's ral, and of the commons, in this prefent parliament affembled, and by own hand. authority of the fame, That no perfon or perfons (hall from hence- & ed Fd 6 f° n h De nominated and appointed to the faid office and offices of the c 1. 1, -i. ' ' cll ft os rotulorum within any (hire of this realm of England, Wales and other 4 Mod. 167 the king's dominions, marches, or territories of the fame, but fuch as 1 Shower'430, (hall have a bill figned with the king's hand for the fame •, (3) which bill 43 '• figned fhall be a fufficient warrant by the authority abovefaid, to the faid lord chancellor of England, and the lord keeper of the great feal for the time being, to make from time to time commiffion or commifTions, af- figning and authorizing thereby the fame perfon to be cujlos rotulorum, until the king hath, by another bill affigned with his own hand, appoint- ed and ordained one other perfon to have, occupy and exercife the fame office of the cujlos rotulorum, (4) and that the faid perfon appointed and affigned to be cujlos rotulorum, as is abovefaid, (ball and may occupy, ex- ercife and enioy the fame office of the cujlos rotulorum, by himfelf, or by his fufficient deputy, learned in the laws of this realm, and meet and able to fupply the faid office according to the tenor of the faid grant or com- miffion. The, cuflos Setl. 7. " And be it further enacted by the authority of this prefent (hall appoint parliament, That every cujlos rotulorum for the time being (hall, at all times the clerk of hereafter in every (hire of this realm, Wales, and other the king's domini- the peace. ns, marches, and territories of the fame, nominate, elect, appoint and Carthew 426. a ffig n a n anc ] every perfon and perfons which hereafter fhall be clerks of the peace within any of the faid (hires of this realm of England, Wales, and other the king's dominions, marches and territories of the fame, (2) and to give and grant the faid office and offices of the clerkfhip of the peace to fuch able perfon inlhructed in the laws of this realm, as fhall be able to exercife and occupy the fame, to hold and enjoy the fame during the time that the faid cujlos rotulorum (hall occupy and exercife the aforefaid office of cujlos rotulorum ; fo that the faid clerk demean him in the faid office jufily The clerk of and honeftly: (3) And that it be lawful to every fuch grantees of the faid the peace may c i er kfhip, to occupy and enjoy the fame office of the clerkfhip of the j" akead< :f ut y peace, by himfelf, or by his fufficient deputy inltructed in the laws of this of the cuilos realm, fo that the fame deputy be admitted, taken and reputed by the faid rotulorum. cujlos rotulorum, to be fufficient and able to exercife, occupy, keep and enjoy the fame office of the clerkfhip of the peace." Seel. 4. " Provided alway, and be it enacted by the authority aforefaid, That all fuch as now have any of the faid offices of cujlos rotulorum, or clerkfhip of the peice, by the king's letters patents, or commiffion to them made, mall and may enjoy, have and exercife their faid offices by virtue of the fame letters patents, or commiffion, by themlelves, or by their fufficient and ClctH oftlje peace. 6 35 and able deputy inftrufted in die laws of this realm; any tJu»o in this prefent aft had or made to the contrary notwithstanding." Sett. 5. " Provided alfo, and be it enacted by authority abovefaid, That p er f on , j, av . the archbifhop of York, the bifhop of Durham, the bifhop of Eh, and ing authority every of their fucceffors, and all and every fuch perfon and perfons, toaflign cj:1o» corporations, and bodies corporated, to whom the king's majefty, or any ro!uIorum > or of his noble progenitors by his or their letters patents have given and C ^ C( granted any liberty and authority, or otherwife have authority by other lawful means or ways, to ordain, make and conftitute any of the faid offi- cers of cuftes rotulorum, or clerk of the peace within the county palatine, or other place, mail and may have and enjoy the fame liberty and authority, according as they have had and enjoyed the fame •, any thing in this prefer. r. act had or made to the contrary notwithstanding." Stat. 1 Will. fc? Ma. c. 21. [A. D. 16S8. intituled] "An aft for enabling lords commiffioners for the great feal to execute the office of lord chancellor or lord keeper." Sett. 4. " And be it further enacted by the authority aforefaid, That the Cuftos rotulo- nominating and appointing of the cujlos rotulorum, throughout all the (hires rum how to be and counties of this realm, is and fhall be as is directed by a (tatute made chofen - 37 H - in the thirty-feventh year of Henry the eighth, intituled, A bill for cujlos^' 0, '" rotulorum, and the clerkjhip of the peace ; any law, ufage, or ftatute to the contrary in any wife notwithstanding." Sett. 5." And be it further enacted by the authority aforefaid, That the Clerk of the cujlos rotulorum, or other perfon, to whom of right it doth or fhall belong F eace how to to nominate or appoint the clerk of the peace for any county, riding, J a PF oint e J - divifion, or other place, fh ill, from time to time, where the office of the clerk of the peace now is, or hereafter fhall be void, nominate and appoint one able and fufficient perfon refiding in the faid county, riding, divifion or other place, for which he is fo appointed or to be appointed clerk of the peace, to execute the fame by himfelf or his fufficient deputy, and to take and receive the fees, profits, and perquifites thereof, for fo long time only as fuch clerk of the peace fhall well demean himfelf in his faid office." Sett. 6. "And be it enacted by the authority aforefaid, t hat if any y u ft; ces f,(, e clerk of the peace already nominated or to be nominated, as aforefaid, peace may dif- fhall mifdemean himfelf in the execution of the faid office, and thereupon charge clerk a complaint and charge in writing of fuch mifdemeanor fhall be exhibited o( tlie !*«% againft him to the juftices of the peace in their general quarter- feffions, it fhall be lawful for the faid juftices, or the major part of them, from time to time, upon examination and due proof thereof, openly in their faid general quarter-fefiions to fufpend or difcharge him from the faid office •, and that in fuch cafe the cujlos rotulorum, or other perfon, to whom it fhall Who/hall no- of right belong to nominate and appoint the clerk of the peace for fuch m,nate u r on county, riding, divifion or place, fhall nominate and appoint one other able vacancy, and fufficient perfon refiding in the faid county, riding, divifion or place as aforefaid, to be clerk of the peace in the place of fuch perfon fo amoved, 4 M 2 as 636 Cietft of t!)e peace. as aforefaid •, and in cafe of refufal or neglect to make fuch nomination and appointment, before the next general quarter-feflions to be holden after the faid refufal, that it fhall and may be lawful for the faidjuftices of the peace, at their general quarter-feflions for the faid county, riding, divifion or place, or the major part of them, to nominate and appoint one able and fufficient perfon refiding in the faid county, riding, divifion or place, to be clerk of the peace in the place of fuch perfon fo amoved, as aforefaid, to have, hold, and enjoy the faid office of cleric of the peace, and to execute the fame by himfelf or his fufficient deputy, and to receive the fees, profits and perquifites thereof." New clerk of Seel, j. " Provided always, and be it enacted by the authority aforefaid, the peaceliable That he fhall be liable and fubjecr. to all the penalties, forfeitures con- topenalties, di t j onS5 limitations and provifions herein and hereby mentioned and ex- prefled, and may be amoved or difcharged by the faid juftices, or the major part of them, in fuch manner and way as is above fpecified." Ouftos rotulo- Seel. 8. " And be it further enacted by the authority aforefaid, That it rum, cfe. (hall ft^n not De lawful for any cujlos rotulorum, or other perfon to whom of, a e no ee. r jg nt it doth or fhall belong to nominate, elect, or appoint any clerk of the peace, to fell the faid place of clerk of the peace, or to take any bond or other affurance to receive or have any reward, money, fee or profit, directly- or indirectly, to him or any other perfon for fuch nominating, electing, or Penalty upon appointing •, but that every fuch cuftos rotulorum, or other perfon that fhall buyer and fel-'fo fell the clerkfhip of the peace, and every clerk of the peace, who fhall k r - fo buy this place, are hereby difabled to hold their places of cujlos rotulorum, or clerkfhip of the peace, and fhall alfo each of them reflectively forfeit double the fum or value of other thing that fhall be fo given or taken, to- be recovered by him or them to their own ufe, that fhall fue for the fame, to be profecuted by any action of debt, fait, bill, plaint or information, in any of their majedies courts at IVeslminfler, wherein noeffoign, protection or wager of law fhall lie." Clerk of the Seel. 9. " And be it further enacted by the authority aforefaid, That peace to take evcFV c i er k of the peace, before he enter upon the execution of his faid oath° ° wms office, fhall in open fefiions take the oath following, viz." 7 A. B. do fwiar, that I have not, nor will pay any fum or funis of money, or ■* other reward whatfoever, nor given any bond or other affurance to pay any money, fee, or profit, direelly or indirectly to any perfon or perfons wbomfoever t j or fuch nomination or appointment. So help me God. Not to extend Sett. 10. " Provided always, That nothing in this act contained fhall soLancaltcr. a ny ways affect or relate to the clerk of the peace for the dutchy and' county palatine of Lancafler only ; which faid clerk of the peace holds his faid office for lives by grants from his late majeffy king Charles the fecond, as his predeceffors in the faid place have done, from former kings and queens Cietfe of tlje $eace* ^n queens of this realm, in right of their dutchy and county palatine aforefaid. This aft to commence from the firft day of May one thoufand fix hundred", fixty-nine. The clerk of the peace mujl make out all procefs, and when they are compleat muft deliver them to the cujlos; but as long as they are in procefs, they are not to be with the clerk, but for refufing to deliver the rolls to the cujlos, he was indicted and removed, and a mandamus to reftore him was de- nied per three juftices againft the chief juftice. 4 Mod. 31. Pafch. 3 W. & M. in B. R. The King and §>ueen v. Evans. Indebitatus affumpfit, and non ajfumpjit pleaded, the jury found the flat; 27 H. 8. and 1 W. & M. and the leveral claufes in them about the clerk of the peace ; that the earl of Clare was cujlos rotulorum of Middle/ex, and that he named the plaintiff to be clerk of the peace, to exercife the office by him or his deputy, Quamdiu fe bene gejferit ; that the plaintiff was capable of the office, and duly admitted ; that the earl of Clare zvas afterwards re- moved, and the earl of Bedford made cuftos rotulorum, who conjlituted, by writing under hand and feal, the defendant, during the time he was cujlos rotulorum, auamdin the defendant Je bene gejferit ; and on folemn argu- ment, judgment pro' quer. per tot. cur. for that he had an eftate for life, and was not removeable by the new cujlos. 12 Med. 42. Trin. 5 IV. &? M. Harcourt v. Fox. By the ftatute 1 W. & M the cujlos rotulorum is to appoint a clerk of the peace for fo long time only as he fhall demean himfelf well. Owen brought a- mandamus to the juftices to reftore him to that office. The return was, that the earl of Winchelj'ea, who was cujlos rotulorum, did appoint ¥ to be clerk of the peace durante beneplacito, &c. that the faid earl being dead, the lord Sydney was made cujlos, who appointed S. to be clerk of the peace of Kent, purfuant to the faid aft, The queftion was, whether a grant of this office during pleafure, which is only an eftate at will, fhall be fo governed by the ftatute as to make it an eftate for life, when once the perfon is ad- mitted to the office ; fo that let the cujlos make what appointment he will, though not purfuant to the ftatute, it is the ftatute, and not the cujlos, which gives an intereft and eftate to the nominee ? Adjudged, that no pe- remptory mandamus fhall go ; for, by the aft the cujlos is to nominate a clerk to execute the office fo long as he fhall demean himfelf well, &fc and if he appoint him in any other manner, he is no clerk of the peace, fo that appointing during pleafure is not purfuant to the aft-, for he has not exe- cuted the authority given him by the aft, and fo the defendant has no title. 4 Mod- 293. Trin. &W.l£ M. in B. R. The king v. Owen. It always belonged to the cujlos rotulorum to nominate the clerk of the peace, but the clerk of the peace was removeable when ever the cujlos was removed or changed, and moreover, was removeable at the will of the ■ cujlos till 37 H. 8. 1. which makes him to continue in quoufaue the cujlos fhall continue in •, but now, by the late aft, he is to continue for life ^ and though thewords are, give and grant to him, yet it is only an appoint- ment, and confequently may be without deed. 2 Sulk, 467. Trin. 10 W. 3, B. P-. Sanders v. Owen. z He. 6 3 3 Clctft of tt)e ^eacc* . He is no more than a minifterial officer, and a record made by him is not to be pleaded as a record, and will not conclude the judgment of B. R. Arg. 8 Mtfi. 43. P<3/2-£. 7 &? CKlatcIjcg. 6 4 i where fuch offender or offenders fhall be refpectively committed, once or oftener, as to luch juftice or juftices fliall appear reafonable; and in cafe of a further conviction for or upon a fecond or any other fubfequent of- Sobfcqucr.t fence of the fame kind, the perfon or perfons fo again offending, being offence. thereof convicted in manner before prefcribed, fliall, for every fecond or other fubfequent offence, forfeit forty pounds; and in cafe the faid forfeiture fliall noc be forthwith paid, the juftice or juftices, before whom fuch conviction fliall be had, fhall commit the party or parties fo convicted to the houfe of correction, or other pubiick prifon as aforefaid, there to be kept to hard hbour for any time not exceeding three months, nor lefs than one month, unlefs the faid forfeiture fhrU be fooner paid-, and if within feven days before the expiration of *£he time for which fuch offen- der or offenders fliall be committed, trreTaid forfeiture fhall not be paid, the faid juilice or juftices is and are hereby impowered and required to order fuch offender or offenders to be ptilrTickly whipped at the market- place, or fome other pubiick place of the city-, town or place where fuch offender or offenders fliall be refpectively committed, twice or oftener, as to fuch juftice or juftices fhall appear reafonable •, and the faid refpec- Application of tive forfeitures, when recovered, after fatisfaction fhall have been made the forfeiture., thereout to the party or parties injured, together with fuch cofts of pro- fecution as fliall be judged reafonable by the juftice or juftices before -whom fuch conviction fliall have been had, fliall be paid and applied to and for the ufe of the poor of the parifli or place where the perfon or perfons fo convicted fhal! refide or inhabit. Self. 3. " Provided always, and it is hereby enacted, That if any per- ^ppeil to tha fon convicted as aforefaid, of purloining, embezilling, fecreting, felling, quarter- (ef- pawning, exchanging, or otherwife unlawfully difpoling of, or of buy- flons< ing, receiving or taking to pawn any of the goods, materials or effects, herein before-mentioned, fhall think himfelf or herfelf aggrieved by the judgment of the juftice or juftices before whom he or fhe fliall have been convicted, fuch perfon fliall have liberty to appeal to the juftices at the next general or quarter feffions of the peace, which fhall be held for the county, riding, divifion, city, liberty, town or place, where fuch judgment fhall have been given; and that the execution of the faid judg- ment ihall in fuch cafe be fufpended, the perfon fo convicted entering into a recognizance at the time of fuch conviction, with two fuffici- Reco^mVanc* ent fureties, in double the fum which fuch perfon fliall have been with iurc:ie;. adjudged to forfeit, upon condition to profecute fuch appeal with effect, and to be forth-coming to abide the judgment and determination of the juftices in the faid general or quarter feflions ; which recognizance the faid juftice or juftices before whom fuch conviction fhall be had is and are hereby impowered and required to take ; and the juftices in the faid general or quarter feflions are hereby authorized and required to hear and Jjjfljesiolieu finally determine the matter of the faid appeal, and to award fuch cofts » ndd€terimne » as to them fhall appear juft and reafonable, to be paid by either party ; and if, upon the hearing of the faid appeal, the judgment of the juftice or juftices before whom the appellant lhall have been convicted fhall be Vol. I. N° XXVII. 4N affirmed, 642 cicc&s attn mtet\)z8. affirmed, fuch appellant {hall immediately pay the fum which he or fhe and to award fhall have been adjudged to forfeit, together with fuch coils as the juftices coil*, &c. m the faid general or quarter fefiions ihall award to be paid by him or them, for defraying the expences fuftained by the defendant or defendants in fuch appeal; or in default of making fuch payments, fhall fuffer the refpective pains and penalties by this act inflicted upon perfons refpec- tively who fhall neglect to pay, or fhall not pay the refpective forfeitures by this act impofed upon fuch perfons refpectively, who fhall be convict- ed of purloining, embezilling, fecreting, felling, pawning, exchanging, or otherwife unlawfully difpofing of any of the goods, materials or effects herein before-mentioned, or, of perfons buying, receiving or talcing to pawn any of fuch goods, materials or effecls. Form of the Seel. 4. " And be it further enacted by the authority aforefaid, That the convifiion ; iuftice or juftices of the peace, before whom any perfon fhall be con»- victed, in manner prefcribed by, this act, of purloining, embezilling, fe- creting, felling, pawning," exchanging, or otherwife unlawfully difpofing of, or of buying, receiving or taking to pawn any of the goods, materi- als or effects aforefaid, fhall caufe fuch refpective convi&ion to be drawn up in the form and words following ; that is to fay, " MiMefex, 7 r> E it remembered, That on the Day of to it-it. J 1J in the year of his ma- jefty's reign, A. B. was convicted before me (or us,) of his ma- jefty's juftices of the peace for the faid county of or for the riding for divifionj of the faid county of or for the city, liberty or town of in the faid county of fas the cafe fhall be) of purloining, embezilling, fe- creting, felling, pawning, exchanging, or unlawfully difpofing of, or of buying, receiving or taking to pawn fas the cafe fhall happen to be) f fpecifying the refpective goods, materials or effects,) the property of C. D. of in the county of Given under my hand and feal for our hands and feals^ the day and year aforefaid. not to be re- Which faid form and conviction fhall not be liable to be removed by cer- ^oved by cev t i orar i \ nt0 his majefty's court of King's Bench; and the faid juftice or juf- and*w be tices > before whom fuch conviction fhall be had, fhall caufe the fame, tranfmitted to drawn up in the form aforefaid, to be fairly written upon parchment, the next quar- and tranfmitted to the nexE general or quarter fefiions of the peace, to be ter-fefiions, ne jj f or tne coun ty, riding, divifton, cky, town or liberty wherein fuch conviction was had, to be filed and kept amongft the records of the faid general or quarter fefiions-, and in cafe any perfon or perfons fo convicted Ihall appeal from the judgment of the faid juftice or juftices to the faid general or quarter fefiions, the juftices in fuch general or quarter fefiions are hereby required upon receiving the faid conviction, drawn up in the form aforefaid, to proceed to the hearing and determination of the mat- ter of the faid appeal, according to the directions of this act ; any law err ufage to the contrary notwithftanding. Seil. Sett- 5- " And be it further enatted by the authority aforefaid, That it juftice, upon fhall and may be lawful to and for any one juftice of the peace of any complaint on county, riding, divifion, city, liberty, town or place, and he is hereby re- °? th > t0 ifIbe quired, upon complaint to him made upon oath, of any offence committed f ^ r ^^e"' againft this act within the fame county, riding, divifion, city, liberty, hending any town or place, to iffue his warrant for apprehending and bringing before offender, him, or before any other juftice or juftices of the peace of the fame county, riding, divifion, city, liberty, town or place, the perfon or per- fons charged with fuch offence ; and the juftice or juftices, before whom and to hear fuch perfon or perfons fhall be brought, is and are hereby authorized and and determiHe required to hear and determine the matter of every fuch complaint, and maUsr - to proceed to conviction and judgment thereupon." Coals an* Coalpits. BY flat. 10 Geo. 2. c. 32. ftft. 6. If any perfon fhall wilfully and malicioufly fet on fire any mine, pit, or delph of coal, or cannel coal, he fhall be guilty of felony without benefit of clergy. See IpUClt* faff, page 486. ©tilt* 13 Geo. 2. c. 2t. \_A. D. 1740. intituled] " An aft for further and more effectually preventing the wilful and malicious deftruction of collieries and coal works." ■*' Whereas of late divers evil-difpofed perfons, poffeffed of or interefted preamble re- in collieries, have by fecret and fubtil devices wilfully and malicioufly at- citing the »a tempted to drown adjacent collieries, and have by means of water con- toGeo. z. veyed or obftrucled for that purpofe deftroyed or damaged the fame, in- f> 3*r tending thereby to enhance the price of coals, and gain the monopoly thereof: And whereas by an act made in the tenth year of the reign of his prefent majefty it was enadted, That if any perfon or perfons fhall wilfully and malicioufly fet on fire, or caufe to be fet on fire, any mine, pit, or delph of coal, or cannel coal, every perfon fo offending, being thereof lawfully convicted, fhall be adjudged guilty of felony, and fhall fuffer death as in cafes of felony, without benefit of clergy : And whereas it is realbnable that an adequate punifhment fhould likewife be inflicted on perfons who fhall wilfully and malicioufly deftroy or da- mage collieries by means of water, as aforefaid-, Be it enacted by the king's mod excellent majefty, by and with the advice and content of the lords fpiritual and temporal, and commons, in this prelent parliament af- 4N 2 fembled, 6 + 4 Coals ant> Coalpits. Peifons fembled, and by the authority of the fame, That if any perfon, from and drowning after the twelfth day of 'June one thoufand feven hundred and forty, mail coal pits, fhall unlawfully, wilfully, and malicioufly divert, or caufe to be diverted wa- r ay treble da- f rom an y r ; ver) brook, watercourfe, channel, or land flood, or con- folUo'ib! n vev > or cau *" e to b e conveve d water into any coal work, mine, pit, or delph of coal, or into any fubterraneous cavities or pafiages, or make, or caufe to be made any fubterraneous cavities or pafiages, with defign thereby to deftroy or damage any coal work, mine, pit, or delph of coal belonging to any other perfon or perfons, or fhall for that purpofe unlawfully, wilfully, and malicioufly deftroy or obftruct any fough or fewer (which has been a fough or fewer in common for fifty years) made for draining any coal work, mine, pit, or delph of coal, or fhall at- tempt or continue any fuch mifchievous practice, or fhall aid or affift therein in manner aforefaid ; every fuch perfon fhall, for every fuch of- fence, forfeit and pay to the party or parties aggrieved treble damages, and full cofts of fuit, to be fued for and recovered by action of debt, bill, plaint or information in any of his majefty's courts of record at Weflminfler. Kxcept fuch Self. 2. " Provided always, That nothing in this aft contained fhall coal pits are prevent or reftrain, or be conftrued to prevent or reftrain any perfon or their own. perfons, being the owner or owners of any fough, drain, or fewer, from deftroying, obftructing, or diverting, ufing, or difpofing of any fuch fough, drain, or fewer, in fuch manner as he, fhe, or they refpectively may now lawfully do. Stilt* 17 Geo. 2. c. 2,5- [A. D. 1744. intituled] " An act to explain, amend, and enlarge an act made in the fixteenth and feventeenth year of the reign of king Charles the fecond, intitled, An all for regulating the measures and prices of coals." 16 & \-jCar. " Whereas by an aft made in the fixteenth and feventeenth year of 2. c. 2.. the reign of king Charles the feond, intituled, An all for regulating the meafures and pices of coals, it is (amongft other things J enacted, That the lord mayor of London, and the court of aldermen, for the time be- ing, and the juftices of peace of the feveral and refpective counties and places where coals, commonly called fea coals, brought into the river of Thames, are fold by retail, or any three or more of them, whereof one to be of the quorum, fhould be, and are thereby impowered to fet the rates and prices of all fuch coals as fhould be fold by retail, as they from time to time fhould judge reafonable, allowing a competent profit to the faid retailer, beyond the price paid by him to the importer, and the or- dinary charges thereupon accruing : And whereas many exactions and abufes are ufed by retailers of fea coals, brought by fea into other rivers, creeks, havens, ports, cities, boroughs, towns, counties and places, within the kingdom of England, dominion of Wales, and town of Ber- wick upon Tweed, befides fuch counties and places where fuch coals brought into the river Thames were and are fold by retail : for avoiding 3 ° f Coals an& cottupits. 6 +5 of which exactions and abufes in fuch other counties and places as afore- faid, a like remedy is needful to be provided, as by the laid recited act is provided, touching the retailers of coals brought into the (aid river of Thames, and fold; wherefore Be it enacted by the king's mod excellent majefty, by and with the advice and content of the lords fphitual and temporal, and commons, in this pretent parliament aftembled, and by the authority of the fame, That from and after the twenty-fourth day of June, in the year of our Lord one thoufand feven hundred and forty-four, the juftices of the peace of the feveral counties in the kingdom of England, dominion of Wales, and of the town of Berwick upon Tweed, or any three Three juftices or more of them, whereof one to be of the quorum, fhall be, and are t0 *" the re - hereby impowered to fet the rates and prices of all fuch coals called Sea tai1 P r . lce on Coals, as fhall be brought by fea into any other rivers, creeks, havens, or partVfi*^ ports, and fold by retail after landed, in any other cities, boroughs, laud, &c. towns, counties, and places, within the kingdom of England, dominion of Wales, and town of Berwick upon Tweed, to which the faid recited acl: doth not extend, as they from time' to time fhall judge reafonable, allowing a competent profit to the faid retailer, beyond the price paid by allowing a him to the importer, and the ordinary charges thereupon accruing ; and competent that if any ingrolTer or retailer of fuch coals lhall refufe to fell as afore- pro ^ t0 the faid, that then the faid juftices of the peace refpectively are hereby au- p *! e r rS of - u fj thorized to appoint and impower fuch officer or officers, or other perfons, tices, if the ' as they fhall think fit, to enter into any wharf, or other place, where fuch retailers refufa coals are flored up •, and in cafe of refufal, taking a conftable, to force t0 fel1 as or " entrance, and the faid coals to fell, or caufe to be fold, at fuch rates as the faid juftices refpectively fhall judge reafonable, rendering to fuch in- groffer or retailer the money for which the faid coals fhall be lb fold, ne- cefTary charges being deducted ; and if any action fhall be commenced againft the juftice of peace, conftable, or any officer or perfon, for any thing to be done in purfuance of this ad, the defendant in every fuch ac- tion may plead the general ifTue, and give the fpecial matter in evidence ; General M*>« and if the verdict be found for him, or the plaintiff become non- fuited, fuch defendant fliall recover and have his damages, and treble Treble cods, cofts of fuit, for his unjuft vexation in that behalf. Setl. 2. "Provided always, That no perfon having intereft in any iv intererted wharf ufed for the receiving and uttering of coals, or that doth or fhall perfon to be trade by himielf or others, in his own or any other name, in the fale of concerned in any coals, or the engtoffing the fame, in order to fell the fame, and not femng , a price for his own private ule only, fhall act, or otherwife intermeddle in the fetting the price of coals ; any thing in this act to the contrary in any wife »otwith (landing." Statutes 646 Coaig ann Coai*ptt& Statutes concerning the duties on coals, and for regulating the coal trade in general. Duty on every tun of foreign coals ufually fold by weight 3 J. by 8 Ann. C. 4. feci. 1. And is. by 9 Arm. e. 6. feci. 8, And every chaldron of foreign coals ufually fold by meafure 4 s. 6d. by 1 Ann. c. 4. feci. 1. And 3 j. by 9 Ann. c. 6. feci. 8. And every chaldron of fuch, or any other coal or culm, imported in- to the port of London, if ufually fold by meafure, and every tun if ufually fold by weight, 3 J. by flat. 1 Geo. 1. flat. 2. c. 23. feci. 1. And %s. by 5 Geo. 1. c. 9. feci. 1. And every chalder of coals carried coaftwife, if ufually fold by mea^ fure, 3 j. by 8 Ann. c. 4. feci. 1 . And is. by 9 Ann. c. 6. feci. 8. And every tun of coal carried coaftwife is. by 8 Ann. c. 4. feci. 1. And 1 s. \d. by 9 Ann. c. 6. feci. 8. And every chaldron of culm carried coaftwife, if ufually fold by weight, 7*2 of a penny, by 8 Ann. c. 4. feci. 1. And 4to of a penny, by 9 Ann. c. 6. feci. 8. And every chalder of pit coal-cinder carried coaftwife 3 J. by 8 Ann. c. 4. feci. x. And 2 j. by 9 Ann. c. 6. feci. 8. The keels at Newcaflle fhall be meafured by the king's commirfioners, 9 H. 5. flat. 1. c. 10. 30 Car. 2. c. 8. 6^7 IV. 3. f. 10. The king's claim to a duty of two pence a chaldron at Newcaflle. 21 Jtff. 1. c. 2. /#. 5. The liberties of the hoaft-men of Newcaflle in felling coals. 21 7^. 1. c. 1. y&.7. 12. Exporting coals without payment of the duty, forfeits double the duty. 1 3 fcf 1 4 CVzr. 2 . c. 1 1 . y?5. 9. The weight and meafure of coals in London. 16 & 17 Car. 2. r. 2.— Damages, &V. for perfons atting under the aft. #& feci. 4. Juftices of peace may fet the price of coals in London. 16 &f 17 Car, 2. c 2. A duty of nd. a chaldron given to the city of London. 19 Car. 2. 1 <•. 3. feci. 36. 22 Car. 2. c. 1 1. ./ft!?. 38. Boats and carts carrying coals at Newcajlle f to be meafured. 30 Car. 2. c. 8. 6 & j TV. 3. c. 10. A duty laid upon coals for the relief of orphans, fcrV. $W.t£ M. c. 10. /ft;/, xo. The duty continued, 21 Geo. 2. c. 19. feet. 1. A duty laid upon coals, 6 &f 7 W. 3. f. 18. Allowance of feamen to coal fhips free from imprefling, 6 & j JF. 3. *. iS.fett. 19. Coals ana £oai*pft& 6 +7 An expired duty upon coals, 9 &? 10 JF. 3. ft 13. and upon cinders, 10 &? 11 W. 3. ft 21. feet. 28. Additional duty upon coals, 8 Ann. c. 4. 9 /^k«. ft 6. /ft,7. 8. Coals carried from Sterling to Dunbar exempted, 8 Ann. c. 4. feci. 39. 9 Ann. c. 6. feci. 10. Over-fea duty of 3 5. by 6 /^k». c. 22. on coals exported in BritiJJj (hips, taken off, 8 Ann. c. 13. /ft?. 15. A duty impofed upon exported coals, 9 Ann. c. 6. feci. 5. 12 //««. ,/?. 2. c. 9. /ft?. 9. 30 Geo. 2. c. 19. /ft/. 28. Made perpetual by 1 Geo. %, c. 7. and part of general fund. Coals exported to Ireland, IJle of Man or plantations excepted, 1 2 Ann. Ji.i.c.q. s. 9. A duty on coals for building 50 churches, 9 Ann. c. 22, Coals exported from the weft of Scotland to Ireland, &e. charged with the fame duties as coals from the weft of England to Ireland, 9 Ann. c. 22, _/ft?. 90. Combinations of coal-owners, &c. prohibited, 9 Ann. c. 28. Regulations of the feveral branches of the coal-trade, 9 Ann. c. 28. 1 Geo. 1. ft 26. _/&?. 1. The contents of coal-bufhel, 12 Ann. ft. 2. ft 17. /ft?. 11. Lottery annuities granted upon the coal duties, 5 Geo. 1. c. 9. /t/. 13. and the furplus to be difpofed of by parliament, feet. 42. The duties impofed by 8 Ann. c. 4. made perpetual by 5 Geo. r. ft 19. and part of South-Sea fund. Exemption of coals carried from Ellen-Foot to Bank-End, 8 Gft?. 1. c 14,. feet. 14. Application of the furplus of the coal duty, 13 Geo. 1. ft 21. Dealers in coals mayufe their own lighters on the Thanxs, 3 Geo. 2. c. 26. Dealers not to aft as crimps, 3 Geo. 2. c 26. feet. 3. Penalty on receiving premium for contracts for coals, 3 Gw. 2. ft 26. 7^/. 4. The forms prefcribed for contracts and notes for coals, 3 Geo. 2. c. 26. feet. 6, &c. Penalty on mafters of fhips refufing to account, 3 Geo. 2. c. 26. feet. 9. On lighter-men, 13 c. delivering coals without the ingrain, 3 Geo. 2. C. 26. feet. 10. Sacks and other coal meafures to be marked, 3 Geo. 2. ft 26. feet. 1 1. Penalty on mafters of coal-fhips keeping turn, 4 Geo. 2. c. 30. Mafters of colliers to declare their cocquets in four days, 4 Geo. 2. ft 30. feet. 2. All coal contracts at Billingsgate to be figned and produced, 1 1 Geo. 2., C 15. feet. 6. Waggons at Newcaftle, &V. to be meafured and marked, 1 1 Geo. 2. c. 1 5-. feet. 8. A drawback of the duty on coals ufed in fire-engines for draining the tin and copper-mines in Cornwall, 14 Geo. 2. c. 41. feet. 3. 1 Land 6 4 8 Coals ana Coasts* Land coal-meter's office for Weflmnfler erected, 19 Goj. 2. f. 35. 20 Ge OI N, (coin, in French) fays lord Coke, fignifies a corner, and from j thence hath its name •, becaufe in ancient time money was fquare with corners, as it is in fome countries at this day. Co- Lit. 107. b. The legitimation of money, and the giving it its denominated value, is juftly reckoned inter jura majefiatis, and in England it is one fpecial part of the king's prerogative. 1 Hale's H. P. C. 188. And the king may by his proclamation legitimate foreign coin, andmake it current money of this kingdom, according to the value impofed by iuch proclamation. 1 Hale's Hifl. P.C. 192. And therefore both Englifh money, coined by the king's authority, and foreign coin made current by proclamation, are within the denomination of lawful money of England. P. Co. Lit. 207. And no perfon can be inforced to take in payment any money but of lawful metal, that is v of filver or gold. 2. Inf. 577. Except for fums under fix-pence. 1 Hale's HiJl. 195. By Stat. 25. Ed. g.fi. 5. c. 2. \_A. D. 1350] " If a man counterfeit the king's money, and if a man bring falfe money into this realm, counterfeit to the money of England, as the money called Lufhburgh, or other like to the faid money of England, knowing the money to be falfe, to merchandize or make payment, in deceit of the king and his people, he lhall be guilty of high treafon." If a man counterfeit the king's money] It is faid, that thofe who coin money without the king's authority, are guilty of high treafon within this aft, whether they utter it or not ; and that thofe who have the king's authority to coin money are guilty of high treafon if they make it of bafer alloy than they ought ; and that thofe alio are guilty of the fame crime, who receive and COftt. 649 and comfort one who is known by them to be guilty thereof; but that clippers, crV. are not within this ftatute. 1 Hawk. P. C. 42. But ic ieems chat thofe who barely utter falfe money made within the realm, knowing it to be falfe, are neither guilty of high treafon, nor of a mifprifion thereof, but only of a high mifprifion : Yet by 8 &? 9 Will. 3. c. 26. they are in ibine cafes made guilty of felony. 1 Hawk. 42. Such money only as is coined by the king's authority, either in gold or filver within the realm, and confequently not brafs farthings, &c. fhall come under this denomination. 1 Hawk. 42. But the mifcaiefs intended to be remedied by this ftatute, having been found by experience not to have been fufficiently redreffed by ic as thus restrained, the fame have been farther provided for by fubiequent ftatutes. 1 Hawk. 42. ©tat. 1 Mar. Seff. 2. c. 6. [A. D. 1553. Intituled] " An aft that the counterfeiting of ftrange coins being current within this realm, the queen's highnefs fign manual, fignet or privy feal, to be adjudged treafon." " Forafmuch as by the laws of this realm, fmall and no due and condign punifhment is at this prefent time provided for fuch evil difpofed perfons as fhall counterfeit or forge fuch kind of gold or filver of other realms, as is not the proper coin of this redm, yec permitted and fuffered by che queen our fovereign lady's confent, and heretofore hath been permitted and fuffered by the confent of her moll; noble progenitors, to be currant in payment within this her realm, nor for fuch perfons as fhall counterfeit the queen's highnefs fign manual, or privy fignet, or privy feal ; by reafon whereof divers evil difpofed perfons are encouraged and boldned daily to perpetrate and commit the faid feveral offences : Sect. 2. " For remedy whereof, Be it enacted by our fovereign lady the Treafon to queen, the lords fpiritual and temporal, and the commons, in this prefent forge the coin parliament affembled, and by the authority of the fame, That if any per- of other fon or perfons hereafter falfly forge and counterfeit any fuch kind of coin realms c "'- of gold or filver, as is not the proper coin of this realm, and is or fhall be rea i m o/the currant within this realm by the confent of the queen, her heirs or fuc- king's' fign cefiors: (2) Or if any perfon or perfons at any time hereafter do falfly manual, fciV. forge or counterfeit the queen's fign manual, privy fignet, or privy feal ; 2 ^ Ed - 3- (3) that then every offence fhall be deemed and judged high treafon. (4) ""'' 5 - And the offenders therein, their counfcllors, procurers, aiders and abettors, being convict according to the laws of this realm of any of the faid offences, fhall be likewife deemed and adjudged traitors againft the queen, her heirs and fucceffors, and the realm, and fhall fuffer and have fuch pains of death, forfeiture of lands, goods and cattels, and alio lofe the privilege of all fanctuary, as in the cafe of high treafon is ufed and ordained." ©tat- 1 fc? 2 Phil. fc? Ma. c. 1 1. [A. D. 1554. Intituled] " An aft for the punifhment of the bringing in of the counterfeit coins of foreign realms, being current within this realm." Vol. I. N° XXVIII. 4 O " Where 650 Cot'tt* Bringers in of " Where divers and fundry coins of gold and filver of other realms, counterfeit not being of the proper coin of this realm of England, and yet by the C °T '"fi^iT f u ff" erance an d confent of the king and queen our fovereign lord and lady, bTp^nifhed as be current in payment within this realm, many ill-difpoled perfons, for traytors. their own corrupt lucre and advantage, have now of late brought into this realm, from the parts beyond the fea, great quantity of forged and counterfeit money, like to the laid coin cf other foreign realms, and have uttered the fame here, by merchandizing and otherwife, to divers of the fubjects of this realm, to their great deceit, hurt and damage; (2) be- caufe the faid ill difpofed perfons have perceived and underftood, that there was not, nor yet is any fufficient law or ftatute made or provided for the condign punifhment of the offenders in that behalf: Sect. 2. " Wherefore be it enacted and eftablifhed by the authority of this prefent parliament, That if any perfon or perfons, after the twentieth day of January next coming, fhall bring from the parts of beyond the fea, into this realm, or into any of the dominions of the fame, and fuch falfe and counterfeit coin of money, being current within this realm, as is aforefaid, knowing the fame coin or money to be falfe and counterfeit, to the intent to utter or make payment with the fame within this realm, or any the dominions of the fame, by merchandizing or otherwife ; That all and every fuch perfon or perfons fo offending as is aforefaid, their coun- fellors, procurers, aiders and abettors in that behalf, fhall be deemed and adjudged to be offenders in high treafon, and fhall fuffer, after law- ful conviction or attainder thereof, fuch pains of death, lofs and forfei- ture of lands, goods and cattels, as other offenders fhall do in cafes of high treafon. The manner ^ect. 3. " And be it further enacted by the authority aforefaid, That of indictment, a ,j an j ever y p er f on r perfons, that fhall at any time after the faid twen- an offender for t ^ etn day °^ J amar y he accufed or impeached of any of the offences con- impairing or tained and provided for in this eftatute, or of any other offence or offences, forging of concerning the impairing, counterfeiting or forging of any coin current com. within this realm, mall and may be indicted, arraigned, tried, convicted or attainted by fuch like evidence, and in fuch manner and form as hath been ufed and accuftomed within this realm, at any time before the firft year of the reign of our late fovereign lord, king Edward the fixth ; any ftatute, cuftom, law or ufage to the contrary thereof in any wife not- withstanding. 9 Ed. 3. fiat. 2. c. 2." ©tilt. 5 Eliz. c. 11. \_A. D. 1562. intituled] "An act againft the clipping, walking, rounding, and filing of coins." The clipping, " Whereas the offences of clipping, rounding, warning and filing of money fcfc of corns or co i ns f t hi s realm, was declared by an act of parliament in the time of fltolfbe s h ^ K h e ' king Henry the fifth, to be treafon to the king and the realm, and accord- treafon. ° inc* to the faid aft, the fame offences were and did continue treafon until the 3 H. 5. c. 6. firft year of the reign of queen Mary ; at which time the pains and penal- 1 Mar. fea: 1. t j es ^ue for the faid offences, were abrogated and taken away by the ge- c. 1. The pre- nera] COftt* 45 t neral act of repeal then made; (2) By reafon whereof, divers falfe and judices re- cvil-difpofed perfons, perceiving themfelves to be loofe and free from the founding to feverity and danger of the faid law and penalty, have been of late the the q uee ". more hardy and bold, to attempt and practife, for wicked lucre and gain's ^ ^jj e T ™ m » fake, to diminifh, impair, and falfify the monies and coins current within wa fliing, civ, this realm, and the dominions of the fame, by fuch clipping, warning, of money, rounding and filing thereof, not only to the great difhonour of the queen's 3 Inft - »7- majefty our fovereign lady that now is, by whofe great goodnefs new mo- nies or coins of the fame are now reduced to as much finenefs as ever hath been in any time of her noble progenitors, but alfo to the great lofs and damage of the good fubjefts of this realm, and more is like to be hereaf- ter, if the fame is not fpeedily met withal : Seel. 2. " For remedy whereof, Be it enacted, declared and eftablifhed The dipping, by the authority of this prefent parliament, That from and after the firft walking, day of May next coming, clipping, warning;, rounding-, or filing- for r ° unatr f' or • 1 ji • » r\ C 1 • • c i- s , filing of cur- wicked lucre or gain s lake, or any the proper monies or coins of this realm, rem money, or the dominions thereof, or of the monies or coins of any other realm, fhall be ad- allowed and fuffered to be current within this realm, or the dominions judged trca- thereof, at this prefent, or that hereafter at any time fhall be the lawful !° n ' Jv!° monies or coins of this realm or of the dominions thereof, or of any y other realm, and by proclamation allowed and fuffered to be current here, by the queen's majefty, her heirs and fuccelfors, fhall be taken, deemed, and adjudged by virtue of this aft to be treafon ; (2) and the offenders therein, their counfellers, confenters and aiders, fhall be, from and after the fame firft day of May, taken, deemed and adjudged as offenders in treafon, and being thereof lawfully convicted or attainted, according to the due order and courfe of the laws of this realm, fhall fuffer pains of death, and yet 2J<> ' lofe and forfeit all his and their goods and chattels •, (3) and alfo fhall lofe and forfeit all his and their lands and tenements, during his and their natural life or lives only." Sect. 3. " And be it further enacted by the authority aforefaid, That all They who and every perlbn and perfons which have any lawful grant to have and haveforfeitures enjoy the forfeiture of lands, tenements, goods or chattels of offenders, and of lands or men attainted in high treafon, within any manor, l'ordfhip, town, parifh, S ooos b y . hundred, or other precinct within this realm of England or PPates, fhall and f^ ^ e " r : ' may at all times hereafter have like liberty to take, feize and enjoy all fuch them, forfeitures of lands, tenements, goods and chattels, as fhall come to grow within their liberties, by force of the attainder of any perfon or perfons, for and upon any offence or offences made treafon by this act, as they or any of them fhould, ought, or might have by virtue of any good and law- ful grant to them or any of them heretofore had or made. Sect. 4. " Provided always, and be it enacted by the authority aforefaid, Thtfe offences That this act, nor any thing therein contained, nor any attainder or attain- mak f no c ° r " ders of any perfon or perfons, for any offence or offences made treafon by yood or°fo this act, fhall in any wife extend or be judged, interpreted or expounded, feiture of to make any corruption of blood, to any the heir or heirs of any fuch of- dower, fender or offenders, or to make the wife of any fuch offender to lofe or forfeit her dower, of or in any lands, tenements or hereditaments, or other 4 O 2 title, 652 Coin. title, action or interefl: in the fame •, any thing in this aft contained, or any attainder or attainders hereafter to be had for anyofFenceor offences made treafon by this aft, to the contrary notwithstanding." Trial of a $ ecL ^ a Anc j ^ e lt . f ur cher enafted by the authority aforefaid, That if peer y peers. ^ ^ ^ lords of the parliament, or peer of this realm for the time being, fhall fortune at any time hereafter to be indifted of any offence made trea- fon by this aft •, that then they and every of them (hall have his or their trial by their peers, as hath been uied heretofore in cafes of high treafon." ©tat- 14 Eliz. c. 3. {A. D. 1572. intituled] "Art aft againM the forg- g and realm." ing and counterfeiting of foreign coin being not current within this It is mifprifion Forafmuch as by the laws or ftatutes of this realm, fmall or no condign ofhigh trea- punifhment is at this time provided for fuch evil-difpofed perfons as (hall J?™!. ,, °!,T\rh counterfeit or forge fuch kind of gold or filver of other realms, as is not money, vvnicn o , d . ...... is not the coin the proper coin or this realm, nor current in payment within this realm ; of this realm, by reafon whereof divers evil-difpofed perfons as well without this realm as nor current within, are encouraged and emboldned daily to counterfeit or forge fuch _ .-a. ' _ kind of gold and filver, and utter the fame in this realm, in great deceit of her majefty's fubjefts : (2) Be it enafted by our laid fovereign lady the queen, the lords fpiritual and temporal, and the commons, in this p relent parliament affembled, and by the authority of the fame, That if any per- fon or perfons hereafter falfly forge or counterfeit any fuch kind of coin of gold or filver, as is not the proper coin of this realm, nor permitted to be of forelne of current within this realm -, that then every fuch offence fhall be deemed coin which and judged mifprifion of high treafon-, (3) and the offenders therein, their is not the procurers, aiders and abetters, being convift according to the laws of this money of this rea l m f f ucn offences, ihall be imprifoned, and forfeit fuch lands, goods ream.Borcur- ^ cnatt:e ] s as j n ca f es f m ifprifion of treafon for concealment of high rent therein. . * r a treaion. ©tflt. 18 Eliz. c. 1. \A. D. 1576. Intituled'] " An aft againft the diminifhing and impairing of the queen's majefty's coin, and other coins current within this realm." Diminifhing, " Whereas the offences of clipping, rounding, warning and riling, for fcaling, or wicked lucre or gains-fake, of any the proper monies or coins of this realm, lightning of Qr t jj e d omm i ons thereof, or of the monies or coins of any other realm, a " y within allowed by proclamation, and fuffered to be current within this realm, or this realm, the dominions thereof, by a ftatute made in the fifth year of the queen's fhall be high majefty's reign, are taken, deemed, and adjudged to be treafon •, (2) and treafon. 5 El. tne offenders therein, the counfellors, confenters and aiders likewile ° 'init' i7 deemed and adjudged as offenders in treafon, and being thereof lawfully convicted or attainted, according to the due order and courfe of the laws of this realm, are to fuffer pains of death, and to lofe and forfeit all his and their goods and chattels, and alio all his and their lands and tene- ments, Coftt. 653 merits, during his and their natural life or lives only, as by the faid efta- tute thereof made, among other things therein contained, more at large it doth and may appear : (3) Sithence the making of which good law and Other undu« ftatute, divers falfe and evil-dilpofed perfons-, knowing that the faid law, means pratti- being, as it is, penal, ought to be taken and expounded ftri&ly according !; d t0 faIfif y to the words thereof, and the like offences, not by an equity to receive the not within'the punifhment or pains, have fithence the making of the faid law and fta- ftrift word of tute, moft wickedly devifed and praclifed^ for wicked lucre and gains-fake, the forefaid other arts-, undue ways and means, to falfify, impair, diminifh, and light- (latme - en,, as well the proper monies and coins of other realms allowed and fuf- fered to be current within this realm and the dominions thereof by her ma- jefty's proclamation, to the great damage, lofs, hurt and deceit, as well of her majefty, as of all her faithful and loving fubjects, and more is like hereafter to be practifed and done, if the fame be not fpeedily met with- al ; (4) For reformation and remedy whereof, be it enacted, declar- ed, and ertablifhed by authority of this prefent parliament, That if any perfon or perfons, of what eftate, degree, or condition foever he or they be, fhall from and after the firft day of April next coming, for wicked lucre or gains-fake, by any art, ways or means whatfoever, impair, dimi- nifh, falfify, fcale, or lighten the proper monies or coins of this realm, or any the dominions thereof, or the monies or coins of this realm allowed and fuffered to be current at the time of the offence committed within this realm of England, or any the dominions of the fame, by the proclamation of the queen's majefty, her heirs orfucceffors, ihall be taken, adjudged, and deemed to be trealbn ; (5) and the offenders therein, their counicllers, confenters, aiders, fhall be likewife deemed and adjudged as offenders in treafon, and being thereof lawfully convicted or attainted, according to the due order of the laws of this realm, fhall fuffer pains of death •, (6) and lofe and forfeit all their goods and chattels to the queen's majefty, her heirs and fucceflbrs, and fhall alio lofe and forfeit to the queen's highnefs, her heirs and fucceflbrs, all their lands, tenements, and hereditaments, during his or their natural life or lives only. Sect. 2. " Provided always, and be it enacted by the authority afore- No corruption laid, That this act, nor any thing therein contained, nor any attainder or of D,00ci or attainders of any perfon or perfons for any offence or offences made trea- f°" e ' tu '* of fon by this act, fhall in any wife extend, or be judged, interpreted, or trea f on expounded to make any corruption of blood to any the heir or heirs of any fuch offender or offenders, or to make the wife of any fuch offender to lofe or forfeit her dower, of or in any lands, tenements, or heredi- taments, or her title, action, or intereft to the fame •, any thing in this act contained, or any attainder or attainders hereafter to be had, for any of- fence or offences made treafon by this act, to the contrary notwithftand- mg Sect. 3. " And be it further enacted by the authority aforefaid, That if Trial of .1 pee? any the lords of the parliament, or peer of this realm, for the time be- b y h'* P eefS - ing, fhall fortune at any time hereafter to be indicted of any offence made treafon by this act, that then they and every of them fhall have his or their 654- COt'tt. their trial by their peers, as hath been ufed heretofore in cafes of high trea* fon. 25 Ed. 3. Jiat. 4. & 5 c. z. 1 Ma. Sejf. 2. c. 6. g)tat- 6& 7 IVdl 3. e. 17. [A. D. 1695. Intituled] " An act to pre- vent counterfeiting and clipping the coin of this kingdom." " Whereas it is manifeft that of late years the current coin of this king- dom hath been greatly diminifhed by clipping, rounding filing, and melting the fame, and likewife many falfe and counterfeit coins have been clipped for the better difguifing thereof: And for as much as it is apparent that thefe practices of diminifhing the current coin is very much occafioned by thole who drive a trade of exchanging broad money for clipped money, and by other arts and devices : Sect. 2. " Be it therefore enacted by the king's mod excellent majefty, Penalty upon Dv anc j w j tn tne a dvice and confent of the lords ipiritual and temporal, and orpayinafilver cornmons » m parliament affembled, and by the authority of the fame, money for That from and after the firft day of May, which (hall be in the year of more than it is our lord one thoufand fix hundred ninety-five, if any perfon or perfons coined. whatfoever (hall, at any one time or payment, exchange, fend, fell, bor- row, or buy, receive, or pay, any broad filver money, or filver money undipped, of the coin of this kingdom, for more in tale, benefit, profit or advantage, than the fame was coined for and ought by law to go for, be lent, fold for, borrowed or bought, received or paid, fhall forfeit the fum of ten pounds for every twenty {hillings that fhall be fo exchanged, lent fold for, borrowed or bought, received or paid, and fo in proportion for any greater or lefTer fum ; one moiety thereof to his majefty, and the other moiety to the perfon who fhall fue or inform for the fame, to be recovered (with cofts of fuit) by action of debt, bill, plaint or information, wherein no privilege, protection, or wager of law fhall be allowed, nor any more than one imparlance." Penalty for $ e g ^ « And be it further enacted by the authority aforefaid, That no calling bars of p er f on do or fhall prefume to caft ingots or bars of filver, in imitation of liampingthem Spanijh bars or ingots of filver, nor do ftamp any mark or impreffion upon like Spamih any ingot or bar in likenefs of the Spanijh marks or impreffions •, upon pain money. that the perfon herein offending fhall for every fuch offence forfeit the filver fo caft, and alio the fum of five hundred pounds; one moiety to his majefty, and the other to the informer, to be recovered as aforefaid." PuniHiment Seel. 4. " And for the better preventing the clipping, diminifhing, or for buying or impairing the current coin of this kingdom, be it further enacted by the felling dip- authority aforefaid, That if any perfon whatfoever fhall buy or fell, and pings, be knowingly have in his cuftody or poffeffion, any clippings or filings of the current coin of this kingdom, he fhall for every fuch offence forfeit the fiid clippings or filings, and alfo the fum of five hundred pounds ; one moiety to his majefty, and the other to the informer, to be recovered as aforefaid, and fhall be alfo branded in the right cheek with a hot iron with the letter R. and until payment of the faid five hundred pounds fhall iuffcr imprifonmenc." I Sect. e* COftt. 6 55 Sect. 5. " And be it further enadted, That no goldfmith, or other per- n perfon fon whatfoever fhall, from and after the faid firft day of May, tranfport foail tranfport or caufe to be tranfported, out of this kingdom of England 'into any parts bullion, «. beyond the feas, any molten filver whatfoever, but fuch only as fhall be ^ '^ a * marked or ftamped at Goldfmiths-ball by the wardens, fome or one of GolJjmitlw them, belonging to the faid company of goldfmiths, which mark or hall, ftamp the faid wardens are hereby required to provide, and therewith to mark or ftamp all fuch filver as (hall be proved before them, or one of them, in fuch manner as is hereafter mentioned, to be lawful filver ; nor unlefs a certificate be firft had and obtained under the hand of one or more of the faid wardens, of oath having been made before him or them by the owner or owners of fuch molten filver, and likewife by one cre- dible witnefs, that the fame is lawful filver, and that no part thereof was (before the fame was molten) the current coin of this realm, nor clip- pings thereof, nor plate wrought within this kingdom ; which oath the laid wardens, or any one of them, are and is hereby required and autho- rized to adminifter, and likewife to make and grant a certificate thereof without fee or reward, an entry of which certificate fhall be duly made, by the faid wardens, in a book to be kept for that purpofe ; and in cafe any perfon whatfoever, who lhall offer any molten filver to be marked, as is aforefaid, lhall not prove by his or her oath, and likewife by the oath of one credible witnefs, that the filver offered to be marked is lawful fil- ver, and that the fame was not, before the melting thereof, the cur- rent coin of this kingdom, nor clippings thereof, nor plate wrought within the fame, then and in every fuch cafe it fhall be lawful to and for the faid wardens, or any one of them, to feize and detain fuch molten filver fo offered to be marked, until fuch time as fuch oath and proof fhall be made, as is aforefaid. Sect. 6. "■ And be it further enacted, That if any perfon whatfoever Bullion not fhall fhip, or caufe to be Hupped or put on board any vefiel, any molten j| an iP ed may filver not ftamped or marked by the faid wardens, or one of them, and c ^jornnoufc without certificate firft obtained, of oath having been made before the officers. faid wardens, or one of them, of the lawfulnefs of fuch filver, in man- ner as is aforefaid (which certificate fhall be fhewn to fome one of the commifiioners of the cuftoms, for the time being, before any cocket be granted for the exporting fuch molten filver) in fuch cafe it lhall and may be lawful to and for any officer or officers of his majefty's cuftoms to feize fuch filver fo fhipped and put on board •, one moiety whereof fhall be to his majefty, his heirs and fuccefibrs, and the other moiety to the officer and officers (o feizing the fame. Sect. 7. " And be it further enafted, That if any broker or brokers, GolJf»ith» not being a trading goldfmith or refiner of filver, fhall buy or fell any onl >' t0 ' bu 7 bullion or molten filver, every fuch perfon fhall fuffer, for every fuch of- j^ e u * fence, imprifonment for fix months without bail or mainprize. Seel. 8. " And for the better difcovery of offenders in the premiffes, be What perform it further enacted by the authority aforefaid, That it fhall and may be ma Y break lawful to and for one or more of the wardens of the faid company of ° r ^"ea°cTiar goldfmiths, with any two or more of the court of affiftants of the faid bullion. company, 656 COt'tt' company, within the compafs of the weekly bills of mortality, and to and for any two juftices of the peace within any county, city, or town corporate, out of the compafs of the weekly bills of mortality, to enter into the houfe, room or workfhop of any perfon who ilnall be fufpect- ed to be oruilty of buying or felling unlawful bullion, and to fearch for the fame •, and in cafe the occupier or occupiers of fuch houfe, room or workfhop fhall refufe to permit the faid warden and afliftants or juftices to make fuch fearch, as aforefaid, it fhall and may be lawful to fuch war- den and afliftants, and juftices, with the afliftance of a conftable, to break open any door, box, trunk, cheft, cupboard or cabinet in order to fearch for and difcover fuch bullion, as is aforefaid •, and in cafe the perfons fo fearching fhall at any time find any fuch unlawful bullion, the perfons fo finding the fame are hereby required to feize, as well fuch bul- lion as the perfon and perfons in whofe poffeflion the fame fhall be found j and the faid wardens, afliftants and conftables, fhall bring him and her be- fore the next juftice of the peace, who upon oath made of fuch finding (which juftice within the weekly bills of mortality, and the laid two juf- tices without the faid bills of mortality, are to adminifter) fhall and may examine the perfon fo brought before him, or found by them, reflec- tively, upon oath, whether the bullion fo found be lawful filver, and whe- ther the fame was not (before the melting thereof) the current coin of this Perfon, in rea j m or clippings thereof ; and in cafe the faid perfon fo examined whole poiiei- ' rr s > r ...... fion bullion is mall not prove by his or her oath, or by the oath ot one credible witneis found, not before the faid juftice and jullices reflectively, that the bullion fo found proving it to - 1S lawful filver, and that the fame was not, before the melting thereof, be neither the current coin of this realm, nor clippings thereof, then and in fuch p°ngs melted, cafe the faid juftice or juftices refpectively fhall commit the perfon fo ex- to be impri- amined to prifon, and fhall fecure the bullion fo found, and mail likewife faned fix oblige the perfons that can give any evidence concerning the fame, to en- months. ter j nto a rec0 gnizance to profecute the faid offender and offenders •, and in cafe fuch offender and offenders, in whofe pofleflion fuch unlawful bul- lion fhall be found, fhall not, upon his, her, or their trials on an indict- ment for melting the current filver coin of this realm, prove, by the oath of one credible witnefs at the leaft, the bullion fo found to be lawful fil- ver, and that the fame was not the current coin of this realm, nor clip- pings thereof, then and for want of fuch proof, fuch offender fhall be found guilty of the offence contained in fuch indictment, and fhall fuller imprifonment for the fpace of fix months, without bail or mainprize. Perfons appre- Se8. 9. " And whereas the coin of this realm is of late much clipped hending and anc j counterfeited for want of due encouragement to be given to fuch convifting perfons a s fhall difcover the fame •, Be it enacted by the authority afore- fhalf "pon the laid, That, from and after the faid firft day of May one thoufand fix hun- judg'e's certifi- dred ninety-five, all and every perfon and perfons, who fhall appre- cate, receive hend and take any perfon or perfons, who have counterfeited any of the ^,°'' of lhe current coin of this realm, or that for lucre or gain have clipped, wafh- ed, filed, or any ways diminifhed the fame, or fhall bring, or caufe to 4 be COt'tt. 657 be brought, into this kingdom, the dominion of Wales, or town of Ber- wick upon Tweed, any dipt, falfe, or counterfeit coin, and profecute fuch perfon or perfons, until he, fhe or they be convicted for any fuch of- fence, fhall have and receive from the fheriff or flieriffs of the county, where fuch conviction fhall be made, for every fuch offender fo convicted, the fum of forty pounds (without paying any fee for the fame) within one month after fuch conviction and demand thereof made, by tendring a cer- tificate to the faid fheriff or fheriffs for the time being, under the hand or hands of the judge or juftices before whom fuch traitor or traitors, offen- der or offenders, as aforefaid, fhall be convicted, certifying the conviction of fuch traitor or traitors done within the county of the faid fheriff or flie- riffs-, and that fuch traitor or traitors was or were taken and profecuied by the perfon or perfons claiming the faid reward, which certificates, as aforefaid, the judge or juftices are hereby required to give : And in cafe any difpute fhall happen to arife between the perfons apprehending and profecuting to conviction fuch traitors, as aforefaid, touching their right and title to the faid reward, that then the faid judge or juftices fo reflec- tively certifying, as aforefaid, fhall in and by their faid certificate direct and appoint the faid reward to be paid unto and amongft the parties claiming the fame, in fuch fhare and proportions as to the faid judge or iuftices fhall feem juft and reafonable : And if default of payment of Sheriff not the faid fum or fums of money fhall happen to be made by any fheriff or paying (hall {heriffs, fuch fheriff or fheriffs fo making default, fhall forfeit to the perfon {oT ^ k doub!e or perfons, to whom fuch money is due, as aforefaid, double the fum or ?! J l e afpre fums of money he ought to have paid, to be recovered by him or them, or his or their executors or adminiftrators, in any of his majefty's courts of record at Wejimlnfter, by action of debt, bill, plaint or information, wherein but one imparlance, and no effoin, protection, or wager of law, fhall be allowed, with treble cofts of fuit by him or them expended in recovery of the fame. Sheriff to be Sect. 10. " And it is hereby further enacted, That all fheriffs, their ex- allowed the ecutors, or adminiftrators, upon producing fuch refpective certificates, 40/. in his and the receipts for the money by them paid in purfuance of this act, fhall accoun ' s . and be allowed, and are hereby impowered to deduct, upon their account- x not " mci - ing with his majefty, all monies (other than the double fum and fums of hands, to be money and cofts of fuit) which they fhall difburfe, as aforefaid, without repaid by the any fee or reward whatfoever. treafury. Sect. 11. " Provided always, That if, upon the account of any fhe- g y .Q ta ttm riff or fheriffs, there fhall not be money fufrkient in the hands of fuch 15. f. 4. the fheriff or fheriffs to reimburfe him or them fuch monies paid by him or (herifF may them by virtue of this act, that then the fheriff or fheriffs, having fo. ap P ly t0 ^ paid the faid monies, fhall have the fame repaid by the lord treafurer or 0l commiffioners of his majefty's treafury for the time being, out of the revenue of the crown, upon certificate from the clerk of the Pipe to that effect. Vol. I. N° XXVIII. 4 P Sea. 6 5 8 Coin. Perfon guilty, Se8. ix." And be it further enacted by the authority aforefaid, That if on convifling perfon or perfons, being on t of prifon, (hall, from and after the faid firft day two others .'■> , r , , ~ , D , , '• c • •« r .. . ■ • ' pardened. ox May one thoufand fix hundred ninety-hve, be guilty of clipping, coining, counterfeiting, warning, filing or otherwife diminifhing the coin of this realm, and afterwards difcover two or more perfon or perfons, who already have or hereafter fhall commit any of the faid crimes, fo as two or more of the perfon or perfons difcovered (hall be convicted of the fame, any fuch difco- verer fhall himfelf have, and is hereby intitled to, the gracious pardon Apprentice of his majefty, his heirs, and fucceffors, for all fuch his crimes which he diicovenng, or t ] iev nave committed at any time or times before fuch difcovery made: ma ea ree- ^ nc j -^ ^ perfon making fuch difcovery be an apprentice, he fhall be deemed and taken, and is hereby declared a freeman, and fhall have, and may exercife any lawful trade, profeffion, or myftery, with all liberties and privileges, and in as full and ample manner, as if the faid perfon had letved the full time of his apprenticeship •, any law or ftatute, cuftom or ordinance to the contrary notwithllanding." Proof of fo- &&- l 3- " And be it further ena&ed by the authority aforefaid, That in reign bullion :o cafe any feifure fhall happen of any bullion (hipped to be exported, and a lie upon the doubt arife thereon, whether the fame be Englijh or foreign bullion, that owner, crV. tnen tne p rQ of fhall lie upon the owner, claimer or exporter of fuch bullion, that the fame is foreign bullion, and had not been melted down in this realm of England, dominion of Wales, or town of Berwick upon Tweed" - . Seel. 14. " And be it further enafted by the authority aforefaid, That in exporter no" ca ^ e anv P er f° n or perfons enter or fhip any bullion, allowed by this aft to entring in be exported beyond the feas, other than in the name of the true owner and name of proprietor or importer, the exporter thereof fhall forfeit the fame, or the owner, CSV. f u n value thereof •, one moiety to his majefty, his heirs and fucceiTors, and the other moiety to the perfon who fhall feize or difcover the fame." Certainquanti- Sect. 15. " Provided always, and be it further enafted, That this aft, or ty of bullion any thing therein contained, (hall not extend to prohibit the exportation of exported by f ucri bullion as fhall be licenfed by his majefty if fuch licences being entered thekingUved. m ^ books of the cuftom-houfe for the port of London) fo as the fame be exported before the firft day of January one thoufand fix hundred ninety- five, and do not exceed feven hundred thoufand ounces of filver to be applied for the payment of his majefty's forces." @)tfit. 7 cs 5 8 Will. 3. c 19. \.A. D. 1696.] made among other furpofes, " for remedying the ill ftate of the coin of the kingdom." All coinine ^ eci ' 4' " '^• nc ' f° ra f muc h as ^ ie greateft fecurity againft counterfeiting preffes not the new intended coin of this realm by the mill and prefs, is the difficulty brought into of being provided with fit tools and inftruments for doing thereof; Be it the mint to be enafted by the authority aforefaid, That if any perfon or perfons whatfoever (**h*r than the officer or officers of his majefty's mint or mints) now hav- ing, or which at any time hereafter, before the firft day of March, which fhall be in the year of our lord one thoufand fix hundred ninety-five, fhall have in his cuftody or poffeffion any prefs or preffes which may be made ufe of for coinage, if fuch perfon or perfons do or fhall, on or before the third Coftt. 659 third day of May, which (hall be in the year of our lord one thoufand fix hundred ninety-fix, bring and deliver the fame to the officer or officers of his majefty's mint at the tower of London, every fuch perfon fhall, at the time of the delivery thereof, receive from the faid officer or officers at the mint the full value which fuch prefs or preffes firft coft, and the charge of carriage •, and if at any time after the faid third day of May, any prefs for Penalty] coinage fhall be found in the cuftody of any perfon whatfoever (other than the officers of his majefty's mint or mints) fuch prefs fhall be feized for his majefty's ufe-, and every perfon, in whofe cuftody fuch prefs fhall be lb found after the faid third day of May, fhall forfeit the fum of five hundred pounds •, the one moiety thereof to be to his majefty, and the other moiety thereof to the informer, to be recovered by action of debt, bill plaint, or information, in any of his majefty's courts wherein no effoign, protection, wager of law, or imparlance, fhall be allowed." ©tat $ &? 9 Will 3. c. 26. [A. D. 1697. Intituled] " An aft for the better preventing the counterfeiting the current coin of this kingdom." " Whereas, notwithstanding the good laws ftill in force againft the counterfeiting of the monies and coins of this realm, yet the faid offence doth and is like daily to increafe, to the manifeft wrong and injury both of his majefty and all his loving fubjects, being very much occafioned for want of a due and condign punifhment to be inflicted upon fuch artificers and others, who without any lawful authority do make or ufe puncheons, ftamps, dyes, and other engines and inftruments, which are commonly ufed, or may be made ufe of, in or about the coining of money : for redrefs of which fo great and growing a mifchief, Be it enacted by the king's mod excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in diis prefent parliament affembled, and bv Nofimth,£**. the authority of the fame, That from and after the fifteenth day of May "^d^n the one thoufand fix hundred ninety-feven, no fmith, engraver, founder, or m int,ti7. (hail other perfon or perfons whatfoever (other than and except the perfons im- make or mer.d ployed, or to be imployed, in or for his majefty's mint or mints in the any dye, fc^. tower of London, or elfewhere, and for the ufe and fervice of the faid mints t0 p "' Y r only, or perfons lawfully authorized by the lords commiffioners of the go i treafury, or lord high treafurer of England, for the time being; fhall know- nor make any ingly make or mend, or begin or proceed to make or mend, or affift in the edging tool, making or mending of any puncheon, counter puncheon, matrix, ftamp, P" c ' r0 j; cciin * dye, pattern, or mould of fteel, iron, filver, or other metal or metals, or of Fringe-Mine, fpaud, or fine founders earth, or fand, or of any other materials whatfoever, in r0 r have in or upon which there fhall be, or be made or impreffed, or which will make their cuflody or imprefs, the figure, ftamp, refemblance, or fimilitude of both or either anv fuch of the fides or flats of any gold or filver coin, current within this kingdom, P^ nctl€on ' nor fhall knowingly make or mend, or begin or proceed to make or mend, or affift in the making or mending of any edger or edging tool, inftrument, or engine, not of common ufe in any trade, but contrived for making of money round the edges with letters, grainings, or other marks or figures refembling thofe on the edges of money coined in his majefty's mint, nor 4 P 2 any 660 COt'tt. any prefs for coinage, nor any cutting engine, for cutting round blanks by force of a fcrew out of flatted bars of gold, filver or other metal, nor fhall knowingly buy or fell, hide or conceal, or without lawful authority, or fufflcient excufe for that purpofe, knowingly have in his, her o- their houfes, cuftody or poffeflion, any fuch puncheon, counter puncheon, matrix, (lamp, dye, edger, cutting engine, or other tool or inftrument Offenders, JsV. before-mentioned ; and if any fmith, engraver, founder, or other per- guihy of high ^ Qr p er f ons vyhatfoever ("other than and except as aforefaidj fhall offend Qa&Iaffet m an y l ^ e matters or things aforefaid, then all and every fuch offender death. and offenders, their counfellors, procurers, aiders and abettors, fhall be and is and are hereby adjudged to be guilty of high treafon, and being of the faid offences or any of them convicted or attainted, according to the order and courfe of the laws of this realm, fhall fuffer death as in the cafe of high treafon. Sect. 2. " And be it further enacted by the authority aforefaid, That if any perfon or perfons whatfoever, from and after the faid fifteenth day P rfons con- °^ -^%» ma ^ without lawful authority for that purpofe wittingly or know- reyingoutof ing'Y convey or alfift in the conveying out of his majefly's mint in the the mint any' Tower of London, or out of any other of his majefty's mints, any pun- puncheon.JsV. cheon, counter puncheon, matrix, dye, ftamp, edger, cutting engine, a " d " n " a " g prefs or other tool, engine or inftrument ufed for or about the coining guilty of'hieh °f monies there, or any ufeful part of fuch tools or inftruments, that ireafoa. then as well the faid perfon and perfons fo offending, their counfellors, procurers, aiders or abettors, as alfo all and every perfon and perfons knowingly receiving, hiding or concealing the fame, fhall be and is, and are hereby adjudged to be guilty of high treafon, and being of the faid offences or any of them convicted or attainted, according to the order and courfe of the laws of this realm, fhall fuffer death as in cafe of high treafon. Like penalty Seel. 3. " And be it further enacted by the authority aforefaid, That if on perfons any perfon or perfons ("other than the perfons employed in his majefty's marking the mint or mints, or fuch as fhall have authority from the lords commiffioners edges of any Q f t j lg trea f urV) or ] orc | high treafurer of England, for the time being) fhall, after the faid fifteenth day of May, mark on the edges any the cur- rent coin of this kingdom, or if any perfon or perfons whatfoever fhall mark on the edges any of the diminifhed coin of this kingdom, or any counterfeit coin refembling the coin of this kingdom, with letters or grainings, or other marks or figures like unto thofe on the edges of mo- ney coined in his majefty's mint ; every fuch offence fhall be and is hereby adjudged to be high treafon, and the offender and offenders therein, his and their counfellors, procurers, aiders and abettors, being thereof con- victed or attainted according to the order and courfe of the laws of this realm,, fhall fuffer death as in cafe of high treafon. 1 Seel. 4. " And be it further enacted by the authority aforefaid, That "idinE^&fr. if any perfon or perfons whatfoever, after the faid fifteenth day of May, any coin re- fhall colour, gild, or cafe over with gold or filver, or with any wafh or fcmWing the materials producing the colour of gold or filver, any coin refembling current coio.4 any coin, Coin* -. 66* any the current coin of this kingdom, or any round, blanks of bafe metal or of coarfe gold or coarfe filver of a fit fize and figure to be coined into counterfeit miiled money, refembling any the gold or filver coin of| this kingdom; or if any perfon or perfons fhall gild over any filver j blanks of a fir. fize and figure to be coined into pieces refembling the current gold coin of this kingdom ; all and every fuch perfon and perfons fo offending, their counfellors, procurers, aiders and abettors, fhall be and is and are hereby adjudged to be guilty of high treafon, and being con- victed or attainted thereof, according to the order and courfe of the laws of this realm, (hall fuffer death as in cafe of high treafon. Sect. 5. " And be it further enacted by the authority aforefaid, That Puncheon, if any puncheon, dye, ftamp, edger, cutting engine, prefs, flafk or dye, isc other tool, inlTrument or engine, ufed or defigned for coining or coun- found in t ' ie terfeiting gold or- filver monies, or any part of fuch tool or engine, (hall, P offeffi '- n of at any time after the faid fifteenth day of May, be hid or concealed in A \mloytA\a any place, or found in the houfe, cuftody or pofleffion of any perfon or the mints, may perfons whatfoever, not then imployed in the coining of money in fome be f« z ed and of his majefty's mints, nor having the fame by fome lawful authority, P roduced m that then it fhall and may be lawful to and for any perfon or perfons evi ence * whatfoever, difcovering the fame, to feize, and he and they are hereby required to feize the fame, and to carry them forthwith to fome juftice of peace of the county, city, or place where the fame (hall be fo feized and by him fecured, to be produced in evidence againft any perfon or per- fons who fhall or may be profecuted for any fuch offence, in fome court of juftice proper for the determination thereof; and after fuch time as they or any of them (hall have been produced in evidence, as well the fame fo produced as the other fo feized, and not made ufe of in evidence, and every of them, fhall forthwith, by order of that .court where fuch offender or offenders fhall be tried, or by order, and in the prefence of fuch or fome other juftice of the peace, in cafe there be no fuch trial, be totally defaced and deftroyed-, and if, after the faid fifteenth day of May, Counterfeit any counterfeit or unlawfully diminifhed money fhall be produced in any mon , e y' . . • r • n- - i_ -J • /1 r re produced in court or juftice, either in evidence againft any perfon or perions for any evidence or offence relating to the counterfeiting or unlawfully diminifhing of money, othenvife, to or otherwife, that then, or immediately after evidence given, the judge or t> e afterwards judges of fuch court fhall caufe fuch monies to be cut in pieces in open cut in P' eces * court, or in the prefence of fome juftice of the peace, and then to be deliver- ed to or for fuch perfon or perfons to whom the fame of right fhall appertain. Seel. 6. "And whereas feveral mixtures of metals have been invented in Perfons imitation of gold and filver, and blanched copper is principally made ufe of blanching in imitatation of filver, and feldom, if ever, for any honeft or good pur- '°FP er for pofe : Be it further enacted by the authority aforefaid, That if any per- jng'bianched ion or perfons whatfoever, after the faid fifteenth day of May, fhall blanch copper with copper for fale, or mix blanched copper with filver, or knowingly buy filver, £?V. or or fell, or offer to fale, blanched copper alone, or mixed with filver, or ta k' n g or pay- fball knowingly and fraudulently buy or fell, or offer to fale, any mal- in g» onterfeit leable compofition or mixture of metals or minerals, which fhall behea-^.' nej * vier than filver, and look, and touch, and wear like ftandard gold, but be 662 Coin, be maniieftly worfe than ftandard, or (ball take, receive, pay, or put off any counterfeit milled money, or any milled money whatibever unlaw- fully diminished, and not cut in pieces, at or for a lower rate or va- lue than the fame by its denomination doth or (hall import, or was coined or counterfeited for, that then all and every fuch perfon and per- fons (hall be deemed and adjudged guilty of felony, and, being thereof to be guilty of convicted or attainted, according to the order and courfe of the laws of felony. tn j s realm, (hall fuffer death as in cafe of felony. .Attainder by Seil. 7. " Provided always, and be it enacted by the authority afore- th» aft not to j- a j^ That this aft, or any thing therein contained, or any attainder or llon'ofMotxT attainders of any perfon or perfons for any offence or offences made trea- OV. ' fon or felony by this aft, (hall not in any wife extend, or be judged, in- terpreted, or expounded to make any corruption of blood to any the heir or heirs of any fuch offender or offenders, or to make the wife of any fuch offender to lofe or forfeit her dower of or in any lands, tene- Bywhatevi- ments, or hereditaments, or her title, action, or intereft in the fame •, and dence offen- that all and every perfon or perfons that (hall, at any time after the faid ders ."™y oe fifteenth day of May, be accufed or impeached of any the offences made convi " treafon or felony by this aft, (hall or may be indicted, arraigned, tried, convicted, or attainted, by fuch like evidence, and in fuch manner and form, as now are, or may by the laws of this realm be had or ufed againft any offender or offenders for counterfeiting the king's money ; any thing in this aft contained, or any other law or ftatute to the contrary notwith- standing. Seel. 3. " And for the rendring more effeftual an aft made in the fixth and feventh years of his majefty's reign, intituled, An acl to prevent coim- Offences in 6 t er f e iti n g am { clipping the coin of this kingdom : Be it enacted by the autho- av Xc rii y afofCfeidi That all and every the crimes and offences, fpecified and heard in the mentioned in the faid aft, may be heard and determined upon indictment King's Bench, or prefentment either in his majefty's court of King's Bench, or before the or at a Gaol jufticcs of Oyer and Terminer, or juftices of Aflize, or general Gaol de- delivery. livery< be in three ^ftf?. 9. " Provided always, and be it enacted, That this aft (hall con- months, tinue and be in force until the end of the next felTion of parliament, By 9 ^ 10 W. a nd no longer •, and that no profecution (hall be made for any offence 3- c - zl -f'£- againft this aft, unlefs fuch profecution be commenced within three ^"deface mcmt.hs after fuch offence committed. This aft made perpetual by counterfeit 7 Anna, c. 25. feci. 3. and by feci. 2. the makers or menders of tools money. , are to be profecuted within fix months. ©tat. 9 y 10/r. 3. c. 24. [A. D. 1698. Intituled] " An aft for the better preventing the counterfeiting, clipping, and other diminiftiing the coin of this kingdom." " Whereas the preventing the currency of dipt and unlawfully dimi- fiifhed, and counterfeit money, is a more effeftual means to preferve the coin of this kingdom intire and pure, than the moft rigorous laws for the punifhment 1 Coftt* 663 punifhment of fuch as diminifh or counterfeit the fame : And whereas by the known laws of this kingdom no perfon ought to pay, or knowingly tender in payment, any counterfeit or unlawful diminifhed money, and all peribns not only may refufe to receive the fame, but may, and by the ancient ftatutes and ordinances of this kingdom, have been required to deftroy and deface the fame, and more efpecially the tellers in the receipt of the Exchequer, by their duty and oath of office, are required to receive no money but good and true : And to the end the fame might the better be difcerned and known, by the ancient courfe of the faid receipt of the Exchequer all money ought to be received there by weight as well as tale : For the reftoring of which courfe, together with other things, an aft was made in the lad feffion of this prefent parliament, intituled, An at! for 8 1$ 9 W. 3: the better observation of the courfe anciently ufed in the receipt of the Exche- c - z8 - quer, whereby amongft other things it is enacted, That the refpective tellers of the faid receipt of the Exchequer, when any money (hall be brought to the faid receipt of the Exchequer, to be there paid, fhall with- out delay receive it, weighing the fame in intire funis or otherwife, and making due entry of the weight and tale thereof, according to the ancient courfe ; but no provifion is made in the faid act, that the faid tellers fhall refufe to receive the faid money, in cafe it fhall not be of its due weight, and the former and ancient laws being grown into defuetude, whereby unlawfully diminifhed and counterfeit money receive a currency, and wicked and traiterous perfons are encouraged to diminifh and counterfeit the fame : Now to the end the kingdom, after fo vaft a charge and expence for the reformation of the filver coin, and reftoring it to its due weight and purity, may not relapfe into the fame evil, from which it hath been fo lately delivered with great dirficuly and hazard, and that counterfeit and unlawfully diminifhed money, which already begins to increafe, may be defaced and deftroyed; Be it declared and enacted by the king's moft ex- cellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in parliament affembled, and by authority of the fame, That it is and fhall be lawful to and for any perfon, to whom 7 ? er ^ any filver money fhall be tendred, any piece or pieces whereof fhall be di- ™ e face U dimi- mintfhed, otherwife than by reafonable wearing, or that by the ftamp, niihed or ' impreffion, colour, or weight thereof, he fhall fufpect to be counterfeit, counterfeit to cut, break, or deface fuch piece or pieces ; and if any piece fo cut, mone y- broken, or defaced, fhall appear to be counterfeit, the perfon tendring the fame fhall bear the lofs thereof-, but if the fame fhall be of due J" n °" f 2" weight, and appear to be lawful money, the perfon that cut, broke, or m onev to bear defaced the fame, fhall, and is hereby required to take and receive the the lofs, Ltc. fame at the rate it was coined for -, and if any queftion or difpute fhall arife, whether the piece fo cut be counterfeit, it fhall be heard, and final- ly determined by the mayor, bailiff, or bailiffs, or other chief officer of Ma >' 0f » &fe- any city or town corporate, where fuch tender (ball be made; and if', , etermln • fuch tender fhall be made out of any city or town corporate, then by the next juftice of the peace of the county, inhabiting or being near the place .<-■' 66+ €oitt, place where fuch: tender fhall be made ; and the (aid mayor, or other chief officer, and juftice of the peace, fhall hav.e full power and autho- andadminifter«ty to adminifter an oath, as he fhall fee convenient, to any perfon for an oath. the determining any questions relating to the faid piece. Officers of the Sect. 2. " And be it further enacted by the authority aforefaid, That Exchequer, re- the tellers of the receipt of Exchequer, and their deputies and clerks, and ceivers gene- t jj e reC eivers general of every branch of his majefty's revenue, aids, im- " i'red to'cut P f u i ons > duties, and taxes, given or granted, or to be hereafter given iuch money fo or granted, fhall and are hereby required to cut, break or deface, or tendred, &c. caufe to be cut, broken or defaced, every piece of counterfeit, or un- lawfully diminilhed filver money, that fliall be tendred in payment to them to the ufe of his majefty, his heirs or fucceffors, or for any part of the revenue, aids, impofnions, duties or taxes of his majefty, his heirs or fucceffors ; and the better to difcover filver money that is counterfeit, ■ • ■ or unlawfully diminilhed, from that which is good and true, the tellers all filver mo- and receivers general, and their refpective deputies and clerks, fliall ney received, weigh in whole fums, or otherwife, all filver money by them received •, and if the fame, or any piece thereof, fhall, by the weight or otherwife, appear to be counterfeit, or unlawfully diminilhed, the fame fliall not be received by or from them in the faid receipt of the Exchequer, nor be al- lowed them upon their refpective accounts. 8 & 9 W. 3. Sect. 3. " And be it further enacted by the authority aforefaid, That e. 2o.continu- an act made the lad feffion of this prefent parliament, intituled, An act for the better preventing the counterfeiting the current coin of this kingdom, and every article and claufe therein contained, fliall from henceforth con- tinue and be of force until the five and twentieth day of March, which fliall be in the year of our Lord one thoufand feven hundred and one, and from thence to the end of the next feffion of parliament." ©tilt* 1 Ann. fiat. 2. c. 9. [//. D. 1701. Intituled] " An act for continuing the act made in the eighth year of his late majefty's reign, for better preventing the counterfeiting the current coin of this king- dom." 9 r . 3. r. 21. " Whereas an act of parliament made in the eighth year of his late %lV.yc 26. majefty's reign, intituled, An act for the better preventing the counterfeit- ing the current coin of this kingdom, was, by a claufe in another act made in the ninth year of his laid majefty's reign, continued in force to the five and twentieth day of March one thoufand feven hundred and one, and from thence to the end of the next feffion of parliament : And whereas the faid act hath been found of good ufe for fuppreffing the counterfeit-' ing the current coin of this kingdom, by fuch tools and inftruments as continued till are therein prohibited : Be it enacted by the queen's moft excellent ma- 1709. Madejefty, by and with the advice and confent of the lords fpiritual and tem- perpetual by po^ anc j CO mmons, in this parliament affembled, and by the autho- 7 ««. c. zy riiy of . the ^ Tha( . the j- a j d act ma j e in the e jgj lt j 1 year f his late 4 majefty s C'Oftt. 66 5 CTiajefty's reign, and every article and claufe therein contained, fhall from henceforth continue and be in force until the five and twentieth day of March, which fhall be in the year of our lord one thoufand {even hun- dred and nine, and from thenceforth unto the end of the firit feffion of parliament then next enfuing, and no longer. Sect. 2. " And whereas in the aforefaid act it is ordained, That no profecution fhall be made for any offence againft the faid act, unlefs fuch profecution be commenced within three months after fuch offence com- mitted : Be it further enacted by the authority aforefaid, That the profe- Offenders may cution of fuch perfon or perfons as offend aeainft the faid act, by making P rofecuted ,. r . . . r ,. ~ , , * ' ■ . . °in fix months or mending, or beginning or proceeding to make or mend any coming a f ter ff e „ce. tool or instrument therein prohibited, or by marking of money round the edges with letters or grainings, may be commenced at any time within fix months after fuch offence committed ; any thing in the faid act to the contrary in any wife notwithilanding. ©tilt- 7 Ann. c. 23. [J. D. 1708.] made, among other purpofes, " for profecuting offences concerning the coin in England." Seel. 4. " Provided always, and it is hereby enacted by the authority aforefaid, That (over and above the fums not exceeding three thoufand pounds per annum, and five hundred pounds per annum, mentioned in the faid former afts, for the ufes of the mint) it fhall and may be law- ful to and for the lord high treafurer of Great Britain, and the under trea- surer, or the commiffioners of the treafury, for the time being, by orders, or warrants, to iffue out of the Exchequer, or difpofe of the monies ari- fing by the faid coinage duty, yearly and every year, from and after the firft day of June one thoufand feven hundred and nine, any fum or fums Aft" 1 > 7*« not exceeding the yearly fum of four hundred pounds, for the charges i;r0 9 itne '° rd and expences of the officers, and others imployed and to be im ployed J," u ^ e r r t ' h in the profecution of offerres in counterfeiting, diminishing, or otberwifejfru'e, & e . concerning the current coins of Great Britain, in that part thereof called 400/. pit- England ; and any officer or officers imployed, as aforefaid, may have and «»**>*» for the receive the faid fum not exceeding four hundred pounds, or any partjj ^p' ° , thereof, without being liable to any forfeiture, disability, or incapacity imploded in whatSoever-, the faid recited acts, or any other law, ftatute, or ufage to profecuting the contrary notwithstanding." offences in counterfeiting, ©tilt- 15 Geo. 2. c. 28. [J. D. 1742. Intituled] " An act for the f" GrM/ °' more effectual preventing the counterfeiting of the current coin of this Britoia. kingdom, and the uttering or paying of falie or counterfeit coin." " Be it enafted by the king's moft excellent majefty, by and with the advice and confent of the lords Spiritual and temporal, and commons, in this prefent parliament affembled, and by the authority of the fame, That if any perfon whatfoever fhall, after the twenty-ninth day of Sep- ttmber in the year of our lord one thoufand feven hundred and fortv-two, Vol. I. N° XXVIII. 4 Q^ wafli, 666 Coin. Waft), gild, or colour any of the lawful filver coin called a falling or a fixpence, or any counterfeit or falfe (hilling or fixpence, or add to or alter the impreffion, or any part of the impreffion, of either fide of fuch law- ful or counterfeit fhilling or fixpence, with intent to make fuch (hilling referable or look like, or pafs for a piece of lawful gold coin called a guinea, or with intent to make fuch fixpence refemble or look like, or pals for a piece of lawful gold coin called an half guinea ; or fhall file, or any ways alter, wafh, or colour any of the brafs monies called half- pennies or farthings, or add to or alter the impreffion, or any part of the impreffion of either fide of an halfpenny or farthing, with intent to make an halfpenny refemble or look like, or pafs for a lawful fhilling, or with intent to make a farthing refemble or look like, or pafs for a law- ITish treafon ^ fixpence, the perfon and perfons fo offending, in any of the matters to gild filver aforefaid, their counfellors, aiders, abettors and procurers fball be, and is coin, &c. and are hereby adjudged to be guilty of high treafon. Seel. 2. " And whereas the uttering of falfe money, knowing it to be falfe, is a crime frequently committed all over the kingdom, and the of- fenders therein are not deterred, by reafon that it is only a mifdemeanor, and the punifhment very often but fmall, though there be great reafon to believe, that the common utterers of fuch falfe money are either themfelves the coiners, or in confederacy with the coiners thereof: For preventing Uttering falfe whereof, be it hereby further enacted by the authority aforefaid, That if money know- ari y p er ibn whatfoever fhall, after the faid twenty-ninth day of September^ ,n 8 y ' . . utter or tender in payment any falfe or counterfeit money, knowing- the fonment, and f ame to be ralie or counterfeit, to any penon or perfons, and fhall be fecurity for thereof convicted, fuch perfon fo offending fhall fuffer fix months impri- two years fonment, and find fureties for his or her good behaviour for fix months a,ore ' more, to be computed from the end of the faid firft fix months ; and if Forthefecond the fame perfon fhall afterwards be convicted a fecond time of the like offence, two offence of uttering or tendering in payment any falfe or counterfeit mo- jsears irtipn n ey, knowing the fame to be fo, fuch perfon fhall, for fuch fecond of- 4e convicled, fhall fuffer a year's imprifonmenr, and fhall find lureties for his or her good behaviour for two years more, to be computed from the end of t0 ^fitr a the laid year •, and if any perfon having been once fo convicted as a com- year's impri- mon utterer of falfe money, fhall afterwards again utter or tender in pay- fonmeBt . cv- ment any falfe or counterfeit money to any perfon or perfons, knowing the Subfequent fame to be falfe or counterfeit, then fuch perfon being thereof convicted, offer.ee, fe- fhall for fuch fecond offence be, and is hereby adjudged to be guilty of lon . v ' &'• felony without benefit of clergy." Seft. 4. " And it is hereby further enacted by the authority aforefaid, Blood not t* That the perfon or perfons convicted of any of the treafons and felonies be corrupted. refpectively herein before mentioned, fhall fuffer death as in cafe of high treafon and felony refpectively; but the blood of the heirs of fuch offender fhall not be thereby corrupted, nor fhall his wife thereby forfeit or lofe her dower out of or in his lands or real eftate. SeSf. 5. " And it is hereby further enacted, That the perfon and per- Evidence ts fons that fhall be guilty of any of the treafons, felonies or crimes aforelaid, ' )e tlie j?™ 8 M fhall be indicted, arraigned, tried, and convicted by fuch like evidence, gainftcounTer and in fuch manner as is now ufed and allowed againft any offenders for teiiir.g cbe counterfeiting the lawful coin, provided that there fhall -be no profecution coin. for any of the offences made treafon or felony by this act, unlefs fuch pro- fecution be commenced within fix months next after fuch offence fhall be committed." Se£l. 6. " And whereas the coining or counterfeiting any of the copper money of this kingdom is only a mifdemeanor, and the punifhment often very imall ; be it hereby further enacted by the authority aforefaid, That if any perfon whatfoever fhall, after the faid twenty-ninth day of September, Coiners of make, coin or counterfeit any brafs or copper money, commonly called a copper money halfpenny, or a farthing, fuch perfon offending therein, and his, her and to . oe itn " their aiders, abetters and procurers being thereof convicted, fhall fuffer P rifoned **• two years imprifonment, and find fureties for his or her good behaviour for two years more, to be computed from the end of the faid firft two years." Sett. 7. " And it is hereby further enacted, That whoever fhall, after the faid twenty-ninth day of September, apprehend any perfon or perfons who have committed any of the offences hereby made high treafon or felony, or who fhall have made or counterfeited any of the copper money aforelaid, and fhall profecute fuch offenders, until he, fhe or they fhall +°{" ^ or C0B " be thereof convicted, fuch profecutor and profecutors fhall have and re- ^ n SftwSSii ceive from the fheriff or fheriffs of the county or city, where fuch conviction and felony ; fhall be made, for every fuch offender fo convicted of any of the treafons or felonies aforefaid, the fum of forty pounds-, and for every perfon fo And . ,o/ - for convicted of counterfeiting any of the faid copper money, the fum of ten '""£„ '«f * 4Q.2 pounds, 668 COte* counterfeiting P oun ds, without paying any fee for the fame, within one month afcer fuch,' copper money, conviction, and demand thereof made, by tendering a certificate to the faid fheriff or fheriffs for the time being, or his or their under-fheriff, Certificate to un der the hands of the judge or juftices before whom fuch conviction be given by ^u ^ ye k een mat j e , certifying fuch conviction, and that the offender or offenders were apprehended and profecuted by the perfons claiming the faid- reward, and thereby directing in what fhares and proportions the faid reward (hall be paid and divided to and amongft fuch profecutor or profecutors ; which certificate the faid judge or juftices are hereby required to give with- out delay or fee-, and if the faid fheriff or fheriffs fhall not pay the faid ^ e " a ^ y n " th f° as f ucn tw0 or more Perfons fhall be thereof doned. convicted, fuch difcoverer fhall have, and is hereby intitled to his majefly's mod gracious pardon for fuch his or her offences." Manner of Sett. o. " And be it hereby further enacted, That if any perfon fhall be profccuting a convicted of uttering or tenderingany falfe or counterfeit money as aforefaid, fecond offence anc j fh a jj afterwards be guilty of the like offence, in- any other county or m another ^ ^ ^^ Q f tne a ffi ze , or clerk of the peace for the county or city ' Un *' where fuch firfl conviction was fo had, fhall at the requeft of the profecutor, or any other on his majefly's behalf, certify the fame by a tranfeript in few words, containing the effect and tenor of fuch conviction; for which certificate two fhillings and fixpence, and no more, fhall be paid; and fuch certificate being produced in court, fhall be fufficient proof of fuch former conviction." Sett. 10. " k And whereas by an act made in the feventh year of the reign J 'r, nnx ' C2 ^' of her late majefty queen Anne, intituled, "An act for the continuing the former act, for the encouragement of coinage, and to encourage the bring- ing foreign coins, and Brilifo or foreign plate to be coined, and for making provifion for the mints in Scotland, and for the profecuting offences con- cerning Cat'tt. 669 timing the coin in England" there is a limited fum of four hundred pounds a year, directed to be allowed out of the coinage duty for the expences of profecuting offenders againlt the laws relating to the coin j which fum for feveral years laft pad has proved greatly deficient, infomuch that there appears to have been expended for the carrying on of thofe profecutions, the fum of feven hundred and two pounds, three (hillings and feven pence, over and above the fum of four hundred pounds per annum allowed for that fervicej and as the law now ftands, the faid fum of feven hundred and two pounds, three millings and feven pence, cannot be brought to Arrears of account •, Be it thereof further enacted, That the lord high treafurer, or the charges of lords commiflioners of the treafury for the time being, fhall and may, out p r °r«utjon to of the money arifing by the coinage duty, order and allow fuch further films of money as the expences of the faid profecutions have in fuch laft years amounted to, over and above the faid four hundred pounds a year ; and alfo fhall and may, at all times hereafter, order and allow out of the Future i f x_ i money arifing by the faid coinage duty fuch fums of money, for defraying the future expences of the faid profecutions, as he or they fhall fee fit, pro- vided the faid expences do not, in any one year, exceed the fum of fix . hundred pounds."' Commitment COMMITMENT, is the fending of a perfon to prifon by warrant or order, either for a crime, or for contumacy in refuting to do a thing required. Where a man is committed for a crime, the commitment muft be until difcharged according to law ; but for contumacy, until be comply and perform the thing required ; for in that cafe he fhall not lie till fefiions, but fhall be difcharged upon the performing his duty. Cartb, 153. Trin. 2 W. fef M. in B. R. All perfons who are apprehended for offences not bailable, as alfo per- fons who neglect to offer bail for offences which are bailable, muft be com- mitted j and where ever a juflice of peace is impowered to bind a perfon over, or to caufe him to do a certain thing, he may commit him cucufque, l$c. if in his prefence he fhall refufe to be lb bound, or to do fuch thing. 2. Hawk. P. C. 2 1 6. It is laid down by ferjeant Hawkins, as a matter which feems agreed by who may all the old books, that wherefoever a conftable or private perfon may commit, and juftify the arrefting another for felony or treafon, he may alfo juftify the '° what placr lending or bringing him to the common gaol; and that every private _perfon has as much authority in cafes of this kind, as the fheriff, or any other 670 Commitment other officer, and may juftify fuch imprifonment by his own authority, but not by the command of another. 2 Hawk. P. C. 1 1 6, 1 1 7. But in as much as it is certain, that a perfon lawfully making fuch an arreft, may juftify bringing the party to the conftable, in order to be carried by him before a juftice of peace-, and in as much as the ftatutes of the. 1 fc? 2 P. & M. c. 13. and 2 & 3 P. &. M. c. 10. which direct in what manner perfons brought before a juftice of the peace for felony, (hall be examined by him, in order to their being committed or bailed, feem clearly to fuppofe, that all fuch perfons are to be brought before fuch juftice for fuch purpofe; and inafmuch as the ftatute of 31 Car. 1. com- monly called the habeas corpus act, feems to fuppofe that all perfons, who are committed to prifon, are there detained by virtue of fome warrant in writing, which feems to be intended of a commitment by fome magistrate j and the conftant tenor of the late books, practice and opinions, are agreeable hereto ; it is certainly moft advifeable at this day, for any private perfon who arrefts another for felony, to caufe him to be brought, as foon as conveniently he may, before fome juftice of peace, that he may be committed or bailed by him. 2 Hawk. P. C. 117. H. P. C. 91, 112. Bait. c. 118. It is certain, that the privy council, or any one or two of them, or fecretary of ftate, may lawfully commit perfons for treafon, and for other offences againft the ftate, as in all ages they have done. 2 Hawk. P. C. ny. %ttlt- 5 Hen. 4, c. 10. [A. D. 1403. Intituled] " Juftices of the peace (hall imprifon none but in the common gaol." t, Co. 119. " I tsm i Becaufe that divers conftables of caftles within the realm of Cro. El. 129. England be affigned to-be juftices of peace by commifllon of our lord the king, and by colour of the faid commiffions they take people, to whom they bear evil will, and imprifon them within the faid caftles, till they have made fine and ranfom with the faid conftables for their deliverance •, (z) it is or- dained and eftablifhed, that none be imprifoned by any juftice of the peace, but only in the common gaol •, faving to lords and other Cwhich have gaols) their franchife in this cafe." Since this ftatute it has been held, that regularly no one can juftify the detaining a prifoner in cuftody out of the common gaol, unlefs there be fome particular reafon for fo doing ■, as if the party be fo dangeroufly fick, that it would apparently hazard his life to fend him to the o-aol ; or there be evident danger of a refcous from the rebels, &c. yet conftant practice feems to authorize a commitment to a mefienger ; and it is faid, that it fhall be intended to have been made in order for the carry- ing off the party to gaol. 2 Hawk. P. C. 118. And it is faid, that if a conftable bring a felon to gaol, and the gaoler refute to receive him, the town where he is conftable ought to receive him till the next gaol-delivery. //. P. C. 11 4. If 3 Commitment. 6 7 i If a pcrfon arretted in one county for a crime done in it, fly into ano- ther county and be retaken there, he may be committed by a juftice of the firft county to the gaol of fuch county. H. P. C. 93. But by the better opinion, if he had before any arreft fled into fuch county, he mull be committed to the gaol thereof by a juftice of fuch county. 2 Hawk. P. C. 118. Dalt. c. 118. Alfo it feems to be laid down as a rule by fome books, that any offen- der may be committed to the gaol next to the place where he was taken, whether it lie in the fame county or not. 2 Hawk. P.C. 11 8. As prifoners ought to be committed at firft to the proper prifon, fo ought they not to be removed thence, except in fome fpecial cafes •, for which fee the fiat. 31 Car. 2. c. 2. under Ot$fli(» ©tflt. 6 Geo. it. c. 19. [A. D. 1719.] " And whereas vagrants and other criminals, offenders and perfons charged with fmall of- fences, are for fuch offences, or for want of fureties, to be committed to the county gaol, it being adjudged that by law, the juftices of the peace cannot commit them to any other prifon for fafe cuftody, which by expe- rience hath been found to be very prejudicial and expenfive : Be it enact- ed by the authority aforefaid, That it fhall and may be lawful, to and j u[l ; c 3 , for the juftices of the peace, within their refpective jurifdictions, to pea ce may commit fuch vagrants, and other criminals, offenders, perfon and perfons, con.mit \a- either to the common gaol or houfe of correction, as they in their judg- g rants > &'■ to ment fhall think proper ; any law, cuftom or ufage to the contrary not- the , commo " • t-fl. jz » 3 £»°1 or houfe withftanding. % ( corrcaion. By fiaf. 24 Geo. 2. c. 55. It any perfon is apprehended upon a war- rant indorfed in another county, for an offence not bailable, or if he fhall not there find bail, he fhall be carried back into the firft county, and be committed, or, if bailable, bailed by the juftices in fuch firft county, to appear at the next affizes or general gaol delivery, or next general or quarter-feffions to be held for the county where the offence was com- mitted. Every commitment muft be in writing, and under the hand and feal, F and fhew the authority of him that made it, and the time and place, and com mumcct, muft be directed to the keeper of the prifon. Hawk. P. C. 119. It may be either in the king's name, and only tefted by the juftice, or in the juftice's name. 2 Hawk. P. C. 119. It may command the gaolers to keep the party in clofe cuftody, for this being what he is obliged to do by law, it can be no fault to com- mand him to be fo. 2 Hawk. P. C. 119. It ought to fet forth the crime with convenient certainty, whether ihe commitment be by the privy council, or any other authority, otherwife the officer is not punifhable, by reafon of fuch mittmus, for fuffering the party to efcape ; and the court, before whom he is removed by habeas corpus, ought to difcharge or bail him -, and this doth not only hold -where no caufe at all is expreffed in the commitment;, but alfo where c>/2 Commitment. it is fo loofely fet forth that the court cannot adjudge whether it were a realbnable ground for imprifonment. 2 Hawk. P. C 119. A commitment for high treafon or felony in general, without exprefl- in<* the particular fpecies, has been held good. 2 Hawk. P. C. 119. But now, fince the habeas corpus act, it feems that fuch a general com- mitment is not good ; and therefore where A. and B. were committed for aiding and abetting Sir James Montgomery to make his efcape, who was committed by a warrant of a fecretary of ftate for high treafon, on a habeas corpus, they were admitted to bail, becaufe it did not appear what fpecies of treafon Sir James was guilty of. Skin. 596. 1 Salk. 347. S. C. It is fafe to fet forth that the party is charged upon oath ; but this is not neceflary ; for it hath been reiblved, that a commitment for treafon, or for fufpicion of it, without fetting forth any particular accufation or ground of the fufpicion, is good. 2 Hawk. P. C. 120. Every fuch mittimus ought to have a lawful conclufion; viz. that the party be fafely kept till he be delivered by law, or by order of law, or by due courfe of law, or that he be kept till further order (which (hall be in- tended of the order of law) or to the like effedr. ; and if the party be committed only for want of bail, it feems to be a good conclufion of the commitment, that he be kept till he find bail; but a commitment till the perfon who makes it lhall take further order, feems not to be good; and it feems that the party committed by fuch or any other irregular mitti- mus may be bailed. 2 Hawk. P. C. 120. Alfo a commitment grounded on an aft of parliament ought to be conformable to the method prefcribed by fuch ftatute; as where the churchwardens of Northampton were committed on the 43 Eliz. c. 2. and the warrant concluded in the common form, viz. until they be duly difcharged according to law ; but the ftatute appointing, that the party Jhould there remain until he Jhould account, for want of fuch conclufion they were dif- charged. Carth. 152, 153. So where one Bracey was committed by the commiflioners of bank- rupts, for refufing to anfwer, and they concluded their warrant, viz. un- til he conform himfelf to our authority, and be thence delivered by due courfe of law -, and upon the return of a habeas corpus, he was difcharged ; for the ftatute only impowers them to commit until he fubmit himfelf to be by them ■examined. 1 Salk. 3 48. So where the warrant returned of a commitment by commiflioners of bankrupt, for refufing to be examined by them, was, viz. or otherwife difcharged by due courfe of law, it was held naught ; for the ftatute is, he lhall be committed until he fubmit himfelf to be examined by the com- miflioners. i Salk. 351. Defendant was committed, upon a conviction for deer-ftealing, for a year, and till fuch time as he (hould be fet in the pillory, whereas the act fays for a year only, and therefore he was difcharged. Comb. 305. Duty of the % flat. 3 Hen. 7. c. 3. The fheriff or gaoler fhall certify the commit- .gaoler. ment to the next gaol-delivery. See this act at large under title 15flll, p. 207. ©tat Commitment* 6 73 @>tat» 3 Jac. i. <:. ib. [yf. Z>. 1605. Intituled) " An act for the Taring and levying of the charges for conveying malefactors and offenders to gaol." " Whereas his majefty's honed: and loving fubjects are much charged At whole and burthened in conveying felons, and other malefactors and offenders charge an of- againft his majefty's laws and ftatutes, unto the gaol, penifhable by im- fender (ha " be prifonment there, the faid felons and other malefactors and offenders con j' e >' ed t0 having goods and chattels of their own, whereby to defray the fame 8a ° charge themfelves, to the great encouragement of fuch malefactors and offenders in their faid wicked and bad courfes, and to the difcouragement of his majefty's (aid honeft and loving fubjects in profecucing the faid ma- lefactors and offenders to be punifhed according to their demerits ; (2) Be it enacted by the king's moll excellent majefty, the lords fpiritual and temporal, and the commons, in this prefent parliament affembled, and by authority of the fame, That all and every perfon and perfons whatfoever, that from and after the end of this prefent feffion of parliament fhall be committed to the common or ufual gaol within any county or liberty within this realm, by any juftice or juftices of the peace, for any offence or mifdemeanor, to any fuch gaol, That the faid perfon or perfons fo to be committed, as aforefaid, having means or ability thereunto, fhall bear their own reafonable charges for fo conveying or fending them to the faid gaol, and the charges alio of fuch as fhall be appointed to guard them to fuch gaol, and fhall fo guard them thither : (3) And if any fuch perfon or perfons, fo to be committed as aforefaid, fhall refufe at the time of their commitment and fending to the faid gaol, to defray the faid charges, or fhall not then pay or bear the fame, That then fuch juftice or juftices How the of the peace fhall and may by writing under his or their hand and feal, charges (ha!! or hands and feals, give warrant to the conftable or conftables of the hun- be 'evied, if" •dred, or conftable or tithing-man of the tithing or townfhip where fuch *5 P riloner perfon or perfons fhall be dwelling and inhabit, or from whence he or t hem C ^ they fnall be committed, as aforefaid, or where he Or they fhall have any goods within the county or liberty, to fell fuch and fo much of the goods and chattels of the faid perfons fo to be committed, as by the difcretion of the faid juftice or juftices of the peace fhall fatisfy and pay the charges of fuch his or their conveying and fending to the faid gaol, the appraifement to be made by four of the honeft inhabitants of the parifh or tithing where fuch goods or chattels fhall remain and be, and the overplus of the money which fhall be made thereof, to be delivered to the party to whom the faid goods fhall belong. Seff. 2. " And be it further enacted by the authority aforefaid, That w the offender if the faid perfon or perfons fo to be committed, as aforefaid, fhall not £ e not . able t0 have or be known to have any goods or chattels which may be fold for ch ^ ' s the the purpofe aforefaid, within the county or liberty, That then an indiflc^ parifhioners rent tax or affeffment fhall be made by the conftables and church-wardens, fr*U do it, and two or three other the honeft inhabitants of the parifh, townfhip or Vol. I. NP. XXIX. 4 R tithing. !g 674 The remedy if any perfon taxed refufe to pay. The defend- ant's plea in an action brought for any thing done by force of this aft. The defen- dant fhall re cover treble damages and colls of fuits. The continu ance of this aft. Commitment tithing where the faid offender or offenders fhall be taken or apprehended ; the faid taxation being allowed under the hand of one or more juftice or juftices of the peace, if there be fuch conftables or churchwardens there inhabiting ■, and in default of them, by four of the principal inhabitants of the faid parifh, townfhip or tithing where fuch offenders fhall be taken or apprehended : (2) And if any fo taxed or affeffed, fhall refufe to pay their faid taxation, then the juftice or juftices of peace by whom the faid offenders fhall be committed to prifon, as aforefaid, or any other juftice of peace near adjoining, fhall and may give warrant, as aforefaid, to the conftable, tithing-man or other officer, there to diftrain the goods of any fo affeffed, which fhall refufe to pay the fame, and to fell the fame-, (3) and that fuch perfon or perfons fo authorized, fhall have full power and authority fo to diftrain, and by appraifement of four fubftantial inhabi- tants of the faid place, to fell a fufficient quantity of the goods and chat- tels of the faid perfon fo refufing, for the levying of the faid taxation •, and if any overplus of money come by the fale thereof, the fame to be delivered to the perfon or perfons, owner or owners thereof. Setl. 3. " And be it enafted by the authority of this prefent parlia- ment, That if any aftion of trefpafs or other fuit fhall happen to be at- tempted or brought againft the perfon or perfons for taking of any diftrefs, making of any fale, or any other aft by authority of this prefent ad, the defendant or defendants in any fuch aftion or fuit, fhall and may either plead Not guilty, or otherwife make avowry, Cognizance or juftification for the taking of the faid diftreffes, making of fale or other aft by virtue of this aft •, (2) alledging in fuch avowry, cognizance or juftification, that the faid diftrefs, fale, trefpafs or other thing whereof the plaintiff or plain- tiffs complained, was done by authority of this aft, and according to the tenor, purport and effect of this aft, without any expreffing or rehearfal of any other matter or circumftance contained in this prefent aft: (3) To ■which avowry, cognizance or juftification the plaintiff fhall be admitted to reply, That the defendant did take the faid diftrefs, made the faid fale, or did any other aft or trefpafs fuppofed in his declaration, of his own wrong, without any fuch caufe alledged by the faid defendant; where- upon the iffue in every fuch aftion fhall be joined to be tried by verdict of twelve men, and not otherwife, accuftomed in other perfonal aftions % (4) and upon the trial of that iffue, the whole matter to be given on both parties in evidence, according to the very truth of the fame ; (5) And after fuch iffue tried for the defendant, or nonfuit of the plaintiff after appearance, the faid defendant to recover treble damages by reafon of his wronoful vexation in that behalf, with cofts alfo on that part fuftained, and that to be affeffed by the fame jury or writ, to enquire of the dama- ges as the fame fhall require : (6) This act to continue until the end of the firft feffion of the next parliament. 3 Car. 1. c. 4. Continued until the end of the firft feffion of the next parliament, and farther continued by 16 Car. 1. c. 4." @tat. Commitment c 75 ©tilt. 27 Geo. 2. c. 3. [J. D. 1754.] made, among other purpofs, " for the better fecuring conftables and others the expences of conveying offen- ders to gaol." " Whereas by an act paffed in the third year of the reign of kingjames 3jac.t. c 10. the Firil, intituled, An act for the rating and levying of the charges for con- veying malefactors and offenders to the gaol; every offender fo to be convey- ed (hall bear the charges of himfelf, and of thofe who convey him ; and if he refufe fo to do, his goods within the fame county may be diftrain- ed and fold to fatisfy the fame ; and if he hath no goods, the conftable, churchwardens and other inhabitants of the parifh where he was taken, fhall make a tax on every inhabitant thereof to pay the laid charges : And whereas the taxing the parifh where fuch offender was taken to pay fuch charges, is a great difcouragement to parifhes to take offenders ; and it is alfo found by experience to be very difficult to make a rate on the in- habitants to raile fuch tax ; whereby conftables and others are often kept out of their money by them advanced for the fervice of the publick, and fometimes lofe the fame, to their very great injury and vexation : For re- medy whereof; Be it enacted by the king's moll excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and com- mons, in this prefent parliament affembled, and by the authority of the fame, That, from and after the twenty-fourth of June one thoufand feven Offenders not hundred and fifty-four, when any perfon, not having goods or money having fuffici- within the county where he is taken, fufficient to bear the charges of ent t0 defra ) r himfelf, and of thofe who convey him, is committed to gaol or the th , e ex P ence * houfe of correction by warrant from any juftice or juftices of the peace, tnem t0 Lf\ t then, on application by any conftable or other officer who conveyed him &c. to any juftice of the peace for the fame county or place, fhall upon oath examine into and afcertain the reafonable expences to be allowed fuch —^1*1 ^ar- conftable or other officer, and fhall forthwith, without fee or reward, by ran t on the warrant under his hand and feal, order the treafurer of the county or treafurer of place to pay the fame, which the faid treafurer is hereby required to do, the county for as foon as he receives fuch warrant ; and any fum fo paid fhall be allowed f h aym h ent in his accounts. Sect. 2. " And be it further enacted by the authority aforefaid, That Part of the aft from and after the faid twenty-fourth day of June to much of the above- of 3 J ac - '• mentioned act paffed in the third year of king James the Firft, as relates^' lo -. reat,n S •« t n-i 1 • 1 r ■ 1 to taxing pa- to taxing the parifh where offenders are taken, tor defraying the charges r irh e3 t r con» of conveying offenders to gaol, fhall be repealed." veyingoffen- A perfon legally committed for a crime, certainly appearing to have ders t0 B aol » been done by fome one or other, cannot be lawfully difcharged by any re P ealed - other but by the king, till he be acquitted on his trial, or have an igno- How party ramus found by the grand jury, or none to profecute him on a procla- comt " ,tt « d mation for that purpofe, by the juftices of gaol delivery. 2 Hawk. P. C. ^ rz ^. 121. But if a perfon be committed on a bare fufpicion, without any appeal cr indictment for a fuppofed crime, where afterwards it appears that there 4 R 2 was 676 Common $;ft?er« was none ; as for the murder of a perfon thought to be dead, who after- wards is found to be alive •, it hath been holden that he may be fafely difmified, without any farther proceeding •, for that he who fuffers hitn to efcape, is properly punifhable only as an acceffary, where there can be no principal ; and it would be hard to punifh one for a contempt founded for a fufpicion appearing in fo uncommon a manner to be ground<- lefs. 2 Hawk. P. C. 12 1 . Common ^?a^en STATUTE 1 Eliz. c. 2. [J. D. 1558. Intituled] An act for the unifor- mity of Common prayer , and fervice in the church, and adminijlration of the facraments. ?3& 14 " Where at the death of our late fovereign lord king Edward the Car. 2. c. 4. Sixth, there remained one uniform order of common fervice and prayer, and of the adminiftration of facraments, rites and ceremonies of the church of England, which was fet forth in one book, intituled, The Book of Common Prayer, and adminiftration of facraments, and other rites and ceremonies in the church of England, authorized by act of parliament, holden in the fifth and fixth years of our laid late fovereign lord king Stat. 5&6Ed. Edward the Sixth, intituled, An act for the uniformity of common prayer ' c * ■ I ; r , and adminiftration of the facraments •, the which was repealed and taken A repealofthe . r .. ... y «• n r \ ■ r , r ftatuteof iM. awa > 7 by act °i parliament in the firft year of the reign of our late iove- SefT. 2. c. 2. reign lady queen Mary, to the great decay of the due honour of God, and the book and difcomfort to the profefibrs of the truth, of Chrift's religion: v C °T uV ^ ect ' ^' " ^ e '* therefore enacted by the authority of this prefent pac- of effed 3 C li ament ) That the faid eftatute of repeal, and every thing therein con- tained, only concerning the faid book, and the fervice, adminiftration of the facraments, rites and ceremonies contained or appointed in or by the faid book, fhall be void and of none effect, from and after the feaft of 1 Leon 20c. tne nat ivity of St. John Bap tifi next coming-, (2) And that the faid. book, with the order of fervice, and of the adminiftration of facraments, rites and ceremonies, with the alterations and additions therein added and appointed by this eftatute, fhall ftand and be from and after the faid feaft of the nativity of St. John Baptift, in full force and effect, according to the tenor and effect of this eftatute -, any thing in the aforefaid eftatute of repeal to the contrary notwithftanding. The book of ^ ect - 3 - " -^"^ f urf her be it enacted by the queen's highnefs, with the Common afient of the Lords and commons in this prefent parliament affembled, and Common $japer* 677 and by the authority of the fame, That all and Angular miniflers in any Prayer (hall cathedral or parifh church, or other place within this realm of England, De u , fed - [Vales, and the marches of the fame, or other the queen's dominions, 8 Ellz ' c ' u fhall from and after the feaft of the nativity of St. John Baptift next coming, be bounden to fay and ufe the mattens, even-long, celebration of the Lord's fupper, and administration of each of the facraments, and all the common and open prayer, in fuch order and form as is mentioned in the faid book fo authorized by parliament, in the laid fifth and fixth The alteration years of the reign of king Edward the Sixth, with one alteration or addi- of the book tion of certain leffons to be ufed on every Sunday in the year, and the fet fort, '» form of the Litany altered and corrected, and two fentences only added 5 * Eli ' in the delivery of the facrament to the communicants, and none other or otherwife. Sect. 4. " And that if any manner of parfon, vicar, or other whatfo- The forfeiture ever minifter, that ought or lhould fing or fay common prayer mentioned of thofe which in the faid book, or minifter the facraments, from and after the feaft of ufe any ° thcr the nativity of St. John Baptift next coming, refufe to ufe the faid com- ^book of mon prayers, or to minifter the facraments in fuchcathedral or parifh Common church, or other places as he lhould ufe to minifter the fame, in fuch Prayer. order and form as they be mentioned and let forth in the faid book ; GodDolt "8«- (2) or fhall wilfully or obftinately, {landing in- the fame, ufe- any other pI,IJ7> rite, ceremony, order, form or manner of celebrating the Lord's fupper, openly or privily, or mattens, even-long, adminiftrationr of the facra- ments, or other open prayers than is mentioned and fet forth in the faid book, (3) (open prayer in and throughout this act, is meant that prayer which , Mod. -g. is for others to come unto or hear, either in common churches or private chapels or oratories, commonly called the fervice of the church,) (4) or fhall preach, The penalty declare or fpeak any thing in the derogation or depraving of the faid for depraving book, or any thing therein contained, or of any part thereof, (5) and (hall S he book of be thereof lawfully convicted, according to the laws of this realm, byp™™, verdict of twelve men, or by his own confeffion, or by the notorious evi- dence of the fact, fhall lofe and forfeit to the queen's highnefs, her heirs and fuccefibrs, for. his firft offence, the profit of all his fpiritual benefices or promotions coming or arifing in one whole year next after his convic- tion : (6) And alio that the perfon fo convicted, fhall for the fame of- fence fuffer imprifonment for the fpace of fix months, without bail or mainprife. Seel. 5. " And if any fuch perfon once convict of any offence, concern- The penalty ing the premiffes, fhall after his firft conviction eftibons offend, and be for the fecor.d thereof in form aforefaid lawfully convict, that then the fame perfon fhall offence, for his fecond offence fuffer imprifonment by the fpace of one whole year, (2) and alfo fhall therefore be deprived, ipfo faRo, of all his fpiritual pro- motions ; (%) and that it fhall be lawful to all patrons or donors of all and fingular the fame fpiritual promotions, or of any of them, to prefent or collate to the fame, as though the perlon or perfons fo offending were dead, Se5L 6 7 8 Common $wet* The penalty Sett. 6. " And that if any fuch perlbn or peribns, after he fhall be twice for the third convicled in form aforeiaid, fhall offend againft any of the premiffes the offence, third time, and fhall be thereof in form aforeiaid lawfully convicled, that then the perfon fo offending and convicled the third time, fhall be de- prived ipfo fatto, of all his lpiritual promotions, and alio (hall fuffer im- prifonment during his life. The penalty Sett 7. " And if the perfon that (hall offend, and be convicled in form of an offender a f ore f a ic], concerning any of the premiffes, (hall not be beneficed, nor having no fpi- j iave an y fpj r itual promotion, that then the fame perfon fo offending and itua promo- ^^j^ q^i f or trie (i r ft offence fuffer imprifonment during one whole year next after his faid convidlion, without bail or mainprize. Sett. 8. " And if any fuch perfon, not having any fpiritual promotion, * after his firft conviclion (hall eftfoons offend in any thing concerning the premiffes, and fhall in form aforefaid be thereof lawfully convicled, that then the fame perfon fhall for his fecond offence fuffer imprifonment du- ring his life. The forfeiture Seel. Q. " And it is ordained and enacted by the authority aforefaid, of them which That if any perfon or peribns whatfoever, after the faid feaft of the nati- do any thing, y j ty Q f g c j ^ n ^aptift next coming, fhall in any enterludes, plays, the derogation f° n g s ' rhymes, or by other open words, declare or fpeak any thing in the of the book derogation, depraving or defpifing of the fame book, or of any thing of Common therein contained, or any part thereof : (2) or (hall by open facl, deed, Prayer. or D y p e n threatnings, compel or caufe, or otherwife procure or main- Cauiing or. er . parfon, vicar or other minifter in any cathedral or parifh church, prayer to be . { r ' . re faidor fun-r. or in chapel or in any other place, to (ing or fay any common or open Cokepl. fol. prayer, or to minifter any facrament otherwife, or in any other manner 3 02 - and form than is mentioned in the faid book ; (3) or that by any of the * Md 5 68 ^ a '^ n " eans ma ^ unlawfully interrupt or let any parfon, vicar or other mi- nifter in any cathedral or parifti church, chapel, or any other place, to fing or fay common and open prayer, or to minifter the facraments, or any of them, in fuch manner and form, as is mentioned in the faid book •, Theforfeiture (4) that then every fuch perfon, being thereof lawfully convicled in form of an hundred aDO vefaid, (hall forfeit to the queen our fovereign lady, her heirs and fuc- n»arksfor the ff for the firft offence an hundred marks. iult ortence. ' ait - _ . . .__ „ - f . Sett. 10. " And it any perion or perions being once convict of any fuch offourhun- offence, eftfoons offend againft any of the laft recited offences, and (hall dred marks for in form aforefaid be thereof lawfully convicl ; that the fame perfon fo the fecond of- offending and convicl, (hall for the fecond offence forfeit to the queen our tence. fovereign lady, her heirs and fucceflbrs, four hundred marks. Theforfeiture Sett. ii. " And if any perfon, after he in form aforefaid fhall have for the third been twice convicl of any offence concerning any of the laft -recited offen- effence. ceSj f} ia u offend the third time, and be thereof in form abovefaid lawful- ly convicl, That then every perfon fo offending and convicl, fhall for his third offence forfeit to our fovereign lady the queen, all his goods and chattels, and fhall fuffer imprifonment during his life. The penalty Sect. 12. " And if any perfon or perfons, that for his firft offence con- ii toe party ' cerning the premiffes fhall be convicl in form aforefaid, do not pay the furn Common f^apet. 6 79 fum to be paid by virtue of his conviction, in fuch manner and form as comifted do the fame ought to be paid, within fix weeks next after his conviction ; not P a y his that then every perfon fo convift, and fo not paying the fame, fhall for •^ t " r ? the fame firft offence, inftead of the faid fum, fuffer imprifonment by the time limited, fpace of fix months, without bail or mainprize. Sect. 13. " And if any perfon or perfons, that for his fecond offence concerning the premifies fhall be convict in form aforefaid, do not pay the faid fum to be paid by virtue of his conviction and this eftatute, in fuch manner and form as the fame ought to be paid, within fix weeks next after his faid fecond conviction, That then every perfon fo convicted, and not paying the fame, fhall for the fame fecond offence, inftead of the faid fum, fuffer imprifonment during twelve months, without bail or main- prize. Sect. 14. " And that from and after the faid feaft of the nativity of Ever y P erfon St. John Baptift next coming, all and every perfon and perfons inha- , * h '„ ^ t0 biting within this realm, or any other the queen's majefty's dominions, nthe holv fhall diligently and faithfully, having no lawful or reafonable excufe todays Gcdboit be abfent, endeavour themfelves to refort to their parifh church or chapel m8. pi. 191. accuftomed, or upon reafonable let thereof, to fome ufual place where 0ne J uftl " common prayer and fuch fervice of God fhall be ufed in fuch time of let, t h e offender upon every Sunday and other days ordained and ufed to be kept as holy cjf,.-.by3jac.'i. days, and then and thereto abide orderly and foberly, during the time c. 4- feft. 27. of the common prayer, preaching, or other fervice of God there to be 2 Ro '- 43 8 > ufed and miniftred ; (2) upon pain of punilhment by the cenfures of &e March Q , church, and alio upon pain that every perfon fo offending fhall forfeit The forfeiture for every fuch offence, twelve pence, to be levied by the church-wardens fomot coming of the parifh where fuch offence fhall be done, to the ufe of the poor of t0 church, the fame parifh, of the goods, lands and tenements of fuch offender, by ** C( J Z ' £ '' way of diftrefs. , r i. 89.' Seel. 15. " And for due execution hereof, the queen's moft excellent majefty, the lords temporal and all the commons, in this prefent parlia- ment affembled, do in God's name earneftly require and charge all the archbifhops, bifhops and other ordinaries, that they fhall endeavour themfelves to the uttermoft of their knowledges, that the due and true execution hereof may be had throughout their diocefe and charges, as they will anfwer before God, for fuch evils and plagues wherewith Al- mighty God may juftly punifh people for neglecting this good and whole- fome law. Sect. 16. " And for their authority in this behalf, be it further enacled The ordinary by the authority aforefaid, That all and fingular the faid archbifhops, may punilh bifhops and all other their officers exercifing ecclefiaftical jurifdi&ion, as ° h ft e e "^ r ^ of well in place exempt as not exempt, within their diocefs, fhall have full the c turch. power and authority by this act, to reform, correct and punifh by cen- fures of the church, all and fingular perfons which fhall offend within any their jurifdictions or diocefs, after the faid feaft of the nativity of St. John Bapift next coming, againft this act and ftatute •, any other h:w, fta- 4 tute 680 Common $wcr. tute, privilege, liberty or provifion heretofore made, had or fuffered to the contrary notwithftanding. Whichjudices Sect. 17. " And it is ordained and enacted by the authority aforefaid, may punifh That all and every juftices of Oyer and Determiner, orjuftices of afTize, fhall thefe offences. j iave f u ji p 0W er and authority in every of their open and general feffions, to enquire, hear and determine all and all manner of offences that fhall be committed or done contrary to any article contained in this prefent act, within the limits of the commiffion to them directed, and to make procefs for the execution of the fame, as they may do againft any perfon being indicted before them of trefpafs, or lawfully convicted thereof. A bilhop may Sect. 1 8. " Provided always, and be it enacted by the authority afore - joinwith the f a id, That all and every archbifhop and bifhop, fhall or may at all time juftices to en- anc i t i m es, at his liberty and pleafure, join and afTociate himfelf, by virtue q !"' re , of of this act, to the faid juftices of Oyer and Determiner, or to the faid juftices of afTize, at every of the faid open and general feffions to be holden in any place within his diocefs, for and to the enquiry, hearing and deter- mining of the offences aforefaid. At whofe $ ect - I 9- " Provided alfo, and be it enacted by the authority afortffid,That charges the the books concerning the faid fervices fhall, at the cofts and charg :t the booksofCom- parifhioners of every parifh and cathedral church, be attained . mon Prayer b e f ore the faid feaft of the nativity of St. John Baptift next foil fliall begotten. an ^ t ^ t a jj ^^ p ar jftj CS anc | cathedral churches, or other places, where the faid books fhall be attained and gotten before the faid feaft of- the nativity of St. Join Baptift, fhall, within three weeks next after the faid books fo attained and gotten, ufe the laid fervice, and put the fame in ufe according to this act. Within what Sect. iQ. " And be it further enacted by the authority aforefaid, That time offenders no perfon or perfons fliall be any time hereafter impeached or otherwife fliall be im- mo l e fl:ed of or for any of the offences above-mentioned, hereafter to be Godbolt 148 committed or done contrary to this act, unlefs he or they lb offending be ; pl. 191. ' thereof indicted at the next general feffions to be holden before any juftices of Oyer and Determiner, or Juftices of affize, next after any offence committed or done contrary to the tenor of this act. Trialof peers. Sect. 21, " Provided always, and be it ordained and enacted by the au- thority aforefaid, That all and Angular lords of the parliament, for the third offence above-mentioned, fhall be tried by their peers. Chief officers Seel. 22. "Provided alio, and be it ordained and enacted by the of cities and authority aforefaid, That the mayor of London, and all other mayors, bailiffs boroughs fhall an j ot her head officers of all and Angular cities, boroughs and towns offenders corporate within this realm, Wales, and the marches of the fame, to the which juftices of affize do not commonly repair, fhall have full power and authority by virtue of this act, to enquire, hear and determine the offences abovefaid, and every of them, yearly within fifteen days after the feaft of Rafter, and St. Michael the archangel, in like manner and form as juftices of affize, and Oyer and Determiner may do. TheorJinarv's £ f ^ 2 ^ "Provided always, and be it ordained and enacted by the 3t r " d 1~ '" authority aforefaid, That all and figular archbifhops and bifhops, and every Common ptapct. 68 1 every of their chancellors, commiffaries, archdeacons, and other ordinaries, having any peculiar ecclefiaftical jurifdiclion, (hall have full power and authority by virtue of this act, as well to enquire in their vifuation, fynods, and elfewhere within their jurifdiclion, at any other time and place, to take accufations and informations of all and every the things above-mentioned, done, committed, or perpetrated within the limits of their jurifdidtions and authority, and to punifh the fame by admonition, excommunication, fequeftration or deprivation, and other cenfures and procefs in like form, as heretofore hath been ufed in like cafes by the queen's ecclefiaftical laws." Self. 24. " Provided always, and be it enacted, That whatfoever perfons *r , - H . offending in the premiffes, fhall for their offences firft receive jitmnhmerit punched of the ordinary, having a teftimonial thereof under the faid ordinary's above once feal, (hall not for the fame offence eftfoons be convicted before the juttices: (or oneof- (■2) and likewife receiving for the faid offence, punifhment firft by the fence ' juttices, fhall not for the fame offence eftfoons receive punifhment of the ordinary, any thing contained in this aft to the contrary notwithftand- ing." Se£l. 25. " Provided always, and be it enacled, That inch ornaments Ornaments of of the church and of the minifters thereof, fhall be retained and be ufed, the church aud as was in this church of England, by authority of parliament, in the fecond rainiftcrs. year of the reign of king Edward the fixth, until other order fhall be therein taken by the authority of the queen's majefty, with the advice of her commiffioners appointed and authorized under the great feal of Erg- land for caufes ecclefiaftical, or of the metropolitan of this realm." Seel. 26. " And alfo that if there fhall happen any contempt or irreve- rence to be ufed in the ceremonies or rites of the church, by the mif-ufing of the orders appointed in this book, the queen's majefty may, by the like advice of the faid commiffioners or metropolitan, ordain and publifh fuch further ceremonies or rites as may be moft for the advancement of Gcd's glory, the edifying of his church, and due reverence of CbriJVs holy myfteries and facraments." Seel. 27. " And be it further enacted by the authority aforefaid, That AI1 )aws amJ all laws, ftatutes and ordinances, wherein or whereby any other fervice, ordinances idminiftration of facraments or common prayer, is limited, eftablifhed, or made for fet forth to be ufed within this realm, or any other the queen's dominions 0lher fwfct, or countries fhall from henceforth be utterly void and of none effect. ia vo ' dl Made perpetual by 5 Anna, c. 5. as to the ejlabl'ijlment of the church." ©tOt. 13 ti? 14 Car. 2. c. 4. [A. D. 1662.] made among other purpcfes, " for the uniformity of publick prayers, and adminiftration of facraments, and other rites and ceremonies." Sett. 7. " And be it further enacted by the authority aforefaid, That in Incumbent? of all places where the proper incumbent of any parfonage, or vicarage, livings, keep- or benefice with cure, doth refide on his livinp-, and keep a curate, '"B curates » Vol. t N*. XXIX. 4 S = the^*- 682 Common praw* prayer once the incumbent himfelf in pe*fon ("not having fome lawful impediment to every month, be allowed by the ordinary of the place") fhall once ("at the leaft) in every month, openly and publickly, read the common prayers and fervice in and by the faid book prefcribed, and (if there be occafionj adminifter each of the facraments, and other rites of the church, in the parifh church or chapel, of, or belonging to the fame parfonage, vicarage or benefice, in fuch order, manner and form, as in and by the faid book is appointed; Tne pena ty .■* upon p a j n to f or f c ic the fum of fiye pounds to the ufe of the poor of and manner or ^ > f r . r r conviction for the parifh tor every offence, upon conviction by eonretilon, or proof or not doing it. two credible witneffes upon oath, before two juftices of the peace of the county, city or town corporate where the offence {hall be committed, (which oath the faid juftices are hereby impowered to adminifter)-, and in default of payment within ten days, to be levied by diftrefs and fale of the goods and chattels of the offender, by the warrant of the faid juftices, by the churchwardens, or overfeers of the poor of the faid parifh, rendering the furplufage to the party." CO N F E S S I O N, is when a prifoner is appealed or indicted of treafon or felony, and brought to the bar to be arraigned, and his indictment is read unto him ; and the court demands what he can fay thereto-, then either he eonfejfes the offtnce, and the indictment to be true, or pleads Not guilty, or elfe gives an indirect anfwer, and fo in effect ftands mute. Confejfion may be made -in two forts, and to two feveral ends. The one is, he may confefs the offence whereof he is indicted openly in the court, before the judge, and fubmit himfelf to the cenfure and judgment of the law, which confejfion is the moft certain anfwer and beft fatisfaction that may be given to the- iudge to condemn the offender ■, fo that it proceeds freely of his own ac- cord, without any threats, force or extremity ufed. For if the confejfion arife from any of thefe caufes, it ought not to be recorded. As if a wo- man was indicted for the felonious taking of bread to the value of two fhillings, and being thereof arraigned, fhe confeji the felony, and faid, That fhe did it by the commandment of her hufband ; and the judges, in pity, would not record her confejfion, but caufed her to plead Not guilty to the felony -, whereupon the jury found that fhe Mole the bread by compulfion of the hufband againft her will, for which caufe fhe was difcharged. 27 AJff.pl. 50. The other kind of confejfion is, when a prifoner eonfejfes the indictment to be true 5 and that he committed the offence whereof he is indicted 3 Confefftott. 68 3 indicted, and then becomes an approver, that is, an accufer of others, -who have committed the fame offence whereof he is indicted, or offences with him i and then prays the judge to have a coroner affigned him, to whom he may make relation of thofe offences, and the full circumftances thereof. There is alfo a third kind of confeffion made by an offender in felony, which is not in court before the judge, as the other two are; but before a coroner in a church, or other privileged place, upon which the offender, by the ancient law of the realm was to abjure. Cowell, edit. 1727. Confeffion, according to fome writers is twofold, either cxprefs or im- plied. An exprefs confeffion is, where a perfon directly confeffes the crime with which he is charged, which is the higheft conviction that can be. 2 Haw. 333- But it is ufual for the court, efpecially if it be out of clergy, to advife the party to plead and put himfelf upon his trial, and not prefently to re- cord his confeffion, but to admit him to plead. 2 H. H. 225. An implied confeffion is, where a defendant in a cafe not capital, doth not directly own himfelf guilty, but in a manner admits it by yielding to the king's mercy, and defiring to fubmit to a fmall fine •, which fubmiffion the court may accept of if they think fit, whithout putting him to a direct confeffion. 2 Haw. 233. It fcems that the confeffion of the defendant, taken upon examination before juftices of the peace, or in difcourfe with private perfons, may be given in evidence againft the party confeffing, but not againft others. 2 Haw. 429. All thole who on their examination own themfelves guilty of a felony alledged againft them, and are charged in their mittimus with the felony fo confefied, feem to be excluded from bail ; for bail is only proper where it ftands indifferent whether the party be guilty or innocent. 2 Haw. 97. Contytrarp, CONSPIRACY, notwithstanding that in Latin and French it is ufed for an agreement of men to do a good or evil thing, yet it is com- monly taken in our law in the evil part-, and is defined in Stat. 33 Ed. 1. ft. 2. in which Statute it is confounded with maintenance and champerty ; but in a more fpecial fignification it is taken for a confederacy between two or more, falfly to indict one, or to procure one to be indicted of felony. Termes de la ley. 4 S 2 Ey, 684 Confpi'racp. By the common law there can be no doubt, but that all confederacies whatfoever, wrongfully to prejudice a third perlbn, are highly criminal ; as where divers perfons confederate together by indirect means to im- poverifh a third perfon, or falfely and malicioufly to charge a man with beino- the reputed father of a baftard child, or to maintain one another in any matter whether it be true or falfe. i Haw. igo. @tat. 33 Ed. i. ft. 2. [A.D. 1304. Intituled] A definition of con- fpirators, made Anno 33 Edw. 1. fiat. 2. and A. D. 1304. " Who be confpirators, and who be champertors." 23 H. •.{. i!. « Confpirators be they that do confeder or bind themfelves by oath, Fitz Barr«, 4. COvcnant) or other alliance, that every of them (hall aid and bear the other Fuz.Ccmfp ■>. f alle ty and malicioufly to indite, or caufe to indite, (2) or falfly to move 4, 5, io, 13," or maintain pleas; (3) and alfo fuch as caufe children within age to appeal 14. J5. 16, men of felony, whereby they are imprifoned and fore grieved ; (4) and 19,21,22, fuch as retain men in the country with liveries or fees for to maintain 8 r _ their malicious enterprifes ; and this extendeth as well to the takers as to V. N.B.-6. the givers. (5) And ftewards and bailiffs of great lords, which by their F. N. B. 117. feignory, office, or power, undertake to bear or maintain quarrels, pleas, H - or debates that concern other parties than fuch as touch the eftate of their Ra /V 2Z * orc ' s or themfelves. (6) This ordinance and final definition of confpirators 3 Inft. i 5 43 2 .' was made and accorded by the king and his council in his parliament the thirty-third year of his reign. (7) And it was further ordained, that juftices affigned to the hearing and determining of felonies and trefpafies, fhould Whobecham- have the tranfcript hereof. (8) Champertors be they that move pleas and pertors. fuits, or caufe to be moved either by their own procurement, or by others, and fue them at their proper cofts for to have part of the land in variance, or part of the gains. From this definition of confpirators it feems clearly to follow, contrary to the opinion of lord Coke, that not only thofe who actually caufe an inno- cent man to be indicted, and alfo to be tried upon the indictment, where- upon he is lawfully acquitted, are properly conipirators, but that thofe alfo are guilty of this offence, who barely confpire to indict a man falfely and malicioufly, whether they do any ad in profecution of fuch confpiracy or not. 1 Haw. 189. Lord Raym. 1169. But an aSlion will not lie for the confpiracy, unlefs it be put in execution, for in fuch cafe the damage is the ground of the action. Lord Raym. 378. Alfo it plainly appears from the words of the ftatute, that one perfon atone cannot be guilty of a confpiracy, within the purport of it; from whence it follows, that if all the defendants who are profecuted for fuch 3 confpiracy be acquitted but one, the acquittal of the reft, is the acquittal of that one alfo : And upon the fame ground it hath been holden, that no hich profecution is maintainable againft a hufband and wife only, becaufe they are eft eemed but as one perfon in law : But it is certain that an action on the cafe, in the nature of a confpiracy, may be brought againft one 4 only Conspiracy. 685 only : Alfo, it hath been refolved, that if fuch an action be brought againft feveral perfons, and all but one be acquitted, yet judgment may be given againft that one only, i Haiv. 192. The hufband and wife and fervants were indicted for a confpiracy to what is evi- ruin the trade of the profecutor, who was the king's card-maker. The denceof a con- evidence againft them was, that they had at feveral times given money to fp i,ac y- the profecutor's apprentices to put greafe into the pafte, which hadfpoiled L^'^q ' 44 ' the cards. But there was no account given, that ever more than one at a R( ! x v.c p e ec time were prefent, though it was proved they had all given money in their al\ turns. It was objected, that this could not be a confpiracy, for two men might do the fame thing without having any previous communication with one another. But the chief juftice ruled, that the defendants being all of a family, and concerned in making cards ; it would amount to evi- dence of a confpiracy, and directed the jury accordingly. She was indicted at Hicks' 's- ball, for confpiring with Edward Bygrave, One confpira- unjuftly to charge William Frankland with a robbery, and for that purpofe tor may be going before a juftice of peace, where Bygrave fwore it upon him ; onvifted after Niccholls only came in and pleaded Not guilty. And the jury found that ^ ' j* er Ihe was guilty, but that Bygrave died before the indictment was preferred. 2 Stran. 1227. But before any judgment was given at the feffions, fhe brought a certiorari, Eaft. 18 Geo. and the caufe was fet down to be argued. The firft thing determined was, 2 - Rex v - that this being in the nature of a fpecial verdict, there was no occafion for t. ■• z T e . t I h the defendant appearing in court upon the argument, for (he is not con- fidered as convicted, till after the court have determined upon the verdict. And it was therefore not within the reafon of the cafe of moving for a new trial, or in arreft of judgment, where there being a general verdict, it created fuch a prefumption of guilt, that the party cannot move, without being prefent in court. It then came on upon the merits ■, when exception was taken, that one alone cannot be guilty of a confpiracy, and here is but one convicted •, but the court over-ruled this on the authority of Kinnerjly's cafe where judgment was given againft him before the other had pleaded ; fo that there was a poflibility of contradictory verdicts, which cannot be here. And I cited 1 Vent. 234. 24 Ed. 3. 34. b. 24 Ed. 3. 73. a in point. But then a doubt arofe, what the court could do, the certiorari being brought before judgment. And this court, not being apprized of the circumftances of the offence, could not tell what judgment to give : and In Carth. 6. it is faid, they cannot givejudgment. A. rule therefore was made to fhew caufe why the certiorari mould not be quafhed, fo as to remit it back to the feffions •, which was afterwards made abfolute. Information, fetting forth, that the defendants Kinnerfley and Moore Confpiracy being evil diipoied perfons, in order to extort money from my lord Sun- m3y h be derland did confpire together to charge my lord with endeavouring to Over^aftTnd commit Sodomy with the faid Moore; and that in execution of this con- if one be con- fpiracy, they did in the prefence and hearing of feveral perfons falfely and rifled, judg- malicioufly accufe my lord that he conatus fuit rem habere with the defendant ment fta " °\ Moore, and to commit fodomy. The defendant Kinnerjly only appears, fimbefo^e'ihe and ujalcfthe 686 Conf^'ratf. ■other, i Stran. an d pleads to ifTue, and is found guilty, and now ieveral exceptions were 193. Trm. ^ken in arreft of" judgment. Rex v° Kin- Brantbwayte feijeant : The nature of the offence mud appear upon the nerfely and record, for by that only the court muft judge, and the offence muft be parti- Moo:e. cularly and certainly alledged. Conatusfuit is incertain, for it might only be an aft of the mind which before it was put in execution was fupprefed by rea- fon. 1 Roll. Rep. 79- 2 Bulji. 276. In an action for words, per quod mar itagi- um ami/it, the plaintiff declared, that whereas he intendebat et conatusfuit to marry fuch a woman, the plaintiff fpoke of him fuch words per quod, &c. and this was held to be incertain and the judgment was arretted. 2. It mould appear upon the record, that the party accuied is innocent ; for it is no crime to charge a guiky peribn with fuch an offence. They fhould have averred, ubi revera et in faclo henon conatusfuit to do the aft with which he was charged. Hut. 1 1, 49. In actions for a malicious profe- cution, the plaintiff muft fhew the former action to be determined, and how ; fo likewife he muft fhew an acquittal upon an indiftment. 1 Keb. 881. 3. " To every confpiracy there muft be two perfons at leaft j whereas here is only one brought in and found guilty. If hereafter the other fhould be found Not guilty, that will coniequently be an acquit- tal of Kinnerfley. If three be indicted for a riot and an a/fault, and one only found guilty, and the others acquitted ; this difcharges them all, becaufe the riot is the foundation, and the aflault only the confequence. Salk. 593. And one perfon alone cannot be guilty of committing a riot : So in this cafe one cannot be guilty of the confpiracy, though he may of the overt aft •, and yet the foundation (which is the confpiracy ) being removed, the other part, which is only the confequence, falls of courfe. Comyns: Bare words are not a fufficient overt aft, without alledging fomething aftually done towards putting the confpiracy in execution, 4 Co. 16. a. 1 Roll. Abr. 110. p. 6. 9 Co. 56. b. For if there be only words, an action of fcandalum magnatum lies. If the charge on my lord was by courfe of law, then the defendants are juftified, till it is falfified in a legal manner, either by ignoramus or acquittal. 1 Rol. Abr. 1 13, 1 14. R. 2. And the court will not fuffer the party accufed to bring his action, till he has manifefted his innocence ; becaufe otherwife there might be contradictory judgments, for the parties might be condemned in an ac- tion for that profecution, which they might afterwards eftablifh ; and then thefe two judgments would be inconfiltent. 3 Keb. ygg. The offence with which my lord is charged is no crime puniihable by our law : For a bare endeavour (which is the moft that is alledgedj to ■do fuch an act, is not punifhable in the temporal courts. And the only reafon why it is actionable, to fay of a woman that fhe had a baftard, is, becaufe fhe is puniihable for it by 18 Eliz. c. 3. and 7 Jac. 1. c. 4. Poph. 36. Nor is it actionable then, unlets it appears the parifh was charged. Salk. 694. So to fay fne keeps a bawdy-houfe, becaufe the com- mon law punifhes a perfon. Cro. Car, 329. And yet it is not actionable to caH Conspiracy* 68 7 call a woman a bawd, which is only an offence cognizable in the fpiritual court, i Ven. $•$. If Moore mould die, be pardoned, or acquitted, how can the other be guilty of a confpiracy ? Cro. El. 701. 1 Ven. 234.. 3 Keb. 11 1. 1 Saund. 228. 2 Keb. 476. 1 Xi?£. 284. 1 Rol. Abr. \\\. pi. 5. Adjoumatur ; and at another day Rave in anfwer to the objections argued. 1. As to the conatus being uncertain. This goes to their own charge ; from which we would not vary, but were obliged to lay it as we could prove it. We could not lay, that he faid my lord did the act, when he only faid he endeavoured to do it. The cafe in 1 Rcl. Rep. 79. and 2 Bidft. 276. is not applicable to this. There it was in the plaintiff's power to have been more particular, and the words were not actionable without a fpecial damage: he fhould have fhewn a treaty and communi- cation between himfelf and the lady •, whereas he only fays he intended and went about to marry her, and it does not fo much as appear fhe knew any thing of the matter. In many cafes it is actionable to charge a man with a bare attempt to do an unlawful act. Cro. El. 6. You lay in wait intending to murder A. You laid gunpowder under my window minding to burn my houfe. Cro. EL 191. You agreed to hire a man to kill me. 2 Lev. 205. 1 Ven. 323. In actions for words the plaintiff may make his own cafe ; but we were obliged to follow the defendant, and lay the overt act as it was. If an indictment be imperfect, yet if it be recited in an action as it is, it will be fufficient. 47 El. 3. 16, 17. 2. They object, here is no overt act. Is not the affirmation one ? Surely it is. But if it be not, yet we infift there was no occafion to lay any. The confpiracy is the git of the charge, and the other only matter of aggravation, of which the defendant may be acquitted, and found guilty of the confpiracy notwithstanding. 1 Ven. 304. 1 Sid. 174. 1 Lev. 125. So 1 Lev. 62. 1 Keb. 203, 254. A confpiracy to charge a man with being the father of a bartard child was held well laid, without any overt act. 27 Ajf.pl. 44. 16AJf.pl. 62. There were differences in opinion as to this matter formerly, but now the law is fettled. 3. Say they, no judgment fball be given againft Kinnerfley, becaufe poffibly Moore may be acquitted, and that will be an acquittal of both. This is arguing from what has not happened, and probably never will; for though Moore may have an opportunity to acquit himfelf, and is noc concluded by the verdict as Kinnerfley is ; yet as the matter now Hands, Moore himfelf is found guilty ; for the confpiracy is found as it is laid, and therefore judgment may be given againft one before the trial of the other. As 4.E. 3. 34. b. Bro. Confpiracy 21. 1 Ven. 234. 3 Keb. 1 1 1. 24 E. 3. 73. a. Paf. 7 Ann. B. R. Regina v. Heme. There the indictment was, that he with A. et muliis aliis, did confpire to accufe B. that be did attempt to commit fodomy. The grand jury found the bill as to Heme, with an ignoramus as to A. Heme was convicted, and then it was moved in arreft of judgment, that there being an ignoramus as to A. Heme could not be guilty of confpiring with him. But the whole court over-ruled the exception.;, 688 Coafpteacy* exception, and faid it was fufficient, being found that he, cum muhis aliis, did confpire, and that it might have been laid fo at firft •, and Heme was fined forty marks, and let in the pillory. My lord chief juftice of the common pleas, that now is, was of counfel in that cafe ; and he quoted a caie where feveral were indicted for a riot, cum midtis aliis, two only were found guilty ; and it was objected, that there mult be three to make a riot •, but upon the cum multis aliis, judgment was given againft the defendant. 4. Another exception is, that we have not averred that my lord is innocent of the fad charged upon him ; it is exprefsly laid, that the de- fendants d\d faljly charge, which could not be, if the accufation was true. T'rin. a,. Ann. Regina v. Beft, Salk. 174, 376. indictment fetting forth, that the defendants faljb confpiraverunt to charged, with being the father of a baftard child. On demurrer the exception was, that there was no aver- ment that A. was not the father •, and upon great confederation and fearch of precedents, the indictment was held good. A difference was taken in an indictment for perjury, where you muft aver the oath falfe ; and alio in actions for a malicious profecution, where it muft appear the party was innocent, to intitle him to damages. F.N. B. 114, 115. Raft. 117. 5. The laft exception is, that the offence charged is not punifhable in the temporal courts. We deny that. Attempts of this nature have been pu- nched, and fo have confpiracies to do a lawful act, which is ftronger than this cafe. The whole court were unanimous in over-ruling all the exceptions : And Powys J. quoted a cafe in Godb. where a man was punifhed for an attempt to pick a pocket. And Eyre J. remembered captain Rigby, who was pilloried for an attempt to commit fodomy. And he quoted Trin. 1 1 V/. 3. Rex v. Sudbury & al', where four were indicted for a riot, two found guilty, and the other two acquitted ; and this was held to be a difcharge of .them all, though it had been otherwife if it had been laid turn midtis aliis. And Hill. 2 Ann. Rot. 17. is a cafe to the fame purpofe as the Queen and Beft. Et per Forte/cue j.falfis allegantiis is in the commif- fion of Oyer and 'Terminer. And Holt chief juftice held in Beft's cafe, that an attempt to do an act cognizable in the fpiritual court was punifhable here. In for confcienti* the attempt is equal with the execution of it, and there is a great difference between being found Not guilty and not being found guilty. Whereupon judgment was given for the king ; and after- wards the court proceeded to fentence, and told the defendant, nothing but his being a clergyman protected him from a corporal puniftiment. They fined him 500/. a year's imprifonment, and to find fureties for his good behaviour for feven years. In Eafter term, 5 Geo. Moore was con- victed and fentenced to ftand in the pillory, fuffer a year's imprifonment, and to find fureties for feven years. And this term Kinnerjley, on affida- vits of his being indifpofed, moved the court that he might be admitted to the benefit ot the rules. Sed per curiam, We never do it for one in ex- . ecution, which differs from the cafe of perfons committed for high trea- fon, who have been bailed on account of illnefs. Indict- Confpfracp. 6« 9 Indictment for confpiracy to indict for a capital offence was laid, " That Indiftmentfor the defendants did wickedly and malicioufly (omitting the word faljly) con- a CC ^P'^>' fpire to indict and caufe to be indicted W. G. for a crime or offence % ,& e e ia. M (omitting to fpecify what crime) liable by the laws of this kingdom to omitted io the be punilhed capitally: And that they, according to the confpiracy afore- ytyfch^geoi' faid between them as aforefaid before had, did afterwards falfly, wicked- thecc:il i ,: ''-i- ly and malicioully indidt him, &c." fpecifying the very indictment itfelf; which appeared to be for a capital crime. This is a good indictment -, although the word faljly is not added to the firlt charge of the confpi- ring, nor the particular crime there fpecified : And although it is not laid that the faid IV. G. was acquitted of it. See the following cafe. The defendants had been convicted of a confpiracy to c 1 arge a perfon * Cur Rep. with a capital felony; and the record of convicYion had been removed ^ 7,c - "•'• up hither by certiorari ; but not the perfons of the defendants. And ^\ x v e s pr agg Mr. Serjeant Davy being ready, on behalf of the defendants, to move in ana anothw. arrejl of judgment, Mr. Gould, pro Rege, objected to his going on with the motion ; for that the defendants ought to be perfonally prefent. And he cited the cafe of Rex v. Elizabeth Niccholls, (2 Strange 1227.) which was exactly the fame offence as this •, and it was agreed " That after comic- tion, the perfonal prefence of the defendant is neceffary upon fuch a mo- tion as this." Serjeant Davy, for the defendants, attempted to explain away this rule ; and urged that the defendants were fafe in cuftody al- ready, and therefore amenable to the juftice of the court; and offered that the defendant's clerk in court mould undertake to bring the defen- dants up, at the defendants own expence, in cafe the objection mould not prevail. But the fecondary of the crown-office being applied to, al- ledged " That the rule was as Mr. Gould had afferted." The court held this to be a fixed and invariable rule of practice in this court, " That the defendants muft, after convitlion of fuch an offence as this, be prefent in court, if they would move in arreft of judgment." Serjeant Davy find- ing the opinion of the court, and the allegation of the fecondary of the crown-office to be fo directly againft him, as to the abfolute neceffty of the perfonal prefence of the defendants, prayed a habeas corpus to bring up their bodies; which was granted : And he afterwards renewed his morion, and had the defendants in court. Note — This cafe of a conviction differs from that of a fpecial verdict, where the prefumption of innocence may be r uppofed to continue, and therefore the perfonal prefence of the defen- dant is not neceffary at the argument of it. Afterwards in Eajler Term, the defendants (who were father and 2 Bur. Rfp. daughter) being in court, it appeared that they had been convicted of a 993- conspiracy, upon the followingindictme.it; That John Spragg of, £rV. mill-wright, and Mary. Elizabeth Spragg of, &c. fingle woman, being per- fons of an evil mind and wicked difpofition, and devifing and intendino- to deprive one Walter Gilmore of his good name, credit and reputation ; and alio to fubject the faid Walter Gilmore, without any juflr caufe, to the lofs of his life, and forfeiture of" his goods and chattels, lands and tene- ments, upon the 31ft day of July in the 30th year of the reign of our Vol. I. N° XXIX. ' 4 T Lord 6 go Cottfpfracp* Lord George the Second, king of Great Britain, and fo forth, and at di- vers other times and days theretofore, at New Sarum in the county of Wilts, and at divers other places within the county aforefaid, wickedly and malicioufly did conspire, combine and agree among themfelves, to indiil and caufe to be inditted the faid Walter Gilmore, for a crime or offence liable by the laws of this kingdom to be punifhed capitally, and to profecute the faid Walter Gilmore upon fuch indictment. And the jurors aforefaid, upon their oath aforefaid, alfo prefent, That the faid John Spragg and Mary -Elizabeth Spragg, according to the confpiracy, combination and agreement aforefaid between them as aforefaid before had, afterwards, to wit, on the faid thirty-firft day of July in the faid thirtieth year of the reiga of our faid now lord the king, at the feffion of Oyer and Terminer of our faid lord the king, then holden at New Sarum aforefaid in and for the faid county of Wilts, before the honourable Sir Richard Adams knight, one of the barons of his majefty's court of Exchequer, Edward Willes one of his faid majefty's ferjeants at law, and others their fellows, iuftices of our faid lord the king, afllgned by letters patent of our faid lord the king un- der the great feal of Great Britain [prout in the faid letters patent com- mi'Tioning them to hear and determine] by the oath of [naming the grand jury] good and lawful men of the county aforefaid, then and there fworn and charged to enquire for our faid lord the king for the body of the faid county, falfly, wickedly and malicioufly, and without any reafonable or pro- bable caufe, did indicl and caufe to be indicted the aforefaid Walter Gil- more, by the name of Walter Gilmore late of the borough and town of Marlborough in the county of Wilts, bookfeller and ftationer, for that he unlawfully and unjuftly devifing and fraudulently intending to get and obtain to himfelf unjuft lucre, and to defraud our prefent fovereign lord king George of certain duties, granted by certain ftatutes lately made and provided, and payable to our faid lord the king, and to diminifh the public revenue in this behalf, after the making the ftatutes in fuch cafe lately made and provided •, and after the fecond day of Augufl in the year of our Lord one thoufand feven hundred and twenty-fix, that is to fay, on the third day of May in the twenty-ninth of the reign of our fovereign lord George the Second, by the grace of God of Great Britain, France and Ire- land king, defender of the faith, at the borough and town aforefaid in the county aforefaid, by force and arms, unlawfully, knowingly, fraudu- lently and felonioufly did counterfeit and forge a ftamp, to refemble a certain ftamp which had before been there duly provided, made and pub- lifhed in purfuance of the ftatutes in fuch cafe made and provided, and which was then and there ufed in purfuance of the faid ftatutes, to ftamp vellum, parchment and paper charged, by virtue of the faid ftatutes in fuch cafe made and provided, with the payment to our faid now lord the king, of the duties of fixpence and fixpence, thereby then and there to defraud our now faid lord the king of the duties of fixpence and fixpence, granted by the ftatutes in that behalf lately made and provided, and then payable to our now faid lord the king •, againft the form of the ftatutes in fuch cafe made and provided, and againlt the peace of our faid now lord the tfonfpfrftc?; 6 9 1 the king, his crown and dignity. And alio [laying, by another count, the counterfeiting the two ftamps, by the faid Gilmore, another way :] And alfo that [it then goes on, and charges that they indicted Gilmore with knowingly uttering two fuch counterfeit fixpenny ftamps.] And that rise faid Gilmore— [laying the uttering them another way.] And that the faid Gilmore — [Then follow other counts laid by them againft him, for coun- terfeiting and knowingly uttering treble fixpenny ftamps.] The prefent defendants, Spragg and his daughter, were convicted at the alTizes, upon this indiflment for the confpiracy, laid in the manner juft men- tioned. However, no judgment was there given ; but it was adjourned at the firft and alfo at the fubfequent affizes, " quia curia nondum advi- fatur." The record of this conviction was at firft removed, without their perfons : For which reafon the former motion could not proceed. Bur this omilTion was afterwards rectified : The record was removed by cer- tiorari ; and the defendants were alfo brought up by habeas corpus. Where- upon, on Saturday 26th April 1760, Mr. Serjeant Davy moved for the opinion of this court •, or (in effect) in arre'l of judgment, (the defendants being prefent in court.) He made two objections ; viz. ift, It is alledoed in the charge itfelf, " That the defendants confpired falfly to indict Gil- more" 2dly, Nor does it appear in the faid charge, of what particular crime or offence they confpired to indict him. 'Tis only charged in general, " That " they did wickedly and malicioufly (without adding falfly) confpire to " indict and profecute him for a crime or offence liable to be capitally " punilhed by the laws of this kingdom." Both thefe matters are effen- tially neceffary, and cannot be fupplied by any thing that goes before or comes after. Firft point. Confpirators are thofe only who confederate themfeh-es falfly and malicioufly to indict, or caufe to indict. The ftatute of 33 Ed. 1. (intitled " A definition of confpirators") defines confpirators in thefe very terms. 1 Hawk. P. C. 189. 2 Infi. 562. Regifler 134. a. b. 135. ac- cordingly, F. N. B. title Writ of Confpiracy, folio 114, in old edit. (260 in Hale's edit.) accordingly. So Rajlal's Entries 123 to 127, title Confpi- racy. So Co. Entries 109. tit. Confpiracy. And Pulton 232 a. 233. b. but par- ticularly 232. b. title, Writ of Confpiracy. So Iikewife it is faid by Juftice Ri- chardfon, in Tailor and Towlm's cafe, Godbolt 444. All thefe authorities prove that the words "falfly and malicioufly" are neceffary even in z. count. Hale's Hifl. P. C. 2d vol. p. 183. fays, " That the fame certainty is required in an in- " ditlment for goods, as in trefpafs for goods ; and that certainty is much " more neceffary in an inditlment than in trefpafs." 2 Hawk. P. C. 225. c - 2 5- § 59- P roves alf° that indictments muft be certain. IV eft's Prece- dents, 2d part, title, Indictments and Offences, p. 102. b. § 97. is an in- dictment for a confpiracy falfly, &c. to indict. The prefent indictment is only " That they wickedly and malicioufly confpired to indict this man : Which may be true ; and yet it might not be falfly. It muft be both ma- licious and falfe •, to make it indictable as a confpiracy. The offence con- fifts in the unlawful agreement to indict falfly and malicioufly : And fuch an unlawful agreement " malicioufly to indict falfly," would be indict- 4 T 2 able 692 Confpt'tacp. able, though never carried into execution. But nothing more than the malicious agreement " to indict this man" appears in the charge itfelf of this indictment. Second point. As the charge itfelf is only general, the fetting forth the indictment verbatim, afterwards, can not help this defect in the charge. There are two inftances of villainous judgment being awarded. 27 /Iffize, pi 29. fo. 141. b. (by inqueft ;) 46 Affize, 1 1 fo. 307. a. (by indictment.) But in neither of them does it appear that the confpiracy was for a capital offence : It is only faid " That they were attainted of confpiracy" Hawk. P. C. lib. 1. c. 72. § 9. under the title Confpiracy, fays, " That he, who " is convicted at the iuit of the king of a confpiracy to accufe another of " a matter which may touch his life, fhall have the villainous judgment, " which is given by the common law, and not by any ftatute." And the villainous judgment is certainly the proper judgment, where the confpi- racy is " to indict for a capital crime." But then the capital offence ought to be explicitly fet forth. " A crime liable to be punifhed capitally is not enough, without fpecifying what capital crime. For this is a mat- ter of law j and therefore the Jury are not the proper judges of this. And the want of this allegation, it it be omitted in the charge of the confpi- racy itfelf, can not be fupplied by any thing that proceeds or comes after. The confpiracy itfelf is the offence indictable, though no indictment be drawn up or found, or any thing done in purfuance of fuch confpiracy. And if there was no fuch confpiracy, then there could be no indictment ac- cording to it. So that the charge itfelf is here inefficient. But if thefe fub- fequent words could be connected with it, yet at moft-it is a charge by way of implication only, not a clear direcl pofitive charge. He therefore inlifted upon thefe two things •, 1 ft, This is a charge of a mere confpiracy " to indict" only ; not of a confpiracy to indict falfly : and if it be not good, no judgment can be given upon this infufficient indictment. 2dly, It cannot be made good by any implication, if not pofitively and directly al- ledged at firft. 2 Hawk. P. C. p. 227. c. 25. § 60. is exprefs to this purport. Hale H.P.C. 2d vol. 182, 183. 4.C0. 44. b. Faux' s cafe (for poifoning Nicholas Ridley.) Stamford P. C. lib. 2. title Enditement, ir. 31. p. 96. b. is exprefs " that an indictment is not good which muft have an argument or implication to make it it good." Certainty in indictment is the fubject's fecurity. The precedents in Tremaine 82 and 85. are not fuch precedents as that any thing can be collected from them. Mr. Could contra pro Rege. The term " confpiracy" is always taken in mala parte. So it appears by the Regifter. There is but one count in this indictment •, and the whole of it muft be taken together as one charge: it is not to be feparated and divided, one part of it from another. It confifts of the inducement, the charge itfelf, and the recited indictment, (which is fet forth verbatim). This is an indictment at common law. 2 Inft. 562. fays, " The ftatute of 33 (or as he fays it really was, the 21) " Ed: 1. intitled, a definition of confpirators, is an affirmance of the com- " men law." In 6 Mod. 186. Rex et Regina v. Bejl, per Holt, " A confpi- " fpiracy ' late loquendoj or a confederacy to charge one fal/ly (withoi t 4 more) Confpi'tacp. 693 " more) is a crime ; though it be not an indictment for a formed con- " fpiracy, Jlriclly fpeaking -, which requires an infamous judgment and " \ofe of liberam legem. No 'villainous judgment has been given, fi nee the time of E. 3. In F. N. B. fo. 253. 8vo Edit, of 1 704. (and alfo of 1 7 1 8) the form of the writ is " OJienfur' quare confpiratione inter eos prahabitd, " pr as in the hamlets about the "Tower, the juftices, by reafon of the increafe of build- ings where there was formerly but one conftable, did choofe five : and it was ruled they might do fo ; and they feemed to incline, that though formerly there had been none, yet they might choofe one, if they fhould think it convenient. 1 Bac. Ab. 439. 1 Mod. 13. S. C. 2 Keb. 557. S. C. Information againft K. for refuling to take the oath of a conftable of the hundred, been chofen in the leet. The defendant pleads that W. is an ancient borough, and that they have a leet there, and ufed to choofe thtir own officers, £5?. within the borough. The queftion was, whether the living within the jurifdiction of an inferior leet, Jhould exempt a mm from being chofe high conftable in the hundred. Hale Ch. J. faid the cafe will be very different if this be really a borough, and if it be an upland town; for formerly in England every hundred ufed to fend their jury, and every borough to fend four men of their own, and conftables were before the ftatute, but that gives them view of armour ; and he faid that the fuperior leet (hall not meddle in the inferior of matters inquirable there, unlefs it be in cafe of omiflion-, but he faid, a conftable of an hundred was an article that the inferior court could not meddle in, becaufe it is an office that ex- tends beyond their jurifdiclion, and fo judgment was againft the defendant nifi. Freem. Rep. 348, 349.^/. 443. Mich. 1675. Keen's cafe. And an information was brought againft King for refufing the office of a conftable of Nortonferris, within which was an ancient borough that had a leet, viz. Wincanton, and he pleaded that he being within, and refident in the leet of the borough, ought not to do the office of conftable of the hundred; but judg- ment was given againft him •, and it was faid, that if there were a fpecial cuftom to be difcharged, it might be good. 3 Keb. 197, 230, 231. Trin. cs? Mich. 25 Car. 2. B. R. King v. King. A fpecial verdict found that within the manor of the hundred of Farn- ham, there are feveral other manors belonging to divers lords, the inhabi- tants whereof ufed to be elected for the faid hundred •, they find alfo that there is the manor of the town of Farnham, within the manor of the faid hundred, in which there is a court-leet, and that the defendant is an inhabi- tant within the faid town of Farnham, & non alibi ; and that no inhabitant of the town of Farnham ever ferved as high conftable for the hundred of Farnham. The queftion arifing upon the fpecial verdict was, whether the 4 U 2 defendant 7 oo Conftable. defendant being in a particular leet, is excufed from ferving as high conftable of the hundred? And on debate the court held, that he is not excufed. ii Mod. 215. pi. 3. Pafcb. 8 Ann. B. R. the Queen v. Jennings is a different cafe. S. was prefented conftable by the homage of a leet in Effex, the fteward refufed to fwear him •, and nominated and fwore in his place one R. The juftices of peace at the Quarter feffions, upon an examination into this matter, ordered thai S. fhould ferve the office and fwear him accordingly •, this order was removed by a certiorari, and exception was taken to it, that the juftices had intermeddled in a matter of which they had no conufance ; for the appointment and fwearing of a conftable did properly belong to the lord of the leet. Per Cur. The election of a conftable properly belongs to the homage, and though the juftices of peace have not originally the making of a conftable, yet this is a matter of the peace within their general jurifditlion, and they have power to examine this matter at the feffions ; and asto the fwearing of a conftable, any finglejuftice of the peace may do it; and the order was confirmed. 2 Jones 212. Trin. ^^Car. 2. B. R. The King v. Stephens. Seffions may choofe a conftable, and the order here appointing him to take the oaths is an election of him, &c. Per tot. cur. He may be a per- fon not living within any leet. And per Holloway J. they might have com- pelled him to take the oaths by increafing his fine. Comb. 20. Trin. 2 Jac. B. R. Anon." The fleward of the leet ufually certifies under his hand what perfon is chofe, which certificate is carried to a juftice of peace, and if the party re- fute, the jujlice fends his warrant to compel him, but the fteward may, du- ring the court, fwear the conftable as well as a juftice of peace after. 5 Mod. 128. Mich. 7 W. 3. in the cafe of Fletcher v. Ingram. At common law, all conftables were chofen at the leet, and where there is no leet, at the torn, but whether by the fteward or the homage has made a great queftion, but without queftion, a corporation of common right might not choofe a conftable ; by cuflom they may, but then they muft prefcribe for it. Per Holt. 2 Salk. 502. pi. 2. Mich. 8 W. 3. B. R. The King v. Barnard. The village of C. having no conftable, the juftices by order of feffions appointed one to ferve there-, and per Holt Ch. J. The juftices have all along exercifed this power, and the court will intend they have a fufficient authority for it, but the 13 C3 5 14 Car. 2. cap. 12. gives them authority to do it only in particular cafes. 1 Salk. 175, 1y6.pl. 2. Trin. 11 W. 3. B. R. The village of Charley's cafe. 1 High conftables are removable as well as petty conftables, and the juftices of peace at feffions are the beft judges of that matter; per cur. 1 Salk. 150. pi. 19. Pafcb. 4 Ann. B. R. in the cafe of the Queen v. White. The mayor of A. fet up a cuflom, that the court-leet there ought to make a lift every year of five perfons to be prefented to the mayor, and that he ought to choofe Conftable. '01 tboofe one out of them for conftable, and that the jury fhould choofe the other out of the remaining four : Now this year the jury had made no lift, but the parifhioners chofe conftables themfelves. Upon the mayor's applying to the ieffions, they made an order of difcharge of one of the conftables, and that the mayor's conftable, whom he nominated in default of the jury's giving him a lift, fhould be confirmed. The court now quafhed this order, for they faid, the only ftatute that gives the juftices power at all, in relation to conftables, is the ftatute of 13 Of 14 Car. 2. cap. 12. / 15. And that aft gives juftices power only to put in conftables in default of the court leer, but does not impower them to difcharge conftables already put in. Accord- ingly the order was quafhed. Bernard. Rep. in B. R. 51. Pafch. 1 Geo. 2. The King v. Burden and Wakeford. By flat. 1 Geo. i.Ji. 2. c. 13. High conftables are to take the oaths of allegiance, fupremacy and abjuration, as other perfons who qualify for offices. „ ^ Stat. 7 Jac. x. cap. 5. If any action is brought againft a conftable, for any CO nilab!e i3 thing done by virtue of his office, he, and alio all others which in his aid, favoured and or by his command, fhall do any thing concerning his office, may plead proteded in the general iffue, and give the fpecial matter in evidence, and if he recovers hls c ? c !' f or he fhall have double cofts. ncejeft 0/* Stat. 21 Jac. 1. cap. 12. fed. 6. An action brought againft a conitable, duty, headborough, or tithingman for any matter done by virtue of their office, fhall be laid in the county where the faft was committed, and not elfe- where. Stat. 34 Geo. 2. cap. 44. feel. 6. No action fhall be brought againft any conitable or other perfon acting by his order, or in his aid, for any thing done in obedience to the warrant of a juftice of the peace, until demand hath been made, or left at the ufual place of his abode, by the party, or by his attorney, in writing, figned by the party demanding the fame, of the perufal and copy of fuch warrant, and the fame hath been refilled or neglected for fix days after fuch demand: And if after compliance, any fuch action fhall be brought, without making the juftice who figned fuch warrant defendant, on producing and proving fuch warrant at the trial, the jury fhall give their verdict for the defendant, notwithftand- ing any defect of jurifdiction in the juftice. And if fuch action be brought jointly againft the juftice and conftable ; on proof of fuch warrant, the jury fhall find for the conftable, notwithftanding fuch defect of jurifdiction as aforefaid ; and if the verdict be given againft the juftice, the plaintiff fhall recover his cofts againft him, to be taxed in fuch manner by the pro- per officer, as to include fuch cofts as the plaintiff is liable to pay to fuch defendant, for whom fuch verdict fhall be found as aforefaid. Seel. 8. " No action fhall be brought againft any conftable, but within fix months after the act committed. Stat. 27 Geo. 2. cap. 20. feci. 2. The conftable executing a juflice's warrant for levying a penalty, or other fum of money directed by any aft of parliament, by diftrefs, may deduct his own realbnable charges of taking, keepings 7C2 conftable. keeping, and felling the goods deftrained ■„' returning the overplus Oft demand, after fuch penalty or fum of money, and charges dedutted. C. was indicted, for that a burgarly was committed in the night byperfons unknovm ; and J. S. gave notice to him being conftable, and required him to wake hue and cry, and he refufed, but becaufe he did not Jhew the place of ■notice, the party was difcharged. Cro. E. 654. pi 16 Hill. 41 Eliz. B. R. Crowther's cafe. Another exception was taken to the matter of the indictment, becaufe it has been adjudged, that an hundred fhall not be charged with a robbery committed in the night, for they be not bound to give attendance : no more ought a conftable to do it in the night. But all the court held the indict- ment to be good notwithftanding ; for it is not like the cafe of an hund- red, becaufe it is the conjlable's duty upon notice given unto him prefently to furfue. Cro. E. 16, iy.pl. 16. Hill. 41 Eliz. Crowther's cafe. Several conftables were indifted for refujing to execute the warrant of a juftice of peace, directed to them to apprehend one for a contempt, and the in- dictment was allowed. 2 Roll. Rep. y%. Hill. 16 Jac. B. R. Colema?i'$ cafe. A conftable is not fuable out of the county for what he does in execution of this office. Held per cur\ Sty. 293. Mich. 1653. B. R. Anon\ The defendant being a conftable was inditled, for that he contemptuoufly and voluntarily negletled to execute diverfa prxcepta et warranta diretled tt him by juftices of peace under their hands and feals, but it was quaftied, becaufe it did not fet forth the nature and tenor of the warrants, for, unlefs the defendant can know what particularly he is charged with, he cannot tell how to make his defence. Vent. 305. Hill. 28 &? 29 Car. B. R. Burrough's xafe. In an habeas corpus and certiorari for the body of J. S. who had been imprifoned for not paying of a fine of 20/. fet at the quarter- fefiions, the return was, that he being conftable, and demanded by the court to prefent an highway, which was fworn before him by two witnefies to be ■tut of repair, faid in contempt of the court, that he could not prefent it ; for which apd certain other contemptuous words, a fine was fet on him. The court were of opinion, that the fine was not well fet; for conftables are to prefent upon their own knowledge, and the two witnefies fhould have been carried to the grand jury ; for the conftable was not obliged to prefent upon their teftimony. Vent. 336. Pafch. 31 Car. 2. B. R. Anon*. Motion to quafti an indictment againjl divers inhabitants in Derby, for refujing to meet and make a rate upon the fever al parifhes in Derby to pay the conftables tax ; firft, becaufe they are not compellable, but the ftatute only fays that they may, fo they have their eleftion, and no coercion fhall be ; fed non allocatur ; for may in the cafe of a publick officer is tantamount to (hall, and if he does not do it he (hall be puniftied upon an information, and though he may be commanded by a writ, that is but an aggravation of his contempt-, but the court refufed to quafti it. Skinner 370. pi. 17. Mich. 5 JV. t?. M. in B. R. The king v. The inhabitants of Derby. Cottftabie. 703 If a jujiiee of the peace adjudged that to be an offence which is no offence, the inferior officer (hall anfwer, as if one be adjudge the putative father of a baftard, where after it appears to be born in matrimony, this is void, G? coram non judice, &c. Per Holt Ch. J. Skin. 445. Trin. 6 TV. & M. in B. R. In cafe of Crump v. Holford. A leet may jet a fine on a conftable, but the feffions cannot. 5 Mod. 96. Trin. 7 TV. 3. in a nota at ihe end of the cafe of The King v. Harpur. Falfe imprifonment againft a conftable for executing a warrant of Sir James Butler, after be was out of the commiffion of the peace. Per fi/clt, conftable at his peril is to take notice, that his warrant is by one in com- miffion v but all the favour we can do is, fince it was a warrant executed a day or two after Sir James was out of commiffion, that if he has behaved himfelf honefily and civilly, to be mild to him, and he faid, the conftable ought to fhew the juftice of peace's commiffion, though heretofore it was held, common reputation would be enough ; and here the conftable can- ing out of his own parijh to execute the warrant, betrays his officioufnefs. ti Mod. 347. Mich, u TV. 3. Normondv. Mills. On Tuefday 19th June laft, Mr. Afhurjl moved in arreft [of judgment, £f a fl "'J, after verdict for the king, upon an indictment againft a conftable for a conftable for a mifdemeanor. The charge in the indictment was, That he, being one of mi demeanour the conftables of St. Martins in the Fields, and being in the execution of in wilfully fuf- his faid office, as head of the nightly watch of the faid parifh, did wil- f" in 8 a l ° re ,' fully and unlawfully fuffer Margaret Prince, being a loofe, idle, lewd and ^jforderly wo- diforderly perfon, taken up by Robert Miller, one of the nightly watch man, taken up of the fame parifh, between one and two o'clock in the morning, as a by one of the common ftreet-walker, &c. to efcape out of his cuftody, before fhe could ni £ ht '}' walch be carried before a juftice of the peace, to be dealt with by the juftice ",1™™"^ according to law. am j delivered' The whole indictment was (in fubftance) thus — That one Robert Mil- to him for fafc ler, being lawfully appointed one of the nightly watchmen of and for the cufio ">'- ,0 faid parifh, and being in his office and place as fuch, performing his duty f ."*/*? ° r- r 1 1 ° r r a B 8 ' llr l t ( fg riotoufly, and walking the ftreets there to pick up men, in breach of his 8o7 y rin ' . majefty's peace ; and did then and there take, lead and convey the faid y 33 Geo 2. Margaret Prince in his cuftody, to a certain prifon called the watch-houfe Rexv.Booti*. in the faid parifh, and did there deliver her in cuftody unto one John Bootie, who then and there was one of the conftables of the faid parifh, and then and there being in the execution of his faid office of fuch conftable as the head of the nightly watch of the faid parifh •, and did then and there leave and deliver up her the faid Margaret Prince in charge with the faid John Bootie, fo being fuch conftable as aforefaid, and in the execution of his faid office as aforefaid; and did then and there charge and request the faid John Bootie fo being fuch conftable as aforefaid, to keep and detain the faid Margaret Prince so being fuch loofe, idle, lewd and diforderly psrfbn 704- Conftable. perfon, and a common ftreet-walker walking the ftreets, there to pick up men as aforefaid, in his custody, u n t i l the faid Margaret Prince could be carried and conveyed into cuftody before fome one of his ma- jefty's juftices affigned to keep the peace in and for the faid city and li- berty, there to be dealt with by fuch juftice according to law for her faid offence and breach of the king's peace : Neverthelefs, the defendant fo beino-, &c. not regarding the duty of his office, &c. unlawfully and wil- fully difcharged her out or his cuftody, before that fhe had been carried be- fore any juftice, &c. and would not keep or detain her in his cuftody for the purpofe aforefaid, but wilfully fuffered and permitted her to efcape and go at large, i£c. Upon which indictment the defendant having been tried, and a verdict found againft him ; Mr. Ajhurft prayed a rule to fhew caufe why the judg- ment fhould not be arrefted upon the following objection : — That it is not charged that the defendant knew that fhe was a ftreet-walker, &c. as this indictment defcribes her to be : Nor indeed is it pofitively charged " that fhe was one." And if fhe was not liable to be detained by him, he would have fubjected himfelf to an action for falfe imprifonment, ;/ he had detained her. It ought to have exprefsly charged " that fhe was fo ;" and that " fhe was delivered to him as fuch." Mr. Norton and Mr. Stow now fhewed caufe againft arrefting the judg- ment. They infifted that the expreffions " being" and " so being" are fufficient allegations " that fhe was fo •, and that fhe was delivered to the defendant as fuch." And as this is after verdict, it muft be taken to have been proved at the trial. It is almoft impoMible that he could be igno- rant of it : and if he really was fo, he might have pleaded it. Mr. Aflourfl and Mr. Norton, contra The being after ver die! is no anfwer, in a criminal cafe •, whatever it may be in a civil one. Indictments mull be pofuive and certain, on the face of them. But this indictment does not fufficiently fhew that fhe was lawfully in the cuftody of the con- ilable. i Hale's Hijl. P. C. defines what is lawful cuftody. This is no po- fitive allegation " that fhe was delivered to him as a loofe, idle and dis- orderly perfon." She might, in fact, be a loofe, idle and diforderly woman, &c. and yet not delivered to him as such. It was at his peril to detain her, unlefs he was well fatisfied that fhe was liable to be detain- ed, i Salk. 272. Dominus Rex v. Fell is in point, That the defendant is not liable for the efcape of a perfon not committed to his cuftody as char- ged with a crime. Mr. Norton in reply to the cafes cited, infifted that the term " being" is a fufficient averment of the fait. Lord Mansfield and Mr. Juft. Benifon did not come into court till to- wards the end of the motion : they therefore remained filent. Mr. Juftice Foster Fell's cafe was treafon : It was an indictment againft him, as keeper of Newgate, for negligently fuffering the efcape pf a perfon, being in his cuflody, charged with high treafon. But would not that have been fufficient ground to have indicted him for a mifdemea- nour ? eattftabtt. ****— 705 ttour ? And the prefent cafe is a mifdemeanour," and fufficiently charged upon the defendant. The peace of this city can never be preferved unlefs watchmen are fupported in doing their duty. Mr. Juftice Wilmot 1 think it is a mifdemeanour in the conftable to difcharge an offender brought to the watch-houfe by a watchman in the night •, though without any pofitive charge. But, in the prefent cafe, I think that this is -a. Sufficient allegation of the fact of her being fuch a per- fon, and of her being delivered to the defendant as fuch a perfon as fhe is defcribed to be. Per Cur. The Rule " to mew caufe why the judg- ment Ihould not be arretted," was discharged. For other matters, fee atceff, Commitment, CountHate, Miceg of peace* Contncttotu THE power of a juftice of the peace is in reftraint of the common law, and in abundance of inftances is a tacit repeal of that famous claufe in the great charter, that a man fhall be tried by his equals-, which alfo was the common law of the land long before the great charter, even for time immemorial, beyond the date of hiftories and records. There- fore generally nothing fhall be prefumed in favour of the office of ajuftice of the peace ; but the intendment will be againft it. Therefore where a fpecial power is given to a juftice of the peace by aft of parliament to convict an offender in a fummary manner, without a trial by jury, it muft appear that he hath ftriftly purfued that power ; otherwife the com- mon law will break in upon him, and level all his proceedings. There- fore where a trial by iury is difpenfed withal, yet he muft proceed never- thelefs according to the courfe of the common law in trials byjuries, and confider himfelf only as conftituted in the place both of judge and jury. Therefore there muft be an information or charge againft a perfon ; then he muft be fummoned or have notice of fuch charge, and have an op- portunity to make his defence ; and the evidence againft him muft be fuch as the common law approves of, unlefs the ftatute fpecially direc- teth otherwife •, then, if the perfon is found guilty, there muft be a con- viction, judgment and execution, all according to the courfe of the com- mon law, direfted and influenced by the fpecial authority given by the ftatute •, and in the conclufion, there muft be a record of the whole pro- ceedings, wherein the juftice muft fet forth the particular manner and circumftances, fo as if he fhall be called to account for the fame by a fu- perior court, it may appear that he hath conformed to the law, and not exceeded the bounds prefcribed to his jurifdictia'n. 1 Burn's Jufi. 364- Vol. I. N?. XXX. 4 X Con- 2pb Cotitrittfoti. Conviction for profane fwearing quafhed, being prajiitit facramenlum, in the preterperfect tenfe. It was held good in fubftance, being for fwear- ing 150 oaths in his verbis, videlicet, By G — •, and curfing 150 curfes in his verbis, videlicet, G — damn you ; without repeating each 150 times. 6 2. c. 10. all the realm : Sett. 2. " For future redrefs whereof, Be it enadted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament affembled, and by authority of the fame, That this enfuing claufe contained in a ftatute made i6Car.i.c.i9. in the fixteenth year of king Charles the Firft, intituled, An ail for the Aclaufethere- better ordering and regulating of the office of clerk of the market, allowed and m re P ealcd - confirmed by this ftatute, and, for the reformation of fa Ij e weights and meafures, (by way of provifo, viz.) That fuch meafure as is commonly called water- meafure, in any ports, maritime towns, or other places, fhall be ftill ufed and continued as formerly the fame hath been (any thing in this ftatute contained to the contrary hereof inany wife notwithftanding) ffiall, from and after the nine and twentieth day of September one thouland fix hun- dred and feventy, be and ftand nulled and repealed, as to the meafuring, felling or buying of any fort of corn or grain ground or ungrcund, 1 r fait within the kingdom of England, dominion of Wales, or town of Ber- ivick upon Ttreed; (2) And that if any perfon or perfons, after the time aforefaid, fhall fell any fort of corn or grain, ground or unground, or any kind of fait, ufually fold -by the bufhel, either in open market, or any other place, by any other bufhel or meafure, than that which is agree- Vol. I. N° XXX. 4 Y able 714 CO?tt» able to the ftandard marked in his majefty's exchequer, commonly called Winchefter t j ie Winchejler meafure, containing eight gallons to the bufhel, and no more £ e Je ufed or lefs ' and the faid bufliel ftrucken even b y the wood or brim of the fame by the feller, and fealed, as this act directs, he or they (hall forfeit Forfeiture for f or every fuch offence the fum of forty millings ; (3) to be levied in fuch offending a- mannet . } anc j f ucn other penalties for want of diftrefs to be inflicted, as in gain ' and by the laid former aft is directed, by the warrant or order of any one . PenaI , t y en ' or more of his majefty's juftices of the peace within the county, city or 2 ,Car.2 ^c.i2. place where fuch offence dial! be committed ; which faid juftices respec- tively are hereby required and enabled to fee thisftatute duly executed. The penalty SeSl. 3. " And be it likewife further enacted by authority aforefaid, of mayors and That if any mayor, or other head officer of any city, borough or corpo- all other offi- ra tion, or liberty within this kingdom of England, dominion of Wales, CSrS tT'uf'of or town °f Berwick upon Tweed, ihall knowingly and wilfully permit or anv other fuffer any perfon or perfons within their refpective limits or jurifdi&ions, tneafiire. to fell or buy any fort of corn or grain, ground or unground, or fait, by any other bufliel or meafure, or ftrucken in any other manner than is hereby prescribed ; (2) or Ihall fuffer within their refpective limits or ju- risdictions any other meafure to be ufed, than is of the contents aforefaid,. and fealed as this act directs ; (3) or if upon complaint of the breach of this ftatute, he or they (hall not duly puniih and reform the fame accor- ding to the purport thereof-, (4) Then he or they fo offending, for eve- ry fuch offence upon due proof and conviclion thereof by prefentment or indictment before the juftices of the peace of the county where fuch of- fence ihall be committed, at the general feflions of the peace held for the fame, fhall forfeit the fum of five pounds •, (5) the one moiety thereof to the informer or profecutor, the other moiety to the ufe of the poor f the parifh where fuch offence fhall be committed, to be levied by diftrefs and fale of the offender's goods and chattels ; and for default of fuch dif- trefs, by imprilbnment of the perfon or perfons fo offending, till payment thereof made by warrant of the faid juftices. Clerk of the Seel. 4. " And be it further enacted, 1 hat if the clerk of the market market, &c* f n j s majefly's houfe within the verge, or the mayor, or other head of- refufingtofeal ^ ce j orc j Q { t ^ e liberty, or othsr perfon authorized by the laws of the meafure his realm, to mark or feal meafures within their refpective jurifdidtions, fhall Forfeiture. neglect or refufe, being required, to feal or mark any bufhel, half bufliel or peck duly gaged, as is hereby before directed and appointed, fhall forfeit for the firit offence five pounds, and for every other offence, ten Exaaing fees, pounds, to be levied,, as aforefaid j. (2) or if the clerk of the market of how puniih- his majefty's houfe within the verge, fhall take more than the lawful and able> accuftomed fees •, or if any other perfon or perfons ihall exact or take from any perfon more than one penny for the fealing and marking of a bufhel, or more than one half-penny for the fealing or marking of a half bufhel or peck, or more than one farthing for the fealing or marking of any meafure containing one gallon, pottle, quart, pint 01 half-pint, he or they fhall for every fuch offence, upon due proof and conviction there- of, €oin, 715 of, incur the penalties mentioned and contained in the afore- named fta- tute for the faid offence, made in the fixteenth year of king Charles the 16 C*r. 1. c. Firft. '9- Setl. 5. " And to the end that there may be a juft and certain mea- fure (to determine all controverfies) gaged, as this aft direcls, (2) Be it further enacted, That at the charge of fuch perfon or perfons refpeftively, WJ16 mall have the toll or profit of the market, where toll is not taken, wit'iin any city, corporation or market-town within this realm in their refpective jurifdictions, there (hall be before the faid nine and twentieth day of Septemlcr, one meafure of brafs provided, and chained in the pub- A rneafore of lick market-place; (3) upon pain to forfeit and lole, for every perfon f° ^ [ ° b .^ neglecting reipectively, the fum of five pounds, to be recovered and le- ever^publick vied as is by this act directed •, one moiety to the poor of the parifh market place, where fuch offence fhall be committed ; the other moiety to him or them that fhall fue for the fame. Seel. 6. " And be it further enacted by the authority aforefaid, That Condables to all and every conftable or conftables within this realm of England, in their fear r ch l{ ™Y refpective precincts, are hereby impowered and required to fearch and J^e'Tmea'- examine if any perfon or perfons ufe any other meafure than according to f ures> the proportions aforefaid, or fhall ftrike the fame in any other manner than this : act directs, or fell or buy by a meafure unfealed : (2) And in cafe he or they fhall find any fuch unfealed meafure, to ftize and break the fame ; and for that and every other offence againft this act, fhall pre- fent fuch offender at the next private or quarterly feffions to be held for fuch county or place where fuch offence fliall be committed. Setl. 7. " Provided always, and be it enacted, That no perfon or ° nce P anifll - perfons punifhed for any offence by virtue of this .act, fhall be again quef- tioned or punifhed for the fame offence, by virtue or colour of any other act. Sett. 8. " Provided always, and be it further enacted and declared, To!!. That no perfon or perfons whatfoever fhall take any toll, or any thing in lieu thereof, but refpectively according to fuch proportion as the mealures in this act limited and appointed bear unto the meafures whereby the fame have been heretofore ufually taken -, any law, cuftom or ufage, to the contrary notwithuanding." 0tat. 22 cj? 23 Car. 2. c. 12. [A. D. 1670. Intituled] " An additional Enforced by aft for afcertaining the meafures of corn and fait." j? Ann - c - lS - " Whereas notwithstanding there hath been great care taken in a late 2 zCar. 2.c.S. act, intituled, An aft for afcertaining the meafures of com and fait, through- out the realm ; yet the fame is in a great meafure avoided, by felling in private places, as well as in publick markets, by the bag, or without meafuring, by the buyers (baking of the bufhel before it be ftruck -, fo that thofe places who have given obedience to the faid act, are greatly prejudiced, aijd their markets likely to be loft by fuch undue practices : a Y 2 Seff. 7 i6 COJtt- No corn or Sell. 2. ° For prevention whereof, Be it enacted by the king's moft fait (hall be excellent majefty, by and with the advice and confent of the lords fpiri- bought by the tua j arK } temporal, and commons, in this prefent parliament afiembled, and bag without ^ authority of the fame, That every perfon or perfons, who (hall from Forfeiture. ant ^ a ^ cer t ^ e ^ ve an ^ twent!etn day of March next fell or buy any corn ground or unground, or fait by the bag, or without meafuring, being thereunto required, or in any other manner than is by the faid act direc- ted, and that without -making the faid bufhel or meafure by the buyer, fhall forfeit and lofe, befide the penalty of the former act appointed, all corn, grain or fait, bought or fold contrary to this act, or the value there- of, to the perfon or perfons complaining. Sell. 3. " And whereas a great caule of the mifchief hereby intended to be prevented, doth arife by the felling in private places, and fo void- ing, not only the intention of the faid act, but to the great damage of public markets •, (2) Be it further enacted, That upon complaint made to any one or more juftices of the peace, That any kind of corn, ground or unground, or fait, hath been fold or bought, or delivered contrary to this act, the proof fhall lie upon the defendant, to make it appear by lie u otMhe' [ ' ie oatns °f one or more credible witnefTes, That he or they did fell or defendant buy the fame in every refpect, according to this and the faid former act ; when he wherein, if fuch perfon complained of (hall fail, he or they (hall forfeit bought the and lofe as is by this act before directed, to be levied by diftrefs and faLe t° rn f '. of his or their goods or chattels, refloring the overplus by warrant under ' the hand and feal of one or more juftice, before whom he or they fhall be fo convicted : which penalties by this act appointed to be levied, fhall how to be by the faid juftice or juftices be distributed, one half to the poor of the difpofed of. parifh where fuch offence was committed, and the other half to the in- former or profecutor. Where there Sect. 4. " And whereas in all places where markets are holden, there is is no clerk of not a clerk of the market to feal all meafures, as by the former act is di- the market, rected : Be it therefore further enacted, That in every fuch cafe it fhall then what per- anc j ma y ^ i aw f u i f or tne mayor, bailiffs, or head officer, or other per- pointedM feal f° n or perfons who hath the benefit of fuch market ; and they and every the meafures. of them, are hereby authorized and required to feal, or caufe to be fealed, all meafures duly gauged, that fhall be brought unto them for that purpofe; which fealing fhall be as effectual in the law to all intents and purpofes, as if fuch meafure had been fealed by any clerk of the market ; every fuch mayor, bailiff, or head officer, taking no more for fo doing than is by the faid act appointed. This aft fhall Sell. 5. " Provided always, and be it further enacted by the authority not extend to aforefaid, That it fhall and may be lawful for every perfon or perfons, rent com or Dor ji es politic or corporate, or any of them to whom any fait, rent-corn, tit e corn, or t ; t h e _ corn i s referved, or due by any leafe, grant, contract, cuflom or ufage, to receive and take all fuch rent, or other duties of fait and corn, as is or fhall be fo referved, or due, or the juft and full value thereof in ready money, according to the proportion and quantity, and by the like meafures, and in fuch manner, as the fame were due and paid before the beginning Coin. i\i beginning of this parliament; any thing herein, or in any other law cr ftatute, to the contrary in any wife notwithftanding." @)tilt. 5 Geo. 2. c. 12. [//. D. 1732. Intituled] ** An act for amending and making more effectual an act made in the firft year of the reign of king James the Second, intituled, An additional act for the improvement of Tillage." " Whereas by an act made in the firft year of the reign of his majefty 'Jac 1. c. 19. king James the Second, intituled, An additional act for the improvement of tillage, provifion was made for examining and determining the common market prices of midling Englifh corn and grain, which neverthelefs hath been found ineffectual -, therefore for the better afcertaining the common market prices of midling Englifi corn and grain, and for preventing the fraudulent importation of foreign corn and grain, Be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and the commons, in this piefent parliament affembled, and by the authority of the fame, That from and after the firft After 1 June day of June one thoufand feven hundred and thirty-two, it fhall and may '732. juftice* be lawful to and for all and every the juftices of peace, for the feveral and ^ or i ac | en contrary to this act, fhall be forfeited •, and that every offen- fcufhel i ^ er t h ere j n fazM forfeit the fum of twenty fhillings for every bufliel of fuch corn or grain lb tranfported, conveyed or carried forth into the open fea, or veflel and ladert contrary to this act ; and moreover the fhip or veflel, upon which fuch tackle forfei-7 C orn or grain fhall be fo tranfported, conveyed, or carried forth into the **• open fea, or laden, and all her guns, tackle, apparel and furniture fhall be forfeited •, the one moiety of all which penalties and forfeitures fhall be to the king's majefty, his heirs and fucceflbrs, and the other moiety to him or them, who will fue for the fame, to be recovered by action of debt, bill, plaint or information in any of his majefty's courts of record at Wcftminjler, wherein no effoign, protection, or wager of law fhall be Tnree months a |i owe( j . anc ] tnat t h e ma fter and mariners of any fuch fhip or veflel, impnfonment w ] iere j n any f uc h ff en ce fhall be committed, knowing fuch offence, and on hiintintr in . . , J , .... .... , „.,-,. tT ""* 1 t • > 1 r fuch trantpor- wittingly and willingly aiding and afliiling thereunto, and being thereof tation. duly convicted in any fuch court of record as aforefaid, fhall be imprifon- cd for the lpace of three months without bail or mainprize. 2 Stnt. 7*9 Cojn. ®tat ii Geo. 2. c. 22. [//. D. 173S. Intituled] " An aft for punch- ing fuch perfons as (hall do injuries and violences to the perfons or pro- perties of his majeity's fubjects, with intent to hinder the exportation of corn." " Whereas many diforderly and evil-minded perfons have of late fre- Preamble,, quently affembled themielves in great numbers, and committed great vio- lences, and done many injuries to the perfons and properties of his ma. jefty's fubjects, with intent to hinder the exportation of corn, whereby, many of his majefty's fubjects have been deterred from buying of corn and grain, and following their lawful bufinefs therein, to their great lofs and damage, as well as the great damage and prejudice of the farmers and landholders of this kingdom, and of the nation in general ; for the better preventing fuch wicked and diforderly practices, and more eafily and effectually bringing fuch offenders to condign punifhment, Be it enafted by the king's mod: excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this pre- fent parliament affembled, and by the authority of the fame, That if any Per( "° nsu fmg perfon or perfons (hall, from and after the four and twentieth day of June V° f nce . to 1 r 1 r 111 ii- -i -,r 11 1 ,. ■ „ hinder the one thouiand leven hundred and tnirty eight, wilfully and mahcioufly p Urc hafe or beat, wound, or ufe any other violence to or upon any perfon or perfons, carriage of with intent to deter or hinder him or them from buying of corn or grain corn < in any market or other place within this kingdom ; or (hall unlawfully (top or feize upon any waggon, cart or other carriage, or horfe, loaded with wheat, flour, meal, malt or other grain, in or on the way to or from any city, market town, or fea port of this kingdom, and wilfully and malicioufly break, cut, feparate or deftroy the fame, or any part thereof, or the harnefs of the horfes drawing the fame •, or (hall unlaw- fully take off, drive away, kill or wound any of fuch horfes, or unlaw- fully beat or wound the driver or drivers of fuch waggon, cart or other carriage, or horfe, fo loaded, in order to (lop the fame ; or fliall, by cutting of the facks, or otherwife, fcatter or throw abroad fuch wheat, flour, meal, malt or other grain, or (hall take and carry away, fpoil or damage the fame, or any part thereof; every and all fuch perfon and per- fons being thereof lawfully convicted before any two or more juftices of the peace of the county, (hire, ftewartry, riding, divifion, town or place corporate, wherein fuch offence or offences (hall be committed, or before the juftices of the peace in open feflions (who are hereby authorized and impowered fummarily and finally to hear and determine the famej (hajl be fent to the common gaol, or to the houfe of correction, there to con- to be impri- tinue and be kept to hard labour for any time not exceeding the fpace of foned > three months, nor lefs than one month ; and (hall by the fame juftices be alfo ordered to be once publickly and openly whipped by the mailer and publ;ck!y or keeper of fuch gaol, or houfe of correction, in fuch city, market town w lpp€ ' or fea port, in or near to which fuch offence lhall be committed, on the firft; • 720 Committing the like ofl'en ces a iccond time, deflioying granaries or the corn therein, or in veffels, &c. Felony. Provifoes. Satisfaction for fuch da- mages reco- verable from llieliundred, (not exeediog 100 l.J as in cafes of jobbery. Com* firft convenient market day, at the market crofs or market place there, between the hours of eleven and two of the clock. test. 2. " And be it further enacted by the authority aforefaid, That ' if any fuch perfon or perfons fo convicted mail commit any of the offences aforefaid a iecond time-, or if, from and after the faid four and twentieth day of June one thoufand feven hundred and thirty-eight, any perfon or perfons fhall wilfully and malicioufly pull, throw down, or otherwife de- ltroy any ftorehoufe or granary, or other place where corn (hall be then kept in order to be exported •, or fhall unlawfully enter any fuch ftore- houfe, granary or other place, and take and carry away any corn, flour, meal or grain therefrom, or fhall throw abroad or fpoil the fame, or any part thereof-, or fhall unlawfully enter on board any fhip, barge, boar, or veffel, and fhall wilfully and malicioufly take and carry away, caft, or throw out therefrom, or otherwife fpoil or damage, any meal, flour, wheat or grain therein intended for exportation -, every perlon fo offending, and being thereof lawfully convicted, fhall be adjudged guilty of felony, and fhall be tranfported for the fpace of feven years, in like manner as other felons are di reded to be tranfported by the laws and ftatutes of this realm •, and if any fuch offender fo tranfported fhall return to this kingdom before the expiration of the faid feven years, he or fhe (hall fuffer death as a fe- lon without benefit of clergy. Seil. 3. " Provided always, That no attainder for any offence made felony by virtue of this act fhall make or work any corruption of blood, lofs of dower, or difmheritance of heir or heirs. Sect. 4. Provided alfo, That no perfon, who fhall be punifhed for any offence by virtue of this act, fhall be punifhed for the fame offence by vir- tue of any other law or ftatute whatfoever. Sect. 5. " And be it further enacted by the authority aforefaid, That from and after the four and twentieth day of June one thoufand {even hundred and thirty-eight, the inhabitants of every hundred in that part of Greet Britain called England, wherein any fuch offence as aforefaid fhall be committed, Avail make full fatisfaction and amends to all and every the perfon and perfons, their executors and adminiftrators, for the damages they Avail have fuftained, or fuffered by any injury or violence done to their properties by any offender or offenders againft this act-, and that every perfon and perfons, who fhall fuftain damages in their pro- perties by any of the faid offences, fhall and are hereby enabled to fue for and recover fuch his or their damages (the fum to be recovered not exceeding one hundred pounds) againft the faid hundred, who by this act Avail be made liable to anfwer all or any part thereof ; fuch damages to be fued for, levied and raifed in fuch manner and form, and by and under the like methods and directions, as are prefcribed and mentioned in cafes of actions for robberies on the highway, in and by an act made in the i'even and twentieth year of the reign of queen Elizabeth, intituled, An act for the following hue and cry ; and by one other act made in the eighth year of the reign of his prefent majefty, intituled, An act for the amend- ment Cojtt. 72 1 mint of the laws relating to the atlions on the Jiatute of hue and cry, except fo much thereof as relates to giving, leaving, or publifhing notice, or making frelh fuit and hue and cry, or any other matter otherwile provi- ded for by this act. Sett. 6. " Provided neverthelefs, and be it further ena&ed by the au- Cut notice is thority aforefaid, That no perfon or perfons (hall be enabled to recover to be given any damages by virtue of this act, unlefs he or they by themfelves or by wit '"- - , ' !V » their fervants, within two days after fu:h dimage or injury done him br af:er ^mL them by any fuch offender or offenders as aforefaid, fhall give due notice "" * of fuch offence done and committed to one of the conftables of the hun- dred, or to the conftable, borfholder, headborough or tithingman of the town, parifh, village, hamlet or tithing, in or near which fuch fact fhall be committed ; and fhall within ten days after fuch notice give in his or and examina- their examinations upon oath, or the examination upon oath, of his or t'°n "pon oath their fervants being prefent at the time of the fact being committed, or witnin todays, having the care of fuch his or their properties, to which fuch damage or injury fhall be done, before any juftice of the peace of the county, liber- ty or divifion where fuch fact fhall be committed, whether he or they do know the perfon or perfons that committed fuch fact, or any of them ; and if upon fuch examination it be confeffed, that he or they do know the perfon or perfons that committed the faid fact, or any of them, that then he or they fo confeffing fhall be bound by recognizance to profecute fuch offender or offenders according to this act, or otherwife according to the laws of the realm. Set!. 7. " Provided alfo, and be it enacted by the authority aforefaid, if any pre of That where any offence fhall be committed againft this act, and any cf the offenders the faid offenders fhall be apprehended and lawfully convicted of fuch of- be co:lvlcltd fence within the fpace of twelve months after the offence committed ; no n V Jo n '| h 7 VV 1 < j lve hundred or franchife therein fhall in any wife be fubjeft or liable to make hundred »- any fatisfaction to the party or parties injured for the damages he or they leafed, fhall have fuftained ; any thing in this act to the contrary notwithftand- mg. Seel. 8. " Provided alfo, That no perfon, who fhall fultain any damao-e A o- .* j o Actions not to by reafon of any offence to be committed by any offender contrary to this be brought aft, fhall be enabled hereby to fue or bring any action againft any hundred againft t.un- ■where fuch offence fhall be committed, till afrer the expiration of one year (bonder 1, nor unlefs the party or parties fuftaining fuch damage, fhall commence his, her, or their action or fuit within two years next after the offence fhall be committed." For other matters, fee TeaUSCltf, jFOIClfaHfllJJ. ter 2 - Vol. I. N° XXXI. 4 Z CO^OIICr, 722 •■\».) Coroner* CORONER, {coronatcr, a corona) is an ancient officer of this land, (for mention is made of his office in king Jtheljlan's charter to Be- verley, an. 925) and is fo called, becaufe he deals wholly for the king and crown. There are four of them commonly in every county, in fome fewer, and in fome counties but one : they are chofen by the freeholders of the fame, by the king's writ, and not made by letters patent. Crompt. Jurifd. f. 126. This officer, by the ftatute of Weflm. 1. c. 10. ought to be a fufficient perfon, that is, the mod: wife and difcreet knight that beft would and might attend upon fuch an office. There is a writ in the Regift. Nififit miles, f. 177. b. whereby it appears, it was fufficient caufe to re- move a coroner chofen, if he were not a knight, and had not an hundred fhillino-s rent of freehold. The lord chief juftice of the King's Bench is the fovereign coroner of the whole realm in perfon, i. e. wherefoever he is. Lib. Jffifarum, f. 49. Coke, lib. 4. Cafe of Wardens, &c. of Sadlers, f. $j. b. The office of a coroner efpecially concerns the pleas of the crown ; but what anciently belonged to him, read at large in Braclon, lib. 3. trail. 2. tap. 5, 6, 7 fc? 8. Brit ton, cap. 1. Fleta, lib. 1. cap. 18. and Horn's Mirror, lib. 1 . cap. Del office del Coroners. But more aptly for the pre- sent times, Staundf. PL Cor. lib. 1. cap. 51. There are alfo certain fpecial coroners within divers liberties, as well as thofe ordinary officers in every county ; as the coroners of the verge, which is a certain compafs about the king's court, whom Crompt. in his Jurifd. fol. 102. calls the coroner of the king's houfe ■, of whofe authority fee Coke's Rep. lib. 4. /• 46. By certain charters belonging to fome colleges and corporations, they are licenfed to appoint their coroner within their own precincts. Of this office fee alfo 4 Tnjl. fol. 271. Smith de Rep. Angl. lib. 2. cap. 21. and Lamb. Eiren. cap. 3. pag. 380. And of the coroner's of- fice in Scotland, read Skene, verbo Iter. The coroner, though in original later than the fheriff, was neverthelefs very ancient ; he was of the two the greater fervant or officer. His work was to inquire upon view of manflaughter, and by indictment of all felo- nies as done contra coronam, which formerly were only contra pacem, and triable only by appeal •, as alfo he was to inquire of all efcheats and for- feitures, and them to feize ; he was alfo to receive appeals of felonies, and to keep the rolls of the crown pleas within the county. It is evident he was an officer in Alfred's, time ; for that king put a judge to death for fentencing one to fuffer death upon the coroner's record, without allowing the delinquent liberty of traverie. This officer was made alfo by election of the freeholders in their county-court, as the fheriff was, and from amongft the men of chiefeft rank in the county,, and fworn in their pre- fence. Bacon of Government 66. 1 His €oiontt. 723 His name is derived a corona, and fo called, becaufe he is an officer of the crown, and hath conufance of fome pleas, which are called Placita torontilt- 4 Ed. 1. ft. 2. de officio coronatoris [A. D. 1275. Intituled] " Of what things a coroner fhall inquire." " A coroner of our lord the king ought to inquire of thefe things, if he be certified by the king's bailiffs, or other honeft men of the country : Firft, he (hall go to the places where any be flain, or fuddenly dead, or wounded, or where houfes are broken, or where treafure is laid to be found, and fhall forthwith command four of the next towns, or five or fix, to appear before him in fuch a place-, (2) and when they are come Murther. thither, the coroner upon the oath of them fhall inquire in this manner, that is to wit, If they know where the peribn was (lain, whether it were in any houfe, field, bed, tavern, or company, and who were there : Like- wife it is to be inquired, who were culpable either of the aft or of the force, and who were prefent, either men or women, and of what age fo- ever they be ("if they can fpeak, or have any difcretion •,) (3) and how Inquiry of the many ibever be found culpable by inquiiition in any of the manners afore- offenders, faid, they fhall be taken and delivered to the fheriff", and fhall be com- mitted to the gaol ; (4) and fuch as be founden, and be not culpable, A man fourd fhall be attached until the coming of the juftices, and their names fhall "* m - be written in rolls. (5) If it fortune any fuch man be flain, which is found in the fields or in the woods, firft it is to be inquired, whether he were flain in the fame place, or not •, (6) and if he were brought and laid there, they fhall do fo much as they can to follow their fteps that brought the body thither, whether he were brought upon a horfe or in a cart : \y) It fhall be inquired alfo, if the dead peribn were known, or elle a itranger, and where he lay the night before •, (8) and if any be found cul- The murthe- pable of the murther, the coroner fhall immediately go unto his houfe, rcr ' ound cul- and fhall inquire what goods he hath, and what corn he hath in his P*™' graunge ; and if he be a freeman, they fhall inquire how much land he hath, and what it is worth yearly ; and further, what corn he hath upon the ground. (9) And when they have thus inquired upon every thing, they fhall caufe all the land, corn and goods to be valued, in like man- ner as if they fhould be fold incontinently, and thereupon they fhall be delivered to the whole townfhip, which fhall be anfwerable before the juftices for all; (10) and likewiie of his freehold, how much it is worth yearly over and above the fervice due to the lords of the fee •, and the land fhall remain in the king's hands, until the lords of the fee have made 4 Z 2 fine 724. Cojotuc fine for it. (i i) And "immediately, upon thefe things being inquired, the bodies of fuch perfons being dead or flain mall be buried. Perfons Sett. 2. " In like manner it is to be inquired of them that be drown- drowned or ed, or fuddenly dead, and after fuch bodies are to be feen, whether they fuddenlydcad. were fo d rown ed, or flain, or ftrangled by the fign of a cord tied itreight about their necks, or about any of their members, or upon any other hurt found upon their bodies, whereupon they (hall proceed in the form Ero. Coron. abovefaid •, (2) and if they were not flain, then ought the coroner to at- 175. Fnz. tach the finders, and all other in the company. (3) A coroner alio ought 26c 4.36 14-6 t0 i nc l u i re of treafure that is found, who were the finders, and likewife Treafure ' "who is fufpefted thereof; and that may be well perceived where one li- found. veth riotoufly, haunting taverns, and hath done fo of long time ; hereupon he may be attached for this fufpicion by four, or fix or more pledges, if Appeal of he may be found. (4) Further, if any be appealed of rape, he mull: be rape. attached, if the appeal be frefh, and they mult fee apparent fign of truth by efl'ufion of blood, or an open cry made ; (5) and fuch fhall be attach- ed by four or fix pledges, if they may be found : (6) If the appeal were without cry, or without any manifeft fign or token, two pledges fhall be Appeal of fufficient. (7) Upon appeal of wounds and fuch like, fpecially if rhe wounds or wounds be mortal, the parties appealed fhall be taken immediately and Rait" '4- kept until it be known perfectly, whether he that is hurt fhall recover or not; (8) and if he die, the defendant fhall be kept; and if he recover health, they fhall be attached by four or fix pledges, after as the wound is great or fmall. (9) If it be for a maim, he fhall find no lefs than four pledges; if it be for a fmall wound, two pledges fhall fuffice. (10) Alio all wounds ought to be viewed, the length, breadth and deepnefs, and with what weapons, and in what part of the body the wound or hurt is, and how many be culpable, and how many wounds there be, and who gave the wound ; (1 1 ) all which things mull be inrolled in the roll of the co- Trincipals and roners. (12) Moreover, if any be appealed of any aft done, as princi- accefiary. pal, they that be appealed of the force fhall be attached alfo, and furely kept in ward, until the principals be attainted or delivered. (13) Con- cerning horfes, boats, carts, Es?o whereby any are flain that properly are Deodands. called Deodands, they fhall be valued and delivered unto the towns, as Wreck of the before is laid. (14) Concerning wreck of the fea, wherefoever it be fea. found, if any lay hands on it, he fhall be attached by fufficient pledo-es, and the price of the wreck fhall be valued and delivered to the towns. ( x 5) If anv De fufpefted of the death of any man being in danger of life, ^ u ns pe edper he fhall be taken and imprifoned, as before is faid. ( \6) In like manner Hay and cry. huy fhall be levied for all murthers, burglaries, and for men flain, or in 3H. 7. c. 1. peril to be flain, as otherwife is ufed in England, and all fhall follow the iz Ann. ft. 2. huy and fteps as near as can be; and he that doth not, and is convift c> lii - thereupon, fhall be attached to be afore the juftices of the gaol, &V." By flat. 14 Ed. 3. Jl. 1. c. 8. [J. D. 1340] " No coroner fhall be chofen, unlefs he have land in fee fufficient in the fame county, where- of he may anfwer to all manner of people." Stat. Conner. 725 §>tnt 28 Ed. 3. c. 6. [A. D. 1354. Intituled] " Who fhall be coro- ners, and by whom, and where they fhall be chofen." Item it is ordained and accorded, That all coroners of the counties fhall be chofen in the full counties, by the commons of the fame counties, of the molt meet and moft lawful people that fhall be found in the faid counties to execute the faid office ; (2) faved always to the king and other F , lords which ought to make fuch coroners, their feigniories and franchifes." j^, j'-t '°* ©tflt. 25 Geo. 2. c. 29. [A. D. 1752. Intituled] " An act for giving a proper reward to coroners for the due execution of their office ; and for the amoval of coroners upon a lawful conviction for certain mifdemea- nors." " Whereas the office of coroner is a very ancient and necefiary office : and whereas by an act made in the third year of the reign of king Henry 3Hen 7. c.i. the Seventh, reciting that coroners had not, nor ought to have, any thing by the law for their office doing; which oft-time had been the occafion that coroners had been remifs in doing their office : It was ordained, That a coroner mould have for his fee, upon every inquifition taken upon the view of the body flain, thirteen millings and four pence, of the goods and chattels of him that is the flayer and murderer, if he have any goods ; and if he have no goods, of fuch amerciaments as fhould fortune any townfhip to be amerced, for the efcape of the murderer : And whereas the faid fee of thirteen (hillings and four pence, due only upon an inqui- fition taken upon the view of a body flain or murdered, and payable only out of the goods and chattels of the flayer or murderer, or out of the amerciaments impofed upon the townfhip, if the murderer efcape, is not an adequate reward for the general execution of the faid office : To the intent therefore that coroners may be encouraged to execute their office with diligence and integrity •, Be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and tem- poral and commons, in this prefent parliament affembled, and by the autho- rity of the fame, That for every inquifition, not taken upon the view of a Coroner to be body dying in a gaol or prifon, which from and after the twenty-fourth paid :os ' .^ r day of June one thoufand feven hundred and fifty-two, fhall be duly taken t i on Vaken in within that part of Great Britain called England, by any coroner or coro- any townfhip ners, in any townfhip or place, contributory to the rates directed by an contributingto act made in the twelfth year of the reign of his prefent majefty, intituled, the count >' An acl for the more eafy ajfejfmg, collecting and levying of county rates, the ium "' boc" of twenty fhillings-, and for every mile which he or they lhall be com- ing in gaol^ pelled to travel, from the ufual place of his or their abode, to take fuch inquifition, the further fum of nine pence, over and above the faid fum and gd for of twenty fhillings, fhall be paid to him or them out of any monies ari- £Vcr y ">ilehe fing from the rates before-mentioned, by order of the juftices of the peace 1 j' ° . in their general or quarter feffions afTembled, for the county, riding, di- [ b e paid out vifion or liberty where fuch inquifition fhall have been taken, or the ma- of the county jor xates - 726 Coronet. jor part of them, are hereby authorized and directed to make ; for which order no fee or reward fhall be paid to the clerk of the peace or any other officer, and for every SeEf. 2. " And be it further enacted by the authority aforefaid, That inquifition on f or ever y inquifition which, from and after the faid twenty-fourth day of jn^ao^Mth J ufie one tnoi, '" an< ^ ^ even hundred and fifty-two, fhall be duly taken iwpon iuftices'fhall tne v ' ew °f a body dying in any gaol or prifon, within that part of Great think fit ; Britain called England, by any coroner or coroners of a county, fo much money not exceeding the fum of twenty {hillings, fhall be paid to him or them, as the juftices of the peace in their general or quarter feffions afiembled for the county, riding or divifion wherein fuch gaol or prifon is lituate, or the major part of them, fhall think fit to allow, as a re- compence for his or their labour, pains and charges in taking fuch inqui- fition, to be paid in like manner by order of the laid juftices, or the ma- jor part of them, out of any monies arifing from the faid rates •, which or- der the faid juftices of the peace lb afiembled, or the major part of them, are hereby authorized and directed to make •, for which order no fee or reward fhall be paid to the clerk of the peace or any other officer, and for inqui- SeEf. 3. " Provided neverthelefs, That over and above the recompehce fuions on a hereby limited and appointed for' inquifitions taken as aforefaid, the co- body flam, roner or coroners who fhall take an inquifition upon the view of a body l^l b ° Ver fl am or murdered, fhall alfo have the fee of thirteen fhillings and four pence, payable by virtue of the faid aft made in the third year of the reign of king Henry the Seventh, out of the goods and chattels of the flayer or murderer, or out of the amerciaments impofed upon the town- fhip, if the flayer and murderer efcape ; any thing in this act contained to the contrary thereof in any wife notwithftanding. Coroner ta- SeEI. 4. " Provided alfo, and be it declared and enacted by the autho- ring more, ^^ aforefaid, That no coroner, to whom any benefit is given by this act, wrtion. fhall, by colour of his office, or upon any pretext whatfoever, take for his office doing, in cafe of the death of any perfon, any fee or reward, other than the laid fee of thirteen fhillings and four pence, limited as is afore- faid by the faid act made in the third year of the reign of king Henry the Seventh, and other than the recompence hereby limited and appointed ; upon pain of -being deemed guilty of extortion. Coroners for SeEl. 5. " Provided likewife, and be it further enacted by the autho- yarcicularpla- rity aforefaid, That no coroner of the king's houfhold, and of the verge ces excepted. f tne king's palaces, nor any coroner of the admiralty, nor any coroner of the county palatine of Durham, nor any coroner of the city of London and borough of Southwark, or of any franchifes belonging to the faid city •, nor any coroner of any city, borough, town, liberty or franchife, which is not contributory to the rates directed by the faid act, made in the twelfth year of the reign of his prefent majefty, or within which fuch rates have not been ufually afieffed, fliall be intirled to any fee, recom- pence or benefit given to or provided for coroners by this act ; but that it fliall and may be lawful for all fuch coroners as are laft-mentioned, to have and receive all fuch fees, falaries, wages and allowances, as they were intitled Cojonet* 727 intitled to by law before the making of this act, or as fhall be given or allowed to them by the perfon or perlons by whom they have been or fhall be appointed. Seel. 6. " And be it further enadled by the authority aforefaid, That if Coroner con- any coroner, who is not appointed by virtue of an annual election or nomi- vifled of mif- nation, or whofe office of coroner is not annexed to any other office, fhall t*™^ ' In from and after the faid twenty-fourth day of June one thoufand feven hun- ^amoved! dred and fifty-two, be lawfully convicted of extortion, or wilfui neglect of his duty, or mifdemeanor in his office, it fhall be lawful for the court before whom he fhall be fo convicted, to adjudge that he fhall be amo- ved from his office ; and thereupon, if fuch coroner fhall have been elec- ted by the freeholders of any county, a writ fhall ifTue for the amoving him from his office, and electing another coroner in his ftead, in fuch manner as writs for the amoval or difcharge of coroners, andfor electing coroners in their ftead, are in any cafes already directed by law : and if the coroner fo convicted fhall have been appointed by the lord or lords of any liberty or franchife, or in any other manner than by the election of the freehol- ders of any county, the lord or lords of fuch liberty or franchife, or the perfon or perfons intitled to the nomination or appointment of any fuch coroner, fhall, upon notice of fuch judgment of amoval, nominate and appoint another perfon to be coroner in his ftead. Mr. Serjeant Poole and Mr. Clay torr fhewed caufe againft a rule which Irquifition on had been moved for by Mr. Norton, " to quafh a prefentment or inqui- an untimely " fition found by the grand jury of the county of York, at the general death ma y ba " feffion of Oyer and Terminer for that county :" which Mr. Norton objec- ^ ken t>> juf- ted to, as being coram non judice ; for, he faid, the grand jury had no deWy^yer authority to make fuch a prefentment, or findfuch an inquifition, under their and terminer, general charge from the judge of affize, whatever might be the cafe if the or ofthe judge had particularly directed and prefided over an inquifition of this kind, P* ace - ,for nit- on the neglect of the coroner. The fact found was, " That the mare oij 0a J°' John Killinghall, Efq-, was the caufe of the death of one William Stelling ; iBurRen.17^ *' and was of the value of ioi." It happened that the coroner had not l8 - Mich. 30 taken any inquifition at all, upon this death : fo that the lord of the manor Ge ° z - Rex finding himfelf likely to lofe his deodand, had made this application at ''•k'lhnghall. the affizes, where the grand jury found this inquifition or prefentment; which was afterwards removed hither by certiorari. Mr. Serjeant Poole and Mr. Clayton endeavoured to fupport it. This inquifition, they faid, before a grand jury is traverjable, ('which a coroner's inquifition is not ;) and therefore does nobody any injury. And as the coroner had taken none at all upon the prefent occafion, this method was necejj'ary to be taken, in order to come at the deodand. 1 H. H. P. C. 419. c. 32. of deodands, fhews moft exprefsly that this may be done before commiffioners of gaol delivery, Oyer and Terminer, or of the peace, if omitted by the coroner. So does 1 H. P. C 414. in treating of inquifitions ; where Laughton's cafe, H. 3 J Eliz. is cited ; and it is faid to be " inquifible before the juf- *' tices of oyer and Terminer, yea, or of the peace •, and that it had been " adjudged 728 COJOtUt. V adjudged accordingly." M. 1656. in Creave's cafe. 3 /«/?. 55. r. 8. Note b. in margin?, makes a difference between inquifuions taken before juftices of the peace as to having a traverfe. 2 Rol. Abr. 96. pi 3. proves that an indictment may be taken before juftices of peace, and of Over and Terminer. 2 Lev. 140. Rex v. Parker, is in point, " That the " coroner's omillion may be fupplied by commifiion of inquiry ; or the " juftices of peace or of afiize may inquire of it,- without commifiion." 2 H. H. P.C. 58- cap. 8. concerning the coroner and his court, and his authority in pleas of the crown, proves that grand juries have this jurif- didlion in cafe the coroner neglects it. 2 H. H. P. C. 59. ad idem. It is there faid " that juftices of peace, or Oyer and Terminer, or of the King's "Bench, may inquire, if the coroner do not: but that that prefent- " ment is traverfable, which the prefentment of the coroner of zfelo defe " is not." Upon thefe authorities, they faid, my lord Falconbridge (the lord of the manor) was advifed to take this method : but the judge of afiize (Mr. Juftice Birch) declined to meddle with it, or to have the in- quifition taken before him particularly, or to give any direction about it. They added thefe cafes alfo, 1 Ventr. 352. in the note at bottom. Poph. 209. Anon' ; and S. C. (apparently^) in Noy 87. " It may be done before juftices of peace" 1 Ventr. 181, 182. St alack' & cafe. " If a coroner omits " to inquire, this court may do it, as fupreme coroner of England; or «' may make commiffioners to inquire : or commifiion of Oyer and Ter- ':■ " miner may inquire. But then it is not fuper vifnm corporis-, and there- " fore may be traverfed." Mr. Norton contra. This is a prefentment ex parte ; and a prefentment of intitling, in order to found an odious and fuperftitious claim •, and all tranfatled in fecret. The cafes cited only prove, " That, in default of the coroner's having inquired, the juftices " of Oyer and Terminer, and of the peace, may make the inquiry ; and " that it is traverfable." They fay, that we could not have traverfed the coroner's inquifition : (which, however, I deny:) but this we may traverfe; and therefore can't be injured by it. But it will be faid " that the putting " a man to a traverfe, is no injury?" 4. Inft. 197, 198. enters largely in- to the fubject of traverfes •, and condemns fecret inquefts and officees. Now this is an office of intitling •, and therefore ought to be publickly and openly found. Lord Mansfield: By exprefs ftatutes. And I remember a cafe of the late duke of Buckingham's heirs; where, upon application to the court of Exchequer, notice was directed to be given : though, in ge- neral, notice is not necefiary. Therefore I think this queftion can't be'fup- ported. And inquilitions before the coroner are traverfable. [V. 2 H. H. P.C. 4.16. where that author declares his own opinion accordingly.] Mr. Juft. Denifon : I think it cannot be fupported. Mr. J uft. Fofler : I am of the fame opinion. By the court, rule to quafh the prefentment made Leave to take abfolute. newinquid- ]yi r> Yorke moved for leave for the coroner to take up the body, tion onview anc j ta ^ e a new i n q U ifition, according to 2 Sid. 101. Salk. zjj. which ° f Stran 167. was g rantea " i an d it was faid the coroner could not do it without leave of Rex v. Saun- the court. dew. The Conner. 729 The court granted a rule for the coroner of IVmkck in Conf Salop, to ^ u,e foi £ or °" take up a body, in order for a new inquifition, the former having been Jj," b ° d a e up quafhed. i Stran. 533; Anon'. Cottage. A Cottage (Sax. Cote) is a little houfe for habitation, without any land belonging to it. Wood, b. 3. c. 3. g>tat 31 Eliz. c. 7. [A. D. 1589. Intituled] " An act againft the erecting and maintaining of cotrages." " For the avoiding of the great inconveniencies which are found by Penalty for experience to grow by the erecting and building of great numbers and building acot- multitude of cottages, which are daily more and more increafed in many < a 8 e * "hoot parts of this realm; (2) Be it enacted by the queen's moft excellent ma- J°jj"j J"? ° nd jelly, and the lords fpiritual and temporal, and the commons, in this pre- tne like for fent parliament affembled, and by the authority of the fame, That after placing or fuf- the end of this feflion of parliament, no perfon (hall within this realm of feringinmates. England make, build or erect, or caufe to be made, builded or erected, qJJ|?JJ %t' any manner of cottage for habitation or dwelling, nor convert or ordain j 4 _ : any building or houfing made, or hereafter to be made, to be ufed as a 2 Init. 736. cottage for habitation or dwelling, unlefs the fame perfon do aflign and Hob. 250. lay to the fame cottage or building, four acres of ground at the leaft, to '<,,*"" '° 6 7 be accounted according to the ftatute or ordinance it terns menfurandis, '' being his or her own freehold or inheritance lying near to the laid cottage, to be continually occupied and manured therewith, lb long as the fame cottage fhall be inhabited-, (3) upon pain that every fuch offender (hall forfeit to our fovereign lady the queen's majefty, her heirs and fucceffors, ten pounds of lawful money of England, for every fuch offence. Sett. 2. " And be it further enaded by the authority aforefaid, That Cro.Jac. 603. every perfon which, after the end of this feflion of parliament, lhall wil- lingly uphold, maintain and continue any fuch cottage hereafter to be erected, converted or ordained for habitation or dwelling, whereunto four acres of ground, as is aforefaid, lhall not be afllgned and laid to be ufed and occupied with the fame, lhall forfeit to our faid fovereign lady the The forfeiture queen's majefty, her heirs and fucceffors, forty Ihillings for every month for continuing that any fuch cottage fhall be by him or them upholden, maintained and of a new c °.'-- continued. "*»'• Vol. I. N° XXXI. c A Set!. 73o Cottage. Set!. 3. " Provided alfo, and be it enacted, That from and after the More families feaft of All-Saint s next coming, there fhall not be any inmate, or more than one may families or houfhoulds than one, dwelling or inhabiting in any one cottage, not be placed mac j ej or to be made or erected, (2) upon pain that every owner or occu- mone cottage, pj er Q f anv { ac h cottage, placing, or willingly fuffering any fuch inmate, 4 3EI.C. 2. f. c. or other family than one, fhall forfeit and lofe to the lord of the leet, within which fuch cottage fhall be, the fum of ten millings of lawful money of England, for every month that any fuch inmate, or other family The penalty than one fhall dwell or inhabit in any one cottage as aforefaid : (3) And for receiving t ^ at a jj anc j everv i orf J and lords of 'leet andleets, and their ftewards with- Coke 66i; ate ' ' n r ' ie P rec i n & °f his and their leet and leets, mall have full power and authority within their feveral leets, to enquire and to take prefer- ment by the oath of the jurors, of all and every offence and offences in this behalf; (4) and upon fuch prefentment had or made, to levy by diftrefs to the ufe of the lord of the leet, all fuch fums of money as fo fhall be forfeited : (5) And moreover, that it fhall be lawful for the lord of every fuch leet where fuch prefentment fhall be made, to recover to his own ufe any fuch forfeiture, by action of debt, in any of the queen's majefty's courts of record, wherein no elfoin, protection, or wager of law fhall be allowed. Whomayhear Seff. 4.. " And be it further enacted by the authority aforefaid, That and determine a ]j juftices of aflizes and juftices of peace in their open feffions, and every af^refakT" d * or ^ Vfn ^ im tne P re c ln & of his leet, and no others, fhall have full power by what' and authority within their feveral limits and jurifdictions, to enquire of, means. hear and determine all offences contrary to this prefent act, as well by in- 1 Salk. 195. dictments, as otherwife by prefentment or information ; (2) and to award execution for the levying of the feveral forfeitures aforefaid, by Fieri fa- cias, Elegit, Capias, or otherwife, as the caufe fhall require. Cottages in Sett. 5. " Provided always, That this ftatute, or any thing therein con- cities or mar- tained, fhall not in any wife be extended to any cottage which fhall be ket towns, or ori i a ; nec j or erected to, or for habitation or dwelling in any city, town for workmen ; , , ■ 1 • 1 1 , in mineral corporate, or ancient borough or market town within the realm ; ( 2 ) works, quar. nor to any cottages or buildings which fhall be erected, ordained or con- ries, &c. verted to and for the neceffary and convenient habitation or dwelling of any workmen or labourers in any mineral works, coal mines, quarries or delfs of llone or flate, or in or about the making o f brick, tile, lime or coals within this realm ; fo as the fame cottages or buildings be not above one mile diftant from the place of the fame mineral or other works, and fhall be ufed only for the habitation and dwelling of the faid workmen ; (3) nor fhall in any fort prejudice, charge or impeach any perfon or per- fons for the erecting, maintaining or continuing of any fuch cottages, as are before in this provifo mentioned and fpecified. Certain cot- ^^ ^ ti p TOV \fed always, That this act fhall not extend to any cot- thfs" atme C ta S e t0 ^ e ma -^ e within a mile of the fea, or upon the fide of fuch part of fhall not ex- any navigable river where the admiral ought to have jurifdiction, fo long lend. as no other perfon fhall therein inhabit, but a failor or man of manual occupation, Cottage. ■ occupation, to or for making, furnifhing or viflnalling of any (hip or'vef- fel uled to ferve on the lea ; (2) nor to any cottage to be made in any fored, chafe, warren or park, fo long as no other peribn {hall therc->n inhabit, but an under-keeper or warrener, for the good keeping or the deer or other game or warren ; (3) nor to any cottage heretofore made, lb long as no other peribn (hall therein inhahit, but a common herd-man or Ihepherd, for keeping the cattle or lheep of the town, or a poor, lame, fick, aged or impotent perfon*, (4) nor to any cottage to be made, which tor any jult refpeft upon complaint to the jultice of iJize at the affizes, or to the juftices of peace at the quarter-fel- iions, lhall by their order entered in open affizes or quarter-feffions, be decreed to continue for habitation, for and during fo long time only as by fuch decree lhall be tolerated and limited." 25 Biiz. cap. 6. 43 E/iz. cap. 2. By flat. 43 Eliz. c. 2. fell. 5. The churchwardens and overfeers, by content of the lord of the manor, may ereft cottages on the wades and commons, for the habitation of the poor, but for no other purpofe. The inconveniencies, lays lord Coke, that grow by unlawful cottages, and inmates in cottages againft this datute, as appears by the preamble, are great ; being nefts to hatch idlenefs, the mother of pickings, thie- ving?, dealing of wood, &c. tending alio to the prejudice of lawful com- moners ; for that new-erefted cottages within the memory of man, though they have four acres of ground or more laid to them according to the act, ought not to common in the waftes of the lord ; but the greated incon- venience of all this is, the ill breeding and educating of youth ; which in- conveniencies may be eafily helped and remedied by the provifions of this excellent law, if lords of leets and their ftewards would look to the execution of this aft, which we hold the readied means •, for albeit the cottage erected or converted, cannot by any provifion in this datute be demolifhed or pulled down, yet the execution of the penalty of this aft will make it uninhabitable, and work the defired effeft, and they may al- fo be amerced for wrongful commoningin the court baron. 2 Injl. 740. J. S. was indifted upon the datute of 3 1 Eliz. becaufe he had erected a cottage five years lad pad, and had not allotted four acres of land ac- cording to the laid datute de terris menfurandis, %■$ Ed. 1. and had conti- nued it ever fince. The fird exception was, that this indictment was for erecting a cottage five years pad ; whereas every offence ought to be punifhed within two years by indiftment or information, by the exprefs word of the datute of 31 Eliz. cap. 5. otherwife it is not punifhable, and therefore not good. 2dly, Becaufe he does not fay that he voluntarily continued it ; which are the exprefs words of the datute. ^dly, For that it is to be by the datute De terris menfurandis; whereas there is not any fuch datute, but it is an ordinance only ; and for thefe caufes the indift- ment was held ill ; and the defendant was difcharged. Cro. J. 603, 604. //. 30. Mich. 1 8 Jac. B. R. Stowe's cafe. 5 A 2 One 732 Cottage* One was indited for erecting of a cottage. It was moved, that the in- dictment was infufficient •, for that the words of 31 Eliz. cap. 7. are, Jhall Willingly uphold, maintain and continue, and the indictment is only, that he continued, and fo wants the words willingly uphold, according to the fta- tute. It did not appear in the indictment that it was newly erected, for it is only that he continued, and not that he erected. The indictment was quafhed, becaufe being a penal law, it was not purfued. Gcdb. 383. */. 470. Pafch. 3 Car. B. R. Dafs cafe. If lord of a manor will fuffer poor men to erect cottages on his wafte, though he takes no rent for them, yet a fine fhall be fet upon them, and the lord of the manor fhall pay the fine; and after the cottage built, if the manor defcends, or is conveyed to another, if he receives any fmall rent for the continuance of the cottage, he alio fhall pay the fine that fhall be affeiTed, becaufe he upholds. Agreed. 70.272, 273. 8 Car. Cbriftian Smith's cafe, in Itin' Windfor. The ftatute, which gives power to erect cottages in the wafte for poor people, does not extend to walte within forefts. Jo. 269. in Itinere Wind- for, 8 Car. in Whi dock's cafe. In Windlejham in the county of Surrey, there were divers cottages and inclofures made upon the king's foil, and afterwards the king fells the manor : Per Noy attorney general, This has not difpenfed with the pur- preftures, but the patentee muft be fined for the continuance of them, and they are to be pulled down, if they are not now arrented ; for elfe the king's grant fhould be taken by implication to continue a wrong to his foreft, which the king never intended •, and accordingly they were fined and arrented. Jo. 277. See 6Vin. Abr, Cotuttp 1 Count^Cotut, COUNTY court (curia comitatus) by Lambard is otherwife called conventus, in his explicacion of Saxon words, and divided into two forts ; one retaining the general name, as The county-court held every month by the fheriff, or his deputy the under- fheriff, whereof you may read in Cromp. Jurifd. fol. 231. The other called 'The turn, held twice a year-, of which fee more in its proper place, and Cromp. Jurifd. ibid. This. county-court had in ancient times the cognizance of great matters, as may appear by Glanvill, lib. 1. cap. 2, 3, 4. By Braclon and Britten in divers places, and by Fleta, lib. 2. cap. 62. but was abridged by the ftatute of Magna Cbarta, cap. 17. and much more by 1 Ed. 4. cap. 1. It had alfo, and hath, the determination of certain trefpaffes and debts under forty fhillings. Britton, cap. 27, 28. What manner of proceedings was of old ufed in this court, fee Fleta ubi fupra. Before the courts at Wejlminfier were erected, the county-courts were the chief courts of this kingdom. Amongft the laws of king Edgar, this is one, viz. Let the hundred-court be kept as anciently, lie. and let there be two county-courts in a year ; in which county-court there /ball be a bijkop, and an alderman or earl, where one /hall judge according to the common law y and the other according to the ecclefiafiical law. . This is the foundation of the united power of the bifhop and earl to fit and try caufes in one court ; the conjunction of which powers mutually to affilt each other, is as ancient as the Englijh government itfelf ; but thefe powers were feparated by William the Conqueror ; and foon after all the ecclefiafii- cal bufinefs was brought into the court, fo called, and the law bufinefs into the King's Bench. Cowell. edit. 1727. Magna Charta 9 Hen. 3. cap. 35. No county fhall be held but from month to month ; and where a greater term hath been ufed, it fhall be greater. Nor fhall any fheriff or his bailiff make his turn by the hun- dred but twice in the year, in the due and cuftomed place, to wit, once after Eajler, and once after Michaelmas. And the view of frankpledge fhall then be made, fo that every one have his franchifes. And the view of frankpledge fhall be made, fo that the king's peace be kept ; and the tithing kept intire. Stat. Marlber. 52 Hen. 3. cap. 10. Archbifhops, bifhops, earls, barons, or women, fhall not need to come to the fheriff 's turn, unlefs their pre- fence be fpecially required for fome caule. And if any have tenements in divers hundreds, they fhall not need to come to the turn, but in the bailiwicks where they be converfant. Stat. Weft. 1. 3 Ed. 1. cap. 33. No fheriff fhall fuffer any barretor or maintainer of pleas in the counties, nor flewards who are not attornies- of their lords, to makefuit; and if any do it, the king will grievoully punifh the fheriff and him. Scat. 733 734 ' COUttt^COtttt. Stat. W'4'm. 2. 13 Ed. 1. cap. 13. The fheriffs in their turns and elfe- where, when they have to enquire of malefactors, by the precept of the king, or of their office, mall make their inquefts by lawful men, at leatr. twelve, who (hall fet their feals to their inquifitions ; and the fheriffs fliall take and imprifon thofe whom by fuch inquifitions they fhall find guilty, as they have ufed to do. And if they fhall imprifon others, fuch perions impriibned fhall have their action by writ of imprilbnment againft the fhe- riff, as againft any other perfon. And ib it (hall be obierved of every bailiff of liberty. Stat. 1 Ed. 3. cap. 17. Sheriffs and bailiffs of franchifes, and all others who take indictments in their turns or elfewhere, fhall take fuch indict- ments by roll indented, whereof one part fliall abide with the indictors •, fo that one of the inqueft may fbew one part of the indenture to the juf- tice, when he fhall come to make deliverance. Stat. 31 Ed. 3. flat. 1. cap. 15. Every fheriff fliall make his turn once in the month after Eajler, and the other turn in the month after St. Mi- chael ; and if they hold them otherwife, they fhall lofe their turn for the time. Stat. 19 Hen. 7. cap. 24. The (hire-court of Sujfex fhall be holden one time at Chichejler, and the next time at Levees, and fo alternis vicibus ; and every fhire-court holden to the contrary fhall be void. Stat. 2 £5? 3 Ed 6. cap.- 2 5. feci. 2. The county-courts fliall be kept every month, and no otherwife. Sell. 3. The fheriff of Northumberland fliall keep the county-court in the town of Alnwick, and in no other place. Thofe county-courts which ufed to be held on the Monday for York, fliall be held on Wednesday. 7 &f 8 W. 3. cap. 25. / 9. County ^ate* STAT. 12 Geo. 2. c. 29. [A. D. 1739. Intituled] " An act for the more eafy affeffing, collecting and levying of county rates." p , " Whereas by an act paffed in the twenty-fecond year of the reign cicinglhe'adb, of king Henry the Eighth, for repairing and amending bridges and high- 2zH. 8. c. 5! ways : And whereas by another act paffed in the firft year of the reign 1 Ann. flat. 1. of her late majefty queen Anne, to explain and alter the laid act, it is, for c- l8, the more eafy taxing and collecting the money for the repair of fuch bridges and highways thereunto adjoining (amongft other things), enacted, That the juftices of the peace within the ieveral limits of their commiflions 4 fhall Cotttttpsftate. 73 5 fhall at their general or quarter feflions of the peace have full power and authority, upon due prefentment to them made that any bridge within their refpeftive commifTions or authorities is out of repair, and which by them hath ufually, or ought to have been, repaired and maintained, to make afTeffments upon every town, parifh or place, within their refpec- tive commifTions for that purpofe, in proportions upon each refpeftive town and parifh, as they ulually have been affefled towards the repair of bridges •, which afTeffments are to be levied and collected in the manner prefcribed by the faid act : and whereas by an act pafTed in the eleventh and twelfth years of the reign of his late majefty king William the Third, n &12W. 3. to enable juftices of the peace to build and repair gaols in their refpeftive c - '9- counties, it is (amongft other things) enacted, That it fhall and may be lawful for the juftices of the peace, or the greater number of them, within the limits of their commifTions, upon prefentment of the grand jury or grand juries, at the aflize, great feflions, and general gaol-delivery, held for the fame county, of the infufficiency or inconveniency of their gaol or prifon, to conclude and agree upon fuch fum or funis of money, as upon examination of able and fufncient workmen fhall be thought neceffary for the building, finifhing and reputing a publick gaol or gaols, belonging to the fhire or county whereof they are juftices of the peace ; and by warrant under their hands and feals, or under the hands and feals of the greater number of them, by equal proportions to diftribute and charge the fum or fums of money to be levied for the ufes aforefaid upon the feveral hundreds, lathes, wapentakes, rape, ward, or other divifion of the faid county, in the manner prefcribed by the faid act ; which faid act was revived and continued by an act pafTed in the tenth year of the reign of her late majefty queen Anne, for feven years and to the end of the then next fefiion of parliament, and made perpetual by an act of the fixth year of the reign of his late majefty king George the Firft : and whereas by an act pafTed in the feventh year of the reign of king James the Firft, for 7 Jac. 1, c. 4.' the due execution of divers laws and ftatutes heretofore made againft rogues, vagabonds and fturdy beggars, and other lewd and idle perfons, it is (amongft other things,) enacted, That there fhall be erected, built, or otherwise provided, within every county of this realm of England and Wales, where there is not one houfe of correction already built, provided or continued, one or more fit and convenient houfe or houfes of correc- tion, by the juftices of the peace, or the more part of them, at their re- fpective quarter-feffions ■, and that the mafters or governors of the faid houfes of correction fhall have fuch fums of money yearly as fhall be thought meet by the faid juftices •, the fame to be paid quarterly before- hand, by the treafurers appointed by an act made in the three and fortieth year of the late queen Elizabeth, intituled, An ail for the relief of the poor ; which faid act was to continue for feven years, and till the end of the next feffion of parliament, and was further continued by an act pafTed in the third year of the reign of king Charles the Firft, intituled, An a cl for tie continuance and repeal of divers ftatutes, unto the end of the firft fefiion of riie next parliament •, and by an aft pafTed in the fixteenth year of the fame reign 7 36 Cotutty?ftate* reign continued in force, until repealed by fome other act of parliament: 43 E!is. c. z. and whereas by an act paffed in the forty-third year of the reign of queen Elizabeth, intituled, An acl for the relief of the poor, it is (amongft other things) enacted, That the juftices of the peace of every county or place corporate, or the more part of them, in their general feffions to be hol- den next after the feaft of Eafter, and fo yearly, as often as they fhall think meet, (lull rate every parifh to fuch a weekly fum of money as they fhall think convenient, lb as no parifh be rated above the fum of lixpence, nor under the fum of a halfpenny, weekly to be paid, and fo as the total fum of each taxation of the parilhes in every county amount not to above the rate of two pence for each parilh within the faid county ; and it is thereby likewife enacted, That the juftices of the peace at their aeneral quarter- feffions to be.holden at the time of fuch taxation lhallfetdown what competent fums of money (hall be fent quarterly out of every county or place corporate, for the relief of the poor prifoners of the King's Bench and Marfhalfea ; and alfo of fuch hofpitals and alms-houfes as fhall be in the faid county, and what fums of money (hall be fent to every one of the faid hofpitals and alms-houfes ; fo as there be fent out of every county yearly twenty (hillings at the lead to each of the faid prifons of the King's Bench and Marftjalfea ; which fums are rateably to be affeffed upon every parifh, and to be levied and collected as in and by the faid act is directed : i + E!iz. c. 5. and whereas by an act paffed in the fourteenth year of the reign of queen Elizabeth, intituled, An acl how vagabonds fhall be punijhed, and the poor relieved, it is enacted, That the juftices of the peace of every county, or the more part of them, in their general quarter-feffions, fhall rate every parifh at fuch reasonable fums of money, for the relief of prifoners, as they fhall think convenient, fo as no parifh be rated above fix pence or eight pence weekly ; and the churchwardens of every parifh fhall levy the fame every Sunday, and once in every quarter pay the faid fums to the high conftables or other head officers ; and the faid high conftables and head officers fhall pay the money received of the faid churchwardens to fuch perfon as fhall be appointed by the faid juftices in feffions, to be by them diftributed weekly for the relief of prifoners; fo much of which faid act as relates to the taxing, levying, receiving and employing of waol money, was revived and continued to the end of the then next feffion of parliament, by an act paffed in the firft year of the reign of kingjdww the Firft, intituled, An a^ for continuing and reviving of divers ftatutes, and for repealing of fome others ; and was further continued by an act paffed in the twenty-nrft year of the reign of the faid king James, intituled, An ail for continuing and reviving of divers ftatutes, and repeal of divers others-, and was further continued to the end of the next feffion of parliament, by an act paffed in the third year of the reign of king Charles the Firft, inti- tuled, An acl for the repeal and continuance of divers ftatutes ; and by an act paffed in the fixteenth year of the fame reign, was continued in force, until repealed by fome other act of parliament : and whereas by an act ijCar.z. c.4.. paffed in the nineteenth year of the reign of king Charles the Second, 1 intituled, Count? ftate. 737 intituled, An aft for relief of poor prifoners, and fitting them on work., it is (amonglt other things) enacted, That the juftices of the peace at their general feffions, or the major part of them, if they think fit, may provide a flock of materials for fetting poor prifoners on work, in fuch manner, and by fuch ways as other county charges are levied and raifed, and pro- vide and pay fit perfons to overlee fuch work, and make fuch orders concerning the premifTes, as they from time to time mall think fit, pro- vided that no parifh be rated above fix pence by the week towards the premifies: And whereas an act paffed in the twelfth year of the reign i a Anus:, flat; of her late majefty queen Anne, for reducing the laws relating to rogues, *• c. 23. fturdy beggars and vagrants, into one act of parliament, and for the more effectual punifhing fuch rogues, vagabonds, fturdy beggars and vagrants, and fending them whither they ought to be fent ; it is (amongft other things) enacted, That the juftices of the peace at their quarter-feffions may from time to time, when need (hall be, by fuch ways and means as monies for county gaols or bridges may be raifed, caufe fuch fums of money to be raifed within their refpective precincts and jurifdiclions, for the paffing and conveying or maintaining of rogues and vagabonds, as fhall be necelfary for thole purpofes ; which faid feveral rates, when col- lected, are to be paid, by virtue of the faid feveral acts, into the hands of treafurers or receivers to be appointed by the juftices at their refpective general or quarter-feffions of the peace, and to be accounted for, as in and by the faid feveral acts are recited : And whereas it is apparent that the manner and methods prefcribed [by the faid feveral refpective acts for collecting fome of the faid rates are impracticable, the fums charged on each parifh in the refpective divifions being fo fmall, that they do not by an equal pound-rate amount to more than a fractional part of a farthing in the pound on the feveral perfons thereby rateable •, and if poffible to have been rated, the expence of afieffing and collecting the fame would have amounted to more than the fum rated : And whereas many and great doubts, difficulties and inconveniencies have arifen in making and collec- ting other of the faid rates: Therefore that the good ends and purpofes of the faid feveral ftatutes may be anfwered, and the feveral fums of mo- ney thereby intended to be raifed may effectually be collected, with as much eafe and certainty, and as little expence as can be to the parties obliged by the faid laws to pay the fame •, Be it therefore enacted by the king's moft excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament af- fembled, and by the authority of the fame, That from and after the firft After , s day of September one thoufand feven hundred and thirty-nine, the juftices l73 g, juftices of peace in that part of Great Britain called England, within the refpective to make from limits of their commiffions, at their general or quarter-feffions, or the tur,e tonme greater part of them then and there aflembled, fhall have full power and affcffm^nti - authority, from time to time, to make one general rate or alTefirnent for ^-^ f t h' e fuch fum or fums of money as they in their difcretions fhall think fufficient feveral rates to anfwer all and every the ends and purpofes of the before-recited acts, in- appointed by ftead and in lieu of the feveral feparate and diftinct rates directed thereby feveral afts ; Vol. I. N?. XXXI. 5 B to 738 Cottttt^&ate. to be made, levied and collected ; which rate fhall be affeffed upon every town, parifh or place within the refpective limits of their commifiions, in fuch proportions as any of the rates heretofore made in purfuance of the faid feveral acts have been ufually affeffed ; and the feveral and refpective fums fo affeiTed upon each and every town, parifh or place within the re- fpective limits of their commifiions, (hall be collected by the high con- ftables of the refpective hundreds and divifions, in which any town, parifh or place doth lie, in fuch manner, and at fuch times as is herein after di- rected. Sect. 2. " And that the refpective fum or fums fo to be affeffed and collected may be well and truly paid to the refpective high conftables, Be to be paid out it further enacted by the authority aforefaid, That the churchwardens cf the poor's anc j ove rfeers of the poor for the time being of each and every parifh and rate o every p] ace w ithin the refpective counties, cities and liberties, in which they highconftable, refpectively lie, fhall and they are hereby required, out of the money collected or to be collected for the relief of the poor of fuch parifh or place, to pay to the high conftables of the refpective hundreds or divi- fions of the faid counties, cities and liberties, the reipective fum or fums of money fo rated and affeffed upon fuch parifh or place, within the fpace of thirty days after demand thereof made in writing, to be given to the faid churchwardens or overfees of the poor, or any of them, or left at their or either of their dwelling-houfe or houfes, or affixed on any of the church doors of fuch parifh or place to which fuch officer fhall belong, by the laid high conftable or high conftables of the refpective hundreds or divifions ; which demand the refpective high conftable or high con- ftables is and are hereby required to make, at fuch times as the faid juf- tices of the peace, or the greater part of them, fhall by their order in fefiions direct; and the receipt or receipts of fuch high conftable or high conftables fhall be a full and fufficient difcharge to fuch churchwardens and overfeers of the poor, or other perfon paying the fame, and fhall be allowed in their accounts as fuch by the juftices of the peace before whom orto be levied fuch accounts fhall be paffed : And in cafe fuch churchwardens and over- on them by f eers f tne poor, or any of them, fhall neglect or refufe to pay any the diUrefs.j j- urn or f ums f money hereby affeffed, after demand made as aforefaid ; fuch high conftable or high conftables fhall, and they are hereby impow- ered to levy the fame by diftrefs and file of ihe goods and chattels of fuch churchwardens and overfeers, or either of them fo refufing or neglecting to pay the fame as aforefaid, by warrant under the hands and feals of two or more juftices of the peace of the county, riding, divifion, city, town- corporate, liberty or place, refiding in or near fuch parifh or place ; ren- dering the overplus, if any there fhall be, after deducting the money affeffed, Wh*te there " nc * tne cnar g es °f tne diftrefs and fale, to the owner or owners there- is QO poor's Ol. rate, the petty SetJ. 3. " Provided neverthelefs, and be it enacted by the authority comtable of aforefaid, That in cafe no rate is or fhall be made for the relief of the the place to k- ■ pa rifh, townfhip or place; the juftices of the peace in their vyandpavthe r . ; r » r r > J r county rate, refpective general or quarter-fefiions, or the greater part 01 them then 4 and Cotitity*ftctfe. 7-9 and there affembled, (hall and may by their order direct the fum of mo- ney afleffed on fucli parifh, townfhip or place, for the purpofes of this act, to be rated and levied on fuch parifh, townfhip or place, by any petty conftables or other peace officer of or belonging to the fame, in fuch manner as money for the relief of the poor is by law to be rated or lr- vied ; which fum fo rated and levied fli all be paid by fuch petty conllable or other peace officer to the refpective high conftable for the hundred, ch- vtfion or liberty wherein fuch parifh, townfhip or place fhall lie ; and iha!! be demanded of, paid by, or levied on fuch petty conftable or other peace officer, in the fame manner as any rates are herein before directed to be demanded of, paid by and levied on the churchwardens and overfeers c f the poor, or any of them ; and if fuch petty conftable or other peace officer fhall pay fuch fum, before the fame fhall be fo by him rated and levied as aforefaid, he may afterwards rate and levy the fame, or fhall and may be allowed and reimburfed the faid fum of money out of any conftable's, or other rate made or to be made on any fuch parifh, town- fhip or place, which the faid juftices of the peace, or the greater part of them, in their feffions fliall order and direct. Seel. 4. " And whereas it will be very inconvenient to many towns, parifhes and places in the feveral counties of Tork, Derby, Durham, Lan- cajler, Chefter, Weftmorland, Cumberland and Northumberland, that the rates by this act directed to be paid by and levied on the churchwardens and overfeers of the poor for the purpofes aforefaid, fhould be paid out of any rate to be made for the relief of the poor in fuch towns, parifhes and places ; Be it therefore enacted by the authority aforefaid, That it fhall Counties ex- and may be lawful to and for the juftices of the peace for the refpective «pted from ridings, divifions or counties of Tork, Derby, Durham, Lancajler, Chejler, P a >' m 8 '»? Weftmorland, Cumberland and Northumberland, at their refpective general or a $ out f t j,e quarter-feffions, or the greater part of them then and there affembled, if poor's rate, they fhall think convenient, to order the fum of money directed to be af- feffed on any fuch town, parifh or place, for all or any of the purpofes of this act, to be paid by and levied on the petty conftable of or for any fuch town, parifh or place within the faid counties reflectively, in fuch manner as the fame is herein directed to be paid and levied, in cafes where no rate is made for the relief of the poor ; any thing herein contained, or any law, ufage or cuftom to the contrary notwithftanding. Setl. 5. " Provided always, and be ir enacted by the authority aforefaid, Provifo, in fa- That this act, or any thing herein contained, fhall not extend or be conftrued vour of places to extend to make any perfons, liberties, divifions, or places liable to pay h er£t0 <" ore not to any rate to be made in purfuance of this act, to which fuch perfon, P a >' n 8 a • or liberty, divifion or place did not, or was not liable to contribute before the , a[eSi paffing hereof; but that it fhall and may be lawful to and for the juftices of the peace at their refpective general or quarter-feffions, or the greater part of them then and there affembled, to order and afcertain what proportion of any rate to be made by virtue of this act fhall be aflefled on and paid by the feveral perfons, liberties, divifions, and places, who have ufually 5 B 2 contributed, 740 CottntjHRftte. contributed, or are liable to pay only to one or more of, and not to all the rates hereby intended to be raifed, and thrown into one general rate or afTeffment. ble?K> COnn the Se ^- 6> " And be *' further ena & ed b y tn e authority aforefaid, That the monies ? i7ilie refpeclive high conftables mail, and they are hereby required, at or before treafurers ap- the next general or quarter-feflions respectively after they or any of them pointed by the fhall have received fuch fum or fums of money, to pay the fame into the quarter fef- hands of fuch perfon or perfons (being refident in any fuch county, riding, divifion, city, liberty or place where fuch rates fhall be refpeclively made) whom the laid juftices lhall at their refpeclive general or quarter-feffions, or the greater part of them then and there aiTembled, appoint to be the treafurer or treafurers (which treafurer or treafurers they are hereby autho- rized andimpowered to nominate and appoint); fuch treafurer or treafurers firft giving fufficient fecurity in fuch fums as (hall be approved of by the faid juftices at their refpeclive general or quarter-feffions, or the greater part of them then and there aiTembled, to be accountable for the feveral and refpeclive fums of money which fhall be refpeclively paid to them in pur- fuance of this act, and to pay fuch fum or fums of money as fhall be ordered to be paid by the juftices in their general or quarter-feflions, and for the due and faithful execution of the trufts repofed in him or them ; and all and every fuch fum or fums of money as fhall be paid into his or their and they to hands by virtue of and in purfuance of this act, fhall be deemed and taken whomfoever to De tne publick ftock •, and the faid treafurer or treafurers fhall and are &*ii d' 1C ft hereby required to pay fo much of the money in their hands, to fuch perfon and perfons as the faid juftices at their refpeclive general or quarter-feflions, or the greater part of them then and there affembled, fhall by their orders from time to time direct and appoint for the ufes and purpofes of the faid recited ads, and for any other ufes and purpofes to which the publick ftock of any county, city, riding, divifion or liberty, is or fhall be applicable by law." Treafurers to g e ^ m j % « And be it further enacted by the authority aforefaid, That the keep books of ^ re fp e ftj ve treafurer or treafurers fhall and are hereby required to keep entries, books f entries of the feveral fums refpeclively received and paid by him or them in purfuance of this act ; and is and are alfo hereby re- upon°oath! Un quired to deliver in true and exact accounts upon oath if required (which oath the faid juftices at their refpeclive general or quarter-feflions are hereby impowered to adminifter) of all and every the fum and fums of money refpeclively received and paid by him or them, diftinguifhing the particular ufes to which fuch fum or fums of money have been applied, to the juftices at every general or quarter-feflions refpeclively to be holden within the limits of their ccmmiflions ; and fhall lay before the juftices at fuch feftions the proper vouchers for the fame." High conda- Se£i. 8. " And be it further enacted by the authority aforefaid, That the ble's charge, refpeclive high conftables fhall and they are hereby required to demand and levy fuch rates and aflefiments in manner before directed, and fhall account for the fame before the faid juftices at their refpeclive general or quarteY- fefflons, if thereunto required, in the like manner as the faid treafurer or trea- furers / Cotmt^&ate. 74 i furers is and are hereby directed to account; and in cafe fuch high con- Penalty on (tables, or any of them, fhall neglect or refufe fo to demand, levy, or ac- default, count, then it (hall and may be lawful to and for the faid juftices, at their refpedive general or quarter-feffions or the greater part of them then and there afTembled, to commit fuch high conftable or high conftables to the common gaol of the county, riding, divifion, city, town corporate, liberty or place, there to remain without bail or mainprize, until he or they fhall have caufed fuch rates or afTefTments to be demanded and levied ; and fhall have rendered a true account or accounts in the manner hereby directed •, and in cafe it fhall appear by fuch account or accounts, that any fum or fums of money is or are remaining in his or their hands, which he or they fhall have received of the refpedive churchwardens and overfeers, or other per- fons, which ought to have been paid to the refpedive treafurer or treafurers at the time or times limited by this ad, or of the refpedive treafurer or treafurers, in order to be applied to the purpofes aforefaid ; and if he or they fhall negled or refufe to pay the fame over into the hands of the refpedive treafurer or treafurers, or otherwife, if thereunto required by order of the faid juftices at their refpedive general or quarter- fellions, or the greater part of them then and there afTembled ; then it fhall and may be lawful for the faid juftices at fuch their general or quarter-fefTions, or the greater part of them then and there afTembled, to commit fuch high conftable or high conftables to the common gaol of the county, riding, divifion, city, town corporate, liberty or place, there to remain without bail or mainprize, until he or they fhall have made full paymenc of the fum or fums of money, that fhall appear to be due on fuch account or accounts; and all the accounts and vouchers of the faid treafurers and Their and the high conftables fhall, after having been pafled by the faid juftices at their treafurers refpedive general or quarter-feffions, be depofued with the clerk of the vouchers to be peace for the time being, of each county refpedively, or the town-clerk, th^record^of high bailiff, or chief officer of any city, town corporate or liberty, who is the county, and are hereby required to keep them among the records of fuch county, &c. city, town corporate or liberty, to be infpeded from time to time by any of the faid juftices, within the limits of their commiffions, asoccafion fhall require, without fee or reward." SeS. 9. " And be it further enaded by the authority aforefaid, That the What ft » ;i be receipts of fuch refpedive treafurer or treafurers fhall be fufficient difcharges their ^ e [ f ? c ' to all high conftables ; and the difcharges of the faid juftices of the peace, or the greater part of them, by their orders made at their refpedive general or quarrer-feffions to fuch treafurer or treafurers, fhall be deemed and allowed as good and fufficient releafes, acquittances, or difcharges, in any court of law or equity, to all intents and purpofes whatfoever." Seff. 10. " And be it further enaded by the authority aforefaid, That The conditiot no new rate fhall be made until it fliall appear to the faid juftices at their on which ne\y rtfpective general or quarter-feffions, or the greater part of them then and rates are to be there afTembled by the accounts of their refpedive treafurer or treafurers mi * e - or otherwife, that three fourths of the money, collected by virtue of the preceding rate have been expended for the ufes and purpofes aforefaid." 742 Coune^&ate. Treafurer to Seft. u. "And be it further enacted by the authority aforefaid, That be continued it fhall and may be lawful to and for the faid juftices of the peace at their or removed at r efpective general or quarter-feffions, or the greater part of them then and the will of the , r ~- 9 , , r ■ r \ r „i „ quarter fef- tnere affembled, to continue from time to time iuch treaiurer or treaiurers in ftona. his or their office or offices, fo long as they fhall fee convenient, and to remove him or them at their pleafure, and appoint any other perfon or peribns in his or their place ; and to allow to him or them and every of them, infilling on the fame, fuch reafonable fum or fums of money for his or their care and pains in the execution of fuch truft, not exceeding twenty pounds by the year, as they in their difcretion fhall think fit; which they are hereby im- powered to direct the payment of, out of the monies arifing by the refpec- tive rates hereby appointed to be made." Parifhes over- &^- I2 - " And be it further enacled by the authority aforefaid, That rated, to ap- in cafe the church-wardens and overfeers of any parifh or place fhall at any peal to the laid time have reafon to believe the faid parifh or place is over-rated, foci (mam. church-wardens and overfeers may appeal to the refpective juflices of the peace at their next general or quarter-feffions, again'ft fuch part of the rtatfc only as may affect the parifhes- or places in which they ferve fuch offices , which juftices, or the greater part of them then and there affembled, are hereby authorized and impowered to hear and finally determine the fame : provided nevcrthelefs, that upon fuch appeal fuch rate fhall not be quafhed or deftroyed in regard to any other parifhes or places affeffed thereby. Juftices to Seft. 15. " And it is hereby further enacled, That there (hall be but make but one one rate m ade and affeffed by the juftices of the peace of the county of rate for Mid-j jv-Z/Mf/ew, in the faid county, city and liberty of IVeftminJler, for the kve- ral purpofes aforefaid, and for the repair of the gaol commonly called New Prifon, in the faid county of Middle/ex. Trovifoasto Set?. 16. " Provided neverthelefs, That the juftices of the peace for the houfe of the city and liberty of iVeftminfter, at their general or quarter-feffions to correaion at j-, e n0 icjen f or the fame city or liberty, or the greater part of them then and there allembled, (hall have full power to appoint the governor or mai- ler of the houfe of correction within the faid city or liberty; who fhall have fuch fum of money yearly as hath been accuftomed for and towards the fupport and maintenance of the prifoners in his cuftody, who fhall be fick, or unable to work, (not exceeding the prefent allowance of fifty pounds by the year) and direct the repairs and management thereof as they heretofore have done ; and the treafurer or treafurers of the money arifing by the rates in the faid county of Middkfex and city and liberty of JVeJimitiJter, hereby appointed to be collecled, fhall and is and are hereby required to obey all orders which fhall from time to time be made by the faid juftices of the faid city and liberty, or the greater part of them then and there af- fembled, at their general or quarter-feffions, for the payment of any fum or fums cf money for the allowance allotted to fuch governor or matter of the hcufe of correction, and the repairs thereof; which orders fhall be good ?nd fufficient difcharges to fuch treafurer or treafurers ; any thing herein contained to the contrary thereof in any wife notwithstanding. Seff. Count^Bate. 743 Sett. 17. " And be it further enadted by the authority aforefaid, That Jufijca im- the juftices of the peace at their refpective general or quarter-felfions, or P° wertd ,0 the greater part of them then and there afiembled, fhall be and are hereby obl S eco,:ec- impowered to oblige, by their order or orders, the refpeclive high con- w j-.j, t ^ tm J ftables and petty conftables, or any other perfon or perfons who are or have been impowered to levy, collect or receive any fum or fums of money by virtue of and for the purpofes aforefaid, and who have any fum or fums of money in their hands, to account with them at their general or quarter- feffions, in fuch manner as high conftables are directed to account by vir- tue of this act ; and in cafe fuch high conftables or petty conftables, or other perfon or perfons, fhall refufe to account or to pay over the money that fhall remain in their or any of their hands, when thereunto required by order of the faid juftices or the greater part of them in their refpective general or quarter-feffions afiembled ; in either of the faid cafes the faid juftices fhall have the like remedy againft them or any of them, as they have againft the high conftables by virtue of this act, for not accounting for or paying over the money remaining in their hands : and it fhall and an< j , or( j er may be lawful to and for the faid juftices at their refpective general or the monies urt- quarter-feffions, or the greater part of them then and there afiembled, applied to be and they are hereby impowered to direct and order the payment of the P 3ld t0 the refpective fums of money which fhall appear to be remaining due, and tred ur " not applied or difpofed of, into the hands of the refpective treafurer or treafurers to be appointed by this act ; which fhall be deemed to be part of the ftock of the laid counties, cities, ridings, divifions, liberties or place? refpectively ; and to enquire what fums of money are due and ow- ing for the purpofes aforefaid ; and then to order the payment of fuch fums as fhall appear to them upon fuch enquiry to be juftly due and ow- Sect. 18. " And be it further enacted by the authority aforefaid, That No afli0n a no action or fait fhall be commenced or profecuted againft any perfon or ga inrt perfons perfons, who has or have been or fhall be employed in the collecting or collefting on receiving any money in purfuance of the faid recited acts, or this prelent rate difcharg- act, on any rate or rates which has or have been or fhall be quafhed or *■ y & * difcharged on any certiorari brought or to be brought in any of his ma- jefty's courts of record at Wcftminjier, or otherwife, for any money col- lected or received, or to be collected or received on any fuch rate or rates, before fuch writ of Certiorari was or fhall be brought and al- lowed ; and that juftice may be done to fuch perfons who fhall or may tutdicpciltn, pay towards any rate which fhall be quafhed or difcharged, the feveral ver rated or any law, ufage or cuftom to the contrary notwithftanding. WritofCer- Sect. 21. " And be it further enacted by the authority aforefaid, That tiorarionwhat n o writ of Certiorari, to remove any rates made in purfuance of this act, terms ifluable. or to rern0V e any orders or other proceedings taken or made by the faid refpective general or quarter-feffions touching fuch rates, fhall be taken out or granted, but upon a motion to be made fome time in the firft week of the next term after the time for appealing from fuch rates or or- ders is expired •, and upon making it appear to the court by affidavit or otherwife, that the merits of the queftion upon fuch appeal or orders will by fuch removal come properly in the judgment of the faid court ; and that no fuch writ of Certiorari fhall be allowed until fufficient fecurity be given to the refpeftive treafurer or treafurers appointed by virtue of this aft, in the fum of one hundred pounds, to profecute fuch writ of Certiorari with effect, and to pay the cofts to be afcertained by the court to which fuch rates, orders, or proceedings fhall be removed, in cafe fuch rates or orders fhall be confirmed ; nor fhall any fuch rates, orders or proceedings be quafhed or vacated for want of form only ; and all charges attending fuch removal (hall be defrayed out of that or any fubfequent rate. Seel. 22. " And be it further enafted by the authority aforefaid, That p f t h ails f° mucn or * tne before recited act paffed in the fourteenth year of the 14 &43EI1Z. reign of queen Elizabeth, as relates to the method of taxing parifhes for and 19 Car. 2. the relief of prifoners •, and fo much of the faid act of the forty-third year repealed. f the fame reign as relates to the method of raifing money for the King's Bench and Marjhalfea prifons, hofpital and alms-houfes ; and fo much of the laid act of the nineteenth year of the reign of king Charles the Second, as relates to the method of rating parifhes for providing materials for the fetting poor prifoners on work, fhall be repealed, and be abfolutely null Manner of the and void. paymentofthe Seel. 23. " Provided neverthelefs, That fuch fums as have been annu- King's Bench a liy p a jd t o the King's Bench and Marjhalfea prifons, fhall be paid out of and Marfhal- tne mon i es arifing by virtue of this act, at fuch times, and in fuch manner, /xGco^c'io as ls prefcribed in and by an act paffed in the eleventh year of the reign 1 of €ount?*ftate. 745 of the reign of his prefcnt majefty, intituled, An all for the more effeflual fecuring the ■payments of certain funis of money, direcled by an ail made in the forty-third year of the reign of queen Elizabeth, intituled, An aft for the relief of the poor, to be paid by the refpetlive treafurers of every county of England and Wales, for the relief of the poor prifoners of the King's Bench and Mar- fhalfea prifons ; and fuch money as fhall be judged neceffary by the juf- tices of the peace in feflions to be applied in purfuance of the faid aft of the fourteenth year of the reign of queen Elizabeth, for the relief of prifoners ; and of the faid aft of the nineteenth year of the reign of kino- Charles the Second, for providing materials for the fetting poor prifoners on work, (hall be paid out of the monies arifing by this aft. Seel. 24. " And be it further enafted by the authority aforefaid, That Limitation of if any aftion or fuit fhall be commenced againft any perfon or perfons for acuon. any thing that fhall be done in purfuance or by the authority of this pre- fent aft, in every fuch cafe the aftion or fuit fhall be commenced within three months next after the faft committed, and not afterwards, and fhall be laid and brought in the refpeftive county in which the caufe of aftion or fuit fhall arife, and not elfewhere •, and the defendant or defen- dants in fuch aftion or fuit to be brought fhall and may plead the general Generalise, iffue, and give this aft and the fpecial matter in evidence at any trial to be had thereupon •, and that the fame was done in purfuance and by the authority of this aft -, and if it fhall appear fo to be done, or that fuch aftion or aftions fhall be brought after the time before limited for bring- ing the fame as aforefaid, or fhall be brought in any other county or place -, that then the jury fhall find for the defendant or defendants ; and upon fuch verdift, or if the plaintiff or plaintiffs fhall be nonfuited, or difcon- tinue his, her or their aftions or fuit, after the defendant or defendants hath or have appeared •, or if upon demurrer judgment fhall be given againft the plaintiff or plaintiffs, the defendant or defendants fhall and may recover treble cofts, and have the like remedy for the fame, as any Treble co(U. defendant or defendants hath or have in other cafes by law." §tnt. 13 Geo. 2. c. iS. [A. D. 1740.] made, among other pu.rpofes, "for extending the powers and authorities of juftices of the peace of counties touching county-rates, to the juftices of the peace of fuch liberties and franchifes as have commiftions of the peace within themfelves." Sell. 7. " And whereas by an aft paffed in the twelfth year of his pre- 12 Geo. *. fent majefty's reign, intituled, An all for the more eafy ajftffing, colletl ing c. 29. and levying of county-rates, feveral powers and authorities are given to the juftices of the peace in that part of Great Britain called England, within the refpeftive limits of their commiffions, at their general or quarter-fef- fions, from time to time to make one general rate or affeffrnent for fuch fum or fums of money, as they in their difcretion fhall think fufficient to anfwer all and every the ends and purpofes of the feveral acts therein re- cited •, but there being a provifo in the faid act, that the fame, or any thing therein contained, fhould not extend, or be conftrued to extend, to Vol. I. N« XXXII. 5 C make 746 CotmtH&ate. make any perfons, liberties, divifions or places liable to pay to any rata to be made in purfuance of the faid act, to which fuch perfon, liberty, divifion or place did not, or was not liable to contribute before the paf- fing thereof-, fome doubts have arifen whether the faid act doth ex- tend to liberties and franchifes, which are not within the jurifdiction of the commiffions of the peace for the counties in which fuch liberties and Juflices of ^ franchifes lie, and fo never did nor were liable to contribute to the faid peace for li- coun ty-rates ; To the end therefore that fuch liberties and franchifes may wlthTheVame not be wholly deprived of the benefit of the faid in part recited act, it is power as ju- hereby declared and enacted by the authority aforefaid, That where any ltices for the liberties or franchifes within that part of Great Britain called England, have county, in commiffions of the peace within themfelves, and are not fubject to the ju- coumy'.rates rifdiction of the commiffions of the peace for the counties in which fuch liberties or franchifes lie, and do not, nor did, before the making the faid in part recited act, contribute or pay to the feveral rates made for the faid counties •, it fhall and may be lawful to and for the juftices of the peace of fuch liberties and franchifes, within the refpective limits of their, commiffions, to have, ufe and exercife all and fingular the powers, au- thorities and methods given or prefcribed by the faid in part recited act,, and all fuch liberties and franchifes are hereby declared to be fubject there-, to, in the fame manner to all intents and purpofes, as counties at large- are ; any thing in the faid in part recited act contained, or any law, ufagex or cuftom to the contrary thereof in any wife notwithstanding." Bemurrer. A Demurrer is when the criminal joins iffue upon a point of law in an indictment, allowing the fact to be true, as laid in the indict- ment, or appeal. If the indictment, or appeal, proves to be good in law, in the opinion of the judges, they proceed to judgment and execution, as if the party had been convicted by confeffion or verdict. For he fhall not be put under the Pain fort fc? dure, though by his demurrer he refufes to put himfelf upon the inqneft according to the letter -, yet he is out of the reafon of the law, becaufe a demurrer is allowed to be tried by the judges, and not by the inqueft. Wood's Inft. b. 4. c. 5. cites S. P. C. 150. ilnjl. 178. H.P.C.24.3. In criminal cafes not capital, if the defendant demur to an indictment, the court will not give judgment againft him to anfwer over, but final judgment. 2 Hawk, 334. But Demurrer. 747 But regularly, in all cafes of felony, where a man pleads a fpecial mat- ter, though he conclude his plea with Not guilty to the felony, or do not conclude it fo ; yet if his plea be tried, or found, or ruled againft him, he fhall be put to his plea of Not guilty, and be tried for the felony ; for though a man mall loie his land in fome cafes, for mifpleading, yet he fhall not lofe his life for mifpleading. 2 H. H. 257. Beotian&t DEODAND, (deodandum) is a thing given, or rather forfeited, as ic were, to God, for the pacification of his wrath, in cafe of mifad- venture, whereby any Chriftian man cometh to a violent end, without the fault of any reaibnable creature. For example ; If a horfe fhould ftrike his keeper, and fo kill him : If a man in driving a cart, and feeking to redrefs any thing about it, fhould fo fall as the cart-wheel running over him, fhould kill him : If one fhould be felling a tree, and he give warning to the company prefent, when the tree was near falling, to look to them- felves, and any of them fhould be flain neverthelefs by the fall of the tree : In the firft of thefe cafes, the horfe ; in the fecond, the cart-wheel, cart and horfes ; and in the third, the tree, is a deodand, and to be given to God ; that is, to be fold and distributed to the poor, by the king's almoner, for an expiation of that dreadful event, though effected by un- reaibnabfe, yea fenfelefs and inanimate creatures. Staundf. pi. cor. lib. 1. cap. 2. Brail, lib. 3. tract. 2. cap. 5. Brit ton, cap. 17. znd tfc/lm. Symbol. tit. Indictments, feet. 49. Fleta fays, this deodand is to be fold, and the price diftributed to the poor, for the foul of the king, his anceftors, and all faithful people de- parted this life. Lib. 1. cap. 25. De fubmerjis ; which law feems to bear an imitation of that in Exodus, cap. 21. Si carnn petierit bos virum vel mu- lierem, ita ut moriatur, lapidabitur bos, neque comedetur caro ejus, ac Dominus ejus erit innocens. This word is mentioned in the ftat. Be officio coronatoris, anno if Ed. 1. See 3 fart. lnft. fol. 57. Since therefore by the Mofaical law the ox was to be ftoned to death, it feems reafonable that the price of the ox fhould be beftowed in pious and charitable ufes. Cozvell, edit. 1727. A deodand is that inftrument which occafions the death of a man, and is forfeited to the king, in order to be dilpofed in pious ufes by the king's almoner •, this forfeiture of whatever procures the death of a man without the default of another was introduced to increafe the terror and abhorrence of murder, fo that nothing that occafioned it fhould feem to go unpunifh- 5 C 2 ed> 7 - 4 8 SDcokanfc. ed •, alfo that weapon or inftrument, whereby one man kills another, is called a deodand. 3 lnfi. 57, 58. 5 Co. 110. H. P. C. 34. Pult. 125. Crom. 3 1 . a. To underftand what things are forfeited as deodands, we mufr. obferve that it is laid down as a rule, that omnia qua movent ad mortem funt decdan- da -, and therefore that wherever the thing which is the occafion of a man's death is in motion at the time, not only that part thereof which immedi- ately wounds him, but all things which move together with it, and help to make the wound more dangerous, are forfeited alio. 1 Hawk. P. C. 66, 67. As where a cart meeting a waggon loaded upon the road, and the cart endeavouring to pals by the waggon, was driven upon a high bank, and overturned, and threw the perton that was in the cart jult before the wheels of the waggon, and the waggon run over the man and killed him, it was held that the cart, waggon, loading, and all the horfes were deo- dands, becaufe they all moved ad mortem. 1 Salk. 220. But if a man, riding on the fhafts of a waggon, fall to the ground, and break his neck, the horfes and waggon only are forfeited, but noc the loading, becaufe it no way contributed to his death. 3 lnfi. 58. 5. P. C. 20. 1 Hawk, P. C. 66. So where a thing not in motion caufes a man's death, that part thereof only which is the immediate caule is forfeited •, as where one climbing UDon the wheel of a cart while it ftands frill falls from it, and dies of the fall, the wheel only is forfeited ; but if he had been killed by a bruife from one of the wheels being in motion, the loading alfo would have been forfeited, becaufe the weight thereof made the hurt the greater. 1 Hawk* P. C. 66. Alfo if a man riding on a horfe over a river is drowned through the violence of the ftream, the horfe is not forfeited -, becaufe not that, but the water, caufed his death. Go. Jac. 483. 2 Rol. Rep. 23. Poph. 156. It is otherwife if the horfe had thrown him. 1 Salk. 220. By the opinion of our authors, things fixed to a freehold, as the wheel of a mill, a bell hanging in a fteeple, &c. may be deodands ; but by the later relolutions they cannot, unlefs they were fevered before the acci- dent happened. 1 Hawk. P. C. 66. Alfo it was formerly held, that this forfeiture did not extend to cafual deaths arifing from the indifcretion of children or infants within the age of difcretion, for that fuch ^punifhment of innocent owners by taking their ooods would anfwer no good end of juftice : befides, the misfor- tune in this cafe might feem rather owing to the indifcretion of the in- fant than any default in the thing ; but this diftinftion has not been al- lowed of late ; for the law does not ground the forfeiture on any default in the things forfeited, fince it extends to things without life, to which it is plain that no manner of fault can be imputed. 1 Hawk. P. C. 66. The forfeiture takes place at land only, and doth not extend to the feas, that are continually liable to ftcrms and tempefts -, and therefore a fhip SDeo&ana* 749 fhip in fait water, whether in the open fea, or within the body of a coun- ty, from which a man falls and is drowned, is not forfeited. But a fhip, by a fall rrom which a man is drowned in the frefh water, fliall be forfeited •, but not the merchandize therein, becauk they no way contributed to his death, i Hawk. P. C. 66. In all thefe cafes, if the party wounded die not of his wounds, within a year and a day after he received it, there fliall be nothing forfeited ; for the law does not look on fuch as the caufe of a man's death, after which he lives lb long ; but if the party die within that time, the forfeiture fhall have relation to the wound given, and cannot be faved by alienation, or other aft whatfoever in the mean time, i Hawk. P. C. 67. However, nothing can be forfeited as a deodand, nor feized as fuch,. till it be found by the coroner's inqueft to have caufed a man's death j. but after fuch inquifition the fheriff is anfwerable for the value of it, and may levy the fame on the town where it fell •, and therefore the inqueft ought to find the value. 1 Hawk. P. C. 6y. i have nothing to add, fays Mr. Jullice Fojler, to what other writers have laid touching deodands, more than to obferve, that as this forfeiture feemeth to have been originally founded rather in the fuperftition of an age of extreme ignorance than in the principles of found reafon and true policy, it hath not of late years met with great countenance in Weft- minjler-hall. And where judges have taken upon them to ufe a judgment of difcretion, not ftrictly within their province, for reducing the quantum of the forfeiture, (1 wifh the temptation to it was taken out of their way) the court of King's Bench hath refufed to interpoie in favour of the crown or lord of the franchife. It hath frequently interpoled its authority as fovereign coroner in this cafe, and alio in the cafe of fuicide, in favour of the fubjetl, and to fave the forfeiture, but will not do it in either cafe to his prejudice. And herein it proceedeth upon the fame principle of equi- table juftice, that the courts of IVefiminjler-hall conftantly do in refulinn- to fet afide a wrong verdict given in favour of the defendant in a crimi- nal cafe, or in an hard action, though it is done every day where a wrono- verdict goeth againft him. In the cafe of the King and Rolfe coroner of Kent, which came on in Mich, and Hill, the fifth of king George 2. the coroner's inqueft found, that A. B. fitting on his waggon, accidentally fell to the ground ; and that the horfes drawing the waggon forward, one of the four wheels crufhed his head, of which he inftantly died ; and then concluded that the wheel, on which they fet a fmall value, only moved to his death. Amotion was made in behalf of Mr. Mompejfon, lord of the franchife, for qualhing this inquifition, upon affidavits tending to fhew that the cart and horfes were equally inftrumental ; which indeed the finding of the jury did fufficiently imply. But the court was very clear- that neither this court nor the coroner can oblige the jury to conclude otherwile than they have done, and would not fuffer the affidavit for quafhing the inquifition to be read. A like cafe came on in Mich, the 29th of king George 2. The King againft Drew, coroner of Middlefex. The 1 coroner's coroner's jury, upon view of the body of a perfon killed by the like ac~ cident, found that one wheel of the waggon only moved to the death" The court, on motion in behalf of the lord of the franchife, granted a rule for {hewing caufe, why the inquifuion fhould not be quafhed for this mifbehaviour of the jury. On the day for fhewing caufe, Mr. Hume Campbell, counfel for the lord of the franchife, informed the court, that upon looking into precedents he was fatisfied he could not fupport the rule, and thereupon it was difcharged. The cafe of The King and Rolfe was mentioned on this occafion, and greatly relied on. Fojl. Rep. 265. The community, fays Mr. Juftice Fofter, was fuppofed to have an in- tereft, as it really had, in the life of every member. And therefore the king, as caput reipublic2 c. 4. the penalties, feizures, foifeitures, judgments and executions incurred by force oi any of the aforefaid ftatutes, without any compofition, fee or further charge whatfoever." Sect. 4. " And be it further enafted by the authority aforefaid, That all and every perfon and perfons that mail, as aforefaid, take the faid oaths, and make and fubfcribe the declaration aforefaid, mail not be liable to any pains, penalties or forfeitures, mentioned in an act made in the five and thir- tieth year of the reign of the late queen Elizabeth, intituled, An act to retain the queen's majejly's fubjeSs in their due obedience ; nor in an a£t made in the two and twentieth year of the reign of the late king Charles the Second, intituled, An aft to prevent andfupprefs /editions conventicles ; nor fhall any of the faid perfons be profecuted in any ecclefiaftical court, for or by rea- fon of their non-conforming to the church of England. Sect. 5. " Provided always, and be it enacted by the authority afore- faid, That if any aiTembly of perfons diffenting from the church of Eng- land, fhall be had in any place for religious worfhip with the doors locked, barred or bolted during any time of fuch meeting together, all and every perfon or perfons that fhall come to and be at fuch meeting, fhall not re- ceive any benefit from this law, but be liable to all the pains and penal- ties of all the aforefaid laws recited in this acl, for fuch their meeting, notwithftanding his taking the oaths, and his making and fubferibing the declaration aforefaid. Seel. 6. " Provided always, That nothing herein contained fhall be conftrued to exempt any of the perfons aforefaid from paying of tithes or other parochial duties, or any other duties to the church or minifter, nor from any profecution in any ecclefiaftical court, or elfewhere, for the fame. Sect. 7. " And be it further enacted by the authority aforefaid, That if any perfon diffenting from the church of England, as aforefaid, fhall hereafter be chofen or otherwife appointed to bear the office of high con- ftable or petit conftable, churchwarden, overfeer of the poor, or any other parochial or ward office, and fuch perfon fhall fcruple to take upon him any of the faid offices in regard of the oaths, or any other matter or thing required by the law to be taken or done in refpect of fuch office, every fuch perfon fhall and may execute fuch office or employment by a fuffi- cient deputy, by him to be provided, that fhall comply with the laws on this behalf. Provided always, the faid deputy be allowed and approved by fuch perfon or perfons, in fuck manner as fuch officer or officers re- fpectively fhould by law have been allowed and approved. \i- Sect. 8. " And be it further enacted by the authority aforefaid, That no perfon diffenting from the church of England in holy orders, or pre- tended holy orders, or pretending to holy orders, nor any preacher or teacher of any congregation of diffenting proteftants, that fhall make and fubfcribe the declaration aforefaid, and take the faid oaths at the general or quarter-feffions of the peace to be held for the county, town, parts or divilion where fuch perfon lives ; which court is hereby impowered to ad minifter 3>t(Fentet% 753 adminifter the fame, and fhall alfo declare his approbation of and fubfcribe the articles of religion mentioned in the ftatute made in the thirteenth year isEII*. c. .♦. of the reign of the late queen Elizabeth, except the thirty-fourth, thirty- fifth, and thirty-fixth, and thefe words of the twentieth article, viz. [the church hath power to decree rites or ceremonies, and authority in controverjies of faith, and yet] (hall be liable to any of the pains or penalties mention- ed in an aft made in the feventeenth year of the reign of king Charles i7Car. z.c.z. the Second, intituled, An atl for retraining non-conformijls from inhabiting in corporations ; nor the penalties mentioned in the aforefaid aft made in the two and twentieth year of his late majefty's reign, for or by reafon of fuch perfons preaching at any meeting for the exercife of religion ; nor to the penalty of one hundred pounds mentioned in an aft made in the thirteenth and fourteenth of king Charles the Second, intituled, An atl ^fc^Car.z. for the uniformity of publick prayers and adminijlration of facraments, and other c. 4. rites and ceremonies : and for eflablifhing the form of making, ordaining and confecrating of bifhops, priejls and deacons, in the church of England, for of- ficiating in any congregation for the exercife of religion permitted and al- lowed by this act. Setl. 9. " Provided always, That the making and fubfcribing the faid Taking the declaration, and the taking the faid oaths, and making the declaration of oaths, &c. to approbation and fubfcription to the faid articles, in manner as aforefaid, be re & lftred - by every refpeftive perfon or perfons herein before-mentioned, at fuch general or quarter-feffions of the peace, as aforefaid, fhall be then and there entered of record in the faid court, for which fix-pence fhall be paid to the clerk of the peace, and no more : Provided that fuch perfon ihall Meet ; ro - j aor not at any time preach in any place, but with the doors not locked, barred c be unlock- far bolted, as aforefaid. ed. Setl. 10. " And whereas fome diffenting proteftants fcruple the bap- Anabaptifij. tizing of infants ; Be it enacted by the authority aforefaid, That every perfon in pretended holy orders, or pretending to holy orders, or preacher or teacher that fhall fubfcribe the aforefaid articles of religion, except before excepted, and alfo except part of the feven and twentieth article touching infant baptifm, and fhall take the faid oaths, and make and fubfcribe the declaration aforefaid, in manner aforefaid, every fuch perfon fhall enjoy all the privileges, benefits and advantages, which any- other diffenting minifter, as aforefaid, might have or enjoy by virtue of this aft. Setl. 11. " And be it further enafted by the authority aforefaid, That Teachers cv- cvery teacher or preacher in holy orders, or pretended holy orders, tiiat empt from of- is a minifter, preacher or teacher of a congregation, that fhall take the fice5 » oaths herein required, and make and fubfcribe the declaration aforefaid, and alfo fubfcribe fuch of the aforefaid articles of the church of England, as are required by this aft in manner aforefaid, fhall be thenceforth ex- empted from ferving upon any jury, or from being chofen or appointed to bear the office of church-warden, overfeer of the poor, or any other parochial or ward office, or other office in any hundred of any fhire, city, town, parifh, divifion or wapentake. Vol. I. N?. XXXII. 5 D Sect. 75 4 SMffentet*. Tudice of Sect - J 2 - " And be lt f urther enabled by the authority aforefaid, That peJemay ten- every juftice of the peace may at any time hereafter require any perfon, der the oaths, that goes to any meeting for exercife of religion, to make and fubfcribe &c * the declaration aforefaid, and alfo to take the oaths or declaration of fide- lity herein after mentioned, in cafe fuch perfon fcruples the taking of an Penalty for oath ; and upon refufal thereof, fuch juftice of the peace is hereby re- refufmg. quired to commit fuch perfon to prifon without bail or mainprize, and to certify the name of fuch perfon to the next general or quarter-feffions of the peace to be held for that county, city, town, part or divifion where fuch perfon then refides ; and if fuch perfon fo committed (hall, upon a fecond tender at the general or quarter-feflions, refufe to make and fub- fcribe the declaration aforefaid, fuch perfon refufing (hall be then and there recorded, and he (hall be taken thenceforth to all intents and purpofes for a popifh recufant convict, and fuffer accordingly, and incur all the penalties and forfeitures of all the aforefaid laws. Quakers how 'Sect. 13. " And whereas there are certain other perfons, diffenters exempted. from the church of England, who fcruple the taking of any oath ; Be it Altered as to ena <5ted by the authority aforefaid, That every fuch perfon (hall make and quakers by f u bfcribe the aforefaid declaration, and alfo this declaration of fidelity fol- £Geo. 1. c.o. ... lowing, viz. Declaration of " I /i.B. do fincerely promife and folemnly declare before God and fidelity. the world, that I will be true and faithful to king William and queen Mary ; and I do folemnly profefs ond declare, that I do from my heart abhor, detefl: and renounce, as impious and heretical, that damnable doctrine and pofition, That princes excommunicated or deprived by the pope,, or any author rity of the fee c/Rome, may be depofed or murthered by their fubjects, or any ether whatfoever. And I do declare, that no foreign prince, perfon, pre- late, date or potentate, hath or ought to have, any power, jurifdiction, fuperiority, pre-eminence or authority ecclefiaftical or fpiritual within this realm." And (hall fubfcribe a profeffion of their Chriftian belief in thefe words: Profeffion. " I -A- B- proofs f aitri ln God the Father, and in Jefus Chrift his eter- nal Son, the true God, and in the Holy Spirit, one God blefled for ever- more -, and do acknowledge the holy (captures of the Old and New Tefta- rnent to be given by divine inipiration." Which declarations and fubfeription (hall be made and entered of record at the general quarter-feffions of the peace for the county, city or place where every fuch perfon (hall then refide. And every fuch perfon that (hall make and fubfcribe the two declarations and profeffion afore- faid, being thereunto required, (hall be exempted from all the pains and penalties of all and every the afore-mentioned ftatutes mack' againft popifh recufants or protectant nonconforming ; and alfo from the cEliz c 1. penalties of an act made in the fifth year of the reign of the late queen Elizabeth, intituled, An act for the affurance of the queen's royal pou;>' weK. SMttimttr** 755 over a!! ejlates and fubjects within her dominions, for or by reafon of fucli perfons not taking or refufing to take the oath mentioned in the faid aft-, and alfo from the penalties of an aft made in the thirteenth and ijt-i4Car.z. fourteenth years of the reign of king Charles the Second, intituled, An act c. t. for preventing mifchiefs that may arife by certain perfons called Quakers, re- fujing to take lawful oaths ; and enjoy all other the benefits, privileges and advantages under the like limitations, provifoes and conditions, which any other diflenters mould or ought to enjoy by virtue of this aft. Sect. 14. " Provided always, and be it enafted by the authority afore- How purged faid, That in cafe any perfon fhall refufe to take the faid oaths, when after reluM of tendred to them, which every juftice of the peace is hereby impowered to the oath3 ' do, fuch perfon (hall not be admitted to make and fubicribe the two de- clarations aforefaid, though required thereunto either before any juftice of the peace, or at the general or quarter-feffions before or after any con- viftion of popifh recufancy, as aforefaid, unlefs fuch perfon can, within thirty-one days after fuch tender of the declarations to him, produce two fufficient proteftant witneffes, to teftify upon oath that they believe him to be a proteftant diffenter ; or a certificate under the hands of four pro- tectants, who are .conform able to the church of England, or have taken the oaths and fubfcribed the declaration above-mentioned, and fhall alfo produce a certificate, under the hands and feals of fix or more fufficient men of the congregation to which he belongs, owning him for one of them. Sect. 15. " Provided alfo, and be it enafted by the authority aforefaid, That until fuch certificate under the hands of fix of his congregation, as aforefaid, be produced, and two proteftant witneffes come to atteft his being a proteftant difTtnter, or a certificate under the hands of four pro- teftants, as aforefaid, be produced, the juftice of the peace fhall and here- by is required to take a recognizance with two fureties in the penal fum of fifty pounds, to be levied of his goods and chattels, lands and tene- ments, to the ufe of the king's and queen's majefties, their heirs and fuc- cefibrs, for his producing the fame ; and if he cannot give fuch fecurity, to commit him to prifon, there to remain until he has produced fuch cer- tificates, or two witnefTes, as aforefaid. Sect. 16. " Provided always, and it is the true intent and meaning of l 3WS f or ^. this aft, That all the laws made and provided for the frequenting of di- vine ferv ice « vine fervice on the Lord's day, commonly called Sunday, fhall be ftill in force. force, and executed againft all perfons that offend againft the faid laws, except fuch perfons come to forrre congregation or affembly of religious worfhip, allowed or permitted by this aft. Sect. 17. " Provided always, and be it further enafted by the authority p a pifls, kc. aforefaid, That neither this aft, nor any claufe, article or thing herein con- excepted, tained, ftiall extend or be conftrued to extend to give any eafe, benefit or advantage to any papift or popifh recufant whatfoever, or any perfon that fhall deny in his preaching or writing the doctrine of the Bleired Trinity, as it is declared in the aforefaid articles of religion. 5 D 2 §ect s 756 Dilurbers of religious vvor- fh'p how y imtlied. ipe i Geo, r JUt.s.u. 5.^.4. Tlice forwor fiiip to becer iified. Diffenters. &#. 1 8. " Provided always, and be it enafted by the authority afore- faid, That if any perfon or perfons, at any time or times after the tenth day of June, do, and fhall willingly and of purpofe, malicioufly or con- temptuoufly come into any cathedral or parifh church, chapel or other conoreo-ation permitted by this aft, and difquiet or difturb the fame, or mifufe any preacher or teacher, fuch perfon or perfons, upon proof thereof before any juftice of peace, by two or more fufficient witnefles, fhall find two fureties to be bound by recognizance in the penal fum of fifty pounds, and in default of fuch fureties fhall be committed to prifon, there to re- main till the next general or quarter-feffions •, and upon conviftion of the faid offence at the laid general or quarter-fefllons, fhall fuffer the pain and penalty of twenty pounds, to the ufe of the king's and queen's majefties, tht-ir heirs and fucceffors. Seel. 19. " Provided always, That no congregation or affembly for re- ligious worfhip fhall be permitted or allowed by this aft, until the place of fuch meeting fhall be certified to the bifhop of the diocefe, or to the archdeacon of that archdeaconry, or to the juftices of the peace at the general or quarter-feffions of the peace for the county city or place in which fuch meeting fhall be held, and regiftred in the faid bifhop's or archdeacon's court refpeftively, or recorded at the faid general or quarter- feffions •, the regifter or clerk of the peace whereof refpeftively is hereby required to regifter the fame, and to give certificate thereof to fuch per- fon as fhall demand the fame, for which there fhall be no greater fee nor reward taken than the fum of fixpence." Sitilt. io Arm, e.2. [A. D. 1711.] made, among other purpofes, " for confirming the toleration granted to proteftant diffenters by an a<5t intitu- led, An ail for exempting their majefties protejlant fubjects, dijfenting from the church of England, from the penalties of certain laws, and for fupplying the defefts thereof." If any diflfen- ter, (not in holy orders, &c.) who would have been en- titled to the benefit of that aft, if he had tdken the oaths, &c. is or (hall be profecutedup on any penal llatute, &c. fhall, during fuch profecu- iUin take the cubs, &c. or Sect. 8. " And for the rendering the faid Iaft mentioned aft more efFeftual according to the true intent and meaning thereof} Be it further enafted and declared by the authority aforefaid, That if any perfon diffenting from the church of England, ( not in holy orders or pretended holy orders, or pretending to holy orders, nor any preacher or teacher of any congrega- tion) who fhould have been entitled to the benefit of the faid laft-men- tioned aft, if fuch perfon had duly taken, made and fubferibed the oaths and declaration, or otherwife qualified him or herfelf, as required by the faid aft, and now is or ft*all be profecuted upon or by virtue of any o£ the penal ftatutes, from which proteftant diffenters are exempted by the faid aft, fhall at any time during fuch profecution, take, make and fub- feribe the laid oaths and declaration, or being of the people called Quakers, fhall make and fubferibe the aforefaid declaration, and alfo the declara- tion of fidelity, and fubferibe the profeffion of their Chriftian belief accor- ding to the faid aft, or before any two of her majefty's juftices of the 3 peace 2Dtffen tets. 757 peace (who are hereby required to take and return the fame to the next beingaquaker quarter-feffions of the peace, to be there recorded) fuch perfon fhall be, fj>a'l makethe and is hereby entitled to the benefit of the laid aft, as fully and effeftu- ° e c daratl0n ' ally as if fuch perfon had duly qualified himfelf within the time prefcribed j, e (hall be ia- by the faid act, and fhall be thenceforth exempted and difcharged from titled to the all the penalties and forfeitures incurred by force of any the aforefaid penal benefit of the itatutes. . *' Sect. 9. " And whereas it is or may be doubted whether a preacher a dimming or teacher of any congregation of diffenting protectants, duly in all re- teacher, qua- fpefts qualified according; to the faid aft, be allowed, by virtue of the ! lfied ac , cor _ d " laid act, to officiate in any congregation in any county, other than that a £ offi . in which he fo qualified himfelf, although in a congregation or place of date in any meeting duly certified and regiftred as is required by the faid aft •, Be it other county declared and enacted by the authority aforefaid, That any fuch preacher than where he or teacher, fo duly qualified according to the faid aft, fhall be and is was 1 u e • hereby allowed to officiate in any congregation, although the fame be not in the county wherein he* was fo qualified •, provided that the faid congregation or place of meeting hath been, before fuch officiating, duly certified and regiftred or recorded according to the faid aft : And fuch ^ ^j nff a preacher or teacher fhall, if required, produce a certificate of his having certificate, &c. fo qualified himfelf, under the hand of the clerk of the peace for the of his having county or place where he fo qualified himfelf; which certificate fuch clerk qualified him- of the peace is hereby required to make; and fhall alfo before any ju r - jj* 1 f ' ^ c ' a " d tice of the peace of fuch county or place where he fhall fo officiate, make re( j ^ake & t and fubferibe fuch declaration, and take fuch oaths as are mentioned in declaration, the faid aft, if thereunto required. & c - Diftrcte* 758 Btftrefs. DISTRESS is the thing which is taken and diftrained upon any land for rent behind, or other duty, or for hurt done, although the pro- perty of the thing belongeth to a ftranger. Termes dela ley. ©tat 2 Will. & Mar. fejf. i. c. 5. [A. B. 1690. Intituled'] " An act for enabling fale of goods diftrained for rent, in cafe the rent be not paid in a reafonable time." " Whereas the moft ordinary and ready way for recovery of arrears of rent is by diftrefs •, yet fuch diftrefies not being to be fold, but only de- tained as pledges for enforcing the payment of fuch rent, the perfons dif- training have little benefit thereby : For the remedying whereof, ■Goods dif- SeEl. 2. " Be it enacted and ordained by the king's and queen's moft ex- trained for cellent majefties, by and with the advice and confent of the lords fpiritual rent may be anc } temporal, and commons, in this prelent parliament affembled, and by fold^' C a " ' t ' ie aut h°rity of the fame, That from and after the firft day of June in the year of our Lord one thoufand fix hundred and ninety, that where Farther pro- any goods or chattels fhall be diftrained for any rent referved and due vided for by U p 0n ar) y demife, leafe or contract whatfoever, and the tenant or owner ' of the goods fo diftrained fhall not within five days next after fuch dif- trefs taken, and notice thereof (with the.caufe of fuch taking) left at the chief manfion-houfe, or other moft notorious place on the premiffes char- ged with the rent diftrained for, replevy the fame, with fufncient fecu- rity to be given to the fheriff, according to law, that then in fuch cafe, after fuch diftrefs and notice as aforefaid, and expiration of the faid five days, the perfon diftraining fhall and may, with the fheriff or under fhe- riff of the county, or with the conftable of the hundred, parifh or place where fuch diftrefs fhall be taken (who are hereby required to be aiding and affifting therein) caufe the goods and chattels fo diftrained to be ap- praifed by two fworn appraifers (whom fuch fheriff, under-fheriff, or con- ftable, are hereby impowered to fwear) to appraife the fame truly, accor- ding to the beft of their underftandings •, and after fuch appraifement fhall and may lawfully fell the goods and chattels fo diftrained for the beft price can be gotten for the fame, towards fatisfaction of the rent for which the faid goods and chattels fhall be diftrained, and of the charges of fuch diftrefs, appraifement and fale, leaving the overplus (if any) in the hands of the faid fheriff, under- fheriff or conftable, for the owner's ufe. Oornloofe kc. ^ ectl 3- " And whereas no fheaves or cocks of corn loofe or in the maybedetain- ftraw, or hay in any barn or granary, or on any hovel, ftack or rick, can by edand fold, the law be diftrained, or otherwife fecured for rent, whereby landlords are oftentimes coufened and deceived by their tenants, who fell their corn, grain fl>fftref& 759 grain and hay, to Grangers, and remove the fame from the premifTes chargeable with fuch rent, and thereby avoid the payment of the fame ; Be it further enacted by the authority aforefaid, That for remedying the laid practice and deceit, it (hall and may, from and after the faid firft day of June, be lawful to and for any perfon or perfons having rent arrear and due upon any fuch demife, leafe or contract as aforefaid, to feize and fecure any (heaves or cocks of corn, or corn loofe or in the ftraw, or hay lying or being in any barn or granary, or upon any hovel, flack or rick, or otherwife upon any part of the land or pound charged with fuch rent, and tO lock up or detain the fame in the place where the fame fhall be found, for or in the nature of a diftrefs, until the fame fliall be replevied upon fuch fecurity to be given as aforefaid ; and in default of reple- vying the "fame as aforefaid, within the time aforefaid, to fell the fame after fuch appraifement thereof to be made ; fo as neverthe- lefs fuch corn, ; grain or hay fo diftrained as aforefaid, be not remo- ved by the perfon or perfons diftraining, to the damage of the owner thereof, out of the place where the fame fhall be found and feized, but be kept there (as imp3unded) until the fame fliall be replevied, or fold in default of replevying the fame within the time aforefaid. Sect. 4. " And be it further enacted by the authority aforefaid, That upon any pound-breach or refcous of goods or chattels diftrained for Treble dama- renr, the perfon or perfons grieved thereby fhall, in a fpecial action up- ges for pound- on the cafe for the wrong thereby fuftained, recover his and their treble breach, damages and cofts of fuit againft the offender or offenders in any fuch , L 2I , refcous or pound-breach, any or either of them, or againft the owners of Carthew 321'. the goods diftrained, in cafe the fame be afterwards found to have come to his ufe or pofTefllon. Sect 5. " Provided always, and be it further enacted, That in cafe any fuch diftrefs and fale, as aforefaid, fhall be made by virtue or colour of Double da- this prefent act for rent pretended to be arrear and due, where in truth mages and no rent is arrear or due to the perfon or perfons diftraining, or to him or cofts againft them in whofe name or names, or right, fuch diftrefs fliall be taken as "^J! aforefaid •, that then the owner of fuch goods or chattels diftrained and fold as aforefaid, his executors or adminiftrators fhall and may, by action of trefpafs, or upon the cafe, to be brought againft the perfon or perfons fo diftraining, any or either of them, his or their executors or adminiftra- tors, recover double of the value of the goods or chattels fo diftrained and fold, together with full cofts of fuit." %tHt- 8 Ann. c. 14. [A. D. iyog. Intituled'] " An act for the better fecurity of rents, and to prevent frauds committed by tenants." " For the more eafy and effectual recovery of rents referved on leafes for life or lives, term of years, at will, or otherwife ; Be it enacted by the queen's moft excellent majefty, by and with the advice and content of 2 the trawer. 7 6o SMfttefa. the lords fpiritual temporal, and commons in parliament afiembled, and After the firft ^y ^ auc [ 10r i t y or t he fame, That from and after the firft day of May, oods 7 &c' which fhall be in the year of our Lord one thoufand fevea hundred and ihaH be taken ten, no goods or chattels whatfoever, lying or being in or upon any mef- in execution, fuage, lands or tenements, which are or lhall be leafed for life or lives, &c unlefs the Krm f vearS) a t w m or otherwife, fhall be liable to be taken by virtue party valo7the °f an y execut ' on on an y pretence whatfoever, unlefs the party at whofe goods, &c fuit the laid execution is fued out, fhall before the removal of fuch goods pay the land- from off the laid premiffes, by virtue of fuch execution or extent, pay to lord the rent t ] ie landlord of the faid premiffes, or his bailiff, all fuch fum or fums of due- money as are or lhall be due for rent for the faid premiffes at the time Provided it of the taking fuch goods or chattels by virtue of fuch execution ; Provi- amount to no d ef j the faid arrears of rent do not amount to more than one year's rent, more than one anc j j n ca f e ^ ^jj arrears fhall exceed one year's rent, then the faid par- year s ren . ^ at whofe fuit fuch execution is fued out, paying the faid landlord or his The (heriff, bailiff one year's rent, may proceed to execute his judgment as he might &c. to levy the have done before the making of this aftj and the lheriff or other offi- rentas well as c£r j s hereby impowered and required to levy and pay to the plaintiff as the execution- nur-jr i_ • money we *' trie mone y »° P ai d for. rent as the execution-money. Sect. 2. " And be it further enacted by the authority aforefaid, That If after theiaid j n ca f e an y ] e fj ee f or i[f e or ii ves> term f years, at will or otherwife, of leflee&c. rneffuages, lands or tenements, upon demife whereof any rents are or ihall fraudu- fhall be referved or made payable, lhall, from and after the faid firft day lentlycanyoff of May, fraudulently or clandestinely convey or carry off or from fuch de- his Roods, &c m ;f ec i premiffes his goods or chattels, with intent to prevent the landlord f, °"? ne h F i e e f" or leffor from diftraining the fame for arrears of fuch_rent fo referved, as lor &c. may aforefaid, it fliall and may be lawful to and for fuch leffor or landlord, within five or any perlbn or perfons by him for that purpofe lawfully impowered, days after within the fpace of five days next enfuing fuch conveying away or carry-- ie[ze fuc £ ing off fuch goods or chattels, as aforefaid, to take and feize fuch goods Kd fell the" an d chattels where ever the fame fhall be found, as a diftrefs for the faid fame as if they arrears of fuch rent; and the fame to fell, or otherwife difpofe of, in fuch had been di manner as if the faid goods and chattels had actually been diftrained by fuch llrained on the j e ff or or landlord, in and upon fuch demifed premiffes for fuch arrears of premi es. rent . } a ny law, cuftom or ufage to the contrary in any wife notwithftand- Provifo, fuch ing. leffor, &c. Setl. 3, " Provided neverthelefs, That nothing in this aft contained (lull not fe:ze fhall extend, or be conftrued to extend, to impower fuch leffor or land- an> "rTniallbe ^ or ^ t0 ta ^ e or ** e ' ze an y g 00 ^ 5 or chattels as a diftrefs for arrears of rent, b.ina fide fold which lhall be fold bona fide, and for a valuable confederation, before fuch bdore fuch feizure made ; any thing herein contained to the contrary notwithftand- ftizure. ing. After the faid SeiJ. 4. " And whereas no aftion of debt lies againft a tenant for life firft o.t May or lives, for any arrears of renr, during the continuance of fuch eftate for an aaion ot hfe or lives ; Be it enacted by the authority aforefaid, That from and af- debt may be Kr j.^ jU£ j-g. , Q £ ^ - ^^jj an j m be j aw f u l f or any „ er f n Or brought a- - , . ■ ' . , ' 1 c' j •/•' r 5 tena perlons, having any rent in arrear, or due upon any leaie or demile tor lire Di'ftrete. 761 lite or lives, to bring an action or actions of debt for fuch arrears of rent, fo:!l ^ for in the fame manner they might have done in cafe fuch rent were due, and a | ea f e f or ijfe reicrved upon a leafe for years. In the fame Sett. 5. " And it is hereby further enafted and declared by the autho- manner as if it rity aforefaid, That all diftrelTes hereby impowered to be made, as afore- J v " e f dueon * laid, fhall be liable to fuch fales, and in fuch manner, and the monies DiRreiTes tia- ariiing by fales to be diftributed in like manner as by an act made in the ble to iuch iecond year of the reign of their late majefties king William and queen fales, and to be Mary, [intituled, An a ft for enabling the fale of goods difirained for rent, in fo diftributed, cafe the rent be not paid in reafonable time,] in that behalf directed and ap- *\ v y s^m" pointed. ^ seff."i. c. j. Sect. 6. " Alio whereas tenants per auter vie and leffees for years, or at is directed. will, frequently hold over the tenements to them demifed, after the de- termination of fuch leafes : And whereas after the determination of fuch Rent in or any other leafes, no diftrefs can by law be made for any arrears of rent a Yeafe for°life that grew due on fuch refpective leafes before the determination thereof-, Sec. expired.' It is hereby further enafted by the authority aforefaid, That from and af- may be dif- ter the faid firft day of May one thoufand feven hundred and ten, it tra;ncd foT fhall and may be lawful for any perfon or perfons, having any rent in ar- ter ^ in Jj 0n e " o f rear, or due upon any leafe for life or lives, or for years, or at will, end- ,h e faid leafe, ed or determined, to diftrain for fuch arrears, after the determination of in the fame the faid refpective leafes, in the fame manner as they might have done if n> aniier as lf fuch leafe or leafes had not been ended or determined. " , ■ Sect. 7. " Provided, That fuch diftrefs be made within the fpace of C£ j fix kalendar months after the determination of fuch leafe, and during the continuance of fuch landlord's title or intereft, and during the pofiefilon Dll ? rers .,. of the tenant from whom fuch arrear became due. ". ^mlis" 1 Sect. 8. " Provided always, and it is hereby enacted and declared by the a f ter t he end authority aforefaid, That nothing in this aft. contained fhall extend, or be of the leafe, conftrued to extend to let, hinder or prejudice her majefty, her heirs or fuc- and ^urirgthe cefTors, in the levying, recovering or feizing any debts, fines, penalties lar ' dlord 3 "' e or forfeitures, that are or fhall be due, payable or anfwerable to her ma- po fl- e £i on . jefty, her heirs or fuccefibrs •, but that it fhall and may be lawful for her This aft (ball majefty, her heirs and fuccefibrs, to levy, recover and feize fuch debts, not hinder the fines, penalties and forfeitures, in the fame manner as if this act had ne- queen, &c. ver been made; any thing in this act contained to the contrary thereof t0 lev /l &c " ... . ,J ,. ° „ > any debts, in any wile notwithftanding. fln ; 5) ^ due to the crown. ©tilt 4 Geo. 2. c. 28. [A. D. 173 r. Intituled] " An aft for the more effectual preventing of frauds committed ,by tenants, and for the more eafy recovery of rents, and renewal of leafes." " For fecuringto leffbrs and land-owners their juft rights, and to prevent frauds frequently committed by tenants-, Be it enacted by the king'^ molt excellent majefty, by and with the advice and confent of the lords fpiritual Vol. I. N* XXXII. 5 K and 7 6 2 SDifttefe* and temporal, and commons, in this prefent parliament affembled, and by Perfohs hold- the authority of the fame, That in cafe any tenant or tenants for any term ingover lands, f life, lives or years, or other perfon or perfons, who are or fhall come Sec. after ex- - mtQ p n; e rri on Q f any lands, tenements or hereditaments, by, from orun- feafeHopay der, or by collufion with fuch tenant or tenants, fhall wilfully hold over double the any lands, tenements or hereditaments, after the determination of fuch yearly value, term or terms ; and after demand made, and notice in writing given, for delivering the poffeffion thereof, by his or their landlords or leffors, or the perfon or perfons to whom the remainder or reverfion of fuch lands, tene- ments or hereditaments fhall belong, his or their agent or agents there- unto lawfully authorized •, then, and in fuch cafe, fuch perfon or perfons fo holdino- over, fhall, for and during the time he, (he and they fhall fo hold, over, or keep the perfon or perfons intitled, out of poffeffion of the laid lands, tenements and hereditaments, as aforefaid, pay to the perfon or perfons fo kept out of poffeffion, their executors, adminiftrators or affigns, at the rate of double the yearly value of the lands, tenements and here- ditaments fo detained, for fo long time as the fame are detained, to be recovered in any of his majefty's courts of record, by action of debt, whereunto the defendant or defendants fhall be obliged to give fpe- cial bail, againft the recovering of which faid penalty there fhall be no relief in equity. SeB. 2. " And whereas great inconveniencies do frequently happen to leffors and landlords, in cafes of re-entry for non-payment of rent, by rea- fon of the many niceties that attend re-entries at common law ; and for- almuch as when a legal re-entry is made, the landlord or leffor muft be at the expence, charge and delay of recovering in ejectment, before he can obtain the actual poffeffion of the demifed premiffes •, and it often hap- pens that after fuch a re-entry made, the leffee or his affignee, upon one or more bills filed in a court of equity, not only holds out the leffor or landlord, by an injunction, from recovering the poffeffion, but likewife pending the faid fuit, do run much more in arrear, without giving any fecurity for the rents due, when the faid re-entry was made, or which. fhall or do afterwards incur : For remedy whereof, Be it enacted by the On half a authority aforefaid, That in all cafes between landlord and tenant, from year's rent in and after the twenty-fourth day of June one thoufand feven hundred and arrear, land- tn i r ty-one, as often as it fhall happen that one half year's rent fhall be in. lord may re- arrear ^ anc j tne landlord or leffor to whom the fame is due hath right by ^declaration 5 law to re-enter for the non-payment thereof, fuch landlord or leffor fhall ©f ejeflment. and may,, without any formal demand or re-entry, ferve a declaration in ejectment for the recovery of the demifed premiffes, or in cafe the fame cannot be legally ferved, or no tenant be in actual poffeffion of the pre- miffes, then to affix the fame upon the door of any demifed meffuage •, or in cafe fuch ejectment fhall not be for the recovery of any meffuage, then upon fome notorious place of the lands, tenements or herediments, com- prized in fuch declaration. in ejectment, and fuch affixing fhall be deem- ed legal fervice thereof ; which fervice, or affixing fuch declaration in eject- &>tfttefe. 763 ejectment, fliall ftand in the place and (lead of a demand and re-entry ; and in cafe of judgment againft the cafual ejector or nonfuit for not con- feffing leafe, entry and oujier, it mail be made appear to the court where the faid fuit is depending, by affidavit, or be proved upon the trial, in cafe the defendant appears, that half a year's rent was due before the faid declaration was ferved, and that no fufficient diftrefs was to be found on the demiied premiffes, countervailing the arrears then due, and that the lefibr or leffors in ejectment had power to re-enter ; then, and in When leilbr every fuch cafe, the lefTor or leffors in ejectment {hall recover judgment in eje&ment and execution, in the fame manner as if the rent in arrear had been le- . ma y recov er gaily demanded, and a re-entry made ; and in cafe the leflee or leffees, J uc) g raent i &c < his, her or their affignee or aflignees, or other perfon or perfons claiming or deriving under the faid leafes, mall permit and fuffer judgment to be had and recovered on fuch ejectment, and execution to be executed thereon, without paying the rent and arrears, together with full cofts, and without filing any bill or bills for relief in equity, within fix calendar months after fuch execution executed ; then, and in fuch cafe, the faid lefiee or leffees, his, her or their affignee or aflignees, and all other per- fons claiming and deriving under the faid leafe, fliall be barred and fore- clofed from all relief or remedy in law or equity, other than by writ of error, for reverfal of fuch judgment, in cafe the fame lhall be erroneous; and the faid landlord or leffbr fhall from thenceforth hold the faid de- mifed premiffes difcharged from fuch leafe; and if on fuch ejectment verdict fhall pafs for the defendant or defendants, or the plaintiff or plain- tiffs lhall be nonfuited therein, except for the defendant or defendants not confeffing leafe, entry, and cujler ; then in every fuch cafe fuch de- fendant or defendants fliall have and recover his, her and their full cofts : Provided always, That nothing herein contained fhall extend to bar the ^ ot t0 ^ 3t , he right of any mortgagee or mortgagees of fuch leafe, or any part thereof, right of any who fliall not be in poffeffion, fo as fuch mortgagee or morgagees fliall mortgagee, and do, within fix calendar months after fuch judgment obtained, and execution executed, pay all rent in arrear, and all cofts and damages fuftained by fuch lefibr, perfon or perfons intitled to the remainder or reverfion, as aforefaid, and perform all the covenants and agreements, which on the part and behalf of the firft lefiee or leffees are and ought to be performed. Sect. 3. " And be it further enacted by the authority aforefaid, That LeiTees filing in cafe the faid leflee or lefiees, his, her or their affignee or affignees, or bil1 in «ju>iy. other perfon or perfons claiming any right, tide or intereft, in law or "° : t0 1 ? ave an equity, of, in or to the faid leafe, fliall, within the time aforefaid, file '"^ l ™*~ one or more bill or bills, for relief in any court of equity, fuch perfon or deeding at perfons fhall not have or continue any injunction, againft the proceedings law, &c. at law on fuch ejectment, unlefs he, flie or they do or fhall, within forty days next after a full and perfect anfwer fliall be filed by the lefibr or leffors of the plaintiff in fuch eje&ment, bring into court, and lodge with the proper officer fuch fum and fums of money as the lefibr or leffors of 5E2 the 764 SDfftrefe. the plaintiff in the faid ejectment fhall, in his, her or their anfwer, fwear to be due and in arrear, over and above all juft allowances, and alfo the cofts taxed in the faid fuit, there to remain till the hearing of the caufe, or to be paid out to the leffor or landlord, on good fecurity, fubject to the decree of the court -, and in cafe fuch bill or bills (hall be filed within the time aforefaid ; and after execution is executed, the leffor or leffors of the plaintiff fhall be accountable only for fo much, and no more, as he, fhe or they fhall really and bona fide, without fraud, deceit or wilful ne- glect, mefce of the demifed premiffes, from the time of his, her or their entering into the actual poffeffion thereof •, and if what fhall be fo made by the leffor or leffors of the plaintiff, happen to be lei's than the rent re- ferved on the faid leafe, then the faid leffee or leffees, his, her or their affignee or afTignees, before he, fhe or they fhall be reftored to his, her or their poffeflion or poffeffions, fhall pay fuch leffor or leffors, or landlord or landlords, what the money fo by them made, fell fhort of the reier- ved rent, for the time fuch leffor or leffors of the plaintiff, landlord or landlords, held the faid lands. Tenant pay- Seff. 4. " Provided always, and be it further enacted by the authority irg all rent aforefaid, That if the tenant or tenants, his, her or their affignee or af- wuh cofts f,g n ees, do or fhall, at any time before the trial in fuch ejectment, pay or toT^fe!" 8 ' tender to the leffor or landlord, his executors or adminiftrators, or his, her or their attorney in that caufe, or pay into the court where the fame caufe is depending, all the rent and arrears, together with the colls •, then, and in fuch cafe, all further proceedings on the faid ejectment fhall ceafe and be difcontinued •, and if fuch leffee or leffees, his, her or their exe- cutors, adminiftrators or affigns, fhall, upon fuch bill filed as aforefaid,. be relieved in equity, he, fhe and they fhall have, hold, and enjoy the demifed lands, according to the leafe thereof made, without any new leafe to be thereof made to him, her or them. Method of re- Se8. 5. " And whereas the remedy for recovering rents, feck rents of covering feck a ffize, and chief rents, are tedious and difficult •, Be it therefore enacted icnts, &c. ky t j^ e au thority aforefaid, That from and after the twenty-fourth day of June one thoufand feven hundred and thirty-one, all and every perfon or perfons, bodies politick, and corporate, fhall and may have the like remedy by diftrefs, and by impounding and felling the fame, in cafes of rents, feck rents of affize and chief rents, which have been duly anfwered or paid for the fpace of three years, within the fpace of twenty years be- fore the firft day of this prefent feffion of parliament, or fhall be hereafter created, as in cafe of rent referved upon leafe •, any law or ufage to the contrary notwithftanding. Sett. 6. " And whereas many perfons hold confiderable eftates by leafes for lives or years, and leafe out the fame in parcels to feveral under te- nants : And whereas many of thofe leafes cannot by law be renewed with-, out a furrender of all the under leafes derived out of the fame, fo that it is in the power of any fuch under tenants to prevent or delay the renew- ing of the principal leafe, by refufing to furrender their under leafes, notwith- 3>iftrefe. 765 notwithstanding they have covenanted fo to do, to the great prejudice of their immediate landlords, the firft leffees : for preventing fuch inconve- niencies, and for making the renewal of leafes more eafy for the future; Be it enacted by the authority aforefaid, That in cafe any leafe fhall be chief leafe- duly furrendered, in order to be renewed, and a new leafe made and exe- may be re' cuted by the chief landlord or landlords, the fame new leafe fhall, wichout newed with- a furrender of all or any the under leafes, be as good and valid, to all in- out furrende '- tcnts and purpofes, as if all the under leafes derived thereout had been ^ j lll ( . tncun ' likewife furrendered at or before the taking of fuch new leafe ; and all and every perfon and perfons, in whom any eftate for life or lives, or for years, fhall from time to time be veiled by virtue of fuch new leafe, and his, her and their executors and administrators, fhall be intitled to the rents, co- venants and duties, and have like remedy for recovery thereof, and the under leffees fhall hold and enjoy the meffuages, lands and tenements in the refpective under leafes comprifed, as if the original leafes, out of which the refpective under leafes are derived, had been ftill kept on foot and continued, and the chief landlord and landlords fhall have and be intitled to fuch and the fame remedy, by diftrefs or entry in and upon the meflliages, lands* tenements and hereditaments comprifed in any fuch under leafe, for the rents and duties referved by fuch new leafe, fo far as the fame exceed not the rents and duties referved in the leafe, out of which fuch under leafe was derived, as they would have had in cafe fuch former leafe had been ftill continued, or as they would have had in. cafe the re- fpective under leafes had been renewed under fuch new principal leafe ; any law, cuftom or ufage to the contrary hereof notwithstanding. Seil. 7. " Provided always, That nothing in this act contained fhall Not to ex:«ii extend to that part of Great Britain called Scotland, to Scotland, ©tilt. 1 1 Geo. 2. c. 19. [/£ D. 1738. Intituled] " An act for the more effectual fecuring the payment of rents, and preventing frauds by te- nants." " Whereas the feveral laws heretofore made for the better fecuritv of P „ „w!^ rents, and to prevent frauds committed by tenants, have not proved iuf- ficient to obtain the good ends and purpofes defigned thereby, but rather the fraudulent practices of tenants, and the mifchief intended by the faid acts to be prevented, have of late years increafed, to the great lofs and damage of their leflbrsand landlords : For remedy whereof, may it pleafe your molt excellent majefty that it may be enacted •, and be it enacted by the king's moft excellent majefty, by and with the advice and confent of the lords, fpiritual and temporal, and commons, in this prefent parliament afTembled,. and by the authority of the fame, That from and after the twenty-fourtln day of June in the year of our Lord one thoufand feven hundred and. '°" j5 ; thirty-eight, in cafe any tenant or tenants, lefleeor leffees for life or lives, -^1m\ goods term of years, at will, fufferance or otherwife, of any meflliages, lands, fraudulently tenements or hereditaments, upon the demife or holding whereof any carried off tb* rcnc premiffiu,. 7 66 2Dt'Grcfe. rent is or (hall be referved, due or made payable, (hall fraudlently or clandeftinely convey away, or carry off or from fuch premiffes, his, her or their goods or chattels, to prevent the landlord or leffor, landlords or leffors, from diftraining the fame for arrears of rent fo referved, due or made payable •, it (hall and may be lawful to and for every landlord or leffor, landlords or leffors, within that part of Great Britain called Eng- land, dominion of Wales, or the town of Berwick upon Tweed, or any per- fon or perfons by him, her or them for that purpofe lawfully impowered, within the fpace of thirty days next enfuing fuch conveying away or car- rying off fuch goods or chattels as aforefaid, to take and feize fuch goods and chattels, wherever the fame (hall be found, as a diftrefs for the faid arrears of rent •, and the fame to fell or otherwife difpofe of in fuch man- ner as if the faid goods and chattels had actually been diftrained by fuch leffor or landlord, leffors or landlords in and upon fuch premiffes for fuch arrears of rent ; any law, cuftom or ufage to the contrary in any wife not- withftanding. unlcf: fold to SeoJ. 2. " Provided always, That no landlord or leffor, or other perfon any perfon not intitled to fuch arrears of rent, fliall take or feize any fuch goods or chat- f/'ud t0 ' C te ^ s as a diftrefs f° r tne feme, which (hall be fold bona fide, and for a va- luable confideration, before fuch feizure made, to any perfon or perfons not privy to fuch fraud as aforefaid; any thing herein contained to the con- trary notwithstanding. Pen It on the Sefl- 3- " And to deter tenants from fuch fraudulent conveying away faid fraud, or their goods and chattels, and others from wilfully aiding or affifting there- affifting there- in, or concealing the fame •, Be it further enacted by the authority afore- t°« f.iid, That from and after the faid twenty-fourth day of June, if any fuch tenant or leffee (hall fraudulently remove and convey away his or her goods or chattels, as aforefaid ; or if any perfon or perfons (hall wilfully and knowingly aid or affift any fuch tenant or leffee in fuch fraudulent con- veying away or carrying off of any part of his or her goods or chattels, or in concealing the fame ; all and every perfon or perfons fo offending fliall forfeit and pay to the landlord or landlords, leffor or leffors, from whole eftate fuch goods and chattels were fraudulently carried off as afore- faid, double the value of the goods by him, her or them refpedtively carried off or concealed as aforefaid ; to be recovered by action of debt in any of his majefty's courts of record at Weftminfter, or in the courts of feffion in the counties palatine of Chejler, Lancajler or Durham reflective- ly, or in the court of grand feffions in Wales ; wherein no eflbign, pro- tection or wager of law fliall be allowed, nor more than one impar- lance. If the goods Setl. 4. " Provided always, and be it enacted by the authority afore- «xceed not the faid, That where the goods a'.d chattels fo fraudulently carried off or T^nf °I 5 ° '' concealed fliall not exceed the value of fifty pounds, it fliall and n>ay be have recourfe lawful for the landlord or landlords, from whole eftate fuch goods or chat- aotwojullices. tels were removed, his, her or their bailiff, fervant or agent, in his, her or their behalf, to exhibit a complaint in writing againft fuch offender or often- Diftrefe. 767 offenders before two or more juftices of the peace of the fame county, riding or divifion of fuch county, refiding near the place whence fuch goods and chattels were removed, or near the place where the fame were found, not being interefted in the lands or tenements whence fuch goods were removed -, who may fummon the parties concerned, examine the fact, and all proper witneffes upon oath •, or if any fuch witneffes be one of the people called Quakers, upon affirmation required by law ; and in a fummary way determine, whether fuch perfon or perfons be guilty of the offence, with which he or they are charged ; and to enquire in like manner of the value of the goods and chattels by him, her or them refpectively fo fraudulently carried off or concealed as aforefaid •, and, upon full proof of the offence, by order under their hands and feals, the faid juftices of peace may and fhall adjudge the offender or offenders to pay double the value of the faid goods and chattels to fuch landlord or landlords, his, her or their bailiff, fervant or agent, at fuch time as the faid juftices fhall appoint : And in cafe the offender or offenders having notice of fuch or- der, fhall refufe or neglect fo to do, may and fhall, by warrant under their hands and feals, levy, the fame by diftrefs and fale of the goods and chattels of the offender or offenders ; and for want of fuch diftrefs may commit the offender or offenders to the houfe of correction, there to be kept to hard labour without bail or mainprize for the fpace of fix months, unlefs the money fo ordered to be paid as aforefaid fhall be fooner fa- tisfied. Seol. 5. " Provided alfo, That it fhall and may be lawful for any per- Appeal from fon, who thinks himfelf aggrieved by fuch order of the faid two juftices, them to the to appeal to the juftices of peace at their next general or quarter-feffions q uart roots, fruits, pulfe or other product which fhall be growing cedfe, if rent as aforefaid, at any time before the fame fhall be ripe and cut, cured or .be paid before gathered, the tenant or leffee, his or her executors, adminiflrators or affigns, it be cut. ma ]i p av or caufe to be paid to the leffor or landlord, leflbrs or landlords, for whom fuch diftrefs fhall be taken, or to the fteward or other perfon ufually employed to receive the rent of fuch leffor or leffors, landlord or landlords, the whole rent which fhall be then in arrear, together with i the the full cods and charges of making fuch diflrefs, and which Ihafl have been occafioned thereby ; that then, and upon fuch payment or lawful tender thereof actually made, whereby the end of fuch diftrefs will be fully anfwered, the fame and every part thereof fhall ceafe ; and the corn, grafs, hops, roots, fruits, pulfe or other product fo diftrained, fhall be delivered up to the leffee or tenant, his or her executors, administrators or affigns •, any thing herein before contained to the contrary notwith- ftanding. Sett. 10. " And whereas great difficulties and inconveniencies frequent- ly arife to landlords and leffors, and other perfons taking diftrefs for rent, in removing the goods and chattels or ftock diflrained off the pre- mhTes, in cafes where by law they may not be impounded and fecured thereupon-, and alfo to the tenants themfelves many times, by the damage unavoidably done to fuch goods and chattels, or ftock, in the removal thereof-, Be it enacted by the authority aforefaid, That, from and after the faid twenty-fourth day of June one thoufand feven hundred and thirty- D .„ - eight, it fhall and may be lawful to and for any perfon or perfons lawful- befecured.and ly taking any diftrefs for any kind of rent, to impound or otherwife fe- fold on the cure the diftrefs fo made, of what nature or kind foever it may be, in premifles. fuch place or on fuch part of the premifies chargeable with the rent, as fhall be moft fit and convenient for the impounding and fecuring fuch di- ftrefs ; and to appraife, fell and difpofe of the fame upon the pre- miffes, in like manner and under the like directions and reftraints to all intents and purpofes, as any perfon taking a diftrefs for rent may now do off the prerniffes, by virtue of an aft made in the fecond year of the reign of king William and queen Mary, intituled, An aft for enabling the fale of goods diftrained, for rent, in cafe the rent be not -paid in a reafonable time ; or of another act made in the fourth year of his prefent majefty, intituled, An ad for the more effectual preventing frauds committed by tenants, and for the more eafy recovery of rents and renewal of leafes ; and that it fhall and may be lawful to and for any perfon or perfons whatfoever, to come and go to and from Inch place or part of the faid prerniffes, where any diftrefs for rent (hall be impounded and fecured as aforefaid, in order to view, appraife and buy, and alfo in order to carry off or remove the fame, on account of the purchafer thereof-, and that if any pound-breach or refcous fhall be made of any goods and chattels or ftock diftrained for rent, and impounded or otherwife fecured by virtue of this act, the perfon or per- fons aggrieved thereby fhall have the like remedy as in cafes of pound- breach or refcous is given and provided by the faid ftatute. Seel. 11. " And whereas the poffeffion of eftates in lands, tenements and hereditaments is rendered very precarious by the frequent and fraudu- lent practice of tenants, in attorning to ftrangers, who claim title to the eftates of their refpective landlord or landlords, leffor or leffors, who by that means are turned out of poffeffion of their refpective eftates, and put to the difficulty and expence of recovering the poffeffion thereof by actions or fuits at law ; for remedy thereof, Be it enacted by the autho- Vol. I. N'XXXIU. 5 F rity 770 Mftttte* Attornment of rity aforefaid, That from and after the faid twenty-fourth day of June tenants void. i n the year of our Lord one thoufand feven hundred and thirty-eight, all and every fuch attornment and attornments of any tenant or tenants of any meffuages, lands, tenements or hereditaments, within that part of Great Britain called England, dominion of Wales or town of Berwick up- on Tweed, mall be abfolutely null and void to all intents and purpofes whatfoever; and the poffefilon of their refpective landlord or landlords, lef- for or leffors, fhall not be deemed or conftrued to be any wife changed, Exception. altered or affected by any fuch attornment or attornments : Provided al- ways, That nothing herein contained fhall extend to vacate or affect any attornment made purfuant to and in confequence of fome judgment at law, or decree or order of a court of equity, or made with the privity and content of the landlord or landlords, leffor or leffors, or to any mortgagee after the mortgage is become forfeited. Sett. 12. " And whereas great inconveniencies have frequently happen- ed to landlords by their tenants fecreting declarations in ejectment, which have been delivered to them, or by refufing to appear to fuch ejectments, or to fuffer their landlords to take upon them the defence thereof; Be it a • a. further enacted by the authority aforefaid, That, from and after the faid Bants fecreting twenty-fourth day of June one thoufand feven hundred and thirty-eight, ejectments. every tenant, to whom any declaration in ejectment fhall be delivered for any lands, tenements or hereditaments, in that part of Great Britain called England, dominion of Wales or town of Berwick upon Tweed, fhall forth- with give notice thereof to his or her landlord or landlords, or his, her or their bailiff or receiver, under the penalty of forfeiting the value of three years improved or rack rent of the premiffes fo demifed or holden in the poffeffion of fuch tenant, to the perfon of whom he or fhe holds •, to be recovered by action of debt to be brought in any of his majefty's courts of record at Weftminjier, or in the counties palatine of Chefter, Lancajler and Durham, refpectively, or in the courts of grand-feffions in Wales; wherein no effoign, protection or wager of law fhall be allowed, nor any more than one imparlance. Landlord im- Sett. 13. " And be it further enacted by the authority aforefaid, That powered to it fhall and may be lawful for the court where fuch ejectment fhall be make himfelf brought, to fuffer the landlord or landlords to make him, her or them- defendant by p e j ves j e f en d an t or defendants, by joining with the tenant or tenants, to the tenant! whom fuch declaration in ejectment fhall be delivered, in cafe he or they {». (hall appear •, but in cafe fuch tenant or tenants fhall refute or neglect to appear, judgment fhall be figned againft the cafual ejector for want of fuch appearance •, but if the landlord or landlords of any part of the lands, te- nements or hereditaments, for which fuch ejectment was brought, fhall defire to appear by himfelf or themfelves, and confent to enter into the like rule that by the courfe of the court the tenant in poffeffion in cafe he or fhe had appeared ought to have done ; then the court where fuch ejectment fhall be brought fhall and may permit fuch landlord or landlords fo to do, and order a flay of execution upon fuch judgment againft the ca- fual ejector, until they fhall make further order therein. Seel. 2>tftrete» 771 Sect. 14. " And to obviate fome difficulties that many times occur in the recovery of rents, where the demifes are not by deed, Be it further enacted by the authority aforefaid, That, from and after the laid twenty- Rents " ow t0 fourth day of June, it fhall and may be lawful to and for the landlord or ^tre^ll'd^' landlords, where the agreement is not by deed, to recover a reafonable fa- m if es are not tisfaction for the lands, tenements or hereditaments, held or occupied by by deed, the defendant or defendants, in an action on the cafe, for the ufe and oc- cupation of what was fo held or enjoyed; and if in evidence on the trial of fuch action any parol demife or any agreement (not being by deed) where- on a certain rent was referved mall appear, the plaintiff in fuch action fhall not therefore be nonfuited, but may make ufe thereof as an evidence of the quantum of the damages to be recovered. Sett. 15. " And whereas where any lefTor or landlord, having only an curate for life in the lands, tenements or hereditaments demifed, happens to die before or on the day on which any rent is referved or made paya- ble, fuch rent, or any part thereof, is not by law recoverable by the ex- ecutors or adminitlrators of fuch leflbr or landlord ; nor is the perfon in reverfion entitled thereto, any other than for the ufe and occupation of fuch lands, tenements or hereditaments, from the death of the tenant for life ; of which advantage hath been often taken by the under-tenants, who thereby avoid paying any thing for the fame ; for remedy whereof, Be it enacted by the authority aforefaid, Thar, from and after the twenty- fourth day of June one thouiand feven hundred and thirty-eight, where any Rents reco- tenant for life fhall happen to die before or on the day on which any rent verable from was referved or made payable upon any demife or leafe of any lands, te- under - ,enant » nements or hereditaments, which determined on the death of fuch tenant J e Jf ^"J for life, that the executors or adminiftrators of fuch tenant for life fhall fore the leafe and may in an action on the cafe recover of and from fuch under-tenant is expired. or under-tenants of fuch lands, tenements or hereditaments, if fuch te- nant for life die on the day on which the fame was made payable, the whole, or if before fuch day, then a proportion, of fuch rent according to the time fuch tenant for life lived of the laft year, or quarter of a year, or other time in which the faid rent was growing due as aforefaid, making all iuft allowances or a proportionable part thereof reflectively. SeiJ. 16. " And whereas landlords are often great fufferers by tenants running away in arrear, and not only fufFering the demifed premifles to lie uncultivated without any diftrefs thereon, whereby their landlords or lef- fors might be fatisfied for the rent-arrear, but alfo refufing to deliver up the pofleliion of the demifed Premifles, whereby the landlords are put to the expence and delay of recovering in ejectment : Be it further enacted Provision for by the authority aforefaid, That, from and after the faid twenty-fourth landlords, day of June one thoufand (even hundred and thirty-eight, if any tenant " ,h . ere " naDts holding any lands, tenements or hereditaments, at a rack-rent, or where prem ifl- es . the rent referved fhall be full three fourths of the yearly value of the de- mifed premifles, who fhall be in arrear for one year's rent, fhall defert the demifed premifles, and leave the fame uncultivated or unoccupied, fo aa 5 F 2 no 772 WiHtUte* no fuffkicnt diftrefs can be had to countervail the arrears of rent ; it (hall and may be lawful to and for two or more juftices of the peace of the county, riding, divifion or place (having no intereft in the demifed pre- miffes J at the requeft of the leffor or landlord, leflbrs or landlords, or his, her or their bailiff or receiver, to go upon and view the fame, and to af- fix or caufe to be affixed, on the moft notorious part of the premifTes, notice in writing what day (at the diftance of fourteen days at lead) they will return to take a fecond view thereof ; and if upon fuch fecond view the tenant, or fome perfon on his or her behalf, fhall not appear and pay the rent in arrear, or there fhall not be fufficient diftrefs upon the pre- miffes i then the faid juftices may put the landlord or landlords, leffor or leffors, into the poffeffion of the faid demifed premiffes ; and the leafe thereof to fuch tenant, as to any demife therein contained only, fhall from thenceforth become void. Tenants may Sett, i j. " Provided always, That fuch proceedings of the faid juftices appeal from flj a u ^ e examinable in a fummary way by the next juftice or juftices of af- t e ju ices. |- ize Q £ ^ re fp e £tj ve counties in which fuch lands or premiffes lie ; and if they lie in the city of London or county of Middle/ex, by the judges of the courts of King's Bench or Common Pleas ; and if in the counties palatine of Chefter, Lancajler or Durham, then before the judges thereof; and if in Wales, then before the courts of grand-fefiions reflectively -, who are hereby reflectively impowered to order reftitution to be made to fuch te- nant, together with his or her expences and cofts, to be paid by the leffor or landlord, leffors or landlords, if they fhall fee caufe for the fame; and in cafe they fhall affirm the act of the faid juftices, to award cofts not exceeding five pounds for the frivolous appeal. SeSl. 1 8. " And whereas great inconveniencies have happened and may happen to landlords whofe tenants have power to determine their leafes, by giving notice to quit the premiffes by them holden, and yet refufing to deliver up the poffefiion when the landlord hath agreed with another te- T t h Id nant ^ or *' ie ^ ame ' ^ e lt f urtner enacted by the authority aforefaid, That, ing premiffes from and after the faid twenty-fourth day of June one thoufand feven hun- after the time dred and thirty-eight, in cafe any tenant or tenants fhall give notice of they notify for his, her or t heir intention to quit the premiffes by him, her or them hol- quittmg them, ^^ at ft t - ime men tioned in fuch notice, and fhall not accordingly de- rentfcr fuch 6 nver U P tne poffeffion thereof at the time in fuch notice contained ; that time. then the faid tenant or tenants, his, her or their executors or adminiftrators fhall from thenceforward pay to the landlord or landlords, leffor or leffors, double the rent or fum which he, fhe or they fhould otherwife have paid ; to be levied, fued for and recovered at the fame times and in the fame manner, as the fingle rent or fum before the giving fuch notice could be levied, fued for or recovered ; and fuch double rent or fum fhall continue to be paid during all the time fuch tenant or tenants fhall continue in pof- feffion as aforefaid. SeS. 19. " And whereas it hath fometimes happened, that upon any diftrefs made for rent juftly due, the directions of the ftatute made in the fecond M&ttte. 77 3 fccond year of the reign of king William and queen Mary, intituled, An ail for enabling thefale of goods diflrained for rent, in cafe the rent be not paid in a reafonable time, have not been ftrictly purfued, but through the mi- ftake or inadvertency of the landlord or other perfon entituled to fuch rent and diftraining for the fame, or of the bailiff or agent of fuch land- lord or other perfon, fome irregularity or tortious aft hath been afterwards done in the difpofition of the diftrefs fo feized or taken, as aforefaid ; for which irregularity or tortious act. the party diftraining hath been deemed a trefpaffer ah initio, and an action brought againft him as fuch, the plaintiff hath been intitledto recover, and has actually recovered, the full value of the rent, for which fuch diftrefs was taken : And whereas it is a very great hardfhip upon landlords and other perfons infilled to rents, that a diftrefs duly made fhould be thus in effect avoided for any fubfequent irregularity j Be it enacted by the authority aforefaid, That, from and after the faid twen- -q^^ f , ty-fourth day of June in the year of our Lord one thoufand feven hundred ren t not un- and thirty-eight, where any diftrefs ihall be made for any kind of rentjuft- lawful, Ufc. ly due, and any irregularity or unlawful act fhall be afterwards done by the for an >' irre - party or parties diftraining, or by his, her or their agents ; the diftrefs itfelf ^'"^^of' fhall not be therefore deemed to be unlawful, nor the party or parties ma- tl | e „ .' king it to be deemed a trefpaffer or trefpafTers ab initio; but the party or parties aggrieved by fuch unlawful act or irregularity fhall or may recover full fatisfaction for the fpecial damage he, lhe or they fhall have fuftained thereby, and no more, in an action of trefpafs, or on the cafe, at the elec- tion of the plaintiff or plaintiffs: Provided always, That where the plaintiff or plaintiffs ihall recover in fuch action, he, lhe or they fhall be paid his, her or their full cofts of fuit, and have all the like remedies for the fame as in other cafes of cofts. SeEl.io. " Provided neverthelefs, That no tenant or tenants, leffee or nor tenants to leffees, fhall recover in any action for any fuch unlawful act of irregularity recover by ac- as aforefaid, if tender of amends hath been made by the party or parties t '° n,ont * nder diftraining, his, her or their agent or agents, before fuch action brought. Sett. 21. " And be it further enacted by the authority aforefaid, That, rn aaions a- from and after the faid twenty-fourth day of June one thoufand feven hun- gain!* Perfon.' dred and thirty-eight, in all actions of trefpafs or upon the cafe to be iri * Ui(i t0 brought againft any perfon or perfons intitled to rents or fervices of any f ta ^ a ^ mKf kind, his, her or their bailiff or receiver, or other perfon or perfons, rela- p | ea d the ge- ting to any entry by virtue of this act, or otherwife, upon the premiffes nera! iffue.irV, chargeable with fuch rents or fervices, or to any diftrefs or feizure, fale or difpofal of any goods or chattels thereupon ; it fhall and may be lawful to and for the defendant or defendants in fuch actions to plead the general iffue, and give the fpecial matter in evidence •, any law or ufage to the con- trary notwithstanding : and in cafe the plaintiff or plaintiffs in fuch action fhall become nonfuit, difcontinue his, her or their action, or have judg- ment againft him, her or them, the defendant or defendants fhall recover double cofts of fuit. Seff. 22. " And whereas great difficulties often arife in making avow- ries or conuzance upon diftreffes for rent, quit-rents, reliefs, heriots, and ?. other 774 Dfftrete. Defendants in other fervices ; Be it further enacted by the authority aforefaid,That, from replevin to and after the (aid twenty-fourth day of June one thoufand feven hundred make conti- anc j thirty-eight, it ftiall and may be lawful to and for all defendants in re- ^i^t'iffhtld 6 plevin to avow or make conuzance generally, that the plaintiff in replevin, the'premiffes or other tenant of the lands and tenements whereon fuch diftrefs was made, at a certain enjoyed the fame under a grant or demife at fuch a certain rent, during the rent, ISc. t j me wherein the rent diftrained for incurred, which rent was then and ftill remains due •, or that the place where the diftrefs was taken was parcel of fuch certain tenements, held of fuch honor, lordfhip or manor, for which tenements the rent, relief, heriot or other fervice diftrained for, was at the time of fuch diftrefs and ftill remains due •, without further fetting forth the grant, tenure, demif; or title of fuch landlord or landlords, lefibr or lef- fors, owner or owners of fuch manor ; any law or ufage to the contrary not- withftanding: And if the plaintiff or plaintiffs in fuch action fhall become nonfuit, difcontinue his, her or their action, or have judgment given a°-ainft him, her or them, the defendant or defendants in fuch replevin fhall recover double cofts of fait. To prevent ^^ 2 ^_ tt ^nd to prevent vexatious replevins of diftreffes taken for v f x v a ^° us re " rent, Be it enact ed by the authority aforefaid, That, from and after the faid twenty-fourth day of "June one thoufand feven hundred and thirty- eight, all fheriffs and other officers having authority to grant replevins, may and fhall, in every replevin of a diftrefs for rent, take, in their own names, from the plaintiff, and two refponfible perfons as fureties, a bond in double the value of the goods diftrained (fuch value to be ascertained by the oath of one Or more credible witnefs or witneffes not interefted in the goods or diftrefs -, which oath the perfon granting fuch replevin is hereby authorized and required to adminifterj and conditioned for profe- cuting the fait with effect and without delay, and for duly returning the goods and chattels diftrained in cafe a return fhall be awarded, before any deliverance be made of the diftrefs •, and that fuch fheriff, or other officer as aforefaid, taking any fuch bond, fhall at the requeft and cofts of the avow- ant or perfon making conuzance aflign fuch bond to the avowant or perfon aforefaid, by indorfing the fame, and attefting it under his hand and feal in the prefence of two or more credible witneffes ; which may be done without any ftamp, provided the affignment fo indorfed be duly ftamped before any action brought thereupon •, and if the bond fo taken and affi gned be forfeited, the avowant or perfon making conuzance may bring an action and recover thereupon in his own name •, and the court where inch action fhall be brought may by a rule of the fame court give fuch relief to the parties upon fuch bond as may be agreeable to juftice and reafon; and fuch rule fhall have the nature and effect of a defeazance to fuch bond." ^tnt. 17 Geo. 2. c. 20. [A. D. 1754. Intituled] " An act for the more cafy and effectual proceeding upon diftreffes to be made by warrants of juftices of the peace." " Whereas by many acts of parliament, juftices of the peace are im- powered to iffue warrants for the diftrefs and fale of goods and chattels, 4 but SMitefe. 775 but the charges of diftraining, keeping and fale of fuch goods and chattels are not provided for in all the faid acts, nor is there a time in all cafes limited for the fale thereof,whereby inconveniencics have arifen : Therefore for remedy thereof, Be it enacted by the king's mod excellent majefty, by and with the advice and confent of the lords fpiritual and temporal, and commons, in this prefent parliament aflembled, and by the authority of the fame, That in all J u /Kcei tolf- cafes where any juftice orju-Ttices of the peace, is or are, or fhall be required mit In thtl , r .- or impowered by any act or acts of parliament now in force, or hereafter to be Q re f s lhc time ' made, to iffue a warrant of diftrefs for the levying of any penalty inflicted, for fale of the or any fum of money directed to be paid, by or in confequence of fuch act dittrefc, or acts, it (hall and may be lawful for the juftice or juftices granting fuch warrant, therein to order and direct the goods and chattels lb to be dif- trained, to be fold and difpofed of within a certain time to be limited in fuch warrant, fo as fuch time be not lefs than four days, nor more not ,e( ~' tlia » than eight days, unlefs the penalty or fum of money for which fuch dif- *' aor " 10re trefs fhall be made, together with the reafonable charges of taking and keeping fuch diltrefs, be fooner paid. Se£7. 2. " And be it further enacted, That the officer making fuch Officer to da- diftrefs fhall and is hereby impowered to deduct the reafonable charges of d " fl the taking, keeping and felling fuch diltrefs, out of the money arifing by fuch £ e "?" ° . fale; and the overplus (if any) after fuch charges, and alfo the faid pe- felling, nalty or fum of money fhall be fully fatisfied and paid, fhall be returned Overplus to on demand to the owner of the goods and chattels fo diftrained •, and the be returned, officer executing fuch warrant, if required, fhall fhew the fame to the perfon whofe goods and chattels are diftrained, and fhall fuffer a copy thereof to be taken. Seii. 3. "Provided always, That nothing herein contained fhall extend, P'pvifions re- ar be confirmed to extend, to alter or repeal any of the provisions or di- -"'"V^lw-n* a.- 1 • j-/i rr 1 j r r i_ r • l , m 7 & 8VV1II. rechons relating to diitrelies to be made for the payment or tithes and , c ,, church rates, by the people called Quakers, contained in an act paiTed in the feventh and eighth years of his late majefty king William the Third, intituled, An atl that the /oleum affirmation and declaration of the people cal- led Quakers Jhall be accepted inftead of an oath, in the ufual form ; or in one other act palled in the fir ft year of his late majefty king George the Firft, ar >d 1 Geo. intituled, An aft for making perpetual an acl of the feventh and eighth years of c - 6 - not al " the reign of his late majefty king William the Third, intituled, An act that the folemn affirmation and declaration of the people called Quakers fhall be accepted initead of an oath in the ufual form ; and for explaining and en- forcing the faid act in relation to the payment of tithes and church rates ; and for appointing the form of an affirmation to be taken by the faid people called Quakers, injlead of the oath of abjuration. Mr. Norton fhewed caufe againft quafhing an order of two juftices, Order on acl and an order of feflions confirming it, made in purfuance of the ' ' Geo 2 - act of 2 Geo. 2. c. 19. § 3. ("for the more effectual fecuring the payment c - ' 9 ' J^- 3- of rents, and preventing frauds by tenants) againft one Thomas Middle- „ Qq xrin ?• hurfi, for wilfully and knowingly aiding or affifting John Chejlerton, the £31 Geo. 2. tenant of Sir Thomas Fleetwood, in fraudulently removing; and conveyinp- R« v. Mid- away five cows, &c. or in concealing the fame. Mr. Gould, who had aicllum . moved 776 2Drt*refe» moved to quafh this order, founded his motion upon two objections •, viz. ill objection. The whole adjudication refers to the complaint of one Tho- mas Wejion ; wherein there is no charge upon Chejlerton, the tenant, at all •, nor upon the defendant Middleburjl, for aiding and affifting him : neither is it ftated " that Chejlerton, the tenant, did remove the goods." 2d obje&ion. The act creates two offences, viz. affifting in removing, and affifting in concealing the goods. Now it is not fpecifkally charged upon the defendant Midlehurft, that he wilfully and knowingly did either one of thefe two things : It is only alledged that he wilfully and know- ingly did one or the other. In i Salk. 371. Rex v. Stocker, an indictment for forging, or caufing to be forged, was holden ill ; becaufe the charge was in the disjunctive. 2 Hawk. P.C. 225. § 60. An indictment charging a man disjunctively, is void •, for the offerees are diftindt •, and it appears not of which of them the defendant is accufed. So here, it does not ap- pear which of the two offences the juftices have convicted him of. And 2 Lord Raym. 1265. Queen v. Baines, proves that the court will make no intendment againft the defendant. Upon which objections he obtain- ed a rule to fhew caufe " why the order lhould not be quafhed." And now Mr. Norton fhewed the following caufe againft quafhing it. As to the firft obje&ion, " That it is not defcribed lufficiently " what the of- fence is ;" he anfwered, that this is an order ; and the court will not in- tend it to be ill. To prove which, he cited Rex v. Bijfex, Tr. 29 Geo. 2. B. R. As to the 2d. The charge being in the disjunctive, " That he " wilfully and knowingly aided and affifted the tenant in removing the " goods, or in concealing the fame." He faid, The crime and the punifh- ment are the fame upon both : And the defendant was heard. Mr. Gould - for the defendant replied, ift, It is not at all ftated " That the tenant did " remove the goods. 2dly, The aiding and affifting in removing, is a different offence from aiding and affifting in concealing : And here it is only charged in the alternative. Lord Mansfield. Upon indictments it has been fo determined, " That ** an alternative charge is not good •," as " forged or caufed to be forged :" though one only need be proved, if laid conjunctively, (as " forged and caufed to be forged.") But I don't fee the reafon of it : the fubftance is exactly the fame •, the defendant muft come prepared againft both ; and it makes no difference to him in any refpect. But this is an order ; and be- ing good in fubftance, needs not be literally fo ftrict. Mr. Juftice Denifon thought alfo that the cafes upon indictments are very nice. But this is not an indictment, but an order ; and therefore being good in fubftance, needs not be fo ftrict in form as an indictment muft be. And either aiding or affifting in removing, or aiding or affifting in concealing, is equally an offence : and thefe are the very words of the act. 'Tis only form, and does not at all vary the puniff ment. I am not therefore in- clined to the fame ftrictnefs as was obftrved in the cafe of The King v. Blocker, in 1 Salk. 3J1. Per Cur. rule difcharged ; and confequently both orders affirmed. Order 2Wftrtf& 777 Order made by two juftices, reciting that a complaint had been made o r 'u- of two to them by A. Clavey againft. 7. BiJJ'ex; that he the laid Ciavey demifed h: . . eftate in the parifh of Shelley in the county oiScmerfet, to William Thatcher, "• ltu:c ' lG<;0 - at the yearly rent of 44/. and that there was due and in arrear from z, _ c Thatcher to him for rent of the faid eftate, on the 5th day of April laft, 24/. 1 5 s. 8* v d. and that he the laid Clavey would have dillrained the goods and chattels of the faid William Thatcher upon the laid eftate, in t order to obtain fatisfaction of the faid rent ; but to prevent him from lb doing, the faid Biffex, on or about the 27th, 28th or 29th days of Aiigujt laft, did knowingly and wilfully aid and affift the faid Thatcher in fraudu- lently conveying and carrying off from the faid eftate his the faid Thatcher's goods and chattels, and alfo in concealing the fame, being under the value of 50/. that is to fay, two cows, one heifer, and ten hundred weight ot cheefe, of the value of 20 /. whereby the faid Clavey was prevented from diftraining the fame, in order to obtain fatisfaction for the laid rent, and contrary to the ftatute 1 1 Geo. 2. and therefore praying us to grant him our warrant of fummons, requiring you the faid J. Biffex to appear before us, and that we would examine the fact, and thereupon make fuch order therein for his relief as the faid ftatute directs and requires, and as fhould be agreeable to juftice. Whereupon we the faid juftices, refiding near the faid eftate from whence the faid goods and cattle were removed, and neither of us any way interefted in the faid eftate, did iffue our warrant of fummons, requiring you the faid J. Biffex to attend us thereon to an- fwer the faid complaint ; and you having attended accordingly, and we in your prefence having examined the witnefles produced by the faid A. Clavey upon oath, and heard what was alledged by you in your defence, do adjudge that the faid complaint is true ; and that the faid goods and cattle of the faid W. Thatcher, in which you fo aided and afllfted in con- veying and carrying off from the faid eftate, and alfo in concealing the fame, were of the value of 20/. and that you have thereby forfeited double of the value of the faid goods and cattle, being the fum of 40 /. to the faid complainant A. Clavey, by virtue of the faid ftatute. We therefore, in purfuance of the laid ftatute, do adjudge, order and require you the faid J. Biffex, within the fpace of three days from the date hereof, to pay to the faid A. Clavey the fum of 40/. which if you fhall .neglect to do, fuch further proceedings will be then had againft you to inforce the payment thereof as the faid ftatute directs and requires. Given un- der our hands and feals this 5th day of January 1756. This order was affirmed by the feffions upon appeal. Both the orders were removed by certiorari into the King's Bench. It was moved to quafh the fame. Ob- jections taken : 1. The complaint is faid to be taken in writing, but not upon oath. 2. It is only faid, that he demifed to W. Thatcher ; but not faid for what eftate or term. 3. It is ftated, fo much was due for rent, but not faid for what term : it might be due twenty years ago. It is not (ra- ted to be due, when Thatcher removed his goods. 4. The words of the order are, goods and cattle ; of the ftatute goods and chattels. 5. No Vol. I. N?. XXXIII. 5 G certain 778 smftrefe. certain time is alledged when the defendant aided and afilfted ; only faid, on or about the 26th, 27th or 28th of Auguft. 6. Not ftated that That- cher did carry off his goods : only that Bijfex did aid and affift him in carrying them off. 7. They adjudge the complaint true, but do not ftate the evidence : and this is a conviction, not an order : and for any thing that appears, it might be upon Clavey's evidence alone. 8. It is not fta- ted that the goods were under the value of 50 /. which is the ground of the juftices jurifdiction. 9. The words of the ftatute are, If any peribn fhall be a tenant of any lands, tenements or hereditaments : The word ufed in the order is ejlate ; which may be a thing incorporeal, or may mean the in- tereft in the land, and fo not within the ftatute. It mould appear, whe- ther the landlord has a right to diftrain. By the 8 Ann. c. 14. the land- lord may diftrain at any time within fix months after the expiration of the term : it doth not appear theie fix months were not expired ; and if they were, this is no offence. After confideration, Mr. Juftice Denifon delivered the refolution of the court. I think the moft material objection is, whether this is an order or a conviction. If a conviction, the evidence ought to have been kt out. And there has been no doubt (notwithftand- ing the cafe of K. and Pulkine, 1 Salk. 369.) that in aconviftion the evi- dence muft be fet out, that the court may judge upon it. So it was held by Lord Hardwicke in the cafe of K. and Lloyd> Str. 996. and in that cafe it was objected, that as it fubjected the party to a penalty, though in the ftatute it was called an order, yet it (hould be conftrued as a con- viction : but the court faid, every act of the juftices, which fubjects the party to a penalty, fhall not be conftrued as a conviction. K. and Ve- nables, Sir. 630. 2 L. Raym. 1406. upon the ftatute for licenfing ale- houfes, confidered as an order. K. and Blackzvell y Mich. 4 Geo. which the court faid was a ftrong cafe, and muft be confidered as an order. I underftood from my Lord Hardwicke in the cafe of K. and Lloyd, that his gtound of the difference was founded upon the exprellions of the ftatute,. and not upon the penalty ; as where the words of a ftatute are " of which he fhall be convicted," it is to be conftrued as a conviction. Here it is extremely ftrong ; the ftatute calls it an order ; and in the nature of it, it is an examination upon a complaint. If the party was never fummon- ed, this court upon affidavit will grant an information againft the juftices ; but the fummons need not be fet out ; and the court will intend the juf- tices have done right, in cafe the contrary does not appear upon the face of the order. As to the firft objection : This is not an information,, but a complaint : when the party is fummoned, the witneffes are to be exa- mined upon oath, but the complaint need not be upon oath. In anfwer to the fecond objeftion : As the order has followed the words of the fiatute, we will not intend it a cafe wherein the juftices had not a jurifdicSion. The rourt will not, in cafe of an order, intend that the juftices have done wrong. As to the 3d objection : It is fufficiently alledged in an order^ his affifting the tenant to carry away the goods, as it is here alledged, is fufficient to ihew the rent continued then to be in arrear, and the rather as the defen- 2 dan: jSDtftrcte. 779 dani might have availed himfelf of the rent paid, by proving it before the juftices. I much doubt ; whether in a declaration it would not be fuffi- cient to fay, the rent was in arrear at fuch a day •, and I think it would lie upon the defendant to prove that the rent does not remain in arrear. As to its not being faid, for what time the rent was due ; this is mere^matter of form. As to the fifth objection : About, in common parlance, means in this cafe three days or near it. They might be three days in carrying the goods away. The days are not material, even in legal proceedings, i L. Raym. 581. And in the cafe of K. and Simp/on, H. 3 Geo. Str. 46. the day and hour in a conviction are not material. By this ftatute no time is li- mited when the complaint fhall be made : it may be made at any time. Suppofe the defendant had paid the penalty on a different complaint made, he might eafily have ihewn it. As to the 6th : The anfwer is obvious; if Thatcher had not carried his goods away, the defendant could not have aided in carrying them. The Itatuie makes two offences ; one, carrying the goods away ; the other, aiding in carrying them away. It is only ne- ceffary here to ftate the offence which the defendant had been guilty of, which this order does in the words of the ftatute. In the cafe of K. and Monk, M. 13 Ceo. 2. there was a conviction for aiding and affifting in kil- ling a buck. It was objected, that it was not charged the buck was killed. But the court held, that as the conviction was in the words of the ftatute, it was fufficient. And the court held they were all principals, as well thofe that killed the buck, as thofe that affifted. And this was the cafe of a conviction. All the other objections may have this general anfwer ; that in the cafe of orders, where the juftices have jurifdiction, we will in- tend they have acted right •, and if they have done wrong, they may be punifhed by an information. Let the orders be confirmed. Tenant in tail, remainder to the defendant in fee, leafes for years, and Tenant in tail dies without iifue a week before the day of payment of the half year's rent, is within the The leiTee, at the day, pays all the half year's rent to the defendant. The aft nGeo. z. executor of the tenant in tail brings his bill for apportionment of the rent. % ' 9 3 ^JJ\ — By the lord chancellor Hardwicke : This point has never been ," Burn's juft. determined ; but this is fo ftrong a cafe, that I fhall make it a precedent. 437. Dec. 4. There are in it two grounds for relief in equity. The firft ariies on the fta- ' 753- In the tute of 11 G. 2. The fecond ariies on the tenant's having fubmitted to * 5? , ^ ,l pay the rent to the defendant. The relief arifing upon the ftatute, is, * either from the ftrict legal conftruction, or equity formed upon the rea- fon of it. And here it is proper to confider, what the mifchief was before the act, and what remedy is provided at common law. If tenant for life. or any who had a determinable eftate, died but a day before the rent re- ferved on a leafe of his became due, the rent was loft. For no one was in- titled to recover it. His reprefentatives could not -, becaufe they could only bring action for the ufe and occupation ; and that would not lie where there was a leafe, but debt or covenant. Nor could the remainder- man •, becaufe it did not accrue in his time. Now this act appoints the apportioning the rent, and gives the remedy. But there are two defcrip- 5 G 2 tions 7 8o &t'fttete* tions of the perfon, to whofe executors the remedy is given. In the pre- amble, it is one having only an eftate for life. In the enacting part, it is, tenant for life. Now tenant in tail comes exprefsly within the mifchief. I do not know how the judges at common law would conftrue it, but I mould be inclined in this court to extend it to them. I mould make no doubt, were this the cafe of tenant in tail after poffibility of iffije extinct ; for he is considered in many refpects as tenant for life only. He cannot fuffer a recovery. He may be injoined from committing wafte, being con- iidered as to that as tenant in tail. Were it the cafe of tenant for years determinable on lives, he certainly muft be included within the act, tho' it fays only tenant for life. It would be playing with the words to fay other- wife. Thefe cafes fhew the neceffity of conftruing this act beyond the words. Tenant in tail has certainly a larger eftate than a mere tenant for life •, for he has the inheritance in him, and may when he pleafes turn it into a fee : but if he does not •, at the inftant of his death he has but an in- tereft for life. Such too is the cafe of a wife tenant in tail ex proviftone mariti. Upon this point I give no abfolute opinion. As to the equity arifing from this ftatute, I know no better rule than this, aquitas fequitur legem. Where equity finds a rule of law agreeable to confcience, it pur- fues the fenfe of it to analogous cafes. If it does fo as to maxims of the common law, why not as to the reafons of acts of parliament ? Nay, it has actually done fo, on the ftatute of forcible entry, upon which, this court grounds bills, not only to remove the force, but to quiet the poflef- iion. That act requires a legal eftate in poffeffion. This court extends the reafon to equitable interelts. But I ground my opinion in this cafe, upon the tenant's having fubmitted to pay the rent. He has held himfelf bound in confcience to pay it, for the ufe and occupation of the land the laft half year. He paid it to the defendant, which he was not bound to do in law. And in fuch a cafe, the perfon he pays it to fhall be accountable, and confidered as receiving it for thole who are in equity intitled to it. The divifion muft be that prefcribed by the ftatute ; and then the plaintiff is intitled to fuch a proportion of the rent as accrued during the teftator's life. And accordingly it was decreed. What things This was a fpecial cafe from Surry affizes, before Ld. Ch. J. Willes. may be dif- It was an action of trefpafs againft the juftices of peace, the parifh officers, trained for a the conftables, and their affiftants •, for executing a warrant of diftrefs made poor-rate, &c. ^ v t h e f e two juftices, upon a poor-rate amounting to 13 1. 2 s. and a ver- ' B ° r Eait t1i( ^ was f° un< l f° r tne plaintiff, againft all the defendants, fubjectto the 31 Geo. 2.' opinion of the court, upon the whole matter. The diftrefs at firft taken, Friday zoth was 5 geldings, ftated to be beafts of the plough and cart •, with their hal- flptfl 1758, ters> Which firft diftrefs not being fufficient, they diftrained a fecond ela^t'*' tUT]e > uncler the fame warrant; and took 3 other geldings, which were a™ and are ftated to have been alfo beafts of the plough and cart, of the value of 36 1. 17 s. with their halters. It is exprefsly ftated, " That upon the former Dfftrcte. 781 former diftrefs, there were other goods, &c. more than fufficient to anfwer the value of the demand, befides theie beads of the plough and cart. This cafe was firft argued on Tuefday the 31ft of January 1758, by Mr. Knowler for the plaintiff, and Mr Gould for the defendants ; and again, on Friday the 14th of April 1758, by Mr. Stone for the plaintiff, and Mr. Williams for the defendants. There were 5 queftions ftated for the opinion of the court, viz. ift, Whether the rate and affefTment was a good and fufficient rate and affefTment, in point of law : and if not, then whether the plaintiff can avail himfelf of any objection to it. 2d Queftion, Whe- ther the warrant ought to have fixed and limited the time within which the geldings and goods diftrained were to be fold : and whether for want thereof, the warrant is void, and the defendants, or any, or which of them, are trefpaffers. 3d Queftion, Whether the fecond diftrefs is at all juftifia- ble. 4th Queftion, Whether the geldings, being beafts of the plough, and ufed by the plaintiff, both for the plough and cart, were liable to be taken and diftrained for the faid rate and affefTment. 5th Queftion, Whe- ther, upon the whole ftate of the cafe, the plaintiff's action is maintainable againft the defendants, or any, and which of them. And a 6th queftion, Whether the fecond diftrefs was not exceffive, arofe upon the argument. After the firft argument, (in which, the diftrefs was treated as a com- mon-law diftrefs •, and Mr. Knowler exprefsly denied it to be an execution, becaufe it was repleviable •, and infilled that the ftatute de di/lriilione fcac- carii is general, is declaratory of the common law, and extends to all dif- treffes for any caule whatlbever ;) lord Mansfield^ finding that the parties propofed fpeaking to it again, took notice that all about the rates is clear- ly out of the prefent cafe : for if they are bad, the parties who thought themfelves aggrieved, fhould have appealed. So all about the warrants may be laid out of the cafe. For the warrant is not void, fo as to make it a trefpafs ab initio. Therefore the future argument may be confined to the other objections. Ulterius concilium. Mr. Stowe, who argued for the plaintiff, on Friday the 14th of April j 758, paffed over ift and 2d queftions, upon what the court had intimated after the former argument ; and proceeded directly to the 3d queftion. ft is ftated that here was fufficient diftrefs, the firft time : and therefore the fecond was not juftifiable. Co. Lit. 272. b. Cro. Eliz. B. Moor 7. 2 Lutw. 1532. Wallii v. Savill. Fitz. H.N.B. title Recaption. % Co. r.o. John Webb's cafe. And this is a duty of a lefs nature than rent: and yet even in that cafe, a double diftrefs is unlawful. A fecond realbn why the fecond diftrefs was not good nor juftifiable, is, becaufe the warrant is not an authority to take it : for, the warrant having been once executed, had performed its office ; and confequently was no more than a piece of wafte paper, at the time of taking the fecond diftrefs. 4th Queftion, Beallsof the plough (though ufed both for plough and cart) cannot be diftrained for a rate, when there are other goods fufficient. 51 //. 3. fiat. 4. De diftric- tione fcaccarii. " None fhall be diftrained by his beafts that gaigne his land, nor by his fheep, tiff." 2 Tnji. 133. is large and exprefs, " That this 7 $2 Dt'fttete* this was fo by the common and civil law •, and that this ftatute extends to all forts of diftreffes whatfoever •, alfo to all manner of executions, as well at the fuit of the king, as of the fubjedt" Dyer 312. The words levy the debt cannot be applicable merely to lord and tenant -, but are general, and extend to all diftreffes whatfoever. 1 Inft. 289. b. 2 Inft. 133. 6th Queftion, Whether the fecond diftrefs is not exceffive. He argued that this diftrefs was exceflive •, being a diftrefs taken of 3 geldings, of triple the value : for the value was 36 1. 17 s. and the fum diftrained for, only one-third (or very little more) of that fum, viz. 13 1. 2 s. which is exceffive upon the face of it. And he cited 1 Rol. Abr. 674. where inftances are given of diftreffes exceffive upon the face of them. 1 Injl. 107. And this diftrefs is not an entire diftrefs : but a diftrefs of 3 diftinct things. And an exceffive diftrefs of feveral diftincf. things is not maintainable : and an action of trefpafs will lie for it. H. 28 G. 2. Moir v. Munday et al\ which was a diftrefs of a great quantity of pedlar's goods (of the value of 100 1.) which might have been fevered ; for only 6 s. 8 d. Therefore both the firft and fecond diftrefs are illegal. Wherefore he prayed judgment for the plaintiff. Mr. Williams contra, for the defendants. He confined himfelf to thefe three queftions, viz. Firft, Whether under the ftatute of 43 Eliz. Averia taruc All thefe are furely didrainable for this rate, i Ld. Raym. 386. Raym. 232. and 2 Lev. 96. S.C. Cro. Eliz. 710. Therefore the 43 of Zc//z. is not confined to common law didreffes. But thefe beads are dated to be " beads of the plough and cart." Therefore they are didrainable : For beads of the cart are not privileged. 1 Sid. 422, 440. Welch v. Bell. 2 Keb. 595. S. C. Bralil. lib. 4. 217. b. fpeaks of oxen as beads of the plough. However, this is an execution •, and therefore none of the ar- guments relative to the didreffes can be applied to this cafe. When goods are feized in execution on a Fieri facias, the debt is discharged. So is 2 Ld. Raym. 1072. Clerk v. Withers. This is a didrefs for a Satisfaction of the demand ; not for a pain, or penalty or pledge. Confequently it is an execution. This is the eifential difference between an execution and a dillrefs at common law. In the cafe of Rex v. Speed. Cafes temp. W. 3. 328. A Levari facias out of B. R. after affirmance of a conviction for deer-dealing, was hol- den regular : and it was confidered as an execution-, for per Holt, " When " a datute fays money fliall be levied by didrefs, this is an execution." Therefore, itbeing an execution, beadsof the plough might have been taken. And fo they may here, this being an execution. What has been urged on the other fide, from 2 Infl. 133. " That the datute de Dijlriclione Scaccarii " extends to all didreffes whatfoever, and likewife to executions," is one of the very few midakes of that excellent writer. And this opinion of Lord Coke is not only contrary to common experience •, but alio to the opinion of Lord Chief Judice Holt, in Comberb. 356. Hardijly v. Barney; where Holt faid, " That upon a Fieri facias the fherift" may take any thing " but wearing cloaths : nay, if the party has two gowns, he may take " one of them." And fheep are notorioufly didrainable now : and yet they are exprefiy and by name, within the dat. de Dijlriclione Scaccarii. Thedat. of Wejlm. 2. c. 18. which gives the elegit, exprefsly excepts beads of the plough. At that time the legislature thought fuch exception ne- ceffary. And Dyer 7. b. pi. 10. fays, That a man fhall not have execu- tion of the profits of a filazer's office •, becaufe he cannot grant and afilgn it. So that the true rule feems, from that cafe, to be, " that whatever may be affigned by the party, may be taken in execution, et e contra." The doctrine on which thefe gentlemen build their arguments, is now obfolete, and unknown to the generality of mankind : and it would be very inconvenient to re-edablifh it. And this didrefs is for the benefit of the debtor, as thefe things are mod faleable-, and of no prejudice to any body. And no cafe is cited on the part of the plaintiff. In 3 Salk. 136. it is faid to have been adjudged " that the rule of common law, to ex- " empt, &c. extends to cafes where a didrefs is given in the nature of " an execution, by any particular datute, as for poor rates, &c." But perhaps this is no authority to be relied on. As to the next quedion : I agrree to 2 Lutw. 1532. " That a fecond didrefs can not be taken for " the remainder of the fame rent, where the fird didrefs was only for " parcel of the whole rent due." But in this prefent cafe, if the officer " is deceived in the value of the firft diftrefs, he may take a fecond : So 4 if SMflrete. 785 if the firft dies in the pound, (Dyer 2 So. b. pi 14,) or is by accident become ineffectual •, or if the officer did not know that there were ftich other goods); which laft might be the prc-fent cafe: Thefe cannot be looked upon as two diftinct diftreffes for one entire demand. But if this be confidered as an execution, then there can be no doubt about it. For the fheriff may, in fuch cafe, re-enter before the return of his writ, to complete his execution. And this laft reafon equally anfwers the objec- tion to the warrant : for that is not completed and finilhed till the whole demand is levied. 6th Queftion. As to the exceffivenefs of the fecond diftrefs, He did not much contend that it was not fo : but he innited that an action of trefpafs will not lie for taking an exceffive diftrefs. For proof of which, he relied on the cafe of Lynn v. Moody, 2 Strange 851. and the cafe in 3 Lev. 48. Woodcroft v. Thompfon. The declaration con- tains two counts •, one for each trefpafs : and the damages are given joint- ly for both. Therefore it is incumbent upon the plaintiff, to fhew that both thefe diftreffes are illegal. Mr. Stowe in reply : The cafes of tolls are not applicable to the pre- fent cafe. Agriculture deferves encouragement now, as well as formerly. I fuppofe the king's diftrefs might be fold at common law : therefore the act de Dijlriilione Scaccarii does not extend to executions. And the 43 of Eiiz. has not repealed it. Thefe beads are privileged, if there be fuffi- cient befides : and here was fufficient befides. Beafts of cart are within the fame reafon, as beafts of plough : they gaignont fon terre, as the fta- tute of 51 H. 3. fays. The arguments of oblbletenefs and ignoran:e will not hold : for the former is not true ; and the latter will not excufe. 'Tis no part of the cafe, " That they did not at firft know the value." And it is begging the queftion to fay " That he may take a fecond dif- '*' trefs, when the firft was not fufficient." That is the very thing that wants to be proved. As to the cafe of Lynne v. Moody : The entry there was at firft lawful •, and there was nothing fubfequent to make that law- ful entry a trefpafs. But here, the fecond entry to take the fecond dif- trefs, was tortious : and therefore they are liable to an action. So that that determination does not affect the prefent cafe. Cur. advif. This caufe now ftanding in the paper, for the refolution of the court, Lord Mansfield delivered their opinion. The rule of Nifi prim is fo conceived as to fubmit the cafe to the opinion of the court, be that what- ever it may ; and fo as to obviate all objections to the form of the plead- ings and finding of the verdict. In ftating the cafe, he obferved that there were other things which might have been taken upon the firft dif- trefs, befides thofe which were actually diftrained : but not upon the fe- cond (from any thing that appears.) Upon the firft argument, the two firft objections were laid out of the queftion ; efpecially fince the 1 7 Geo. 2. c. 38. So that the juftices were out of the cafe. For a defect in the rate (unappealed from) could not avoid the warrant, nor is the warrant void, fo as to make it a trefpafs ab initio : and the juftices could not be tref- pafTers, by what the officers afterwards did. Vol. I. No XXXIII. 5 H So 7 86 M&ttte* So that it was reduced to three queftions : Viz. ift, Whether (upon the firfc diftrefs) Averia Caruca could be taken and diftrained for a poor's rate and afleffment ; when there were other things that might have been diftrained, and which were more than fufficient to anfwer the value of the demand. The 2d queftion turned upon two objections to the fecond dif- trefs •, viz. ift, Whether the fecond diftrefs, under the fame warrant, was at all juitifi able, when there was enough that might have been taken upon the firff, and 2dly, Whether this fecond diftrefs, being exceffive, that circumftance alone was not a fufficient ground to maintain this action of trefpafs, independant of any other confideration. On the fecond argu- ment, Mr. Williams not only argued very well as counfel for this client ; but he explained the whole learning of diftreffes at common law •, which were a Nomine fcena, not a fatisfaction : and as I adopt the reafoning of his argument throughout, to avoid repetition now, I will in a great mea- fure refer to it for the grounds of the opinion which the court is of. The firft queftion is, " Whether Averia Caruct'ftrete. 7 8 7 And on this ground we are all of opinion, that there is no objection to the firft diftrefs, from the averia earner being taken : for that they are di- ftrainahle under the 43 Eliz. and fuch like acts of parliament. Thus far you fee, relates only to the firft diftrefs. As to the fecond diftref,, The firft queftion relating to that, is, " whether this fecond diftrefs can be at alljuftified, as it was a fecond diftrefs taken under the fame warrant, when enough might have been taken at Srft, if the diftrainer had then thought proper:" Now, a man who has an entire duty, ftiall not fplic the entire funi, and diftrain for parr of it at one time, and for another part of it at another time ; and fo toties quoties for feveral times; for that is crreat op- prefiion. And that is the cafe oiWallis v. Savill et al' in 2 Ltttw. 1 -2?.. where the fecond diftrefs was holden juftifiable, becaufe both diftreifes were taken for one and the fame rent ; and it was the leffor's folly that he had not taken a fufficient diftrefs at firft. But if a man feizes for the whole fum that is due to him, and only miftakes the value of the goods feized, (which may be of very uncertain, or even imaginary fale, as pictures, jewels, race- horfes, &c.) there is no reafon why he fhould not afterwards complete his execution by making a further feizure. And how can the officer who feizes judge of the real or perhaps imaginary value of the horfes or goods feized ? The value of them may be quite unknown to him, or may even depend upon whim and fancy. It is to the advantage of the defendant that this mould be fo : It is better for him that the officer fhould be at li- berty to feize a fecond time, in cafe he makes an infufficient feizure the firft time; or elfe it might induce him to a neceflity of taking effects of a very- great value at firft ; for if he is to be precluded from thus making up the deficiency, he will certainly take care not to take too little at firft° Now, pictures, horfes, jewels, books, and fome other fuch effects, may be of fo uncertain and even imaginary or fancied value, that it may be exceedingly uncertain how much money they may fetch when they come to be fold ; fo that theperfon feizing may not be at all able to judge how much they may produce upon Sale; and if he does not take the value of the whole at firft, (out of tendernefs and moderation perhaps) there is no reafon why he fhould not complete it by a fecond feizure, provided it be for the fame fum due. Therefore this firft objection to the fecond diftrefs fails. 3d queftion, The fecond objection to this fecond diftrefs, is the third remaining quef- tion -, viz. Its being exceffive, and as fuch being a fufficient grou.-.d for an action of trefpafs. Now, as to this third queftion. " Whether the taking an exceffive diftrefs, is a fufficient ground to maintain an action of trefpafs." Several authorities have been cited, to that " that an action of trefpafs will not lie for taking an exceffive diftrefs ;" but " that it ought to be a particular action grounded upon the ftatute :" and particu- larly, one cafe, which is in 2 Strange 851. Lynne v. Moody, M. 3 G. 2. B. R. where it had been fo adjudged in C. B. but the judgment of C. B. was there reverfed ; and it was faid " that the remedy ought to be by fpecial action" founded on the ftatute of Marlbridge. So that it has been fuffi- 5 " 2 ciently 788 SDfftrefo ciently eftablifhed " that a general action of trefpafs cannot be maintained for taking an exceflive diftrefs." One cafe indeed was cited to the con- trary, which was the cafe of Moir v. Munday, H. 28 G. 2. B. R. and that was an action of trefpafs •, where 6 ounces of gold, and 1 00 ounces of filver were taken for 6 s. 8 d. which was holden to be an exceflive dif- trefs •, and judgment was given for the plaintiff. But that appeared up- on the face of it, and upon the pleadings, to be exceflive : and fo the court exprefsly declared. And it was a diftrefs of gold and filver-, which are of a certain known value •, and even the meafure of the value of other things. And it was there holden, " that in all other cafes of goods or other things of arbitrary and uncertain value, it muft be an action upon the ftatute." But this (as I am told) was the diftindlion there taken: and that is therefore an exception (and was there confidered as being fo) from the general rule ; and ferves to confirm the rule itfelf. We are therefore all of us of opinion that there is no caufe of action maintain- able by the plaintiff in the prefent cafe, nor has he any right to recover againft any of the defendants •, and that the defendants be at liberty to enter a non-fuit. The rule taken was, that the pojiea be delivered to, and judgment entered for the defendants. End of the First Volume. ADVERTISEMENT. n HE title page to the firft volume of this work, with a collection of the rules that have been laid down in the feveral volumes of the Reports and by the moft authentic Law Writers, for the true conftruction and interpretation of Ads of Parliament, illuftrated by the cafes on which thofe rules have been founded, and a complete index to this volume, will be publifhed fome time next month. INDEX to and TABLE O F T H E PRINCIPAL MATTERS in VOL. I. A BJURATION Oath. See £>at!)S. Acceflary. See ^jincipal ant) HkceffartN Aftion popular. See 31nfojmatiotl. aiCDition. What it is . ■ page I To be made to all names in writs, by the flat, i Hen. 5. c. 5. and a commentary on that ftatute, 2, 6 Advertifemenr. See Stamps. Adultery. See JLettiBnefS. What is an affray 2Pffrap. - 6, 7 By flat. 2 Ed. 3. c. 3. no man (hall come before the juftices, or go or ride armed ; and a commen- tary on that ftatute 7, 8 How far an affray may be fuppreffed by a private perfon ■ 9 How far by a conftable ib. In what manner an affray may be fuppreffed by a juf- tice of peace _^_— . 10 How affrays may be punifhed ■ 1 0,11 Alamodes. See ja>ilBG Ale and Beer. See <£fti{t, UUcIjOuCcB. By flat. 19 Hen. 7. c. 12. two juftices were impow- ered to fupprefs alehoufes - 1 2 By fiat. c & 6 Ed. 6c. 25. none fhall fell ale or beer without licence, and they (hall be bound by recog- nizance Juftice of peace may difcharge common felling of ale and beer — Recognizance with furety by thofe who do keep alehoufes. 12 d. for making the recognizance, which muft be certified at the next quarter feffions 1 2 Inquiry to be made concerning thofe who have for- feited their recognizance Keeping alehoufes how punifhed Certificate of the recognizance and offence at the quarter- feffions Provifo for towns where fairs are kept ■ ' ■ 1 3 Stat. 1 Jac. 1. c. 9. The true and principal ufe of inns and alehoufes — Alehoufe keeper permitting unlawful drinking how punifhed Prices of ale and beer fold in an alehoufe ■ 1 4 Penalty of conflables and churchwardens omitting their duty Offence committed within univerfi- ties ■ ■ 1 5 Stat. 4jac. i.e. 4. In what cafe ale or beer may be fold to an alehoufe- keeper having no licence — In what courts offences fhall be heard and determined 16 Poor's half of the forfeitures fhall be delivered to the overfeers — Penalty for not diftributing money re- ceived to the poor , 1 7 Stat. 4jac. 1. c. 5. Drunkennefs foundation of many other fins, and caufe of feveral enormities 17 Penalty on him who is convicted of drunkennefs—— On inferior officer neglefling to do his duty For tipling in an alehoufe — — 18 What officers fhall enquire of and punifh the offences committed againft this ftatute, 'and the fiat. 1 Jac. 1 . c. 9. He that is the fecond time convifted of drunkennefs fhall be bound to his good behaviour — What officers fhall prevent the offences aforefaid— No reftraint of ecclefiaflical jurifdiflions Only one punifhment for one offence Liberties of univerfities fhall not be prejudiced 19 Within what time offender fhall beprefented 20 Stat. 7 Jac. 1. c. 10. Penalty for an offence com- mitted againft flat. 4 Jac. 1. c. 5. ib. Stat. 21 Jac. 1. c. 7. One witnefs fhall be fufficient to convift a man of tipling and drunkenefs ib Oath of him who confefieth the offence fhall be fuf- ficient proof againft any others— Penalty on tip- ling He that is convicted of drunkennefs fhall forfeit 5 s. — for fecond offence to be bound to the good behaviour — Alehoufekeeper offending to be difabled from keeping an alehoufe three years af- ter Conflables to prefent offences committed againft 1 Jac. 1. c. 9. ■ 21 si Stat. INDEX. Stat i Car. i . c. 4. Foreigners as well as inhabitants fliall not be permitted to tipple in inns, alehoufes, &c. Vintners and viduallers to be within this and the other ftatutes 22 Stat 3 Car. 1. c. 3. Punifhment of him that keeps an alehoufe without licence — 23 Conftables or churchwardens (hall levy the faid for- feiture to the ufe of the poor Officer negleding to punifh the offender (hall be imprifoned or pay 40 s — for 2d and 3d offence, offender to be com- mitted to the houfe of corredion — Alehoufes kept in time of fairs excepted 24, 25 Stat. 2 Geo. 2. c. 28. No licence to keep inns or alehoufes but at general meeting of the juflices 25 Stat 26 Geo. 2. c. 13. Juftices being brewers, inn- keepers, diftillers, victuallers or malfters, &c. pro- hibited from granting licences for felling ale, &c. 2;, 26 Stat. 26 Geo. 2. c. 31. Juftices licenfing alehoufes, &c. to take recognizance in the furo of 10 1. for the maintenance of good order, and to fend the recognizances to the clerk of the peace, on penal- ty of 3 1. 6 s. 8d. 26 Licences to be granted to none not licenfed the year preceding, unlefs fuch as (hall produce certificates of their good fame — Licenfed perfon dying or re- moving, the fucceflbr, upon obtaining fuch certi ficate, may keep sn the houfe for the refidue of the t«rm of the licence, &c— — Licences to be granted on ift of September, or twenty days after, and the fame to be made but for one year ; notice to be given of the time and place for granting them — — 27 Clerks of the peace to deliver copies of the re- cognizances to the juftices at their general meet ings for granting licences yearly Recovery of the forfeitures for granting licences without ta- king a recognizance Where a juftice (hall ad- judge the recognizance to be forfeited, he is to fummon the party to the quarter feffions, &c. And the jury finding him guilty, the recognizance is to be eftreated, and he is difabled from felling beer, &C. for three years 28, 29 Juftices may adjourn the trial to next feffions Where a juftice (hall fufped that any victualler fells ale, &c. without licence, he may fummon. hiin, and the officer who furveys him, and exa- mine fuch officer upon oath. — Juftice upon infor- mation that any perfon is reafonably fufpeded of felling ale, &c. without licence, is to fummon the party and evidence — Perfons fummoned not ap- pearing, forfeit 10I. — 29 Perfons difabled by convidion to fell ale, &c. dif- abled alfo from felling fpirituous liquors, &c. Per.alty of felling ale, &c. without a licence from two juftices ; to be levied by diftrefs and fale ; one moiety to the informer, and the other to the poor ; for want of diftrefs, the perfon to be committed — Convidion to be certified to the next quarter fef- fions, and filed '«-» — — — 30 Form of convidion Offender not liable to double punifhment for the fame offence — Rights of the univerfities to grant licences referved — The times of granting licences for common inns, not altered, &c. Inhabitant of the paridi deemed a compe- tent witnefs — — 31 Statute 28 Geo. 2 c. 19. Offenders, after third con- vidion, to forfeit 61. for every offence 31, 32 Stat, zg Geo 2. c. 13. On death or removal of per- fons occupying Ixenfed houfes, their afligns, &c. may continue the fame for the refidue of the year 3Z Stat. 5 Geo. 3. c. 46. Retailers of beer and other excifeable liquors, to exhibit, on demand, their licence to the officer appointed by the commiflio- ners for ftamp;, and to permit him to take a copy thereof; on forfeiture of 40 s. — 32, 33 Clerks of the peace, and common clerks, or their de- puties, are to deliver, upon demand, to the officer of the ftamp duties, lifts of the feveral perfons li- cenfed to retail beer or other excifeable liquors, he paying for every fuch copy 1 farthing for each li- cenfed perfon inferred in fuch lift. If fuch lift (hall be refufed or delayed, or be given in imperfed, the offender forfeits 5 1. 33, 34 Inftead of the pecuniary and corporal punifhments in- flided by former ads, on retailers of beer, &C. not being duly licenfed, they are to forfeit, for the firft offence, 40 s. and cofts of convidion ; and on non-payment, are to be committed for one month; for the fecond offence, 4I. and cofts; and, on- non-payment, to be committed for two months-; for the third offence 6 1. and cofts ; and on non- payment, to be committed for three months ; and the like penalty and punifhment as the third, for every fubfequent offence — The cofts are to be fettled by the juftices ; and the penalties to be ap- plied, one moiety to the crown, and the other moiety and cofts to the profecutor — The juftices are authorized to hear and determine the faid of- fences in a fummary way 34, 35 Witneffes being duly fummoned, negleding or refu- (rng to appear (without reafonable caufe (hewn) or to give evidence, forfeit 20 s. Perfons ag- grieved by the judgment or convidion of a juftice, and giving fecurity, may appeal to the quarter- feflions, who are to hear and determine the mat- ter finally ; and if they adjudge the appeal to be frivolous or vexatious, may award cofts, not ex- ceeding 5 1. 36 Form of convidion. An indidment doth not lie for keeping an alehoufe without licence 37, 38 A houfe for boarders and lodgers, for themfelves and horfes, is not an inn nor alehoufe 39 The juftices in feffions have a difcretionary power of fuppreffing alehoufes, without (hewing any caufe or mifdcmeanor. Juftices may tdke away li- cence without conviction upon the recognizance — Mandamus lies not to grant a licence to keep an alehoufe • ; 4° Infor- INDEX, Information was denied againfl juftices of peace, for lefufing to grant a licence under 26 Geo. 2. c. 3 r. becaufe the juftices of the divifion have the fole difcretion, without appeal, and they acted with purity of intention ; but if they exercife this abfo- lute difcretion with partiality, malice or corruption, an information (hall be granted 41, 42, 43, 44 Information againlt a juftice of peace, upon a charge of his refulal to grant a licence to fell ale, unlets the man would firft pay him a collateral and dif- puted debt, and then convicling him of felling ale unlicenfed, without any previous fummons, was denied upon the merits ; but the juftices have no authority to annex fuch conditions ; and the com- plainant ought to alledge his own innocence, to intitle him to make this application againlt. the juftice 45, 46 See 015:011)010, Coopers, Cjccife, ;ffccs, jjuiis, ana 3lnn=becpcrs, blJJeaCurcs, JDlate, j£)oW Titers, Stamps, Cittnc. Almanacks. See Stamps. Annuities. What is an annuity — Stat. 4 Will. & M. c. 3. f. 46. — Stat. 5 Will. & M. c. 5. Certificate of nomi- nee's life Penalty on perjury, and forging of Certificate — — 46, 47 Stat. 2 & 3 Ann. 3. Contributors to produce a certi- ficate of the life of nominees, &c. figned by the miniller and churchwardens without fee; otherwife to make oath of nominee's life — Juftices to make a certificate thereof, Sec. Penalty on perfon guilty of a falfe oath, or forging certificate, &c. 48 Stat. 4 Ann. c. 6. Annuities aflignable, and entry to be made, &c. ib. Stat. 5 Ann. c. 19. Contributors paying, Sec. to enjoy fure eftates in annuities purchafed 49 Stat. 6 Ann. c. 5. Annuities aflignable, &c. ib. Stat. 30 Geo. z. c. 19. On demanding the annuity, certificate from the minifter and churchwardens to be produced of the life of the nominee, if refident in England ; or the fame to be certified, on oath, before a juft ce 50 Penalty of forging or counterfeiting certificates, &c. or of fraudulently receiving annuities 51 Stat. 9 Geo. 1 . c. 1 2. 4 Geo. 2. c. g. 9 Geo. 2. c. 34. Counterfeiting orders felony without clergy S'» 5 2 Apothecary. See pbj'ucians. Fruit fold by water meafure mail be heap-.d — Not to extend to fealed meafures allowed by the fruite- rers company of London ■ j 7 3ppc.nl. 5 Z . S3 53 What is appeal Who may have an appeal of death When, where, and in what manner an appeal of death mult be profecuted ^— — —— 53 Where an appeal of death may be abated 54 Punifliment for falfe appeal _^__ jj 3Jpplcs aim ^enrs, Stat. 1 Ann. ft. i.e. 15. Water meafure defcribed 56 2fppjcntiecs. Definition of apprentice 57 Stat, s Eliz. c. 4. Hufbandmen may take apprentice:, — Every houfeholder dwelling in any town corpo- rate may take an apprentice for feven years Merchants, &c may take no apprentices, but fuch whofe parents may difpend 40 s. of freehold Whom they may have for their appren.ices who dwell in market towns not corporate 58 What apprentices merchants, &c. dwelling in a mar- ket town not corporate, may take. Thefe artificers may take apprentices whofe parents may difpend no land. None may uie any manual occupation except he hath been apprentice to the fame 59 A provifo for the liberties of worded makers in Nor- wich and Norfolk The punifhment of him that refufeth to be an apprentice — The remedy for the apprentice which is mifufed by his maflcr, and for the mafter when the apprentice doth not his duty ' 60 Where an apprentice may be difcharged of his ap- prenticehood — None fhall be bound to be appren- tices, but thofe which be under twenty one years of age — AfTembly of the juftices twice in the year for the due execution of this flatute The juf- tices allowances for their pains 60, 61 Who fhall have the forfeitures mentioned in this fta- tute Juftices of peace, mayor, Sec. may hear and determine all offences committed againft this flatute, 31 Eliz. c 5. A provifo for the cities of London and Norwich -The forfeiture of him that taketh an apprentice otherwife than is li- mited by this ftaiute He that is bound appren- tice within the age of twenty-one years is com- pellable to ferve 62, 63 Provifo for the inhabitants of Godalrriing in Surrey — Who fhall have the forfeitures in cities and towns corporate A remedy for thofe fervants which depart from their mailers, and do flee into other fhires ( 3 An infant apprentice rauft be bound by indenture — Perfon bound apprentice by deed, &c. though not indented, being firft duly ltamped, is intitled to a fettlement where apprenticed 64 Stat. 6 & 7 Will. 3. c. 17. Apprentice difcoveting perfonguilty of clippingtheccin fhall befree 64, 65 Stat. 3 Geo. 3. c. 8. Officers, mariners, foldiers, and marines, who have been at any time employed in the king's fervice fince 29 Novenib. 1 748, and have not fince deferted, ard alfo the wives and children of fuch, are authorifed to fet up and ex- ercife trades within any part of Great Hntain or Ireland, without lett ; and without being liable to be removed from thence to their laft legal place of /ettltmect, until they become actually chargeable 512 t» INDEX. to the parifh ; and if fued, upon pleading the gene- ral iffue, they (hall be acquitted, and be paid double colls of fuit Where any two juftices for the county or place where they (hall fo fet up, fummon them to give evidence as to the place of their laft legal fettlement, they (hall make oath accordingly ; an attefted copy whereof fliall be given them, which (hall be admitted as evidence at the quarter feffions ; and if fummoned again they (hall not be obliged to take a frefh oath, but pro- duce the former, or leave a copy thereof 6c, 66 Privileges of [he two univerfities referved The art of a brewer is an art, myltery, and manual occu- pation within the (aid branches of the aft 67 Exercifing a trade by others is within the (latute 5 Eliz. ■ ■ 68 Indift.forexercifing the trade of a fellmonger contrary to 5 Eliz. not quafhed, becaufe averred to be a trade at the time of making the aft Where the trade is averred to be a trade at the lime of the aft, ihe court cannot intend it within the aft A perfon who is not qualified to exercife a trade himfelf, by having ferved an apprenticefhip, entering into partnerihip with a qualified partner, and only (baring the profits and (landing the rifque of the partnerfhip, without ever exercifing or interfering in the trade himfelf perfonaily, is not within the prohibitory penal aft of 5 Eliz. c. 4. fo as to be liable to the penalties of it 69, 70, 71, 72, 73 Indictment (or exercifing the occupation of a tanner, not having ferved an apprenticefhip for feven yeirs therein, is fufficient without fpecifying and aver- ring the Want of other qualifications allowed by fub- fequent (latutes, for fuch other qualifications or ex- ceptions ought to be (hewn by the defendant 73, 74. Indiftment for ufing a trade uled in Great Britain at the time of the (tat. 3 Eliz. quafhed .What (hall be faidto be a good indiftment for exercifing a trade without having ferved an apprenticelhip Service of apprenticelhip beyond fea fufficient to enable him. to ufe the trade in England 7 c, 76 Following a trade for feven years without binding fufficient Evidence of having exerciftd a trade, without having ferved as an apprentice, not fuffi- cient : 76 Power to difcharge apprentice, extends only to fuch trades as are fpecially named in the (tarute — Stat. 5 El. extends only to thole trades mentioned in it 77 Stat, c Eliz. extends 10 trades not mentioned in it ■ A man cannot fend hisapprentice beyond fea, ex- cept he be with him Apprentice cannot be dif charged without appear nee or fummons of the mafler Ufing him unkindly is not fuffic.ent 78 Seffions cannot difcharge apprentice on account of ficknefs——— Juflices may force a mailer to take an apprentice ; Per Holt Ch. J. That the feffions have not originally jurifdiftiou to difcharge appren- tices Seffions may difcharge apprentice by ori- ginal order, and order money to be returned Sedisns has an original jarifdiftixm to difcharge ap- prentices Apprentice not to be difcharged with- out a reafon ■ 79 A. is bound apprentice to B. who is a freeman of the city of London, and A. is bound and inrolled there, then goes and lives with his mailer in Mid- dlefex ; the juflices of the peace for the county may difcharge him — Order for dilcharging apprentice, the mafler not appearing ■ 80 Juflices cannot order money to be returned on dif- charge of an apprentice Doftrine of refunding eftablifhed Order on the mailer to return money good — Report of the preceding cafe from a ma- nufcript 81 Money ordered to be refunded by the court of chan- cery 83 Debt lief at Weflminfler on a penal (latute, but an indiftment or information in the proper county only — 84 Debt upon flat. 5 Eliz. ought to be had in the proper county. — Debt lies not on any penal (latute made . before 21 Jac. 1 in BR Indiftment upon c Eliz. may be found at a borough leliions 84, 85 Indiftment upon 5 Eliz c. 4. taken at the feffions in a corporation, quafhed Indiftment on 5 Eliz. c. 4 found at the feffions for the city ofCarhfle, held good Information, qui tarn, for exercifing a trade, contrary to 5 Eliz. c 4. not having fer- ved an apprenticelhip, may be laid at a parifh 86 By the common law, perfons under twenty- one can- not bind themfelves apprentices A covenant or obligation of an infant for his apprenticefhip (hall not bind him If his father or other perfon doth covenant for an apprentice, fuch covenant lhall bind the father or fuch other perfon, if the ap- prentice be likewife bound — — 87, 88 Covenant between the mafler and a third perfon, the fervantnot being party, makes no apprenticefhip 88 Stat. 5 Eliz e. c. Owners of (hips, fifhers on the fea, . gunners and fhipwrghis, may take apprentices 89 Stat. 43 Eliz, c. z. Binding of poor children appren- tice; ■ 89 . Stat. 1 Jac. 1. c. 17. Felt-makers to have no more than two apprentices 89. Stat 7 Jac. 1. d 3. How money given for the bind- ing of poor children to occupations, (hall be be- llowed How money given for the binding out of apprentices of poor children (hall be employed, . and by whom 90 The forfeiture of thofe who of dury ought, and yet refufe to emp'oy the money The party which , rccuveth the money, lhall be bound with lureties to repay it 91 Within what time the money fhall be put forth A provifion if the-e be not fit perfons in that parifh to be apprentices- What fort of perfons fhall be apprentices Account lhall be made of the mo- ney employed ■ 92 A remedy where any party trulled (hal! break the trufl, or commit sny offence — A remedy for any. party grieved by the commiffioDeis 93 Stat. INDEX. Star. 5 Car. i. c. 4. Perfons to whom children are bound apprentices according to 43 Eliz. m2y take fuch apprentices ______ q± Stat. 8 & 9 W. 3. c 30. Poor children bound ap- prentices purftnnt to the aft 43 Eliz. c. 2. thofe to whom they are bound, to provide for them according to the indenture Cgned by the juftices, &c. Penally on Offenders- -Perfons to whom poor children are bound, being aggrieved, may appeal to the juftices — 94 Juftices at feffions are proper judge?, whether fit to oblige a perfon to take an apprentice, or not Men of ordinary trades, or of hufbandry, are compellable only to take apprentices 95 Stat. 2 & 3 An. c. 6. Parifh boys may be put out apprentices to the fea fervice, to matters of fhips, &c. Boy's age to be inferted in his indenture, &c. 9 c, 96 Churchwardens to pay down 50 s for boy's necef- fary cloathing, &c. and be allowed the fame in their accounts — Apprentice, inde.ntuies to be- fent to the collector at the port whereunto his maf- ter belongs. Collector to enter the fame gratis. Penalty on collector r.eglecljt,^ Lord admiral to grant protections for fuch apprentices, gratis. - 97 Parifh boys bound apprentices, may be turned Over to the fea fervice. Indentures of alignment to be regillered Mailers of mips, &c obliged to take fuch apprentices By 4 An. c. 19. $-. 16. no mailer (hall be bound to take a boy under 13 years of age, Bcc and togiv-an ac ount of their names, &c How apprentices fhall be conveyed to the ports to which their matters be- long The counterparts of their indentures to be tranfmitted to the churchwardens, &-c. 97, 98 Juftices to determine complaints between mafters and apprentices C'oileftor to keep a regiller, &c. and tranfmit a copy thereof to the quarter-feflions, &c. gratis : . enalty Officer to inlert on the coequet the number of men and boys en board, Lc. 99 Perfons voluntarily binding themfelves apprentices to fea fervice, not to be impreffed for three years. Exr'a'ned by 4 Ann. c. 19. §. 17 — ' — Indentures to be re.yiftercd, and protections given for the faid three year-, When fuch apprentices fhall be imp'cii' J., mafters to have able feamens wages for the.i; P%n_lciw -nd forfeitures, how to be levied. 99, 103 Stat. 4 Ann c. ig No mafter of fhip to lake ap- prentice under thirteen years old 1 00 Stat. 8 Ann c. 9. From 1 May 1710. 6d. for every 20 s of col or under, and I 2 d. for every fum ofabove 50I. to be paid for every clerk or ap- prentice put out, ftl five years ; made perpetual by 9 Ann c. 21. f 7. To be paid by the mailer The full fum given with an apprentice, &c. to be inferted in the indenture, &c. on forfeiture of -Two new flamps to be double the fum— provided. Sec. Indentures to be brought to the head office, &c. in two months after date, and there the duty to be paid, and indenture llampcd, &c. or the collector to indorfe a receipt, &c, Within what time indentures fhall be llampt 102 Indentures, in which the full fum received, is not charged, &c. void ; clerk, &c incapacitated Parilhes or publkk charities not charged No indenture to be admitted in evidence, unlefs oath made, that the furr.s wete actually paid, Sec. Where any thing fhalljbe given to aoy mafter, not being money, the full value of fuch thing to be anfwered for the duties 103 Stat. 9 Ann. c. 21. Mafters hereafter omjt'.ing, to forfeit 50I. Stat. 18 Geo. 2. c. 22. Further penalies for not paying the faid duties, how to be recovered 104 Stat 20 Geo. 2. c 19. Certain apprentices, to fum - mon the mailer, &c. and upon fan-factory proof, to discharge the apprentice- Jullices upon com- plaint of mafters againll apprentices, and pro. 5 upon oath, to punilh the offender by commitment, &c Perfons aggrieved may appeal. Excep- tion Cofts not to exceed 40s. No writ of certiorari ic; Stat. 20 Geo. 2. c. 45. Upon payment of double duties and tender of the contracts to be Itjmped within two years after the end of the apprenticefhip, &c. the contrails to be good, &c Penalties incurred for omiffions, difcharged upon payment of double duties Apprentices, &c. paying the double duties forfeited by their mailers, &c to be reimburfed double the fum paid in relpeCt of fuch apprenticefhip, &c with colls ; and be difcharged from their apprenticefhip, if they require it • 05, 106, 107 And to have the fame benefit of their fervice, as it they had been turned over Apprentices paying the double rates where profecuiions are commenced againil their mailers, to be qualified to follow their trades. Sec. 107 Stat, c G. 3.C. 46. Where the freedom of aBycity or company is obtained by fervitude, the chamberlain, or other proper officer, is to enter the names of all perfons put out clerks, apprentices, or lervants, with the names apd abode of tne mailers, the apprentice fees, and dates of the indentures, ic. on forfeiture of 20 1. and the following notice to be printed under all printed indentures, _c. The notice On forfeiture of 10 1. i~". 108 Stat. 6 Geo. 3. c. 2c. Juftices impowered to oblige apprentices abienting before expiration of his ap- prenticefhip, to ferve for fuch term as he fhall abfent, or to make fatisfaftion ; except as to apprentices paying 10 1 fee; or where feven years fhall have elapfed ■ 109 Juftices INDEX. juftices impowered to grant warrants againft artificers and others not fulfilling their contract, or being guilty of any mifdemeanor, and upon conviction to commit the offender Perfons aggrieved by the order of a juftice (except in cafes of commit- ment) may appeal ; giving notice to the juftice, and entering into recognizance, &c. Juftices at the quarter feflions impowered to determine the appeal, and award cods— — — — Limitation of this aft with refpect to the Stannaries, and the city of London 109, no Stat. 7 Geo. J. c. 2t. Two or more juftices, though not of the quorum, impowered to carry ceitain acts into execution -_____. 1 1 1 Stat. 7 Geo. 3. c. 39. Children born in, or received into, any work houfe or parifli houfe, within the feveral parifhes here mentioned, are to be nurfed, and taken care of, as follows ; viz. Such of them as are under fix years of age, to be fent in the country, not lefs than three miles oft' ; thofe under two years, not fuckled by the mother, not lefs than five miles off; aid thofe above two, and under fix years of age, not lefs than three miles off Weekly rates to be paid for their nurfing and maintaining, till apprenticed, or returned to the work-houfe Conditional reward to nurfes ior their care Cloathing to be furniftied, and all other incidental expences defrayed, by the parifh, and feparate accour.ts to be kept thereof 1U, 112 Five guardians of the parifh poor children to be chofen Where any (hall refufe to act or (hall refWn, or die, a further choice to be made- Firft guardians to continue in office till the year 1770 ; future guardians to remain three years in office Churchwardens and overfeers dif- quilified from being tlected guardians Power and duty of guardians 'Evils com- plained of by them, how to be remedied 1 1 3 A meeting of the guardians to be fummoned every fix weeks ; two make a quorum Power given them fingly, or jointly, to call in the church- wardens or overfeers Libetty granted, of fending parifh poor children, under fix years of age, to the Foundling Hofpital, Ujon fuch terms as (hall be agreed on The charge to be defrayed out of the poor rates ; and if not duly paid, any juftice may fummon the overfeers, and order immediate payment, with the charges incurred ; and, on refufal, may levy the fame by diftrefs and fale « 1 4. "5 The death, difcharge, or apprenticefhip, of any child, to be certified to the veftry cleik of the parifh Hospital account to be kept with each parifh di (linopcry. Armour feizing. See JiUtMi.'. Arms. See aiffrny, arraignment. What it is, and the pleas thereon 1 = 3. 1*4 — 124, 125 Uryeft. What it is By whom offenders may be arretted or apprehended 125 Stat. 34 Ed. 3. c. 1 . For what caufes of fufpicion perfons may be arretted By whom the perfon muft be fufpected — 1 z6 Whether any fuch caufe of fufpicion will juftify an arreft where no treafon or felony hath been com- mitted, or dangerous wound given In what manner an arreft for fuch fufpicion is to be juftified in pleading 127 Arrelling of offenders by private perfons of their own authority, permitted by law for the prevention of treafon or felony, or in refpect of inferior offences Of a rrelting offenders by conftables by their own authotiiy — 128 Of arrefting offenders by conftables by warrant from a juftice of peace — 129 Of arrefting offenders by command of juftices ofpeace. By warrant. Sec. I 3 l In what form fuch warrant is to be made In what manner fuch warrant is to be executed 1 32 Of breaking open doors, in order to make an arreft '33 Aifon. See burning. Articles of tljc |3>eace. Definition of articles of the peace 134. Stat. 21 Jac. i.e. 8. procefs and writ of fufirfJcos of the peace, or good behaviour, fhall not be "ranted, but upon motion in open court '134 Falfe INDEX. Falfe fureties procured for the gaining of writs cf fu- perfcdeas (hall be punifhed by the judges 1 3 ; The court will not inquire into the truth of articles of the peace How to take fccurity of the peace where a marriage is difpnted Mandamus to take fecurity on articles Fail committed before an aft of grace may be a ground for ar- ticles of the peace 1 36 Articles of the peace ought to be exhibited in the neighbourhood, that the fecurity may be given there Articles of the peace appearing falfe and malicious, procefs was flayed, and the exhibi- tant committed for peijury Articles of the peace being exhibited in London, for a fail done at Portfmouth, attachment ordered to be indorfed with a direction to any juflice to take fecurity "37 Artificers. See j5>ctbant0, atffault nnB 20attett>, Definition of aflault and battery — 138 In what cafes an aflault and battery may be juflified --■ How unlawful aflaults and batteries are pu- nilTied 139 Stat. 9 Ann. c. 16. whoever (hall aflault a privy counfellor fhJl fuffer death 140 Stat. 7 Geo. 2. Perfons convifted of aflauking others with offenfive weapons, and a defign to rob, lhall be tranfported for feven years —Such con- vifts breaking gaol, or unlawfully returning from tranfportation, lhall fufFer death 141 Stat. 6 Geo. i.e. 23. AlTauIting any perfon in the flreet, &c. to tear their cloaths, &c. fhall be guilty of felony, and may be tranfported for feven years 141, 142 Afieflment. See Qfyilitia, Definition of aflize The feveral commiflions of the judges of aflize Sheriffs and juftices of peace bound to attend 142, 143 folk, fix in Suffolk, »nd two in Norwich- Utttacbmcnt. Definition of attachment — 143 Seflions cannot award an attachment for not awarding an order . 144 aittai'naer. Definition of attainder Difference between a man attainted and convicted ■ 144 Definition of attaint Slttaint. H5 35ttojrtet'. Definition of attorney Attornies formerly made by letters patent 145 Stat 33 Hen. 6 c. 7. A practice of contentious at- tornies. to ftir up fuits for their private profits—— There fhall be but fix common attornies in Nor- Juftices of peace fhall have authority to inquire of offenders ■ 146 Stat. 3 Jac. i.e. 7. An attorney fhall have a ticket of the money which he giveth for fees, 81c- An attorney delaying his client's fuit, or demand- ing more than is due Who only fhaH be at- tornies or folicitors — ■ • 147 No following of a fuit in another's name 148 Stat. 2 Geo 2. c. 23. After 1 Dec. 1730, no per- fon to be admitted an attorney, unlefs he take the oath, and be inrolled Judges to examine into his capacity, before admiflion 148 None to be permitted to aft as afolicitor, unlefs he take the oarh, and be inrolled Court of equity to examine Solicitors 149 After 1 Dec. 1730, none to aft as attorney, unlefs he has ferved a clerkfhip, and been admitted Judges before they admit them to take the oath, to examine their fitnefs After 1 Dec. 1730, none to aft as folicitor before he has ferved a clerkfhip, and been duly admitted. 1 jo Judges of the courts of equity to examine folicitors Attornies or folicitors, with confent of an at- torney of another court, may fue out writs, &c. in fuch court tci Judges not to fwear a greater number of attornies than formerly allowed Clerks on the death of thjir matters, &c. may be turned over Attornies before admiflion to take the following oath 1 52 Solicitors to take the oath following No attorney to have more than two clerks at one time. Prothonotaries or fecondiry of common pleas, Sec. to have three clerks After 1 Dec. 1730, fworn attornies, permitting thofe that are not to iflue out writs, difabled from praftice 153 After 1 June 1729, attornies and folicitors to be inrolled in the proper courts Attornies to be admitted without ltamp, if fworn before t June 1729 — -A fworn attorney may be admitted a foli- citor 154 A fworn folicitor in one court of equity, may be admitted into any other court The name of the attorney to be writen on every writ, &c. At- torney, &c. not to commence an aftion for fees till one month after the delivery of the r bills 1 ,- - Judges, &c. to refer bills to be taxed, without money- being brought imo court, &c. 1 $6 Attorney, &c. in their own name fuing out ary writ, &c. not inrolled, forfeit ;o 1 Korl«. ;ures how to be recovered To what 1 lerks, &c. the aft doth not extend The attornies and clerks in the exchequer, herein mentioned, may aft as here- tofore t 157 As alfo the folicitors of the treafary, &c 158 Scu c. Geo 2. c. 18. No perfons to be jull ices wno have, not 1 I, a year clear of incumbrances 1 58 Attornies, folicitors, and proftors incap.citatc, Definition of award, and what things maybe deter- mined thereby - 168, 169 The different kinds of fubmiffion and the revocation thereof ■ ■ 1 70 Stat. 9 & to W. 3. c. 15. Merchants and traders, &c. defiring to end controverfies by arbitration, may agree their fubmiffion ef the fuit to the award of any perfon Agreement fo made to be in- ferted in their fubmiffion, &c— — — Parties to be finally concluded by fuch arbitration In cafe of difobedience, party neglecting fubjeft to penalty, &c. unlefs arbitrators misbehaved them- felves Corrupt arbitration void, and may be fet afide, &c. 171 The aft 9 & to W. 3. c. 15. was made to put fub- miffions where no caufe was depending, upon the fame foot with thofe where there was a caufe de- pending ; and it is only declaratory of what the law was before, in the latter cafe 172 The court wherein the rule is made is the proper court to examine into the partiality of the arbitra- tors Where the parties have agTeed to make the fubmiffion to an award a rule of court, and to be reflrained from bringing a bill in equity, the arbitrators, notwithftanding the award may be de- fective in point of law, may plead it in bar to a bill here 173 Arbitrators may plead the award in bar to a bill charging partiality, but they mull fupport their plea by (hewing themfelves impartial, or the court will give the party a remedy by making them pay colls— Where a fubmiffion to an award has been made a rule of court, it is a contempt of that court to difpute the order, unlefs they can fhew partiali- ty, corruption or misbehaviour in the arbitrators «74 A plea to a bill brought to fet afide an award, and for a general account ; Lord Hardwicke allowed it as again!! the general account; but held the plaintiff" was not precluded at the hearing from objecting to the award, for fraud or partiality in the arbi- trators — — — — 175 Improper to come into this court to fet an award afide, merely for an ohjeftion in form Courts of law formerly ufed too much nicety in determin- ing awards Though arbitrators refer colts to be taxed, yet it will not vitiate the award at law If courts of equity were to take greater latitude in determining awards than courts of law, it would introduce confufion and uncertainty ; better there- fore to adhere to one rule As courts of law have (aid they will never nuke a prefumption to overturn an award, fo neither will a court of equi- ty-^ — Where an award is good to a common in- tent, and anfwers the purpofe of parties in fabrmt- ting to a reference, the court will not fet it afide upon trivial objections — J 77 If INDEX. If arbitrators delegate their power, the award is to- tally void — Arbitrators need not point out parti- cularly the method in which the award is to be carried into execution Where arbitrators have awarded releafes, the leaving it to the court to give directions to the mailer to fettle the form does not vitiate an award ■ 178 In an agreement between partners to refer matters in difpute, arbitrators fhould be impowered to exa- mine upon oath Of the parties to the fubmif- fion - 1 79 Of the arbitrators or umpire, and their power 180, 181 Of the award, and what (hall be deemed a good award The award muft be according to the fubmiffion — — 182 The award muft be certain 184 The award ought to be equal and mutually fatisfac- tory— — The award mull be of a thing lawful and pofilble ■ 1 8 j The award muft be final — 1 86 Awards are now confidered with lefs ftriftnefs than formerly ; yet they mull be certain and final 187, i 88 In an action of debt upon the award itfelf, the plain- tiff need not fhew forth io much as he mull have done, if he had brought it upon the arbitration bond 189, 190 lBatigcts. Definition of badger Stat. 5 & 6 Ed. 6. c. 14. Who (hall be j idged a forellaller, who a regrator, and who an ingroffer ; and the punifhment of them — punifhment for the firll offence — 191, 192 Punifhment for the fecond and third offences To what retailing and other acls this (latute doth not extend Badger, &cv to be allowed by the quarter feffions, &c. ■ 193 Changing of feed-corn- -No perfon may fell his cattle within five weeks after he bought them The juftices of peace may enquire, hear and de- termine the offences aforefaid 1 94 But one punifhment for one offence— — — — Tranl *■ porting corn, &c. from one port to another by licences of the juftices Every man may ingrofs corn being at thefe prices Within what time the offender mull be fued Regrating of frefii fifh — — 195 Drovers of cattle licenfed by the jullices may buy and fell again Drovers to be allowed by the quarter feffions, by 5 EI:z. c. 12. 196 Stat 5 Eliz. civ Who mail be accounted an in^ groffer by the ftatute of ; ft 6 Ed. 6. c. 14 A provifo for a badger, carrier, &c. licenfed p A provifo for a drover of cattle, or for buying of ( corn to be tranfported from one port to another 196 The inconvenience enfuing the number of drovers of cattle and badgers, &c. of co;n and other victuals To what kind of perfon?, and at what places only licence (hall be granted to be bad- gers, drovers, &c The date of the licence, and the juftices hands and feals 1^7- Bonds with fureties fhall be taken of drovers, car- riers, Sec. not to infringe this ad The fee> of the clerk of the peace None fhall buy corn to fell again without fpecial licence Who fhall have the forfeitures Jullices of peace in their feffions fhall inquire of and determine thefe of- fences 198- A city, &c. may appoint p irveyors of their provi- fion To the inhabitants of which counties this (latute doth not extend 199 Stat. 1 3 Eliz. c. 25. No perfon to be admitted a badger, Sec. in other form than is prefcribed by Hat. 1 3 Eliz. c. 25. Saff. Definition of bail Difference between bai! and mainprize — Who are bailable or not bailable 2cj Stat. VVeil 1. (3 Ed. I.) c. ic. What offenders are mainpernable or not — Penalty for unlawful main- prize Penalty for detaining a prifoner that is mainpernable 201 Commentary on the lall mentioned (latute 202 — 206 Stat. 1 R. 3. c. 3. Every juftice of peace may admit a prifoner to bail, Rep. 3 H. 7. c. 3. Efcape of felons inquirable by jullices of peace No officer fhall feize the goods of a prifoner until he be attainted, or the goods forfeited 206 Stat. 3 Hen. 7. c. 3. Juftices of the peace may let a prifoner to mainprize who is mainpernable . Inforced by 1 & 2 Phil. & Mar. c. 1 3. The fheriff fhall certify the names of all prifoners in his cuftody to the juftices of gaol-delivery— A repeal of the (lat. of t R. 3. c. 3. touching the bailing cf prifoners ■ 207 Stat. 1 & 2 Phil. Sc Mar. c. 1 3. In what manner juf- tices of peace may bail perfons arretted of felony, or fufpicion thereof, &d None fhall be let to bail, which be forbidden to be bailed by the llatute of 3 Ed. 1. c. 15. — The jullices duty in bailment of a prifoner ; extended to fucn as fhall be com- mitted lor manfla lighter, &c. 208 The coroner's duty upon an inquifition found before him- The penalty of any juftice of peace or coroner omitting his duty Juftices of peace of London, Middlefex, &C. may bail felons and pri- foners Removing a prifoner, or recognizance 209 Manflaughter not bailable, if confefled by the party — What fhall be deemed fufficient bail 210 Exceffive bail not to be required Of taking irfuf- ficient bail Of granting bail where it ought to be denied ■ 211 Stat. 27 Ed. 1. c- 3. Ju dices of affize fhall be alfo juftices of gaol delivery 211. 5 K Punifh- INDEX. Pui ifhment of fherJfFs for their offences 2 1 2 Stat. 4 Ed. 3. c 2. " The authority of juftices of affize, gaol -delivery, and of the peace." Infor- mation againft a jullice for billing a felon — Court refuftd to bail a perfon for receiving ftolen goods ; defendant's affidavit admits the receipt of the goods, but denies he knew them to be ftolen, winch is a fail triable only by a jury 212, 213 Offence of denying, delaying or obltructing bail where it ought to be granted 213 Stat. 31 Car. 2. c. 2. Bail by Habeas corpus 213 Writs of Habeas corpus within three days after fer- vice to be returned, and the body brought, if within twenty miles, &c. — Such writs how to be marked Writs of Habeas corpus, and the pro- ceedings thereon in vacation time 214 Perfons neglecting two terms to pray a Habeas cor- pus, (hall have none in vacation time, in purfu- ance of this aft Officers how to be proceeded againft not obeying fuch writs Perfons fet at large to be re-committed but by order of court— Perfons committed for treafon or felony (hall be indicted next term, or let to bail, and tried the term, Sec. after, or difcharged 215, 216, 217 The penalty for denying a habeas corpus Habeas corpus (hall run into county palatine and privileged places No fubjedts (hall be fent to foreign prifons 2 1 8 Perfons receiving earned upon contrails to be tranf- ported, excepted Perfons convicted of felony, and praying tranfportation, excepted— Im- prifonment before the firll of June 1679. excepted ■ Offenders may be fent to be tried where their offences were committed Profecutions for offences within what time to be made After theaffizes proclaimed, no prifoner to be removed, but before the judge of affize 219 In fuits for offence aga : n(l this law, the defendants may plead the general iffue, Sec. Perfons committed as acceffaries before to petty treafon or felony, (hall not be r;moved or bailed otherwife than before this ad made Habeas corpus for a young lady who had been decoyed away from her parents ■ — 220, 221 No peer or lord of parliament hath privilege againll being compelled to pay obedience to a writ of ha- beas corpus directed to him 222, 223,224 Hdbeas corpus for a wife 225 Habeas corpus, if fued in vacation, and returnable immediately before a judge at his chambers, does not expire, by the coming in of the term ; but the defendants may be brought injo court at Weft- minller upon the old writ An impreffed man in cullody at the Savoy, brought up by his bail, in order to be furrendered by them in their . difcharge, was firll committed to the marfhal, with orders 10 deliver him inflar.ter to the keeper of the . Savoy: And an exoneretur was entered 226 Infpeclion of a perfon confined in a mad houfe was ordered to be had by proper perfons, previous to granting a habeas corpus 227 Stat. 21 Jac. t.'c. 26. It is felony to levy a fine, fuffer a recovery, &c. in another's name not privy thereto -This felony (hall not corrupt the blood, nor take away dower An attorney may do it for another [man- -Where bailis perfonated, he cannot be difcharged till the offender is convicted 228 Foreign bail, caufe for the pillory . . 229 Stat. 4 W, & M. c. 4. Chief juftices, &c. may make any perfons, except attornies and folicitors ; com- miffioners to take bail in the country Juftices, &c. to receive the bail- piece upon affidavit of due execution 229 Bail taken below to be de bene effe— — — — Commif- fioners fee Power given to juftices, &c. to make rules for juftifying, but not to order the perfon's appearance London, &c. faved -Juftices of aflize may take bail- Felony for any perfon to be bail in another man's name . 23a Bailiff. See Sheriff. Definition of baker- ©afeer. ■ Stat. 29 Car. 2. c. 7. f. 1 . No baker to exercife his trade on the Lord's day- Baking puddings, pies and fuch things on a Sunday, is not within (lat. 29 Car. 2. c. 7. but is within the equity of the provifo in the third fection of it, as a cook's (hop ; and within the exception of works of neceflity and mercy 23 1 flfcillatt. Definition of ballad Stat. 34 & 35 Hen. 8. c. 9. Penalty for calling of ballad, rubbifh, &c. into any channel, haven, road, or river 233 Stat. 19 Geo. 2. c. 22. Mailers, &c. throwing out ballad, &c. out of any lhip, Sec. in harbour, &c. but upon dry land only Juftices may iffue warrants, and upon proof, &c. fine them not more than 5I. nor lefs than 50s.-. Penalties, how recoverable . 234 Ship funk or llranded, Sec. in an harbour, and per- mitted to remain there, juftices to fummon the owner. Sec. and upon conviction, to iffue warrants for feiaing and removing the (hip and tackle, and unlefs the ovvner give fecurity within five days, to make fale of the fame — — 235,236 Juftices to execute this act indifcriminately >- Convictions to be final Diftrefs not to be fold till after five days- power of this act -Limitation of the 236 Navigation may not be obftructed by cafting rubbifh, or unlading ballad, in any haven, roads, channels, Sec. but only upon the land, where the tide never flows, by Hat. 34 and 35 Hen 8. c. 9. and 19 Geo. 2. c 22. the unloading it into a hopper, with an intent to carry it out to fea is an offence againft the expref. provifion of the latter act, which fays, " That it fhall not be difcharged but only upon land ; but putting it into a hopper, in order to carry it upon land, would not be fo ; nor fellings INDEX. it out of one fhip into another, with intention to drop it any where" 237 1l5anUnipt. Derivation and definition ot bankrupt Commif- fions of bankruptcy derived from the civil law Bankrupt confidered in the light of a criminal offender Severity of the Roman law to bankrupts ■ 239,240 Benefit of laws of bankruptcy allowed to none but traders 241 Stat. 34 & 3; Hen. 8. c. 4. Complaint Order Sale, &c. ' 242, 24; Stat. 13 Eliz. c. 7. Who is a bankrupt, how and by whom his body, lands, and goods (hall be ordered for payment of the creditors — 245 Who (hall be faid a bankrupt The lord chancellor may grant a commiffion to take order for bankrupts bodies, lands and goods The authority of the commiffioners The commiffioners may fell bankrupts lands, goods, &c. 246 Againft what perfons the commiffioners fale of a bankrupt's lands, goods, &c ftiall be available Vendees of copyhold lands fhall compound with the lord of the manor for their fines The commiffioners fhall declare to the bankrupt how they have bellowed his lands and goods The remedy where goods or debts of bankrupts be in the hands of others — — — 247 The penalty of fuch as be examined, that will not difclofe the truth, or refufe to fwear How the forfeiture fhall be recovered and employed ———A remedy againft them who detain the goods of bankrupts ■ 248 How the forfeitures fhall be bellowed after the bankrupts debts be paid- -A remedy againft him who withdraweth himfelf from his dwelling place The penalty of a bankrupt not yielding himfelf after proclamation, and of fuch as do hide or receive him ' 249 A remedy for the creditor, if he be not fatisfied for his whole debt Lands, &c. extendable, which he purchafed, or do defcend to a bankrupt ■ Lands conveyed away before the party become bankrupt 250 Stat, 1 Jac. 1. c. 15. An expofition and addition to the ftatute of bankrupts, made 34 & 35 H. 8. c. 4. 13 Eliz. c. 7 Who fhall be ad- judged a bankrupt T he Ike commiffions, orders, benefits and remedies as be provided for bankrupts by the ftatute of 1 3 Eliz. c. 7. 251 New creditors partakers with the former A bankrupt conveying his Jands or goods to others, or transferring his debts into other mens names ——In what cafe he that doth withdraw him- felf dial] be proclaimed a bankrupt 252 A bankrupt apprehended, which upon warning, refufeth to appear The examination of a bankrupt A bankrupt refuting 10 anfwer The punifhment of a bankrupt committing per- jury _ _ 25? Ex Scriviners, &c. Who may not be bankrupts 29$, 2y6 What are afts of bankruptcy. 1. To depart the realm. 2. To begin to keep his houfe. 3. To abfent himfelf. 4. To take fanftuary. c.Tofuf- fer himfelf willingly to be arretted for any debt, or other thing not grown due, &c 6. To fufter him- felf to be outlawed. 7. To yield himfelf to prifon. 8. To depart from his dwelling houfe, to the in- tent or purpofe to defraud or hinder a juft creditor. 9. Willingly or fraudulently to procure himfelf to be arretted, or his goods, or money to be attached. 10. To make any fraudulent conveyance of his lands, &c. n. Obtaining any protection otherwife than being lawfully protected by privilege of par- liament. 1 2. Preferring petitions to compel credi- tor to accept lefs than his debt, Sec. 13. Being ar- retted for debt fhall after his arreil lie in prifon two months upon that or any other arrelt or detention, 14. Being arretted for iool. or more of juft debt, ihall, after fucharreft, efcape outof prifon 297, 302 •flB.UltiS. Definition of bank- Stat. 22 Hen. S. c. 11. Cutting down or breaking upof dikes in marfh land is felony 303 Juttices of the peace to inquire of offenders, and award procefs,&c. 304 St3t. 10 Geo. 2. c. 52. Piles, chalk, &c. nfed for the fecurity of marfhes, not to be removed, on forfeiture of 20 1. to be levied by diftrefs, or imprifonment for fix months ______ 334, 303 Stat. 4 Geo. 3. c. 12. Perfons who fhall damage any •banks, flood-gates, or other works belonging to rivers, &c. made navigable by aft of parliament, fhall be adjudged guilty of felony, and be t.anfported for 7 years . 305 _3arratrt?. Defcription of a Barrator — 306 How offenders are to be proceeded againft, and pu- nifhed ■ 307, 308 Barrel. See Coolers, H5a&arD. Definition of batlard All well regulated govern Stat. 20 Hen. 3. c 9. He ii a baftard that is born before the marriage of his parenw- be deemed baftards orients have fettled rules of propagation, &c 30S -Who fhall 309 Where accefs is prefumed, yet evidence may be given of the impoffibility of begetting children Order to charge a man to be the father of a baftard be- gotten on a married woman quafhed, becaufe it doth not fay that her hufband was beyond fca forty weeks 3 ' ° Though the hufband is in England, yet if no accefs can be proved, the iifue are baftards If no accefs of the ^uiband be adjudged, the iffue ars baftards 3.' » The wife may be admitted as an evidence to baftardizt her own child, begotten during her marriage, but fhe fhall not give evidence of any other faft relating to it, which can be proved by any other perfon 3'2 Report of the preceding cafe from a manufcript 3 1 j Wife's evidence admitted in an order of baflardy 3'J But the evidence of the wife alone is not fuffkient to prove no accefs in the hufband, in order to make a fettlement for the iffue as baftards 316 Child begotten after divorce a maifa et iboro, fhall ba taken to be a baftard ; otherwife after voluntary feparation, unlefs found that the hulband had no accefs — — 3 1 7 A widow being delivered 40 weeks and nine days after her hufband's death, child adjudged illegitimate 317,318 The marriage of a pauper being contrary to 21 Geo. 2. c. 33. feft. 1 1. the man being under age and not, &c. was holden to be absolutely void ; and there- fore the woman, Sec. could not be removed to his fettlement 319 Stat. 18 Eliz. c. 3. A provifion for the keeping of baftards Farther provifion relating hereto, 7 Jac. i.e. 4. 320 Stat. 7 Jac. i: c. 4. The punifhment of lewd women who have baftards 321 Stat. 21 jac. 1 . c. 27. It fhall be murther for a mo- ther to conceal the death of her baftard child 32 1 Stat. 13 & 14 Car. 2. c. 12. Putative fathers of baf- tard children running away, how to be proceeded againft ■ 322 Stat. 6 Geo. 2. c. 31. After 24 June 1735, the per- fon charged on oath of being the father of a baf- tard child, may be immediately apprehended, and committed to prifon, unlefs he give fecurity 322, 3^3 Such perfon on the woman's mifcarriage, See. Ciall be discharged 1 he juttices, on prifoner'i requeft, may fummon the overfeers, Set, and if no order be made within fix weeks after the woman's delivery, prifoner to be fet at liberty 323 The woman not to be examined relating to her pregnancy, till one month after her delivery Order of ieffion appeal from an order of baltardy made by two juttices is final and conclufive 324 r\o INDEX. No appeal lies from an orJer of baflardy made at the quarter feflions 325 Trie juftices of the feflions bave power aud authority originally, to make any order in the cafe of baf- tardy 326 The jultices in feflions have no power to commit a perfon for difobeying an order made by them on appeal from an order of baftardy made by two jultices ■ 327 A woman having two baftards (hall not be proceeded againft upon (he ftat. 7 Jac. l. c. 4. as for her fecond offence, not having been punifhed for her firft offence Order of two juftices to pay 10 much a week to the parifh until the child lhould be twelve years of age, not good, becaufe the fa- ther may maintain it ■ 328 Order to pay fo much a week till the child mould be able to get his living by working, not good ; becaufe the father may take and maintain the child himfelf A&ion brought on bond to in- demnify parifh from a baltard child Parifh not damnified when the father offers to maintain his baflard child ■ 329 The right way to make an order of baftardy is, " fo long as the child (hall be chargeable"' ■ ■ Father may maintain the child himfelf 330 An information denied againft a juftice who made an order without fummoning the party, becaufe the order, though in nature of a judgment, is yet not flrictly a conviction ■ 331 Seflions may make an original order Report of the preceding cafe from a manufcript 332 information moved for againft juirices, for making an order of baflardy on a perfon, upon pretence that he was not fummoned ; but the contrary appearing, it win denied 334 Marriage doth not exempt the mother of a baflard child from contributing towards his maintenance — Order of" baltardy quafhed, being made three years after appeal ■ 334 Order of baflardy charges the father, though he has been run away fourteen years Before flat. 26 Geo. 2. c. 27. there rnufl have been a quorum in an order of baflardy by borough juftices- Two juftices cannot acquit a man charged with a baflard ■ 335 A baflard is within the ftatute of P. & M A baflard is intended to be born where the order ftatts him to be baptized Baflard of a certificate perfon is fettled where born — When a wife marries a fecond hufband, and it is found the iirft had no accefs to her for a long time, the chil- dren of the fecond marriage are baftards, and the wife's fettlement where the firft hufband's was 336 Where ah order of baflardy is made orginally at fef- fions (as it may) 2. if a fummons fhould not be 337 iet out B. Baflard chargeable only where born— — The fex of the baflard mull be fpecified in an or- der Where two juftices have made an order, the feflions have no jurifdiction, but upon appeal After defendant is difcharged at feflions, a new order of baftardy cannot be made 338 Order to provide for baflard till nine, good That the husband was abfent fix years, and de- fendant had knowledge of the wife, no good ground for order of baftardy— Order of maintenance does not determine the fettlement of a baflard . • Two juftices, on application to them out of fef- fions, on hearing all parties, adjudged that A. is not the reputed father of the baflard, charged upon him by the oath of the woman, but held by the court, that this would fcreen A. from being char- ged with an order by other two juftices 339, 340 Upon motion to quafh an order of baflardy, the re- puted father mull be prefent in court Order of baftardy ill, becaufe examination by one juftice only ■ 341 Money for maintenance of a baftard may be ordered to be paid to the overfeers Order quafhed, be- caufe the words of adjudication were in the fingular number inftead of the plural By i8Eliz. c. 3. feflions proceed on recognizance-^— — By 3 Car. 1. may commit If a man is adjudged by two juftices the reputed father of a baftard, and ordered to pay, and on appeal the order is confirm- ed, the juftices at the feflions cannot commit for nonpayment, but muft proceed on the recogni- zance taken by the two juftices — 342 Original proceedings at feflions — Order to feize the goods of the reputed father of a baftard, &c. Order cannot be made for fecurity till after con- tempt Concealing the death of a baftard child 343 Giving a potion to caufe abortion — > • 344 Battery. See 3UTault artTj :i3attcr£. Bawdy- houfe. See ilcUJoucfe, Beer. See dEjtCife. Behaviour. See jSmretp, H5crtt» Stat. 1 ; Geo. 2. c. 33. Penalty for cutting bent from the fandhills — Penalty on fecond offence Penally on having bent in cuftody Provifo Bigamy. See polygamy. Billets. See jfuel. 345> 346 Where a woman with child of a baflard is removed from A. to B. and privately returns to A. and is there delivered, the fettlement of the baftard is in OBlacb 3tff. Stat. 9 Geo. 1. c. 22. Perfons difguifed and in arms appearing in foreft, &c. and killing deer, &c. deemed felons — ■ 347 Sending letters without a name, &c. and demanding money, &c. felony — Such perfons when to furren- der ihemfelves, &c— Who intitled to pardon 348 Juftices INDEX. juftices to return informations to a fecretary of ftate, who is to lay the fame before the king and council, who may make an order for their furrender Perfons not furrendering themfelves purfuant to fuch order, are deemed to be convifted, &c. Perfons abetting them, &c deemed felons 349 Offenders apprehended within the time limited by order of council, (hall be t ied according to law — Hundred chargeable for damage fuftained in maim- ing cattle, &c. — — 350 Perfons injured to give notice within two days after the offence committed And to be examined within four days after notice, touching their know- ledge of the offenders > Hundred not liable, if the offender is convifted within fix months, &c. Aftion to be commenced within a year after the offence Juftices may iffue warrants to fearch for ftolen venilon Perfons killed or wounded in apprehending offenders, how to be rewarded 3 5 1 Profecutions may be commenced within 3 years after offence committed Sucn offences may be tried in any county — Attainder not to work corruption of blood, &c. This aft, where to be read 35 2 Stat. 6 Geo. 2. c. 37 Malicioufly deflroying banks of rivers, &c. felony without clergy Mali- cioufly cutting hop binds, felony without clergy, 9 Geo. 1. c. Z2. Continued by 10 Geo. 2. c. 32. Made perpetual by 31 G. 2. c. 42. 353 Stat. 27 Geo. 2. c. 15. Perfons convifted of fending threatening or incendiary letters, or of refcuing perfons in cuftody for fuch offences, to fuffer death 35+ UfcHacb JLeaa. Stat. 2cGeo.z. c.io. Enteringanyminesof black lead with intent to fteal, or the affifting or hiring perfons to do fo, deemed felony ; and the offenders to be committed for a year, and publickly whipt j or to be tranfported for feven years; and if they efcape from prifon, or return from tranfportation, to fuffer death — — 354, 355 Certificate of the former conviction deemed fufficient proof thereof Receivers of lead, knowing fuch to be ftolen, guilty of felony — 356 UBIafyhcinp ant fjjofanenefs. What is blafphemy, and how punifhed 3 5-6 Stat. 3 Jac. 1. c. 21. Penalty on players profanely abufing the name of God — 357 Perfon denying the Trinity to have no benefit of the toleration aft — — ibid. Stat. 9 & 10 Wil. 3. c. 32. Perfons denying the trinity, or afferting that there are more gods than one, or denying the Chriftian religion being true, Ac. being convifted thereof, difabled to hold any effice, &x. — — ibid. Further difabilities, if a fecond time convicted thereof — No profecution unlefs information be given in fourdays after words fpoken i'crfon for the frit offence, (on renouncing his opinion in four months after conviction) (hall be dilcharged from penalty Chriftianity is part of the law — 359 An obfeene book is punifhable as a libel againft reli- gion and morality — — ibid. ISoobs. Juftice to grant warrant to (earch for bocks ftolen out of any parochial library > 362 Bows. See (Same, Brandy. See (gjccifc, 30reat>. Preamble reciting aft 51 Hen. 3. and 8 Ann. — Re- cited aft of 8 Ann. and other afts fubfequent and relating thereto, continued to 29 September 1758; from which time fo much of the aft 5 1 Hen. 3. as relates to the affize of bread, and aft 8 Ann. and other afts continuing, or amending the fame, are repealed — — 362, 363 General ordinance for fetting an afiize and price of bread Affize to be regulated by the price the grain, meal, or flour bears in the market, and the profit to be allowed to the baker Where an affize (hall be fet, no fort of bread (wheaten and houfhold excepted) other than what is thereby allowed, is to be made for fale ; under penalty of forfeiting not exceeding 40 s. nor lefs than 20 s. Affize and price of bread to be fet according to the two following tables, marked No. I. and No. II. 364. Affize to be fet in Averdupoize weight, and in the proportions direfted by the tables, for the feveral forts of bread — —Return to be made weekly to the court of mayor and aldermen of London, by the meal weighers, of the prices which the feveral kinds of grain, meal, and flour, fit for bread, pub- lickly fell for in the markets of the city : the prices to be entered by them on a certain day in a bock to be kept in the town-clerk's office ; and the affize and price of bread to be fet the next day ; and to take place according to order, and continue till a new afiize be fet, and to be publifhed forthwith 37c, 371 Before any advance or reduction be made in the price of bread, the meal weighers are to leave at the bakers hall, a copy of the returns made that day, that the company may have time to objeft thereto before the affize is fet 371 The court of mayor and aldermen, and magiftratef, &c. in other cities, towns, and boroughs, may, in like manner, caufe returns to be made them of the prices which the feveral forts of grain, meal, and flour, fit for bread, fliall be publickly fold at in the markets within their jurifdiftions ; the prices to be 3 entered INDEX. entered and certified in a proper book ; and the aflize and price of bread to be fet within two days after ; and to take place, and continue (not ex- ceeding fevcn days) and to be publifhed, as the court or magiftrates fhall direct 37'» 37 2 Two or more juftices within their jurifdicTlions, may fet an affizeof bread ; and caufe returns to be made by the clerks of the neighbouring markets, of the price at which grain, meal, and flour, fhall be there fold ; the return to be made on a certain day, and to be entered and figned in a book to be kept for that purpofe ; the aflize and price of bread to be fet within two days after, and to continue (not ex- ceeding fourteen days) and to be commenced and publifhed as fhall be ordered — 372, 373 Bakers may fee the returns, the day after the fame fhall be made, that they may have time to object to the advance or reduction to be made in the price of bread, before the aflize be fet Baker not lia- ble to pay fees on account of the aflize of bread — Form of the returns to be made of the price of grain, meal, or flour — 373 Returns to be figned Form of publication of the aflize of bread 374 Half peck, and quartern loaves, to weigh, a*id be fold, in due proportion to the peck loaf-— Ma- giflrates to direct how the aflize of rye, barley, or mixed bread, when ordered to be made, fhall be publifhed Where bread of a certain denomina- tion and value fhall be ordered, or allowed to be made, no bread of a different denomination is to be fold at the fame time, under penalty of forfeit- ing not exceeding 40s. nor lefs than 203. for fuch offence — — — 375 The juftices at a general or quarter feflions, may fix the jurisdiction of any hundred or place within a certain diffrict, fo as the aflize of bread fet for the fame may extend thereto — 375, 376 Entry to be made by every clerk of the market, &c. in proper books, of the return made by him, and of the rate the aflize and price of bread fhall be fet at from time to time ; the faid books to be open to the infpeftion of any inhabitant No alteration is to be made in aflize of bread, unlefs the price of wheat, or other grain, fhall vary 3 d. in the bufhel from the lafl return. — • 376 Any meal weigher, clerk of the market, &c. who fhall neglect his duty, or make a falfe return, and any peace officer, who fhall difobey the warrant of any magiffrate, orjultiee, or other wife neglect, his duty, forfeit not exceeding 5 I. nor lefs than 20 s. — -Any buyer, feller, or-dealer, who fhall refufe to difclofe to the meaL weigherin London, orcleiks of the markets, &c. in other places, the true prices the feveral forts of grain, meal and flour, fhall be bought or fold at in the public market, or fhall give in a falfe or collufjve price, forfeit not ex- ceeding iol. nor lefs than 40 s. 376, 377 Where any falfe return (hall be fufpected to be made, the court, magiftrate, or juftice, may, within three days, fummon any buyer or feller, or other perfon likely to give information, and examine them up- on oath, touching the prices of grain, meal and flower, within (even days before ; and any perfon who fhall not appear thereto, without juft caufe (hewn, or fhall refufe to give evidence, forfeits not exceeding 10 1. nor lefs than 40s. And forfwearing himfelf, incurs the penalties of per- jury. Party fumnaoned, not obliged to travel above five miles from the place of his abode 377> 378 When an order (hall be made for making bread for fale of any other grain than wheat, or of mixed meal or flour, bakers to conform to (uch order, and. make the bread of fuch weight and goodnefs, and' at fuch price as (hall be therein directed, on, pe- nalty of forfeiting not exceeding 5 1. nor lefs than 40s. 378, 379 The feveral forts of bread made for fale are to be al- ways well made, and, in their degrees, according to the goodnefs of the forts of meal or flour the fame ought to be made of, without any adultera- tion or mixture except the genuine meal or flour, fait, water, eggs, milk, yeaft and barm, or fuch leaven as fhall be occafionally allowed, upon pe» nalty of the offender forfeiting (not being the fer- vant or journeyman) not exceeding 10 1. nor lefs than 46 s. or being committed, and kept to hard labour for any time not exceeding one month,, nor lefs than ten days ; and if the offender be a fervant or journeyman, on penalty of his forfeiting not exceeding 5 1. nor lefs than 20 s. or being committed and kept to hard labour for any time not exceeding one month, nor lefs than ten days ; and the magiftrate may, out of the money of the forfeiture, publifh in fome news- paper the offen- der's name, place of abode, and offence — The pa» nalty of adulterating corn, meal or flour, whether at the time of grinding, drefling, bolting, &c. or of felling the meal or flour of one fort of grain for another fort ; or any thing mixed, which (hall not be of the genuine meal or flour of the grain the fame is fold for ; is not to exceed 5 1. nor be lefs thsn 40 s. Where bread (hall be of a dii> ferent mixture- of corn than what it importeth to be of, or is allowed, or where the proportion of the mixture allowed of fhall not be duly obferved, or where any thing fhall be fold as flour, which is not genuine, the offender is to. forfeit not exceed- ing 5 1 nor lefs than. 20 s. ■ 379, 389 Where bread (hall be made under weight, the offen- der forfeits not exceeding 5 s. nor lefs than- 1 s. for every ounce deficient ; and if und«r an ounce, not exceeding 2 s. 6 d. nor lefs than 6 d. — - — 1 — pro-> vided fuch bread complained of, if in .any ciry, ■ town corporate, or borough, be weiged before the magiftrate, within twenty four hours after the fame fhall be baked, fold, or expofed to fale: and if in-tny hundred INDEX. hundred, riding or divifion, $cc. within three days of the baking, or fale thereof; unlefs fuch de- ficiency arofe from fome unavoidible accident, or by contrivance or confederacy — 381 All bread made for fale, is to be fairly marked ; the wheaten bread with a large Roman W, and houfe- hold with H, in Oider to afcertain under what de- nomination it was made, and ought to be weighed ; under penalty not exceeding zos. nor Iefs than 5s. Baker demanding or taking a higher price for bread, than what the fame fhall be fet at by the affize ; or refufing to fell to any perfon any of the forts allowed or ordered to be made, when he fhall have more than is necefiary for the immediate ufe of his family or cuftomers, forfeits not exceed- ing 40s. nor lefs than 105. — 381,382 Bread of any inferior quality to wheaten, is not to be fold at a higher price than houfhold bre d is fet at, on penalty of 20 s. Magiltrates, juftices, or peace officers, properly authorized, may enter in the diy time the hoafes, (hops, &c. of bakers, and fearch for, and weigh, the bread therein ; and may feize fuch as fhall be found wanting in gcodnefs, due baking or weight, or not properly marked, or of any different fort than is allowed of, and difpofe thereof at their difcretion. 383 Where any miller, meatman or baker, fhall be fu- fpefted of adulterating meal or flour, the magi- ftrate, &:c. upon information made thereof on oath, may enter the premiffes of fuch fufpecled perfon himfetf, and make fearch, or may grant a fearch warrant to fome peace officer, and fuch meal and flour as fhall be deemed to have been adulterated, may be feized, together with the bafe mixtures and ingredients ; and if feized by a peace officer, it is to be carried before a magiflrate; if feized by the magiftrate, or adjudged by him to be adulterated, he may difpofe thereof as he thinks proper; and the miller, mealman or baker, in whofe premiffes fuch mixture or ingredients fhall be found, and adjudged to be intended to be ufed in adulterating, is to forfeit, upon conviction, not exceeding 10 1. nor lefs thanks, unlefs it may be made appear, that the fame were not lodged there with fuch intention, but for fome other law- ful purpofe ; and part of the forfeitures may be ap- plied in p'-iblifhing the offender's name, place of abode, and the offence 383, 384, 385 Perfons obftrufting or oppofing any fearch or feizure as aforefaid, are to forfeit not exceeding ; 1. nor lefs than 40 s. Any miller, mealman or baker, pre/uming to aft as a magiftrate or juftice in the execution of this aft, forfeits 50 1. to the informer Method of recovery 385 Where any baker fhall, on complaint, make it ap- pear, that the offence he was charged with, and paid the penalty of, was occafioned by the wilful default of his journeyman or fervant, the magi- ftrate fhall iffue his warrant for apprehending the party ; and upon conviftion of the offence, ihall decree a reafor.able recompence to be paid to the mailer ; and on nonpayment thereof, fhall commit the offender, to be kept to hard labour, for any time not exceding one month, unlefs payment be fooner made ig- 386 All offences againft this aft may be he3rd and deter- mined in a fummary way, by msgillrates within their refpective jurifdiftions Offenders may be fummoned, and not appearing thereto, or offering a reafonable excufe, may be apprehended Matter of the complaint to be inquired into upon oath, and examination of witneffes; and the party to be convifted or acquitted thereupon The penalty on nonpayment thereof within 24 hours, is to be levied by diftrefs and file; ar.d if the goods and chattels of the party fhall be removed into an- other jurifdiclion, the magiftrate thereof is to back the warrant of diftrefs ; and the diftrefs, if not re- deemed within fivedays, is to be appraifed and fold, and all charges, after fettled by the magiftrate, to be deducted thereout ; and for want of diftrefs the offender is to be committed for one month, unlels payment be fooner made 386, 387, 388. Power to fummon material evidences, and of com- pelling, by warrant, to appear, fuch as fhall not appear upon fummons — 38S Witnefs to be examined on oath ; and on refufal with- out juft caufe fhewn, may be committed for 14 days, but not lefs than three Conviftion to be drawn up in the following form No conviftion, or other proceedings, may be removed by certio- rari, &c. Perfons aggrieved by the judgment of any magiftrate or juftice, may appeal to the next general quarter- felfions, and execution of judgment is to be thereupon fufpended— — Ap- pellants to enter into recognizance, and give fe- curity to profecute the appeal with effeft, Sec. And the juftices in their laid feffions are to bear and determine the matter thereof, and award cofls thereupon. 388, 3S9 If the former judgmert be affirmed, the appellant is to pay down the forfeiture and cofts, and on de- fault to be committed • 300 If the judgment be reverfed, and the appellant be difcharged of the conviftion, colls are to be awarded and recovered againft the informer If the conviction fhall happen to be within fix days of the feffions, appeal may then be made to the fef- fions following ■ Limitation of actions againft magiftrates, and juftices of peace and officers — Aft of 24 Geo. 2. extended to magiftrates and juftices afting under authority of this aft 390 Seven days notice to be given to peace officers, before the iffuing out any action againft them— Notice to contain the name ar.d abode of the pro- fecutor, and his attorney, and caufe of aftior Officer may thereupon make tender of amends ; and plead the fame, together with the general iffue &C. in bar of fuch action Defendant recover- ing, to be allowed his cofts Plaintiff re- 5 L covering INDEX. covering, intitled to damages and cofls — Perfons fued on this aft, may plead the general iffue, and obtaining a verdict, recover treble cods 39c Profecution to be commenced within three days after the offence— -General refervation of rights — Refervation of the rights of the dean and high fteward of Weftminfter, to fet an aflize of bread, within the city and liberty of Weftminfter, and punifh any breach thereof Refervation of rights to the univerfities of Oxford and Cambridge, to fet an aflize of bread within their jurifdiftions ; and punifh any breach thereof — 391, 392 Diftribution of the unappropriated penalties and for- feitures under the faid aft ; viz. one moiety to the profecutor, where the offender /hall be convicted by oath, or confeflion ; and the other moiety, with the penalties, on weighing, trying, or feizure of bread, by a magiftrate, to fuch purpofes as the magiftrate (hall think fit 393 Stat. 3 Geo. 3. c. II. After I May 1763, no af- fized and priced bread to be made at the fame time in the fame place, upon penalty of forfeiting not exceeding 40 s. nor lefs than 10 s. Juftice, at any general, quarter, or petty feffion, may ap- point which of the forts of aflize or priced loaves, and what other forts of bread, and of what grain, fhall be made for fale, they caufmgan entry to be made of fuch orders; which is to be free for in- fpeftion ; and a copy thereof to be fet up in fome market, or other publick place, or publifhed in the country news papers — 394> 395 The oily forts of aflize bread made of wheat which fhall be allowed A like proportion, as to weight, is to be kept between the white and wheaten bread, and the wheaten and houfhold af- . fize bread ; viz. on penalty of forfeiting, not ex- ceeding 40s. ' 395 A proportion in the price is to be kept in the peck- loaf, and half peck, and its other fubdivifions, both in the wheaten and in houfhold bread ; and the houfhold is to be one fourth cheaper than the . wheaten; on penalty of forfeiting, not exceeding 40s. nor lefs than 10s. The weight of the peck loaf, and its fubdivifions, are to weigh, in every fort of bread which fhall be made for fale, viz. on forfeiture not exceeding 5s. nor lefs than is for every ounce wanting in the weight ; nor exceeding 2s. 6d. nor lefs than 6d. for all under one ounce ; the fame to be weighed before a juftice, within twenty-four hours after being baked, fold, or expofed to fale, &c. if within any city, town corporate, &c, or within the bills of mortality ; and in other places, within three days ; unlefs fuch de- ficiency fhall be fatisfaftorily accounted for 396, 397 Bread of an inferior quality to wheaten, not to be fold at a higher price than the houfhold ; on forfeiture, not exceeding 20s. A large Roman (W) to be im printed on all wheaten bread for fale ; and a large Roman (H) on all houfhold bread: on penalty of forfeiting not exceed ; ng 40s. nor lefs than 10s. unlefs fuch omifiion fhall be fatisfaftorily accounted for • 397 Bread made of any other grain than wheat, to be im- prefled with fuch letter as the juftices fhall order ; they caufing an entry to be made of fuch order ; which is to be free for infpeftion ; and a copy thereof to be fet up in fome market or other public place, or publifhed in the country news- papers 398 Where the juftices neglect to make fuch order, the maker is to mark evety fuch loaf with two diftinft capital letters ; on penalty of forfeiting not ex- ceeding 40s. nor lefs than 5s. for every fuch un- marked loaf 398, 399 Juftices, and peace-officers (authorized by warrant of of a juftice) may enter the houfes of bakers, and fearch for, examine, and weigh all bread made for, or expofed to fale, &C And bread found defective in the weight, or not only matked, or wanting in due baking, or goodnefs, or being frau- dulently mixed, Sec. may befeized and given to the poo r ; unlefs fuch default fhall be fatisfaftorily ac- counted for; and the maker and feller fhall alfo forfeit not exceeding 5I. nor lefs than 20s. for every fuch offence ; unlefs the default fhall be fatisfaftorily accounted for — Penalty of op- pofing any legal fearch, view, weighing, trying, or feizing of bread, is not to exceed 40s. nor be lefs than 20s No rmller, mealman, or baker, may aft as a juftice in the execution of this aft, on penalty of sol. ■ 399, 400 Baker making it appear, that any offence for which be fhall have paid the penalty, was occafioned by the negleft or default of his fervant ; Juftice to iffue his warrant out for bringing the offender before him ; and on conviftion, order a fum to be paid by way of fatisfaftion ; and on non payment thereof, is to commit fuch fervant to hard labour, for any time not exceeding one month ; unlefs payment be fooner made — 401 Juftices to hear and determine all offences againft this aft in a fummary way And the penalties to be paid within twenty-four hours after conviftion, or to be levied by diftrefs and fale Warrant of diftrefs may be backed ___ ^ oz Diftrefs to he fold within five days ; and all charges to be dedufted thereout For want of fufficient diftrefs, the offender to be committed Form following to be obferved in conviftions in England • Form in Scotland to be as for other offences of the like nature No conviftion, Sec. to be removed by certiorari 402, 403 Perfons aggrieved by the judgment of a juftice, may appeal to the quarter feflions ; entering into a re- cognizance, with fureties toprofecute the appeal— Juftices at the quarter- feflions to hear and deter- mine the matter of fuch appeal, and award cofts — 0„ INDEX. On the appeal being affirmed, the appellant may be committed till payment of the cods, or composi- tion be made tf the appellant make good his appeal, reafonable cods to be awarded him 403, 40+ Where there is not fufficient time between the con- viction and feffions, appeal may be made to the fecond quarter-feffion Limitation of aftions brought againft juftices, and peace-officers Aft 24 G. 2. extended tojullices afting under this aft Notice to be given to peace officers, before any writ be fued out againft them ; and if tender of amends be made by them, and the fame fhall be found to have been fufficient, &.C. a verdift to be found for them with cofts Plaintiff re- covering, intitled to damages and colls 404,405 Limitation of actions GeneialilTue Double cofts Limitations and remedies for rendering juftices, peace officers, and other per- fons, fafe in their duty, extended to Scotland Limitation of profecution for offences againft this aft Penalties and forfeitures how to be recovered and applied — 406 Right of the two univerfities referved 407 Breaking gaol. See fjjifon H5?eabi:ijj. Breaking open doors. See Uvvcft, Stat. 2 & 3 Ed. 6. c. 15. Victuallers confpiring to fell their victuals but at certain prices, and la- bourers confpiring touching their works, fhall be punifhed . 407 The punifhments of labourers confpiring the time or manner of their work ibid. A confpiracy by a fociety or company of victuallers, Which magiftrates may enquire of, and pu- nifh offenders rhe price of ftrong beer and ale may be rea'onably advanced without fubjefting the offender to profecution 408 icol. penalty for ufing melaffes in brewing 409 Stat. 10 & 11 W. 3. c. 21. Penalty on brewing, ufing melaffes, &c.» Penalty on brewers fervants — — — — ibid. Stat. 9 Ann. c. 1 2. Brewers, &c. not to ufe broom, &c. on pain of 2d. ibid. Exception Brewers, inn-keepers, diftillers or dealers in fpiiits, &c. not to aft as juftices re- lating to the diftillery 410 Indictment againft a brewer for knowingly felling and delivering fixteen gallons of amber beer as and for eighteen gallons, and receiving the price for eigh- teen gallons, with intent to deceive and defraud ; judgment was arrefted ; for this is not an offence indiftable, but a civil injury to a private individual, owing to that private perfon's own curelciihefs ; a meer non-performance ofcontraft 410, 411,412, 413, 414 IS titer p. Definition of bribery 414 Stat, 12 Ric. 2. c. 2. None fhall obtain offices for reward 41 j Stat. 5 & 6 Ed. 6. c. 16. Penalty for buying or Ri- ling fome fort of offices ibid. The bargains and affurances fhall be void To what offices this llatute fhall not extend 416 Afts done by an officer removable fhall be good A bargain for an office before the firft day of March, &C. Offices given by the two chief juftices, or juftices of affize excepted 41 7 Bribery, how punifhable — — 418 HSjt'DtjCB, Who are bound to repair bridges — 418, 419 Stat. 9 Hen. 3. c. 15. Concerning the making of bridges and banks ■ 419 Stat. 22 Hen. 8. c. 5. A remedy to repair decayed bridges in highways, and by whom Juftices of peace may award procefs againft them who ought to repair bridges 420 The juftices may tax the inhabitants with the affent of the conftables By 1 Ann. flat. i.e. 18. feffions of the peace may tax the feveral townfhips, &c. — Two colleftors of every hundred The juftices fhall appoint two who fhall repair the bridge The colleftors and furveyois fhall account to the juftices 421 The juftices may make procefs into every (hire againft offenders Sheriffs, &c. fhall ferve procefs upon the offenders ; the five ports excepted——— Allowance made to the furveyors and colleftors 422 An order for the amending of the ways at the ends of bridges — 22 H. 8. c. 5. concerning the amending of bridges ■ 423 Further continued ■ 424 For collefting money for repair of decayed bridges, juftices of peace may afTefs every town, ice. in pro- portion Affeffments how to be levied, Ax. — Treafurers to be appointed, and monies how em- ployed — 424 On non-payment, to be levied by diftrefs Penalty on conftable, &c Fines, &c. to be paid to the treafurer Matters concerning repair of bridge?, &c. whereto be determined Juftices to allow 3d. in the pound, &c— General iffue 425 Perfons and things exempted Penalties how to be levied 426 Stat. 12 Geo. 2. c. 29. No repair of bridges, &c. but upon prcfentments of the grand jury ibid. Juftices to contraft with perfons for publick repairs, upon publLk notice 426, 427 Stat. 14 Geo. 2. c. ■33. Juftices at their qu»rter- feifions may purchale lards to builJ county bridges —Certiorari may be granted where private perfons 5 L 2 are J N D E X. are charged to repair a bridge— -Tenant at will is obliged to repair a houfe adjoining to a common bridge 4 2 7. 4 z8 Information will not lie againft a lord of a manor who is bound to repair a bridge, without faying ratione tenure, orfhewing a prefcription 429 A mandamus to make a rate for repair of a bridge muft be directed to the juftices of peace of the county, and not to the juftices of a particular liberty 430,431 The king by letters patents may enlarge the bounda- ries of a city The court of King's Bench has a concurrent jurifdiction with the feflions about re- pairing bridges ■■ 432 to 438 ing in the hand, to be burnt in the left cheek in open court Repealed by 5 Ann. c. 6. f. 1. -Evidence to pay no fee, &c. Fee for bill of indidlment- -Clerk of affize, &c. draw- ■aSuggcri'. Definition of buggery 437 Stat. 25 Hen. 8. c. 6. He that committeth buggery with mankind, or beaft, (hall be adjudged a felon . 438 Eullion. See Coin. ■JllSurglart?. What is burglary ■ 440 Commentary on the feveral parts of the definition or defcription of burglary — 441 — 445 Stat. 24 Hen, 8. c. 5. There fhall be no forfeiture of lands or goods for the killing of any perfon that attempted to murder or rob — — 446 Stat. 1 8 Eliz. c. 7. None fhall have clergy that committeth rape or burglary No man allowed his clergy fhall be committed to the ordinary, but prefently delivered The juftices may retain offenders in prifon for a time To know a wo- man carnally, under the age of ten years, fhall be felony He that is allowed his clergy, fhall anfwer to other felonies — 446, 447 Stat. 3 W. &M. c 9. Any perfon convicted of rob- bing a dwelling houfe wherein there is any or no perfon, &c. or Handing mute, fhall. lofe his clergy 447 Stat. 10 & 11 W. 3. c. 23. Perfon ftealing goods in any fhop, warehoufe, &c. of 53. value or more, or affifting therein, excluded fiom benefit of clergy — Profecutor of felon to have a certificate 448 In cafe of difpute, judge to appoint the certificate into fhares Altered by 6 Geo 1. c. 23. f. 8. By 5 Ann. c. 31. f. i. Apprehenders of burglars and houfe-breakers have a further reward of 40I. —Certificates may be once afligned Affignee difcharged from parifh and ward offices— Certifi- cate to "be inrolled Ifperfons be flain in purfuit of houfe- breaker?, &c. executor to have the certificate, without fee — : Houfe-breakers, &c. difcovering two or more felons, intitled to the king's parcon, -good; and to be a bar to appeal 4+9- 45° Peifcns convicted of theft or larceny, infleadof burn- ing defective bill, to draw a new one gratis- Penalty 450 Stat. 5 Ann. c. 31. Apprehenders of burglars or felons, &c. to have 40I. over and above the rewards by 10 & 11 W. 3. c. 23 Payable by fheriff of county Juftices in cafe of difpute, to direct in their certificate how reward fhall be paid 4S°>45 1 Watchman, or other killed in purfuit of houfe- breaker, &c. his executor, &c. entitled to the 4©1 ■ By 3 Geo. 1. c. 15. f. 4. fheriffs may apply to the treafury without charging this money in their accounts, —Sheriffs to deduct monies fo paid en their accounts, and be repaid by the lord treafurer Felon, &c. difcovering two or more felons, fhall on conviction be intitled to reward, and be par- doned Buyers or receivers of ftolen goods, &c. made acceflaries, &c. ■ 452 If principal felon cannot be taken, acceffary to be tried as for a mifdemeanor Judges, &c. to fettle the rights and fhares of perfons to the certifi- cate, &c. — 453 Stat. 3 Geo. 1. c. 15. After 9 July 1717, fheriff not obliged to charge money for apprehending highway- men, or for preventing the counterfeiting, &c. of the coin, or for apprehending houfe- breakers ; but may on the judge's certificate of th& conviction, and receipt of the party entitled to the reward, apply to the lord treafurer, &c. who (hall pay him the fum difburfed without fee 454 Stat. 6 Geo. 1. c. 23. Reward of 40I. for convicting a burglar fhall be paid without deduction. Stat. 25 Geo. 2. c. 36. In profecutions for felony, court may make orders for payment of the profe- cutor's expences Clerks fee for fuch order County treafurers to pay the order 455 Stat 27 Geo. 2. c. 3.. The charges of attendance to be allowed by the court to poor perfons bound to give evidence againft felons 6d. to be paid to the officer for making out the order ibid. In Middlefex the oveifeers of the poor of the parifh . where the offender was taken, to pay all fuch 1 charges Certificate of having apprehended, profecuted and convicted a felon, under ic & 11 W. 3. c. 23. f. 2. ij aihgnable over, once and no more; provided it has not been ufed before : it exempts from all parifh and ward , offices within the parifh or ward wherein the felony- was committed ; but will not feive to exempt the conllable of a manor, which comprehends the- whole town and parifh where the felony was com- mitted, and more — 456 10459 diBurnmg. Definition of burning, and explanation thereof, 460 Burning INDEX. Burning a houfe whereof one is in poffeffion by virtue of a leafe for years, is not felony 46 1 Stat. 23 Hen 8. c. 1. Clergy not allowed to any pe'fon under a fub-deacon committing treafon The promife of the clergy to the king for the fafe keeping of notorious offenders convicted without purgation — — — 464., 465 The ordinary's abufe in fuffering notorious felons to make purgation Clergy taken from feveral perfons which do commit divers offences Extended to counties where the robbery, &c. was not committed Extended to robberies in booths or tents, &c. — 465 None within holy orders, convitt of murder, &c. fhall make purgation ; unlefs he become bound with fureties for his good abearing Of what eftate the fureties fhall be He that is attaint of felony fhall not make his purgation An ordinary may degrade a convict, and fend him to the King's Bench 466 Stat. 25 H, 8. c. 3. Clergy not allowed to thofe who ftand mute, or who do make peremptory challenge Certain defects in the llatute of 23 Hen. 8. c. 1. Cafes in which the benefit of clergy fhall not be al- lowed — A man attainted where the goods were carried which were ftolen in another country 468 Stat. 1 Ed. 6. c. 12. Statute concerning ireafons, &c. repealed Sometimes fharp, and fome- times milder laws be made, according to the peo- ple's inclinations 469 All ftatutes made fithence the firft year of H. 8. to make any thing felony, repealed 470 Stat. 5 & 6 Ed. 6. c. 10. Such as rob in one fhire, and fly into another, fhall not have their clergy, 470 Wherein the flat, made 1 Ed. 6. c. 12. doth take away the force of the flat, of 25 H. 8. c. 3. 471 The flat, of 25 H. 8. c. 3. fhall Hand in force, not- withstanding a claule comprized in the flat, of 1 Ed. 6. c. 12. 472 S:at. 4 & 5 Phil. Sc Mar. c. 4. Acceffaries in petty treafon, felony, murder, fhall not have their cler- gy , 472 Trial of a lord by bis peers ■ 473 Lord Hale's obiervations on the preceding acts of 23 Hen. 8 c. 1. 25. Hen. 8. c. 3. 1 Ed. 6. c. 1 2. 5 & 6 Ed. 6. c. 10. and 4 & 5 Phil. & Mar. c. 4. 473 — 476 Stat. 37 H. 8. c. 6. burning a laden cart or firewood 476 Stat. 43 Eliz. c. 13. Several outrageous mifdeniea- nors committed in Cumberland, &c. 476 Carrying away or detaining any perfon againft his will Affenting or aiding to the taking or de- taining of any perfon Receiving or carrying -Giving of black mail for pro- of black mail- teclion Burning of barns or flacks of corn —The aforefaid offences fhall be felony, without clergy, Sec The names of all omla-ws fhall be declared to the fheriff Proclamation of the outlaws ■ 476, 477 The punifhment for relieving or conferring with zn outlaw for felony The enquiry and punifh- ment of the offenders The authority of the lords wardens fliall not be impeached 478 Stat. 22 Sc 23 Car. 2. c: 7. Felony for wilfully burn- ing of any ricks of corn, hay or barns, Sec. in the night time ■ 478 Attainder fhall not work corruption of blood, &c. The party at liberty to be tranfported for feven years Felony to return before the feven years expired Treble damages for maiming of cattle, or throwing down i. clofures, &c. in the night-time 479 Three or more juflices of the peace have liberty to enquire of the offence, and punifh the offenders A witnefs refufirg to appear, fhall be com- mitted to prifon 480 Stat. 4 & 5 W. & M. c. 23 No perfon fhall b^rn, from 2d Feb. to 24 June-, any grig, ling, heath, furz, gofs or fern, upon pain that the offender or offenders fhail be committed to the houfe of correc- tion, for any time not exceeding one month, and not lefs than ten days, there to be whipt, and kept to hard labour — ^— — ibid. Stat. 1 Ann. ft- 2. c. 9. Captain, mafler, Sec. wil- fully calling away or burning, Sec. any (hip, fhall fuffer death Offence committed on the high feas may be tried in any fhire in England, in fuch manner as by 28 H. 8. c. 15. is directed Perfon convicled thereof to fuffer death without benefit of clergy 481 Stat. 6 Ann. c. 3 1 . Servants who through negligence fire any houfe, Sec. to forfeit 100 1. or be lent to the workhoufe for eighteen months ibid. Stat. 1 Geo. 1. ft. 2. c. 4S. This aft is explained and amended by 6 Geo. 1. c. 16. Timber trees, &c. malicioufly broken down, &c. the parifh, &c. fhall make good the damage to the owner How the damages fliall be recovered in England — How in Scotland 481, 482 Two justices or quarter-fcffions finally to determine the offences Offenders convidted to be fent to the houfe of correction for three months, or to the gaol for four months, and to be whipt And before difcharged fliall find fureties for good behaviour for two years Setting any woods, &c. on fire, felony 483 Offenders in Scotland to be punifhed as wilful fire raifers by the ad 7 Ann. c. 21. 484 Stat. 6 Geo. 1. c. 15. After 24 June 1720, owners of trees, hedges, Sec. cut down, fpoiled, &c. ei- ther by day or by night, fhall have fatisfaftion from the inhabitants of the places in the fame man- ner, as for dikes, Sec. overthrown in the night, is provided by 13 Ed. 1. — 1 3 Ed. 1. ft. 1. c 46. unlefs the offender be convicted in fix months Two. INDEX: Two juflices of the peace of the place, or the fef- fions, to hear complaints and finally determine all offences againft this aft — 484, 485 And if they convift any perfon, (hall inflift the fame penalties, &c. as in the aft 1 Geo. 1. ft. 2. c. 48. — — Perfons fued may plead the general iffue, and fhall recover treble cods 1 486 Stat. 10 Geo. z. c. 32. Perfons fetting mines of coal on fire to fuffer death ibid. Stat. 28 Geo. 2. c. 19. Perfons convicted of fetting fire to gofs, furze, heath or fern, in chafes or fo- refts, to forfeit not lefs than 40 s. or more than 5 1. To be levied by diftrefs and fale, &c. 486, 487 Burying in woollen. See ?„oollcn &>}aiU»f Cbccfe. Stat 9 Hen. 6. c. 8. Weight of a wey of cheefe Stat. 3 &.- 4 Ed. 6. c. 21. Butter or cheefe (hall not be bought to be fold again, except it be by retail in open (hop, fair or market 491 Stat. 5 & 6 Ed 6. c. 14. Penalty on ingroffing but- ter and cheefe 492 Stat. 21 Jac. 1. c. 22. Explanation of flat. 3 & 4 Ed 6. c zi. and 5 & 6 Ed. 6. c. 14. 492 The aforefaid afts fhall not extend to London, Wed- minfter or Southwark The juftices may redrain the traders in butter and cheefe to buy thofe com- moditiesin the country ■ 493,494 Stat. 13 & 14 Car. 2. c. 26. Contents of a kilder- kin, firkin and pot of butter 494 No old butter (hall be mixed with new, nor whey- butter Cheefemonger.% and all fellers of butter by the kilderkin, or, &c. fhall deliver the full quantity to the retailer None fhall repack butter ■ 495 Farmers and other fellers fhall fet their marks of the weight upon good and fufikient ca(ks, and their names Potters (hall fet the weight of every pot burnt, and their names How to be diipoled 496 Within what time fuit mud be begun upon this aft, 497 S To be levied by diflreff, if not paid in fourteen days after conviction For want of dillrefs offerdtrs to be committed for three months Perfons aggrieved may appeal to quarter- fefiions, whole determination fhall he final ; and may allow colh Perfons fued may plead the general iftue, and fhall recover treble cofts -■ Such cloaths expofed to fale may be feized— — — Taylors, Sec. caufing their apprentices, Sec. to make cloaths contrary to this aft, fhall be fubjeft to the penal- ties — To be taken as a public aft 517, 518 Stat. 7 Geo. 1. ft. 1 . c. 12. After 29 September 1722, no perfon fhall wear on any cloaths, buttor.s made of cloth, &c. on penalty of 40 s. per dozen Conviction before one jultice of peace Penalties to be levied by dillrefs One moiety to the informer, the other to the poor Appeal to quarter- feffions, whofe judgment fhall be final 518, 519 Profecutions in one month — Not to extend to cloaths of velvet' -General iffue, Sec Treble cofts— —Public aft . 520 Callico. See Cjccife. oXmubjicbs. Stat 18 Geo. 2. c. 39. No cambrick or French lawn to be worn, under penalty of ; 1. Jultice to fummon the party accufed Penalty to be levied by dillrefs and fale Appeal to ;-' the quarter feffions ; giving fix dap notice- Sellers of cambrick to forfeit 5 1. The perfon wearing cambricks difcovering the feller, fhall be difcharged No cambricks, &c. to be imported till proof made that they are the pro- perty of his majelty's fubjefts If any alien hath intereft therein, proof to be made that they were fhipped for importation before May 10, 1754 No foreign cambricks to be imported Con- ditions on which cambricks, Sec. may be imported, on proof that they are fubjefts property, and fecu- rity given that they fhall be exported in three years Pieces loll by fire, Sec. not liable to the penalty 522, 523 Stat. 21 Geo. 2. c. 26. Perfons profecuted for wear- ing cambrick, producing proof that the fame was bought before 24 June 1748, difcharged The vender convifted of felling cambrick after 24 June 1748, to be liable i'enalties to go to the informer Penakii> incurred by a feme covert, to be levied on the goods of the hufband — Milliners making up cambrxks, liable to the penalties — Quakers affirmation to be taken — Penalty of falfe affirming — 524,525 Stat. r N. D • E X. Stat. 32 Geo. z. c. 32. No cambricks or French lawns to be imported but in bales, &c. covered with cloth, containing each 100 whole pieces, or 200 half pieces ; on penalty of forfeiture thereof The fame to be imported for exportation only, and to be lodged in the king's warehoufes, ana delivered out under like fecurity and reftric- tions as prohibited Ealt India goods 'One half of the old fubfidy payable only upon the Im- portation What goods (hall be in private cuftody, are to be depofited by 1 Auguft next in the king's warehoufes ; and the bonds thereupon to be delivered up, and the drawback upon expor- tation to be paid, and the goods not to be delivered out again but for exportation Goods expofed to fale or found in private pofTeffion, after the faid day, may be feized, and the offender to forfeit 200 1. extra In doubts concerning the fpecies or quality, &c. of the goods, onus frobandi to lie on he owner Goods feized to be carried to the next cuftomhoufe, and after condemnation, to be exported-: Recovery and application cf the penalties Upon actions entered for pecuniary penalties, a capias is the firft procefs to be ifiued ; and the defendant may give bail thereto, Sec. G-neral iffue Treble colls 526,- 527, 528 Stat. 4 Geo. J, c. 37. -Any perfon may make and fell cambricks and lawns in this kingdom The king may incorporate the perfons herein named (the prefent fubferibers) by the name of the F.nglifh Linen Company, with fuch power of revocation as to his majefty (hall feem meet They may chufe directors, &c.-and purchafe lands not exceed- ing the value of 500 1. per annum ; may fue and be fued ; and may raife a capital, not exceeding ioo.oool. 528 to 530 Subfcribers irtitled to a (hare of capital, in proportion to their fubferiptions, and to be members of the corporation Subfcriptions to be entered, figned and atteftcd The king may grant power to enlarge the capital Subfcribers to pay a fourth at the time of fubferibing, and the remainder at fuch calls as the Directors fhall appoint — Ten days notice of every call to be publifhed in the London Gazette On neglect of firll payment, fubferiptions to be void ; and on neglect of fuhfe- cjuent payments, one half of the firft to be forfeited, &c. _ 530, 531 Directors to appoint a houfe in or near London or Weltminfler to tranfact their bufinefs Directors to be a court, and nominate all officers and Servants ; and to take apprentices A general annual court to be held the firfl Wednefday in March, for electing directors ———532 Qualifications of directors and voters, and the number of votes they may have Members voting to fwear to their qualification?, if required ■ •<• ■* ■ Officers, &c. to be fworn according to the form approved by a general court Refuting or neglecting to take fuch oath for ten days, election void . ' 533 General courts to be called on demand of certain fubferibers ; on refufal, they may call fuch court themfelves— — — General court may difplace directors^ ■ No member liable to any debt of the corporation further than his (hare in the ca- pital If the corporate debts (hall exceed the value of the capital undivided, or if they reduce their captital, fo-that their (lock fhall not be fuffi- cient to pay their debts ; perfons receiving any di- vidend by which the capital fhall be reduced, are to be personally liable to make good fuch deficien- cy, fo far as the dividends they fhall have received fhall extend — — - 533, 534 Members not liable to bankruptcy Nor the effects of the company, or any member's fhare, liable to foreign attachment Shares to be affignable ; but not till feven years from the con- futation of the corporation, unlefs in cafe of death or bankruptcy —Members fhare?, &c. to be perfonal eftates Forging the feal, Sec. of the corporation, felony ■ 53; Ereaking into a (hop, &c. with intent to fleal or de- flroy, Sec. any material or implements declared to be felony Cambricks and lawns made in England after 10th day of May 1765, to be fealed • at both ends ■ ■Commiffioners of excife, upon requeft, to provide feals, and appoint officers to mark the goods ; who are to be paid for marking, ' &c. fuch goods before taken out of the loom — — Manufacturer to give notice to officer of the finifhing of every piece, who is to mark the ends before taken out of the loom ■ 536 Penalty on taking any piece out of the loom without giving fuch notice, and having the ends marked, 5 1. and lofs of the goods Officer, on notice of the finifhing any pieces of fuch goods, forthwith to mark the beginnings and ends, and fet a number on each piece before taken out of the loom ; and to make a true entry of the number, length, and the number of threads, in the warp of each piece, on forfeiture of 10 1. Officers marking cambricks or lawns not made in England, or mark- ing fuch goods after taken out of the loom, to for- feit 50 Land be incapacitated — Penalty on bribing officers — — _ — 537. 538 Officers to tranfmit to the Commiffioners of excife an annual account of all goods they fhall (lamp, and a copy of all entries relating thereto Officers, &c. to deliver up feals, &c. to commiffioners of excife, on demand, on a penalty of 200 1. Cambricks and lawns made in England after 10 May 1764, found unftampt, may be feized S3 8 - 539 Perfons INDEX. Perfons expofing to fale, or having in their cuftody for fale, fuch goods undamped, to forfeit zoo 1. Goods co-demned by virtue of this aft, not to be worn here, but fold for exportation, and the buyer to give fecurity Perfons counter- feiting the feal, &c. or felling goods with a coun- terfeit feal, &c. guilty of felony 540 Cambricks or lawns made or begun in England before commencement of this aft, to be fealed, 540 Seizures and penalties, how to be recovered and ap- plied A capias to iiTue for the penalties in the firft procefs Defendants to give bail Limitation of aftions 541 General iiTue Treble Calls Onus probandi to lie on the claimer Aft not to extend to Scotland or Ireland Publick Aft 542 S:at. 7 Geo. 3. c. 43. No cambrick or French lawn to be imported into any part of Great Britain, ex- cept into the port of London, after 1 July 1767 ; and in Britifh (hips navigated according to law ; notice thereof alfo being firlt given to Use commif- fioners of the cuftoms, and a licence obtained for the landing; otherwife they are liable to forfeiture, together with the vefle! Licence to be retrained to the package, and quantity, prefcribed by aft 32 Geo. 2. and to be delivered up by the mafter, &c. at the time of entering and reporting the vef- fels, and the goods to be warehoufed ; and deliver- ed out for exportation only 542, 543 No cambrick or lawn to be imported from Ireland, till the importation of cambricks and French lawns into that kingdom be prohibited by law Vefftls from foreign parts found hovering on the coaft, &c. having on board any cambrick or French lawns, not licenfed, are liable to forfeiture, toge- ther with the goods Foreign cambrick or French lawn, found in pofieffion of any hawker or pedlar, are liable to forfeiture, with all the other goods in the pack — 544 Goods feized to be depofited in the king's warehoufes, and to be free to infpeftion ; and after condemna- tion to be ftamped and fold for exportation The money arifing by the fale to be divided between the crown and the officer 'Bond to be given for the due exportation thereof; to be difcharged upon certificate according thereto, on proof of the goods having been taken by the enemy, or loll at fea, otherwife to be put in fuit Where, after condemnation, officer fhall negleft to fue for the penalty, any perfon may fue for and recover the fame ; to be oivided between the crown and pro- fecutor Cambricks fabricated in Great Britain to be ftamped at each end Commiffioners of excife, upon requcft made to them by the maker or proprietor of cambricks, may order ftamps to be made; or d'reft and appoint officers to ftamp the pieces, for which they are to be paid as the commiffioners (hall di.cct Notice for the purpoie to be given to the officers, and the goods to be ftamped before they are cut out of the loom, on penalty of 5 I. and forfeiture of the goods, 544 to C46 Officer to attend, on reafonable notice given him, in order to affix his ftamps ; and he is to make entry of the N e (et to each piece, and the N° of yardj it contains, and the N° of threads in the warp, on forfeiture of 5 1. 546, 547. Officers fraudulently ftamping, or permuting to be lo done, any goods not fabricated in Great Britain, or after their being taken out of the loom, forfeits 5 1 per piece, and is incapacitated ; and the perfon concerned in procuring fuch fraud to becommi'.ted ; their aiders and abetters forfeit loci, and to ftand in the pillory ; and perfons attempiing by bribery, or otherwife, to corrupt officers, to affix the ftamps falfly to any piece, forfeit col. Officer to tranfmit to the commiffioners of excife an accounc yearly of the number of pieces ftampt by h:m ; and a copy of his entries ; diftinguifhing the ma- nufaftures ; on penalty of difmiffion, 547, 548. The ftamps to be delivered upon demand or order of the commiffioners, on forfeiture of zoo 1 ■ Goods found not legally ftamped, are liable to for- feiture, and may be feized, and depofited in the king's vvarehoufes ; and after condemnation, pub- lickly fold Money arifing by the fale, after dedufting all charges, to.be divided between the crown and the officer Perfons expofing to fale unltampt goods, forfeit zoo 1. Penalty of forging or counterfeiting any Itamp ; orimporting or expofing to fale any goods with a counterfeit ftamp thereon, is felony — — 548, 541) The commiffioners may order all fuch goods made, or begun to be made in Great Britain or Ireland, before the commencement of the aft, to be ftamped, tho' taken out of the loom ; and the fame may be law- fully fold Officers to make due entry of all fuch pieces Perfons polTeffed of cam- bricks or clear lawns, before I July 1767, and not duly ftampt, may depofit the fame, before 1 Aoguft next, in warehoufes for exportation ; upon payment of the half fubfidy Goods, penalties and forfeitures, in general, where not otherwife direfted, where to be fued and recovered 549, ceo Produce from the fale, after all charges, to be divided between the crown and profecutor Capias to iiTue upon entering an aftion, &c. Defendant to give fufficient bail thereto General iffue treble cofts — — 551 In cafe of doubt or queft'on where the goods were manufaftured, the proof to lie on the owner or claimant — — — — 551 Candles. See <£jccifc. Capias. See pzoccfG, Cards. See Stamps, M Carriers. INDEX. Carriers, Who are deemed carriers In what cafes a carrier is chargeable for a failure in his duty 552, 553 Carrier's interetl in the things delivered to his charge 55+ Stat. 3 W. & M. c. 1 2. Juftices once a year to fettle the rate of carriages, — — — ibid. Penalty on carriers taking above the rates 555 Stat. 2t Geo. 2. c. 28. Penalty of Waggoners de- manding a greater price for carriage than allowed Clerks of the peace to certify yearly the rates of carriages — — — — ibid. Cafuil death. See IDcofcanD. Cattle. Stat. 2; Hen. 8. c. 23. What number of fheep may be kept Several enormities enfuing the greedy delire of having many (heep 556, 557 No man (hall have above 200 (heep Lambs under one year old (hall not be counted (heep Sheep coming by executorship or marriage 557 Sheep bequeathed by will to a child within age Juftices of the peace lhall inquire of the offenders of this act* Within what time the fuit (hall be commenced againft an offender — Every perfon temporal may keep upon his inheritance, &c. as many fheep as he will — 557, 558 Two thoufand (heep may be kept by any perfon upon demefns and farms Sheep for the maintenance of his houfe above two thoufand— — How fold courfes in Norfolk (hall be ufed, and qmlltts of land 559 To which fort of quillets this doth extend, and to which not — Six fcore of (heep (hall be accounted an hundred When lambs (hall be taken for fheep No man (hall take above two farms 560 Stat. 3&4Ed. 6. c. 19. No cattle (hall be bought but in open fair or market, but by a butcher, or for provilion of houfhold, &c For what purpofes cattle may be bought out of a fair or market Exportation A butcher fh.JI not buy cattle and fell them slive ■ 561 Stat. 2 & 3 Phil. & Ma. By the flat of 7 Jac. J. c. 8. this ftatute (hall extend to grounds iiereafter to be enclofed A cow (hall be kept for fixty (heep, and a calf reared for 1 20 (heep \ milch cow Anil be kept for ten beads fed, and for two Kine a calf reared 562 Sheep kept, or beads fed to be fpent in the owner's lioufe — — — 563 ftali 7 Jac. 1. c. 8. Theitatute of 2 & 3 Phil. & M. c. 3 fh.U be extended 10 grounds fince inclofed or htreaf:erT.o bs ir.clofed — — 563 Stat. 18 Car. 2. c. 2. Importation of cattle a common nufance The penalty — — 55. Encouragement of Fifhery Me of Man 565 Stat. 20 Car. 2. c. 7. Importation of cattle from be- yond fea a nufance — 56c All officers who have feized any imported cattle, faved harmlefs Any perfon may feize im- ported cattle, and deliver them to the officer . The forfeiture of fuch as neglect to feize- Ships bringing cattle, &c. from beyond fea, (hall be forfeited, feized, and fold The money raifed thereby, one half to the poor, the other to the in- former or feizor The feamen to be appre- hended, and all others concerned, and fent to the common gaol 566, 567 Jf any officer neglect to feize, another may take them and have the one half, giving the other to the poor Trial in the county where the caufe of ac- tion arifes General iffue Defendant to have treble cofts Provifo to import cattle from the ifle of Man Confederacy to elude this aft incurs praemunire 567, 368, 569 Star. 32 Car. 2. c. 2. A recital of 18 Car. c. 2. • The benefit of it That 18 Car. 3. c. 2. be revived and continued for ever Not only officers, but all perfons may feize Infh cattle and goods imported All feizors to have benefit To prevent fraudulent fales and compofi- tions — 569 Seizor fhall caufe the cattle to be killed Hides and tallow to be the feizor's, the reft to be diftribut- ed to the poor by the churchwardens, &c. . Seizors, churchwardens, and overfeers on neglect, forfeit 40s. for each great cattle, and 10s. for each fheep or fwine To be levied by didrefs and faleof chattels by warrant of any juftice, &c. For want of diftrefs, the party to be imprifoned without bail three months Nothing herein to hinder importation of dock-fifh and eels . Any perfon may import flock fifh and live eels — Altered as to foreigners, by 1 Geo. 1 . ft. 2. c. 18. f 1. Want of fufficient provifion againft importation of mutton and lamb — 570 No mutton or lamb (hall be imported- Mutton or lamb imported, orexpofed to fale, fubject to for- mer penalties F'or execution of 18 Car. 2. c. 2. feifure to be in any parifh into which cattle remove Fraud in intermixing droves Engl (h cattle driven or intermixed with Infh, to be feized as Irifti Not to feize cattle in England before Feb 2, 1680. 571 Stat. i4Geo. 2. c 6. Sheep Healing, or flealing any part of them, made felony, without benefit of clergy Reward for taking and convicting fheep dealers 571, 572 Sheriff on default of payment, to forfeit double the fum Trebte Colls Sheriffs how to be repaid .. 572, 57; 3 Sut. INDEX. Stat. 15 Geo. 2. c. 34. To what forts of cattle the aft ihall extend — — — ■ 573 Stat. 5 Geo. 3. c. 10. The free importation of cat- tle from Ireland allowed for the term of feven years; without payment of duties •General iflue Treble cofts • — — 574 Certiorari, What it is, and in what cafes it lies — 575 Certiorari to remove an indictment from the quarter- feffions not being iflued till after confeffion of the aflault below, a procedendo was granted ■ Certiorari lies to remove orders made upon the conventicle aft, 22 Car 2. c. 1 even after appeal, trial by a jury, verdift and judgment againlt the defendants, notwithstanding the fixth and thirteenth feftions ; for the certiorari does not go to try the merits, but to fee whether the limited jurifdiftion have exceeded their bounds or not 576, 577 Stat. 21 Jac. 1. C; 8. Certiorari fhall not be allowed, unlefs the indictee will become bound to pay cofts Farther provisions relating to cer- tioraries 578 Stat. 5 W. & M. c. n. Certiorari in term time grantable only upon motion Recognizance to be given for trying the iflue next affizee, except in London and Wcftminfter 579 Certiorari granted without recognizance void Officers profecuting ihall have double cofts——— Certiorari how grantable in vacation Cer- tiorari in Chefter, &C. how granted Cer- tiorari upon repairing highways, &c. — 580 This act to continue for three years — 581 Stat. 8 & 9 W. 3. c. 33. Party profecuting any cer- tiorari to remove an indictment, may find two manucaptors to enter into a recognizance, Sec. Party to appear daily in the King's Bench court until difcharged 581, 582 Stat. 5 Geo. 2 c. 19. After 24 June 1732, jullices may rectify defects of form and appeals, and may proceed to determine them 583 No certiorari to be allowed to remove juftices orders, without a recognizance of 50I. to profecute to effect On refufal of recognizance jullices to proceed Recognizances to be certified Bench Attachment for ■ ■ . 534 !. Writ of certiorari how to be 584 vmg s into the contempt Stat. 13 Geo. 2. c. 1 applied for Certiorari on 5 & 6 Wil. Sc M. c n. f. 3. No cofts are payable unlefs the indictment be brought by the party grieved, only juftices, mayors, &c. or other civil officers profecuiirg as being fuch Orders of juftices not to be removed before the time of appeal expired Certiorari to remove an order before appeal, where the time for appeal- ing is not limited ■ 5 S 5 How far a certiorari is a fuperfcdeaj to the court below 586, 587 Challenge. See 3!uro?S, Champerty. See i^amteitatlCe. Chance-medley. See IJomiciDe. iCb.vt. What it is 587 Changing corn and giving bad inftead of it, held in- dictable 588 Stat. 33 Hen. 8. c. 1. The juftices authority touch- ing the laid offenders- The authority of juftices of peace in cities, Sec The remedy of the party aggrieved The king's council ofCalice 1 589 Indictment for attempting to defraud a tradefman of his goods, not faid with falfe tokens, and judgment arrefted The falfe tokens muft be fpeciried in an indictment 593 Stat. 30 Geo. 2. c. 24. Perfons convicted of obtain- ing money or goods by falfe pretences, or of fend- ding threatening letters in order to extort money or goods may be punifhed by fine and imprifon- ment, or by pillory, whipping, or tranfportaticn — Wherea charge is made of any of the faid offences, juftices to enquire therein upon oath, and to bud over the complainant to appear and profecute, and his recognizance to be in proportion to the fraud 59' Penalty of 20s on pawning, exchanging, or difpofing of goods without leave of the owner; and on non- payment to be committed for fourteen days to hard l.ibour, and if r.ot paid within that time, to be whipped, on application of the prcfecutor Application of the forfeitures — ygz Pawnbrokers to make entry of goods pawned, pledg- ed, or exchanged, and a duplicate, if required, to be given thereof to the pawner, upon paying for the fame Penalty 5I on deLult of making fuch entry, and giving fuch duplica.e Where goods pawned fhall be damaged through cegleft of the pawner 592,593 Perfons buying or taking in pledge, linen or apparel, intrufted to others to Wafh or mend, Sec to forfeit do.ible the fum, and rellore the goods Perfons offering goods to fale, pawn, or exchange, not giving a good account of themfelves, may be de- tained, and carried before a jullice Juilice may commit the party ■ — ■ -qi The perfons detaining the party and goods, indemni- fied for fo doing Juilice upon oath o; the owner, to iilue a warrant to fearch the fufpeft- ed perfon's houfe Upon refufal of admittance, officer may break open the door 5 :r Perfons hindering fuch fearch, forfeit yl. And on ron payment are to be committed to h rd labours The goods found are to be riftocd S M 3 to INDEX. fo the owner Goods pawned for a fum not exceeding 10I may be recovered within two years C96 J'iflice, on complaint of pawnbroker reftifing to deliver gcois, to fummon ar.d examine the parries: and proof being made of tender, and payment of the principal, intereft and charges; or tender being then alio made, and refufed ; juftice to make an order for the immediate delivery of the goods On refufal, to commit the pawnbroker till fatisfac- tionbemade 597, 598 Goods remaining unredeemed for two years, are forfeited, and may be fold ; overplus to be accounted for Entry to be made of fale of goods pawned for 2I. or upwards Overplus arifing from the fale, to be paid on demand to the owner — 598 On refufal of infpeftion, or the goods being fold for more than entered, &c. pawnbroker to forfeit treble the value 598, 5Q9 Summonfes and warrants to be iiTued without fee Publicans permitting journeymen, &c. 10 game in their houfes, forfeit 40s And for every fubfequent offence, 10I. to be levied by diftrefs and fale <; 99 On complaint of journeymen, &c gaming in publick houfes, jullice to ifTue his warrant for apprehending them, who upon conviftion are to forfeit not exceeding 20s. nor lefs than 5s. Offender not paying the forfeiture, to be committed to hard labour Juftice, upon complaint, to iffue his warrant for bringing the offender before him 600 And may fummon witneffes And if the wit- neffes refufe to give evidence, he may be eommitted to hard labour Material witnefs may be bound over to give evidence before a court Offenders not to be admitted to bail, till due notice has been given to the profecutor, &c. Offender to be tried at the next feffion, unlefs the court put off" the trial 601 Inhabitants, where the offence is committed, deemed competent witneffes ——— Conviction to be drawn up in the following form And be written on parchment, and tranfmitted to the quar- ter-feffions to be filed Jullices at thequarter- fefiions to determine appeals Indictment or conviftion not removeable by certiorari 602 Appeal may be made to the quarter-feflions ; and execution refpited, the pirty entering into recog- nizance to profecute the appeal Jullices to determine the appeal and award colls On affirmation of the judgment, appellant to pay the fine and colts None to be punifhed a fecond time for the fame offence General iffue Double colls Claufe in aft 24 Geo. 2. c. 44. extended to jullices acting under this aft 602, 603 Notice to be given to peace officer, before commen- cing the fui: againft him Tender of amends may be made by him, and pleaded in bar of the aftion If none, or inefficient tender has been made, plaintiff", upon a verdift, to recover 604 Cljurcl) ano <£h„rch{\ir_. Who may build churches Original of churchyards ■ 604, 60; 606 Stat. 1 3 Ed. 1 . (I 2. c. 6. Fairs and markets not to be kept in churchyards 607 Stat. 50 Ed. 3. c 5. None fhall arreft priefls doing divine fervice _______ jt>. Stat. 1 R. 2 c. if: Penalty for arrefting prieils doing divine fervice, &c. - ib. Stat. 5 &6 Ed 6. c. 4. The penalty for linking or drawing a weapon in church or churchyard The penalty for fmiting in a church, &c. The penalty for drawing or fmiting with a weapon in the church, &c 608 Prohibition to the fpiritual court to Hay proceedings on 5 &6Ed. 6. c. 4. f 2. which aft contains three diflinft claufes levelled againlt three dillinft offences in churches and churchyards, viz. ift, quarrelling, chiding, or brawling by words only ; 2dly, fmiting or laying violent hands ; 3dly, lin- king with a weapon, or drawing one with intent to llrike ; for which fecond offence, the offender is ipfo fafto to be deemed excommunicate. 1 ft, The ecclefiaftical court may proceed upon the two full claufes, and are not to be prohibited ; but upon the third claufe, theie muft be a previous conviftion, and a tranfmiflion of the fentence, and a declaration ; but if they proceed for damages on either claufe, they fhall be prohibited 609, 6 1 o, 611 Stat. 17 Car. 2. c. 3. Further provided for by 4& 5 W. & M. c. 1 2. in what cities and towns, and how churches and chapels may be united 612 Parifhes fhall remain dillinft, notwithftanding fuch union of churches How and when fuch uniting (hall take effeft And how feveral pa- trons may prefent How unions mull be re- giflered Parifhes having 100 1. maintenance may not be united 613 Incumbents of fuch united parifhes mull be gradu- ates of the univerfity — Owners of impropriations may bellow and annex maintenance to the churches where they lie Without licence of mortmain — Parfons and vicars not having fettled means of 100 I. per annum, may purchaie and annex lands or rents, without licence of mortmain 614 (Eljurehtoatuens. Who, and for what purpofe inflituted 61 5 Of the right and manner of choofing churchwardens, 615 — 618 Where INDEX. Where cuftom in choofing churchwardens cannot take place, they mull refort to the canon ordinary has no jurifdi£tion to choofe churchwar- dens, though the parifhioners and parifh ihould negleft it Who are exempted from bemg churchwardens 618 Of their interelt in and power over the things belong- ing to the church 619 Of their power and duty in making races and prefer- ments, and hindering irreverence in the church, and their power in feveral other matters 620, 621 Of their accounts, and of actions brought by and againft them 622 Clergy. Who, and what 6*5 / — a — j Original and alteration of the privilege of clergy 625-628 In what offences ckrgy was allowed or not, before and by the flat. 25 Ed. 3. c. 4. 628 — 630 In what offences benefit of clergy is taken away by ac"ls of parliament, fubfequent to 25 Ed. 3. c. 4. 630 What perfons are or are not capable of clergy 63 1 At what time clergy is to be allowed, and the effedl of allowing it • 632 Clcrfe of the peace. Who 633 Stat. 37 Hen. 8. c. 1. Who fhall appoint the Cuftos Rotulorum, and clerk of the peace in every coun- ty Inconveniences enfuing by the ignorance of the clerk of the peace — 633 The Cuftos rotulorum fhall be appointed in every county by bill figned with the king's own hand — The Cuftos rotulorum fhall appoint the clerk of the peace The clerk of the peace may make a deputy by the affent of the Cuftos rotulorum 634 Peifons having authority to affign Cuftos Rotulorum or clerk of the peace — — 635 Stat. 1 Will. & Mar. c. 2 1 . Cuftos rotulorum how to be chofen Clerk of the peace how to be appointed Juftices of the peace may dif- charge clerk of the peace Who fhall nominate upon fuch vacancy — — — — 631; New clerk of the peace liable to penalties- Cuftos rotulorum, &c. fhall take no fee- Penalty on buyer and feller Oath of clerk of the peace — 636 Adjudged cafe relating to clerk of the peace 637 Stat. 22 & 23 Car. 2. c. 22. Clerk of the peace to deliver fchedule of all fines, &c. — 638 Oath of clerk of the peace on delivering eftreats ib. Stat. 3 Geo. 1. c. 15. Clerk of the peace may be amerced for not returning eftreats — 638 Stat. 10 & 11 Will, 3. c. 23 Clerk of peace to have only 2 s. for drawing an indictment ib. Stat. 2 Geo. 2. c 46. No clerk of the peace to act as attorney or foliator , ib. Clocks ano caatches, Stat. 27 Geo. 2. c 7. Penalty on conviction of frauds committed by the perfons employed in the manu- fafture of clocks and watches Firil of- fence , .639 Subfequent offence Penalty of buying, &c. any of the goods or materials, knowing the lame to be purloined Firft offence 640 Subfequent offence Application of the forfeitures Appeal to the quarter- feflions Recogni- zance with fureties Juftices to hear and de- termine, and to award cofts, &c. 641, 642 Form of the conviction Not to be removed by Certiorari, and to be tranfmitted to the next quarter fefnons, .S:c. 642 Juftice, upon complaint on oath, to iffue his warrant for apprehending any offender And to hear and determine the matter 6.3 Cloth and Clothiers. See fiUoollcii iiljfcmufacture. Coaches and Chairs. See Cjrcife, i?aclmc£ Conches. Coals ano Coal pits. Stat. 16 Geo. 2. c. 32. Setting coal pits on fire is felony without clergy _= — 6,3 Stat. 1 3 Geo. 2. c. 21. Perfons drowning coal pits fhall pay treble damages, and full colls- Except fuch coal pits as are their own 643, 644 Stat. 17 Geo. 2. c. 33. Three juftices to let the retail price on coals in any part of England, &c. allowing a competent profit to the retailers Power of juftices, if the retailers refufe to fell as ordered General iffue Treble oofts No interefted perfon to be concerned in letting a price on coals . 644,645 Statutes concerning the duties on coals, and for re- gulating the coal trade in general 646 — 648 Cocoa-nuts. See Cjccifc, Coffee. See CjCtfc, Coin, What it is Legitimation of money is part of the king's prerogative 64S 25 Ed. 3. ft. 5. c. 2. Perfon counterfeiting ib. Stat. Stat. 25 Ed. 3. ft. 5. c. 2. king's money fhall be guilty of high treafon I N D EX. Stat. I Mar. fed". 2. c. 6. Treafon to forge the coin of other realms current in this realm, or the king's fign manual, &c. • 649 Stat. 1 & 2 Phil. Se Mar. c. 1 1. Bringers in of coun terfeit coin into this realm, Hull be punifined as traitors The manner of indictment, trial, &c. of an offender for impairing or forging of com 649, 650 Stat. 5 Eliz. c. 1 1. The clipping, Sec. of foreign coins for gain's fake, (hall be high treafon The pre- judices redounding to the queen and the realm, by dipping, warning, &c. of money The clipping, warning, rounding or filing of current money, fhall be adjudged treafon They who have forfeitures of lands or goods by grant, (hall in this cafe enjoy them Thefe offences make no corruption of blood or forfeiture of dower 650, 651 Trial of a peer by peers — — 652 Stat. 14 Eliz c. 3. It is mifprifion of high treafon to forge money which is not the coin of this realm, nor current therein ib. Stat, i 8 Eliz. c. 1. Diminifhing, fcaling or lightning of any coin current within this realm, fhall be high treafon ib. Other undue means praclifed to falfify the money, not within the drift words of the forefaid ftatute No corruption of blood or forfeiture of dower for this treafon Trial of a peer by his peers 653 Stat. 6 Se 7 W 3. c. 17. Penalty upon perfon felling or piying filver money for more than it is coined Penalty for calling bars of filver or (lamping them like Spanifh money — Punifhment for buying or felling clippings, &ci 654 No perfon fhall tranfport bullion, except it be (lamp- ed at Goldfmith's Hall Bullion not (lamped may be feized by cuftom houfe ofneers- Goldfmiths only to buy and fell bullion What perfons may break open houfes, and fearch for bullion 655 Ptrfin, in whofe poffeffion bullion is found, not proving it to be neither coin, nor clippings melted, to be iinp-ifoned fix months Icrfons appre- hending and convicting clippers, &c (hall, upon the judge's certificate, receive 40 1. of the flieiiff, 656 Sheriff not paying fhall forfeit double to the app-e- henders Sheriff to be allowed the 40 1. in his accounts ; and if not fufficient in his hands, to be repaid by the treafury By 3 Geo. 1. c 15. f. 4. the (heriff may apply to the lord treafurer 657 Perfon "uilty on convicting two others pardoned— Apprentice d. (covering, made a freeman Proof of foreign bullion to lie upon the owner, Sec Penalty upon exporter not entering in name of owner, &c r-CeJtuin q;amity of bullion exported by the king fayed 658 Stat. 7 & 8 W. 3. c. 19. All coining preftes rot brought into the mint to be feized Penalty 658, 659 Stat. 8 & 9 W. 3. c. 26. No fmith, Sec except em- ployed in the mint, &rc. (hall make or mend any dye, &c. to ftamp any current coin of gold or filver, nor make any edging tool, &c. nor coin- ing prefs, nor cutting engine, nor have in their cuftody any fuch puncheon, &c 659 Offenders, &c. guilty of high treafon, and (hall fuffer death Perfons conveying out of the mint any puncheon, &c. and concealing the fame, to be guilty of high treafon Like penalty on perfons marking the edges of any counterfeit coin, or colouring, gilding, &Ci any coin refembling the current coin — 660 Puncheon, dye, &c. found in the pofTeffion of any perfon not employed in the mints, may be feized and produced in evidence — Counterfeit money, &c. produced m evidence or otherwife to be after- wards cut in pieces Perfons blanching copper for fale, or mixing blanched copper with filver, &c. or taking or paying counterfeit milled money, Sec. to be guilty of felony — 661, 662 Attainder by this aft not to make corruption of blood, &c. By what evidence offenders may be con- victed Offences in 6 & 7 W. 3. c. 17. may be heard in the King's Bench, or at a gaol- delivery Profeoition to be in three months 662 Stat. 9 & 10 W. 3. c. 24.. Any perfon may cut or deface diminifhed or counterfeit money — Perfons tendring fuch money to bear the lofs, &c. 662, 663 Mayor, &c. to determine difputes, and adminifter an oath Officers of the Exchequer, receivers general, &c required to cut fuch money fo ten- dered, &c. — And to weigh all filver money re- ceived — 663, 664 Stat, i Ann. ft. 2. c 9 Offenders may be profecuted in fix months after offence — 664 Stat. 7 Ann. c. 23. After 1 ft June 1709, the lord treafurer, &c may further iffue, Sec. 400 I. per annum for the charges of officers to be employed in profecuting offences in counterfeiting, Sec. the coin of Great Britain — — ib. Stat. 1 5 Geo 2. c. 28. High treafon to gild filver coin, Sec — Uttering fatfe money knowingly, fix months imprifonment, and fecurity for two years more — For the (econd offence, two years impri- fonment, and fecurity for two years For the thirdoffer.ee, felony without clergy 665,666 Uttering falfe money twice within ten days ; or ha- ving other falfe money in cuftody, to fuffer a year's imprifonment, &c. ^ubfequent offence felony, Sec. — Elood not to be corrupted— Evidence to be the fame as now ufed againft counterfeiting the coin — Coiners of copper money to be imprifoned two year; — 40 1. for convicling a perfon of treafon and INDEX. and felony— And 10 I. for convifting a perfon of counterfeiting copper money 666, 667 Certificate to be given by the judge Penalty hundred marks for the firrt offence - The on the fheriff's not paying the reward- Sheriff to be allowed luch payments in his accounts, &c. If offenders, being out of pnfon, im- peach two others, they fhall be pardoned- manner of profecuting a fecond offence in another county 668 Arrears of charges of profecution to be allowed future expences fettled — — — - 669 Commitment. -Who are to be committed- What it is- Who may commit, and to what place 669, 670 Stat. 5 Hen. 4. c. 10 Juflicesof the peace fhall im- prifon none but in the common gaol 670 Stat. 6 Geo 1. c. 19. Jullices of peace may commit vagrants, &c. to the common gaol or houfe of correction Form of the commitment 671 672 Duty of tne gaoler — — 672 Stat. 3 Jac. 1. c. 10. At whofe charge an offender fhall be conveyed to gaol How the charges fhall be levied, if the prifoner refufe to pay them If the offender be not able to bear his charges, the parifhioners fhall do it. 673 The remedy if any perfon taxed refufe to pay- The defendant's plea in an action brought for any thing done by force of this aft The defendant fhall recover treble damages and cods of fuit The continuance of this aft 674 Stat. 27 Geo. 2. c. 3. Offenders not having fuf- ficient to defray the expences of conveying them to gaol, &c. Jullices to grant a warrant on the trea- furer of the county for payment of the charges Part of the aft of 3 Jac. I. c. 10. relating to taxing parifhes for conveying offenders to gaol, repealed 'How party committed may be discharged 675 Common $>?npcr. Stat. 1 Eliz. c. 2. Book of Common Prayer fhall be in full force and effeft ■ 676 The book of Common Prayer fhall be ufed The alteration of the book fet forth The forfeiture of thofe which ufe any other fervice than the book of Common Prayer The penalty for depraving the book of Common Prayer The penalty for the fecond offence 676, 677 The penalty for the third offence The penally of an offender having no fpiritual promo- tion The forfeiture of them which do any thing, or fpeak in derogation of the book of Common Prayer Cauling other prayer to be faid or fung — — — — The forfeiture of an foifeitureof four hundred marks for the fecond offence ■ — The forfeiture for the third offence 678 The penalty if the party convicted do not pay his forfeiture within the time limited Every perfon fhall refort to the church upon the ho!yda\s Onejullice may convict the offendrr The forfeiture for not coming to church The ordinary may punifh offenders by thecenfures of the church 679 Which jullices may punifh thefe offence?' A bifhop may join with the jullices to enquire of offenders .At whofe charges the books of Common Prayer fhall be gotten Within what time offenders fhall be impeached Trial of peers Chief officers of cities and boroughs fhall enquire of offenders- jurifdiclion in thefe cafes None fhall be punifhed above once for or.e offence Ornaments of the church and miniiter; -The ordinary '> 6S0 all laws and ordinances made for other fer- vice, fhall be void — 62 1 Stat. 13 &c 14 Car. 2. c. 4. Incumbents of livings, keeping curates, fhall read the Common Prayer once every month The penalty and manr.tr of conviction for not doing it. 1 Canfefffon. What it is, and the various kinds of it Conies. See ©amc. Conjuration. See CfUitcheraft. 6S2, 6$i Confpiraci'. What it is, and how punithed 683, 684 Stat. 33 Ed. 1. ft. 2. A definition of confpirators 684 What is evidence of a confpiracy One confpirator may be convicted after the other is dead 1 Confpiracy may be laid without any overt aft, and if one be convifted, judgment (hill be gi>en again!! him before the trial of the other 6; ; ; Indiftment for a confpiracy good, thoi'gh the word ja'f.) is omitted in the firji charge of confpiracy 6S.'i Punifhment for a confpiracy — — 694 Confcblr. Different fenfes of . 60- Who is obliged to ferve as conllable, and how pu nifhed for not fetving — Stat. 5 Hen. 8. c. 6. Warden and fellow fhip of geons exempted — Stat 33 Hen. 8. c. 43. College of phyficians exempted ' ib. Stat. 6 W. t V M. c. 4. Apothecaries not bnird to lerve — — — v W U I N D E X: Stat. iW.&M, c. iS. feft. 7. Diflenters chofen may execute office by deputy, ibid. And by fed. 11. of the faid aft diffenting preachers are exempted ib. Stat. 10 & 11 Will. 3. c. 23. feft. 2, 3. Profecutor of a felon to conviftion is exempted ■ ib. By whom condables are chofen, appointed, fwornand removed — — 698—701 How far a conftable is favoured and protefted in his office, or puniihed for negleft of duty 701 — 703 Indiftment lies againft a condable for a mifdemeanor in wilfully fuffering a loofe, idle, lewd and difor- derly woman, taken up by one of the nightly watch as a common ftreet-walker and delivered to him for fafecuftody, toefcape out of his cudody before (he could be carried before a magillrate 703 See aivrcO, Commitment, Counti»=rate, jfliu dices of |2>eacc. Contoicfion. judices of peace mud ilriftly purfue their powers. 70S Proceedings upon conviftions mud be in the prefent tenfe In conviftion for keeping an alfchoufe not neceffary to (hew he was not puniihed under the former aft An excufe under a provifo need not be taken notice of in a conviftion Summons mud precede a conviftioi. Appearance cures defects in fummons — 706 In a conviftion the evidence mud be fet out ; and there mud be an adjudication of the forfeiture 707 to 709 Coopers. Stat. 8 Eliz. c. 9. Difference between the old and new prices of barrel- boards and hoops 710 Who (hall rate the prices of veffels for ale and beer- Forfeiture of coopers not felling their veffels at the prices rated — — — 711 Stat. 1 2 Car. 2. c. 24. feft. 34. and 1 Will. dat. 1. c. 24. feft. c. What (hall be a bairel of beer, &c. within the bills of mortality — — ib. COflt. Stat. 43 Eliz c. 7. Punifhment for cutting of corn growing, or of fuch other (mall offences ; and of a condable refufing to punifli fuch offender, being commanded — — — — 712 Stat. 22 Car. z. c 8. A claule therein repealed — - Wincheller meafure only to be uled forfeiture for offending againd this aft Penalty enlarged by 22 & 23 C. 2 c. 12 The penalty of mayors and all other officers permitting the ufe of any other meafure Clerk of the m..rket, &c. refufing to feal or mark any meafure, his forfeiture — Exafting fees, how punifhable — — y t A A meafure of brafs to be chained in every public markept- place Condables to fearch if any perfons ufe other meafures — Once punifhed — — Toll — — _ 7 , 5 Stat. 2 2 & 2 3 Car. 2. c. 12. No corn or fait fhall be bought by the bag, without meafuring — Forfeiture The proof to lie upon the defendant, when he bought the corn Foifeiture; how to be difpofed of — Where there is no clerk of the market, then what Perfons are appointed to feal the mea- fures This aft fhall not extend to rent corn or tithe corn — — — 716 Stat. 5 Geo. 2. c. 12. After 1 June 1732, judices at quarter feffions to charge the grand jury Who are to prefent on oath the market prices of Englilh corn Preferments to be made in open court, certified to collector of cudoms, and hung up at the cudomhoufes for publick view — ■ Duties on foreign corn to be paid according to the prices in the certificates 7 1 7 Not to extend to London No warrant, &c. to be granted for tranfporting any foreign corn to any other Englilh haven after importation Foreign corn fo tranfported forfeited, and 20s. per bufhel Veffel and tackle forfeited Three months imprifonment on afliding in fuch exporta- tion — 718 Stat. 1 1 Geo. 2. c. 22. Perfons ufing violence to hinder the purchafe or carriage of corn to be imprifoned and publickly whipt 719 Committing the like offences a fecoud rime, deflroying granaries or the corn therein, or in veffels, &c. fe- lony— — — Provifoes Satisfaftion for fuch damages recoverable from the hundred (not exceed- ing iool.) as in cafes of robbery. — 720 Cojotter. Who, and the antiquity of his office ■ 722 Stat. 4 Ed. 1. ft. 2. Of what things a coroner (hall inquire Murder Inquiry of the offenders Man found (lain — Murderer found culpable 723 Perfons drowned or fuddenly dead Appeal of wounds of maim— ——Principal and accef- firy Deodands Wreck of the fea . 724 Sufpefted perfons Stat. 28 Ed. 3. c. 6. Who (hall be coroners, and by whom, and when they dull be chofen — 725 Stat. 25 G. 2. c 29 Coroner to be paid 20f: for every inquifition taken in any towndnp contributing to the coumy rates (except on bodies dying in gaol) ar.d 9d for every mile he fhall be obliged && ^ I ; r *;■ : ^l*>± m o f -A^, D 3^2 'j - m 2 8H EE ^i >D 3BP &£ E^ rr B 1 P'): EMn