UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY

 
 TREATISE 
 
 CRIMES AND MISDEMEANORS. 
 
 BY SIR WILLIAM OLDNALL gUSSELL, KNT., 
 
 LATE CHIEF JUSTICE OF BENGAL. 
 
 BY CHARLES SPRENGEL GREAVES, ESQ., 
 
 of Lincoln's inn, and the inner temple; 
 
 baeeister at law; 
 
 and a magistrate for the county of stafford. 
 
 %mmm <$bita, 
 
 C7 
 WITH THE NOTES AND REFERENCES CONTAINED IN THE FORMER EDITIONS, 
 
 BY DANIEL DAVIS AND THERON METCALF, ESQRS., 
 
 AND WITH 
 
 ADDITIONAL NO.TES AND REFERENCES TO ENGLISH AND AMERICAN DECISIONS, 
 
 BY GEORGE SHARSWOOD. 
 
 IN TWO VOLUMES. 
 
 VOLUME II. 
 
 PHILADELPHIA: 
 
 T. & J. W. JOHNSON & CO., 
 LAW BOOKSELLERS AND PUBLISHERS, 
 
 No. 535 CHESTNUT STREET. 
 
 18 57.
 
 \ 
 
 N). 
 
 Entered according to Act of Congress, in the year 1857, 
 
 BY T. & J. VT. JOHNSON & CO., LAW BOOKSELLERS, 
 
 In the Clerk's Office of the District Court of the United States, for the Eastern District of Pennsylvania. 
 
 Robb. Pile & M'Elroy, It'? 
 Lodge Street, Piiilada
 
 TABLE OF CONTENTS 
 
 SECOND VOLUME. 
 
 BOOK IV. 
 
 OF OFFENCES AGAINST PROPERTY, PUBLIC OR PRIVATE. 
 
 CHAP. PAGE 
 
 IX. Of Larceny . . . . . .1 
 
 X. Of Stealing from the Person .... 132 
 
 XL Of stealing Horses, Cows and Sheep . . . 134 
 
 XII. Of stealing and destroying Deer . . . 142 
 
 XIII. Of taking or killing Hares or Conies in a Warren, &c. . 145 
 
 XIV. Of unlawful taking or attempting to take Fish . . 147 
 XV. Of Stealing in any vessel in Port, or upon any navigable river, 
 
 &c, or in any creek, &c. And of plundering shipwrecked 
 
 vessels ...... 150 
 
 XVI. Of larceny by servants, and Persons who have the Custody as 
 
 Servants, and not the legal Possession . . 153 
 
 XVII. Of Embezzlement by Clerks and Servants . . .167 
 
 XVIII. Of Embezzlement by Brokers, Factors, and other Agents 192 
 
 XIX. Of Embezzlements of minor importance . . . 197 
 
 XX. Of Embezzlement by officers and Servants of the Bank of 
 
 England, and by Public Officers . . . 199 
 XXI. Of Larceny and Embezzlement by Persons in the Post Office ; 
 of stealing Letters; and of secreting Bags or Mails of 
 Letters . . . . . .205 
 
 XXII. Of Larceny and Embezzlement of Naval and Military Stores 222 
 
 XXIII. Of Larceny of Cloth, and other articles in a Process of Manu- 
 
 facture ...... 224 
 
 XXIV. Of Larceny by Tenants and Lodgers . . . 226
 
 iv TABLE OF CONTENTS TO VOL. II. 
 
 XXV. Of Embezzlements and Frauds by Bankrupts . . 228 
 
 XXV I. Of Embezzlements and Frauds by Insolvent Debtors . 235 
 
 X X V I T. Of receiving stolen Goods .... 237 
 
 XXVIII. Of taking a Reward for helping to tbe Discovery of stolen 
 
 Property . . . . . .254 
 
 XXIX. Of unlawfully receiving or having possession of Public Stores 257 
 X XX. Of unlawfully receiving Tackle or Goods cut from or left by 
 
 Ships; and of receiving Goods stolen on the River Thames 270 
 
 XXXI. Of Cheats, Frauds, False Tokens, and False Pretences . 274 
 
 XXXII. Of Forgery . . . . . .318 
 
 XXXIII. Of the forging, altering, &c, of Records and Judicial Process 414 
 
 XXXIV. Of Forgeries relating to the Public Funds, and the Stocks of 
 
 Public Companies .... 417 
 
 XXXV. Of forging the Securities of the Bank of England . . 424 
 
 XXXVI. Of forging the Securities of other Public Companies . 433 
 
 XXXVII. Of forging and transposing Stamps . . . 435 
 
 XXXVIII. Of the Forgery of Official Papers, Securities and Documents 459 
 
 XXXIX. Of the Forgery of Private Papers, Securities, and Documents 495 
 
 XL. Of falsely personating another . . . 539 
 
 XLI. Of malicious Injuries to Property .... 544 
 
 XLII. Of Arson and the burning of Buildings, Mines, Ships, Corn, 
 
 Trees, &c. . . . . . 548 
 
 XLIIJ. Of maiming and killing Cattle . . . .569 
 
 XLIV. Of injuring and destroying Trees, Shrubs, or Underwood 574 
 XLV. Of destroying, &c, Plants, Roots, Fruits, and Vegetable Pro- 
 ductions ...... 576 
 
 XLVI. Of cutting and destroying Hop-binds . . . 577 
 XLVII. Of Breaking, &c, Sea Banks, Locks, and "Works, on Rivers, 
 
 Canals, &c. . . . . . . 578 - 
 
 XLVLII. Of Destroying the Dams of Fish-Ponds, &c, Mill-Ponds, and 
 
 of putting noxious materials into Fish-Ponds, &c. . 579 
 XLIX. Of destroying or injuring Bridges, Turnpike-Gates, &c. . 580 
 L. Of destroying Fences, Walls, Stiles, or Gates . . 582 
 LI. Of the destroying and damaging Mines and Mine-Engines . 583 
 LII. Of destroying and damaging Articles in a Course of Manufac- 
 ture, and of destroying, &c, Implements and Machinery 585 
 LIU. Of destroying and damaging Ships and other Vessels, and Arti- 
 cles thereunto belonging . . . .591 
 
 LIV. Of wilful or malicious Damage to Real or Personal Property, 
 
 not otherwise provided for . . . . 595
 
 TABLE OF CONTENTS TO VOL. II. 
 
 BOOK V. 
 
 OF OFFENCES WHICH MAY AFFECT THE PERSONS OF INDIVIDUALS OR 
 
 PROPERTY. 
 
 CHAP. PAGE 
 
 T. Of Property and Subornation of Perjury . . . 596 
 
 II. Of Conspiracy .... . 674 
 
 III. Of Threats and Threatening Letters .... 706 
 
 BOOK VI. 
 
 OF EVIDENCE. 
 
 I. Of what nature Evidence must be. Of Presumptive Evidence. Of 
 the rule that the best possible Evidence must be produced, — and 
 of Hearsay Evidence . . . . .725 
 
 II. Of the proof of negative Averments. The Rule that the evidence 
 must be confined to the point in issue. What allegations must be 
 proved, and what may be rejected; and therewith of Surplusage 
 and Variance ...... 769 
 
 III. Of Written Evidence ..... 804 
 
 IV. Of Confessions and Admissions. Of Examinations before Magistrates, 
 
 and of Depositions ...... 824 
 
 V. Of Witnesses. What facts Witnesses may disclose, and what are 
 Privileged Communications. How witnesses are to be Examined. 
 How the Credit of Witnesses may be Impeached. How many Wit- 
 nesses are sufficient. How the Attendance of Witnesses is to be 
 compelled and remunerated. Of Accomplices. And what wit- 
 nesses are competent to give Evidence . . . 902
 
 TREATISE 
 
 CRIMES AND MISDEMEANORS. 
 
 BOOK THE FOURTH. 
 
 CHAPTER THE NINTH. 
 
 OF LARCENY. (A) 
 
 We may now consider of the offence called larceny, a word formed 
 by contraction, or rather, as it has been said, by abuse, from latrociny, 
 latrocinium, and used to signify the violation of the property of an- 
 other by theft, where the property is not taken from the house, curti- 
 lage, &c, of the person of the owner, under such circumstances of 
 aggravation as have been noticed in the preceding chapters of this 
 
 (A) Massachusetts. — In an indictment for larceny and shop-breaking, proof that part of 
 the goods stolen were found in the possession of the defendant, is prima facie evidence that 
 he is guilty of the whole charge in the indictment ; not only that he stole the whole of the 
 articles taken from the shop, but also of his breaking and entering as alleged in the indict- 
 ment ; unless the defendant give some reasonable account how he came by the goods. 
 Commonwealth v. Millard, 1 Mass. Rep. 6. 
 
 In the case of the Commonwealth v. Trimmer, 1 Mass. Rep. 476, it was decided that a 
 feme-covert is not chargeable for a larceny jointly with her husband. And in the same case, 
 that removing a plank which is loose, and is not fixed to the freehold in a partition wall of 
 a building, is not a breaking within the statute. It appeared also in this case, that the 
 goods stolen were the joint property of Haley and one Emery, — and that in the indictment 
 they were alleged to be the property of Haley only, whereupon Sedgwick, J. said, if the 
 cause proceeded, there must be an acquittal, as a conviction upon this indictment would be 
 no bar to another prosecution. The defendants consenting to an amendment of the indict- 
 ment, the cause proceeded. 
 
 In the case of the Commonwealth v. Brown, 4 Mass. Rep. 580, it was ruled that if one, to 
 whom a wagon load of goods consisting of several packages, is delivered to be transported 
 from one place to another, fraudulently take away one of the packages, such taking is felony, 
 And per Parsons, C. J., "I am of opinion, admitting the defendant to be a common carrier, 
 and thus to have had a lawful custody of the goods, yet all the goods in the wagon were 
 delivered to him as one mass or body, and his taking away one of the packages, was a 
 separating of a part from the whole, and thus was determined the supposed privity of con- 
 tract ; for the contract with him was not to carry the several packages of which the load 
 was composed, but to carry the load in the state in which it was delivered to him. 
 
 " I have thus far considered the defendant a common carrier, having a special property in, 
 and a lawful possession of, the wagon load. But he was not a common carrier, but a mere
 
 OF LARCENY. [BOOK IV. 
 
 book. Formerly there was a distinction of this offence into grand lar- 
 ceny and petit larceny, the offence being grand larceny when the value 
 of the property taken was above twelve-pence, and petit larceny, when 
 
 servant to drive the team of a common carrier. It would be extremely mischievous to have 
 it understood that every driver of a team, employed to drive the team of a common carrier, 
 had a special property in the load, so that if he drives elsewhere than he was engaged to 
 drive, and talus the whole load, he will be charged for an unlawful conversion only, and 
 not for felony." 
 
 Stealing goods in one state, and conveying the stolen goods into another state, is similar 
 tn stealing in one county and conveying them into another, which was always holden to be 
 felony in both counties. Commonwealth v. Cullins, 1 Mass. Rep. 116. The same point was 
 decided upon full argument in the case of the Commonwealth v. Andrews, 2 Mass. Rep. 14, 
 and in Lord's case, York, June term, 1792, — quoted in Andrew's case. 
 
 Vermont. — A bailee of goods who has the qualified possession of them, is guilty of lar- 
 ceny in privately eloigning and converting them to his own use. The State v. "White, 2 
 Tyler's Rep. 352. See also the State v. Jenkins, Ibid. 378, and The State v. Smith, Ibid. 272. 
 
 South Carolina. — In the case of the State v. Wood, 1 South Carolina Rep. 29, it was 
 ruled, that on an indictment for grand larceny, the jury may find petit larceny. Cheves, J., 
 said, " he had been informed by his brethren that the objection (that the indictment being 
 for grand larceny the verdict for petit larceny was unauthorized) had been often overruled," 
 and cited 2 East, P. C. p. 778, where it is expressly so laid down. 
 
 Tennessee. — An indictment in the county court for petit larceny, in stealing goods of 
 greater value than twelve-pence, should conclude against the form of the statute. The se- 
 cond section of the act of 1807 has changed the nature of the offence of petit larceny, viz ; 
 that petit larceny, shall consist in stealing property under the value of ten dollars. At 
 common law it consisted in stealing property under the value of twelve-pence. Since the 
 act. the county court possesses jurisdiction of the offence, which should appear by the in- 
 dictment. 1 Overton's Rep. 107. The State v. Humphries. 
 
 In the case of The State v. France, 1 Overton's Rep. 434, it was doubted whether, if a 
 person be indicted for stealing the goods of Harris, it be sufficient to prove that the owner's 
 name was Harrison, but that he was sometimes called Harris. In the same case it is said, 
 that in every case affecting life or limb, the accused must not only be present when the evi- 
 dence is given in, but during the trial, and on the return of the verdict. — figgfThis is not 
 the practice in Massachusetts as to the latter circumstance, viz., on the return of the verdict ; 
 — cases have frequently occurred, where the prisoner, having been present during the trial, 
 and being under recognizance, absconded while the jury were deliberating, and before they 
 returned into court with their verdict. In such cases the court in that state have proceeded 
 to default the prisoner upon his recognizance, and then take the verdict of the jury. If 
 they pronounce him guilty, a capias issues, and he is brought in to receive sentence. Those 
 cases usually happening at nisi prius, are not reported ; three cases, however, are collected, 
 viz. Commonwealth v. Cilley, for a conspiracy, in Kennebec ; Commonwealth v. Otis, for for- 
 gery, in Middlesex ; and Commonwealth v. Cochrane, for adultery, in York. — Editor. 
 
 Pennsylvania. — An indictment for stealing bank notes generally, under the description of 
 promissory notes for the payment of money, is bad. It should appear on the face of the 
 indictment that they are bank notes of some incorporated bank, or in some way that they 
 are lawful notes, no notes of unincorporated banks in Pennsylvania being at present the 
 subject of larceny. Under the act of 30th January, and 19th March, 1810, (5 Smith's Laws, 
 81, 108,) the notes of unincorporated banks are not the subject of larceny. Spangler v. 
 Commonwealth, 3 Binn. 533. Larceny of one bill, or obligation, is within the provision of 
 section 5, of the act of 5th April, 1790, (2 Smith's Laws, 53,) which declares that larceny 
 of bills obligatory, &c., shall be punished in the same way as larceny of any goods or chat- 
 tels. Commonwealth v. Messenger & al., 1 Binn. 273. In which cases and upon this point 
 were cited Plowd. 86. 2 H. H. P. C. 365. 2 East, C. L. 598. 1 Leach, 1 S. C. Dubitahtr 
 in S. C. 4 Yeates, 69, Respub. v. Cleaver & al. 
 
 So long as wild bees remain in the tree where they have hived, notwithstanding the tree 
 is upon the land of an individual, and he has confined them in it, they are not the subject 
 of a felony. They areferie natvrse, and the taking of them has been considered as a species 
 of hunting. Wallis v. Mease, 3 Binn. 546. 
 
 In the ease of Pennsylvania v. Bacomb & AL, Addis. 386, it was decided that taking deer- 
 skins hung up in the woods at an Indian hunting camp, may be larceny, though the skins 
 were not in the possession of any one at the time of taking. 
 
 As to the indictment and evidence in larceny, the following cases have occurred in Penn- 
 sylvania ; an indictment for stealing two ten dollar notes of the President, Directors, and 
 Company of the United States Bank, &c, is bad. They should be laid to be promissory 
 notes for the payment of money. Commonwealth v. Bower, 1 Binn. 201. — (See a contrary 
 decision, 1 Mass. Rep. 337, Commonwealth v. Richards.) See Spangler v. Commonwealth, 
 3 Binn. 533, and Commonwealth v. M'Dowell, 1 Browne, 360. 
 
 An indictment, charging that the defendant feloniously did steal, take, and carry away.
 
 CHAP. IX.] OF LARCENY. 
 
 the value was only twelve-pence, or under that sum.(«) But the late 
 statute 7 & 8 Geo. 4, c. 29, s. 2, enacts, » that the distinction between 
 grand larceny and petty larceny shall be abolished, and every larceny, 
 
 (a) Stat. West. 1, (3 Edw. 1,) c. 15. This statute made regulations as to such offenders 
 as were to be mainpernable, and mentions larceny as of two kinds, namely grand and petit 
 — grand larceny, when the thing stolen was above the value of twelve-pence-; and petit 
 larceny, when of value of twelve-pence, or under. 
 
 sundry promissory notes for the payment of money, of the value of eighty dollars, of the 
 goods and chattels of the said A. B., is too vague and uncertain ; the notes should be more 
 particularly described, and it should be set forth that the money was unpaid on them. 
 Stewart v. Commonwealth, 4 Serg. & Rawle, 194. 
 
 New Jersey. — If one takes the goods of another out of the place where they are put ; for 
 instance out of a trunk, and lays them on the floor, and is surprised and detected before he 
 goes off, this is larceny. Per Kinsey, C. J., in The State v. Wilson, 1 Cox's Rep. 441. 
 
 New York. — Taking away a letter from another, which is of no intrinsic value, nor im- 
 porting any property in possession of the person from whom it was taken, is not larceny, or 
 any criminal offence. A bond, bill, or note, was not the subject of larceny at common law ; 
 and they certainly had as much value in themselves, as a letter of this description ; (1 Hawk, 
 c. 33, s. 22.) The carrying away of such a letter, is therefore, neither a "petit larceny, 
 misdemeanor, breach of the peace, or other criminal offence." Payne v. The People, 6 Johns. 
 Rep. 103. 
 
 In the case of the People v. Holbrook, 13 Johns. Rep. 90, the defendant was indicted for 
 stealing " four promissory notes, commonly called bank notes, given for the sum of fifty 
 dollars each, by the Mechanics Bank in the city of New York, which were then and there 
 due and unpaid, of the value of two hundred dollars, <fec, the goods and chattels of Peleg 
 Clark, then and there being found," &c. On the trial of this indictment, it was held, that 
 under the statute (1 N. R. L. 174, Sess. 24 Ch. 88,) parol evidence of the contents of the 
 bills or notes stolen, is admissible, without accounting for their non-production. In trover, 
 no notice to produce the thing sued for is necessary. 1 Camp. N. P. Cas. 143. 3 Bos. & 
 Pul. 143. 14 East, 274. The notes being supposed to be in the hands of the defendant, of 
 which he is apprised by the indictment, he can produce them if necessary, to falsify the 
 proof against him. 
 
 It was also decided in this case, that the notes were sufficiently set forth in the indict- 
 ment. They being in the hands of the defendant, it was impracticable to state them in 
 hsec verba. A general description is all that is required in trover. Milne's case, (2 East, C. 
 L. 602,) warrants this indictment. The court says, " it is true that in Craven's case, (2 East, 
 601, where the question again arose,) it was determined differently by all the judges ; but 
 we think the former decision more reasonable and sound." 
 
 It was also held in this case, that the allegation that the notes were the goods and chat- 
 tels of Peleg Clark, was sufficient, without saying that they Avere the property of P. C. 
 The word " chattels" denotes property and ownership. The statute (1 R. L. 174) enacts 
 " that if any person shall steal, &c, any bill of exchange, bond, order, warrant, bill or 
 promissory note for the payment of money, &c, being the property of any other person, &c, 
 it shall be deemed and construed to be felony, of the same nature and of the same degree, 
 and in the same manner, as it would have been if the offender had stolen, &c, any other 
 goods of the like value with the money due on such bill, &c, or secured thereby and re- 
 maining unsatisfied ; and such offender shall suffer such punishment as he, &c, ought to 
 have done, if such offender had stolen, &c, other goods of the like value as aforesaid." 
 See the case of Sadi v. Morris, (2 East, C. L. 749,) in which a majority of the judges held it 
 to be improper to lay bank notes to be chattels ; and the opinion of dissenting judges in 
 that case. And East's opinion that the case of Sadi v. Morris, was shaken by the resolution 
 of all the judges in Dean's case, (2 East, C. L. 646,) and other cases, wherein bank notes by 
 the operation of the statute of 2 Geo. 11, were holden to be within the statute of Anne, 
 against stealing money, goods, &c. See also 2 Bla. Com. 385, as to the meaning of the 
 word "chattel." The result of the opinion of the court in this case, was "that, since the 
 statute, it is sufficient to lay in the indictment, that the notes or instruments mentioned in 
 the statute, are the goods and chattels of any person who is entitled to them. And that 
 the word chattels, as applied in this case, denotes and signifies property and ownership." 
 13 Johns. Rep. 94. The court intimated a decided opinion in this case, that a bill of ex- 
 ceptions would not lie in criminal cases. See 1 Caines's Rep. 37, as to the jurisdiction of 
 the Court of Sessions for a second offence of grand larceny. 
 
 A bona fide finder of an article lost, as a trunk containing goods lost from a stage-coach, 
 and found on the highway, is not guilty of larceny by any subsequent act in secreting or 
 appropriating to his own use, the article found. To constitute larceny, the possession of 
 the goods must have been originally acquired, animo furandi. An intention afterwards 
 formed, of converting them to the party's own use, is not felonious. The People v. Ander- 
 son, 14 Johns. 294. In support of these positions, were cited Butler's case, 28 Eliz, 3 Inst.
 
 } OF LARCENY. [BOOK IV.. 
 
 whatever bo the value of the property stolen, shall be deemed to be of 
 the same nature, and shall be subject to the same incidents in all re- 
 spects as grand larceny was before the commencement of this act; and 
 every court whose power as to the trial of larceny was before the com- 
 menoement of this act limited to petty larceny, shall have power to try 
 every case of larceny, the punishment of which cannot exceed the 
 punishment hereinafter mentioned for simple larceny, and also to try 
 all accessories to such larceny." 
 Punish- By sec. 3, "every person convicted of simple larceny, or of any 
 
 r felony hereby made punishable like simple larceny, shall (except in the 
 oenT lar cases hereinafter otherwise provided for) be liable, at the discretion of 
 *2 the court, to be transported beyond the seas for the term of seven 
 years, or to be imprisoned for any term not exceeding two years, and, 
 if a male, to be once, twice, or thrice publicly or privately whipped (if 
 the court shall so think fit) in addition to such imprisonment." The 
 fourth section contains a general enactment with regard to the place 
 and mode of imprisonment for all indictable offences punishable under 
 the act, by which the court is empowered to sentence the offender to 
 be imprisoned, or to be imprisoned and kept to hard labour in the com- 
 mon gaol or house of correction, and also to direct that the offender 
 shall be kept in solitary confinement for the whole or any portion or por- 
 tions of such imprisonment, or of such imprisonment with hard labour, 
 as to the court in its discretion may seem meet, (a) 
 Punish- This statute also contains (s. 61) general provision for the punish- 
 
 ment of ment of principals in the second degree and accessories. It enacts, 
 iu the se- " taat m tne case 0I " every felony punishable under this act, every prin- 
 cond de- cipal in the second degree, and every accessory before the fact, shall be 
 accessories, punishable with death or otherwise, in the same manner as the princi- 
 pal in the first degree is by this act punishable ; and every accessory 
 after the fact to any felony punishable under this act, (except only a 
 receiver of stolen property,) shall on conviction be liable to be impri- 
 soned for any term not exceeding two years. "(i) 
 
 The offence and punishment of receivers of stolen property will be 
 mentioned in a subsequent chapter. 
 
 ( a) But by the 1 Vict. c. 90, s. 5, no offender " shall be kept in solitary confinement for 
 any longer periods than one month at a time, or than three months in the space of one 
 year." 
 
 For the proceedings for the trial of accessories, see the 7 Geo. 4, c. 64, ss. 9, 10, and 
 I 1 \nl. 1, p. 39, et seq. 
 
 107. 1 Hale, P. C. 50G. 1 Hawk. 208, s. 1 & 2. 2 East, C. L. 663. 1 Hawk. Ch. 33. 
 j. 24. and Dalton, 3. Thompson, C. J., dissented from this decision, and cited 2 East, 
 C. L. 505, 554, 693. Hawk. P. C. c. 33, s. 9. 1 Bla. Com. 299. {See 2 Stark. Ev. 822-3.} 
 United States. — ' : If any person within any of the places under the sole and exclusive 
 jurisdiction of the United States, or upon the high seas, shall take or carry awav with an 
 intent to steal or purloin the personal goods of another," &c, " he shall be fined not exceed- 
 ing the four-fold value of the property stolen, the one moiety to be paid to the owner of the 
 goods, or the United States, as the case may be, and the other moiety to the informer and 
 
 ]' ' "tor, and be publicly whipped not exceeding thirty-nine stripes." 1 Story, 86. " If 
 
 : son shall feloniously steal, take away, alter, falsify, or otherwise avoid any record, 
 
 nit, process or other proceedings in any of the courts in the United States, by means 
 
 of a judgment shall be reversed, made void, or not to take effect, every such person 
 
 on conviction thereof shall be fined not exceeding five thousand dollars, or be imprisoned 
 
 cceeding seven years, and whipped not exceeding thirty-nine stripes."— Ibid. 
 
 What specific articles of property, public and private securities, contracts, &c, and public 
 
 -. are made the subject of larceny, depends upon the statute provisions in each of the 
 
 States, to which the reader must resort for information upon these subjects. To insert the 
 
 - of the several States in these notes, would extend them to an unreasonable length : 
 
 and to abridge them might be the occasion of mistakes and misapprehension.— Editor.
 
 CnAP. IX.] OF LARCENY. 
 
 The definition of the offence of larceny is thus given by an ancient Definition 
 writer. " Furtum est, secundum leges, contractatio rei aliens; fraudu- of larcen y- 
 lenta, cum animo furandi, invito illo domino cujus res ilia fuerit. Cum 
 animo dico, quia sine animo furandi non committitur.'Yc) In subse- 
 quent definitions, the taking of the property has been stated to be 
 " felonious ;"(d) which expression has been rendered as signifying a 
 taking animo furandi, or, as the civil law expresses it, lucri causdJe) 
 In a late work of great learning and research, larceny is defined at 
 large to be " the wrongful or fraudulent taking and carrying away by 
 any person of the mere personal goods of another, from any place, with 
 a felonious intent to convert them to his (the taker's) own use, and 
 make them his own property, without the consent of the owner.'Y/) 
 And in a case of recent occurrence, which was reserved for the con- 
 sideration of the twelve judges, the learned judge who delivered their 
 opinion, said, that the true meaning of larceny is, " the felonious 
 taking the property of another without his consent, and against his 
 will, with intent to convert it to the use of the taker."(</)f 
 
 *With respect to a taking, lucri causa, it is stated that upon the *3 
 debate in a case which underwent great discussion, one of the learned Of the tak- 
 judges defined larceny as being " a wrongful taking of goods with ing lncr% 
 intent to spoil the owner of them, causa lucri;" but if ibis motive be 
 a necessary ingredient, it appears that it is not confined tc the acquisi- 
 tion of pecuniary advantage, or to the taking of the thing stolen for 
 the sake of its worth. Thus a taking with intent to destroy in sufficient 
 to constitute larceny, if it be done to effect an object of supposed advan- 
 tage to the party committing the offence, or to a third person. The 
 prisoner forced open a stable door, took out a horse, led it about a mile 
 to an old coal pit, and there backed it down and killed it, his object 
 being that the horse might not contribute to furnish evidence against 
 one Howarth, who was under a charge for stealing it : he had no inten- 
 tion of deriving any pecuniary benefit from taking the horse. Thom- 
 son, C. B., saved the point, whether a taking with this intent consti- 
 tuted larceny: and, upon conference, six judges against five held it not 
 essential that the taking should be lucri causa : they thought a taking, 
 fraudulenter, with intent wholly to deprive the owner of the property, 
 sufficient; but some of the six also thought that the object of protect- 
 ing Howarth might be deemed a benefit or lucrum. (7A| 
 
 (c) Bract. Lib. iii. c. 32, p. 150. So Glanvil, in words nearly similar, says, "Furtum est 
 tractatio rei aliense fraudulenta, animo furandi, invito illo cujus res ilia fuerit." Glanv. lib. 
 x. c. 13. .And see Brit. c. 15, p. 22. Flet. lib. i., c. 38, p. 54. 3 Inst. 107. 
 
 (d) 3 Inst. 107. 1 Hale, 503. 1 Hawk. P. C. c. 33. 4 Bla. Com. 229. 
 
 (e) 4 Bla. Com. 232. 2 East, P. C. c. 16, s. 2, p. 553, citing Just. Inst. lib. iv., tit. 1, s. 1, 
 which it is observed, seems to go further than the common law in the following definition — 
 furtum est contractatio fraudulosa lucri faciendi causa, vel ipsius rei, vel etiam usus ejus 
 possessionisve. 
 
 (/) 2 East, P. C. c. 16, s. 2, p. 553. 
 
 (ff) By Grose, J., in Hammond's case, 2 Leach, 1089. 
 
 (h) Rex v. Cabbage, East. T. 1815, MS. Bayley, J., and Russ. & Ry. 292. 
 
 f [To constitute the crime of larceny there must be a trespass, in the original taking of 
 possession ; the taking must be, invito domino, against the will of the owner, and the pro- 
 perty in his actual or constructive possession. Hit v. The State, 9 Yerger, 198.] 
 
 \ [In larceny, the criminal intention constitutes the offence, and is the only criterion by 
 which to distinguish a larceny from a trespass. It is not sufficient that the goods be taken 
 for the purpose of destroying them ; as if one take the horse of another for the purpose of 
 destroying him, to injure his neighbour — and should destroy him — this would be malicious 
 mischief, but not larceny. Where a defendant assisted in securing a slave, to the end that
 
 OF LARCENY. [BOOK IV. 
 
 It has also been decided, that clandestinely taking a master's corn, 
 though to aive the master's horses, is felony : especially if by so feed- 
 in"- them the servant's labour is likely to be diminished. The prisoners 
 had the care of one of their master's teams : the master allowed what 
 beans he thought fit, but they, by means of a false key, took from the 
 granary additional quantities. They were indicted for stealing two 
 bushels, and the jury found that they took them to give their mas- 
 ter's horses. A case was reserved upon the question whether this was 
 felony; and, after consideration, eight judges out of eleven held that 
 it was, and that the purpose to which the prisoners intended to apply 
 the beans did not vary the case ; and further, as it was alleged that the 
 additional beans would diminish the work of the men who had to look 
 after the horses, so that the master not only lost his beans, or had them 
 applied to the injury of his horses, but the men's labour was lessened, 
 it appeared that the lucri causa to give themselves ease, was an ingre- 
 dient in the case.(^) 
 
 "Where upon an indictment for larceny, it appeared that the prisoner, 
 who was the servant of the prosecutor, had taken corn to give to his 
 master's horses, under precisely similar circumstances to those which 
 occurred in Rex v. Morfit, Russ. & Ry. 307 ; Patteson, J., held that it 
 was larceny, and after consulting Cresswell, J., thought Rex v. Morjit 
 too recently decided by a large majority of the judges to take the opi- 
 nion of the judges again upon that point, (u) 
 
 The term lucri causa implies that it should be to gain some advan- 
 tage to the party committing the offence ; if, therefore, a person from 
 idle, impertinent curiosity, either personal or political, opens another 
 person's letter, that is not larceny, even if it were done to prevent the 
 letter from arriving at its destination. A parcel containing letters was 
 sent by a coach of which the prisoner was the proprietor, the prisoner, 
 instead of delivering the parcel, opened it, read the letters, and dis- 
 posed of them as he thought proper; and it was held, that this was a 
 trespass and breach of contract, but no felony, although it was done 
 to gratify some idle curiosity, or perhaps to prevent the letters from 
 arriving. (A 
 *4 *Upon an indictment for stealing one hundred pounds weight of 
 
 Larceny by CO pp er re, t h e property of S. Davey and others, it appeared that 
 employed Davey and others were the adventurers in a mine, and the prisoners 
 in mines, and two others were tributers in their mine, but not adventurers. The 
 prosecutors were tributers also in the mine, but not adventurers. Tri- 
 buters (generally in companies of four) take from the adventurers a 
 certain number of yards in the mine, called a pitch, from which they 
 dig out ore, and throw it into a heap or pile in some level, whence they 
 convey it along the level to a shaft, and so up to the surface, where it 
 is taken by the adventurers, and the tributers do not interfere further. 
 The tributers are paid according to their agreement, so much in the 
 pound on the selling price of the ore ; where it is very good, they re- 
 ceive a smaller sum than where it is inferior, because the same quantity 
 
 (*) Bex v. Morfit and another, East, T. 1816, MS. Bayley, J., and Russ. & Ry. 307. 
 
 (») Reg. v. Handley, a 1 C. & Mars. 547. 
 
 <j) Reg. v. Godfrey," 8 C. & P. 563, Lord Abinger, C. B. 
 
 she might escape from her master and obtain her freedom, but there was no intention to 
 convert the property to the use of the defendant, an indictment for larceny could not be 
 sustained. The Slate v. Hawkins, 8 Porter, 461.] 
 
 a Eng. Com. Law Reps. xli. 298. t> lb. xxxiv. 525.
 
 CHAP. IX.] OF LARCENY. 
 
 of labour, (which is what they contribute,) produces a more valuable 
 commodity in the one case than in the other. The prosecutor's pitch 
 contained better ore than the prisoners'. The prosecutors received 2s. 
 4d. in the pound from the adventurers, the prisoners, 5s. 6d. The 
 prisoners had taken a large quantity of ore from the prosecutors' pile 
 and added it to their own. It was objected that by taking ore out of 
 one pile and putting it in another, the prisoners did not steal from the 
 adventurers, for both piles remained in the possession of the adven- 
 turers, if the tributers were but servants ; and if the tributers were 
 tenants in common, still, as both piles were intended to come, and 
 ultimately would come into the hands of the adventurers, there could 
 be no stealing from them. For the prosecutors it was answered that 
 the adventurers were cheated, for they would have to pay 5s. Gd. in 
 t he pound on the ore removed to the prisoners' pile, whereas, if it had 
 remained in the prosecutors' pile, they would pay only 2s. Ad. in the 
 pound ; and besides, that the unauthorised removal of the ore from the 
 prosecutors' pile, with a fraudulent intention to appropriate it to their 
 own benefit, was a larceny the moment it was removed, which could 
 not be cured by returning it in any way to the adventurers ; and the 
 very learned judge(A) who tried the case, thought a larceny was proved; 
 but upon a case reserved, the judges held the conviction wrong.(^) 
 
 But now by the 2 & 3 Vict. c. 58, s. 10, " For the prosecution and 
 punishment of frauds in mines by idle and dishonest workmen remov- 
 ing or concealing ore for the purpose of obtaining more wages than 
 are of right due to them, and thereby defrauding the adventurers in 
 or proprietors of such mines, or the honest industrious workmen 
 therein/' it is enacted, " that if any person or persons employed in or 
 about any mine within the county of Cornwall shall take, remove, or 
 conceal the ore of any metal, or any lapis calaminaris, manganese, 
 mundick, or other mineral found or being in such mine, with intent to 
 defraud the proprietor or proprietors of, or adventurer or adventurers 
 in such mine, or any one or more of them respectively, or any work- 
 man or miner employed therein, then and in every such case respect- 
 ively, such person or persons so offending shall be deemed, and taken 
 to be guilty of felony, and being *convicted thereof, shall be liable to *5 
 be punished in the same manner as in the case of simple larceny." 
 
 It will be attempted to notice the principal points which have been 
 decided concerning the offence of larceny, in an inquiry, I. As to the 
 taking and carrying away of personal goods necessary to constitute this 
 offence ; II. As to the personal goods in respect of which it may be 
 committed ; III. As to the ownership of the goods ; and, IV. As to 
 the indictment, trial, and punishment. 
 
 (k) Patteson, J., who differed from the other judges on the case reserved. 
 
 (1) Rex v. Webb, R. & M. C. C. R. 431. Qu. whether the better course would not have 
 been to have laid the property in the other company of tributers, as it might have been held 
 that they had such a special property in the ore as would have supported an indictment in 
 their name? C. S. G.
 
 5 OF LARCENY. [BOOK IV. 
 
 SECT. I. 
 
 Of the taking and carrying away of the Personal Goods of another 
 necessary to constitute the offence of Larceny. 
 
 Of the net- Tiiere must be an actual taking or severance of the goods from the 
 ual taking p OSS ession of the owner, on the ground that larceny includes a trespass. 
 pass. If, therefore, there be no trespass in taking goods, there can be no 
 
 felony in carrying them away.(?) But the taking need not be by the 
 very hand of the party accused : so that if a thief fraudulently procure 
 a person innocent of any felonious intent to take the goods for him, (as 
 if he should procure an infant within the age of discretion to steal the 
 goods,) his offence will be the same as if he had taken the goods him- 
 self; and it should be so charged, (m) 
 Any remo- It appears to be well settled, that the felony lies in the very first act 
 val of the f rem0 vi n g the property : and therefore, that the least removing of 
 the fdoni- the thing taken from the place where it was before, with an intent to 
 ous intent, s t ea ] it, [ s a sufficient asportation, though it be not quite carried 
 ent carry-" away.(n) Thus, where a guest who had taken the sheets from his bed, 
 ing away, -with an intent to steal them, and carried them into the hall, was ap- 
 prehended before he could get out of the house, it was holden that he 
 was guilty of larceny, (o) And a like decision was made, where a per- 
 son who had taken a horse in a close, with an intent to steal him, was 
 apprehended before he could get him out of the close ;(p) and also, 
 where a person intending to steal plate took it out of a trunk wherein 
 it had been deposited, and laid it on the floor, but was surprised before 
 he could carry it away.(^) And in a more modern case it was holden 
 by all the judges, that the removal of a parcel from the head to the 
 tail of a wagon, with an intent to steal it, was a sufficient asportation 
 But there to constitute larceny. (?■) But where a parcel was not removed, its 
 must be an p OS itiori only being altered on the spot where it lay, the judges came to 
 session of a different conclusion. *The indictment against the prisoner was for 
 the goods stealing a wrapper and four pieces of linen cloth; and the facts proved 
 though but were, that the pieces of linen cloth were packed up in the wrapper in 
 for an in- the common form of a long square, and laid lengthways in a wagon ; 
 *r> that the prisoner set the package on one end in the wagon, for the 
 greater convenience of taking the linen out, and cut the wrapper all 
 the way down for that purpose ; but that he was discovered and appre- 
 hended before he had taken any thing out of it; and all the judges 
 agreed, upon this case being saved for their consideration, that it did 
 not amount to larceny, though the intention of the prisoner to steal 
 was manifest. They held that some removal of the goods from the 
 place where they were was necessary; and the party accused must, for 
 the instant, at least, have the entire and absolute possession of them.(s) 
 
 (I) Kel. 24. 1 Hawk. P. C. c. 33, s. 1. Bac. Ab. tit. Felony, (C). 2 East, P. C. c. 16, 
 s. 3, p. 554. 
 
 (m) 1 Hale, 514. 2 East, P. C. c. 16, s. 3, p. 555. So in the crime of murder, if A. pro- 
 cure B., an idiot or lunatic, to kill C, A. is guilty of the murder as principal, and B. is 
 merely an instrument. Ante, Vol. I., p. 484. 
 
 (n) 3 Inst. 108. 1 Hawk. P. C. c. 33, s. 25. Bac. Ab. tit. Felonv, (D). 4 Bla. Com. 231. 
 2 East, P. C. c. 16, s. 4, p. 555. 
 
 (o) 3 Inst. 108. 1 Hale. 507, 508. (p) 3 Inst, 109. 
 
 (q) Simson's case, Kel. 31. (r) Coslet's case, 1 Leach, 236. 
 
 (?) Cherry's case. Oxford Lent Ass. 1781, and East. T. 1781. 2 East, P. C. c. 16, s. 4. p. 
 556. Leach, 236, 237, note (a).
 
 CHAP. IX. § I.] ACTUAL TAKING. 6 
 
 But if every part of the thing is removed from the space that part occu- 
 pied, though the whole thing is not from the whole space which the 
 whole thing occupied, the asportation will he sufficient. Thus, where 
 the prisoner had lifted up a bag from the bottom of the boot of a coach, 
 and was detected before he got out of the boot ; and it did not appear 
 that the bag was entirely removed from the space which it at first occu- 
 pied in the boot ; but the raising it from the bottom had completely 
 removed each part of it from the space which that specific part occu- 
 pied : the judges held, upon a case reserved, that there was a complete 
 asportavit.(^) And by the same rule, drawing a sword partly out of 
 the scabbard, will constitute a complete asportavit. If a party direct 
 the hostler of an inn to bring out a horse, which he points out as his 
 own, and the ostler leads out the horse for him to mount, this is a suf- 
 ficient taking, if he intended to steal the horse. The prisoner went 
 into the stable of an inn, and pointed to a mare, said to the ostler, 
 "that is my horse, saddle him;" the ostler did so, and the prisoner 
 tried to mount the mare in the inn-yard, but from the noise made by 
 some music the mare would not stand still : the prisoner then directed 
 the ostler to lead the mare out of the yard for him to mount ; the 
 ostler led the mare out, but before the prisoner had time to mount her, 
 a person who knew the mare came up and the prisoner was secured ; 
 it was held that if the prisoner caused the mare to be led out of the stable 
 intending to steal her, that was a sufficient taking to constitute a felony, (ft) 
 
 In a case where goods in a shop were tied to a string, which was And there 
 
 fastened bv one end to the bottom of the counter, and a thief took up must be a 
 J . severance. 
 
 the goods and carried them towards the door, as far as the string would 
 permit, and was then stopped ; this was holden not to be a felony, be- 
 cause there was no severance. (it) And in a more ancient case, where 
 a thief took from the pocket of the owner a purse, to the strings of 
 which some keys were tied, and was apprehended with the purse in her 
 hand, but still hanging by means of the keys to the pocket of the 
 owner, it was ruled not to be larceny, on the ground *that as the purse *7 
 still hung to the pocket of the owner by means of the strings and keys, 
 it was in law still in his possession. (x) 
 
 But where there has once been a sufficient taking of the goods by where 
 the thief, the offence is completed, and will not be purged by a return- there has 
 ing of the goods, as has been already shown in the case of a taking by a c i en t tak". 
 robbery. (y\ ing, the of- 
 
 Upon an indictment for larceny by a servant in stealing his master's n e ° t C j e , e wl 
 plate, it appeared that, after the plate was missed, but before complaint purged by 
 made to a magistrate, the prisoner replaced it : the plate had been ™ t urmn g 
 pawned by the prisoner, who had redeemed it. The prisoner had also 
 on previous occasions pawned plate and redeemed it. Hullock, B., 
 (Holroyd, J., being present) left it to the jury to say, whether the pri- 
 soner took the plate with intent to steal it, or whether he merely took 
 
 (t) Rex v. Walsh, East. T. 1824, MS. Bayley, J., and R. & M. C. C. R. 14. 
 
 (It) Rex v. Pitman,* 2 C. & P. 423. Garrow, B. 
 
 (u) Anon. cor. Eyre, B., 2 East, P. C. c. 16, s. 4, p. 556. So where the prisoner drew the 
 end of a piece of lace through a hole in a window and shook the card on which the re- 
 mainder of the lace was wrapped, but not so as to remove it from its place, it was held not 
 to be larceny. Newman's case, Talf. Dick. Q. S. 216. 
 
 (x) Wilkinson's case, 1 Hale, 508. And see also as to the possession of the property by 
 the thief, in cases of robbery, Lapier's case, ante, vol. 1, p. 871, and Farrel's case, ibid. 870. 
 
 (y) Ante, vol. 1, p. 871. And see 2 East, P. C. c. 16, s. 5, p. 557. 
 a Eng. Com. Law Reps. xii. 201.
 
 7 OF LARCENY. [BOOK IV. 
 
 it to raise money on it for a time, and then return it ; for that in the 
 latter case it was no larceny.(z) But where a servant was indicted for 
 Btealing a silver saucepan, which had been pledged at a pawnbroker's, 
 ami the counsel for the prisoner asked the jury to consider whether he 
 took it feloniously, or intended at the time he pawned it to redeem it 
 as soon as he could ; Gurney, B., in summing up, observed, " You will 
 say whether the prisoner stole this property or not. I confess, I think 
 that if this doctrine of an intention to redeem property is to prevail, 
 courts of justice will be of very little use. A more glorious doctrine 
 for thieves it would be difficult to discover, but a more injurious doc- 
 trine for honest men cannot well be imagined. "(a) 
 Of the am'- One of the most material considerations respecting the taking and 
 •»«• /wan- carrying away goods necessary to constitute larceny is, whether the 
 fact were done animo furandi — " cum animo dico, quia sine animo 
 furandi non committitur.' '{b\ The ordinary discovery of such felonious 
 intent is where the party commits the facts clandestinely, or upon its 
 being laid to his charge, denies it ; but this is by no means the only 
 criterion of criminality ; for in cases that may amount to larceny, the 
 variety of circumstances is so great, and the complication thereof so 
 mingled, that it is impossible to recount all those which may evidence 
 a felonious intent, or animum furandi. It is useful to refer to those 
 points which have already come under consideration : but new cases 
 will continually occur, in which the felonious intent must be left, 
 upon the particular circumstances, to the due and attentive considera- 
 tion of the court and jury, who will not forget the excellent rule, that 
 in doubtful cases it is proper rather to incline to acquittal than convic- 
 tion. (c)f 
 *g *It is clear that the taking, though wrongful, may only amount to a 
 
 Cases trespass. Thus, if a man takes away the goods of another openly be- 
 where the f ore y^ 01 . ther persons, otherwise than by apparent robbery, this car- 
 only a tres- ries with it an evidence only of trespass, because done openly in the 
 pass. presence of the owner or of other persons who are known to the 
 
 owner. (d) And the evidence of its being only a trespass will be 
 strong, where a person, having possessed himself of the goods of an- 
 other, avows the fact before he is questioned, (e) Again, if a man 
 leaves a harrow or a plough in a field, and another person who has land 
 in the same field uses those instruments, and having: done with them 
 
 (r) Rex v. Wright. 0. B. 1828, Carr. Supp. 278, 9 C. & P. 554, a note. " The decision has 
 given rise to much discussion in various cases, and much difficulty has been found in ap- 
 plying the doctrine it lays down to the facts of particular transactions. In some instances, 
 where it has clearly appeared that the party only intended to raise money on the property 
 for a temporary purpose, and, at the time of pledging the articles, had a reasonable and fair 
 expectation of being able shortly, by the receipt of money, to take it out of pawn, juries, 
 under the advice of the judge, have acted upon the doctrine and acquitted. But in other 
 instances, where they could not discover any reasonable prospects which the party had at 
 the time of pledging of being able soon to redeem the article, they have considered the doc- 
 trine as inapplicable and convicted." Reporters note, 9 C. & P. 554. 
 
 (a) Reg. v. Phetheon," 9 C. & P. 552. 
 
 (b) Ante, p. 2. {2 Tiler's Rep. 272, State v. Smith.} 
 
 (c) 1 Hale, 509. 4 Bla. Com. 232. (rf) l Hale, 509. 
 \e) 2 East, P. C. c. 16, s. 98, p. 661. 
 
 f [Where on a trial for larceny, the court instructed the jury "that it must be proved 
 that the original taking was felonious, but that the jury had a right to infer, from all the 
 facta and circumstances of the case the felonious intent in the original taking; and that not 
 in one case in a hundred could it be proved directly that the original taking was felonious," it 
 was held thatthere was no error in the instruction. Booth v. The Commonwealth, 4 Gratt. 525.] 
 a Eng. Com. Law Reps, xxxviii. 224. b lb. xvi. 223.
 
 CHAP. IX. § I.] ACTUAL TAKING. 
 
 either returns them to the place where they were, or acquaints the 
 owner with his having taken them, this is no felony, but at most a 
 trespass//) And the same conclusion must be drawn where a man, 
 having cattle upon a common which he cannot readily find, takes his 
 neighbour's horse which is depasturing on the common, rides about 
 upon it to find his cattle, and when he has done with it, turns it again 
 upon the common. (</) But the case will not be so clear when the 
 property is taken without the privity or leave of the owner, and no 
 intention to return it is manifested by the party by whom it was taken. 
 
 In a case where two men were indicted for stealing a mare and a Phillips 
 gelding, it appeared that the prisoners went to the stables of the prose- * nd , 
 cutor (who was an innkeeper at a place called Petty France,) in the case. The 
 night-time, opened them and took out the mare and the gelding, and prisoners 
 rode on them to Lechlade, a place above thirty miles off, where they h° ° S esTrom 
 took them to different inns, and left them in the care of the ostlers, »■ stable 
 directing the ostlers to clean and feed them, and saying that they to^pla"^ 
 should return in three hours : and it appeared also that in the course at a consi- 
 of the same day the prisoners were taken at a distance of fourteen derab ledis- 
 miles from Lechlade, walking towards Farringdon, in Berkshire, in a there left 
 direction from Lechlade. Upon these facts, the jury having been di- tliem » P r °- 
 rected to consider whether the prisoners, when they took the mare and their jour" 
 gelding, intended to make any further use of them than to ride them ne y on foot 
 for the purpose of assisting them on their journey towards the place ry havm" 
 where they were going, and then to leave them to be recovered by the found that 
 owner or not, as it might turn out, found the prisoners guilty ; but ^ e e re °^ s 
 they added that they were of opinion, that the prisoners meant merely by the pri- 
 to ride the horses to Lechlade, and to leave them there; and had no ? oner f on l.v 
 
 t- i i n i /. , > in order to 
 
 intention to return tor them, or to make any further use of them. At ride them, 
 a conference of the judges this finding was considered ; when one f andafter - 
 
 wjxrds lcuvft 
 
 them(A) thought that the case amounted to a felony, because there was them, it was 
 no intention to return the horses to the owner, but, for aught the pri-holdentobe 
 soners concerned themselves, to deprive him of them : and another of a'ndn'oUar- 
 the judges appears to have entertained doubts upon the case. (?') Butceny. 
 the rest of the judges held it to be only a trespass, and no felony, as 
 there was no intention in the prisoners to change the property, or make 
 it their own, but only to use for the particular purpose of saving their 
 labour in travelling. They agreed, however, that it was a question for 
 the jury; and that, if the jury had found the prisoners *guilty gene- *9 
 rally upon this evidence, the verdict could not have been questioned. (/) 
 Where the prisoner took away a horse and other property all together, 
 and after going some distance turned the horse loose and proceeded on 
 foot to a place where he was stopped, attempting to sell some of the 
 other property; it was left to the jury to say, whether the prisouer had 
 any intention of stealing the horse, for that, if he intended to steal the 
 other articles, and only used the horse as a mode of carrying off the 
 other plunder more conveniently, and, as it were, borrowed the horse for 
 
 (/) 1 Hale, 509. 4 Bla. Com. 232. 
 
 (ff) 1 Hale, 509. (h) Grose, J. 
 
 («) Lord Alvanley. It appears that his lordship, who had been recently called to the 
 bench of C. B., not having been present when the case was first under consideration, de- 
 clined giving any express opinion. 2 East, P. C. c. 16, s. 98, p. 663,. note (a). 
 
 (j) Rex v. Phillips and Strong, cor. Lawrence, J., Gloucester Spr. Ass. 1801, and East. T. 
 and Trin. T. 1801. 2 East, P. 0. c. 1G, s. 98, p. 662, 663. 
 
 Vol. ii.— 2
 
 9 OF LARCENY. [BOOK IV. 
 
 that purpose, he would not be in point of law guilty of stealing the 
 horse. (A-) 
 
 Clandestinely taking away articles in order to induce the owner, a 
 trirl to fetch them, and thereby to give the party an opportunity to 
 solicit her to commit fornication with him, is not a felonious taking. 
 The prisoner took from the house in the night a young girl's bonnet, 
 and some other articles of her dress, and carried them to a hay mow 
 where he had twice had connection with her ; and the jury thought 
 that he only took them in order that she might again go to the mow, 
 and that he might again have another opportunity of soliciting her to 
 repeat the connexion. Upon a case reserved the judges thought that 
 the taking with such an intent was not felonious, and the prisoner was 
 pardoned. (Z) 
 The taking A taking of another's property may also be by mistake, arising from 
 maybe by h eC( }i e g Snes g or accident, in which the an imus furandi has no part. 
 without' Thus, if the sheep of A. stray from his flock to the flock of B., and B. 
 any animus ,j r j ve them along with his own flock, and, by mistake, without knowing 
 or taking heed of the difference, shear them, it is no felony. But if B. 
 knew them to be the sheep of another person, and tried to conceal that 
 fact, if, for instance, finding another's mark upon them, he defaced it, 
 and put his own mark upon them ; this would be evidence of felony. (m) 
 And a like conclusion may be drawn, where a party having possession 
 of another's property, appears desirous of concealing it, or of preventing 
 the inspection of the owner, or of any person who may make the disco- 
 very ; or where, being asked, he denies having the property, though it 
 is clear that he knew of its being in his possession. On the other hand 
 a mode of conduct of a different description in these several respects 
 will be evidence to rebut any felonious intent, (n) 
 The animus The circumstance of the goods being taken on a claim of right may 
 m'ayalsobe a ^ so ne g a tive any animus furandi. In one instance, indeed, a man 
 negatived may be guilty of felony in taking his own goods; namely, where, 
 b f * ht im having bailed them to another person, he afterwards steals them from 
 such person in order to charge him for them in an action, or robs the 
 other person of them in order to charge the hundred. (o\\ But regularly 
 a man cannot commit felony of goods wherein he has a property. Thus, 
 if A. take away the trees of B., and cut them into boards ; or if A. take 
 the cloth of B. and make it into a doublet ; B. may take the boards or 
 *10 the cloth, and it will not be felony.(^) *So if A. take the hay or corn 
 of B., and mingle it with his own heap or cock, or take B.'s cloth, and 
 embroider it ; B. may retake the whole heap of corn or cock of hay (at 
 least so much of them as cannot be easily distinguished from his own,) 
 and the garment with the embroidery ; and such retaking will be no 
 felony. (q) If goods be taken on a claim of right or property in them, 
 it will be no felony ; at the same time it is matter of evidence whether 
 they were bona fide so taken, or whether they were not taken from the 
 person actually possessing them, with a thievish and felonious intent. 
 
 (k) Rex v. Crump, a 1 C. & P. 658, Garrow, B. 
 
 (1) Rex v. Dickinson, Mich. T. 1820, MS. Bayley, J., and Russ. & Ry. 420. 
 
 (to) 1 Hale, 506, 507. ( n ) 2 East, P. C. c. 16, s. 97, p. 661. 
 
 (o) 1 Hale, 513. 2 East, P. C. c. 16, s. 95, p. 659. 3 Inst. 110. 
 
 (p) 1 Hale, 513. (g) 1 Hale, 513. 2 East, P. C. c. 16, s. 95, p. 659. 
 
 f [Palmer v. The People, 10 Wend. 165.] 
 » Eng. Com. Law Reps. xi. 516.
 
 CHAP. IX. § I.] TAKING, ETC., ANIMO FURANDI. 10 
 
 And therefore, obtaining possession of goods by fraudulent claim of 
 right or by a fraudulent pretence of law, and then running away with 
 them would be a felony.(r)f 
 
 Where a keeper found snares, which had been set by the prisoner, 
 with game in them, and took the game and snares for the use of the 
 lord of the manor, and the prisoner demanded them with menaces, and 
 the keeper thereon gave them up ; it was left to the jury to say, whether 
 the prisoner acted under a bona fide impression that he was only get- 
 ting back the possession of his own property, for although he might be 
 liable for a trespass, yet, if he demanded them under a bona fide belief 
 that he was entitled to them as his property, he would not be guilty of 
 larceny, (s) 
 
 If the owner of land upon which a horse has strayed take the horse 
 damage fieasant, or if the lord of a manor seize a horse as an estray, 
 though perchance he has no title so to do, yet as the act is not done 
 felleo animo, it will not be felony, (i!) But any act of this kind is open 
 to proof of a felonious intention • so that if new marks are given to the 
 horse to disguise him, or his old marks are altered, these will be con- 
 sidered as presumptive circumstances of a thievish intent. (m) 
 
 In a case where, after the seizure of uncustomed goods, some persons 
 broke at night into the house where they were deposited, with a design 
 to retake them for the benefit of the former owner, it was holden that 
 any presumption of a felonious intent to steal as laid down in the in- 
 dictment (which was for a burglary), was rebutted by the fact which the 
 jury found, namely, that the prisoners intended to retake the goods on 
 the behalf of their former owner. (w) 
 
 The following observations on the subject of a felonious taking of of taking 
 corn bv qleaninq, are made in a modern work in which much useful c ° rn by 
 matter is collected : — " An idea very universally prevails among the 
 lower classes of the community, that they have a right to glean, that is, 
 to take from off the land the corn that remains thereon after the harvest 
 has been gotten in ; than which notion nothing can be more erroneous. 
 By custom, indeed, such a right may possibly in some particular places 
 exist; and the laudable kindness of tenants generally induces them to 
 permit the poor to collect the corn they have left upon the land, and to 
 appropriate it to their own use. As a right, however, it has no more 
 existence than a right to take the tenant's furniture from out of his 
 
 (r) 3 Burn's J. D. & W. 414, citing 1 Hale, 507. 1 Hawk. c. 33, s. 8. Farre's case, Kel. 43. 
 (s) Rex v. Hall, a MS. C. S. G., and 3 C. & P. 409, Vaughan, B. See this case, ante, vol. 1, 
 p. 872, and see Rex v. Halloway, b 5 C. & P. 524. 
 
 (t) 1 Hale, 506, 509. («) 2 East, P. C. c. 16, s. 95, p. 659. 
 
 (v) Rex v. Knight and Roffey, 2 East, P. C. c. 15, s. 22, p. 515, and c. 16, s. 95, p. 659. 
 
 f [Evidence offered by a prisoner of his assertion of a claim to property stolen, when he 
 was arrested, cannot be received — such a claim must be asserted before or at the taking, to 
 enable the defendant to give evidence of his own declaration ; and the bona fides of the as- 
 sertion is for the consideration of the jury. The State v. Wisdom, 8 Porter, 511. 
 
 A defendant indicted for larceny, in whose possession a portion of the cargo of a vessel is 
 found, under circumstances which, if unexplained, would authorise a jury to presume a felo- 
 nious taking by him, is not entitled in order to negative the inference of an intent to steal, to 
 give evidence of a custom for the officers of vessels to appropriate a small part of the cargo to 
 themselves, or to prove that instances had occurred in which the mates of vessels under a 
 claim of right, had appropriated to themselves parts of the cargoes in their possession. 
 Such evidence is inadmissible, because the custom which it purports to prove, is wanting 
 in the elements of a legal custom and cannot be sustained as such, and if proved, Avould only 
 be applicable to the officers of the vessel. The Commonwealth v. Downe, 1 Gushing, 5.] 
 a Eng. Com. Law Reps. xiv. 337. b lb. xxiv. 438.
 
 10 OF LARCENY. [BOOK IV. 
 
 *11 messuage, *and the pillage in the one case is as much felony as the 
 plunder would be in the other ; for the act is not simply a trespass, but 
 a felony ; and the compiler well remembers a conviction at the Old 
 Bailey, on an indictment found for the exercise of this supposed right. 
 The parties were tried before Mr. Justice Rooke (if he mistake not), 
 about six years ago."(w) 
 
 But upon this it is submitted, that though the right to take corn by 
 "•leaning has no existence, except possibly by custom in some particular 
 places,(x) such a taking will not necessarily amount to a felony. Un- 
 doubtedly it will be an act open, like other acts of trespass which have 
 been mentioned, to proof of a felonious intention, upon which it is 
 peculiarly the province of the jury to determine; but it can hardly be 
 contended, that such taking will amount to larceny, if it should appear 
 to have been merely a taking of the corn left on the ground after the 
 crop had been carried, and to have been done openly, under a claim of 
 right not altogether without colour, though not capable of being estab- 
 lished by proof, or to have been done under an apparent sanction, aris- 
 ing from former similar acts of the same individual, or of others in the 
 neighbourhood, having been allowed by the occupier of the land. 
 "Where It has been observed with respect to cases where goods have been 
 
 there is any taken on a claim of right, that if there be any fair pretence of property 
 the right, or right of the prisoner, or if it be brought into doubt at all, the court 
 the court w jii direct an acquittal ; as it is not fit that such disputes should be set- 
 an acquit- tied m a manner to bring men's lives into jeopardy.(y) The master of 
 t 1 * 1 - a Prussian vessel, captured by a British ship, and carried into the port 
 
 of Weymouth, was held not to be guilty of larceny in taking goods from 
 the vessel under the particular circumstances ; there being no evidence 
 that he took them for the purpose of converting them to his own private 
 use. (2) 
 Where the There is one case in which it has been holden, that the taking will not 
 taking is by amount to a larceny, though it be accompanied with the animus fu- 
 wiiinota- randi ; namely, where the taking is by a finding of the property."}" 
 mount to Thus, it is laid down in the books, that if one lose his goods, and another 
 even**' ^ n( ^ them, though he converted them animo furandi, to his own use, 
 though yet it is no larceny, for the first taking was lawful. (a) And again; if 
 there be the ^ £ n( j t ^ e p Urse f jj [ n j^g highway, and take it and carry it away, 
 
 animus ju- •!,,,• 1 11 t 
 
 rondi. with all the circumstances that usually prove the animus furandi, as 
 But this denying it, or secreting it, yet it is not felony.(M But though, where 
 must be un. the particular circumstances of any case furnish a presumption of an 
 
 (w) Woodf. Landlord and Tenant, Chap. IX. p. 242, (ed. 1814.) 
 
 (x) Steel v. Houghton and "Wife, 1 Hen. Black. 51. Rex v. Price, 4 Burr. 1925. 
 
 (y) 2 East, P. C. c. 16, s. 95, p. 659. (z) Rex v. Van-Muyen, Russ. & Ry. 118. 
 
 (a) 3 Inst. 108. 1 Hawk. P. C. c. 33, s. 2. Bac. Ab. tit. Felony, (C). 
 
 (b) 1 Hale, 506. 
 
 f [Lost property cannot be the subject of larceny. A. placed his pocket-book upon the 
 
 • of a barber's shop, there to remain till he could get a bank bill changed, and on leaving 
 
 the shop he forgot to take his pocket-book, but on missing it he immediately recollected 
 
 ' lie had left it at the barber's shop : Held, that this pocket-book, at the time it was left, 
 
 was not " lost property" in the sense used in the law books, and was the subject of larceny. 
 
 I ence v. The State, 1 Humphreys, 228. 
 
 If a person finds a trunk or other article of personal property in the highway and con- 
 verts the same to his own use, not knowing the owner, he is not guilty of larceny ;' but aliter, 
 if he knows the owner or has the means of identifying him, by marks on the property which 
 he understands at the time of finding. Lane v. The People, 5 Gilman, 305. The finder of 
 lost property, which has no marks upon it by which the owner can be ascertained, is not 
 guilty of larceny, though he takes it animo furandi. The Stale v. Conway, 18 Missouri, 321.]
 
 CHAP. IX. § I.] TAKING, ETC., ANIMO FURANDI. 11 
 
 intended dereliction of treasure trove, or waif, or stray, on the part of derstood 
 
 with gre 
 limitation 
 
 the owner, no larceny can be committed by taking them before seizure |j. x * ' 
 
 by the lord ; yet, in other cases the doctrine of a taking by finding must 
 be admitted with great limitation, and must be understood to apply only 
 where the finder really believes the goods to have been lost by the 
 owner, and does not colour a felonious taking under such a pretence.(c) 
 It will not avail, therefore, where a man's goods being in a place in 
 *which ordinarily and lawfully they are or may be placed, a person *12 
 takes them animo furandi. (d) If, therefore, a man's horse be going 
 in his ground, or upon his common, and a person takes it animo 
 furandi, it is no finding, but felony. (e) So if the horse stray into a 
 neighbour's ground or common, it is felony in him that so takes him. (/)-{- 
 And where a prisoner found a horse straying on a public road, and a 
 doubt was suggested, whether a person appropriating a horse to his 
 own use, under such circumstances, could be guilty of a felony ; Mr. 13. 
 Hollock said, " I will not say it would not be a felony ; I think it 
 would. "(g) So where on an indictment for stealing a ewe and a lamb, it 
 appeared that the prosecutor's flock of sheep had strayed through a gap 
 into a road, and had all been recovered except the ewe and lamb, men- 
 tioned in the indictment, which were afterwards seen grazing in a green 
 lane, along which the prisoner was seen driving some sheep, and the 
 prisoner some days afterwards sold the ewe and the lamb about ten 
 miles from the place; Cresswell, J., told the jury that if a person find 
 an animal straying in a road, and take it with intent to dispose of it to 
 his own use, it is a larceny, and that in this case the question for their 
 consideration was whether the prisoner so took the ewe and the lamb, 
 or whether they got mixed with the sheep he was driving, and he took 
 them away by mistake.^) And, even if the place where the goods are 
 found is not one in which ordinarily they would be deposited, circum- 
 stances may show the taking to have been felonious. Thus, if a man 
 should hide a purse of money in a corn-mow, and his servant finding it 
 should take part of it, the taking will be felony, if it appear by circum- 
 stances that the servant knew that his master laid it there ; but in such 
 a case it would be required that the circumstances should be pregnant, 
 otherwise it might reasonably be interpreted to be a bare finding, on 
 account of the place being so unusual for such a deposit. (h) 
 
 (c) 1 Hale, 506. 2 East, P. C. c. 16, s. 99, p. 664. 
 
 (d) 1 Hale, 506. (e) 1 Hale, 506. 
 
 (/) Ibid. 2 East, P. 0. c. 16, s. 99, p. 664. (g) Hutchinson's case, 1 Lewin, 195. 
 
 (gg) Reg. v. Cook, Gloucester Spr. Ass. 1842, MS. C. S. G. " If the sheep of A. stray 
 from the flock of A. into the flock of B., and B. drives them along with his flock, or by pure 
 mistake shears them, this is not a felony ; but if he know it to be another's, and mark it 
 with his marks, this is an evidence of a felony." 1 Hale, 507. (h) 1 Hale, 507. 
 
 f [When the personal property of one is, through inadvertance, left in the possession of 
 another, and the latter animo furandi conceals it, he is guilty of larceny ; knowing it to be 
 the property of another, his possession will not protect him from the charge of felony. 
 The People v. M'Garren, 17 Wend. 460. It seems that where property is found in the high- 
 way, and the finder knows the owner, or there be any mark upon it by which the owner 
 may be ascertained, and the finder, instead of restoring it, converts it to his own use, such 
 conversion will constitute a felonious taking. Ibid. 
 
 Whore property (e. g. a pocket-book containing bank-bills) with no mark about it indi- 
 cating the owner, was lost and found, in the highway, and there was no evidence to show 
 that the finder at the time knew who the owner was ; held, that he could not be convicted 
 of larceny, though he fraudulently and with intent to convert the property to his own use 
 concealed the same immediately afterwards. The People v. Cogdell, 1 Hill. 94. The finder 
 of lost goods, who takes possession of them, not intending to steal them, at the time of the 
 original taking, is not rendered guilty of larceny, by any subsequent felonious intention to 
 convert them to his own use. Ransom v. The Slate, 22 Connecticut, 153.]
 
 12 
 
 OF LARCENY. 
 
 [BOOK IV. 
 
 coachmen 
 baking urti- 
 olea Left in 
 their ooaoh- 
 Ba, Lamb's 
 ease. 
 Wynne's 
 case. 
 
 *13 
 
 The following cases also further show that the taking animo furandi 
 of goods which have heen found by the party may amount to larceny. 
 A gentleman left a trunk in a hackney coach, and the coachman took 
 and converted it to his own use. This was holden to be a felony, on 
 the "round that the coachman must have known where he took up the 
 "entlenian and his trunk, and where he set him down ; and that he 
 ought therefore to have restored it to him.(-t) In a late case, where the 
 prisoner was indicted for stealing a box, containing a quantity of wear- 
 ing apparel and two bonds, it appeared that he was a hackney coach- 
 man, and that he took up the prosecutor with several trunks and pack- 
 ages amono-st which was the box in question, at an hotel in the Adel- 
 phi, and set him down in Orchard Street, Portman Square, where 
 all the articles were taken out of the coach by the prisoner and the 
 prosecutor's servant, except this box, which was corded, and had been 
 deposited under the seat of the coach. The prisoner received his fare 
 and drove away, after *which, in a few minutes, the box was missed ; 
 but the prisoner and the coach were quite gone ; and it was not till 
 several days had elapsed, and after handbills had been dispersed and 
 advertisements inserted in the public prints, offering a reward to any 
 person who should bring home the box, that the prisoner was appre- 
 hended. The box was then found at the house of a Jew, to which the 
 prisoner said he had taken it: but it was uncorded, the hasps of it were 
 forced off, and it contained only a part of the property which was in it 
 when it was lost, the two bonds and several of the articles mentioned 
 in the indictment, having been taken away. The case was left to the 
 jury, to consider whether they were satisfied that the prisoner had un- 
 corded the box, not merely from a natural, though idle curiosity, but 
 with an intention to embezzle some part of its contents ; and they were 
 of opinion that he uncorded the box and destroyed the papers with an 
 intent to embezzle the goods found in the box. They accordingly 
 found him guilty ; and the case being reserved for the consideration of 
 the twelve judges, a majority of them were of opinion that the convic- 
 tion was proper. (J) 
 
 Another case of a larceny by a hackney coachmen of a parcel left in 
 his coach may be here mentioned, though the circumstances of it 
 appear to have left but little room for the defence that the prisoner 
 obtained the goods by finding. The prisoner was indicted for stealing 
 a parcel of calico, and other articles the property of Sarah Dixon. The 
 prosecutrix hired him to drive her from her house to a linendraper's 
 shop, where she purchased the articles named in the indictment ; which 
 were tied up in a parcel, and put into the coach. The prisoner then 
 drove the prosecutrix back to her house ; and on getting out of the 
 coach, she ordered him to give the parcel to her servant ; but this he 
 neglected to do. The prosecutrix went into the parlour of her house; 
 but returned very shortly to the street-door and paid the coachman his 
 fare ; upon which he drove away. Upon the loss of the things being 
 discovered, they were advertised, and a reward offered to any person 
 who should restore them ; but without effect. A few days afterwards 
 the prosecutrix met the prisoner; but he denied all knowledge of her 
 person, or of the things, or of his ever having had such a fare, and 
 
 (0 Lamb's case, 0. B. 1694. 2 East, P. C. c. 16, s. 99, p. 604. 
 
 (j) Wynne's case, 0. B. 1786, cor. Eyre, B., and East, T. 1786. 1 Leach, 413. 2 East, P. 
 C. c. 16, s. 99, p. 664. 
 
 Sears's 
 case.
 
 CHAP. IX. § I.] TAKING, ETC., ANIMO FURANDI. 13 
 
 said that he had only driven the coach two days. The parcel, however, 
 was traced to the prisoner's possession, and it appeared that it had been 
 opened, and three yards taken off from the piece of calico. The pri- 
 soner in his defence acknowledged that he had driven the prosecutrix 
 from her house to the linendraper'sand back again ; but he denied that 
 she ever desired him to deliver the parcel to a servant. Upon this evi- 
 dence the prisoner was convicted. (/c) 
 
 The doctrine as to a felonious taking of goods, which have been Cases of 
 found by the party, was further confirmed in two more recent cases. t a ^ °^ S| 
 In the first of these cases it appeared that a pocket-book containing by the pri- 
 bank notes had been found by the prisoner in the highway, and after- soners, . a ° d 
 
 convGrtcfi 
 
 wards converted by him to his own use. Upon which Lawrence, J., totheirown 
 
 observed, that if a party finding property in such manner knows the use - 
 
 owner of it, or if there be any mark upon it by which the owner can 
 
 be ascertained, and the party, instead of restoring the *property, con- *14 
 
 verts it to his own use, such conversion will constitute a felonious 
 
 taking. 0f And in the subsequent case the two prisoners (father and 
 
 son) were convicted of stealing a bill of exchange, upon evidence of 
 
 their having found and converted it to their own use, by endeavouring 
 
 to negotiate it. Gibbs, J., stated to the jury, that it was the duty of 
 
 every man who found the property of another to use all diligence to 
 
 find the owner, and not to conceal the property, (which was actually 
 
 stealing it,) and appropriate it to his own use.(m) And in a recent 
 
 case, a very learned judge said, " Suppose a person finds a check in the 
 
 street, and, in the first instance, takes it up merely to see what it is ; 
 
 if afterwards he cashes it, and appropriates the money to his own use, 
 
 that is a felony, though he is a mere finder till he looks at it."(«) 
 
 Where upon an indictment for stealing a hat, it appeared that the 
 prosecutor, having his hat knocked off by some one, the prisoner, who 
 had his own hat on his head, picked up the prosecutor's hat, and car- 
 ried it home; Park, J. A. J., said, in summing up, "If a person picks 
 up a thing ; when he knows that he can immediately find the owner, 
 and instead of restoring it to the owner, he converts it to his own use, 
 this is felony, "(o) 
 
 If a servant find money in his master's house, it is his duty to in- Money 
 quire of his master whether it is his money, and if, instead of doing f? u ? d ^ f 
 so, he converts the money to his own use, he is guilty of larceny. a master by 
 Upon an indictment for stealing four bl. notes in the dwelling-house of aservant - 
 her master, it appeared that the prisoner, when asked by her master 
 what she had done with the money, at first said, she had not seen it, 
 but afterwards said, she found the notes in the passage of the house ; 
 and it was contended that, if that statement was true, the prisoner was 
 not guilty of felony, as their being in the passage would not necessarily 
 lead to the conclusion that the notes were her master's property, and 
 she might have supposed that they were dropped by some person who 
 had come to the house. Park, J. A. J., "It is suggested that this is 
 
 (k) Sear's case, cor. Ashurst, J., Old Bailey, 1789. 1 Leach, 415, note (b). 
 
 (I) Anon. cor. Lawrence, J., Stafford Sum. Ass. 1804, MS. 
 
 (m) Rex v. James and Barnabas Walters, cor. Gibbs, J., Worwick Summ. Ass. 1812. 
 
 (n) Per Parke, B., Merry v. Green, 1 M. & W. 623. (o) Rex v. Pope, a 6 C. & P. 346. 
 
 f [Ace. Connecticut x. Warton et al., 9 Conn. 527. Contra, Porter v. State, Martin and 
 Yerger, 226.] 
 
 a Eng. Com. Law Reps. xxx. 432.
 
 14 OF LARCENY. [BOOK IV. 
 
 not a felony, because the prisoner might have found the notes in the 
 passage. What passage ? Why the passage of her master's house. 
 What, if I drop a ring, is my servant to take it away?" After refer- 
 ring to the case before Mr. J. Lawrence,(p) the learned judge pro- 
 ceeded, " In the present case, there was no necessity for the prisoner to 
 keep the property till it was advertised ; for as she found it in her 
 master's passage, she should have ascertained whether it was her mas- 
 ter's, at least she should have asked him that question, "(g-) 
 *15 *A singular case occurred at no very distant period, of a conversion 
 
 Conversion with a felonious intent, of a large sum of money found in a bureau, 
 of a Large w hich had been delivered to a carpenter for the purpose of being re- 
 nev with a paired. The point arose in the Court of Chancery upon the following 
 felonious facts. Ann Cartwright died possessed of the bureau, in a secret part 
 which was °^ which s ^ e h a d concealed nine hundred guineas in specie. After her 
 found in a death, Richard Cartwright, her personal representative, lent the bureau 
 Hvered to* "a to n * s Drot h er Henry ; who took it to the East Indies and brought it 
 carpenter back, without the contents of it being discovered. It was then sold to 
 to be re- a p erson named Dick for three guineas, who delivered it to one Green 
 
 paired. r a 
 
 a carpenter, for the purpose of repairing it. Green employed a person 
 named Hillingworth who found out the money. Hillingworth received 
 only a guinea for his trouble ; but, in consequence of his discovery, the 
 whole sum of nine hundred guineas was secreted by Green, by Green's 
 wife, and by one E. Sharpe, and converted to their own use. On these 
 suggestions, Cartwright, the personal representative of the original owner 
 of the bureau, filed a bill of discovery against Green and his wife, and 
 Mrs. Sharpe; in which bill Dick joined, but did not claim any of the 
 money on his own account ; and the defendants demurred to the bill on 
 the ground that an answer to the discovery sought might subject them 
 to criminal punishment. After the argument upon this demurrer, the 
 Lord Chancellor said, that the real question was, whether the bill charged 
 a felony, and that the distinctions upon that point were so extremely 
 nice, that he should not trust himself to say anything upon them until 
 he had seen all the cases, and consulted some of the judges. Some time 
 afterwards his Lordship delivered his opinion and said — " I have looked 
 into the books, and have talked with some of the judges and others; 
 and I have not found in any one person a doubt that this is a felony. 
 To constitute a felony, there must, of necessity, be a felonious taking. 
 Breach of trust will not do. But from all the cases in Hawkins, there 
 is no doubt that this bureau being delivered to Green, for no other pur- 
 pose than to repair, if he broke open any part which it was not neces- 
 sary to touch for the purpose of repair, with an intention to take and 
 
 (p) Ante, note (I) 
 
 (q) Reg v. Kerr, a 8 C. & P. 176, Park, J. A. J. In the first report of the Criminal Law 
 Commissioners it is said, " The intention of a person taking property by finding will be fe- 
 lonious or not according as his conduct in omitting to use due diligence to discover the 
 owner, or in concealing the property, or in other circumstances, shows that in the taking he 
 had or had not a design to deprive the owner altogether of his property." But this po- 
 sition seems open to a considerable doubt, as it entirely omits any reference to the question 
 upon which cases of this kind seem in some instances to have been decided, namely, whether 
 at the time the chattel was found the prisoner knew or had the means of ascertaining to 
 whom it belonged. The case of Merry v. Green, infra, is a strong authority to show that 
 the conduct of the party at the time of the finding, however strongly indicative of a fraudu- 
 lent and felonious intent, is not alone sufficient to make the conversion of the property to 
 his own use a felony. C. S. G. 
 
 a Eng. Com. Law Reps, xxxiii. 341.
 
 CHAP. IX. § I.] TAKING, ETC., ANIMO FURANDI. 15 
 
 appropriate to his own use what he should find, that is a felonious taking, 
 within the principle of all the modern cases ; as not being warranted 
 by the purpose for which it was delivered. If a pocket-book containing 
 bank notes were left in the pocket of a coat sent to be mended, and the 
 tailor took the pocket-book out of the pocket, and the notes out of the 
 pocket-book, there is not the least doubt that it is a felony. So, if the 
 pocket-book was left in a hackney coach, if ten people were in the coach 
 in the course of the day, and the coachman did not know to which of 
 them it belonged, he acquires it by finding it certainly ; but not being 
 entrusted with it for the purpose of opening it, that is felony according 
 to the modern cases. There is a vast number of other cases. Those 
 with whom I have conversed upon this point, who are of very high 
 authority, have no doubt upon it."(r) 
 
 Where a person purchased at public auction, a bureau, in which he *16 
 afterwards discovered in a secret drawer, a purse containing money, Where 
 which he appropriated to his own use, and at the time of *the sale no nion ®y. 
 person knew that the bureau contained anything whatever, it was held t he secret 
 that if the buyer had express notice that the bureau alone, and not its drawer of a 
 contents, if any, was sold to him ; or if he had no reason to believe that was a p pr0 . 
 anything more than the bureau itself was sold, the abstraction of the priated to 
 money was a felonious taking, and he was guilty of larceny in appro- / s ^""^ 
 priating it to his own use : but that if he had reasonable ground for chaser of 
 believing that he bought the bureau with its contents, if any, he had a * h e b |£ ea V> 
 colourable right to the property, and it was not larceny. To trespass the pur- 
 for false imprisonment, the defendants pleaded that the plaintiff" stole a chaser 
 purse containing money, the property of one Tunnicliffe, and that they t h e bureau 
 gave him in charge to a peace officer to be taken before a magistrate to ar >d not its 
 be examined concerning the premises. (s\ At the trial it appeared that weresol( j to 
 at a sale by public auction, in October, the plaintiff purchased at the him, it was 
 sum of 11. 6s. an old secretary or bureau, the property of Tunnicliffe : ^™^ n f f ' ne 
 the plaintiff kept the bureau in his house, and on the 18th of November had reason- 
 following, Garland, a carpenter's apprentice, while doing some repairs ableground 
 at the bureau, remarked to the plaintiff that he thought there were i ng that he 
 some secret drawers in it, and touching a spring he pulled out a drawer, boug k* 
 which contained some writings ; the plaintiff then discovered another bureau and 
 drawer, in which was a purse containing several sovereigns and other its con- 
 coins, and under the purse a quantity of bank notes. Of this property en s ' 
 the plaintiff took possession, and telling Garland that the notes were 
 bad, he opened the purse and gave him one of the sovereigns, at the 
 same time charging him to keep the matter secret. Garland being in- 
 terrogated by his parents how he came in possession of the sovereign, 
 the transaction transpired; and it being subsequently discovered that 
 the plaintiff had appropriated the money to his own use, falsely alleg- 
 ing that he had never had possession of a great portion of it, the de- 
 fendants went with a police officer to the plaintiff's house, took him into 
 custody and conveyed him before a magistrate on a charge of felony, 
 when he was discharged, the magistrate doubting whether a charge of 
 felony could be supported. A witness stated that after the bureau was 
 sold some one of the bystanders observed that the plaintiff might have 
 bought something more than the bureau, as one of the drawers would 
 not open, upon which the auctioneer said, " so much the better for the 
 
 (r) Cartwright v. Green, 8 Vcs. 405. 2 Leach, 052. 
 (s) The replication was de injuria.
 
 1Q OF LARCENY. [BOOK IT. 
 
 buyer ; I have sold it with its contents." The auctioneer, however, 
 stated that there was one drawer which would not open, and that what 
 he said was, " that is of no consequence, I have sold the secretary, but 
 not its contents. " It did not appear that any person knew that the 
 bureau contained anything whatever. Tindal, C. J., told the jury that 
 as the property had been delivered to the plaintiff, as the purchaser, he 
 thought there had been no felonious taking, and left to them the ques- 
 tion of damages only, reserving leave for the defendant to move to enter 
 a nonsuit ; and after argument, and time taken to consider, the following 
 luminous judgment was delivered by Parke, B., " 3Iy lord chief justice 
 thought in this case that, even assuming the facts, of which evidence 
 was given by the defendants to be true, the taking of the purse and ab- 
 stracting its contents was not a larceny, and that is the question which 
 he reserved for the opinion of the Court, giving leave to move to enter 
 *17 a nonsuit. After hearing the argument, *we have come to the conclu- 
 sion that, if the defendant's case was true, there was sufficient evidence 
 of a larceny by the plaintiff; but we cannot direct a nonsuit, because 
 a fact was deposed to on the part of the plaintiff, which ought to have 
 been left to the jury, and which, if believed by them, would have given 
 a colourable right to him to the contents of the secretary, as well as to 
 the secretary itself; viz., the declaration of the auctioneer, that he sold 
 all that the piece of furniture contained, with the article itself; and 
 then the abstraction of the contents could not have been felonious. 
 There must, therefore, be a new trial, and not a nonsuit. But if we 
 assume, as the defendant's case was, that the plaintiff had express notice 
 that he was not to have any title to the contents of the secretary, if 
 there happened to be anything in it ; and, indeed, without such express 
 notice, if he had no ground to believe that he had bought the contents, 
 we are all of opinion that there was evidence to make out a case of lar- 
 ceny. It was contended, that there was a delivery of the secretary, 
 and the money in it to the plaintiff as his own property, which gave 
 him a lawful possession, and that his subsequent misappropriation did 
 not constitute a felony. But it seems to us, that though there was a 
 delivery of the secretary, and a lawful property in it thereby vested in 
 the plaintiff, there was no delivery so as to give a lawful possession of 
 the purse and money. The vendor had no intention to deliver it, nor 
 the vendee to receive it ; both were ignorant of its existence : and when 
 the plaintiff discovered that there was a secret drawer containing the 
 purse and money, it was a simple case of finding, and the law applica- 
 ble to all cases of finding applies to this. The old rule that, • if one 
 lose his goods and another find them, though he convert them animo 
 If the finder furandi to his own use, it is no larceny,'(s) has undergone in more 
 knows the recent times some limitations ; one is, that if the finder knows who the 
 anymark owner of the lost chattel is, or if, from any mark upon it, or the 
 onthechat- circumstances under which it is found, the owner could be reasonably 
 dr'cum- * asceriame ^> then the fraudulent conversion, animo furandi, constitutes 
 stances un- a larceny. (^) Under this head, fall the cases where the finder of a 
 derwhichit pocket-book with bank notes in it, with a name on them, converts them 
 
 is found, r . ' ' 
 
 the owner ammo furandi ; or a hackney coachman, who abstracts the contents of 
 can be rea- a parcel which has been left in his coach by a passenger, whom he could 
 certained easily ascertain ; or a tailor who finds and applies to his own use a 
 
 (s) 3 Inst. 108. (t) Ante, pp. 13 and 14.
 
 CHAP. IX. § I.] TAKING, ETC., ANIMO FURANDI. 17 
 
 pocket-book, in a coat sent to him to repair by a customer whom he the fraudu- 
 must know: all these have been held to be cases of larceny, and the lent . con : 
 
 J ' version is 
 
 present is an instance ot the same kind, and not distinguishable from larceny, 
 them. It is said that the offence cannot be larceny unless the taking 
 would be a trespass, and that is true ; but if the finder from the circum- 
 stances of the case must have known who was the owner, and instead 
 of keeping the chattel for him, means from the first to appropriate it to 
 his own use, he does not acquire it by a rightful title, and the true 
 owner might maintain trespass, and it seem also from Wynne's caseJu) 
 that if, under the *like circumstances he acquire possession, and mean *18 
 to act honestly, but afterwards alter his mind, and open the parcel with 
 intent to embezzle its contents, such unlawful act would render him 
 guilty of larceny. We, therefore, think that the rule must be absolute 
 for a new trial, in order that a question may be submitted to the jury, 
 whether the plaintiff had reason to believe that he bought the contents 
 of the bureau, if any, and consequently had a colour of right to the 
 property, "(v) 
 
 It should seem that in cases of this kind the jury, before they con- Intention 
 vict, ought to be satisfied that the prisoner intended at the time when a !l J£° g'™ e 
 he found the article to convert it to his own use, for if at the time he ing. 
 found the article he took it with the intention of discovering the owner 
 and restoring it to him, and it afterwards came into his mind to convert 
 it to his own use, and he did so, it should seem that it would not be 
 larceny. A coat was left lying on a stone seat by the road side, and 
 was soon afterwards found in the prisoner's possession : Bayley, B., told 
 the jury that in order to the prisoner's being found guilty of larceny, 
 they must be of opinion that at the time the prisoner took the coat he 
 did so animo furandi ; that he might have taken it very honestly, 
 intending, if it was inquired after, to restore it to the owner, or he 
 might have taken it intending to make it his own.(w) 
 
 In cases of this nature, where the taking was by finding, some of the 
 strongest circumstances to rebut the implication that such taking was 
 felonious, will be those which show that the party made it known that 
 he had found the property, so as to make himself responsible for the 
 value, in case he should be called upon by the owner ; or those which 
 show that he endeavoured to discover the true owner, and kept the 
 goods till it might reasonably be supposed that the true owner could 
 not be found. (ww\ 
 
 Where a wife was indicted for stealing, and her husband for receiving 
 a five pound note, and it appeared that the daughter of the prisoners 
 and another little girl, while walking in a street, saw the five pound 
 note on the ground, and the prisoners' daughter picked it up, and gave 
 it to her companion : and the prisoners' daughter on returning home 
 told her mother of the circumstances, who thereupon went to the house 
 where the other girl lived, and said to her, " Where is that note which 
 our Mary picked up ?" and upon its being given to her, she went away 
 with it, and gave it to the husband, who converted it at once into money ; 
 
 {u) Ante, p. 13. This position is at variance with the following case, and with 2 East, P. 
 C, p. 665, and does not seem fairly deducible from Wynne's case, as there the prisoner 
 must have known the box was put in the coach, and as he assisted in taking out the lug- 
 gage, his leaving it behind was evidence of an intention at that time to convert it to his 
 own use. There was no evidence of his intending to restore it, but a statement after he was 
 in custody that he had been the same day to the prosecutor's for the purpose, of the truth 
 of which nothing is stated in the report. C. S. G. (v) Merry v. Green, 7 M. & W. 623. 
 
 (iv) Milburne's case, 1 Lew. 251. (ww) 2 East, P. C. c. 16, s. 99, p. 665.
 
 18 OF LARCENY. [BOOK IV. 
 
 and when inquiry was made for the note, both the prisoners denied all 
 knowledge of the circumstances. Coleridge, J., said, "A man who loses 
 anything, does not thereby lose his property in it, and the finder is bound 
 to restore it to the owner if possible ; and if he keep it when he thinks 
 it is only lost by the owner, it is larceny in him. If the property be 
 found when it is abandoned by the owner, it is his own who finds it. If 
 the property be lost, but not abandoned, and if the finder find it with 
 intent to restore it, but afterwards appropriate it, he does not commit 
 larceny in the Jirst instance. Ignorance of the law cannot excuse any 
 person; but at the same time, when the question is, with what intent a 
 person takes, we cannot help looking into their state of mind, as if a 
 person takes what he believes to be his own, it is impossible to say that 
 he is guilty of felony. The wife might think that she had a right to 
 the note, in consequence of her daughter having picked it up ; and if 
 she acted openly, you must say that she took the note from the other 
 little girl in ignorance of the continuing rights of the owner. It is im- 
 possible almost to think that she supposed the owner to have intention- 
 ally abandoned the note, but yet she might have thought that her daugh- 
 ter having first picked it up, had a right to it, and a right prior to that 
 of the other girl, who first saw it; and thinking so, she might have 
 gone and made the demand for it, as if she had said, < You have Mary's 
 note, give it up.' Under these circumstances she could not be guilty 
 of larceny. But then the conduct of the parties subsequently is to be 
 considered. "(x) In the course of the case, the learned judge also said, 
 " If the circumstances under which property is found be such that the 
 ownership has been abandoned, the thing is bonwm vacans, and any one 
 may take it ; but if the ownership be not abandoned, the thing is not 
 the property of the finder ; if in addition to this, the person who finds 
 it shows no intention to find out the owner, or to return it, that person 
 is guilty of larceny." 
 The felo- Where there is clearly the animus furandi in some of the parties 
 tent may be concerne d m a felonious taking, it may be negatived as to another party, 
 negatived if it appear that such other party had a different object in view from 
 ^ e t0 ° r n t j e ° f that of obtaining any share of the stolen property. J. Donally was in- 
 where it dieted for a burglary in the house of a Mr. Poole, and G-. Vaughan as 
 appears accessory before and after the fact to the "said felony and burglary." 
 object was I* appeared that Donally, at the instigation of Vaughan, who was in 
 toaffeetthe the employment of the police-office at Bow-street, had concerted with 
 s&n'ofthe tliree otlier men > to ro ^ tlie house of Mr. Poole, and it was agreed that 
 others, Vaughan and another officer should lie in wait to apprehend the three 
 haTcon^ 6 other men > and that ttie rewar< * for their conviction should be divided 
 eerted the amongst them. It further appeared that Vaughan had told Mr. Poole 
 c.ommis- that his house would be robbed that night, desiring; him to mark a piece 
 
 .^lon oi the „ . , , - . , , 
 
 felony, ot cloth, and leave it on the counter, to take care to fasten the latch of 
 with a view the door, and to make no resistance, as he should not lose anything ; to 
 which Poole consented, and left the house with Vaughan and the other 
 officer to watch ; which they did in a passage on the opposite side of the 
 street. Mr. Poole's house was robbed by Donally and the three other 
 men ; and the three men who accompanied Donally were almost imme- 
 diately apprehended by Vaughan and Barrett, and had been tried at a 
 *19 former sessions of the Old Bailey *for burglary ; but were convicted 
 (x) Reg. v. Reed, a 1 C. & Mars. 306. 
 a Eng. Com. Law Reps. xli. 170.
 
 CHAP. IX. § I.] TAKING, ETC., ANIMO FURANDI. 19 
 
 only of stealing in the dwelling-house to the amount of 40s. in conse- 
 quence of Mr. Poole's evidence as to it being possible, at the time the 
 robbery was committed, to see a person's face by the light of the day. 
 Upon the present indictment against Donally and Vaughan, the jury 
 acquitted Donally of the burglary, but found him guilty of stealing in 
 the dwelling-house to the value laid in the indictment of bl., and 
 Vaughan as accessory before and after the commission of the said felony 
 and stealing in the dwelling-house. Upon this finding it was objected, 
 that this could not be larceny in Donally, because not done animo 
 fv.ram.di ; and further it was objected on behalf of Vaughan, that as the 
 indictment was against him as accessory to a burglary committed by 
 Donally, and as the jury had acquitted the principal of the burglary, 
 the charge against the accessory must necessarily fail. The learned 
 judge also doubted, with respect to Vaughan whether he could be said 
 to incite or procure Donally to commit an offence where he engaged him 
 to take the part of apparently joining in it, for the purpose of appre- 
 hending the offenders. The case was reserved for the consideration of 
 the judges, and argued before them in Michaelmas Term, 1816. All 
 the learned judges were present, and ten of them, namely, Gibbs, C. J., 
 Macdonald, C. B., Graham, B., Wood, B., Bayley, J., Dallas, J., 
 Richards, B., Park, J., Abbott, J., and Burroughs, J., held the con- 
 viction wrong. They were of opinion, that as Donally was not present 
 to aid or assist, (though the other offender thought he was,) but to 
 detect, and as he had no intent that the felony should be successful, 
 he had not the felonious intention necessary to make him a principal, 
 although he acted from a bad motive, viz., the reward. But several of 
 the judges seemed to think that he was liable to be indicted as an acces- 
 sory before the fact. Lord Ellenborough, and Holroyd, J., thought the 
 conviction right; that although there was a clear intention that the 
 felony should be discovered, yet there was another intention not incon- 
 sistent with the former, viz., that the felony should at all events be 
 committed ; and the presence of Donally did in fact aid and assist and 
 countenance the commission of the felony, (a?) 
 
 Besides the animus furandi, it is necessary that the taking of the The taking 
 goods should also be without the consent of the owner invito domino, of the goods 
 This is of the very essence of the crime of larceny,(y) as it has been ™",7 
 already shown to be essential in one of a similar nature, namely, in domino. 
 robbery.(.) _ > %?*-'* 
 
 This material ingredient in the offence of larceny underwent great Some 
 consideration in a modern case, where the following; circumstances were * me . ves 
 
 . having 
 
 given in evidence against the prisoners, upon an indictment for a bur- planned 
 glary and larceny. It appeared that the prisoners, intending to rob a wlth the f 
 manufactory at Soho, near Birmingham, of which Mr. Boulton was the the owner 
 principal proprietor, applied to a man named Phillips, who was em- t0 steal 
 ployed as servant and watchman to the manufactory, to assist them in g00 ds, the 
 the robbery. Phillips assented to their proposal; but immediately owner 
 afterwards gave information to Mr. Boulton, and told him what was the°plot[ ° f 
 intended, and the manner and time the prisoners were to come : that they directed his 
 were to go into the counting-house, and that he *was to open the door *20 
 
 (x) Rex. v. Donally and Vaughan. Mich. T. 1816. Russ. & Ry. 310. S. C. 2 Marsh. Rep. 
 571. From this decision it became unnecessary to give any opinion upon the objection taken 
 on behalf of the prisoner Vaughan. 
 
 (>j) Fost. 123. ( Z ) Ante, Vol. 1, p. 874.
 
 20 OF LARCENY. [BOOK IV. 
 
 servant to iuto the front yard for them. Mr. Boulton told him to carry on the 
 carry on business, a nd that he would bear him harmless ; and Mr. Boulton also 
 ness,witha consented to his opening the door leading to the front yard, and to his 
 < i«« to the being with the prisoners the whole time. In consequence of this infor- 
 thtMi^'oVs.' mation, Mr. Boulton removed from the counting-house everything but 
 which the 150 o;uineas and some silver ingots, which he marked, in order to fur- 
 ^a'n^i'v ui su evidence against the prisoners ; and laid in wait to take them, when 
 did : and it they should have accomplished their purpose. On the 23d of Decern- 
 was holdenj^ aD0U t one o'clock in the morning, the prisoners came, and Phillips 
 m by the opened the door into the front yard, through which they went along the 
 majority of f ron t of the building, and round into another yard behind it, called the 
 
 tlic iiiciircs * 
 
 but one of middle yard; and from thence they and Phillips went through a door, 
 them which was left open, up a staircase in the centre building, leading to 
 
 the ground the counting-house and rooms where the plated business was carried on : 
 of the own- this door the prisoners bolted, and then broke open the counting-house, 
 and partial which was locked, and the desks, which were also locked : and took 
 encourage- from thence the ingots of silver and guineas. They then went.to the 
 felon t0 b he st0I 7 a ^ ove > mt0 a room where the plated business was carried on, and 
 means' of broke the door open, and took from thence a quantity of silver, and re- 
 his servant. t ur ned down stairs ; when one of them unbolted the door at the bottom 
 of the stairs which had been bolted on their going in, and went into the 
 middle yard, where all (except one who escaped,) were taken by the 
 persons placed to watch them. On this case two points were made for 
 the prisoners ; one, which has been noticed in a former chapter, that the 
 offence did not amount to burglary, and which was decided in favour of 
 the prisoners ;{a\ the other that no felony was proved, as the whole was 
 done with the knowledge and assent of Mr. Boulton, and that the acts 
 of Phillips were his acts. The prisoners having been convicted, the 
 case was argued before the twelve judges, a majority of whom held that 
 the prisoners were guilty of the larceny : for that, although Mr. Boul- 
 ton had permitted, or suffered, the meditated offence to be committed, 
 he had not done anything originally to induce it; that his object being 
 to detect the prisoners, he only gave them a greater facility to commit 
 the larceny than they otherwise might have had; and that this could no 
 more be considered as an assent than if a man, knowing of the intent of 
 thieves to break into his house, were not to secure it with the usual 
 number of bolts. They thought also that there was no distinguishing 
 between the degrees of facility a thief might have given to him ; that 
 Mr. Boulton never meant that the prisoners should take away his pro- 
 perty, and the circumstances of the design originating with the prison- 
 ers, and Mr. Boulton's taking no step to facilitate or induce the'offence, 
 until after it had been thought of, and resolved on by them, formed, in 
 the opinion of some of the judges, a very considerable ingredient in the 
 case, and differed greatly from what it might have been, if he had em- 
 ployed his servant to suggest the perpetation of the offence originally 
 to the prisoners. But Lawrence, J., before whom the prisoners were 
 tried, doubted whether it could be said to be done invito domino, when 
 the owner had directed his servant to carry on the business, and meant 
 that the prisoners should be encouraged by the presence of that ser- 
 vant ; and that by his assistance they should take the goods, so as to 
 
 (a) Ante, Vol. 1, Chap, on Breaking, §e., within the Curtilage, p. 863.
 
 CHAP. IX. § I.] TAKING, ETC., ANIMO FURANDI. *21 
 
 make a complete *felony; though he did not mean that they should 
 
 carry them away.(&)f 
 
 Upon some of the doctrines relating to the felonious taking, &c, Cases 
 
 which have been already mentioned, points of considerable difficulty ™ h « re the 
 
 i i n t_ • ■ ■ taking is by 
 
 will sometimes occur; but by tar the most nice and intricate questions the delive- 
 
 arise upon the class of cases which are now to be considered, namely, r y> or S c °n- 
 
 those in which it appears that the goods were taken by the delivery or owner or 
 
 consent of the owner, or of some one having authority to deliver them, ofsomeper- 
 
 The material ingredients in the definition of larceny, already spoken au"thorUy DS 
 
 of, must still be kept in mind ; particularly that of the animus furandi, to deliver 
 
 and the doctrine that the goods must be taken invito domino. goods. 
 
 It, may, in the first place, be observed with respect to these cases, Delivery 
 where the goods are obtained by delivery, that if it appear that, although where 
 there is a delivery by the owner in fact, yet there is clearly no change change of 
 of property nor of legal possession, but the legal possession still remains property, 
 exclusively in the owner, larceny may be committed exactly as if no possession, 
 such delivery had been made. 
 
 Thus, if a person, to whom goods are delivered, has only the bare Cases 
 charge, or custody, of them, and the legal possession remains in the where 
 owner, such person may commit larceny, by a fraudulent conversion of i, are 
 the goods to his own use.(c) A doctrine which directly applies to the cnar g° or 
 case of servants entrusted with the care of goods in the possession of^"g^ a f u f 
 their masters, as will be shown more fully, when larcenies by servants only of the 
 are treated of in a subsequent chapter. And larceny may be commit- S oods ' 
 ted also in a like manner by a person who has a bare special use of 
 goods. Thus, a man may be guilty of larceny in taking a piece of 
 plate, set before him to drink in a tavern ; for he has only a liberty to 
 use, not a possession by delivery. [d\ So larceny may be committed by 
 a person who is employed for hire to drive cattle to a fair or market, as 
 in such case the owner parts only with the custody and not with the 
 possession. (A So if a weaver, or silk throwster, deliver yarn, or silk, 
 to be wrought by journeymen, in his house, and they carry it away 
 with intent to steal it, this is felony ; the entire property remaining 
 there in the owner, and the possession of the workmen being the pos- 
 session of the owner. (f\ But it would not be felony if the yarn had 
 been delivered to a weaver out of the house, who, having thus the law- 
 ful possession of it, had afterwards embezzled it ; because by the deli- 
 very he had a special property, and not a bare charge ; in the same 
 manner as one who is entrusted with the care of a thing for another to 
 keep for his use.(</) 
 
 So also where a horse was delivered by the prosecutor to the prisoner 
 to be agisted at a certain sum per week, and in the second week the 
 prisoner sold the horse as his own, it was held, upon a case reserved, 
 
 (b) Rex v. Egginton and others, 2 Leach, 913. 2 East, P. C. c. 16, s. 101, p. 666. 
 
 (c) 1 Hale, 505, 506. 1 Hawk, P. C. c. 33, s. 6. 2 East, P. C. c. 16, s. 109, p. 682. 
 
 (d) 1 Hale, 506. 
 
 (c) Hex v. M'Namee, R. & M. C. C. R. 368. See this case more fully stated, post, tit. Lar- 
 e< ny by Servants. 
 
 (./') Anon. Old Bailey, 1664. Kel. 35. 2 East, P. C. c. 16, s. 109, p. 682. 
 {ff) 2 East, P. C. c. 16, s. 109, p. 682, 683. 1 Hawk. P. C. c. 33, s. 2. 
 
 f [The distinction is between the owner's procuring his property to he taken ; and his 
 merely leaving it in the power of the defendant to execute his own original purpose of 
 taking it ; and in the latter case the taking is to be regarded as invito domino. The Staler. 
 Covington, 2 Bailey, 569.]
 
 21 OF LARCENY. [BOOK IV. 
 
 that inasmuch as the prosecutor had parted with the possession, it did 
 not amount to larceny. (A) So where a drover of cattle was employed 
 *22 to drive eight oxen to London, and his instructions were, that if he 
 could sell them on the road he might ; and those he did not sell on the 
 road, he was to take to a particular salesman in Smithfield, who was to 
 sell them : and the drover sold two on the road, and instead of taking 
 the others to the salesman, drove them to Smithfield, and sold them 
 there, and converted the money to his own use ; it was held that this 
 was not larceny. f{\ 
 Where the It is stated that in general, where the delivery of goods is made for 
 delivery is a cer t a ; n special and particular purpose, the possession is still supposed 
 certain spe- to reside, unparted with, in the first proprietor. (_/)•}- And that if a 
 cial pur- watchmaker steal a watch, delivered him to clean ; or if a person steals 
 clothes, delivered for the purpose of being washed ; or goods in a chest, 
 delivered, with the key, for safe custody ; or guineas, delivered for the 
 purpose of being changed into half-guineas ; or a watch, delivered for 
 the purpose of being pawned ; in all these instances the goods taken 
 have been thought to remain in the possession of the proprietor, and 
 the taking of them away held to be felony. (k\ But, unless in these 
 cases the privity of contract, under which the goods were delivered, 
 appeared, by some means, to have been determined (of which more will 
 be said hereafter,) it seems difficult to see how they are distinguishable, 
 some of them at least, from the cases of a goldsmith, to whom plate is 
 delivered to work or to weigh ; a tailor, to whom cloth is delivered that 
 he may make clothes with it ; and a friend, who is entrusted with pro- 
 perty to keep for the owner's use ; in which cases an embezzlement, or 
 conversion of the goods, by the party to whom they are delivered, has 
 been said not to amount to felony. (A In these latter cases, as well as 
 in the former, the delivery of the goods is made only for a special pur- 
 pose ; yet it seems that the possession of them has not been considered 
 as remaining with the owner, but as having passed to the party by a 
 lawful delivery without fraud, and, therefore, not the subject of a sub- 
 
 (h) Rex v. Smith, R. & M. C. C. R. 473. 
 
 (i) Reg. v. Goodbody, a 8 C. & P. 665, Littledale, J., and Barke, B. See this case more 
 fully, post, tit. Larceny by Servants, 
 (j) 1 Hawk. P. C. c. 33. s. 9. 
 
 (k) 1 Hawk. P. C. c. 33, s. 10, and the various cases there cited. 
 (I) 1 Hawk. P. C. 33, s. 2. 2 East, P. C. c. 16, s. 113, p. 693. 
 
 f [If the owner of goods parts with the possession for a particular purpose, and the per- 
 son who receives the possession avowedly for that purpose, has a fraudulent intention to 
 make use of the possession, as the means of converting the goods to his own use, and does 
 so convert them, it is larceny. Lewis v. The Commonwealth, 15 S. & R. 93. 
 
 But if the owner intends to part with the property, and delivers possession absolutely, 
 and the purchaser receives the goods for the purpose of doing with them what he pleases. 
 it is not larceny, although fraudulent means may have been used to induce him to part with 
 them. lb. 
 
 Although every larceny includes a trespass, and cannot exist unless there has been a taking 
 from the possession of another, yet when one having only the care, charge, or custody of 
 property for the owner, converts it animo furandi, it is larceny; the possession in judgment 
 of law remaining in the owner until the conversion. The People v. Call, 1 Denio, 120. So 
 where the holder of a promissory note having received a partial payment from the prisoner, 
 who was the maker, handed it to him to indorse the payment, who took it away and re- 
 fused to give it up, held, that the possession remained in the owner, the prisoner acquiring 
 only a temporary charge or custody for the special purpose ; and that in subsequent con- 
 version, the jury having found it felonious, was larceny. Ibid. In such a case it is not 
 essential that a felonious intent should exist when the prisoner received the note. It is 
 enough if he converted it animo furandi. Ibid.] 
 
 a Eng. Com. Law Reps, xxxiv. 575.
 
 CHAP. IX. § I.] WHERE THE PROPERTY IS PARTED WITH. 22 
 
 sequent felonious conversion. The distinction, indeed, between a bare 
 charge, or special use of goods, and a general bailment of them, seems 
 to be sufficiently intelligible ; and it seems consistent with principle 
 that, in the former case, the legal possession should be considered as 
 remaining in the owner ; and, in the latter, as having passed to the 
 bailee ; and that, therefore, in the former case larceny may be commit- 
 ted of them by the person to whom they have been delivered, and that 
 in the latter it may not, unless there be a determination of the privity 
 of the contract : but it is in the application of this doctrine to particu- 
 lar cases, that the distinctions seem to become obscure, (m) 
 
 In a case where a prisoner was a lodger, and his landlady, wanting Campbell's 
 change for a bank-note, sent it, by her servant, to the prisoner up stairs, ? ase ,\ A 
 begging that he would give her change for it; when the prisoner after sends her 
 examining his purse, said that he had not gold enough about him for ' servant t0 a 
 the purpose, but that he would immediately go to his bankers, and get the a bank- 
 note changed ; upon which he left the house, with the bank note in his note > . re - 
 hand, and never returned; the prisoner ^appears to have been convict- hhnYo^ 
 ed without any question having been made as to the offence amounting change it, 
 to larceny, (mm) But, in this case it probably might have been con- a^av^t^ 
 sidered that the landlady did not intend to part with the note without it. 
 first receiving the change ; and if so, that the servant delivered the note , Hcld to fee 
 
 • -i • /*i • larceny. 
 
 to the prisoner without the authority of her mistress, and, therefore, *23 
 that no legal possession of it ever passed to the prisoner ; and that in 
 taking it he was guilty of a trespass. (n\ 
 
 If the owner of goods employ a person, not in his service, to take If the own- 
 them to a customer and show them him and bring them back again, erof , goods 
 
 . . li i employ a 
 
 without authorizing him to sell them to the customer, or to leave them person to 
 with him, and he sell them instead of taking them to the customer, he ta ^ c t , hem 
 is guilty of larceny ; but in such case, if he was either authorized to to another, 
 sell them to the customer, or to leave them with him, he is not guilty ^ithout _ 
 of larceny. The prosecutor desired the prisoner to take his horse and any^auth™ 
 cart and show some pigs to a lady; and to return in a quarter of an rity to sell 
 hour. He told the prisoner what was to be the price of each of the pigs, a " rt t ^ m n * 
 if the lady should take a fancy to them, but he was not to sell them, to his own 
 only to see if they were the right size for the lady ; he was not trusted ? se ' 2t 1S 
 to sell them and receive the money ; he was to bring the pigs back in 
 a quarter of an hour whether she liked them or not; the prisoner sold 
 the pigs, and did not take them to the lady : it was urged that the 
 prisoner could not be convicted of larceny unless he was not in the 
 situation of a bailee, or he intended from the beginning to steal the 
 pigs. Alderson, B., told the jury, " That the first question is whether 
 the prisoner had a felonious intent from the commencement of the 
 transaction : and the second whether he received the pigs as bailee to deal 
 with them, or only as a servant having the custody of them, and whose 
 duty it was to bring them back. If the prosecutor meant that the 
 
 (m) See more upon the cases which relate to a delivery and privity of contract de- 
 termined in a subsequent part of this chapter. And upon those which relate to a bare 
 charge of the goods or & possession of them delivered over, post, sec. 3, in which the special 
 property sufficient to constitute an ownership of the goods taken is considered; and also, 
 post, Chap. On Larceny by Servants. 
 
 {mm) Campbell's case, 2 Leach, 5G4. There was a question raised in the case as of the 
 offence amounting to a stealing in the dwelling-house (within the statutes 12 Anne, c. 7), 
 which was noticed, ante, 856, Vol. 1. 
 
 (n) By Scarlett, arguendo, in Walsh's case. 2 Leach, 1079. 
 
 Vol. ii.— 3
 
 23 
 
 OF LARCENY. 
 
 [BOOK IV 
 
 Delivery 
 
 win- re the 
 ■ i n . 
 
 remains 
 present. 
 
 *24 
 
 prisoner should leave the pigs with the lady, and either hring hack the 
 money or make a bargain for the sale of them, then he will be in the 
 situation of a bailee. The question is whether they were delivered to 
 the prisoner simply that he should show them to the lady, and bring 
 them back bodily ; if they were, then if the felonious intent came upon 
 him at that time it would come upon him at the time when he had only 
 the custody and not the possession, and in that case he would be guilty 
 of stealing."^) 
 
 It has been suggested as worthy of consideration whether the distinc- 
 tion concerning the legal possession remaining in the owner, after a de- 
 livery in fact to another, do not extend to all cases where the thing, so 
 delivered for a special purpose, is intended to remain in the presence 
 of the owner. And it is well advanced in support of the observation, 
 that in cases of this kind the owner cannot be said to give any credit to, 
 or repose confidence in, the party in whose hands it is so, in fact, 
 placed ; and that the thing intended to be returned to the owner again, 
 and resumable by him every moment, his dominion over it is as perfect 
 as before ; and the person to whom it is so delivered, has, at most, no 
 more than a bare limited use, or *charge, and not the legal possession 
 of it.(p) And though the case of a person going into a shop, under 
 pretence of buying goods, and upon their being delivered to him to look 
 at, running away with them ; and also that of a person going into a 
 market, and obtaining a horse for the purpose of trying its paces, and 
 then riding away with it, have been considered as felonies, on the 
 ground of a preconcerted design to steal the chattels ;(g-) yet they ap- 
 pear also to be sustainable on the ground that the legal possession of 
 such chattels still remained in the owner of the goods, notwithstanding 
 the delivery, he continuing present. [r\ 
 
 Upon the same principle, also, of there being but a bare charge or 
 special use, it has been holden that if the clerk to a banker or merchant 
 have the care of money, or if he have access to it for special and par- 
 ticular purposes, and be sent to the bag or drawer for money, for the 
 purpose of paying a bill, or if he be sent for the purpose of bringing 
 money generally out of the bag or drawer, and at the time he brings 
 such money he clandestinely and secretly takes out other money for his 
 own use, he is as much guilty of a felony as if he had no care of the 
 money, or access whatsoever to the bag or drawer, (s) 
 
 It may be further observed, as clearing the ground of inquiry con- 
 cerning these cases of a delivery of the goods by the owner, that it is 
 a settled and well established principle, that if the owner part with the 
 property in the goods taken, there can be no felony in the taking, how- 
 ever fraudulent the means by which such delivery was procured. {t\\ 
 
 I o ; Reg. v. Harvey, 9 C. & P. 353, Alderson, B. (p) 2 East, P. C. c. 16, s. 115, p. 683. 
 [q] 1 Hawk. P. C. c. 33, s. 14, 15. Kel. 82. 2 East, P. C. c. 16, s. 106, p. 507. 
 - / | (hisser's case, T. Raym. 275, 276. 2 East, P. C. c. 16, s. 110, p. 683, 684: in which 
 i Lted authority see also the argument in support of this doctrine. 
 
 s) Murray's case, O. B. 1784. 1 Hawk. P. C. c. 33, s. 7. 2 East, P. C. c. 16, s. 109, p. 
 683. 1 Leach, 344. (t) 2 East, P. C. c. 16, s. 102, p. 668, s. 103, p. 969, s. 113, p. 693. 
 
 f [An indictment for larceny will not lie if it appears that the articles alleged to be stolen 
 have been transferred so as to create any trust right or property by any consideration, ex- 
 or implied, or agreement. And this is a question to be considered by the jurv. 
 Wilson x. The State, 1 Porter, 118. 
 
 pretence or artifices to obtain another's property by one entertaining a felonious design 
 nake larceny, provided it does not appear that a temporary trust or possession was ox- 
 tended to the party. 
 
 Delivery 
 where the 
 
 ownerparts 
 with the 
 property in 
 the goods 
 taken.
 
 CHAP. IX. § I.] WHERE THE PROPERTY IS PARTED WITH. 24 
 
 The following are some of the cases in which it has been holden that 
 the owner had parted with the property in the goods, by his delivery of 
 them to the prisoner. 
 
 Upon an indictment for horse-stealing, it appeared that the prosecutor Harvey's 
 was at a fair, having a horse there, in the care of a servant, which he ca . se - The 
 intended to sell, when he was met by the prisoner, to whom he was per- ro de away 
 sonally known, and who said to him, " I hear you have a horse to sell ; with a 
 I think he will suit my purpose ; and if you will let me have him a a °f a i r lf te ,. 
 bargain I will buy him." The prisoner and the prosecutor then walked *'< '««» *old 
 together into the fair, towards the horse, and upon a view of him, the l^th™* 
 prosecutor said to the prisoner, " You shall have the horse for eight paying the 
 pounds ;" and calling to his servant, he ordered him to deliver the P urchase 
 
 D10D6V 
 
 horse to the prisoner. The prisoner immediately mounted the horse, 
 saying to the prosecutor that he would return immediately and pay him. 
 The prosecutor replied " Very well." The prisoner rode away with the 
 horse, and never returned. Upon these facts the learned judge, by 
 whom the prisoner was tried, directed an acquittal, on the ground that 
 there was a complete contract of sale and delivery, and that the property, 
 as well as the possession, was entirely parted with.(«) 
 
 In another case, the indictment against the prisoner was for ^stealing *25 
 a piece of silk of the value of ten pounds, the goods of Thomas Wilson. Parkes's 
 Mr. Wilson was a silk manufacturer, in the neighbourhood of Cheap- case - 
 side ; and it was proved that the prisoner had called at his warehouse, soner^with 
 and, after looking at several pieces of silk, had selected the one in ques- a fraudu- 
 tion, agreed for the price of it, and said that his name was John Wil- ^"o^tain"* 
 liams, that he lived at No. 6, Arabella-row, in Pimlico, and that if Mr. goods, 
 Wilson would send it there at six o'clock in the afternoon, with a bill J"3 a 
 and receipt, he would pay him for it. Mr. Wilson, accordingly, entered to send him 
 the piece of silk in his day-book, to the debit of the prisoner, made out some > t0 be 
 a bill of parcels for it in his name, and sent his shopman with it to the delivery ■ 
 place, and at the hour appointed. The shopman met the prisoner near aml > u P on 
 Arabella-row, and accompanied him to No. 6, where he went with being°sent 
 him into a room, and delivered to him the bill of parcels, which he ex- according- 
 amined; and after saying it was right, gave the shopman two bills of g ^^ the 
 10?. each, drawn by Frith and Co. at Bradford, on Taylor and Co. in who 
 London. The amount of the silk was only VM. 10s. ; and the shopman th™" 8 rn, 
 stated that he had not sufficient cash about him to pay the difference which were 
 between that sum and the amount of the two bills ; upon which the me l" e fabri " 
 prisoner said that is was immaterial, that he should want more goods, and of no 
 and that he would call on the ensuing day at his master's, to look outy alue ; and 
 other goods, and take the change. Upon this the shopman left the en^t to be 
 
 (u) Harvey's case, Chelmsford Sura. Ass. 1787, cor. Gould, J. 1 Leach, 457. 2 East, P. 
 C. c. 16, s. 103, p. 669. 
 
 Several of the English cases hold that, though goods be obtained by false pretences and with 
 a design ab initio not to pay for them, yet being delivered by the owner with an intention to sell 
 them, the pretended purchaser is not guilty of larceny. This distinction was followed in Nourey 
 v. Walsh, (8 Cowen, 238,) and must be adhered to. No doubt such a sale is a nullitj' ; that 
 it involves the moral guilt of larceny ; and that it is difficult to distinguish it in principle from 
 larceny. Were the question, therefore, res-nova in this court, I for one would follow the de- 
 cision in Rex v. Campbell, (1 Mood. Cr. Cas. 179.) The decisions are however, the other 
 way, even in England, with the single exception of that case ; and they have long been fol- 
 lowed here. Per Cowen, J., in Ross v. The People, 5 Hill, 294. See Carey v. Hotniling, 1 
 Hill, 311, 315. Where one obtains possession of goods by false representations, intending 
 to convert them to his own use, and afterwards does convert them entirely or partially, the 
 owner not having parted with the right of property, it is larceny. The State v. Lindenthall, 
 5 Richardson, 237.]
 
 •25 OF LARCENY. [BOOK IV 
 
 larceny, on goods, and returned home with the bills. The prisoner never came 
 
 the ground • t ^j r -\yi\ sori ' s warehouse, the bills, upon being presented at 
 that the ser- >~ ' . \ *? x . 
 
 vantp«rted Taylor and Co. s turned out to be mere fabrications 5 and on inquiry at 
 
 with the ^ _ q^ Arabella-row, it appeared that the prisoner had only bargained 
 p*ting for the lodgings the same morning, and that he absconded with the goods 
 such pay- j u :l f ew minutes after Mr. Wilson's shopman had left the house. It 
 offered* " '* was a ^ s0 P r °ved that within a month after the goods had been so obtained 
 though his by the prisoner, the entry that had been made in the day-book was 
 iili' iiitunl copied into the journal, and from thence posted regularly into the 
 to give the ledger, in the usual way where goods were not paid for immediately ; 
 prisoner an( j ^ na ^. ^ e p r i soner still stood debited in the ledger for the amount. 
 It was objected, upon these facts, by the counsel for the prisoner, that 
 there was a sale of goods to him, and such a delivery as would change 
 the property. Upon which the learned judge, by whom the prisoner 
 was tried, left it to the jury to consider whether there was not, in the 
 mind of the prisoner, at the very beginning of this transaction, an 
 intention and premeditated plan to obtain the goods without paying for 
 them ; and also whether this was a sale by Mr. Wilson, and a delivery 
 of the goods, with intent to part with the property, he having received 
 bad bills in payment for them, through the medium of his shopman. 
 The jury were of opinion that the prisoner, from first to last, intended 
 to defraud Mr. Wilson ; and that it was not Mr. Wilson's intention to 
 give him credit : and they found him guilty. But the case being after- 
 wards submitted to consideration of the judges, they were of opinion 
 that the conviction was wrong ; for that Mr. Wilson had parted with the 
 property as well as the possession, upon receiving that which was 
 accepted by his servant as payment, although the bills turned out after- 
 wards to be of no value. {y\ 
 
 Upon an indictment against Nicholson, Jones, and Chappel, for 
 *26 *stealingabank post bill for twenty pounds, another for fifteen pounds, 
 Nichol- an( j a ] so seven guineas, the property of William Cartwright, the follow- 
 The prose'- i Q g were the material facts given in evidence. Nicholson introduced 
 eutor hav- himself to the prosecutor, who was a pensioner in the Charter-house, 
 inveigled by coming to his apartments at that place, and pretending to inquire as 
 by sharpers to the rules of the charity. He had not before that time any sort of 
 them 1 and acquaintance with the prosecutor, but he succeeded in getting him to 
 suffered by enter into conversation, and to produce the rules of the charity from his 
 • be t mto fi wl ? desk, which gave Nicholson an opportunity of seeing that the prosecutor 
 instance, had some money. Nicholson then proposed to the prosecutor that they 
 was after- s h ou ]d take a walk together, which they did, and went to a public- 
 strippedof house, where they were joined by the prisoner Chappel. Some liquor 
 a large sum wa s called for, when the other prisoner, Jones, came into the room, and 
 bet "and a sa id that he had just come from Coventry, for the purpose of receiving 
 the whole a large legacy, and produced a quantity of papers, like bank notes ; 
 wm found* u P on w ^^ c ^ Chappel said to him, " Aye, I see it is good, but I imagine 
 by the jury you think nobody, in company, has got any money but yourself;" to 
 to have w hieh Jones answered, " I will lay ten pounds that neither of you show 
 concerted forty pounds in three hours." Immediately on this bet being proposal . 
 scheme to t ne parties left the room ; and Nicholson and Chappel both asked the 
 secutor's' " prosecutor if he could show forty pounds, to which he answered, that 
 
 (v) Parke ; s case, 0. B. 1794. 2 East. P. C. c. 10, s. 103, p. 671, cor. Maedonald, C. B. 
 2 Leach, 614. Rex v. Small, a 8 C. & P. 46. 'Post, 40. {8 Cowen, 242, S. P.} 
 a Eng. Com. Lav,- Reps, xxxiv. 286.
 
 CHAP. IX. § I.] AVHERE THE PROPERTY IS PARTED WITH. 2G 
 
 he believed he could. Nicholson then accompanied the prosecutor to money; but 
 his room, at the Charter-house, where the prosecutor took out of his J 1 w . as 
 
 ,.,,.. r holden not 
 
 desk the two post bills in question, and five guineas, and afterwards to be a felo- 
 took out two more guineas, upon Nicholson advising him to take a nious tak - 
 
 i .1 .1 i i it ln g> as the 
 
 guinea or two more: .and they then went together to another public prosecutor 
 house, called the Spotted Horse, where Chappel had previously said, on parted with 
 their leaving the first public house, that he should go ; and where they t j^hTs*' 
 found both Jones and Chappel in a back room. Jones put down a money, 
 paper, apparently a 10?. note, for each who could show forty pounds, j^^tha" it 
 upon which the prosecutor showed his forty pounds, in the post bills had been 
 and guineas, by laying them down on the table, but did not recollect fairl y wou - 
 whether he took up the 10?. paper, which was given to him upon his 
 being allowed to have won his wager. The prisoner, Jones, then pro- 
 ceeded to write four letters with chalk on the table ; after which he 
 went to the end of the room, turned his back, and said that he would 
 bet them a guinea each that he would name auother letter which should 
 be made, and a basin put over it. Another letter was, accordingly, 
 made, and covered with a basin. Jones named a letter, but not the 
 right one; by which the others won a guinea each. Nicholson and 
 Chappel then said, " He is sure to lose ; we may as well make it more, 
 as we are sure to win ; we may as well ease him of his money ; he has 
 more than he knows what to do with." The prosecutor was so worked 
 up with the hope of gain, that he at length, after various sums being 
 proposed, staked his two post bills and the seven guineas ; after which 
 Jones named a letter and guessed right; and then went to the table, 
 swept off the bills and money, and went to the door of the room ; the 
 other prisoners sitting still, and the prosecutor making no objection, 
 conceiving that he had fairly lost the money to Jones. It happened 
 that just at this time some police officers came to the house, who upon 
 seeing Jones, ran hastily towards the door, seized him, and brought 
 him back into the room ; *and, upon perceiving, from the chalks upon *£7 
 the table, what had been going on, took the whole party into custody. 
 Upon searching the prisoners, about eight guineas in cash were found 
 upon them, and a great number of flash notes, but no real ones : and it 
 was afterwards found that a lump of paper, which was put into the 
 prosecutor's hands by Jones when the officers came in, contained the two 
 post bills belonging to the prosecutor. The prosecutor said, upon his 
 cross-examination, that he did not know whether the paper which was 
 given to him by Jones, on his showing forty pounds, was a real ten 
 pound note or not; that he intended to gamble; that, having won the 
 first wager, he should, if the transaction had ended there, have kept 
 the guinea, that he did not object to Jones taking his forty-two pounds 
 seven shillings when he lost ; and that, if Jones had guessed wrong the 
 second time, he expected to receive from him forty-two pounds seven 
 shillings, the amount of the stake. Upon this evidence it was con- 
 tended, on behalf of the prisoners, that this was a mere gaming trans- 
 action, or, at most, only a cheat, and not a felony; and the court left it 
 to the jury to consider, whether this were a gaming transaction, or 
 whether it were a preconcerted scheme by the prisoners, or any of them, 
 to get from the prosecutor the post bills and cash. The jury were of 
 opinion, that it was a preconcerted scheme in all the prisoners to get 
 from the prosecutor his post bills and cash; and they found them guilty. 
 But, upon the case beirjg submitted to the consideration of the twelve
 
 27 OF LARCENY. [BOOK IV. 
 
 judges, they all of them held the conviction wrong; on the ground 
 that in this case the property in the post bills and cash was parted 
 with by the prosecutor, under the idea that it had been fairly won.(z/j) 
 Coleman's I* appears from another case not to make any difference, where the 
 ease. The credit may have been obtained by fraudulently using the name of an- 
 waT "roil otner person, to whom in fact the credit was intended to be given, if 
 though the the delivery of the goods were made by the owner or any other having 
 name ol ^ e disposing power for that purpose. Thus, where the prisoner went 
 person be to a tradesman's house, and said she came from a Mrs. Cook, a neigh- 
 used to bour, who would be much obliged if he would let her have half a 
 delivery by guinea's worth of silver, and that she would send the half guinea pre- 
 the owner, gently, and thereby obtained the silver, it was holden not to be a 
 wheresa- felony.(cc) And it has been observed with respect to this case, that in 
 vcr was so truth it was a loan of the silver, upon the faith that the amount would 
 ^huMen De repaid at another time; that it was money obtained on a false pre- 
 not to be tence ; and that the same determination had been made in similar cases 
 fclon * y - at the Old Bailey. (y) 
 
 Adams's The prisoner was indicted for stealing a hat, which was stated in one 
 
 ^ e - count to be the property of Robert Beer, and in another of John Paul. 
 
 hat was The substance of the evidence was, that the prisoner bought a hat of 
 obtained Robert Beer, a hat maker, at Ilminster; that soon afterwards he called 
 pretences^ 6 for it, when he was told that it would be got ready for him in half an 
 by which hour, but that he could not have it without paying for it. While he 
 wa^ndu- was * n tne sno P> Beer showed him a hat which he had made *for one 
 eed to part John Paul, upon which the prisoner said, that he lived next door to 
 with the ki m an( j kg tQen as jj e( j w hen Paul was to come for his hat, and was 
 
 "property, ' 
 
 *9g told he was to come that afternoon in half an hour or an hour. The 
 prisoner then went away, saying, he would send his brother's wife for 
 his own hat. Soon after he went away, he met a boy, whom (though 
 he did not know him) he asked if he was going to Ilminster; and, upon 
 the boy saying that he was going thither, he asked if he knew Robert 
 Beer, and said that John Paul had sent him to Beer's for his hat, but 
 that as he owed Beer for a hat himself, which he had not money to pay 
 for, he did not like to go. And he then asked the boy (to whom he 
 had promised something for his trouble) to take the message from Paul, 
 and bring Paul's hat to him (the prisoner.) He further told the boy 
 not to go into Beer's shop, in case Paul (whom he described by his per- 
 son and a peculiarity of dress) should happen to be there. The pri- 
 soner then accompanied the boy part of the way, after which the boy 
 proceeded alone to Beer's, delivered his message, and received the hat ; 
 which, after carrying it part of the way for the prisoner, by his desire, 
 the prisoner received from him, and said he would take it himself to 
 Paul. Upon the fraud being discovered shortly afterwards, the pri- 
 soner was apprehended with the hat in his possession. It was objected 
 on the part of the prisoner, that these facts did not establish a case of 
 larceny : and that the indictment should have been upon the statute for 
 obtaining goods by false pretences. And the jury having found the 
 prisoner guilty, the question was reserved for the opinion of the judges, 
 
 (w) Rex v. Nicholson, Jones, and Chappel, cor. Macdonald, C. B., Old Bailey, 1694. 2 Leach, 
 610. 2 East, P. C. c. 16, s. 103, p. 669. The result would have been different if the posses- 
 sion only had been parted with, Rex v. Robson,^o«£, p. 45. 
 
 (z) Rex v. Coleman, 0. B. 1786, 2 East, P. C. c, 16, s. 104, p. 672. 1 Leach, 303, note (a). 
 
 \y) 2 East, P. C. c. 16, s. 104, p. 673.
 
 CHAP. IX. § I.] WHERE THE PROPERTY IS PARTED WITH. %% 
 
 who decided that the offence did not amount to a felony : the owner 
 having parted with his property in the hat.(z) 
 
 The correct distinction in cases of this description seems to be that The correct 
 if by means of any trick or artifice the owner of property is induced to -j. 1 ;? 1 .",' ■! ■ f 'l" > 
 part with the possession only, still meaning to retain the right of pro- owner parti 
 
 perty, the taking; by such means will amount to larceny ; but if the with the 
 
 ■ • . possession 
 
 owner part with, not only the possession of the goods, but the right of nly mean- 
 property in them also, the offence of the party obtaining them will not in S to re- 
 be larceny, but the offence of obtaining goods by false pretences. One r j*" nt '/[• 
 Davenport was indicted for stealing two silver cream ewers ; he had property, 
 formerly been servant to a gentleman, who dealt with the prosecutor, * he offeni .' 
 and after he left his service he called at the prosecutor's shop, and said but if the 
 
 his master (meaning; the gentleman whose service he had left") wanted owner P art 
 
 ., ^ i-ii i • ' not orj iy 
 
 a silver cream ewer, desired the prosecutor to give it to him, and to put with the 
 
 it down to his master's account : the prosecutor gave him two ewers, possession. 
 
 in order that his master might select that which he liked best; he took r ig nt f 
 
 both and sold them; the prosecutor stated that he did not charge his property, 
 
 customer with these ewers, nor did he intend to charge him with either, 1^™ 
 
 until he had ascertained which he would have chosen ; it was held that 
 
 as the prosecutor had parted with the possession only, and not the right 
 
 of property, the offence was larceny; but if he had sent but one ewer, 
 
 and charged the customer with it, it would have been otherwise, (a) So 
 
 where a prisoner went to a shop and said that Mrs. Downing wanted 
 
 some shawls to *look at, and the prosecutor gave her five shawls, and *29 
 
 she pawned two of them the same evening, and the others were found 
 
 in her lodgings, it was admitted by the learned judge who tried the 
 
 case, that as the property in the shawls would continue in the prosecutor 
 
 until the selection was made, it was larceny if Mrs. Downing did not 
 
 send for them. (6) 
 
 If a pawnbroker's servant, who has a general authority from his If a pawn- 
 master to act in his business, delivers up a pledge to the pawner, onr™ . s 
 receiving a parcel from the pawner, which he supposes contains valu- having a 
 ables, which he has just seen in the pawner's possession, the receipt of S en e r al 
 the pledges by the pawner is not larceny. Upon an indictment for deliver up 
 stealing a diamond brooch and various other articles, one Burgess, who a P le . c1 S e on 
 was in the employ of the prosecutor, a pawnbroker, and who had ap arce i h f tl 
 general authority to manage his business, stated that the prisoner came believes to 
 to his master's shop, and produced duplicates of property previously vaVulil"es 
 pledged, to the amount of 84£. which was the property laid in the this is not 
 indictment, and desired it -to be brought up and a light, as he had some larceny ' 
 diamonds to seal ; he then produced a small packet of diamonds, which 
 he desired Burgess to look at, and to advance the most he could upon 
 them. Burgess looked at them, and agreed to advance 1GQL on them, 
 and at the request of the prisoner handed them over to him to seal up, 
 which the prisoner did in his presence, and then returned a packet, 
 
 (z) Adams's case, cor. Chambre, J., Taunton Spring Ass. 1812, MS. And it seems that 
 the judges thought the second count out of the question, as Paul never had possession of 
 the hat. 
 
 (a) Rex v. Davenport, Newcastle Spring Ass. 1826, Bayley, J. Archb. Peel's Acts, 4. 
 
 \b) Ilex v. Sftvage, a 5 C. & P. 143, and MS. C. S. G., Patteson, J. Mrs. Downing, being 
 too ill to attend, the prisoner was acquitted, because it was assumed that Mrs. Downing did 
 send her, and that she received the shawls properly, and that it afterwards entered into her 
 mind to ((invert them to her own use, and at that time she had the possession of them. 
 a Eng. Com. Law Reps. xxiv. 24o'.
 
 29 
 
 OF LARCENY. [BOOK IV. 
 
 which Burgess believed to be the one containing the diamonds, it re- 
 sembling it in every respect. Burgess put it in his pocket, and then 
 handed over to the prisoner the property laid in the indictment, and 
 1 - _'4/. in money for the diamonds, which he supposed he had got. The 
 packet so deposited when afterwards opened was found to contain 
 coloured stones of the value of 41. Burgess stated also that he had no 
 authority from his master to lend money, except upon pledges of an 
 equivalent value ; and that when he delivered the money, and also the 
 property stated in the indictment, he supposed he had an equivalent for 
 them in the diamonds in his pocket ; and that when he delivered the 
 o-oods in the indictment he parted with them entirely, thinking the dia- 
 monds left with him were of sufficient value to cover the value of them 
 and the cash advanced ; and that before he parted with them he had 
 received the parcel containing, as he supposed, the diamonds, and that 
 he had before examined the genuine diamonds, and might then have 
 detained them, but as the prisoner said they might go through the hands 
 of a second person and be changed, he handed the genuine diamonds 
 back to the prisoner for the special purpose only of being sealed. Mr. 
 Serjeant Arabin was inclined to think that as the property was parted 
 with by Burgess absolutely under the impression that the prisoner had 
 returned him the parcel containing the diamonds, the prisoner's offence 
 did not amount to felony ; and, upon a case reserved, the judges were 
 unanimous that the case was not larceny, because the servant, who had 
 a general authority from the master, parted with the property and own- 
 ership, not merely with the possession. (c) 
 
 But if a servant has only authority to deliver property to one person, 
 *3() *and another person obtains it from such servant by falsely represent- 
 If a servant ing himself as the person to whom the property is to be delivered, it is 
 have only la^eny. Upon an indictment for stealing three chests of tea, the pro- 
 t k'liverto perty of S. T. and his partners, it appeared that Messrs. T. & Co. were 
 »ne person, carriers, and that on the 8th of November, 1825, three chests of tea 
 otBerob- arrived at their warehouse, directed "J. Creighton, Tewkesbury." 
 tains the About a month before this the prisoner, called himself Langston, had 
 MmselfbT ca ^ e( ^ several times at the office impairing for teas, and asking if any 
 fraud, it is had arrived for him. The last time he had called was about a week 
 larceny. b e f ore the time in question, and he desired the porter of Messrs. T. & 
 Co., when any came to take it to his (prisoner's) house. When the tea 
 in question arrived, it was taken by the porter to the prisoner's house, 
 but he was from home, and the tea was taken back to the warehouse. 
 On the Wednesday following the prisoner went to the porter's house 
 and asked him if he had any tea for him ; he told him he did not know, 
 that he had three chests marked " J. Creighton," and said he did not 
 know whether they were for the prisoner or not, as he did not know a 
 person of the name of Creighton. The prisoner said they were his, and 
 that he had an invoice which specified the same ; that they had spelt 
 his name wrong by putting a C. instead of an L., but he did not pro- 
 duce any invoice. The carriage amounted to 18s. 9d. } for which, and 
 the porterage, the prisoner paid 1?. ; the porter, by the prisoner's desire, 
 fetched the goods and delivered them to the prisoner at his own house. 
 On the Saturday following, J. Creighton applied to Messrs. T. & Co.'s 
 office for the goods in question, which were afterwards found in the 
 
 (c) Rex v. Jackson, R. & M. C. 0. R. 119.
 
 CHAP. IX. § I.] WHERE THE PROPERTY IS PARTED WITH. 30 
 
 prisoner's possession. The jury found the prisoner guilty, and said 
 they were of opinion that when the prisoner inquired at the wagon 
 office for teas, he intended to obtain property not his own, and when he 
 obtained the goods in question he knew they were not his property, and 
 intended to steal them; and upon a case reserved the judges held that 
 the conviction was right, on the ground that the ownership of the 
 goods was not parted with, the carrier's servant having no authority to 
 part with the ownership to the prisoner, and the taking was, therefore, 
 larceny. (<Z) 
 
 In a case by which a great deal of interest was excited, the prisoner Walshs's 
 was charged in the first count of the indictment with stealing twenty- case - H eItl 
 two bank notes, of the value of a thousand pounds each, and one bank particular 
 note of the value of two hundred pounds, the property of Sir Thomas eircum- 
 Plumer ; and, in several additional counts, with stealing a written in- ^aTas 
 strument, which, in some of them was called "a bill of exchange" for there was 
 the payment of 22,200/., and in others, "a warrant for payment of^^ d . 
 money." The following facts were proved in support of the charge, duce the 
 The prosecutor, Sir Thomas Plumer, having contracted, in July, 1811, prosecutor 
 for the purchase of a large estate, shortly afterwards consulted the pri- check, 
 soner, who was a stock-broker of eminence, and who had long been there was 
 employed in that capacity by the prosecutor, as to the most advantage- ofthe clie( fi. 
 ous time to sell out stock, so as to be prepared with the purchase money although 
 about the ensuing Michaelmas. The price of stock was then very low, go^"^. 
 and the prisoner advised that the sale might be delayed as long as pos- tended to 
 sible, which recommendation was adopted by the prosecutor, who re- misa PP 1 y 
 quested the prisoner to apprise him from *time to time of the variations *31 
 that might occur in the state of the market. The prosecutor was not the P r °- 
 called upon to prepare the purchase money by the time which was first fore ne r " e . 
 mentioned, as the title to the estate was not then completed ; but in the ceived the 
 month of October, having reason to believe that the deeds would be jjidmism- 
 ready on or before the ensuing Christmas-day, he communicated that ply them 
 circumstance to the prisoner, and consulted him as to the expediency acc °rding- 
 of disposing of the stock immediately, or letting it remain until the mo- to" a charge 
 ney should be wanted; when the prisoner again advised him to delay °f stealm S 
 the sale. On the 25th of November, the prisoner stated to the prose- wn ich were 
 cutor that he then apprehended a fall in the price of stock, and apprised the pro- 
 hini that the transfer-books at the bank would shut on the 3d Decern- tne cnec k 
 ber ; and soon afterwards he became extremely urgent with the prose- held under 
 cutor to dispose of his stock immediately, writing to him, and frequently j a r circuin- 
 calling upon him for the purpose of giving such advice, and stating, as stancesthat 
 the reason for his importunity, a probable fall in the price of stock. | he . P r0 P er - 
 The prosecutor was influenced by these representations, and also by the notes never 
 concurrent opinion of a commercial gentleman whom he consulted on was vested 
 the subject; and, on Thursday, the 28th November, gave the prisoner secu t r. 
 a power to sell out a quantity of stock, which on the ensuing morning, 
 he contracted to sell for the sum of 21,700/. The prosecutor went on 
 the next morning into the city, with the intention of finishing the busi- 
 ness ; but the prisoner stated that some previous notice must be given 
 to the purchaser to be ready with the money, in consequence of which 
 the prosecutor appointed Wednesday, the 4th December, for making 
 the transfer. On that day the prosecutor attended and transferred the 
 
 (d) Rex v. Longstreeth, R. & M. C. C. R. 137.
 
 31 OF LARCENY. [BOOK IV. 
 
 stock and expressly ordered the prisoner immediately to invest the 
 proceeds in Exchequer hills, and lodge them on his account at his bank- 
 ers, Messrs. Gosling & Co., in Fleet street; but the prisoner told him 
 that it was then too late to procure Exchequer bills to such an amount ; 
 which the prosecutor supposed to be true, (though in fact it was not), 
 and therefore left him to receive the 21,700?. of the purchaser, desiring 
 that he would pay it into his banker's the same day, which he promised 
 to do, saying at the same time that he would call on the prosecutor the 
 next norning, and get his check for such sum as he might choose to 
 have laid out in Exchequer bills. The prisoner accordingly received 
 21,700?., paid it into his own banker's, Robarts and Co.'s; and on the 
 same day paid into Gosling and Co.'s his own check on Robarts and 
 Co. for 21,500?. on the prosecutor's account. On the following morning, 
 Thursday, the 5th December, he called on the prosecutor, and received 
 from him a check (the instrument mentioned in the indictment) on Gos- 
 ling and Co.'s, for 22,200?. The prosecutor directed him to go to Gos- 
 ling's and get the money for it, telling him that it was for the precise 
 and express purpose, and for no other purpose whatever, of laying it 
 out in Exchequer bills ; which the prisoner positively promised he would 
 do, and either pay the bills into Gosling and Co.'s, or bring them to the 
 prosecutor by four o'clock on the same day. Nothing was said as to 
 what was to be done with the money in case Exchequer bills could not 
 be purchased. The prisoner then went to Gosling and Co.'s with the 
 check, and there received for it 22,200?. in twenty-two bank notes of 
 1,000?. each, and one bank note of 200?. ; and on the same day he pur- 
 chased with part of that money, 6,500?. Exchequer bills, which he lodged 
 *32 at *Gosling and Co.'s on the prosecutor's account, and took a receipt 
 for them. At about half-past four o'clock on the same day, the pri- 
 soner called on the prosecutor, and produced the receipt for the Exche- 
 quer bills, and stated that he had paid the remainder of the money 
 into Gosling and Co.'s, as he had contracted with Coutts and Co. for 
 Exchequer bills to the amount of 15,000?., but that one of the partners 
 of the house of Coutts and Co. was at that time absent from London, 
 had the bills locked up in a drawer, and would not return to deliver 
 them until the following Saturday, the 7th December, on which day the 
 prisoner said he would call again for the prosecutor's check for that 
 amount, and lodge the Exchequer bills for which he had so contracted 
 at Gosling and Co.'s on the prosecutor's account. The prosecutor did 
 not examine the papers delivered to him by the prisoner, during the time 
 the prisoner was with him ; but, upon looking at them after he was 
 gone away, he was surprised to find that there was only a receipt for the 
 Exchequer bills, and no receipt for the residue of the money. This 
 circumstance caused suspicion, and an inquiry was almost immediately 
 made, when it was ascertained that the prisoner had, on the afternoon 
 of that same day, set out for Falmouth in the mail coach, in which he 
 had previously secured a place in a fictitious name ; and that he had 
 left a note addressed to the prosecutor, with his clerk, dated on Satur- 
 day, the 7th December, and stating that the business respecting Coutts' 
 Exchequer bills could not be finished until the following Monday. This 
 note he had desired might not be delivered till the Saturday. It ap- 
 peared also that for some time before he absconded, the prisoner had 
 been labouring under great pecuniary embarrassments, and had medi- 
 tated an emigration to America; and that about the 29th of November
 
 CHAP. IX. § I.] WHERE THE PROPERTY IS PARTED WITH. 32 
 
 lie had applied to an American broker to procure for him American 
 stock to the amount of 11,000/., and stock nearly to that amount was 
 accordingly bought for him, and paid for by him, on Thursday, the 5th 
 of December, with eleven of the same bank notes of 1,000/. each, which 
 he had received for the prosecutor's check : and it further appeared, 
 that several others of the 1,000/. notes so received for the prosecutor's 
 check, had been paid away by him to different persons on his own 
 account. It was proved also, that on the same day, Thursday, the 5th 
 December, he paid to a dealer in foreign coin, 300/. for doubloons, 
 which he had contracted for three days before, and which were delivered 
 to him on that day. And further, that he left his country-house at 
 Hackney early on the same morning, in a stage coach, and brought 
 with him a travelling portmanteau of linen and a drab great coat, which 
 he had contrived to pack up without the knowledge of his family; that 
 he provided himself with some stockings, night-caps, and gloves, at a 
 hosier's in Threadneedle street, to whom he said that he was going 
 out of town for a few days ; and that after having procured the foreign 
 coin and American securities, he absconded by means of the Fal- 
 mouth mail. When the route which he had taken was discovered, he 
 was speedily pursued and apprehended at Falmouth, as he was about to 
 get on board a packet for Lisbon, to which place he acknowledged that 
 he intended to go in the first instance, and afterwards take an opportu- 
 nity of getting to America. On being told the charge made against him, 
 he delivered up the 11,000/. American bank shares, and the bag of 
 doubloons. 
 
 *The question left to the jury was, whether the prisoner, before he *33 
 received the check, had formed the design of converting the money 
 which should be received by means of it to his own use, or whether that 
 design arose in his mind after he was in possession of it. They were 
 directed to find the prisoner guilty, if they were of opinion that the for- 
 mer was the fact. The jury were of that opinion, and returned a ver- 
 dict of guilty. Judgment was then respited, and the case reserved, in 
 order that the opinion of the judges might be taken upon several objec- 
 tions made by the prisoner's counsel. 
 
 As to the counts which charged the stealing of a bill of exchange or 
 warrant {%. e. the check) it was objected that the check was one entire 
 thing, and could not be said to be stolen, as part of the produce, viz., 
 6,500/., was applied to the prosecutor's use, therefore there could not be 
 a taking of the check with a felonious intent. 
 
 As to the same counts, it was also objected that under the 2 Geo. 2, 
 c. 25, it was necessary that the instrument stolen should be of value in 
 the hands of the party from whom it was stolen ; that the check was 
 of no value to the prosecutor in his own hands ; but that if it had been 
 lost by the prosecutor, and got into the hands of a third person, and 
 had been stolen from that third person it would be within the act, as 
 being then an instrument of value in that third person's hands, other- 
 wise not. 
 
 It was also objected that the prosecutor had parted in this case with 
 both the property and possession of the bill of exchange or warrant, and 
 without fraud or misrepresentation ; and this case was said to be the 
 same as that of a voluntary deposit of money with a banker, who had 
 previously determined to apply it to his own use.
 
 33 OF LARCENY. — OF A TAKING, ETC. [BOOK IV. 
 
 That the identical notes paid to the prisoner were notes on which the 
 prosecutor had no specific claim, and never were vested in him. 
 
 That bank notes were not expected in return for the check, but ano- 
 ther and different thing, viz., exchequer bills. 
 
 And that if the prosecutor had delivered the twenty-three notes them- 
 selves to the prisoner, he undertaking to buy exchequer bills with them, 
 it would have been only a breach of contract, which he was to fulfil by 
 returning exchequer bills, and that he was to be considered as debtor to 
 the prosecutor for the deficiency. 
 
 In Hilary Term, 1st of February, 1812, this case was argued in the 
 Exchequer Chamber before all the judges (except Lawrence J.,) by 
 Scarlett for the prisoner, and Gurney for the crown. And again on the 
 14th of February, 1812, before all the judges (except Lawrence, J., and 
 Chambre, J.,) when all the judges present were of opinion that it was not 
 a felony, and that the conviction was wrong upon several grounds. First, 
 because there was no fraud or contrivance to induce Sir Thomas Plumer 
 to give the check; secondly, because the check could not be called his 
 goods and chattels, and was of no value in his hands ;(e) thirdly, be- 
 cause he had never had possession of the notes received at the bankers, 
 so that they could not be called his notes ; and fourthly, because the 
 *34 bankers were discharged of the money by paying it on the *check, so 
 that they were not defrauded, and it could not be said the money was 
 stolen from them.(/) 
 A check in But where, on an indictment for stealing a check, it appeared that 
 ofthe 1 " S ^ e P r i sorier was employed occasionally as clerk to the prosecutors, and 
 drawers came two or three times a-week to keep their books, for which they paid 
 subject of e *^ m > ^en not with them he endeavoured to do business for himself; 
 larceny, one of the prosecutors delivered to the prisoner, who was then em- 
 ployed by him as clerk, a check drawn by the firm on their bankers, 
 Sir C. Scott & Co., payable to Messrs. Caldecott or bearer, who were 
 creditors of the prosecutors, and desired the prisoner to deliver it to 
 Messrs. Caldecott, but he did not deliver it ; and on the same day cash 
 was paid for it by the Messrs. Scott at their counter to some stranger, 
 and afterwards the prisoner admitted that he had appropriated the check 
 to his own use ; the prisoner was found guilty ; but the question whether 
 the check in the hands of the drawers was of any value, and could 
 be the subject of larceny, was reserved for the opinion of the judges 
 in consequence of the opinion in the preceding case, that the check 
 was of no value in the drawer's hands; and the judges affirmed the 
 conviction.^/) 
 
 So where, upon an indictment for stealing a check, it appeared that 
 the prosecutor gave the check, which was drawn by himself upon J. 
 M. and Sons, payable to Gr. Mumford or bearer, to his female servant 
 under cover, which was sealed up, and that he had told the prisoner who 
 was also his servant, that he would receive the packet containing the 
 check from her, and that he was to deliver it to Mr. Gr. Mumford, of 
 Downham, to whom the packet was directed, and the packet so contain- 
 ing the check was delivered to the prisoner, and he did not deliver the 
 
 (e) See Rex v. Mucklow, R. & M. C. C. R. 1G0, where a similar point -was raised, but not 
 decided. 
 
 (/) Walsh's case, Hil. T. 1812. Russ. & Ry. 215. 2 Leach, 1054, 1082. 4 Taunt. 258. 
 284. 
 
 (g) Rex v. Metcalf. R. & M. C. C. R. 433. Littledale, J., dubitante.
 
 CHAP. IX. § I.] WHERE POSSESSION IS PARTED WITH. 34 
 
 check to Mr. Muinford, but received the amount of it from the persons, 
 on whom it was drawn, and never accounted to Mr. Mumford or the 
 prosecutor for that sum or any part of it ; upon a case reserved upon 
 the questions whether the check was a valuable security or an instru- 
 ment within the 7 & 8 Geo. 4, c. 29, s. 5 ; and whether under the cir- 
 cumstances, it could be made the subject of larceny; the judges held 
 unanimously that the case was governed by the preceding one, and the 
 conviction was affirmed. (A) 
 
 The principle that cases of this description, where the property in fact Atkinson's 
 passes by the delivery of the owner, will fall within the same rule, prisoner C 
 though the credit may have been obtained by fraudulently using the wrote a let- 
 name of another person, (•<) was further acted upon in the following case. ter m ^ 
 The prisoner was indicted for stealing two bank notes, the property of another, to 
 William Dunn. The facts were, that the prisoner employed one Dale, athirdper ~ 
 to whom he was previously unknown, to carry a letter to the prosecutor, que'stin°- a 
 and told him to say to the prosecutor that he had brought the letter loan of 
 from Mr. Broad. He also told Dale to bring the answer to him in the obtained 
 nest street, where he would wait for him. Dale carried the letter to the the money 
 prosecutor to whom it was directed. It was written in the name of a^^ns- 
 *Mr. Broad, who was a friend of the prosecutor's, solicited the loan of *35 
 three pounds for a few days, and desired that the money might be en- held that 
 closed back in the letter immediately. The prosecutor, upon the receipt * . P''°P er - 
 of this letter, sent the bank notes in question, enclosed in a letter money 
 directed to Broad, which he delivered to Dale, who delivered it to the P assed by 
 
 tnG QGilVG- 
 
 prisoner as he was first ordered. The letter sent by the prisoner to the ry f the 
 prosecutor was altogether an imposition. It was objected on the behalf owner, and 
 of the prisoner at the trial that this was no felony, because the absolute t ^ at tlie 
 dominion of the property was parted with by the owner, though induced offence did 
 thereto by means of a false and fraudulent pretence. And the prisoner "o felonv 11 
 having been convicted, the case was submitted to the consideration of 
 the judges, who, (with the exception of Buller, J., who was absent) held 
 that it was no felony, as it appeared that the property teas intended to 
 pass by the delivery of the owner. (j\ 
 
 The cases which have been thus cited abundantly establish the pro- 
 position first laid down, that where the property in the goods taken has 
 been parted with by the owner, there can be no larceny. 
 
 But if the owner has not parted with the property in the goods, but Delivery 
 only with the possession of them, the question of larcenv still remains wliere * e 
 
 ** ■* OWIIGT €10 €8 
 
 open, and will depend upon the fact, whether at the time of the alleged not part 
 felonious taking, the owner had parted with the possession of the goods wtth tfte 
 
 . ° property, 
 
 in such a manner, and to such an extent, as to exclude the idea of tres- tut only 
 pass. For if the owner of the goods parted with the possession of them with the 
 without fraud practised by the taker, and if, alter the owner had so „f the SS1 
 parted with the possession of them, nothing was done to determine the goods, 
 privity of contract, under which the taker had the possession of them 
 delivered to him, no trespass, and therefore no larceny, can be com- 
 mitted by their conversion. 
 
 (h) Reg. v. Heath, 2 Moo. C. C. R. 33. It was also held that the cheque might be de- 
 scribed as a valuable security in the indictment, and that it was unnecessary to state that 
 M. and Suns, the drawees, were bankers. (i) Ante, p. 2T. 
 
 (./) Rex v. James William Atkinson, cor. Lc Blanc, J., 0. B. 1*790, and Mich. M. 1709. 
 2 East, P. C c. 10, s. 104, p. 073, where it is also said that the judges considered this case 
 as within the statute 33 Hen. 8, c. 1 (now repealed) against false tokens, which particularly 
 speaks of counterfeit letters.
 
 35 OF LARCENY. — OF A TAKING, ETC. [BOOK IV. 
 
 Upon the subject therefore of larceny, where the owner or person 
 
 authorized to dispose of the goods has parted with the possession of them 
 
 by delivery to the party accused, the inquiry seems to resolve itself into 
 
 two heads : first, Whether the delivery were obtained fraudulently with 
 
 intent to steal the goods ; and if the delivery were not so obtained, 
 
 then, secondly, Whether the lawful possession had been determined, 
 
 and whether there has been any new and felonious taking. "j" 
 
 Delivery I. The cases in which it has appeared that the delivery of the goods 
 
 where it wag obtained fraudulently, and with intent to steal them, consist prin- 
 
 obtained cipally of transactions usually described by the term swindling, and 
 
 fraudulent- w hj§li ] ia ye been in most instances carried on by the common arts 
 
 tint to steal adopted on such occasions. In a few, however, the more aggravated 
 
 the goods, proceeding has been adopted of getting fraudulent possession of the 
 
 goods by act of law. 
 Sharpless The prisoners S. Greatrix and J. Sharpless were convicted of larceny, 
 andGrea- j n stealing six pair of silk stockings, the property of Owen Hudson ; but, 
 A hosier by a doubt arising as to the propriety of the conviction, the judgment was 
 the desire respited, and the question referred to the consideration of the judges on 
 *36 the following case : Greatrix, in the character* of servant to Sharpless, 
 of the pri- left a note at the shop of Mr. Hudson, who was a hosier in Bridge- 
 a°varietvof water > Westminster, desiring that he would send an assortment of silk 
 silk stock- stockings to his master's lodgings at the Red-lamp in Queen-square. 
 ! n jp. t0 ^ 1S Mr. Hudson in consequence took a variety of silk stockings according 
 where the to the direction. Greatrix opened the door to him, and introduced him 
 prisoner j n ^ a p ar lour, where Sharpless was sitting in a dressing-gown, his 
 to purchase bair just dressed, and an unusual quantity of powder all over his face. 
 some of ]Vj r . Hudson unfolded his wares, and Sharpless looked out six pair of 
 set them Sl ^ stockings, the price of which Mr. Hudson told him was fourteen 
 apart from shillings a pair: and he then desired Mr. Hudson to fetch some silk pieces 
 and Then ^ or breeches, and some black silk stockings with French clocks. Mr. 
 having sent Hudson hung the six pair of stockings, which Sharpless had looked out, 
 tofoch ^ on ^ e k a °k °f a chair, and went home for the other goods ; but no 
 some more positive agreement had taken place respecting the stockings. During 
 articles de- jy[ r Hudson's absence, Sharpless and Greatrix decamped with the six 
 with the P a i r °f stockings, which were proved to have been afterwards pawned 
 stockings: by Sharpless. The judges were of opinion, that the conviction was 
 holden to "S^t, f° r ^ ie whole of the prisoners' conduct manifested an original 
 be larceny, and preconcerted design to obtain a tortious possession of the property ; 
 and the verdict of the jury imported, that in their belief the evil inten- 
 tion preceded the leaving of the goods. The judges thought also that, 
 even independently of the preconcerted design and evil intention, there 
 
 f [One who obtains the bailment of goods fraudulently, intending to deprive the owner of 
 his property, may be convicted of larceny under an indictment alledging that he feloniousiv 
 stole, took, and carried away the property. Cary et al v. Hotniling, 1 Hill, 311. 
 
 Where a party, fraudulently and with intent to steal, obtains possession of a chattel with 
 the consent and by the delivery of the owner, under pretence of borrowing, and converts 
 the chattel to his own use, he is guilty of larceny. Starkie v. The Commonwealth, 1 Leigh, 
 752. 
 
 When the possession of personal property was obtained from the true owner by false and 
 fraudulent representations under pretence of hiring, the party thus obtaining the property 
 intending at the time to convert it to his own use, held, that in Tennessee this did not 
 amount to larceny. Feller v. The State, 9 Yerger, 297. In order to constitute larceny there 
 must be a taking of the goods either actual or constructive ; and the felonious intent must 
 exist at the time of the taking ; otherwise no subsequent felonious intent will render the 
 previous taking felonious. Fulton v. The State, 8 English, 168.]
 
 CHAP. IX. § I.] WHERE POSSESSION IS PARTED WITH. 36 
 
 did not appear to be a sufficient delivery to change the possession of the 
 property. (A-)f 
 
 Prevailing upon a tradesman to take goods proposed to be brought Prevailing 
 to a given place under pretence that the price shall then be paid f or «natrades- 
 
 ■•iTi •!• i • i . , man to take 
 
 them, and further prevailing upon him to leave them there in the care goods to a 
 of a third person, and then getting them from that third person without P lace on 
 paying the price, is larceny, if ab initio the intention was to get the [hat he 
 goods from the tradesman and not to pay for them. Upon an indict- sna11 . then 
 ment for stealing trinkets and fancy articles, the property of A. Berens, theuTand^ 
 it appeared that the prisoner called at the shop of Berens, to whom he inducing 
 was a perfect stranger, and said to him, " I am come to take a choice J 11 ™ *° h 
 of fancy articles : I am going into the country; I will pay you cash if there in the 
 you will deliver the goods, and you must serve me as low as you can." eare of a 
 He then wrote on a card his name, and the address, " Coach Office, SO n, and 
 Swan Inn, Lad-lane/' and another card falsely describing where he * nen sp- 
 lodged. He then selected the articles in the indictment, and desired f r * m nim 
 that they should be taken the next day at five in the afternoon to the without 
 coach office. An invoice of the goods was made out by Berens in the j^^j 1 ^ or 
 presence of the prisoner; and *the next day, at five, Berens carried the *37 
 goods, packed in a case, to the Swan. The prisoner met him there, and larceny, if 
 said, " I am surprised that my friend, who promised to be here, is not * . in *? nt 
 come." In a quarter of an hour a letter was brought by the twopenny was to get 
 post to the prisoner, who, after appearing to read it, said, " This is my the goods 
 very good friend, who will give me 2001., at Tom's Coffee-house, at paying for 
 half-past seven." He desired Berens to meet him there at that time, tnem - 
 and then desired the book-keeper to reserve a place for him by the 
 Manchester coach next day, when he said he would take the case with 
 him. Some doubt was expressed whether it was not too large for the 
 coach : both Berens and the prisoner desired it might be taken care of; 
 and Berens swore on his cross-examination that he considered the goods 
 to be sold, if he got his cash, but not before. Both left the coach office. 
 Berens went to Tom's at the time appointed, but saw no friend of the 
 prisoner's, nor the prisoner. Half an hour after they had left the office, 
 the prisoner returned to it, telling the book-keeper he had altered his 
 mind, and would take the case away then. He offered him a sovereign 
 for his trouble, hired a porter to carry the case into the street, and 
 there hired a cart, in which he had it conveyed to a house on the other 
 side of the river. He was found in that house in two hours, with the 
 case unpacked, and the goods all about the room. The prisoner's coun- 
 sel contended that he was entitled to a verdict of acquittal, as a com- 
 plete sale of the goods had taken place. But the jury were directed to 
 
 (k) Rex v. Sharplesa and Greatrix, 0. B. 1772. 1 Leach, 92. 2 East, P. C. c. 1(3, s. 105. 
 p. (575. In the debate on Semple's case, (2 East, P. C. c. 16, s. 112, p. 692, 693,) a case was 
 mentioned as having been determined very recently by the Judges, where a man ordered a 
 pair of candlesticks from a silversmith to be sent to his lodgings, whither they were sent 
 accordingly, with a bill of parcels by a servant; and the prisoner contriving to send the 
 servant back, under some pretence, kept the goods ; and it was ruled to be felony, although 
 they were delivered with the bill of parcels; such delivery being made under an expectation 
 by the owner of being paid the money; for the jury found that it was a pretence to pur- 
 chase with intent to steal. Mr. East, however, remarks upon this case, that it must be 
 understood that the prisoner ran away with the goods, or did some other act to denote an 
 intention of withdrawing himself from any account of them ; and that no credit was in- 
 tended to be given him, but that it was meant as a sale for ready money only. 2 East, P. C. 
 ibid, note (</). 
 
 f [Blunt v. The Commonwealth, 4 Leigh, 689].
 
 37 OF LARCENY. — OF A TAKING, ETC. [BOOK IV. 
 
 consider whether they were satisfied by the evidence that the prisoner, 
 when he first called upon Berens, had no intention of buying and pay- 
 inf for the goods, but gave the order for the purpose of getting them 
 out of Beren's possession, and afterwards clandestinely removing and 
 converting them to his own use ; and, if they were so -satisfied, to find 
 the prisoner guilty, which they did. And, upon a case reserved, the 
 judges were clearly of opinion that there was a felonious taking, the 
 jury having found that the prisoner's intention ah initio, was to get the 
 goods out of Beren's possession, and then clandestinely remove and 
 convert them to his own use, and that the conviction was right. (V) 
 
 The plaintiff dealt in slippers ; one Fuller, who likewise dealt in 
 
 them, came to him and asked for fifteen dozen of slippers, saying he had 
 
 an order for them ; the plaintiff refused to trust him with the goods, but 
 
 went with him to the place of sale, which was the warehouse of the 
 
 defendants, wholesale shoe manufacturers ; on arriving there Fuller said 
 
 to the plaintiff, " You must not go in, or you will spoil my custom ;" 
 
 the plaintiff remained on the outside a quarter of an hour, when Fuller 
 
 came out, having sold and delivered the slippers to the defendants in 
 
 the warehouse, and, being asked by the plaintiff for the money, made 
 
 an excuse, and soon afterwards ran away. The plaintiff indicted Fuller 
 
 for stealing the slippers, and he was convicted. (m) 
 
 *38 Taking goods the prisoner has bargained to buy is felonious, if by 
 
 Taking the usage the price ought to be paid before they are taken, and the 
 
 without the owner did n0 ^ consent to their being taken, and the prisoner, when he 
 
 consent of bargained for them did not intend to pay for them, but meant to get 
 
 the owner ^ em [ n i hi s possession, and dispose of them for his own benefit *with- 
 
 before pay- r ' r . 
 
 ing the out paying for tnem. Upon an indictment for stealing four oxen, the 
 P" ce ' property of the Marquis of Tavistock, it appeared that R. Baker was 
 
 the usage employed by the bailiff of the Marquis to sell the oxen at Ampthill fair 
 the price f or ready money. The prisoner inquired the price, and agreed for 48/. 
 first paid, ^ s - Baker asked him to mark them (which is done by clipping off 
 is larceny, some hair,) he said, "No, Fll mark them by-and-by, and if you go 
 ''ain'waT down to the King's Arms I'll pay you for them." Baker soon went to 
 made with the King's Arms, but did not find the prisoner; having dined there, 
 intent to Baker returned into the fair to the place where he had left the beasts, 
 them with- but they were gone. Two witnesses severally proved that they pur- 
 out paying cnase( l two of the oxen in the fair from the prisoner. Search was after- 
 wards made for him in the fair and the different inns, without suc- 
 cess. Baker said that the custom was to mark the beasts when they 
 were sold ; that they are not delivered until they are paid for, which is 
 generally about dinner time, and if the prisoner had applied to him for 
 leave to drive them away, he would have refused till he had received 
 the price. The prisoner told him his name was Gilby, but did not men- 
 tion where he lived. Garrow, B., left it to the jury to say, whether 
 the prisoner, at the time he made the bargain, intended to pay for the 
 oxen, or merely to get them into his possession to sell them and convert 
 the money to his own use. The jury found the prisoner guilty, and 
 said they thought he never at any time intended to pay for the beasts 
 
 (1) Rex v. Campbell, R. k M. C. C. R. 179, cited in Stephenson v. Hart, 4 Bing. R. 4?6." 
 (m) Lyons v. De Pass. 11 A. & E. 326. 
 
 a Eng. Com. Law Reps. xv. 47.
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 38 
 
 And, upon a case reserved, the conviction was affirmed, the jury having 
 found that the prisoner never meant to pay for the oxen.(») 
 
 The prisoner, John Wilkins, was indicted for stealing a great many Wilkins's 
 pair of stockings, the property of William Wayte. The following were ™* c - 
 the facts of the case : The prosecutor, Mr. Wayte, who was a hatter owner f 
 and hosier near the Haymarket, delivered two parcels, containing the goods sent 
 goods mentioned in the indictment, to his apprentice, with directions to se rvanf to^ 
 carry them to the house of Mr. Heath, a hosier, in Milk-street, Cheap- be deliver- 
 side. As the apprentice was going up Ludgate-hill, with the parcels and°th 
 under his arm, he was met by the prisoner at the bar, who asked him prisoner 
 where he was going ? To which the apprentice answered " to Mr. fl ' audulent - 
 
 tt i i ii im < i ii i i« i t i lv procured 
 
 Heaths. The prisoner, producing a small parcel, replied, " I know the deli- 
 your master, and I owe him for those parcels; I was going for them to ver y of 
 your shop, therefore do you give me your parcels, and take this back himself, by 
 to your master; there is a letter inside, and it must be immediately for- pretending 
 warded to Mr. Brown.'' The apprentice accordingly consented to the was^olden 
 proposed exchange, and delivered the two parcels to the prisoner, and to be lar- 
 the prisoner delivered his parcel to the apprentice. The prisoner, hav- ceny- 
 ing effected this exchange, endeavoured to separate himself from the 
 apprentice ; but his manner created a slight degree of suspicion in the 
 apprentice's mind, who, to satisfy his doubts, ran after the prisoner, and 
 asked him if he was the Mr. Heath to whose house he was conveying 
 the parcels ? The prisoner replied, that he was Mr. Heath, and desired 
 the apprentice to make haste home with the other parcel. The parcel 
 which was delivered by the prisoner contained a collection of old rags 
 of no value, and he was not the Mr. Heath he pretended to be. The 
 jury were of opinion that the prisoner, by falsely pretending* that he *39 
 was going to the house of the prosecutor for Mr. Heath's parcels, had 
 contrived to make this exchange of parcels with an intent wrongfully to 
 obtain and convert to his own use the goods mentioned in the indict- 
 ment, and therefore they found him guilty. The court, however, being 
 doubtful whether, under all the circumstances, the crime amounted to 
 felony, the judgment was respited, and the case referred to the consi- 
 deration of the twelve judges, who were unanimously of opinion that 
 the conviction was right. The learned judge (Gould, J.,) who delivered 
 their opinion, said, that it appeared to him that the prisoner's having 
 obtained these goods fraudulently from the apprentice was just the 
 same as if he had obtained them from the actual possession of the mas- 
 ter, (o) 
 
 A prisoner was indicted for stealing bristles, and it appeared that the Getting 
 prisoner went to the counting-house of the prosecutor and represented s ooclsd ?" 
 that he lived at No. 40, Crispin-street, Spitalfields, and proposed to buy a hired cart 
 four casks of bristles, and pay ready money on delivery, and was told on tlie ex- 
 by the prosecutor's clerk that as he was a stranger he could not have ^ition that 
 them on any other terms. The prisoner said, he wanted to send two they .should 
 of the casks immediately to Birmingham. The invoice and weighing " a k en ° out 
 order were given to the prisoner, and the delivery order was sent by a of the cart 
 clerk of the prosecutor's to the wharf, where the bristles were then untl1 .J 
 
 i • , . . . were paid 
 
 lying, which he brought back, the prisoner not having paid the money, for, and 
 On Monday following the prisoner came again to the counting-house then S et " 
 
 (n) Rex v. Gilbert, R. & M. C. C. R. 185. 
 
 (o) Wilkins's case, 0. B. 1789, 1 Leach, 520. 2 East, P. C. c. 16, s. 104, p. 673. See 
 Rex v. Longstreeth, R. & M. C. C. R. 137, ante, p. 30. 
 
 Vol. ii. — 4
 
 39 OF LARCENY. [BOOK IV. 
 
 ting them between twelve and one, and the delivery order was then on the prose- 
 from the eutor ' s desk, and said he would pay the money, but had not got a check ; 
 laying he was told by the clerk, that if he wished to pay the money, he had no 
 '"'''• objection to give him the delivery order. The prisoner went away with 
 if thepr£' the order, and the clerk followed him almost immediately to the wharf, 
 '"• and found the prisoner busy loading the bristles into a cart. The clerk 
 todo- stopped the delivery at the wharf about one o'clock j but in consequence 
 fraud. f w hat was said by the prisoner, and the wharf-clerk having said that 
 he knew the prisoner, and he had had goods delivered to him in the 
 regular way before, no further opposition was made. The clerk told the 
 prisoner that the reason why he would not suffer him to take the goods 
 from the wharf was, that the reference the prisoner had given was one 
 he could not trust; and he consented to the bristles being taken away, 
 upon the express condition, and the engagement of the prisoner, that 
 they should be paid for at his door in Crispin-street, before they were 
 lodged in the house. Nobody was sent to accompany the cart, but 
 another clerk of the prosecutor's was directed to be at the prisoner's door 
 a little before two o'clock, which would be the time the cart would arrive, 
 for the purpose of receiving payment before the goods were taken from 
 the cart. The clerk went to the prisoner's house, No. 40, Crispin-street, 
 and after waiting till half-past three, he came back without seeing the 
 prisoner, the cart, or the goods. The carman, who drove the goods from 
 the wharf, was directed by the prisoner to drive to Spitalfields, and when 
 he had got part of the way, he was directed by the prisoner to turn down 
 another street, and wait at the corner of a street, where, notwithstanding 
 the remonstrances of the carman, the bristles were put, by the prisoner's 
 *40 direction, into another cart, and driven away in a *direction contrary to 
 Spitalfields, and lodged in an empty warehouse, and the next morning 
 the prisoner offered the bristles for sale, representing that he had taken 
 them for a bad debt. It was objected that the clerk having permitted 
 the prisoner to take possession of the delivery order, there was a com- 
 plete transfer of the property, and that the subsequent conversion was a 
 mere breach of contract : but the Recorder thought that it was a mere 
 permission to enable him to remove them to his door in Spitalfields, with 
 a full engagement on the part of the prisoner that the order was not to 
 operate to enable him to put them within his own premises till the money 
 was paid ; and he told the jury that, if they believed there never was any 
 bona fide intention to buy, but an intention to get the goods by fraud 
 from the owner, they should find the prisoner guilty; which they did, 
 and said that they thought the prisoner had no intention to buy, but to 
 get them by fraud from the owner; and, upon a case reserved, the 
 judges held that the conviction was right, the jury having found that the 
 prisoner never meant to buy, but to defraud the owner. (_p) 
 Obtaining So where, upon an indictment for stealing three pounds weight of 
 goods *™ni cheese and 2s. 2d., it appeared that the prisoner went to the shop of a 
 iypayment cheesemonger and ordered about three pounds of cheese to go to No. 46, 
 wf a bad Regent-square, to one Edmunds, and the prosecutor's boy was to take it 
 the servant directly, with change for a crown piece. When the lad got near Regent- 
 Lavingjw square with the cheese, the prisoner met him and said, " Oh, you have 
 topartmth S ot tne cneese > I forgot to order sixpenceworth of eggs ; if you will give 
 i- me the change and the cheese, I will pay you." The lad then gave him 
 
 O) Res v. Pratt, R. & M. C. C. R. 250.
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 40 
 
 the cheese and 2s. 2d. ; he then gave the lad a crown, which turned without 
 
 out to be a bad one, though the lad believed it to be a good one at the {^"^y jj 8 
 
 time he took it ; the lad went back for the eggs ; the lad said, that if he the intent 
 
 had gone to Edmunds' he should have left the things there, but not the ^ *£ ~ 
 
 change without the money, and that he had no authority to part with goods with - 
 
 these iroods unless he received the crown piece. The master said, that <j u t paying 
 
 • i i-j»i -ii i ' or them, 
 
 his intention was to sell the goods, and it he received the crown he 
 
 should be obliged to furnish the difference ; he never expected the goods 
 back again, and the boy had no authority to part with the change or the 
 goods without payment. Mr. Serjt. Arabin (after consulting Parke, B., 
 and Patteson, J.), told the jury that if they thought that it was a pre- 
 concerted scheme to get possession of the property without giving any- 
 thing for it, and that the boy had the limited authority only, they should 
 find the prisoner guilty. (j) 
 
 So where, upon an indictment for stealing a mare, it appeared that Fraudu- 
 the prosecutor intending to sell his mare at a fair, sent her thither by a ! e ?*! y ob ~ 
 
 • i i i • i taming a 
 
 servant, to whom he gave no authority to sell the mare, or to deal with ma re from 
 her in any way till he had himself arrived there. At the fair the pri- a servant 
 soner asked the servant the price of the mare, and he told him 25?. ; authorityto 
 the prisoner then desired him to trot her out : the prisoner then went sell > in ex - 
 and talked to a man on horseback and a man on foot, and then walked a ^ ^ ^ 
 away. These two men then went up to the servant, and the man on little value, 
 foot then offered the man on horseback 241. for the horse he was riding, 1S °f°t, ny ' 
 which the latter refused, saying *that he would not sell him at any price, ~ t± 
 upon which the man on foot stepped aside to the servant, and said, if he 
 would chop the mare for the horse the man was riding, he would give 
 him 241. for the chop, and 5s. to put in his own pocket, at the same time 
 taking from his pockets what appeared to be bank notes. The servant 
 declined, saying the mare was not his ; but being persuaded by the man 
 on foot, the servant accompanied the two men for about half a mile, and 
 then agreed to the exchange of horses on the terms proposed, and as 
 soon as the saddles were changed, the man who had been on horse- 
 back rode away, and on the servant looking round for the man on 
 foot, he perceived that he had gone away while the saddles were 
 changing. The horse left in exchange was worth about M. The pri- 
 soner had afterwards sold the mare for 14?., saying that he had got 
 it in a chop at the fair. It was submitted, on behalf of the pri- 
 soner, that as the servant meant to part with the entire property in 
 the mare and not with the possession only, it was no larceny ; but it 
 was held that there was no parting with the property in the mare, as 
 the servant had the mere charge of her, and had no right to deal with 
 the property in her in any way whatever. And if the prisoner was in 
 league with the two other men, and they three, by fraud, in which 
 each of them was to take his part, and did take his part, induced the 
 servant to part with the possession of the mare under the colour of an 
 exchange, but they intending all the while to steal the mare, the pri- 
 soner ought to be found guilty.(r) 
 
 The prisoner, R. Hench, was indicted for stealing a chest and fifty- Hench's 
 nine pounds weight of tea, which, in one count of the indictment, were case - 
 
 (g-) Rex v. Small, 8 C. & P. 4G. a Sed vide Parke's case, ante, p. 25, and Rex v. Jackson, 
 ante, p. 29, et quscre, whether in this case the property was not parted with. C. S. G. 
 (r) Reg. v. Sheppard, 9 C. & P. 121, b Coleridge, J., and seepost, p. 49. 
 
 a Eng. Corn. Law Reps, xxxiv. 286. b lb. xxxviii. 65.
 
 41 OF LARCENY. [BOOK IV. 
 
 Fraudu- stated as the property of James Laytoa and W. J. Thompson ; and in 
 loiiti.v ob- anot ] ier coun t, as the property of the East India Company. The facts 
 ohestofteawere, that Messrs. Layton & Co., who were tea brokers, had purchased 
 ,n,m t,R ' the chest of tea in question, No. 7100, at the East India House, but 
 House, bad not taken it away, when the prisoner, who was in no way employed 
 though by DV them, went thither, and, going up to the place where the request 
 request* * Papers were kept, selected one of them, and then proceeded, with the 
 note and paper in his hand, as if to look for a chest of tea corresponding with 
 holden to tue number on the paper. The servant in the India House who had the 
 be larceny, care of the request papers, seeing him so engaged, went up to him, 
 took the paper which was in his hand, and, seeing the number 7100 
 upon it, pointed to a chest with a corresponding number, and said, that 
 was the chest he wanted, and then returned the paper to him, in order 
 that he might go to the permit office and get a permit. The prisoner 
 then went to the permit office, and shortly afterwards returned with a 
 permit to the India House, where the same servant who had the care 
 of the request papers received the permit from him, and asked him 
 whose partner he was, and, upon his answering « Noton's," returned 
 the permit to him again, and entered the name of Noton in the book. 
 The prisoner then took away the chest of tea. Upon this evidence the 
 jury found the prisoner guilty, when an objection was taken by his 
 counsel, that, as the possession of the property was obtained by a regular 
 request note and permit, the offence could only be considered as a mis- 
 *42 demeanor ; and the court reserved the point *for the consideration of 
 the twelve Judges. But they were clearly of opinon, that the offence 
 amounted to felony. (s) 
 Aickles's The prisoner, J. H. Aickles, was indicted for stealing a bill of ex- 
 case. The change of the value of a hundred pounds, the property of S. Edwards. 
 agreed' The following facts appeared in evidence : Mr. Edwards, wishing to get 
 with the "his own note of hand discounted, had made application to several per- 
 todTscount sons i Q tne discounting line of business for that purpose. A few days 
 abillof ex- afterwards the prisoner, a total stranger to Mr. Edwards, left an address 
 change for t h[ lodgings while he was from home, "Mr. H., No. 21, Great 
 
 him, and o o _ _ ' _ > 
 
 the bill was Pultney-street, from sis to seven in the evening, or from eleven to 
 delivered twelve in the morning." In consequence of this address, Mr. Edwards 
 prisoner's the nest morning called upon the prisoner in Pultney-street, and a con- 
 hands, versation upon the subject of monev transactions took place between 
 ner then them, when the prisoner told Mr. Edwards that he was in the discount- 
 said that if j D g line, and would, whenever he chose, discount a bill for him at the 
 cutor would usua l premium of two and a half per cent, agency, provided it was 
 come to his drawn upon and accepted by a person of known credit and responsi- 
 lodgmgs he D njty. About three weeks after this interview, Mr. Edwards again 
 him the called upon the prisoner, but not finding him at home, he sent his clerk 
 cash. thg next d a y t inquire whether he would discount a bill of one hundred 
 
 j. lie urosc- 
 
 cutor did pounds, accepted by Mr. Wells, of Cornhill, and to request that he 
 notgohim- wou ld call in the city, that he might be fully satisfied of its validity. 
 sent his The prisoner returned with the clerk to the house of Mr. Wells, in 
 clerk, Cornhill, where he was shown into a room to Mr. Edwards, who asked 
 desired not n * m tne * e:rms u P on which he would discount a bill for oue hundred 
 to lose pounds, provided he approved of it. The prisoner answered that he 
 sight of the W o U i(j do it for two and a half per cent, agency, exclusive of the legal 
 
 (s) Hench's case, 0. B. Oct. 1810. Hil. T. 1811, MS.
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 42 
 
 interest for two months. Mr. Edwards immediately delivered the bill prisoner 
 described in the indictment into the hands of the prisoner, and referred t ^ ac 
 him to Mr. Wells, the acceptor of it, who was then present, to satisfy money, 
 himself that it was a genuine acceptance. Mi-. Wells said, that the The pnso " 
 
 • • ml • li -n l 1 Der con " 
 
 acceptance was his hand-writing. The prisoner then told Mr. Edwards, trived to 
 that if he would go with him to Pultney-street, he would give him the S et uwav 
 cash, to which Mr. Edwards replied, that he could not conveniently go e i er k w ith 
 himself, but that his clerk should attend him, and pay him the twenty- the bi P> 
 five shillings agency, and the discount, on receiving the hundred pounds. "°j: pa ying 
 As the prisoner and the clerk departed, Mr. Edwards whispered the the money; 
 clerk not to leave the prisoner without receiving the money, nor to lose *" g |, 'm^ 
 sight of him, and promised to follow them in half an hour. The pri-to be lar- 
 soner and the clerk accordingly proceeded together to the prisoner's ? en y 5 t ! lc 
 lodgings in Pultney-street. When they arrived, the prisoner showed i ng a pre- 
 the clerk into the parlour, and desired him to wait while he fetched the concerted 
 money, saying, that it was only about three streets off, and that he tlie p,.j so '_ 
 should be back again in a quarter of an hour. The clerk, however, ner to get 
 followed him down Pultney-street, but having lest sight of him as he hi ® pos ™ g f 
 turned the corner of another street, walked backward and forwards in sion with 
 the street for a length of time, in hope of seeing him return. The pri- ^^ ^*° 
 soner did not come back again, and the clerk, being joined by Mr. Ed- 
 wards, went again to the prisoner's lodgings, and both of them waited 
 there three nights, in the vain expectation of *the prisoner's return. A *43 
 few days afterwards he was taken, and upon his apprehension expressed 
 his sorrow for what had happened, made several apologies for his mis- 
 conduct, and promised to return the bill. It was objected by the pri- 
 soner's counsel, that these facts did not amount to felony. But the 
 court left the case with the jury to consider, first, whether they thought 
 that the prisoner had a preconcerted design to get the note into his pos- 
 session with an intent to steal it; and, secondly, whether the prosecutor 
 intended to part with the note to the prisoner without having the money 
 paid before he parted with it ? The jury found the affirmative of the 
 first, and the negative of the second question, and concluded that the 
 prisoner was therefore guilty. And this conviction was holden right 
 upon reference to all the judges. (ij 
 
 The prisoner was indicted for stealing bank notes to the amount of Oliver's 
 thirty-five pounds, the property of William Smith, under the following ^isoner * 
 circumstances. The prisoner, being in possession of a quantity of gold offered 
 coin, went into a room in a public house, in the neighbourhood of New- ^ c a c t ° m " 
 castle-upon-Tyne, when the prosecutor, who was a gentleman's servant, the prose- 
 
 and who had about him notes belonging to his master, to a considerable cutor h Z- 
 
 • i ci c i xi g ivin s nim 
 
 amount, happened to come into the same room. . boon atterwarcis the go ia f or 
 
 prisoner took an occasion to make a display of his gold, when a conver- bank note?. 
 
 sation respecting it ensued between him and the prosecutor ; the prose- "jf e prose . 
 
 cutor expressing a wish that the prisoner would oblige him by letting cutor put 
 
 him have some gold in exchange for notes and silver, not at an advanced n °^ er f 
 
 price, but at its legal currency. The prisoner stated that, if it would bank notes 
 
 be any accommodation to the prosecutor, and the prosecutor would do ° u r r p^ e 
 
 him the same kindness on a future occasion, he would let him have some „f their 
 
 gold for his notes and silver ; and the exchange took place to a small being so 
 
 amount. The prisoner then observed, that if it would be of any mate- fhe priso- 
 
 (t) Aickles's case, 0. B. 1784. 1 Leach, 294. 2 East, P. C. c. 16, s. 106, p. 675.
 
 43 OF LARCENY. [BOOK IV. 
 
 ner took up Hal service to the prosecutor, he would procure him a considerable fur- 
 the notes t | 10r q Uan tity of gold, if the prosecutor would lay down notes to the 
 nw:iy with amount. Upon this the prosecutor put down thirty-five pounds, in bank 
 them. Ami no t eS) f or the purpose of receiving back their amount in gold; and the 
 holden to prisoner took them up, and went out of the house with them, promising 
 be larceny, t return immediately with the gold. The prisoner did not return ; and 
 believed T tne prosecutor never saw him again till he was apprehended. Upon these 
 that the facts, Wood, B., held, that the case clearly amounted to larceny, if the 
 ■^tnideTl i ur y De ii eve <l that the intention of the prisoner was to run away with 
 to run away the notes, and never to return with the gold: and that whether the pri- 
 with^the soner h^ a t the time, the animus fur ami I, was the sole point upon 
 not to re- which the question turned ; for if the prisoner had, at the time, the 
 ,l ' rn wi * h animus furandi, all that had been said respecting the property having 
 been parted with by the delivery, was without foundation, as the pro- 
 perty, in truth, had never been parted with at all. The learned judge 
 further said, that a parting with the property in goods could only be 
 effected by contract, which required the assent of two minds : but that 
 in this case there was not the assent of the mind, either of the prosecu- 
 tor or of the prisoner : the prosecutor only meaning to part with his 
 notes on the faith of having the gold in return ; and the prisoner never 
 meaning to barter, but to steal. (w) 
 *44 *So where on an indictment for stealing a half crown, two shillings, 
 
 Obtaining a nd six penny pieces, it appeared that the prisoner went to the shop of 
 fraudulent the prosecutor and asked his son to give him change for a half-crown, 
 pretence of and the boy gave him two shillings and six penny pieces, and the pri- 
 chaneef soner held out the half-crown, of which the boy caught hold by the 
 edge, but never got into his possession, and then the prisoner ran away, 
 having drawn the half-crown out of the boy's hand, and taking it and 
 the change with him ; Park, J. A. J., said, " If the prisoner had only 
 been charged with stealing the half-crown, I should have had great 
 doubt, as the half-crown was his own, but he is also indicted for stealing 
 the two shillings and the copper. He falsely pretends that he wants 
 change for the half-crown, gets the change and runs off; I think that 
 it is a larceny."(v) 
 Where a But where, upon an indictment for stealing a sovereign, it appeared 
 
 tru*ted S *^ a * *^ e prosecutor and the prisoner having entered a beer shop were 
 with a so- drinking together, and that the prosecutor, who had agreed to treat the 
 vereign prisoner, took a sovereign out of his pocket for the purpose of paying, 
 changed, and offered it to the landlady to change, and upon her declaring her ina- 
 and he bility to do so, she placed it on the table, and the prisoner said, " I'll 
 with it, it go an d g et change." The prosecutor said, " you won't come back with 
 is not lar- the change," to which the prisoner replied, " never fear," and taking up 
 prosecutor 6 ^ ne sovereign, left the house, and did not again return. It appeared 
 never ex- from the evidence of the prosecutor, that he was not aware of the last 
 receive* remar k 0I " the prisoner, nor at first that he had gone out with the sove- 
 back that reign, but he had not offered any opposition to the prisoner's taking it, 
 specific having left the sovereign on the table after his reply to the prisoner's 
 offer. For the prisoner, it was submitted that the prosecutor having 
 parted with the legal possession of the sovereign, the subsequent appro- 
 
 («) Oliver's case, cor. Wood, B., Northumberland, Sum. Ass. 1811, cited by Gurney, ar- 
 guendo in Walsh's case. 4 Taunt. 274. 2 Leach, 1072. 
 
 (v) Rex v. Williams, MS. C. S. G., and 6 C. & P. 390," Park, J. A. J. 
 a Eng. Com. Law Rep. xxv. 453.
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 44 
 
 priation of the money by the prisoner did not amount to larceny. Cole- 
 ridge, J., (having conferred with Gurney, B,) said, " It appears quite 
 clear that the prosecutor having permitted the sovereign to be taken 
 away for change, could never have expected to receive back again the 
 specific coin, and he had therefore divested himself at the time of the 
 taking, of the entire possession in the sovereign, and consequently, I 
 think that there was not a sufficient trespass to constitute a lar- 
 ceny."^) 
 
 Upon an indictment for stealing a receipt, the prosecutor proved that If a tenant 
 the prisoner rented some premises of him for 251. a year, and that on & e . fc a re " . 
 the day on which he quitted, there being a half a year's rent due, he rent from 
 took a stamped receipt ready written and signed, to the premises, off hls ,and - 
 which the prisoner had removed all his goods. The prosecutor, at the pretence of 
 desire of the prisoner, went into a room in his house, where the pri- wanting to 
 soner pulled out a bag of money, and asked the prosecutor whether he ^S**te't 
 had brought a receipt, and the prosecutor said that he had, and the pri- to defraiid 
 soner asked to look at it; the prosecutor crave him the receipt, which h i m . of part 
 
 . . ' r ... \ ' . of his rent. 
 
 the prisoner took, and put two sovereigns into the prosecutor s hand and it is a lar- 
 immediately went away ; and upon the prosecutor afterwards asking him cen y of the 
 for the remainder of the money, he *said he had got his receipt and he *5 5 
 should not pay it. The prosecutor stated that at the time he gave the 
 prisoner the receipt, he thought the prisoner was going to pay him the 
 rent; that he should not have parted with the receipt unless he had 
 been paid all the rent ; but that when he put it in the prisoner's hands, 
 he never expected to have the receipt again, and that he did not want 
 the receipt back again, but wanted his rent to be paid. For the prisoner 
 it was submitted that this was not a larceny. For the prosecution 
 Oliver's case(;r) was cited in point; and it was contended that it was 
 clear the prosecutor never intended to part with the receipt unless he 
 was paid all the rent ; the prisoner, on the contrary, never intended to 
 pay the rent, and obtained the receipt by means of fraud. : the property 
 in the receipt, therefore, was not changed, and the case amounted to 
 larceny. Coleridge, J., " I think it is a larceny. The prisoner had 
 removed his goods off the premises, so that the prosecutor could not 
 distrain ; and then the prisoner induces the prosecutor to part with the 
 receipt by asking to look at it, and it is delivered to him for that pur- 
 pose. It is quite clear, also, that the prosecutor never intended to give 
 the prisoner the receipt till he was paid all the rent, and I think the 
 payment of the two sovereigns makes no difference. "(y) 
 
 So where it appeared that the prisoner decoyed the prosecutor into a Property 
 public-house, and there introduced the play of cutting-cards : and that olltainedb y 
 
 III C flDS 01 
 
 one of them prevailed upon the prosecutor (who did not play on his own cards, bets, 
 account) to cut the cards for him ; and then, under pretence that the &c - 
 prosecutor had cut the cards for himself, and had lost, another of them 
 swept his money off the table, and went away with it; it was considered 
 to be one of those cases which should be left to the jury to determine 
 quo animo the money was obtained, and which would be felony, in case 
 they should find that the money was obtained upon the preconcerted 
 plan to steal it. (z) 
 
 (w) Reg. v. Thomas, 9 C. & P. 741. a See Moore's c&Be,post, p. AG. 
 (z) Supra, note («). (y) Reg. v. Rodway, 9 C. & P. 784," and MS. C. S. G. 
 
 (z) Rex v. Horner and others, 1 Leach, 270. Cald. 295, S. C. The case was one of an 
 a Eng. Com. Law Reps, xxxviii. 314. b lb. xxxviii. 334.
 
 45 OF LARCENY. [BOOK IV. 
 
 So if there is a plan to cheat a man of his property under colour of a 
 bet and he parts with the possession only to deposit as a stake with 
 one of the confederates, the taking by such confederate is felonious. 
 The prosecutor was drawn in to deposit twenty guinea notes on a bet 
 that one of the prisoners could not guess right three times successively 
 on the hiding of a halfpenny by another of the prisoners under a pot ; 
 he put the notes in the hands of one of the prisoners, and then the 
 other guessing right, the notes were handed over. The question was 
 left to the jury, whether, at the time the notes were taken, there was 
 not a plan between the prisoners that they should be kept, under the 
 false colour of winning a bet; and the jury so found. Upon a case re- 
 served, the judges (ten of them being present) held that the conviction 
 was right, because at the time of the taking the prosecutor parted with 
 the possession only, (a) 
 
 In some of the cases of this description, the delivery of the goods 
 *46 *taken has been only by way of pledge, or security; but the same doc- 
 trine will apply if such delivery were obtained fraudulently and with 
 intent to steal. This will appear from the following case where the 
 fraud practised was of the kind commonly described by the term ring 
 dropping. 
 Patch's The prisoner, J. Patch, was indicted for stealing a silver watch, steel 
 
 ease. The chai^ & c ., two pieces of foreign coin, and seven shillings in money, the 
 with some property of J. Bunstead. The evidence of the prosecutor was, that the 
 accompli- prisoner and two other persons, who made their escape, had joined him 
 in company m * ne street ; and that, after walking a short space with them, one of 
 with the them stooped down and picked up a purse, which, upon inspection, was 
 pretended' f° una ' to contain a ring, and a receipt for 147?. purporting to be a re- 
 to find a ceipt of a jeweller for " a rich brilliant diamond ring." The prisoner 
 valuable p r0 p 0Se( j that they should go to some public house to consider in what 
 prosecutor manner their respective portions of this prize should be divided, and 
 was to have they went accordingly. Various modes of distribution were then sug- 
 the pre- gested ; and, at length, the prisoner asked the prosecutor if he would 
 tended va- take the ring, and deposit his money and his watch as a security to re- 
 and was' * urn ^ u V on receiving his portion of its value. The prosecutor assented 
 prevailed to this proposal ; and signed a written agreement, dictated by the pri- 
 posU his' 6 soner > to the effect, that when the prisoner, or either of the other two 
 watch, &c, men, returned the watch and money, and seventy pounds, he would re- 
 theri'n^un 6 ^ e ^ ver to t^ em the purse and the ring. The prosecutor then laid the 
 til his share wateh and money in the indictment upon the table, and received the 
 ..fthe value r i n g After which the prisoner beckoned the prosecutor out of the 
 
 should be ° „ r . . . . r . . 
 
 paid. The room, upon a pretence ot speaking to him in private ; and during this 
 
 accompli- interval the other two men went off with the property. The abrupt 
 
 ces of the • %• i_ 
 
 prisoner manner m which they went away make the prosecutor conceive that he 
 
 made off had been defrauded ; but the prisoner told him not to be uneasy, for he 
 
 watchfL., knew tlie two men ver y well > and would take care that he should have 
 and the his money and watch again. The prosecutor, however, secured the 
 ring proved p r i sone r, who then made proposals to him to make the matter up. The 
 
 application to the Court of King's Bench, to bail the prisoners, on the ground that the 
 charge against him amounted only to a misdemeanor. Probably it would have been con- 
 sidered as making an essential difference if the prosecutor had been playing himself at the 
 time, and had parted with his money under the idea that it had been fairly won. See Rex 
 v. Nicholson, ante, p. 27. 
 
 (a) Rex v. Robson and others, East. T. 1820. MS. Bayley, J., Russ. & Ry. 413. This 
 differed the case from Rex v. Nicholson, ante, p. 27.
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 46 
 
 ring was valued at ten shillings. Upon these facts it was objected, on to be of the 
 
 behalf of the prisoner, that as the prosecutor had parted voluntarily „f t"n shif- 
 
 with his property, it was fraud only, and not felony. But the court lings. It 
 
 referred it to the jury to consider whether the whole transaction was ^jury ° 
 
 not an artful and preconcerted scheme, in the three men, feloniously to say whe- 
 
 obtain the prosecutor's watch and money ; and whether the prisoner ther ^^ 
 
 and the other two men were not all in concert together to procure, by with a pre- 
 
 such a pretext, any man's money whom they might meet, and to em- concerted 
 
 bezzle it ; or, in other words, to steal it. And the jury found the pri- ta | n t h e 
 
 soner guilty. (I) watch, <fec, 
 
 The prisoner, H. Moore, was indicted for stealing twenty guineas ^ er ^s ~ 
 
 and four doubloons, the property of John Field. The prosecutor was found 
 
 walking along the street, when a stranger joined company *with him ; *47 
 
 and, after walking a little way in conversation together, the stranger f" llty ", 
 ' ° . , i l-ii- 1 Moore s 
 
 suddenly stopped, and picked up a purse which was lying at a door. caS e. 
 
 After they had proceeded about forty yards, the stranger proposed that Where the 
 
 they should go and drink a pot of porter, and see what they had picked j U c e( j the 
 
 up. The prosecutor was persuaded to comply, and they accordingly prosecutor 
 
 A - x • • j- ur lT U ±1 >■ to deliver 
 
 went into a private room, in an adjacent public-house, where the stranger twenty 
 
 pulled out the purse, and from one end of it produced a receipt, signed guineas 
 W. Smith, for 210/. » for one brilliant diamond cluster ring," and ^b^oL, 
 from the other end he pulled out the ring itself. A conversation then by way of 
 ensued upon the subject of their good fortune, during which the pri- P led s e for 
 soner entered the room; when the ring was shown to him ; and, after f e it jewel 
 praising the beauty of its lustre, he offered to settle the division of its pretended 
 value. The stranger lamented that he had no money about him, upon wittl j nt ent 
 which the prisoner asked the prosecutor if he had any. The prosecutor to steal the 
 replied that he had forty or fifty pounds at home, and the prisoner said ^as^'ldei! 
 that such a sum would just do. They all three then went to the pro- to be lar- 
 secutor's lodgings at Chelsea, where the prosecutor got the money ; and ceny- 
 they then went to a public house in the neighbourhood, where the pro- 
 secutor put down twenty guineas and four doubloons, which the stran- 
 ger, in the presence of the prisoner, took up, and in return gave the 
 prosecutor the ring; desiring that he would meet him at the same place, 
 on the next morning at nine o'clock, and promising that he would then 
 return to him the twenty guineas and the four doubloons, and also 
 give him one hundred guineas for his share of the ring. It was also 
 appointed that the prisoner should be there, and agreed that the prose- 
 cutor and the stranger should give him a guinea each for his trouble. 
 The prisoner and the stranger went away together. The prosecutor at- 
 tended the next morning pursuant to the appointment, but neither of 
 the other parties came. The ring was of very trifling value. It was 
 left with the jury to consider upon these facts, whether the prisoner 
 and the stranger were not confederated together, for the purpose of ob- 
 taining money, on pretence, of sharing the value of the ring, and whe- 
 ther he had not aided and assisted the stranger to obtain the money by 
 
 (b) Patch's case, 0. B. 1782, cor. Gould, J., Perryn, B., and Buller, J., 1 Leach, 238. 2 
 East, P. C. c. 16, s. 107, p. 678. It appears that the court proceeded upon the authority of 
 Pear's case {pott, p. 50). And it appears that their opinion was founded on this, that the 
 possession was obtained by fraud, and the property not altered; for the prosecutor was to 
 have it again ; and that, therefore, it was not like the case of goods sold on credit, where 
 the buyer means immediately to convert them into money, and is not able, nor intends to 
 pay for them ; for there the buyer gets the absolute property by the act and consent of the 
 owner. 2 East, P. C. c. 10, s. 107, p. 679.
 
 47 OF LARCENY. [BOOK IV. 
 
 the means which were used for that purpose. And the jury being of 
 opinion he was so confederated with the stranger, and aiding and assist- 
 ing him, found the prisoner guilty, subject to the opinion of the judges, 
 whether the offence amounted to felony. The case being submitted to 
 their consideration, and eleven of them being present, the majority 
 (nine of them) were of opinion that the guineas and the doubloons were 
 deposited in the nature of a pledge, and not as a loan ; so that, though 
 the possession was parted with, the property was not; (more especially 
 as to the doubloons, which the prosecutor clearly understood were to 
 be returned the next day in specie,) and therefore as the prisoner had 
 obtained them with a fraudulent intent to apply them to his own use, 
 the offence became felony, from the intention with which he gained the 
 possession. And they also held that, as the prisoner and his com- 
 panion were acting in concert together, they were equally guilty. The 
 other two judges thought that the doubloons were to be considered as 
 money, and that the whole was a loan on the security of the ring, 
 which the prosecutor believed to be of much greater value than the 
 money he advanced upon it, and that therefore he had voluntarily 
 *48 parted with the property, as well as the possession. And they *said 
 that when money was delivered by a man on such an occasion, it was 
 not in his contemplation to have the same identical money back 
 again, (c) 
 AVatson's The prisoner, J. Watson, was indicted for stealing several bank notes, 
 case. The f ^g value of 100/., the property of J. Smith, in his dwelling-house, 
 Fnduceda against the 12 Anne, c. 7, (now repealed.) M. Smith, the prosecutor's 
 person to wife, stated, that as she was going along the street the prisoner stooped 
 banknotes down, picked up a small parcel, and said that he had got a prize : upon 
 to him by which she cried, " Halves," and said that it was usual to give half of 
 the fraud of ^ wag f oun( j Thev went together into St. James's Park, where 
 
 ring drop- > . , ■, 
 
 piny, and they examined the parcel in the presence of another man, (who ap- 
 upon the p eare( j to be an accomplice of the prisoner's,) and found in it a locket 
 agreement with a large stone, and a paper purporting to be the receipt of a jewel- 
 that the j er f or 250/. for a diamond locket. The prisoner said his name was 
 should be Smith, that he was the captain of a ship, and that he would go to a 
 returned, friend's house, where his cargo was, and bring 100/. towards paying the 
 value of witness her share. He went accordingly, was absent about fifteen min- 
 the jewel utes, and when he returned, he said that his friend was not at home. 
 H ldT* b After some further proposals respecting the disposal of the locket, it 
 larceny, was at length agreed between them, that the locket should be left in 
 the custody of the witness, and that she should deposit 100/. in the pri- 
 soner's hand as a security to return him the locket the next morning ; 
 at which time she was to receive from him half the value of the locket, 
 as mentioned in the receipt found; and she was to have the 100/. depo- 
 sited in the prisoner's hands, as such security as aforesaid, returned 
 back. They then went to the witness's house, where she procured 
 bank notes to the amount of 100/. and laid them on the table, and the 
 prisoner took up the bank notes, said that they were right, and that he 
 
 (c) Moore's case, O. B. April Sessions. 1T84. 1 Leach, 314. 2 East, P. C. c. 16, s. 107, 
 p. 679. In Marsh's case, O. B. October Session, 1784, 1 Leach, 345, a similar question was 
 reserved ; and afterwards the prisoner was informed that as his case was exactly similar to 
 that of Moore, and no ground either in law or in fact, for making any distinction between 
 them, the judges had declared their opinion that the taking amounted to a felonious taking ; 
 and the prisoner was sentenced to be transported for seven years.
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 48 
 
 would call the next morning and settle the whole. He then delivered 
 up the locket, went off with the notes, and never returned again. The 
 locket was only of the value of five shillings and sixpence. Upon this 
 evidence the prisoner was convicted of the simple felony, in stealing 
 the notes : but a case was reserved for the opinion of the judges upon 
 the objection that this was only a fraud, and not a felony. All the 
 judges held the conviction proper. (fZ) 
 
 But where on an indictment against Wilson and Martin for stealing But if in 
 a hi. note and two sovereigns, the prosecutor said, " I saw Wilson on a s J? ch a ° ase 
 road. Wilson pointed to the ground, and said, < there is a purse.' He cutor part 
 picked it up. I said, <■ We had better have it cried, as some one may with tn ? 
 own it.' He replied, < Some one to whom it does not belong may say tending to 
 it is his, and get it from us.' We walked on, and I said < We had bet- have the 
 ter see what the purse contains.' He replied, ' Not *here, as there are himselfand 
 men at work who will see us.' We went about twenty yards further, sell them, 
 and Wilson opened the purse and took out what appeared to me a gold {j^"" 4 
 watch chain and two seals. He said he did not know the value of #49 
 them, but there was a gentleman on the other side of the road who 
 could probably tell us. This was the prisoner Martin. The things 
 were shown to him, and he said he was in the trade, and asked how we 
 came by the articles. I said we had found them. Martin then said, 
 it was a very prime article, and worth 14^., and that we should divide 
 it between us; and he added, that as we found it on the road, it 
 belonged to us and no one else. Wilson said he would take the things 
 to his master, but the other prisoner said he had no right to do so; and 
 he also said, that if I would buy the other man's share he would give 
 me 1SI. for the articles, and get a good profit for himself besides. He 
 added, that he was the brother of Mr. Dutton, the watchmaker, whom 
 I knew. Wilson had gone on a little way, when he was called back by 
 the other prisoner, who asked him if he would take 11. for his share. 
 This he agreed to do. I gave him a hi. note and two sovereigns, and 
 took the chain and seals ; which were proved to be worth only a few 
 shillings." For the prosecution, Moore's case,(p) and Rex v. Rob- 
 son, (ee) were cited. Coleridge, J., "In Moore's case, nine of the 
 judges thought that the money charged to have been stolen was given 
 as a pledge, so that the possession of it only was parted with by the 
 prosecutor and the property not. In this case the prosecutor intended 
 to part with the money for good and all, and to have the articles. If 
 the party meant to part with the property in the money, as well as the 
 possession of it, I am of opinion that it is no larceny. Here the pro- 
 secutor meant to part with his money for ever. In Rex v. Robson, the 
 party had only the possession of the money given to him as a stake- 
 holder. When this prosecutor parted with his 11. he never intended 
 to have it back again, but meant to sell the chain and seals for himself. 
 The prisoners must be acquitted. "(f) 
 
 (d) Watson's case, 0. B. 1794. 2 Leach, 640. 2 East, P. C. c. 16, s. 107, p. 680. The 
 case was disposed of by the judges in Hil. T. 1795, when upon the supposition that the ver- 
 dict had been taken for the capital offence of stealing in the dwelling-house, (which at first 
 was thought to have been the case) the judges all expressed their opinion that as the notes 
 were in the possession of the prosecutrix, and derived no protection from the house, the case 
 did not fall within the 12 Anne, c. 7, (now repealed). See ante, vol. 1, p. 856. 
 
 (e) Ante, p. 48. (ee) Ante, p. 45. 
 
 (/) Reg. v. Wilson, 8 C. & P. 111. a The prisoners were afterwards tried and convicted 
 for a conspiracy. 
 
 a Eng. Com. Law Reps, xxxiv. 317.
 
 49 OF LARCENY. [BOOK IV. 
 
 Persons If several act in concert to steal a man's goods, and he is induced by 
 
 '!7".'f. '" fraud to trust one of them in the presence of the others with the pos- 
 session of the goods, and then another of the party entice the owner 
 away, in order that the party who has obtained such possession may 
 carry the goods away, all will be guilty of felony, the receipt by one 
 under such circumstances being a felonious taking by all. Standley, 
 Jones, and Webster, conspired to get some money from M'Laughlin, 
 and they pretended that he could not produce 100/., upon which he 
 produced it in notes, which Jones took to count and afterwards handed 
 to Standley, and Standley and Webster pretended to gamble for them. 
 Jones then beckoned M'Laughlin out of the room, and Standley and 
 Webster immediately decamped with the money, and all the three after- 
 wards shared it. Upon a case reserved, the judges were unanimous 
 that this was larceny in all the three. (^7) In another case, County and 
 Donovan planned to rob the prosecutrix of some coats, and County got 
 her to go with him that he might get some money to buy them of her, 
 *50 and she left the coats with Donovan *who immediately absconded with 
 them ; and, upon a case reserved, the judges held the receipt by Dono- 
 van to be a felonious taking of the coats by both."(/;) 
 Pear'scase. The following is a case which, upon its being submitted to the con- 
 Thepnson- gyration f the judges, underwent a great deal of discussion. The pri- 
 horse on soner, J. Pear, was indicted for stealing a black mare, the property of 
 the pre- g Finch. It appeared in evidence, that the prosecutor was the keeper 
 taking a of a livery stable in the borough, and that the prisoner on the 2nd of 
 journey, July, 1779, hired the mare of him, for the day, to go to Sutton in Sur- 
 immediate- re y> an< ^ back again ; and, upon being asked where he lived, said that 
 ly after- he lodged at No. 25, in King street, and that he should return about 
 it^ The e ight o'clock in the evening. He did not return as he had promised; 
 jury in consequence of which the prosecutor went next day to inquire for 
 
 thought Yi'im according- to the direction he had given, but could not find any 
 
 that it was ° . & J 
 
 hired with such person. It turned out that the prisoner sold the mare on the after- 
 the inten- noon f the same day on which he hired it, in Smithfield market. The 
 stealing it, learned judge, by whom the prisoner was tried, left it to the jury to 
 and found consider, whether the prisoner hired the mare with the intent of taking 
 er^uUty 11 " * ne journey which he mentioned, and afterwards changed that inten- 
 of larceny, tion ; and directed them that, if they were of opinion that he did so, 
 verdict was * ne 3 r snou ld acquit him, as in such case the mare must have been sold 
 approved while the privity of contract subsisted : but he directed them to find the 
 of by a ma- p r i soner guilty in case they were of opinion that the journey was a mere 
 the judges pretence of the prisoner's to get the mare into his possession, and that 
 after great h e hj re d ner witb. an intention of stealing her. The iury found the pri- 
 
 cllSC'U^SlOD 
 
 ' soner guilty, and the point was reserved for the opinion of the judges. 
 The judges, after mature deliberation, differed very considerably as 
 to the law of this case. One of them held that it was not felony at 
 common law; because there was no actual taking of the mare by the 
 prisoner. Three others, though they thought that the offence would 
 clearly have been felony by the common law, entertained considerable 
 doubts in consequence of the statutes 33 Hen. 8, and 30 Geo. 2, relating 
 to the offence of obtaining goods by false tokens or false pretences, 
 which statutes made such offences punishable as misdemeanors only. 
 
 (g) Rex v. Standley. East. T. 1806, MS. Baylev, J., Russ. k Ry. 305. 
 (h) Rex v. County, East. T. 1616, US. Baylor, *J. *
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 50 
 
 But seven of the judges were clearly of opinion that the offence was 
 felony. (A They held that the obtaining possession of the mare, and 
 afterwards disposing of her in the manner stated, was in the construc- 
 tion of law such a taking as would have made the prisoner liable to an 
 action of trespass at the suit of the owner, if he had not intended to 
 steal her; for she was delivered to the prisoner for a special purpose 
 only, namely, to go to Sutton, which he never intended to do, but imme- 
 diately sold her. That in this light the case would be similar to what 
 was laid down by Littleton, sec. 71, who says, "If I lend to one my 
 sheep to dung his land, or my oxen to plough the land, and he killeth 
 my cattle, I may have trespass notwithstanding the lending." That if 
 in such a case trespass would have lain, there could be no doubt but 
 that in this case, where the felonious intent at the time of obtaining: 
 the possession, was found by the jury, it was felony by the common 
 law.(,/) 
 
 *The prisoner, Gr. Charlewood, was indicted for stealing a bay geld- *51 
 ing, the property of J. Houseman. The prosecutor was a livery stable Charle- 
 keeper in Crown-street, Soho; and on the 4th October, 1785, the pri- c v a s ° S The 
 soner, who was a post boy, applied to him for a horse, in the name of a prisoner 
 Mr. Eley, saying, that there was a chaise going to Barnet, and that Mr. <-> btained a 
 Eley wanted a horse to accompany the chaise, to carry a servant, and tier pre- 
 to return with the chaise. The gelding described in the indictment was ^ e . n . ce °* 
 
 Till- ii'ii > mi • hiring it to 
 
 accordingly delivered to him by the prosecutor s servant, I he prisoner ta k e a 
 mounted the horse; and, on going out of the stable yard, and meeting journey, 
 a friend of his, who asked him where he was going, he said that he was afterwards" 
 going no further than Barnet. He accordingly proceeded towards Tot- sold it. 
 tenham-court Road, which leads to Barnet, and also, though in some^ " e 
 degree circuitously, to Mr. Eley's house. This transaction took place the jury, 
 about nine o'clock in the moruinor; and between three and four o'clock ? n i r ' g i an 
 
 . i i • • /-i intent to 
 
 in the afternoon of the same day, the prisoner sold the gelding in Good- steal the 
 man's fields, for a guinea and a half, including the bridle and saddle, horse at the 
 The horse appeared to have been ridden very hard, and his knees were hiring it. 
 broken very badly. The purchaser almost immediately disposed of his 
 bargain for fifteen shillings. On putting this case to the jury, it was 
 stated by the court, that the judges in Pear's case, under circumstances 
 similar to the present, had determined, that if a jury be satisfied, by the 
 facts proved, that a person, at the time he obtained another's property, 
 meant to convert it to his own use, it is felony. That there was, how- 
 ever, a distinction to be observed in the present case, though so nice a 
 one as possibly not to be obvious to common understandings. It was 
 this; that if it appeared to them, that the prisoner at the time he hired 
 the horse, for the purpose of going to Barnet, really intended to go there, 
 but that, finding himself in possession of the horse, he afterwards formed 
 the intention of converting it to his own use, instead of proceeding to 
 the place to which the horse was hired to go, it would not amount to a 
 felonious taking. The jury found the prisoner guilty, on the ground 
 
 (i) It is stated also, that Blackstonc, J., the twelfth Judge, who was absent on ac- 
 count of illness, always held that it was felony. 2 East, P. C. c. 16, s. 112, p. G8G, in the 
 note. 
 
 (/) Pear's case, 0. B. 1770. 1 Leach, 212. 2 East, P. C. c. 16, s. 112, p. 685, in which 
 latter work, the judgment (which is stated to have been settled and approved by several of 
 the judges before it was delivered) is given at large.
 
 51 OF LARCENY. [BOOK IV. 
 
 that be intended to steal the horse at the time he hired it ; and he was 
 afterwards executed. (/.")f 
 Spenee'a The prisoner was indicted for horse stealing. It appeared in evidence 
 
 case. The ^.^ j| ic prisoner came to the prosecutor's house, and asked him if he let 
 steal must horses out to hire, and if he could have one. The prosecutor answered, 
 be at the y es J He had a little mare, which he could have, and asked him what 
 hiring 1 1C distance he was going. He replied to Stockport, a distance of between 
 six and seven miles. The prosecutor then saddled and bridled the 
 mare, and asked the prisoner for his address, the prisoner wrote on a 
 slate, which the prosecutor kept for that purpose, as follows : — " Mr. 
 Pope, Cannon-street, 24." The prisoner then begged the prosecutor to 
 accompany him to the Crown Inn, which he did, and then the prisoner 
 mounted the mare and rode away. The prosecutor did not know 
 *52 whether a person of the name of Pope lived *in Cannon-street or not. 
 The prisoner was apprehended at Bury, in an opposite direction to Stock- 
 port, and distant from it sixteen miles. It was Bury fair-day for cattle 
 and horses, the prisoner offered the horse for sale for hi., and at the same 
 time said it was his. Bayley, J., told the jury, » If a person gets pos- 
 session of a horse by hiring, meaning at the time not to use it for the 
 purpose for which he states he hired it, but to endeavour to make it his 
 own, he is guilty of stealing. In these cases, the guilt or innocence of 
 the party depends upon what passed in his mind at the time, and this 
 is to be inferred from circumstances ; if you find, that, instead of going 
 to the place where he stated he was going, he went elsewhere, it raises 
 a presumption that he meant to deprive the original possessor of the 
 Arm- horse. "(Z) So where on a similar indictment in appeared that the pri- 
 
 strong s goner borrowed a ponv from the prosecutor to ride a short distance and 
 case. , . . 
 
 return, but he did not return, nor did he send the pony; and some 
 
 years after the prosecutor met the prisoner by accident, and took him 
 into custody ; Holroyd, J., said, " If the prisoner obtained the pony with 
 a preconcerted fraudulent design in respect of stealing it, it is a felony. If 
 Vicar's he did not doit with a fraudulent design originally it is not a felony.' '(m) 
 case. g where on a similar indictment it appeared that the prisoner went to 
 
 the house of the prosecutor, and told him that his father had sent 
 him to borrow a horse for three weeks, and the prosecutor being ac- 
 quainted with the prisoner's father, dispatched him with the horse 
 agreeably to the supposed recpiest, and the prisoner having got pos- 
 session of the horse by means of the above story, sold it ; Parke, J., 
 held this to be a clear stealing, the prosecutor not having parted with it 
 out and out.(») 
 Semple's Major Semple was indicted for stealing a post-chaise, and the follow- 
 case. The j D g f aets were p rovec i [ n support of the charge. The prosecutor, Mr. 
 obtained a Lycett, was a coachmaker, who let out carriages to hire. The prisoner 
 post- wa s a gentleman who lodged in the neighbourhood under the name of 
 
 (k) Charlewood's case, 0. B. 1786. 1 Leach, 409. 2 East, P. C. c. 16, s. 112, p. 689. 
 Another point was submitted to the consideration of the jury as to a felonious taking after 
 the prisoners return to London, and the end and purpose of hiring the horse being deter- 
 mined ; but as to this, see Rex v. Banks, post, p. 57. 
 
 (I) Spence's case, 1 Lew. 187. (m) Armstrong's case, 1 Lew. 195. 
 
 (n) Vicar's case, 1 Lew. 199. 
 
 f {If a miller, having received an article to grind, fraudulently separate a part of it from 
 the rest, for his own use, the bailment is thereby determined, and the conversion to his own 
 use of the part so separated, animo furandi, is larceny. 1 Pick. 375, Commonwealth o. 
 James.} [A bailee could not be guilty of larceny at Common Law, by a fraudulent con- 
 version of the deposit. Wright v. Lindsay, 20 Alabama, 428.]
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 52 
 
 Major Harrold, and had sometimes hired carriages from the prosecutor, chaise, by 
 as he had occasion for them, and had paid for them with punctuality. ^H\lf Qtent 
 On the first of September, 1785, the prisoner hired a post-chaise of the to convert 
 prosecutor, saying, that he should want it for three weeks or a month, xt t0 s # 
 as he was going a tour round the North. It was agreed that the prisoner and it was 
 should pay at the rate of five shillings a day during that time ; and a j 101 ^ 011 10 
 price of fifty guineas was talked about, in case he should determine to although ' 
 purchase the chaise on his return to London; but no positive agreement the con -. 
 took place between them on the subject of the purchase. In a few days i ngwaB no t 
 afterwards the prisoner took the chaise from Mr. Lycett's with his own for any de- 
 horses, and was driven in it from London to an inn at Uxbridge, where nite time ' 
 he ordered a pair of horses, and went from thence to Bulstrode, and re- 
 turned. He then took fresh horses at the same inn at Uxbridge ; but 
 where he went with the chaise afterwards did not appear. But it 
 appeared that he never returned it to Mr. Lycett, and that no tidings 
 could be obtained of him till twelve months afterwards, when he was 
 apprehended on some other charge. It was submitted to the court, on 
 behalf of the prisoner, that upon these facts the offence did not amount 
 to felony, *and that the case was distinguishable from those of Pear(o) *53 
 and Aickles,(p) inasmuch as in those cases the parties had never obtained 
 the legal possession of the goods delivered to them ; whereas, in the pre- 
 sent case, the prisoner had obtained the chaise upon a contract, which it 
 was not proved that he had broken, as the chaise was not hired for any 
 definite length of time, or to go to any certain place ; and the mere un- 
 derstanding that it was for three weeks or a month, for the purpose of 
 making a tour round the North, made no part of the contract. And 
 even supposing that the contract should be thought not to extend beyond 
 the three weeks or a month, yet, as it was clear that, during that time 
 at least, the prisoner had the legal possession of the chaise, no intention 
 to convert it wrongfully to his own use, arising afterwards, whether from 
 necessity or dishonesty would make the withholding it felony, as the 
 animus furandi must exist at the time the property is obtained. But 
 the court said, that they were bound by the determination of former 
 cases, that it was at that time settled that the question of intention was 
 for the consideration of the jury; and that in this case, if the jury should 
 be of opinion that the original taking of the chaise was with a felonious 
 intent to steal it, and the hiring a mere pretence to enable the prisoner 
 to effectuate that design without any intention to restore or pay for it, 
 it would fall precisely within- the principle of Pear's case, and the other 
 decisions which had been made, and the taking would amount to felony. 
 For if the owner only intended to give the prisoner a qualified use of 
 the chaise, and the prisoner had no intention to make use of that quali- 
 fied possession, but to convert it to his own use, he did not take it upon 
 the contract, and therefore did not obtain the lawful possession of it; 
 but if there were a bona fide hiring, and a real intention of returning 
 it at that time, the subsequent conversion of it could not be felony, 
 for by such contract and delivery the prisoner would have acquired the 
 lawful possession of the chaise; in which case his subsequent abuse of 
 the trust would not be felony. That as to there being no proof of 
 actual conversion in this case, it was not necessary, but the jury must 
 judge of it from the circumstances. If the prisoner had staid out six 
 
 (o) Ante, p. 50. (p) Ante, p. 42.
 
 53 OF LARCENY. [BOOK IV. 
 
 weeks or two months, and on his return had offered to restore the 
 chaise to the owner, or to pay him for it, such a conduct would have 
 been evidence of an honest intention at the time of the hiring. But 
 there was no account given of it, even up to that moment, and there- 
 fore a presumption was raised against the prisoner, which it was incum- 
 bent on him to repel, and if he could not, the jury would have to con- 
 sider, from all the facts in proof, whether the taking were with a 
 felonious intent or not. If it were, the case fell directly within the 
 principle which governed that of Pear's, from which it could not be 
 distinguished. The court, therefore, left the question of intention to the 
 jury, who found the prisoner guilty, and he received sentence of trans- 
 portation for seven years. (g)f 
 *54 In a recent case it has been held, that to constitute a larceny by a 
 
 It seems party, to whom goods have been delivered on hire, there must not *only 
 ^TonTvbe ^ e an °"gi na ^ intention to convert them to his own use, but a subse- 
 an inten- quent actual conversion ; and a mere agreement by the hirer to accept a 
 tion to gum fp ere( j f or the goods is not such a conversion, if the party who 
 time of the makes the offer does not intend to purchase, unless his suspicions as to 
 hiring, hut fa e h one sty and right of the vendor to sell are removed. Upon an in- 
 tual con- " dictment for stealing a horse and gig it appeared that the prisoner, about 
 version half-past ten in the morning, hired the horse and gig of a livery-stable 
 a erwar s. ^ ee p er j n Lcradon, stating that he wanted them for two days for the 
 purpose of going down to Windsor. Instead of going to Windsor he 
 immediately drove in a contrary direction, to Rumford, in Esses, where 
 he arrived at about twelve o'clock, and offered the horse and gig for 
 sale to Mr. Orbell, the landlord at the King's Head Inn at that place, 
 for 25?. Mr. Orbell offered him 151., which the prisoner at first refused 
 to accept, but half an hour afterwards, the gig being then in the yard, 
 and the horse in the stable, he told Mr. Orbell that he must let him 
 have them for the sum offered, as he had been desired by his father to 
 sell them before his return home. Mr. Orbell stated that the value of 
 the horse and gig was at least -151., in consequence of which his suspi- 
 cions were excited, and he did not intend to purchase them, unless the 
 prisoner gave him a satisfactory account of how he became possessed of 
 them ; that after the prisoner agreed to accept the lbl. those suspicions 
 were increased, and he asked further questions of the prisoner, and 
 then, under pretence of going to fetch the money to pay the amount 
 offered, he procured a constable and gave the prisoner into custody. It 
 was objected, that the indictment for the felony could not be sustained, 
 as there had been no conversion. Conceding the hiring was only a pre- 
 tence made use of to obtain the horse and gig, for the purpose of after- 
 wards disposing of them, the possession in law still continued in the 
 owner, and was not determined without a subsequent conversion, either 
 actually proved as in Pear's case and Charlewood's case, or to be pre- 
 sumed from the circumstances as in Semple's case ; and in the present 
 case the subsequent conversion was incomplete, as the contract for the 
 purchase was not concluded on the part of Mr. Orbell. Tindall, C. J., 
 " This case comes near to many of those which have decided that the 
 
 (q) Semple's case, cor. Gould, J., and Adair, Serjt., Recorder, 0. B. 1786, 1 Leach. 420. 
 2 East, P. C. c. 16, s. 112, p. 691. 
 
 f {Bay, 242, State v. Self. 2 Nott & M'Cord, 90, State v. Gormon. 2 Taylor. 44. State 
 v. Jernagans. 2 Stark. Ev. 837, and seq. [new ed. 446, et seq.~\ Ace.}
 
 CHAP. IX. § I.] DELIVERY FRAUDULENTLY OBTAINED. 54 
 
 appropriation of property under circumstances in some degree similar 
 to the present amounted to larceny. However, here there has been 
 no actual conversion of the property, and only an offer to sell. I am of 
 opinion, therefore, that the prisoner must be acquitted. "(r) 
 
 A delivery of goods obtained by a frauduleut abuse of legal *process *55 
 has been already mentioned as amongst the most aggravated of those Delivery 
 cases of larceny where the taking is effected by procuring a delivery of obtained 
 the goods from the owner or other person authorized to dispose of by the 
 them.fs) It will generally be a matter of some difficulty to give satis- fraudul ^ nt 
 
 W ° . » , . - o abuse 01 le- 
 
 factory proof of a felonious intent in such a transaction ; but if the gal process, 
 offence be proved, the severest punishment which it can receive may 
 well be inflicted, for it has been justly observed that such an offence 
 converts the process of the law, which is the best security for property, 
 into an instrument of rapine and plunder. (A 
 
 The books do not furnish many instances of larcenies of this descrip- 
 tion. But it is laid down that if a person, intending to steal a horse, 
 take out a replevin, and having thereby procured the horse to be deli- 
 vered to him by the sheriff, ride him away; or if a man, intending to 
 steal the goods of another, fraudulently deliver an ejectment, and by 
 obtaining judgment against the casual ejector, get possession of his 
 house, and take his g®ods; in both these cases the taking will amount 
 to larceny.(w) So if, under pretext or colour of a capias itilagatum 
 sued out after an outlawry clandestinely obtained against a visible man, 
 his goods be taken with a felonious intent, it will be felony. (v\ 
 
 In a case of this description, where the prisoners were indicted forParre and 
 breaking the house of R. Stanyer, putting his wife in fear, and stealing Cha j d ", 
 goods, the following facts were proved. The prisoners intending to rifle case. 
 a house in which a Mrs. Stanyer lived apart from her husband, went to G °°ds ob- 
 an attorney, and pretending that Mrs. Stanyer was tenant to one of ame y * 
 
 (r) Reg. v. Brooks, 8 C. & P. 295. a Assuming that this case is accurately reported, the 
 correctness of the decisiou seems liable to great doubt. The question for the jury in such 
 cases, is, what was the intention of the prisoner at the time when he obtained possession of 
 the chattel? Now the acts of the prisoner subsequent to that time are only material, for 
 the purpose of enabling the jury to decide what his intention was at the time of the taking. 
 An actual conversion is undoubtedly cogent evidence that the chattel was originally ob- 
 tained for that purpose ; but it is only evidence ; and it is easy to suggest cases equally 
 strongly indicative of a felonious intent at the time of the taking ; thus, suppose a prisoner 
 had hired a horse from A. for a day, and had taken it into a distant part of the country, 
 and there used it for his own purposes for a long period, and being apprehended, had con- 
 fessed that he obtained the horse fraudulently with intent to keep it for his own use, and 
 wholly to deprive the owner of it ; and that he had made false representations for that pur- 
 pose ; could it be contended, that there was no evidence to go to the jury of an intent to 
 steal at the time of the taking? So in the principal case it is submitted that although no 
 actual conversion took place, still there was evidence for the jury that the horse and gig 
 were obtained with intent to convert them to the prisoner's use. It seems difficult also to 
 see how the fact that Mr. Orbell did not intend to complete the contract, could vary the 
 effect of the prisoner's acts ; the prisoner had done all on his part to complete the contract, 
 and as against him it might well have been held that the conversion was complete ; in the 
 same way as it has been held that the offence of bribery where A. gives money to B. to 
 induce him to vote for a candidate, and B. agrees so to do, although he never intends so to 
 vote. Henslow v. Fawcett, b 3 Ad. & E. 51. Harking v. Stokes, 2 M. & W. 233. See also 
 Spence's case, ante, p. 51, where there seems to have been no sale. C. S. G. 
 
 (s) Ante, p. 25. 
 
 (t) 1 Hawk. P. C. c. 33, s. 12. 2 East, P. C. c. 16, s. 96, p. 660. 
 
 (w) 3 Inst. 108. 1 Hale, 507. Kel. 43. 1 Hawk. P. C. c. 33, s. 12. 2 East, P. C. c. 16, 
 s. 96, p. 660. 
 
 (v) 2 East, P. C. c. 16, s. 96, p. 060. And see cases of a breaking and entering in bur- 
 glary, effected by fraud, ante, Vol. 1, p. 793. 
 
 a Eng. Com. Law Reps, xxxiv. 396. b lb. xxx. 24. 
 
 Vol. ii. — 5
 
 55 OP LARCENY. [BOOK IV. 
 
 ^t _ 
 
 fraudulent them, and in arrear for rent, obtained possession of the house by 
 ment * means of a fraudulent ejectment ; and at the same time arrested Mrs. 
 Stanyer, by virtue of a writ of latitat, and caused her to be carried to 
 prison. The prisoners then rifled the house, and took away the goods, 
 some of which they hid, altered the marks of others, and sold the rest. 
 When they were questioned concerning these acts, and asked what 
 colour of title they had to the house or goods, they could pretend none. 
 And it was proved, that the real landlord had received the rent of the 
 house for many years, and that no rent was in arrear. Neither could 
 the prisoners pretend to any cause of action against Mrs. Stanyer. 
 Upon these facts the jury was directed, that if they believed that the 
 prisoners had done all this with an intent to rob, they ought to find 
 them guilty, which they accordingly did, and both prisoners were exe- 
 cuted.^) 
 *5Q *II. Where it appears that the delivery of the goods by the owner, 
 
 l '■livery of or person authorized to dispose of them, toas not obtained fraudulently , 
 ')u .f'°| S and with intent to steal, a remaining inquiry may be; — whether such 
 without lawful possession has been determined, and whether there has been any 
 
 fraud, and new an( j felonious taking;, (a: 'j Thus it has been held, that if a carrier 
 
 duestioii ° \ / , ' 
 
 whether' take a pack of goods to the place appointed, and deliver or lay it down, 
 
 there has hi s possession is determined ; and if he afterwards carry it away with 
 , : . ! .ionU intent to steal it, this will be a new taking, and felonious.^) 
 
 .u taking. If the lawful possession has not been determined, the goods will 
 continue in the possession of the party to whom they were delivered by 
 bailment ; and the general principle of law will prevail, " that if a per- 
 son obtain the goods of another without fraud, although he have the 
 animus fur andi afterwards, and convert them to his own use, he can- 
 not be guilty of felony.'Vz) A principle which has been holden to ex- 
 tend to the cases of a tailor, who has cloth delivered to him to make 
 clothes with ; a carrier who receives goods to carry to a certain place ; 
 and a friend who is entrusted with goods to keep for the use of the 
 owner; which they afterwards severally embezzle. (a) And so if a 
 watch be delivered to a person to mend, and he sells it, this has been 
 held not to be larceny. (6) And so also, if plate be delivered to a gold- 
 smith to work or to weigh, or as a deposit, it has been held that his 
 conversion of it will not be a felony, (c) It has, however, been already 
 noticed, that some of the cases of this nature seem to make a near 
 approach to those where a bare charge, or mere special use of the goods, 
 is transferred by the delivery, and where, consequently, the legal pos- 
 session of them remaining exclusively in the owner, larceny may be 
 committed in respect of them, exactly as if no delivery at all had been 
 made. (cZ) 
 
 Delivery of It appears always to have been considered, that where a horse was 
 rse, &c. delivered upon hire or loan, and such delivery was obtained bona fide, 
 
 • ■■) Rex v. Richard Farre and Eleanor Chadwicke, 0. B. 1665. Kel. 43, 44. 2 East. P. 
 C. c. 16. s. 96, p. 660. 2 Leach, 1064, note (a). 
 
 Ante, p. 35. {y) 3 Inst. 107. 1 Hale, 505. 
 
 (z) 3 Inst. 107. 2 East. P. C. c. 16, s. 113, p. 693. 
 
 Staundf. P. C. c. 25. 1 Hale, 504, 505. 3 Inst. 107, 108. 1 Hawk. P. C. c. 33, s. 2. 
 2 East, P. C. c. 16, s. 113, p. 693. 
 
 (b) Rex v. Levy, 4 C. & P. 241, a Vaughan, B. 
 
 (c) 3 Hen. 7, pi. 12, cited by Shower. 1 Show. 52. 2 East, P. C. c. 16, s. 113, p. 693. 
 ', Ante, p. 21, et seq. 
 
 a Eng. Com. Law Reps. xix. 365.
 
 CHAP. IX. § I.] TAKING, ETC., BY DELIVERY, ETC. 56 
 
 no subsequent wrongful conversion pending the contract would amount upon hire, 
 to felony; and so of other goods. (e) But it was at one time held that j^Tj 1 ,^, 
 when the purpose of the hiring, or loan, for which the delivery was 
 made, had ended, felony might be committed by a conversion of the 
 goods ; and consequently, that if the hiring of a horse was limited to a 
 particular time or place, and after that time had expired, or the party 
 had arrived at the proper place for the re-delivery, he rode away with 
 the horse, and converted it to his own use, it was larceny. (/) But this 
 doctrine was considered, and held to be wrong in a case of recent occur- 
 rence. The prisoner had borrowed a horse to take a child to a neigh- 
 bouring surgeon, and after he had done so, and returned, he took the 
 horse in a different direction, and *sold it. The jury were satisfied that *5T 
 he had no felonious intention when he borrowed it ; but as the purpose 
 for which he hired it was over before he took the horse to the place 
 where he sold it, the jury were directed to convict in order that the 
 point might be considered ; and upon a case reserved, the judges 
 held that there was no felonious taking, and that the conviction was 
 wrong. ((7) So that it is now settled, that where the owner parts with 
 the possession of goods for a special purpose and the bailee, when that 
 purpose is executed, neglects to return, and afterwards disposes of 
 them, if such bailee had not a felonious intention when he originally 
 took the goods, &c, a subsequent withholding and disposing of them, 
 will not constitute a new felonious taking nor make him guilty of 
 felony, (g) 
 
 In the following case a conversion of goods was holden not to be n^h's 
 felonious, on the ground that the original taking was not with the in- case. The 
 tent to steal. The prisoner was indicted for stealing; various articles, co , nver s ion 
 the property of Abraham Dyer. It appeared that the prosecutor's holden not 
 house, in which was a shop containing the muslin and other articles t0 . be fel °" 
 mentioned in the indictment, was on fire; and that his neighbours had, the ground 
 in general, assisted at the time in removing his goods and stock for that the 
 better security. The prisoner probably had removed all the articles, taid n g a was 
 which she was charged with having stolen, when the prosecutor's other not with 
 neighbours were thus employed; and it appeared that she removed some intent t0 
 of the muslin in the presence of the prosecutor, and under his observa- 
 tion, though not by his desire. Upon the prosecutor's applying to her 
 next morning, she denied that she had any of the things belonging to 
 him ; whereupon he obtained a search warrant, and found his property 
 in her house ; most of the articles being artfully concealed in various 
 ways. Upon this evidence it was suggested on behalf of the prisoner, 
 that she originally took the articles with an honest purpose, as her 
 neighbours had done, and that she would not otherwise have taken 
 some of them in the presence and under the view of the prosecutor; 
 and that therefore the case did not amount to felony. The court left 
 the case to the jury ; telling them that whether the prisoner took the 
 goods originally with an honest intent, was a question of fact for their 
 consideration : but that even if they were of opinion that she did take 
 
 (e) 1 Hale, 504. 2 East, P. C. c. 16, s. 114, p. 693. 
 
 (f) Charlewood's case, 1 Leach, 459. 2 East, P. C. c. 16, s. 112, p. 689, and s. 114, p. 
 694. Tunnard's case, cor. Raymond, C. J., Denton, J. and Hale, B., 0. B. 1729. 2 East, P. 
 C. c. 16, s. 112, p. 587, and s. 14, p. 694. 1 Leach, 214, note (a). 
 
 (r/) Rex v. Banks, East. T. 1821, MS. Baylcy, J., and Russ. & Ry. 441. And see Rex v. 
 Stock, and other cases, post, chap. xiv. tit. Of Larceny by Servants.
 
 57 OP LARCENY. [BOOK IV. 
 
 them with an honest intent, yet her afterwards hiding them in the 
 various ways proved, and denying that she had them, in order to convert 
 them to her own use, would still support the indictment. The jury, 
 upon this direction, found her guilty; hut said that in their opinion, 
 when she first took the goods from the shop she had no evil intention, 
 but that such evil intention came upon her afterwards. And the case 
 being submitted to the consideration of the judges, they held the con- 
 viction wrong; and were of opinion that upon this special finding there 
 was no felonious taking, but merely a breach of trust : some of them, 
 however, thought that it might have been left strongly with the jury 
 that the subsequent conduct marked the original intention. (ft) 
 *58 * Where goods are delivered to a party by mistake, such party hav- 
 
 Where [ n „ done no fraudulent act in order to cause them to be so delivered, 
 delivered aQ d such party afterwards disposes of them to his own use, this is not a 
 to a party larceny, on the ground that there was no animus furandi at the time 
 an^h e ta e ' when the goods were delivered. The prisoner, James Mucklow, was 
 afterwards indicted for stealing a draft, which was unstamped and was written on 
 disposes of j. ne same snee t of paper with a letter, directed "James Mucklow, Saint 
 own use, it Martin's Lane, Birmingham," and was sent by post to Birmingham. 
 is not lar- ^ p erson f that name beintr found or heard of to be living in Saint 
 
 ceny if D6 ... 
 
 was guilty Martin's Lane, and the prisoner living in a house, about a dozen yards 
 of no fraud f rom Saint Martin's Lane, with his father, the postman called with the 
 them to be letter at their house when they were out, and left a message that there 
 delivered was a letter for them, which they were to send for : and it was in con- 
 imse ' sequence thereof delivered the same day to the father, and afterwards 
 came to the hands of the prisoner, his son, who appropriated the draft 
 to his own use, and received payment of it, under circumstances proved 
 by evidence arising from the contents of the letter, and otherwise, that 
 satisfied the jury he knew the letter and draft were not intended for 
 him, but for another person. It was objected that this did not amount 
 to larceny, as the possession of the letter and draft had been volunta- 
 rily parted with by the drawers, and by the postman, without any fraud 
 on the part of the prisoner; and upon a case reserved, the judges held 
 the conviction wrong, on the ground that it did not appear that the 
 prisoner had any animus furandi when he first received the letter (i\ 
 Privity of The privity of contract may be determined before its regular comple- 
 eontract t ion by the tortious act of the bailee. 
 
 ed, after de- A. delivers the key of his chamber to B. who unlocks the chamber 
 livery, by an( j takes the goods of A. with intent to steal them ; this has been 
 acts of the holden to be felony, for the reason that the goods were not delivered to 
 bailee. B. but taken by him; a judgment which appears to have proceeded 
 upon the ground that by the delivery of the key in this case, it was not in 
 the contemplation of the parties to make a delivery of the goods con- 
 
 (h) Leigh's case, cor. Lord Eldon, Wells Sum. Ass. 1800, and considered by the judges 
 (Lawrence, being absent) in Mich. T. 1800. 2 East, P. C. c. 16, s. 114, p. 694. 1 Leach, 411. 
 note (a), and MS. The note of Le Blanc, J., as to the opinion of the judges, that they 
 thought the possession of the owner continued, and that the evidence of a subsequent 
 taking away was not sufficient, MS. Bayley, J. 
 
 (?) Rex v. Mucklow, R. & M. C. C. & R. 160. The letter and draft which was drawn by 
 Lea & Sons, at Kidderminster, were intended for another James Mucklow, of New Half- 
 street, Birmingham, by mistake the letter was directed to St. Martin's lane. Two other 
 points were reserved, but no opinion given as to either of them, viz., whether the draft being 
 prawn more than ten miles from Birmingham and unstamped, was not wholly void, and if 
 so, not the subject of larceny, and whether the draft was of any value in the 'hands of the 
 drawers, according to the opinion in Walsh's case, ante, p. 30.
 
 CHAP. IX. § I.] TAKING, ETC., BY DELIVERY, ETC. 58 
 
 tained in the room.^') But supposing the key to have been delivered 
 for the purpose of entrusting the party with the care of the goods, still 
 according to a very good opinion, the taking of the goods out of the 
 room, with a felonious intent, might have been felony ; on the ground 
 that, by the act of taking the goods with such an intent out of the room 
 in which they were intended to remain for safe custody, the privity of 
 the contract would have been determined in the same manner as if they 
 had been delivered in a box, and taken out of it afterwards. (/«;) 
 
 Upon the same principle of a determination of the privity of contract Carrier, 
 by a tortious act of the bailee, it has been holden, that if a carrier open weaver,^ 
 a pack and take out part of the goods, or a weaver take part of the silk the'goods 
 which he has received to work, or a miller take part *of the corn which delivered 
 has been delivered to him to grind, such takings, if with a felonions *nn" 
 intent, will be felony. (ty And in a more recent case, it was held that 
 where a warehouseman took all the wheat out of certain bags which had 
 been delivered to him for safe custody, and disposed of it, he was guilty 
 of larceny. The prisoner had received forty bags of wheat to keep in 
 his warehouse for one Neale ; having no authority to sell, or to show 
 samples; he emptied eight of the bags, and sold the wheat they con- 
 tained, and afterwards filled the bags with inferior wheat ; but as it did 
 not appear that he had taken less than the whole of any one bag, the 
 point was saved, whether any larceny had been committed, and the 
 judges were unanimous that this was a larceny, and that taking the 
 whole out of any one bag, was not less a larceny than taking a part.(m) 
 
 With respect, however, to a conversion of goods by a carrier, a nota- Distinction 
 
 ble distinction should be observed, namely, that though if a carrier, to m *} ie car " 
 i i f i • i i- i i . t -i rier s case. 
 
 whom a package ot goods is delivered to take to a certain place, open 
 
 the package and take out part of the goods, it will be a felonious taking; 
 yet it will be no felony if he take away the whole package, (n) The 
 doctrine seems indeed to savour a little of contradiction, (o\ and has 
 been considered as standing more upon positive law not at this time 
 to be questioned, than sound reasoning, (p) The distinction appears to 
 have proceeded upon the ground that the act of breaking the package 
 is an act of trespass in the carrier by which the privity of contract is 
 determined ; whereas, if there be no breaking of the package, no seve- 
 rance of part of the commodity from the rest by the carrier, but the 
 whole of it be parted with by him in the state in which it was delivered 
 to his hands, there will be nothing whioh will amount to a trespass 
 while the package remains in his possession. And, if this be the true 
 principle of the distinction, it does not seem to make any difference, 
 where there is such a breaking of the package, whether the carrier take 
 the whole or a part only of its contents. (j) 
 
 (,/) 1 Hale, 505. (k) 2 East, P. C. c. 1G, s. Ill, p. 685. 
 
 (1) 3 Inst. 107, 108. 1 Hale, 505. 1 Hawk. P. C. c. 33, s. 4. 
 
 (m) Rex v. Brazier, Mich. T. MS. Bailey, J., and Russ. & Ry. 337. 
 
 (n) 3 Inst. 107. 1 Hale, 504. 1 Hawk. P. C. c. 33, s. 2, 4. 
 
 (o) See Kel. 83, where the learned reporter says, "I marvel at the case put 13 Edw. 4, 9, 
 b, that if a carrier have a ton of wine delivered to him to carry to such a place, and be 
 never carry it, but sell it all, this is not felony ; but if he draw part of it out, above the 
 value of twelvepence, this is felony. I do not see why the disposing of the whole should 
 not be felony also." As to the part of this passage — " above the value of twelvepence," 
 there seems to be no reason why, if a taking of that amount would have been grand lar- 
 ceny, a taking to the value of twelvepence, or under, might not have been petit larceny. 
 
 (p) 2 East, P. C. c. 16, s. 115, p. 695. 
 
 \q) 3 East, P. C. c. 16, s. 115, p. 697.
 
 59 OF LARCENY. [BOOK IV. 
 
 It should be mentioned, that in a book of high authority a different 
 principle is assigned for this distinction, namely, that the subsequent 
 act nf the carrier, in opening the goods and disposing of them to his own 
 use, u declareth that his intent originally was not to take the goods 
 upon the agreement and contract of the party, but only with a design of 
 stealing them."(r) But it is well observed, that though such previous 
 intent may appear from the evidence in particular cases ; yet, if it were 
 to be inferred from the mere fact of the carrier's embezzling the goods, 
 there would be an end of the distinction itself; for if the taking of 
 goods out of the package, be evidence of the carrier's having originally 
 *60 intended to take the goods, *not upon the agreement, but with intent 
 to steal them, a fortiori, the taking the whole package of goods, 
 whether broken or not, and converting it, must be evidence of such 
 intent, (s) 
 
 It will be material, therefore, in cases where goods are charged to 
 have been stolen by a carrier, to show that the package in which they 
 were contained was broken or opened by him ; but what will amount 
 to sufficient evidence of that fact will depend, of course, upon the cir- 
 cumstances of each particular case, and will be peculiarly within the 
 province of the jury to determine. In a case where a woman had 
 entrusted a porter to carry a bundle for her to Wapping, and went with 
 the porter, and in going to the place the porter ran away with the 
 bundle, which was lost; it is reported that a very learned judge, after 
 telling the jury that if they thought that the porter opened the bundle 
 and took out the goods it was felony, and they ought to find him guilty ; 
 further declared it to be his opinion, that the facts, as they have been 
 above stated, were evidence of his having opened the bundle, and taken 
 out the goods. (?) But it has been doubted, with great propriety, 
 whether upon the facts, as thus stated, the evidence was sufficient to 
 warrant the jury in finding that the porter opened the bundle, and took 
 out the goods ;(«) and there certainly seem to be better grounds upon 
 which this case might have been decided. (v\ 
 
 In a modern case it was held, that the master and owner of a ship 
 disposing of some of the goods delivered him to carry, was not guilty 
 of larceny, as it did not appear that he took the goods out of their 
 packages. The prisoner received 280 casks of butter, to carry in a ship 
 of which he was the master and owner; on the voyage he made a false 
 protest, stating that he had been forced to throw overboard several 
 casks; and he had in fact stopped at Cowes and disposed of thirteen 
 casks at that plate. The indictment contained one count upon the 21 
 Geo. 2, c. 45, and another for a larceny at common law, but upon a 
 case reserved, the judges held it to be a larceny, either at common law, 
 or under the statute. (wj) 
 Persons not If a person employed to carry goods for hire to one person, deliver 
 
 (r) Kel. 82. (s) 2 East, P. C. c. 16, s. 115, p. 696, 697. 
 
 (t) Anon. cor. Holt, C. J., 0. B. 1701. 2 East, P. C. c. 16, s. 115, p. 697. 1 Leach, 415. 
 note (a). (w) 2 East, P. C. c. 16, s. 115, p. 696, 697. 
 
 (v) It is stated to have been suggested in 2 MS. Sum. 235, that a ground for the deter- 
 mination in this case might have been, that all the circumstances of it showed that the 
 porter took the bundle at first with intent to steal it ; and also to have been suggested by 
 some of the judges, in the argument on Pear's case (ante, p. 50.) that the bundle, though 
 delivered, being intended to continue in the owner's presence, was, in point of law. in her 
 possession. 2 East, P. C. c. 16, s. 115, p. 698. 
 
 (w) Rex v. Madox, Mich. T. 1805. MS. Bayley, J., and Russ. & Ry. 92.
 
 CHAP. IX. § I.] TAKING, ETC., BY DELIVERY, ETC. 60 
 
 — * & +>• 
 
 them fraudulently to another, but does not break bulk, this is not lar- common 
 ceny, although the person be not a common carrier, but was only em- carners " 
 ployed in the particular instance. Upon an indictment against Fletcher 
 and Mellor for stealing various articles, the prosecutor stated that the 
 goods were packed up in four packages, and that he directed the pri- 
 soner to carry them to the house of Fletcher's father, who was to keep 
 them safe for his use. The goods were to be conveyed in the prosecu- 
 tor's cart, but the horse belonged to Fletcher. The prisoners were 
 neither of them the servants of the prosecutor, but were to be paid for 
 their trouble. The packages were not taken to Fletcher's *father's, *Q\ 
 and some of the goods were found loose in the house of one Beardmore. 
 Patteson, J., " There is no evidence that the packages were opened 
 while the goods were in the possession of the prisoners, and a carrier 
 cannot be convicted of larceny, unless he breaks bulk." It was then 
 urged for the prosecution, that the prisoners were not carriers, but were 
 merely employed in this particular instance. Patteson, J., " They car- 
 ried for hire. It is proved that they were to be paid for taking these 
 goods. There is the case of a captain of a ship, which is a very strong 
 authority on this point. The prisoners must be acquitted. "(x) So 
 where on an indictment for stealing a truss of hay, it appeared that 
 Cheatle had sent three trusses of hay consigned to Bayliss by the pri- 
 soner's cart, and that the prisoner had taken away one of the trusses, 
 which was found in his possession, but not broken up; Parke, J., said, 
 " This is no larceny, as the prisoner did not break up the truss. "{y) 
 
 Upon an indictment for stealing three staves of wood, it appeared Separating 
 that the prosecutor, who was the owner of a vessel laden with timber, one stave 
 employed the prisoner, who had a boat, to carry the staves in question, e q U i va i e nt 
 as well as other staves, ashore in that boat ; the boat was manned prin- to break- 
 cipally by the prosecutor's men, but was under the entire control of the ing 
 prisoner; the prisoner never landed two of the staves, and concealed 
 them in the bottom of his boat under some nets ; and one of the staves 
 which he landed he carried to his mother's house; it was objected that 
 the prisoner was bailee of the staves, and could not be guilty of larceny, 
 unless he broke bulk : it was replied that this was a mere charge, and 
 not a bailment, as the servants of the owner were present during the 
 transit of the staves; but that even if it were a bailment, yet as the 
 staves were delivered to the prisoner altogether, the separating one 
 from the rest, and carrying that one to a different place, was equivalent 
 to breaking bulk. Patteson, J., " I think that this was a case of bail- 
 ment, although the prosecutor's servants were on board, because they 
 were there under the prisoner's control. That being so, if the prisoner 
 had not taken the staves out of the boat, the mere non-delivery of them 
 would not have amounted to larceny ; but the prisoner separating one 
 of the articles from the rest, and taking it to a place different from that 
 of its destination, was, if he did it with intent to appropriate it to his 
 own use, equivalent to breaking bulk ; and, therefore, would be suffi- 
 cient to constitute a larceny. I shall leave it to the jury to say, whe- 
 ther the prisoner removed the stave to his mother's with intent to con- 
 vert it to his own use."(s) 
 
 (x) Rex v. Fletcher, 4 C. & P. 545," and MS. C. S. G. Patteson, J., added, "If the 
 horse had belonged to the prosecutor, I should have thought differently." M.SS. C. S. G. 
 (?/) Rex v. Pratley, 5 C. k P. 583." (z) Rex *;. Howell, 7 C. & P. 325. 
 
 a Eng. Com. Law Reps. xix. 519. b Ibid. xxiv. 443. c lb. xxxii. 526.
 
 (',1 OF LARCENY. [BOOK IV. 
 
 Ai> -tract- Upon an iudictuient for stealing two half sovereigns, it appeared that 
 tag money ^ p rosecu trix asked the prisoner, who was not her servant, but only a 
 t>rs. casual acquaintance, to put a letter in the post for her, telling her at 
 
 the same time that it contained two half sovereigns, for the purpose of 
 paying a bill ; the prisoner abstracted the money by breaking the seal 
 of the letter before she put it in the post; Mirehouse, C. S. (after con- 
 sulting Gaselee, J.,) said that in his opinion, and, in that of the learned 
 judt^e, it was larceny. (a) So where, on an indictment for stealing bank 
 *02 notes, it appeared that the prosecutor *gave the prisoner, who was not 
 his servant, a parcel containing the notes to take to the Bull and Mouth 
 Inn, to be sent to Nottingham, and the parcel arrived, but without the 
 notes in it, and two of the notes were afterwards found at the prisoner's 
 lodgings. It was contended for the prisoner, that as he was not the 
 servant of the prosecutor, there was no trespass, and, therefore, there 
 was no larceny, and that the cases as to breaking bulk were all cases of 
 carriers ; but the court were of a contrary opinion, and held that as the 
 parcel must have been opened and the notes abstracted, it did amount 
 to larceny. (6) 
 
 SECT. II. 
 
 Of the Personal Goods in respect of which the offence of Larceny may 
 he committed.^ 
 
 In pursuing this part of the inquiry respecting the offence of larceny, 
 there seem to be three points which more particularly require conside- 
 ration ; I. Whether the goods taken were in any way part of the free- 
 hold ; II. Whether they consist of written instruments ; and III. 
 Whether they consist of animals, birds, or fish. 
 By the I. By the common law, larceny cannot be committed of things which 
 
 .omraon sav our of the realty, and are, at the time they are taken, part of the 
 ceny can- freehold ; whether they be of the substance of the land, as lead or other 
 notbecom- m j nera ] s . f th e p roc [ uce f the land, as trees, corn, grass, apples, or 
 things that other fruits ; or things affixed to the land, as buildings, and articles, 
 are part of such as lead, &c, annexed to buildings. (e\ The severance and taking 
 hold. °f things of this description is, at common law, only a trespass. One 
 
 reason for which doctrine, (though it does not apply to the whole of the 
 articles which have been enumerated) is said to be, that things which 
 are a part of the freehold, being usually more difficult to remove, are 
 less liable to be stolen :(d} possibly also, the doctrine may have pro- 
 ceeded upon certain subtilties in the legal notions of our ancestorsj(e) 
 and it may perhaps in some measure have originated in the greater 
 security from private depredations of the things which were part of the 
 
 (a) Rex v. Jones, a 7 C. & P. 151. 
 
 (b) Reg. v. Jenkins," 9 C. & P. 38, Gurney, B., and Bosanquet, J. See Reg. v. Heath, 
 ante, p. 34. 
 
 (c) 3 Inst. 109. 1 Hale. 510. 1 Hawk. P. C. c. 33, s. 33. Bac. ab. tit. Felony (A). 4 
 Bla. Com. 232. 2 East, P. C. c. 16, s. 27, p. 587. 
 
 (d) 1 Hawk. P. C. c. 33, s. 34. 2 East, P. C. c. 16, s. 27, p. 587. (e) 4 Bla. Com. 242. 
 .*, . _____ 
 
 f {See 2 Stark. Ev. 829, [new ed. 444] and American cases there collected.} 
 a Eng. Com. Law. Reps, xxxii. 562. b Ibid, xxxviii. 27.
 
 CnAP. IX. § II.] THEFT. — THINGS PART OF THE FREEHOLD. 62 
 
 freehold, than of those which were merely personal, in the earlier times, 
 when articles of provision and other personal chattels (frequently the 
 most valuable) were carried from place to place by the individual ten- 
 ants, in that attendance in the camp which was exacted by their mili- 
 tary tenures. (/) 
 
 But things, though they savour of the realty, may become the sub- But they 
 jeets of larceny by being severed from the freehold : thus, if stones be bec ? me 
 dug out of a quarry, wood be cut, fruit be gathered, or grass be cut, larceny, by 
 larceny may be committed of them.(^) And this will be the *case nothing se - 
 only where they have been severed by the owner, but also by the thief J/jq 
 himself, if there be an interval between his severing aud taking them 
 away ; so that it cannot be considered as one continued act. If there- 
 fore the thief sever them at one time, whereby the trespass is completed, 
 and they are converted into personal chattels in the constructive posses- 
 sion of him on whose soil they are left or laid, and come again at 
 another time when they are so turned into personalty and take them 
 away, it is larceny.(A) Thus though "if a thief severs a copper, and 
 instantly carries it off, it is no felony at common law : yet if he lets it 
 remain, after it is severed, any time, then the removal of it becomes a 
 felony, if he comes back and takes it : and so of a tree which has been 
 some time severed. "(i\ 
 
 This being the common law, and many of the descriptions of property statutes 
 which come within this notion of a connection with the freehold being making it 
 thereby placed in a very precarious and unprotected situation, the legis- ta k e 
 lature from time to time interfered for their protection, and made the wrongfully 
 wrongful taking of them in some instances felony, and in others a minor ar e D part of 
 offence, punishable by summary proceedings before a magistrate. These the free- 
 provisions are for the most part amended and consolidated by the 7 & 8 ° ' 
 Geo. 4, c. 29. 
 
 The 37th section of which enacts, " that if any person shall steal, or Stealing 
 sever with intent to steal, the ore of any metal, or any lapis calaminaris, f r ? m c ? r " 
 
 ttiiii mines. 
 
 manganese or mundick, or any wad, black cawke, or black lead, or any 
 coal or cannel coal, from any mine, bed, or vein thereof respectively, 
 every such offender shall be guilty of felony, and being convicted thereof 
 shall be liable to be punished in the same manner as in the case of simple 
 larceny, "(j) 
 
 By sec. 44, " if any person shall steal, or rip, or cut or break with Stealing 
 intent to steal, any glass or wood-work belonging to any building what- ng , s , an ~ 
 soever, or any lead, iron, copper, brass, or other metal, or any utensil or buildings, 
 fixture, whether made of metal or other material, respectively fixed in &c - 
 or to any building whatsoever, or anything made of metal fixed in any 
 land being private property, or for a fence to any dwelling-house, garden, 
 or area, or any square, street, or other place dedicated to public use 
 
 (/) Bac. Ab. tit. Felony (A). 
 
 \g) 3 Inst. 109. 1 Hale, 510. 
 
 (k) 1 Hawk. P. C. c. 33, s. 34. 4 Bla. Com. 233. 2 East, P. C. c. 16, s. 27, p. 587. And 
 so in 1 Hale, 510, it is said, "But if a man come to steal trees, or the lead of a church or 
 house, and sever it, and after about an hour's time, or so, come and fetch it away, this hath 
 been held felony, because the act is not continued but interpolated, and in that interval the 
 property lodgeth in the right owner as a chattel ; and so it was agreed by the Court of 
 King's Bench, 9 Car. 1, upon an indictment for stealing the lead of Westminster Abbey." 
 Dalt. c. 103, p. 166, (new edit. c. 156, p. 501.) 
 
 (i) Per Gibbs, Ch. J., Lee v. Risdon, M. T. 57 Geo. 3. 7 Taunt. 191." 
 
 (j) Ante, p. 2. The Irish Act, 9 Geo. 4, c. 55, s. 30, is verbatim the same. 
 a Eng. Com. Law Reps. ii. 69.
 
 63 OF LARCENY. [BOOK IV. 
 
 or ornament, every such offender shall be guilty of felony, and being 
 convicted thereof, shall be liable to be punished in the same manner as 
 in the case of simple larceny ;(jj) and in case of any such thing fixed 
 in any square, street, or other like place, it shall not be necessary to 
 allege the same to be the property of any person. "(/„•) 
 Construe- In a case upon the repealed statutes 4 Geo. 2, c. 32, and 21 Geo. 3, c. 
 """ °' 68, where the prisoner was indicted for stealing a "window casement 
 bates. made of iron, lead, and glass," the property of the benchers of the 
 
 *64 Middle Temple, fixed to a certain building situate in *Elm-court, it was 
 holden that the case was not within the acts. The court said, that the 
 statutes, amongst the several articles which they enumerated, did not 
 mention " a casement," and that as the statute 21 Geo. 3, c. 68, was 
 made to remedy the defects of the 4 Geo. 2, c. 32, which mentioned 
 every specific article by name, the words " any copper, brass, bell-metal 
 utensil, or fixture," were to be taken as substantive nouns, and not as 
 descriptions of the sort of fixtures which the legislature intended to 
 protect. (I) Such an offence, however, would be clearly within the pro- 
 visions of the recent statute upon an indictment properly framed. 
 Where the In a case where the prisoner was indicted on the repealed statute, 4 
 prisoner Q eo a c ^ for stealing; two hundred weight of lead, fixed to a house 
 
 had obtain- ,,.,-,.,« • ... 
 
 ed fraudu- and building, the tacts were, that the house in question being to be let, 
 lent posses- tne prisoner, giving a false description of his situation in life and his 
 house upon place of residence, obtained possession of it, under a treaty for a lease of 
 an agree- it for one and twenty years, which was agreed to be executed : and, in a 
 lease ancT ^ ew ^ a ys a ^ ev ne h a d so obtained possession of it, stripped it of the lead 
 stripped it on the roof, and of the leaden pipes, &c. The jury said that they were 
 en B'ties °^ °pi n i° n that Qe had entered into the contract for the purpose of get- 
 Ac., it was ting a fraudulent possession of the house, and found a verdict of guilty ; 
 hoklen to aa( j U p 0a th e case being reserved for the opinion of the judges, though 
 the 4 Geo. no opinion was publicly delivered, the prisoner afterwards was sentenced 
 2,e.i2,nowto pay a fine of a shilling, and to be imprisoned for two years in the 
 
 repealed. ■• /» , • / \ 
 
 house oi correction. fm) 
 A church A church was held to be a building within the 4 Geo. 2, c. 32, and 
 was held to an i nc li c t m ent for stealing lead affixed thereto need not to have stated the 
 ing within person to whom the property or the freehold belonged. The first count 
 4 Geo. 2, c. charged that the prisoner 150 pounds weight of lead belonging to the 
 indictment -^ ev - ^- ^-> * n en ar >d there fixed to a certain building, called Hendon 
 for stealing Church, of the said C. G., then and there did steal, &c. The second 
 to it, need count state d the property as belonging to the church-wardens byname, 
 not state to and as fixed to a certain other building, called Hendon Church, of the 
 leadbe the sa *^ church-wardens : u P on a case reserved, the judges were unanimous 
 longed. that a church was included within the words " any building whatso- 
 ever." And regarding the person or persons in whom the property or 
 the freehold of the church by law resides, a majority of the judges were 
 
 {fi) Ante, p. 2. 
 
 (k) The Irish Act, 9 Geo. 4, c. 55, s. 37, is verbatim the same, with a proviso that it shall 
 not affect the punishment under the Irish Paving Acts. 
 
 (I) Senior's case, 0. B. 1788. 1 Leach, 496. 2 East, P. C. c. 16, s. 31, p. 593. The 
 prisoner was afterwards indicted for a similar offence, before Wilson, J., and acquitted upon 
 the authority of this determination. In a former case, Rex v. Hedges, 1 Leach, 201. 2 
 East, P. C. c. 16, s. 30, p. 590, note (b), the question appears to have turned upon whether 
 the window-sashes stolen -were fixed to the freehold, which was ruled in the negative upon 
 the facts of the case, which showed that they were only attached by a temporary fastening. 
 
 (m) Munday's case, 0. B. 1799. 2 Leach,' 850. 2 East P. C. c. 16, s. 31. p. 594.
 
 CnAP. IX. § II.] THEFT. — THINGS PART OF THE FREEHOLD. 64 
 
 of opinion, that the first count charging that the lead was stolen from 
 the parish church of Hendon, and laying it to be the property of the 
 vicar, was sufficient to support this indictment. It was also thought by 
 many of the judges, that as this statute had made the stealing lead from 
 any building a felony, the averment that the lead was stolen from a cer- 
 tain building called Hendon Church, was of itself a description of suffi- 
 cient certainty, and that the further averment in whom the property 
 resided was immaterial and unnecessary ; the allegation that it was 
 affixed to a building, describing the sort of building, and that the build- 
 ing, *whether church or house, belonged to such a person, being all *65 
 that the law in such a case required ; and that the allegation as to the 
 property might be rejected as surplusage. (m) 
 
 A summer-house, used occasionally for tea and refreshment, situate Buildings 
 in a park, at a distance of half a mile from the dwelling-house, was held within the 
 to be a building within the 4 Geo. 2, c. 32.(«) 
 
 Upon an indictment for stealing two pieces of wood fixed to a certain 
 building, it appeared that the place was intended for a cart-shed in a 
 field, and that on all its sides it was boarded up, except where there was 
 a door which had a lock to it ; it had a wooden frame-work for a roof 
 ready for thatching, but it had no thatch, some gorse being thrown on 
 it; and Littledale, J., held that this was a building within the 7 & 8 
 Geo. 4, c. 29, s. 44. (o) 
 
 But where on a similar indictment for stealing a plank, it appeared 
 that the plank was used as a seat in the grounds of the Duke of Beau- 
 fort, and that there was a wall, and pillars at the ends of it, and that 
 the plank was laid in mortar on the top of the wall and pillar, and there 
 was no roof; Park, J. A. J., held that this was not a building within 
 the meaning of the act.fp) 
 
 It seems that a churchyard is a place dedicated to public use within Fixtures in 
 the meaning of this section, and therefore stealing fixtures out of a church- 
 churchyard is punishable under this section. Upon an indictment for yar 
 receiving stolen brass, which alleged that one E. Smith had been con- 
 victed of stealing the brass fixed in the churchyard at M., that being a 
 « place dedicated to public use," evidence was given that the brass was 
 fixed into many of the tombstones in the churchyard : and it was objected 
 that the words " other place dedicated to public use and ornament," 
 meant places ejusdem generis with u square" and » street." Bosanquet, 
 J., " This statute, which is rather peculiarly worded, makes it an offence 
 to steal brass fixed in any square, street, or other place dedicated to 
 public use or ornament ; and I think that a churchyard is a place of 
 that kind within the meaning of this act. If the prisoner is convicted 
 I do not say that I will reserve the point, but I will take it into further 
 consideration." The prisoner was acquitted. (^) 
 
 (m) Rex v. Heckman, 1 Leach, 318, S. C. 2 East, P. C. c. 16, s. 31, p. 593, Buller, J., 
 thought that charging the lead to be property was absurd and repugnant ; property in this 
 respect being only applicable to personal things, and that it should only be charged to be 
 lead affixed to the church, or to a house belonging to such a person. See Rex v. Isley, 1 
 Leach, 320, note (a), S. P. In a previous case it had been held that lead affixed to a church 
 could not be laid as the property either of church-wardens, or of the inhabitants and pa- 
 rishioners. Rex v. Parker and Easy, 2 East, P. C. c. 16, s. 31, p. 592. 
 
 (re) Rex v. Norris, Russ. & Ry. 69. (o) Rex v. Worrell," V C. & P. 516. 
 
 (p) Rex v. Reece, Monmouth, Lent Ass. 1828, MS. C. S. G. 
 
 (q) Rex v. Blick,» 4 C. & P. 377. 
 
 a Eng. Com Law Reps, xxxii. 009. b lb. xix. 428.
 
 65 OF LARCENY. — WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 In a previous case, where the prisoners were indicted for receiving 
 brass, knowiug it to have been stolen, and it was proved that the brass 
 had been a plate affixed by rivets to a tombstone in a churchyard, and 
 that the tomb was formed of one flat stone at the top, which was sup- 
 ported by others beneath; Vaughan, 13., at first said, " The words of 
 the act are very general, and I think extend to every kind of building, 
 and I think that this kind of tomb may be said to be a building." But 
 on being referred to Rex v. Reeee, he expressed doubts whether the 
 tomb could be considered as a building within the meaning of the act. 
 *QQ It was then urged that the case came either *within the words, " any- 
 thing made of metal fixed in any land being private property," or a 
 "place dedicated to public use or ornament;" and Vaughan, B., in- 
 clined to think the latter words sufficiently general to include this case ; 
 and the prisoners having been found guilty, he postponed the sentence, 
 in order to consult Park, J. A. J. ; and the prisoners were afterwards 
 sentenced without any further notice being taken of the point. (r) 
 The own- The ownership of the building from which the fixture is stolen must 
 ership of ^g correctly laid in the indictment. If therefore A. and B. are sepa- 
 ing must ra te tenants of different rooms in the same house, an indictment describ- 
 ee correct- j n g a pipe, passing by the side of both rooms, as fixed to the dwelling- 
 y s a ' house of A. and B., is incorrect. Upon an indictment for stealing six 
 feet of copper pipe fixed to the dwelling-house of E. Drumme and S. 
 Allen, it appeared that the house consisted of two rooms, one on the 
 ground floor, and the other up one pair of stairs : one was in the occu- 
 pation of Drumme, the other of Allen, as separate tenants to the same 
 landlord. The pipe was placed for bringing down the water from the 
 roof, and descended perpendicularly, passing on the outside of and 
 against both rooms, part against the ceiling of each room. The jury 
 having found the prisoner guilty, the question whether the house was 
 properly described was submitted to the judges, who were unanimously 
 of opinion that the conviction was bad.(s) 
 The words The words " anything made of metal fixed in any land being private 
 of the 7 & property," are so much larger than the words " fixed in any garden, 
 29 much o^hard, court-yard, fence, or outlet belonging to any dwelling-house or 
 larger than other building," in the repealed act, 4 Geo. 2, c. 32, that they would 
 4 h Geo°2 th c e seem to ^ ncmc ^ e a case like the following, which w as held not to be 
 32. within the 4 Geo. 2, c. 32. Upon an indictment framed upon that 
 
 statute, it appeared that the lead stolen consisted of three images, which 
 were standing on three pedestals, to which they were fastened with 
 irons, and the pedestals were fixed in the ground. The images were 
 standing near a building in an enclosed field, about half a mile from 
 the dwelling-house of the prosecutor ; the building was occasionally 
 used as a tea-drinking place, and had doors and windows, the doors 
 opened into a place where the images stood ; and it was held that this 
 case was not within the repealed statute, this being no outlet or garden 
 belonging to any house or building.(^) 
 Upon an The statute does not make the offence of stealing fixtures, a larceny, 
 forstealin* anc * consec l uent ly> u P on an indictment for stealing fixtures, the prisoner 
 fixtures, cannot be convicted of a larceny, if it appear that at the time he took 
 the priso- the fixtures they had been severed from the building. Upon an indict- 
 
 (r) Rex v. John and Daniel Jones, Gloucester Spr. Ass. 1828, MS. C. S. G. Such cases 
 were not within the repealed statutes. See John Davis's case. 2 East, P. C. c. 16. s. 31, p. 593. 
 (s) Rex v. Finch, R. & M. C. C. R. -118. (t) Rex v. Richards, Russ. & Ry. 28.
 
 CIIAP. IX. § II.] THEFT. — THINGS PART OP THE FREEHOLD. 66 
 
 ment for stealing lead affixed to a building, the only evidence was, that ner cannot 
 the prisoner was seen to take the lead when it was lying at the distance v f cte °j " f 
 of a quarter of a mile from the building, from which it had been cut, larceny, 
 and the jury found the prisoner guilty of stealing the lead when lying 
 severed, but not of stealing it when fixed; and the following morning 
 Tindal, C. J., said that he had looked into the cases, and conferred with 
 Mr. J. Vaughan, and that he was satisfied the prisoner could not be 
 found guilty of a *simple larceny upon this indictment, and directed a *67 
 verdict of not guilty to be entered. («) 
 
 So also if a person steal fixtures in one county and carry them into 
 another county, he cannot be indicted for simple larceny in the county 
 into which he carries them.(-v) 
 
 By the 45th section of the 7 & 8 Geo. 4, c. 29, for the punishment of 7 & 3 Geo. 
 depredations committed by tenants and lodgers, it is enacted, "that if 4, 0. 29, s. 
 any person shall steal any chattel or fixture let to be used by him or her in ; chat e t g lg 
 in or with any house or lodging, whether the contract shall have been or fixtures 
 entered into by him or her or by her husband, or by any person on j^g ]^ 1 " 
 behalf of him or her or her husband, every such offender shall be guilty lodgers. ' 
 of felony, and being convicted thereof, shall be liable to be punished iu 
 the same manner as in the case of simple larceny ;(ic) and in every such 
 case of stealing any chattel, it shall be lawful to prefer an indictment 
 in the common form as for larceny, and in every such case of stealing 
 any fixture, to prefer an indictment in the same form as if the offender 
 were not a tenant or lodger, and in either case to lay the property in 
 the owner or person letting to hire."(.r) 
 
 The statutes passed for the better preservation of timber trees, plants, 
 shrubs, and other articles, which are the produce of the land, have been 
 consolidated in the 7 & 8 Geo. 4, c. 29. 
 
 The thirty-eighth section of that statute enacts, " that if any person 7 & 8 Geo. 
 shall steal, or shall cut, break, root up, or otherwise destroy or damage, *' g c - | 9 t ^j 
 with intent to steal, the whole or any part of any tree, sapling or shrub, i n g trees, 
 or any underwood, respectively growing in any park, pleasure-ground, shrubs, &c. 
 garden, orchard, or avenue, or in any ground adjoining or belonging to certain 
 any dwelling-house, every such offender (in case the value of the article situations, 
 or articles stolen, or the amount of the injury done, shall exceed the ^ ° y^iue 
 sum of one pound) shall be guilty of felony, and being convicted thereof, exceeds 11. 
 shall be liable to be punished in the same manner as in the case of 
 simple larceny ;(y) and if any person shall steal, or shall cut, break, Stealing 
 root up, or otherwise destroy or damage with intent to steal, the whole suru bs, &o. 
 or any part of any tree, sapling, or shrub, or any underwood respectively growing 
 growing elsewhere than in any of the situations hereinbefore mentioned, f e 'iony, e if' 
 every such offender (in case the value of the article or articles stolen, the value 
 or the amount of the injury done, shall exceed the sum of five pounds) exceeds 5 
 shall be guilty of felony, and, being convicted thereof, shall be liable to 
 be punished in the same manner as in the case of simple larceny. "(z) 
 
 It has been held that young pear-trees about seven feet high, are ji ean ; ng f 
 " trees" within the meaning of this section ; and that the word " adjoin- the terms 
 
 (u) Reg v. Gooch, a 8 C. & P. 293. It was held under the repealed act, 4 Geo. 2, c. 32, 
 that judgment for petit larceny might be given on an indictment for stealing lead, where 
 the prisoner was found guilty, to the value of 10c?. 2 East, P. C. c. 16, s. 31, p. 945. 
 
 (v) Reg. v. Millar, b 7 C. & P. GG5. See this case, post, (w) Ante, p. 1. 
 
 (x) See the chapter on Larceny by Tenants, §c.,post. (?/) Ante, p. 1. 
 
 (z) Ante, p. 1. The Irish Act, 9 Geo. 4, c. 55, s. 31, is verbatim the same. 
 a Eng. Com. Law Reps, xxxiv. 395. b lb. xxxii. 678.
 
 (',7 OP LARCENY.— WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 ••troes." \ lV r" denotes land absolutely contiguous, and without anything inter- 
 ■" a ,'V." m ~, veiling, and only refers to the word " dwelling-house." The prisoner 
 "gjurdan." was indicted for stealing pear-trees, of the value of more than 11., de- 
 scribed in one count as growing in a garden, and in another as in ground 
 *G8 adjoiniug to a dwelling-house, and it appeared that the *dwelling-house 
 was occupied by a tenant of the prosecutor, and that a paved entry or 
 walk of about a yard in width ran along the back of the house, and was 
 fenced on the opposite side by a low paling, with a wicket-gate in the 
 centre, which opened on an unfenced gravel walk running at right 
 angles to the entry down the middle of a plot of enclosed ground of 
 about half an acre. The ground on one side of this walk was occupied 
 by the tenant as his garden ; the other side was the ground on which 
 the pear-trees were growing, and was retained by the prosecutor in his 
 own occupation. The trees were grafted seedlings about seven feet 
 high, and intended for sale. There were a few currant and raspberry 
 bushes on the same part of the ground, and in the preceding summer 
 the prosecutor had had a crop of potatoes and cabbages growing among 
 the pear-trees. It was held first, that the land was not adjoining to the 
 house, for ground cannot be properly said to adjoin a house, unless it is 
 absolutely contiguous, without anything between them : secondly, that 
 the pear-trees were trees within this section, and not " plants" within 
 section 42 : thirdly, that it was a question for the jury whether the 
 place was a garden or not ;(a\ and fourthly, that the words " adjoining 
 or belonging to" only refer to the word "ground," and not to "park, 
 pleasure-ground, garden, orchard, or avenue." (6) 
 See. 39. By sec. 39 of the 7 & 8 Geo. 4, c. 29, " If any person shall steal, or 
 
 Stealing shall cut, break, root up, or otherwise destroy, or damage with intent to 
 Shrubs &c s * ea ^ tne whole or any part of any tree, sapling, or shrub, or any 
 whereso- underwood, wheresoever the same may be respectively growing, the steal- 
 ever grow- j n g f SVLC } 1 ar ticle or articles, or the injury done, being to the amount 
 any value of a shilling at the least, every such offender, being convicted before a 
 above is., justice of the peace, shall for the first offence forfeitand pay, over and 
 on sum- above the value of the article or articles stolen, or the amount of the 
 mary con- injury done, such sum of money, not exceeding five pounds, as to the 
 firstandse _ justice .shall seem meet; and if any person so convicted shall afterwards 
 eond offen- be guilty of any of the said offences, and shall be convicted thereof in 
 offence ^e manner, every such offender shall for such second offence be com- 
 felony. mitted to the common gaol or house of correction, there to be kept to 
 hard labour for such term, not exceeding twelve calendar months, as 
 the convicting justice shall think fit ; and if such second conviction 
 shall take place before two justices, they may further order the offender, 
 if a male, to be once or twice publicly or privately whipped, after the 
 expiration of four days from the time of such conviction ; and if any 
 person so twice convicted shall afterwards commit any of the said 
 offences, such offender shall be deemed guilty of felony, and being con- 
 fa) Rex v. Hodges, a Moo. & M. 341, Parke, J., and Park, J. A. J. Qu. whether it can be 
 said that ground " adjoins or belongs to" a dwelling-house within this act, unless it be oc- 
 cupied by the same person who occupies the dwelling-house. C. S. G. 
 
 (b) S. C. MS. C. S. G. In Rex v. Taylor, Russ. & Ry. 373, it was held that young apple 
 and pear-trees, from four to six feet high in the stem without the top, and which had been 
 grafted and planted in order to sell the fruit which they might produce, were trees within the 
 9 Geo. 1, c. 22, s. 1, now repealed. 
 
 a Eng. Com. Law Reps. xxii. 330.
 
 CHAP. IX. § II.] THEFT. — THINGS PART OF THE FREEHOLD. G8 
 
 victed thereof, shall be liable to be punished in the same manner as in 
 the case of simple larceny."(c) 
 
 By sec. 40, " If any person shall steal, or shall cut, break, or throw Sec. 40. 
 down with intent to steal, any part of any live or dead fence, or any Stealing, 
 wooden post, pale, or rail set up, or used as a fence, or any stile or gate, live or dead 
 or any part thereof respectively, every such offender, being *convicted fence, 
 before a justice of the peace, shall for the first offence forfeit and pay, fence st ;i e 
 over and above the value of the article or articles so stolen, or the or gate. 
 amount of the injury done, such sums of money, not exceeding five *"9 
 pounds, as to the justice shall seem meet; and if any person so con- 
 victed shall afterwards be guilty of any of the said offences, and shall be 
 convicted thereof in like manner, every such offender shall be committed 
 to the common gaol or house of correction, there to be kept to hard 
 labour for such term, not exceeding twelve calendar months, as the 
 committing justice shall think fit ; and if such subsequent conviction 
 shall take place before two justices, they may further order the offender, 
 if a male, to be once or twice publicly or privately whipped, after the 
 expiration of four days from the time of such conviction. "(d) 
 
 By sec. 41, "If the whole or any part of any tree, sapling, or shrub, Sec. 41. 
 or any underwood, or any part of any live or dead fence, or any post, ^g^g 6 ^ 
 pale, rail, stile, or gate, or any part thereof, being of the value of two possession 
 shillings at the least, shall, by virtue of a search warrant, to be granted ° f wood > 
 as hereinafter mentioned, be found in the possession of any person or sa t'isfac- 
 on the premises of any person, with his knowledge, and such person toriiyac- 
 being carried before a justice of the peace, shall not satisfy the justice f or ^ 
 that he came lawfully by the same, he shall, on conviction by the jus- 
 tice, forfeit and pay, over and above the value of the article or articles 
 so found, any sum not exceeding two pounds. "(e) 
 
 By sec. 42, " If any person shall steal, or shall destroy or damage Sec. 42. 
 with intent to steal, any plant, (J") root, fruit, or vegetable production, Stealing, 
 growing in any garden, orchard, nursery-ground, hot-house, green-house, f ru 'it r 
 or conservatory, every such offender, being convicted thereof before a vegetable 
 justice of the peace, shall, at the discretion of the justice, either be com- {^ garden 
 mitted to the common gaol or house of correction, there to be impri- Ac, pun- 
 soned only, or to be imprisoned and kept at hard labour for any term g^^arv 1 
 not exceeding six calendar months, or else shall forfeit and pay, over conviction 
 and above the value of the article or articles so stolen, or the amount j° r first of ~ 
 of the injury done, such sum of money, not exceeding twenty pounds, Second of- 
 as to the justice shall seem meet; and if any person so convicted shall fence, felo- 
 afterwards commit any of the said offences, such offender shall be 
 deemed guilty of felony, and being convicted thereof, shall be liable to 
 be punished in the same manner as in the case of simple larceny.'V^A 
 
 By sec. 43, " If any person shall steal, or shall destroy or damage Sec. 43. 
 with intent to steal, any cultivated root or plant used for the food of ^ tealin f 
 man or beast, or for medicine, or for distilling, or for dyeing, or for or table pro- 
 in the course of any manufacture, and growing in any land, open or ductions 
 
 (c) Ante, p. 1. The Irish Act, 9 Geo. 4, c. 55, s. 32, is precisely similar. 
 
 (d) The Irish Act, 9 Geo. 4, c. 55, ss. 33, 34, 35, 36, corresponds precisely with sees. 40, 
 41, 41, and 43 of the 7 & 8 Geo. 4, c. 29. As to the application of forfeitures and proceed- 
 ings in case of non-payment, see ss. GO, 67. 
 
 (e) As to the apprehension of offenders see S. 63, and as to the application of forfeit- 
 ures and proceedings in case of non-payment, see ss. 66, 67. 
 
 (/) Sec Rex v. Hodges, supra, p. 68, that this word does not include young fruit trees. 
 (ff) Ante, p. 1. As to the apprehension of offenders. &c. see ss. 63, 66, 67.
 
 69 OP LARCENY. — WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 not grow- inclosed, not being a garden, orchard, or nursery-ground, every such 
 mgingu- offender, being convicted before a justice of the peace, shall, at the dis- 
 *70 cretion *of the justice, either be committed to the common gaol or 
 house of correction, there to be imprisoned only, or to be imprisoned 
 and kept to hard labour, for any term not exceeding one calendar 
 month, or else shall forfeit and pay over and above the value of the ar- 
 ticle or articles so stolen, or the amount of the injury done, such sum 
 of money, not exceeding twenty shillings, as to the justice shall seem 
 meet, and in default of payment thereof, together with the costs, (if or- 
 dered,) shall be committed as aforesaid, for any term not exceeding one 
 calendar month, unless payment be sooner made ; and if any person so 
 convicted shall afterwards be guilty of any of the said offences, and 
 shall be convicted thereof in like manner, every such offender shall be 
 committed to the common gaol or house of correction, there to be kept 
 to hard labour for such term, not exceeding six calendar months, as the 
 convicting justice shall think fit ; and if such subsequent conviction 
 shall take place before two justices, they may further order the offender, 
 if a male, to be once or twice publicly or privately whipped, after the 
 expiration of four days from the time of such conviction." (/*) 
 Of larceny II. Larceny could not by the common law, be committed of written 
 of written instruments, whether they related to real estate, or concerned mere 
 ments. choses in action. If they related to real estate, the taking of them was 
 considered as merely a trespass and no felony, upon a principle allied 
 to those already mentioned, namely, that they concern the land, or (in 
 technical language) savour of the realty, are considered as part of it by 
 the law, and descend with it to the heir :{i\ and when they concerned 
 mere choses in action, as bonds, bills, and notes, they were considered 
 at common law not to be goods whereof larceny could be committed, as 
 being of no intrinsic value, and not importing any property in the pos- 
 session of the person from whom they were taken. (k\\ 
 Westbeer's Upon an indictment for stealing a parchment writing, purporting to 
 case. }•)£ a commission for ascertaining the boundaries of certain manors, pur- 
 
 records, suant to an order of the court of chancery, the goods of our sovereign 
 which con- l or d the king; and also another parchment writing annexed thereto, 
 realty, are purporting to be a return made to the said commission, the goods of 
 not the sub- persons unknown; it was found by a special verdict, that the prisoner 
 ceny°at ar " was S u ^ tv °^ privately taking away these parchment writings, being of 
 common the value of one penny each, with intent to steal them. In the course 
 law - of the argument, it was urged by the counsel for the crown, that the 
 
 reason why felony could not be committed of charters which concerned 
 the realty, was that they could not be valued; but that the reason 
 would not apply in this case, because a value had been affixed by the 
 jury; and that it was well known that for certain purposes old parch- 
 ments will sell for a considerable price ; and it was also urged, that the 
 relation to the realty did not alone constitute the exemption, as there 
 
 (A) As to the apprehension of offenders, &c., see ss. 63 66 67. 
 
 (i) 3 Inst. 109. 1 Hale, 510. 1 Hawk. P. C. c. 33, s. 35. 4 Bla. Com. 234. 2 East, P. 
 C. c. 16, s. 34, p. 596. 
 
 (*) 1 Hawk. P. C. c. 32, s. 35. 4 Bla. Com. 234. 2 East, P. C. c. 16, s. 35, p. 597. 
 
 f At common law a chose in action is not the subject of Larceny. Culp v. The State. 1 
 Porter, 33. 
 
 Under a statute making " promissory notes" the subject of larceny, au indictment for 
 larceny of bank notes is not sustainable. — lb.
 
 CHAP. IX. § II.] THEFT. — WRITTEN INSTRUMENTS. 70 
 
 could be no doubt that it would be felony to steal an heir-loom, though 
 that savours of the realty. The court, however, were unanimously of 
 opinion, that as the parchment writings in questions concerned the realty, 
 no larceny could be committed of theui.(/) 
 
 *But stealing rolls of parchment is larceny according to the value of *71 
 the parchment, though they are the records of a court of justice, unless Stealing 
 they concern the realty. The first count charged the prisoner with "f ^ 8 n t °* 
 stealing one roll of parchment, being records of the Court of Common the realty. 
 Pleas, value ten shillings, the property of the king ; the second count ia lareeD J 
 was the same except laying the property in the judges of the court ; the i aw . 
 third was the same except laying the property in the prothonotaries ; the 
 fourth was the same except laying the property in F. Sherwin. The 
 fifth, sixth, seventh, and eighth counts were similar to the first, second, 
 third, and fourth counts, but described the property stolen as one roll of 
 parchment. The facts to prove the stealing were clear, and the jury 
 found the prisoner guilty on the first four counts. Knowlys, R., was 
 clearly of opinion that the crime of larceny at common law could not 
 be established on the four last counts, charging the thing stolen to be 
 mere parchment of the value of ten shillings ; and he entertained very 
 strong doubts whether an actual existing record of the courts at West- 
 minster could properly be described as parchment, so as to change its 
 actual use and nature, and reduce it to mere personal chattels, the sub- 
 ject of larceny at common law : and he submitted that the stealing of a 
 record of the court at Westminster was only a misdemeanor, and no 
 felony, till the 8 Hen. 6. c. 12, and that only in such cases where the 
 judgment was liable to be reversed by such theft. In Westbeer's case, 
 neither the commission nor the return could be legally considered as 
 parchment, and as such personal chattels ; so in this case the same 
 principle would apply, and the roll of records could not legally be con- 
 sidered as a mere personal chattel, which waste parchment would be ; 
 but, upon a case reserved, the judges held that as the records did not 
 concern the realty, as in Westbeer's case, stealing the parchment was 
 larceny. (m\ 
 
 The doctrine of charters and other written assurances concerning the Box, &c, 
 realty not being the subjects of larceny, was carried so far that it was j? wmcl1 
 holden that no larceny could be committed of the box-or chest in which kept, 
 they were kept.(tt) 
 
 These defects of the common law have been remedied by the 7 & 8 stealing 
 Geo. 4, c. 29, which by sec. 22 enacts, " that if any person shall either *?•» of 
 during the life of the testator or testatrix, or after his or her death, 
 steal, or for any fraudulent purpose destroy or conceal, any will, codicil, 
 or other testamentary instrument, whether the same shall relate to real 
 or personal estate, or to both, every such offender shall be guilty of a 
 misdemeanor, and being convicted thereof, shall be liable to any of the 
 punishments which the court may award as hereinbefore last mentioned 
 
 (I) i Westbeer's case, 0. B. 1739. 1 Leach, 12. 2 East, P. C. c. 16, s. 34, p. 59G. The 
 special verdict and the indictment were removed into the Court of King's Bench by certiorari 
 in Trin. T. 1 740. A question appears to have been raised, after the court had decided upon 
 the point stated in the text, whether the prisoner should be discharged or receive judgment 
 on this indictment as for a trespass: but it was determined without much difficulty that no 
 such judgment could be given. 1 Leach, 14, 15. 
 
 (m) Rex v. Walker, R. & M. C. C. R. 155. 
 
 (n) Staundf. 25 b. 1 Hale, 510. And the same law is laid down in 3 Inst. 109, as to 
 the box or chest, though it be of great value ; and the reason given is, that " it shall be of 
 the same nature the charters be of; et omne majus dignum trakit ad se minus." 
 
 Vol. ii.— 6
 
 71 OF LARCENY. — AVHAT GOODS SUBJECT OF. [BOOK IV. 
 
 (viz. at the discretion of the court, transportation beyond the seas for 
 seven years, or such other punishment by fine or imprisonment, or by 
 both, as the court shall award), and it shall not in any indictment for 
 *72 such offence be necessary to allege *that such will, codicil, or other 
 instrument, is the property of any person, or that the same is of any 
 value, "(o) 
 3 a If a party conceal a will, and the money which ought under the will 
 fraudu- to have gone to certain legatees, and with it pay the debts of the hus- 
 ' ' "" band of the next of kin, to whom the party was a creditor, this is a 
 within the fraudulent purpose within this section. It seems that the indictment in 
 ??*; lu ~ such a case should state what the fraudulent purpose was. The first 
 should count charged the defendant with stealing the will of Mary Baskerville ; 
 state what ^ e secon & CO unt charged that the defendant the will of the said M. B. 
 lent pur- " unlawfully and for a fraudulent purpose did conceal:" The third 
 pose was. coun t charged that the defendant the will of the said M. B. " unlaw- 
 fully and for a fraudulent purpose did destroy." It was opened for the 
 prosecution that Mrs. Baskerville had died in the year 1835, having 
 made her will, by which she left a sum of money to a person named 
 Apperley, the interest of other money to her (Mrs. B.'sj sister, Mrs. 
 Rowland, and after her decease the principal was to be divided among 
 Elisha Cooper's children ; and that this will was given by Mrs. Basker- 
 ville to a nurse, who gave it to Mr. Rowland, the husband of Mrs. Row- 
 land, who put it on a desk, from which it was taken away by the de- 
 fendant ; and that, after this, administration was taken out by Mrs. 
 Rowland as sole next of kin of Mrs. Baskerville, and that the defend- 
 ant, who was the assignee of Mr. Rowland, for the benefit of creditors, 
 paid away the property in making a dividend on Mr. Rowland's debts. 
 Alderson, B., " The words of the act of parliament are < for any fraudu- 
 lent purpose destroy or conceal any will, codicil, or other testamentary 
 instrument.' The purpose ought, I think, to be stated in the indict- 
 ment, which here it is not. But I think also that if the defendant con- 
 cealed this will, and took the money which ought to have gone to 
 3Irs. Apperley and Elisha Cooper's children, to pay Mr. Rowland's 
 debts, that would be a fraudulent purpose within the act of parlia- 
 ment."^) 
 1 & 8 Geo. By sec. 23, " if any person shall steal any paper or parchment, 
 *• c - 29< s. written or printed, or partly written and partly printed, being evidence 
 stealing of °f tne title, or of any part of the title, to any real estate, every such 
 writings offender shall be deemed guilty of a misdemeanor, and being convicted 
 real esfate. tnereoI "> shall be liable to any of the punishments which the court may 
 award, as hereinbefore last mentioned ; and in any indictment for such 
 offence, it shall be sufficient to allege the thing stolen to be evidence 
 of the title, or of part of the title, of the person or of some one of the 
 persons having a present interest, whether legal or equitable, in the real 
 estate to which the same relates, and to mention such real estate, or some 
 part thereof, and it shall not be necessary to allege the thing stolen to 
 be of any value. "(j) 
 
 Upon an indictment on this section for stealing three deeds relating 
 
 (o) The Irish Act, 9 Geo. 4, c. 55, s. 22. is precisely similar. 
 
 ( p) Reg v. Morris, a 9 C. & P. 89. 
 
 (q) The Irish Act, 9 Geo. 4, c. 55, s. 23, is nearly similar. 
 
 a Eng. Com. Law Reps, xxxviii. 48.
 
 CHAP. IX. § II.] THEFT. — WRITTEN INSTRUMENTS. 72 
 
 to real estate, Patteson, J., told the jury, "Although this is not a 
 felony, you must be satisfied that the defendant took these parchment 
 writings under such circumstances as would have amounted to larceny, 
 had deeds of the kind been subject to larceny.'Vr) 
 
 By sec. 24, " nothing in- this act contained relating to either of the *73 
 misdemeanors aforesaid, nor any proceeding, conviction, or judgment to Sec. 24. 
 be had or taken thereupon, shall prevent, lessen, or impeach any *re- y^^gf™' 
 medy at law or in equity which any party aggrieved by any such offence, to wills and 
 might or would have had, if this act had not been passed ; but never- wn !j ngs 
 theless the conviction of any such offender shall not be received in evi- lessen any 
 dence in any action at law or suit in equity against him ; and no person remedy 
 shall be liable to be convicted of either of the misdemeanors aforesaid, pa r t C y a °-- 
 by any evidence whatever, in respect of any act done by him, if he shall grieved 
 at any time previously to his being indicted for such offence have dis- now as * 
 closed such act on oath, in consequence of any compulsory process of 
 any court of law or equity in any action, suit, or proceeding, which shall 
 have been bond fide instituted by any party aggrieved, or if he shall have 
 disclosed the same in any examination or deposition before any commis- 
 sioners of bankrupt." 
 
 With respect to stealing, &c, of records and other proceedings of the 7 & 8 Geo. 
 courts of justice, the 21st section of the same statute enacts, « that if 4 > c - 29 > »• 
 any person shall steal, or shall for any fraudulent purpose take from its R e ' eor( ]s. 
 place of deposit for the time being, or from any person having the lawful The steal- 
 custody thereof, or shall unlawfully and maliciously obliterate, injure 1D ^ vf*' °{ 
 or destroy any record, writ, return, panel, process, interrogatory, depo- other pro- 
 sition, affidavit, rule, order, or warrant of attorney, or any original docu- ceec | in g s oi 
 ment whatsoever, of or belonging to any court of record, or relating to 
 any matter, civil or criminal, begun, depending, or terminated in any 
 such court, or any bill, answer, interrogatory, deposition, affidavit, order 
 or decree, or any original document whatsoever of or belonging to any 
 court of equity, or relating to any cause of matter begun, depending or 
 terminated in any such court, every such offender shall be guilty of a 
 misdemeanor, and, being convicted thereof, shall be liable at the discre- 
 tion of the court, to be transported beyond the seas for the term of seven 
 years, or to suffer such other punishment by fine or imprisonment, or 
 by both, as the court shall award ; and it shall not, in any indictment 
 for such offence be necessary to allege that the article in respect of 
 which the offence is committed, is the property of any person, or that 
 the same is of any value. "(rr) 
 
 It has been observed that written instruments which concerned mere Chotes t«, 
 choses in action, as being of no intrinsic value, and not importing any actta "- 
 property in possession of the party from whom they were taken, were 
 not at common law the subjects of larceny ;(.s) which offence can be 
 committed only in respect of goods which have some worth in them- 
 selves, and do not derive their worth merely from their relation to some 
 other thing. (<) But the legislature found in necessary to interfere upon 
 
 (r) Rex v. John, a 7 C. & P. 324. 
 
 (rr) The Irish Act, 9 Geo. 4, c. 55, s. 21, contains similar provisions to these, and also 
 some others. 
 (s) Ante, p. 70. 
 (0 1 Hawk. P. C. c. 33. s. 35. 2 East, P. C. c. 16, s. 36, p. 507. 
 
 a Eng. Com. Law Reps, xxxii. 526.
 
 73 OF LARCENY. — WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 this subject, and make the stealing of choses in action in many instances 
 an offence of the degree of felony. (w)f 
 : as Geo. The 7 & 8 Geo. 4, c. 27, s. 5, enacts, "that if any person shall steal 
 4, c. 29, s. an y tally, order, or other security whatsoever, entitling or evidencing 
 staling the title of any person or body corporate to any share or interest in any 
 public or public stock or fund, whether of this kingdom, or of Great Britain, or 
 1,m *"j. SC of ^Ireland, or of any foreign state, or in any fund of any body corpo- 
 ties for ra t e > company, or society, or to any deposit in any savings' bank, or 
 money, or shall steal any debenture, deed, bond, bill, note, warrant, order, or 
 warrants ther security whatsoever, for money, or for payment of money, whether 
 p'ball be fe- of this kingdom, or of any foreign state, or shall steal any warrant or 
 lony, and or( j er f or the delivery or transfer of any goods or valuable thing, every 
 according 6 such offender shall be deemed guilty of felony, of the same nature, and 
 to the cir- j n the same degree, and punishable in the same manner as if he had 
 ceiTlike" stolen any chattel of like value with the share, interest, or deposit to 
 stealing which the security so stolen may relate, or with the money due on the 
 goods. security so stolen or secured thereby, and remaining unsatisfied, or 
 with the value of the goods or other valuable thing mentioned in the 
 warrant or order, and each of the several documents hereinbefore enu- 
 merated, shall throughout this act be deemed for every purpose to be 
 included under and denoted by the words valuable security." (y) 
 
 In a case upon the statute 2 Geo. 2, c. 25, s. 3, (now repealed) where 
 the prisoner was convicted of stealing a note, by which the maker pro- 
 mised to pay to the prosecutor or order a sum of money, but which the 
 prosecutor had not indorsed, it was holden by all the judges that its not 
 being indorsed was immaterial. («A In a case upon the same statute 
 where the prisoners were indicted for stealing a bill of exchange, it ap- 
 peared that when the bill was stolen from the prosecutor at Manchester, 
 two names were only indorsed upon it ; but that when it was negotiated 
 by one of the prisoners, at Leicester, a third name was added to the two 
 other indorsers : upon which it was objected, on behalf of the prisoners, 
 that this being an indictment in Leicester, for then and there stealing a 
 bill of exchange, whereon were indorsed the names of the two first in- 
 dorsers, it was not supported by the evidence of a bill with an additional 
 name indorsed thereon, at the time the bill was negotiated by one of the 
 prisoners, in Leicester. But the prisoners were convicted ; and the 
 point being submitted to the twelve judges, for their consideration, they 
 all agreed that the addition of the third name made no difference ; that 
 
 (w) The 2 Geo. 2, c. 25, s. 3, which was here introduced in the last edition, is repealed by 
 the 1 Wm. 4, c. G6, s. 31. 
 
 (y) The Irish Act, 9 Geo. 4, c. 55, s. 5, contains a similar provision. 
 (w) Anon. East. T. 1781. 2 East, P. C. c. 16, s. 37, p. 598. 
 
 f [A receipt for the payment of a debt is the subject of larceny. The People v. Loomis, 
 4 Denio, 380. 
 
 Stealing a receipt or other instrument from the hands of the party whose act it is, it 
 never having taken effect by delivery, is not larceny. Therefore when a debtor procured 
 his creditor to sign a receipt for the debt under pretence that he was about to pay him, 
 and then took it from him with a criminal intent, and without paying the money ; held, that 
 he was not guilty of larceny. The People v. Loomis, 4 Denio, 380. 
 
 Ou a prosecution for larceny in stealing bank bills of another State, the prosecution must 
 show the existence of the banks and the genuineness of the bills. Johnson v. The People, 
 4 Denio, 364. 
 
 It seems that evidence that the prisoner had passed the stolen bills as genuine, would 
 have been sufficient. Ibid. 
 
 Bank bills redeemed by the bank which issued them, and in the hands of its agents, are 
 the subject of larceny. Commonwealth v. Rand, 7 Metcalf, 475.]
 
 CHAP. IX. § II.] THEFT. — WRITTEN INSTRUMENTS. 74 
 
 it was the same bill that was originally stolen ; and therefore that the 
 
 conviction was proper.^) 
 
 In a case upon the 15 Geo. 2, c. 13, relating to embezzlements Exchequer 
 
 bv servants of the Bank of England, which will be mentioned in a sub- ''. llls n ,°, t 
 
 • • v . i r i- i -ii signed by 
 
 sequent chapter, a prisoner was indicted tor stealing certain bills, com- the proper 
 
 monly called Exchequer bills ; and as it appeared that the person who person. 
 
 signed them, on the part of the government, was not legally authorized 
 
 so to do, the court held that they were not good exchequer bills, and the 
 
 prisoner was consequently acquitted. (#) 
 
 In a modern case it was holden that the paper and stamps of the Clarke's 
 
 notes of a firm of country bankers which had been paid by their cor- case - The 
 
 respondent banker in London, and which were re-issuable by the country stamps of 
 
 bankers, were the valuable property of such country bankers while they tne notes 
 
 were in transitu for the purpose of being re-issued. The indictment bankers'" 5 ' 
 
 consisted of several counts ; in some of which the prisoner was charged which 
 
 with stealing "promissory notes;" and in others he was ^charged with *75 
 
 stealing " one hundred and thirty-five pieces of paper, each being re- na y e been 
 
 spectively stamped with a stamp of four shillings, value four shillings, { } ^ ir J or _ 
 
 being the stamp directed by the statute in such case made and provided respondent 
 
 on every promissory note for payment to the bearer on demand of any London' '" 
 
 sum of money not exceeding, &c. ; one hundred and eighty-four pieces and are re- 
 
 of paper, each being respectively stamped with a stamp of one shilling, ^suable by 
 
 &c. ; and seventy-seven pieces of paper, each being respectively stamped bankers, 
 
 with a stamp of one shilling and sixpence, &c. ; all the said pieces are th ^ 
 
 of paper being so stamped as aforesaid, and being the property, property 
 
 &c. ; and each and every of the said stamps being then available, of the 
 
 and of full force and effect, against the peace, &c." It appeared banked 
 
 that the paid notes in question were made up into a parcel by the while in 
 
 London bankers, and sent by the mail to the country bankers, whol ra ", l<M 
 
 never received them, and were under the necessity of issuing other purpose of 
 
 notes on fresh stamps in their stead. It was also proved that many of bein g re - 
 
 , i . i . , ., . * i . issued, ar>d 
 
 the paid notes, so missed, were traced to the possession of the prisoner the subject 
 at the bar under very strong circumstances of suspicion. The pri- of larceny 
 soner's counsel objected that the charge being for a larceny, the law re-j aw> 
 quired that the property stolen should be of some value; that the notes, 
 in the present instance, having been paid, they were become, both with 
 respect to the money they were intended to secure, as well as the stamps, 
 mere waste paper ; that their former value was extinct ; and that before 
 they could again become valuable property, it was necessary they should 
 have been actually re-issued by the firm of the country bank. And it 
 was also objected as to the counts for stealing the stamped pieces of 
 paper, that they could not be sustained ; inasmuch as the stamps, hav- 
 ing been issued, were not at the time they were taken in any way sale- 
 able as stamps; that their operation, as stamps, was at that time, com- 
 pletely finished and at an end ; and that they would not reassume the 
 character of stamps, until the notes, to which they were affixed, had 
 undergone the process of being re-issued. The jury having found the 
 prisoner guilty, the case was referred to the twelve judges, whose 
 opinion was afterwards delivered by Grose, J., to the following effect : 
 — " The question submitted in this case to the consideration of the 
 
 (x) Rex v. Austin and King, Leicester Lent Ass. 1783. East. T. 1783. 2 East, P. C. c. 
 16, s. 37, p. 002. 
 (y) Aslett's (first) case, 2 Leach, 954.
 
 75 OF LARCENY. — WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 judges was, whether the paper and the stamps are, under the circum- 
 stances of the case, the subjects of larceny at common law; or, in other 
 terms, whether they are the property of, and of any value to Messrs. 
 Large & Co., (the country bankers,) who were unquestionably the 
 owners of them. These gentlemen had paid for the paper, the printing 
 and the stamps of these papers, which once existed, both in character 
 and in value, as promissory notes. Their character and value, as pro- 
 missory notes, were certainly extinct at the time they were stolen; but, 
 even in this state, they bore about them a capability of being legally 
 restored to their former character and pristine value. It was a capa- 
 bility in which these owners had a special interest and property. The 
 act of re-issuing them would have immediately manifested their value 
 as papers, for it would have saved their owners the expense of reprint- 
 ing other notes, and of purchasing other stamps, to which expense, it 
 was proved, they were put on their being deprived of these papers, by 
 the crime of the prisoner. In what sense or meaning, therefore, can it 
 *76 be said that these stamped *papers were not the valuable property of 
 their owners? They were, indeed, only of value to those owners; but 
 it is enough that they were of value to them: their value as to the rest of 
 the world is immaterial. The judges, therefore, are of opinion, that to 
 the extent of the price of the paper, the printing, and the stamps, they 
 were valuable property, belonging to the prosecutors; and that the 
 prisoner has been legally convicted." (z)j* 
 The halves The halves of the country bank notes, sent in a letter, are goods and 
 of country chattels. The indictment in some counts charged the prisoner with 
 
 bank notes , ,. « „ ,, , ,. j . ,, 
 
 are goods embezzling pieces of paper ot the value or one penny, and in other 
 and chat- counts, "pieces of paper partly written and partly printed/' bearing- 
 stamps, the values of which were specified : all the counts charged them 
 to be "of the goods and chattels" of the prosecutor. A stamp distri- 
 butor had remitted to the prosecutor, by post, the first halves of country 
 bank notes, to the amount of 190/., and evidence was given to show 
 that this letter was received by the prisoner, and that he had embez- 
 zled the notes; it was objected that these halves of country notes were 
 not goods and chattels : if the notes had been entire, they would have 
 been choses in action, not goods and chattels, and in their present state 
 they were of no value. Bosanquet, J., " They might have been made 
 of value to the prosecutor, by his putting the two halves together." 
 After citing Clarke's case, his lordship added, " I will consider of the 
 objection, and if I should think it is a valid one, the prisoner shall have 
 the benefit of it." The prisoner was afterwards sentenced to be trans- 
 ported, (a) 
 Re-issu- Re-issuable notes, if they cannot be called valuable securities while 
 
 able notes [ n the hands of their makers, may be called goods and chattels. The 
 hands of fi rst count charged the prisoner with receiving thirty pieces of paper of 
 
 (z) Clarke's case, 0. B. 1880. 2 Leach 1036, and Russ. & Ry. 181. In a MS. note of the 
 judgment in this case, with which the author has been favoured, the principle is thus stated, 
 •'If a chattel be valuable to the possessor, though not saleable, and no value to any one 
 besides, it may still be the subject of a larceny." 
 ' (a) Rex v. Mead, 4 C. & P. 535. 
 
 f JRe-issuable notes, if they cannot properly be called valuable securities, whilst in the 
 hands of the maker, may be called (in an indictment) goods and chattels. Ry. & Mood. C. 
 C. 218, Rex v. Vyse. See 5 Mason, 537, U. States v. Moulton.} 
 a Eng. Com. Law Reps. xix. 514. 

 
 CHAP. IX. § II.] THEFT. — WRITTEN INSTRUMENTS. 76 
 
 ' ' "!•»* 
 
 great value, to wit, 30/. each, the said pieces of paper being [stamped their 
 with a stamp value 5<7., the same being the stamp directed and required may be de _ 
 by the statute in that case made and provided, on every promissory note scribed as 
 for payment to bearer on demand for every sum of money not exceeding f£°Jlig n 
 1/. Is.] of the goods and chattels of J. Whitehead and others. Second 
 count the same, but substituting the words " being duly stamped as 
 directed and required bj the statute in such case made and provided," 
 iustead of the words between the brackets. Third count, receiving 
 " thirty valuable securities, commonly called promissory notes, each of 
 the said valuable securities being for the payment of the sum of 11., and 
 of the value of 1/. of the property of J. Whitehead and others, and the 
 said valuable securities at the several times of committing the several 
 felonies last above mentioned, being of great value, to wit, 30/." 
 Fourth, for receiving « thirty other valuable securities of great value, 
 to wit, of the value of 30/." Neither of the two last counts stated that 
 the moneys secured by the valuable securities remained due and unsa- 
 tisfied. The prosecutors, Whitehead and Co., were country bankers, 
 and were in the habit of issuing promissory notes of 10/., 5/., and 1/. ; 
 the two former were made payable at the house of Glyn and Co., in 
 Lombard street, the 11. only in the country, but *were occasionally paid *77 
 when presented to Glyn and Co. The course of business at that house 
 was, at the close of every day to roll up in a bundle all the notes which 
 had been paid in the course of the day, and to lock up these bundles 
 until an opportunity offered of delivering them to one of the parties 
 when in town, or of sending a parcel of them to be re-issued. On the 
 21st of November, 1827, a large bag was delivered at the house of 
 Glyn and Co. to one of the partners of the house of Whitehead and 
 Co., containing the bundles of several days, and he was robbed of the 
 bag at the door of Furnival's Inn Coffee-house, when about setting off 
 for the country by the mail, and some of the notes were traced to the 
 prisoner, under circumstances which satisfied the jury of his guilty 
 knowledge iu receiving them, and they found him guilty. And upon 
 a case reserved it was contended that in order to bring the case within 
 the 7 & 8 Geo. .4, c. 29, s. 5, the notes must be outstanding, and the 
 money purporting to be payable on them must be due and unpaid. In 
 this case the notes had been satisfied, and were in the hands of the 
 makers, they could not therefore be valuable securities of the value they 
 purported to be, and had indeed been when in circulation. Besides, 
 there was no averment that the money was due and unpaid j nor could 
 these notes be said to be goods and chattels of the value of the stamps, 
 or of any other value; they were in fact of none; but supposing them 
 to be of value, and the property of the owners, they could not be called 
 goods and chattels. The judges, ten of whom were present, held the 
 conviction right ; some doubted whether the notes could properly be 
 called valuable securities ; but if not, they all thought that they were 
 goods and chattels. (7>)f 
 
 In order to come within the 7 & 8 Geo. 4, c. 29, s. 5, an instrument An imper- 
 Diust be a perfect and complete bill of exchange, promissory note, &c, feet bill of 
 and if the sum or the drawer be omitted, they are not such securities as notej Ac " 
 
 (b) Rex v. Vyse, R. & M. C. C. R. 218. 
 
 f [Bunk hills complete in form, but not issued, are the property of the bank; and may be 
 BO treated in criminal proceedings, for receiving them with knowledge of their having beer, 
 stolen. The People v. Wiley, 3 Hill, 194.]
 
 77 OF LARCENY. — WIIAT GOODS SUBJECT OF. [BOOK IV. 
 
 is cot a are included in that section ; and although such imperfect instruments 
 geo^i may properly be described as pieces of paper, each having a stamp, yet 
 within the the prisoner cannot be convicted of stealing them, unless the prosecutor 
 ', ofl °" had such a possession of them as would have enabled him to maintain 
 :>' trespass. The first count charged the prisoner with stealing "ten bills 
 
 of exchange for the payment of 500?. each, of the value of 500?./' each 
 the property of Mr. Astley. The second count, " ten orders for the 
 payment of 500?. each, and of the value of 500?. each." The third 
 count, "ten securities for the payment of 500?. each, and of the value of 
 500?. each." And the fourth count, " ten pieces of paper, each being 
 respectively stamped with a stamp of six shillings, and of the value of 
 six shillings," &c. It appeared that in consequence of an advertise- 
 ment offering to lend money upon bills of exchange or other personal 
 security, the prosecutor, who had occasion for a sum of money, had an 
 interview with the prisoner, who told him he could accommodate him with 
 5000?. at 6?. per cent. The prisoner produced from his pocket-book 
 ten blank stamps, and the prosecutor wrote on each of them the words 
 " payable at Messrs. Praed and Co., 189 Fleet street, London." Nothing 
 was written on the stamps at that time but these words; the prisoner 
 took the stamps away. The prosecutor saw him again several days 
 *78 afterwards; he said *the prosecutor had omitted to sign his name, and 
 he again produced the ten pieces of paper ; the prosecutor signed them, 
 and wrote "accepted" on each of them, and gave them to the prisoner 
 again ; he said he would send the money in a few days by the mail, but 
 it was never sent. For the prisoner it was contended, that the papers 
 taken were not the subject of larceny, and that the 7 & 8 Geo. 4, c. 29, 
 only makes perfect and available instruments the subject of larceny; 
 and secondly, that there was no felony, because the paper stamps being 
 the property of the prisoner, no trespass was committed in taking them. 
 Littledale, J., " With respect to the first, second and third counts, I 
 am of opinion that when these acceptances were taken from the prosecu- 
 tor, they were neither bills of exchange, orders, nor securities for money. 
 After stating the facts, the learned judge proceeded : " These papers 
 were again taken away by the prisoner, and it appears to me, that, when 
 they were so taken away, they were neither bills of exchange nor orders 
 for the payment of money, but were only in a sort of embryo state, 
 there being the means of making them bills of exchange. The statute 
 7 & 8 Geo. 4, c. 29, s. 5, enacts, that if any person shall steal any, 
 ' bill, note, warrant, order, or other security whatsoever for money, or 
 for payment of money, whether of this kingdom or any other state,' the 
 party is to be punished as he would be for stealing a chattel of the like 
 value. Now how could this be said to be of any value ? and of what 
 value can it be said to be ? If these papers had been stolen from a 
 dwelling-house, could they be charged to be of the value of 500?. each ? 
 There is no sum mentioned in them, and no drawer; and they being, as 
 I before observed, but a kind of embryo security, I am of opinion that 
 the first three counts of this indictment are not proved. There is, how- 
 ever, a fourth count, which describes the papers as ten pieces of paper, 
 each having a six shilling stamp ; aud upon this count the question is, 
 whether the prisoner can be said to have stolen this property? As to 
 the first three counts, I think the case turns on a mere question of law, 
 which is, I think, entirely for the court, as these papers do not come 
 within the description contained in the statute 7 & 8 Geo. 4, c. 29. The
 
 CHAP. IX. § II.] THEFT. — WRITTEN INSTRUMENTS. 78 
 
 fourth count correctly describes them, but it seems to me that the cir- 
 cumstances under which they were obtained by the prisoner were not 
 such as to make the prisoner liable for a felony. If a person by false 
 representation obtains the possession of the property of another, intend- 
 ing; to convert it to his own use, this is felony ; but the property must 
 have previously been in the possession of the person from whom it is 
 charged to have been stolen. Now, I think that these papers, in the 
 state in which they were, were the property of the prisoner. He took 
 them from his pocket, and Mr. Astley never had them, except for the 
 purpose of writing on them ; they were never out of the prisoner's sight; 
 Mr. Astley writes on them, as was intended, and the prisoner imme- 
 diately has them again. I think that the prisoner cannot be considered 
 as having committed a trespass in the taking, as they never were out of 
 his possession at all. The case cited(c) was a case in trover, and, to 
 maintain trover, it is not necessary the party should have manual pos- 
 session of the goods; if he has a right of possession, that is sufficient. 
 To support an indictment for larceny, there must be such a *possession as *79 
 would enable the party to maintain trespass. It has been incidentally 
 mentioned that these stamps might be charged in account to Mr. Ast- 
 ley, but that could only be if the transaction was completed. How- 
 ever, we must only take into consideration, that which occurred on the 
 last occasion, when the words " accepted" and " F. D. Astley" were 
 written. Indeed, it appears to me, that on neither of the occasions 
 when these parties met, can the prosecutor be said to have had either 
 the property or the possession of these papers, so as to make the pri- 
 soner guilty of larceny in taking the papers out of the house." (c2) 
 
 So an unstamped order for the payment of money, which ought to be An un- 
 stamped under the 55 Geo. 3, c. 184, is not a valuable security within stamped 
 
 i • « mi • • 1 j> -l • • i v x\. order is not 
 
 this section. The prisoner was convicted oi obtaining an order tor tne« ava i ua bi e 
 
 payment of the sum of 21. by false pretences ; the order was a check security." 
 
 drawn upon Mr. Child & Co., payable to D. Francis Jones, for 21., and 
 
 it was not payable to D. F. Jones but to D. Francis Jones only ; it was 
 
 not payable to order or bearer. Upon a case reserved, the judges were 
 
 of opinion that it was not a valuable security, as it ought to have been 
 
 stamped, and therefore the banker would have subjected himself to a 
 
 penalty of hi. by paying it.(e) 
 
 In a case where the prisoner was indicted upon a statute (7 Geo. 3, Hanson's 
 
 c. 50, s. 1,) relating to larcenies and embezzlements, by persons em- case. 
 
 ployed in the Post Office, and the indictment charged him with secret- country 
 
 ing a letter containing certain "promissory notes ;" it was objected, on bank paid 
 
 his behalf, that the notes contained in the letter could not be considered a ° d °" t °"' 
 
 as promissory notes, the money having been paid to the holders of them, issued, 
 
 while they possessed the character of promissory notes, by the bankers —^ t t £ e re " 
 
 in London ; and that as they had not been re-issued in pursuance of the character 
 
 statutes, they had not been revived as those statutes direct, and there- &n .f. f al1 ,, 
 n J ii- within the 
 
 tore were not good and valid promissory notes. But the case being description 
 
 (c) Evans v. Kymer, a 1 B. & Ad. 528. 
 
 (a) Rex v. Hart, b 6 C. & P. 106, Bolland, B., and Bosanquet, J., delivered opinions to the 
 same effect. 
 
 (e) Rex v. Yates, R. & M. C. C. R. 170. In Rex v. Mucklow, R. & M. C. C. R. 160, ante, 
 p. 58, one objection was that the check, which was drawn more than ten miles from the 
 residence of the person in whose favour it was drawn, was void for want of a stamp, but 
 this objection was not disposed of by the Judges. 
 
 a Eng. Com. Law Reps. xx. 437. b lb. xxv. 303.
 
 79 OF LARCENY. — WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 of promis- reserved for the consideration of the twelve judges, a majority of them 
 sory notes. were f pi u ion, that these notes, though not re-issued, still retained the 
 character, and fell within the description of promissory notes; that they 
 were, as promissory notes, valuable to the owners of them ; and there- 
 fore, that the verdict given against the prisoner in this case was right 
 in law.(/) But a case is mentioned in which it was ruled, that it 
 was not felony within the statute of 2 Geo. 2, c. 25, (now repealed) 
 to steal bankers' notes completely executed, but which had never been 
 put into circulation; on the ground that no money was due upon 
 them.(#) 
 *80 But where a party was compelled, by great violence and menace *of 
 
 Phipoe's death, to sign a promissory note on stamped paper previously prepared 
 Wher ky the prisoner, and the prisoner was present during the time, and 
 party was withdrew the note as soon as it was made, it was holden not to be a 
 compelled cage w it n i n f^g 2 Geo. 2, c. 25. The indictment charged the prisoner 
 violence to with robbing the prosecutor in a dwelling-house, and taking from him 
 sign a pro- a promissory note of the value of 2,000?., signed by the prosecutor, 
 note which against the form of the statute ; and another count laid the note as the 
 had been property of the prosecutor. The facts proved were that the prisoner 
 prepared"^ inveigled the prosecutor to her house, where he was detained by force for 
 by the pri- several hours, and at length induced by great violence and menace of 
 producld it death, to sign the promissory note in question. It was dated March 
 and with- 30, 1795, and promised in the usual form two months after date to pay 
 drew it ^g prisoner, or order, two thousand pounds. And it appeared that the 
 
 again as . r ' r rr 
 
 soon as it prisoner attempted to get the note discounted the next day, without suc- 
 was signed, cess . an( j [^ was f und in her possession when she was apprehended. 
 
 tllC CflSC 
 
 was holden The jury having found the prisoner guilty, the case was reserved for 
 not to be the consideration of the twelve judges; the principal objection to the 
 2 Geo! 2 c. conviction, as urged by the counsel for the prisoner, being that the case 
 25. was not within the statute 2 Geo. 2, c. 25, the note being of no value 
 
 while in the hands of the prosecutor, and the statute only extending to 
 secure valid existing securities in the possession of the party robbed. 
 It was argued, that nothing could be said to be due on this note as the 
 statute required ; and that it never was the property, nor in the posses- 
 sion of the prosecutor, the paper and stamp being the property of the 
 prisoner, and never out of her possession : that the prisoner had in fact 
 acquired the note, not by stealing, but by duress. It appears that 
 there was considerable difference of opinion amongst the judges upon 
 this point. It is said, that nine of them expressly held, that the offence 
 was not within the statute; some of them thinking that the statute was 
 only intended to protect existing available notes in the hands of the per- 
 son from whom they were taken ; and that this note did not come with- 
 in that description, being of no value in the hands of the prosecutor ; 
 and others inclining that the note was of value from the moment it was 
 drawn ; but that it never was in the possession of the prosecutor, but 
 continued all the time in the possession of the prisoner herself, by whose 
 
 (/) Ranson's case, O. B. 1812. 2 Leach, 1090, 1093. Russ. & Ry. 232. 
 
 (ff) Anon. cor. Lord Ellenborough, C. J., Carlisle, 1802, mentioned in the notes of 4 Bla. 
 Com. 234, and note (b), in 2 Leach, 1061. But they would probably be deemed valuable 
 property, on the subject of larceny at common law." See Clarke's case, ante, p. 74. Some 
 of the judges in Ranson's case thought that the acts 2 Geo. 2. c. 25, and 7 Geo. 3, c. 50, 
 wore in pari materia, and that the term promissory note was not to be taken in such act to 
 mean notes on which the money thereby secured still remained due and unsatisfied to the 
 holder thereof: but the majority of the judges, as we have seen, differed.
 
 CHAP. IX. § II.] THEFT. — WRITTEN INSTRUMENTS. 80 
 
 duress the prosecutor was compelled to make it. And Eyre, C J., ob- 
 served, that the property never existed till the force, but arose out of it ; 
 and that, therefore, it was different from the case of money. And ad- 
 mitting that if the prosecutor had brought the note in his pocket, it 
 would have been a case within the act, though the note would not be 
 available while in his possession (upon which point he should have hesi- 
 tated) : yet this was not that case. But all the nine judges considered 
 that the whole transaction was one continued act, and that the note was 
 procured by duress, and not by stealing. One of the judges, (Ashurst, 
 J.,) who differed, thought that it was not a single act, but that there 
 was a distinguishable interval between the writing of the note, and the 
 actual taking of it by the prisoner, during which the prosecutor had the 
 possession of it; and that therefore it was taking from him an instru- 
 ment of value within the meaning of the statute, as it would have been 
 available against him in the hands of an innocent holder. On this 
 ground also, Macdonald, C. B., doubted. The other judge, (Buller, 
 J.,) was absent. The opinion of the *inajority of the judges was after- *81 
 wards delivered by Ashurst, J. He stated " that as the legislature, at 
 the time of passing the statute 2 Geo. 2, c. 25, s. 3, whereby the stealing 
 a chose in action was made felony, could not possibly have a case like 
 the present in contemplation, it was not within that act of parliament; 
 that it was essential to larceny, that the property charged to have been 
 stolen should be of some value ; that the note in the present case did 
 not, on the face of it, import either a general or special property in the 
 prosecutor ; and that it was so far from being of any the least value to 
 him, that he had not even the property of the paper on which it was 
 written ; for it appeared that both the paper and the ink were the pro- 
 perty of the prisoner ; and the delivery of it by her to him could not, 
 under the circumstances of the case, be considered as vesting it in 
 him."(A) 
 
 This authority was cited in a case of recent occurrence, where the Walsh's 
 prisoner was charged with stealing a check upon a banker, which in ^. s ^- ed 
 some of the counts of the indictment, was described as a " bill of ex- that a 
 change," and in others as "a warrant for the payment of money." J&check upon 
 was argued, on behalf of the prisoner, that these counts were bad, on was no t 
 the ground that the 2 Geo. 2, c. 25, (now repealed) extended only to within the 
 such instruments as were available security in the hands of the party 2 5, ' ' 
 from whom they were stolen, that a check on the banker did not create 
 any debt between the drawer and the banker, whose liability to the 
 drawer remained precisely the same as before, and was not altered in 
 any respect by such an instrument ; and that, consequently, the check 
 in the present case, not being a security to the prosecutor, could not be 
 averred, as in this indictment, to be either "bill of exchange," or "a 
 warrant for the payment of the money," the property of the prosecutor, 
 and upon which the sum of money, for the payment whereof it was 
 made, was due thereon to him. It was not, however, necessary to 
 
 (h) Rex v. Phipoe, 0. B. 1795, and Serjeants' Inn, Feb. 1796, 2 Leach, 673. 2 East, P. C. 
 C. 16, s. 37, p. 509 ; and see Rex v. Edwards, 6 6 C. & P. 521, which was a very similar case, 
 but the paper on which the order was written was in the possession of the prosecutor for 
 half an hour, whilst he was fastened down to a chair, and this was held to make no differ- 
 ence: ante, vol. i., p. 869, 870. 
 
 a Eng. Com. Law Reps. xxv. 552.
 
 81 OF LARCENY. — WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 press this objection, as the case supplied others of greater importance, 
 
 which have been already noticed. (i) 
 
 Chard's ^ was decided upon the 2 Geo. 2, c. 25, (now repealed) that where 
 
 case. an instrument was described in the indictment as a bank post bill, and 
 
 Bank post wag not get QU ^ tne cour t cou ld no t take judicial notice that it was a 
 
 promissory note, or that it was such an instrument as under that statute 
 
 might be the subject of larceny, though it was described as made for 
 
 the payment of money. The prisoner was indicted for stealing a bank 
 
 post bill made for the payment of the sum of 100?. of lawful money of 
 
 Great Britain ; and it appeared that the bank post bill was in form a 
 
 promissory note, and therefore would not support the indictment, unless 
 
 the court could take notice judicially, that a bank post bill was in form 
 
 a note. The prisoner, however, was convicted, and a motion was made 
 
 in arrest of judgment, on the ground that at the time the statute 2 Geo. 
 
 2, passed, it was not known what a bank post bill was. Upon a case 
 
 *82 reserved, *it appeared that bank post bills were not in use until two years 
 
 after the statute 2 Geo. 2 had passed, and the judges thought that they 
 
 could not take notice, that what was afterwards called a bank post bill 
 
 fell within any of the descriptions in that statute ; and they also thought 
 
 that they could not say, as the instrument was not set out, what a bank 
 
 post bill was ; and, further, that as the instrument was not what, at the 
 
 time the statute passed, could properly be called a bill, the prisoner 
 
 should have been acquitted, and a pardon was recommended.^') 
 
 Of larceny III- The third subject of inquiry, under the head of personal goods 
 
 of animals, [ n respect of which larceny may be committed, arises when the property 
 
 fish. ' taken consists either of animals, birds, ox fish. 
 
 Domestic With regard to domestic animals, such as horses, oxen, sheep, and 
 animals, the like, there is no doubt whatever that they were the subjects of lar- 
 ceny at common law. (A;) And the stealing of many of these animals 
 has been made subject to transportation by an enactment which will be 
 noticed in a subsequent chapter. (A Domestic birds, also, as ducks, 
 hens, geese, turkeys, peacocks, &c, are clearly the subjects of lar- 
 ceny, (m) So also larceny may be committed of their eggs or young 
 ones.(?i) 
 And their And as the stealing of such animals is larceny, it is also larceny to 
 produce, steal the produce of them, though taken from the living animals. Upon 
 this ground it was holden by all the judges, on a case reserved for their 
 opinion, that milking a cow at pasture, and stealing the milk, was lar- 
 ceny, (o) And it has also been holden that larceny may be committed 
 by pulling wool from the bodies of live sheep and lambs with a feloni- 
 ous intent.(p) In one report of this last decision it is given as a part 
 of the opinion of the judges, to whose consideration the question was 
 referred, that in order " to prevent the thoughtless and wauton frolics 
 which might be played with these trifling kinds of property from being 
 prosecuted as petty larcenies, when, perhaps, they were unmixed with 
 any fraudulent or felonious design, the law, proceeding upon the idea 
 
 (t) Walsh's case, 1 Leach, 1061. Russ. & Rv. 215. Ante, p. 30. 
 
 (/) Rex v. Chard, Trin. T. 1823. Russ. & Ry. 488. 
 
 (k) 1 Hale, 511. 1 Hawk. P. C. 33, s. 43. (I) Post. Chap. XI. 
 
 (m) 1 Hale 511. Hawk. P. C. c. 33, s. 43. («) Id. Ibid. Hale's Sum. 68, 69. 
 
 (o) Anon. cot. Leigh, Serj., who sat for Bathurst, J., Oxford circuit about 1769. 2 East, 
 P. C. c. 16, s. 49, p. 61?. 1 Leach, 171. 
 
 (/)) Martin's case, Northampton Lent Ass. 1777. 1 Leach. 171. 2 East. P. C. c. 16, 
 B. 49, p. 618.
 
 CHAP. IX. § II.] THEFT. — ANIMALS, ETC. 82 
 
 de minimis, requires the property stolen to be of the value of twelve- 
 pence, "(a) The distinction, however, between grand and petty larceny 
 is now abolished by the 7 & 8 Geo. 4, c. 29, s. 2, but the application 
 of it in this case seems to have been very questionable. Undoubtedly 
 the quantity of wool taken, if considerable, would have been a strong 
 additional circumstance in the evidence of felonious intent necessary to 
 sustain a charge of larceny ; but supposing the quantity not to have 
 been of greater value than twelve-pence, yet if the felonious intent of the 
 party was manifest, as it might have been from the manner in which 
 the fact was committed, the use to which the property was applied, and 
 the behaviour of the party, there does not appear to have been any good 
 reason why such a taking should not have been considered as petit 
 larceny, (r) 
 
 *Where the animals or other creatures are not domestic but are ferce *83 
 naturce, larceny may, notwithstanding, be committed of them, if they Animals, 
 are fit for the food of man, and dead, reclaimed, (and known to be so) J^mm" 
 or confined. Thus, if hares or deer be so enclosed in a park, that they reclaimed 
 may be taken at pleasure ; or fish in a trunk or net, or as it seems in or dead " 
 any other enclosed place which is private property, and where they may 
 be taken at any time, at the pleasure of the owner ; or pheasants and 
 partridges be confined in a mew ; or pigeons be shut up in a pigeon- 
 house ; or swans be marked and pinioned, or (though unmarked) be 
 kept tame in a moat, pond, or private river : or if any of these creatures 
 be dead and in the possession of any one, the taking of them with felo- 
 nious intent will be larceny. (s) And of some things ferce. naturae, 
 though not fit for food, felony may be committed, if they be reclaimed ; 
 in respect of their generous nature and courage, serving oh vita, solatium 
 of princes and noble persons, to make them fitter for great employment ; 
 so that larceny may be committed of hawks and falcons, when reclaimed 
 and known to be so;(£) and it may be committed also, it is said, of 
 young hawks, in the nest ;(ii\ but not of the eggs of hawks or swans, 
 though reclaimed, the reason of which seems to be that a less punish- 
 ment, namely, fine and imprisonment, is appointed for taking them by 
 statute. (v) The stealing of a stock of bees seems to be admitted to be 
 felony. (wj\ 
 
 Where pigeons were shut up in their boxes every night, and stolen 
 
 (q) 1 Leach, 172. 
 
 (r) It should be observed also that in the abstract of Martin's case, 2 East, P. C. c. 16. s. 
 49, p. 618, it is not stated as any part of the opinion of the judges that the property stolen 
 should be above the value of twelve-pence. And at the conclusion of the report in which 
 that position is advanced, the doctrine appears to be contradicted, where it is said, "if a 
 wicked disposition be discovered, tine disposition a /aire un mat chose, as it is described by 
 Britton, it may be evidence of felony, notwithstanding the trifling quantity of the thing 
 taken." 
 
 (s) 2 Inst. 109, 110. 1 Hale, 511. 3 Hawk. P. C. c. 33, s. 41. 4 Bla. Com. 235. 2 
 East, P. C. c. 16, s. 41, p. 607. 
 
 (t) 1 Hawk. P. C. c. 33, s. 36. 3 Inst. 97, et seq., and 3 Inst. 109. But the 37 Ed. 3, c. 
 19, is repealed by the 7 & 8 Geo. 4, c. 27. 
 
 (u) 1 Hale, 511. This law had relation to the trained hawks of other days. 
 
 (v) 11 Hen. 7, c. 17, and 31 Hen. 8, c. 12. 1 Hawk. P. C. c. 33, s. 42. 2 East, P. C. c. 
 16, s. 41, p. 607. 
 
 (to) 2 East, P. C. c. 16, s. 41, p. 607, citing Tibbs v. Smith, T. Ray. 33. 2 Bla. Com. 392, 
 393. 
 
 f [Bees in the possession of the owner are the subject of larceny. The State v. Murphy, 
 5 Blackf. 498.]
 
 83 OF LARCENY. — WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 out of such boxes during the night, Parke, B., held it to be larceny, (a:) 
 So where pigeons were so tame that they came home every night to 
 roost in boxes at the side of the house of their owner, it was held to be 
 larceny, if they were taken by night out of such boxes, although the 
 boxes were not shut up at night. Upon an indictment for a misdemea- 
 nor in attempting to steal pigeons out of certain boxes affixed to the 
 wall of a dwelling-house, it appeared, that the boxes were fixed to the 
 wall of the prosecutor's house for his pigeons to live and breed in, and 
 the holes of them were left open at night. The pigeons were such as 
 are generally about farm-houses and were accustomed to feed with the 
 prosecutor's fowls ; they flew about the fields as they pleased, returning 
 again to the boxes, in which they always roosted at night. The prison- 
 ers had reared a ladder against the house, and one of them was attempt- 
 ing to take the pigeons out of the box, when he was caught by the 
 *84 prosecutor. Taddy, Serjt., held that as these pigeons were so tame 
 that they came home every night to roost in *the boxes, after they had 
 been out to feed, they were reclaimed, so as to be the subject of lar- 
 
 Animals, ceny.(#) 
 
 &c, unre- But a different doctrine prevails with respect to animals and other 
 
 1 aim " creatures ferce, natures which are unreclaimed, as it is considered that 
 
 no person has a sufficient property in them to support an indictment for 
 larceny. Thus larceny cannot be committed of deers, hares, or conies, 
 in a forest, chase, or warren ; of fish, in an open river or pond ; of 
 wild fowls, when at their natural liberty ; of old pigeons, out of the 
 dove house ;(z)t or even 0I " swans, though marked, if they range out of 
 the royalty, because it cannot be known that they belong to any per- 
 son. (a) But larceny may be committed of the flesh or skins of any of 
 these or other creatures fit for food, when they are killed, because they 
 are then reduced to a state in which a right of property in them may be 
 claimed and exercised. (b) 
 
 (z) Luke's case, Rose. Cr. Ev. 577, and ex-relatione Mr. Granger. The case 'was deter- 
 mined on the ground that the pigeons were reclaimed, and not on the ground that they were 
 shut up in their boxes at the time they were taken. 
 
 (?/) Rex v. Brooks, MS. C. S. G., and 4 C. & P. 131. "Si autem animalia fera facta 
 fuerint mansueta, et ex consuetudine eunt et redeunt, volant et revolant (ut sunt cervi, cigni, 
 pavones, et columbae et hujusmodi) eo usque nostra intelliguntur quamdiu habuerint ani- 
 mum revertendi." Bracton, lib. 2 c. 1, fol. 9, cited in the case of Swans, 7 Rep. 16 b. 
 See 1 Just. Inst. Tit. I., XV. In the argument of Dewell v. Sanders, Cro, Jac. 490, Doderidge, 
 J., said, that if pigeons come upon my land I may kill them, and the owner hath not any 
 remedy ; but the owner of the land is to take heed that he takes them not by any means 
 prohibited by the statutes. Ad quod Croke and Houghton, accord. But Montague, C. J., 
 held the contrary, and that the party hath jus proprietatis in them, for that they be as do- 
 mestics, and have animum revertendi, and ought not to be killed, and for the killing of them 
 an action lies ; but, adds the reporter, the other opinion is the best. See also, 2 Bla. Com. 
 292. 
 
 (z) 3 Inst. 109, 110. 1 Hale, 510, 511. 1 Hawk. P. C. c. 33, s. 29, 40. 4 Bla. Com. 235. 
 
 2 East, P. C. c. 16, s. 46, p. 607. But see 2 Bla. Com. 392. 
 
 (a) 1 Hale, 511. 
 
 (b) 3 Inst. 110. 1 Hale, 511. In 3 Inst. 110, it is said, "But the deer, &c, being wild. 
 yet when he is killed, larceny may be committed of the flesh, and so of pheasant, partridge, 
 or the like ; and so note a diversity between such beasts as be ferce naturce, and being made 
 tame, serve for pleasure only : and such as be made tame, and serve for food, &c, which 
 diversity not being observed, hath made many men to err.'' 
 
 f {See 9 Pick. 15, Commonwealth v. Chace, that doves are ferce naturce, and not the sub- 
 ject of larceny, unless they are in the custody of an owner.} 
 
 [A coon comes under the denomination of animals ferce naturce, and is not the subject of 
 larceny. Warner v. The Stale. 1 Iowa Rep. 106.]
 
 CHAP. IX. § II.] THEFT. — ANIMALS, ETC. 84 
 
 It seems that no person has any property in rooks, so that neither 
 they nor their young ones can be the subject of larceny. (c) 
 
 It is so clearly established, that those creatures which are ferce naturae Rough's 
 can only become the subject of property by being dead, reclaimed, or ? ase - An 
 confined, that it has been holden to be necessary that they should be so for stealing 
 described in an indictment for stealing them. The prisoner, having an animal 
 been convicted on an indictment for stealing a pheasant of the value of , rce na ~ , 
 forty shillings, of the goods and chattels of II. S. the case was referred show that 
 to the consideration of the judges; and upon a second conference, and 1 *.7 as ] 
 after much debate and difference of opinion, they all agreed that the tame or 
 conviction was bad; that in cases of larceny of animals ferce nature? con&ned - 
 the indictment must show that they were either dead, tame, or con- 
 fined ; otherwise they must be presumed to be in their original state ; 
 and that it it is not sufficient to add " of the goods and chattels" of 
 such an one. ((/) 
 
 It has been ruled that though a person be not qualified to keep, or Jones's 
 kill game, he may have a sufficient le";al possession of animals, &c, case " ,4 n , 
 
 . , i.i •• i or > 7 unqualified 
 
 coming under that description, whereon to support an indictment for person may 
 stealing them* The prisoner was indicted for stealing five pheasants, have a suf ~ 
 restrained of their natural liberty, the property of the ^prosecutor : and, possession 
 upon its appearing from the evidence that the prosecutor was not a of 9 ame t0 
 qualified person to keep or shoot game, and that he had the pheasants ind^tmen" 
 for sale, it was objected that he could have no property in them, nor for stealing 
 any legal possession sufficient to support the indictment; that by the ltf ™or im ' 
 several statutes relating to the game laws, unqualified persons are for- 
 bidden under certain penalties, to have pheasants in their possession ; 
 and that by one of those statutes authority is given to a justice of the 
 peace to take away from such person any pheasant which he may have 
 in his possession. But the learned judge held that it was sufficient 
 legal possession for the purposes of the indictment, and the prisoner was 
 convicted. (/)f 
 
 The stealing of deer, offish, and of hares and conies, in a warren, &c, Deer, co- 
 has been made punishable by statute, as will be mentioned more parti- ni ® s an(1 
 cularly in some of the following chapters. 
 
 There is yet another kind of animals to be noticed ; namely, those Animals 
 which, though they may be reclaimed, are not such of which larceny of k ase 
 can be committed by reason of the baseness of their nature. Some 
 animals which, in this country are now usually tame, come within the 
 class in question ; as dogs and cats. And others which, though wild by 
 nature, are often reclaimed by art and industry, clearly fall within the 
 same ruft; as hears, foxes, apes, monkeys, polecats, ferrets, and the 
 like. (^7) The reason upon which this doctrine appears originally to have 
 proceeded is, that creatures of this kind, for the most part wild in their 
 nature, and not serving, when reclaimed, for food, but only for pleasure, 
 
 (r) Hannam v. Mockett, a 2 B. & C. 934. 4 D. & R. 518. The court said that rooks were 
 not generally used for food, but the contrary is certainly the case with young rooks, which 
 are very commonly used for food. C. S. G. 
 
 (d) Rough's case, Surrey Lent Ass. 1778, and East. T. 1779. 2 East, P. C. c. 16, s. 41, 
 p. 607. 
 
 (/) Jones's case, cor. Grose, J., Bucks. Lent Ass. 1809. 3 Burns' Just. tit. Larceny, t). & 
 W. 457. 
 
 (ff) 3 Inst. 109. 1 Hale, 511, 512. 
 
 f [Ice, put away in an ice-house for domestic use, is private property, and as such the 
 Bubject of larceny. Ward v. The People,?, Hill, 395.] 
 
 a Eng. Com. Law Reps. ix. 280.
 
 85 OF LARCENY. — WHAT GOODS SUBJECT OF. [BOOK IV. 
 
 ought not, however the owner may value them, to be so highly regarded 
 by the law that for their sakes a man should die. (A) And the doctrine 
 extendsto the whelps, or young, of such animals : the rule being esta- 
 blished, that where no felony can be committed of any creatures that are 
 ferae, naturae, though tame or reclaimed, it cannot be committed of the 
 young of such creatures in the nest, kennel or den.(t) 
 Searing's The doctrine respecting the larceny of animals, of a base nature, was 
 case. Fer- cons i(Jered in a late case, where the prisoner was charged in the indict- 
 S aals of ment with stealing " five live tame ferrets, confined in a certain hutch, 
 
 aiiima 
 
 abase &c.," the property of Daniel Flower. The evidence brought the fact of 
 ilot""^ 11 taking the ferrets clearly home to the prisoner; and it was also proved 
 subject of that ferrets are valuable animals, and that those in question were sold 
 larceny. ^ ^ e prisoner for nine shillings. But the jury having found the pri- 
 soner guilty, the case, was submitted to the consideration of the judges 
 upon the question, whether ferrets must be considered as animals of so 
 base a nature that no larceny can be committed of them. And the 
 judges held that judgment ought to be arrested. (/) 
 Dogs and With respect, however, to dogs, and also beasts and birds, ordinarily 
 certain kept in a state of confinement, the 7 & 8 Geo. 4, c. 29, s. 31, enacts, 
 birds 7 & " that if an y person shall steal any dog, or shall steal any beast or bird 
 8 Geo. 4, c. ordinarily kept in a state of confinement, not being the subject of lar- 
 ' *&fi* cen y a * common law, every such offender, being *convicted thereof before 
 Stealing a justice of the peace, shall for the first offence forfeit and pay, over and 
 dogs, or above the value of the dog, beast, or bird, such sum of money, not ex- 
 stealing cee( Ji n g twenty pounds, as to the justice shall seem meet ; and if any 
 birds ordi- person so convicted shall afterwards be guilty of any of the said offences, 
 nanly kept an( j sna ]i De convicted thereof in like manner, every such offender shall 
 
 in confine- , . , . ' „ * . , . 
 
 ment, and be committed to the common gaol or house ot correction, there to be 
 notthe sub- kept at hard labour for such term, not exceeding twelve calendar months, 
 
 iects of . . . 
 
 larceny. as *h e convicting justice shall think fit ; and if such subsequent con- 
 viction shall take place before two justices, they may further order the 
 offender if a male, to be once or twice publicly or privately whipped, 
 after the expiration of four days from the time of such conviction." (&) 
 Persons By sec. 32, " if any dog, or any such beast, or the skin, thereof, or 
 
 found in an y sucri D i r cL or any of the plumasre thereof, shall be found in the pos- 
 
 i kip session • * 
 
 of stolen session or on the premises of any person by virtue of a search warrant, 
 dogs, &c, to be granted as hereinafter mentioned, the justice by whom such war- 
 penalties. ran ^ was g ran ted may restore the same respectively to the owner thereof, 
 and the person in whose possession, or on whose premises the same shall 
 be so found, (such person knowing that the dog, beast, or bird, has been 
 stolen, or that the skin is the skin of a stolen dog or beast, or that the 
 plumage is the plumage of a stolen bird,) shall, on conviction before a 
 justice of the peace, be liable for the first offence to such forfeiture, and 
 for every subsequent offence to such punishment, as persons convicted 
 of stealing any dog, beast or bird, are hereinbefore made liable to."(/) 
 
 (h) 1 Hawk. P. C. c. 33, s. 36. 4 Bla. Com. 235. 2 East, P. C. c. 16, s. 45, p. 614. 
 
 (»') 3 Inst. 109. 
 
 (/) Searing's case, cor. Wood, B., Hertford Lent Ass. 1818. MS. Bayley, J., and Russ. & 
 Ry. 350. The ferret was originally a native of Africa, but has been for a long time bred, 
 kept and sold in this country, as a tame animal. 
 
 (/:) The Irish Act, 9 Geo. 4, c. 55, s. 28, 29, contains similar provisions to those in this 
 and the following section. 
 
 (I) As to the apprehension of offenders, see s. 63, and as to the recovery and application 
 of forfeitures, appeal against convictions, &c. see s. 67. ct seq.
 
 CHAP. IX. § III.] OWNERSHIP OF THE GOODS. 86 
 
 By sec. 33, "If any person shall unlawfully and wilfully kill, wound, Killing 
 or take any house-dove or pigeon, under such circumstances as shall not l n £ eona - 
 amount to larceny at common law, every such offender, being convicted 
 thereof before a justice of the peace, shall forfeit and pay, over and 
 above the value of the bird, any sum not exceeding two pounds. "0 
 
 SECT. III. 
 
 Of the Ownership of the Goods in respect to which Larceny may he 
 
 committed. 
 
 It is necessary that there should be in some person a sufficient owner- 
 ship of the things stolen; and that they should be stated in the indict- 
 ment as the goods and chattels or property of such person. 
 
 And this ownership must, of course, exist as against the party by joint 
 whom the goods are taken; and will not, in general, reside sufficiently tenants \ or 
 in any other person, where the party taking the goods has a legal pro- common, 
 perty in them, and a right of possession. So that joint tenants, or ten- have not 
 ants in common, of a chattel, cannot be guilty of stealing such chattel s jjj p as 
 from each other."}" Thus, if A. and B. be *joint tenants, or tenants in *87 
 common, of a horse, and A. take the horse, even animo furandi, yet it against 
 will not be a felony, because one tenant in common taking the whole upon which 
 only does that which he may do by law.(m) an indiet- 
 
 The goods of a ready furnished lodging must be described as the nient for 
 lodger's goods, and not the goods of the original owner. An indictment can be sus- 
 was for breaking in the day time Anderson's house, and stealing his tamed, 
 goods. The goods were the furniture of a room let by Anderson to Goods let 
 another person by the week : and, upon a case reserved, the judges held with a 
 that the goods should have been described as the goods of such other lodging, 
 person, for Anderson was not entitled to the possession, and could not 
 have maintained trespass ; and that the conviction was, therefore, 
 wrong, (ji) 
 
 We have seen that a, feme covert cannot commit larceny of her bus- Nor has a 
 band's goods by taking them from the possession of her husband, be- husband 
 cause in law they are considered as one person, and she has a kind of ownership 
 interest in the goods, (o) And upon the same ground it has been holden, of his 
 that even a stranger cannot commit larceny of the husband's goods by fo-ainst his 
 the delivery of the wife, unless he be her adulterer, ^p) But, if the wife, that 
 husband bail the goods to a third person, as there will then be a posses- on g £ y her 
 sion in the bailee, distinct from that of the husband, it may be a larceny delivery, 
 if the wife take such goods with a felonious intent. (j) mTiflareeiiv 
 
 The last case proceeds upon an exception to the general rule, that a of them, 
 person cannot commit felony of the goods wherein he has a property, (r) A man 
 
 (I) See note (I) on previous page. 
 
 (m) 1 Hale, 513. 2 East, P. C. c. 16, s. 7, p. 558. See the 3 & 4 Vict, c 92, s. 2, as to 
 larceny by the members of joint stock banks, post, p. 104. 
 
 (n) Rex v. Belstead, East. T. 1820, MS. Bayley, J., and Russ. & Ry. 411, and the same 
 point was decided in Rex v. Brunswick, Trin. T. 1824, MS. Bayley, J., and Ry. & Mood. C. 
 C. 27. See the observations of Bayley, B., on these cases, post, p. 90 and 91. As to larcenies 
 by tenants and lodgers see post, chap. Of Larceny by Tenants and Lodgers. 
 
 (o) Vol. 1, p. 22, 23, and see Rex v. Willis, infra, note (w). (p) Ibid. 
 
 (q) 1 Hale, 513. (r) Id. Ibid. 
 
 f [One entitled to receive a share of a crop for his services is not joint tenant or tenant 
 in common with his employer, and commits larceny in stealing a part. State v.. Gay, 1 Hill. 
 364.] 
 
 Vol. ii. — 7
 
 87 
 
 OF LARCENY. — OWNERSHIP OF THE GOODS. [BOOK IV. 
 
 own good 
 fr< m B 
 bailee. 
 
 Friendly 
 
 societies. 
 
 *88 
 
 in certain He may, under particular circumstances, be guilty of larceny in stealing 
 ',.'■';, f his own goods, as he may of robbery in taking his own property from 
 larceny in the person of another.f If A. bail goods to B., and afterwards animo 
 8 furandi take the goods from B.,with an intent to charge him with the 
 value of them, it is felony. (s\ And so if A., having delivered money to 
 his servant to carry to some distant place, disguised himself, and robbed 
 the servant on the road, within intent to charge the hundred with the 
 loss, according to the provisions of the repealed statute, it was robbery 
 in A.U) For as against persons so taking even their own goods with a 
 wicked and fraudulent intent, there is a sufficient temporary special pro- 
 perty in the bailee or servant to support an indictment. (u\ So if a part 
 owner of property steals it from the person in whose custody it is, and 
 who is responsible for its safety, he is guilty of larceny. The box of a 
 female friendly society, established according to 33 Geo. 3, c. 54, con- 
 taining upwards of fifty pounds, was left in the custody of the *land- 
 lord of the house where the society met ; the prisoner was one of the 
 members, and broke into the landlord's house in the night time, and 
 stole the bos. Upon an indictment for burglary and stealing the box 
 and its contents, a case was saved for the opinion of the judges, upon 
 the question whether, considering the situation in which the prisoner 
 stood with respect to this property, the conviction was right, and the 
 judges (ten of them being present) were clear, that as the landlord was 
 answerable to the society for the property, it was a right conviction. (r) 
 If the wife But if the wife of a member of a friendly society steal money of the 
 of a mem- society deposited in a box in her husband's house, which is kept locked 
 friendly by the stewards, this is not larceny. Upon an indictment for stealing a 
 quantity of money, laid to be the property of W. Orchard and thirty or 
 forty others, and amongst them the prisoner's husband, all of whom 
 were named in the indictment, it appeared that a friendly society was 
 held at a public house, kept by the prisoner's husband, who was a 
 member of the society, and the box containing the property was always 
 left in his house, but the box had four locks kept by the stewards, of 
 whom he was not one ; the wife having broken open this box, and stolen 
 a great deal of money to pay some debts of a former husband, was con- 
 victed ; but Park, J. A. J., thought it fit to ask the opinion of the judges, 
 whether a wife can be convicted of larceny in stealing money in which 
 her husband has a joint property; and the judges were of opinion that 
 the conviction was wrong. (ic) An indictment for burglary and steal- 
 such a so- * n 8 * n e k° x of a friendly society, in all the counts, except one, laid the 
 ■iety may property in one of the stewards, and in that one in the landlord of the 
 the land- P u ^ c house where it was kept. There were four stewards of the so- 
 lord of an ciety, and, by the rules, the landlord ought to have had a key of the 
 ? nn > ^ e here box, but, in fact, he had none. The box was deposited in a room in 
 posited. the public house, and two of the stewards had each a key. Parke, J. 
 
 a iciety 
 steal the 
 society's 
 money, it 
 is not lar- 
 ceny. 
 
 Th 
 
 (*) Staundf. 56 a. 3 Inst. 110. 1 Hale, 513, 514. 1 Hawk. P. C. c. 33, s. 47. Fost. 123. 
 Aliquando etiam suas rei furtuin quis committit, veluti si debitor rem, quam creditori pig- 
 noris causa dedit, subtraxerit. Just. Inst. Lib. 4, tit. 1, s. 10. 
 
 ', Fost. 122, 124. 3 Inst. 110. 4 Bla. Com. 231. 2 East, P. C. c. 16, s. 7, p. 558, and 
 s. 90, p. 654, where the learned author says, that even in this case he sees no objection to 
 laying the property of the goods in the servant. 
 
 (u) See also the argument in Rex v. Deakin, 2 Leach, 871. 
 
 (v) Rex v. Bramley, East, T. 1822, MS. Bayley, J., and Russ. & Ry. 478. 
 
 (») Rex v. Willis, R. & M. C. C. R. 375. 
 
 t [Palmer v. The People, 10 Wend. 165. The People v. Wiley. 3 Hill. 190.]
 
 ing a 
 
 s own 
 
 CHAP. IX. § III.] OWNERSHIP OP THE GOODS. 
 
 intimated that the case must rest on the count which stated the property 
 to be in the landlord. It was then objected, that if there was any pro- 
 perty in the landlord, it was a joint property between him and the 
 stewards. Parke, J., "I am of opinion that there is sufficient evi- 
 dence to go to the jury of the property in the landlord alone. "(x) And 
 if a man steals his own goods from his own bailee, though he has no Steali 
 intent to charge the bailee, but his intent is to defraud the king, yet if man ' 
 the bailee had an interest in the possession (as if he were bound to the fntent to 
 crown for the specific appropriation of the goods,) and could have with- defraud 
 held them from the owner, the taking is a larceny. Win. Marsden had| a r Cen y g 1S 
 a quantity of nux vomica, and by means of one Cooper, employed Marsh 
 and Co., lightermen, to enter it for exportation, and carry it to the ship. 
 Exportation exempts it from the duty, which *is two shillings and six- *89 
 pence per pound. March and Co. entered it accordingly, and gave 
 bond to the crown for its exportation, and sent it by their lighter to the 
 ship : and on the way to the ship, W. Marsden, J. Marsden, and Wil- 
 kinson, who had charge of this lighter, took out the nux vomica, and 
 substituted cinders and rubbish, the object being to get the nux vomica 
 duty free. The indictment was against J. Marsden and Wilkinson for 
 stealing the goods of Marsh and Co., and upon a case reserved, four of 
 the judges, Richardson, Burroughs, Wood, and Graham, doubted whe- 
 ther this were larceny, because there was no intent to cheat Marsh and 
 Co., or to charge them, but the intent was to cheat the crown, but seven 
 judges (Best, J., being absent) held it a larceny, on the grounds that 
 Marsh and Co. had a right to the possession until the goods reached the 
 ship, and had an interest in that possession, and that the intent to 
 deprive them of that possession wrongfully, and against their will, was a 
 felonious intent as against them, because it exposed them to a suit upon 
 their bond, and that even if there had been no intent as against them, 
 the intent to cheat the crown was, in the opinion of most of the seven 
 judges, sufficient to make it a larceny.(y) 
 
 Where goods are in the possession of the wife, they must be laid as Goods, &c, 
 the goods of her husband; thus if A. is indicted for stealing the goods in ^ e P os " 
 of B., and it appears that B. was a feme covert at the time, A. must be the wife. 
 acquitted. (z) And even if the wife have only received money as the 
 agent of another person, and she is robbed of that money before her 
 husband receives it into his possession, still it is well laid as his money 
 in an indictment for larceny. An indictment charged the stealing of a 
 bl. Bank of England note, the property of E. Wall, averring, in the 
 usual way, that the money secured by the note was due and payable to 
 E. Wall : it appeared that E. Wall's wife had been employed to sell 
 sheep belonging to her father, of or in which her husband never had 
 
 (x) Res v. Wymer, a 4 C. & P. 391. It is not stated in the report whether the prisoner 
 was a member of the society or not ; if not, it seems difficult to see how any doubt could 
 arise as to the property being rightly laid in the innkeeper, who had the actual possession, 
 which, (unless it be the possession of a, feme covert or servant, which is, generally speaking, 
 the possession of the husband or master) is enough to support an action of trespass or 
 trover, Armory v. Delamire, 1 Str. 505. 1 Sm. Lead. C. 151, and an indictment, although 
 the possession were wrongfully obtained ; for " if A. steals the horse of B., and after C. 
 steals the same horse from A., in this case C. is a felon, both as to A. and as to B." 1 Hale, 
 507. C. S. G. 
 
 (y) Rex v. Wilkinson and others. Mich. T. 1821, MS. Bayley, J., and Russ. & Ry. 470. 
 
 (z) 1 Hale, 513. He may, however, be indicted again for stealing the goods of the hus- 
 band. Ibid. 
 
 a Eng. Com. Law Reps. sis. 436.
 
 89 OF LARCENY. — OWNERSHIP OF THE GOODS. [BOOK IV. 
 
 either possession or any interest, and she received the note in payment 
 for the sheep, and it was stolen from her before she left the place where 
 she received it. It was objected that the note never was the property 
 of E. Wall, either actually or constructively; the money secured by it 
 was not his, and he had no qualified property in it, as it never was in 
 his possession ; but it was held, that the property was properly laid. (a) 
 Goods of a But if the husband be a convicted felon, the goods in the possesion of 
 convicted the wife must be laid as the property of the queen. In one count the 
 prisoner was charged with breaking and entering the house of E. An- 
 drews, and stealing her property ; in another count, the property was 
 laid in the queen ; at the time the house was broken into, and the 
 property stolen, the husband of E. Andrews was in gaol under sentence 
 of imprisonment on a conviction for felony ; all the property had been 
 the husband's, and had remained in the house, and the wife continued 
 in possession of the house and goods, till they were stolen ; and, on 
 a case reserved, it was held that the prisoner could only be convicted 
 of larceny on the second count, which laid the property in the 
 queen. (6) 
 #90 *The real owner of goods will not be deprived either of the pro- 
 
 The owner- perty or possession in law of them by a felonious taking. If, therefore, 
 ship will ^ stea j j-jjg (roods of B., and afterwards C. steal the same goods from 
 
 not bs di- ^ 
 
 vestedfrom A., in such case C. is a felon, both as to A. and as to B., and he may 
 
 the true y, e indicted for stealing the goods of B.(c)f Upon this subject Gould, 
 ankiter^ J-> * n delivering the opinion of the twelve judges in a modern case, 
 mediate said, " It is a rule of law equally well known and established, that the 
 taking. 8 possession of the true owner cannot be divested by tortious taking ; and 
 therefore if a person unlawfully take my goods, and a second person 
 take them from him, I may, if the goods were feloniously taken, indict 
 such second person for the theft, and allege in the indictment that the 
 goods are my property : because these acts of theft do not change the 
 possession of the true owner." And he further stated it to be his opin- 
 ion that the doctrine would also hold where the goods are taken from 
 the possession of the true owner by means of fraud : as otherwise a man 
 might derive an advantage from his own wrong.(rf) 
 
 But a distinction is taken in the following case. If A. steals the 
 horse of B., and afterwards delivers it to C, who was no party to the 
 first stealing, and C. rides away with it, animo furandi, yet C. is no 
 felon to B. : because, though the horse was stolen from B., yet it was 
 stolen by A., and not by C, for C. did not take it; neither is he a felon 
 Ownership to A -> for . ne nad ifc b y hi s delivery.(e) 
 
 sufficient There is no doubt that there may be a sufficient ownership of the 
 thereTis g°°ds stolen in a person who has only a special property in them j and 
 only a spe- that they may be laid as the goods and chattels of such person in the 
 to?n tfae Cr indictment - A lessee for years, a bailee, a pawnee, a carrier, and the 
 goods. like, have such special property; and the indictment will be good, if it 
 
 (a) Rex v. Roberts, 8 7 C. & P. 485, Littledale, J., after consulting Patteson. J. 
 
 (b) Reg. v. Whitehead, 1 - 9 C. & P. 429. 
 
 (c) 1 Hale, 507. 2 East, P. C. c. 16, s. 90, p. 654. 
 
 (d) By Gould, J., 0. B. 1790, in Wilkin's case, 1 Leach, 522, 523. (e) 1 Hale, 507. 
 
 f [If the goods of A. be stolen by B. and afterwards they be stolen from B. by C, an in- 
 dictment against the latter may allege the title to be in either A. or B. at the election of 
 the pleader. Ward v. The People, 3 Hill, 395.] 
 
 a Eng. Com. Law Reps, xxxii. 594. b T b . XX5V ijj. 1C 5. 

 
 CHAP. IX. § III.] OWNERSHIP OF THE GOODS. 90 
 
 lay the property of the goods either in the real owners, or in the per- 
 sons having only such special property in them. (/)f 
 
 But this position and the passage cited in support of it from East 
 have been questioned, and it has been observed that, " That the law so 
 declared in two text books of standard authority is unquestionably not 
 reconcileable, in all its parts, with the decisions cited above in Ilex v. 
 Belstead, and Rex v. Brunswick. (#) The following clear and succinct 
 observations, which have been allowed to appear in this work, will, it is 
 conceived, be deemed valuable in pointing out the true legal distinctions 
 which govern cases of this nature : " If the owner parts with the right 
 of possession for a time, so as to be deprived of the legal power to re- 
 sume the possession during that time, and the goods are stolen during 
 that time, they cannot be described as the goods of such owner; but if 
 the owner parts with nothing but the actual possession *when he thinks *91 
 fit, the goods may be described either as his goods, or his bailee's. In 
 the latter case he does not for an instant part with the general right of 
 possession ; he confers a qualified right only, which he may put an end 
 to when he will ; in the former case, he parts with the whole right of 
 possession for the time. The bailee for safe custody, the carrier, the 
 tailor, the pawnee, have never more than a partial right ; the owner 
 may resume the goods, on satisfying their lien, when he will. The 
 agister is in the same situation, and the decision as to him, in Rex v. 
 Woodward, only is, that the cattle may be described as his, not that 
 they must. The ground of decision in Rex v. Belstead, and Rex v. 
 Brunswick, was that as the owner had parted with the right of posses- 
 sion for the time, he had nothing but a reversionary interest, and could 
 not have brought trespass. "(h)% 
 
 (f) 1 Hale, 513. 1 Hawk. P. C. c. 33, s. 47. 2 East, P. C. c. 16, s. 90, p. 652. The pas- 
 sage in the text is founded on the passage in East. The passage cited from Hawkins does 
 not support the position in the text, but only shows that the goods may be laid in the bailee ; 
 and the passage in Hale is in favour of the distinction drawn by Bayley, B. : it is, " if A. 
 have a special property in goods, as by pledge or a lease for years, and the goods be stolen, 
 they must be supposed in the indictment [to be] the goods of A. If A. bail goods to B., to 
 keep for him, or to carry for him, and B. be robbed of them, the felon may be indicted for 
 larceny of the goods of A. or B., and it is good either way, for the property is still in A., yet 
 B. hath the possession, and is chargeable to A. if the goods be stolen, and hath the 
 property against all the world but A." C. S. G. 
 
 (g) Ante, p. 87 . (A) MS. Observations of Bayley, B. 3 Burns's Just. D. & W. 463. 
 
 f {In Massachusetts, it is held that a bailee of goods attached, who has engaged to re- 
 deliver them to the attaching officer on demand, is a mere servant, and has no property in 
 the goods — and therefore that the goods, when stolen from such bailee, cannot properly be 
 alleged in an indictment to be his property. 14 Mass. Rep. 217, Commonwealth v. Morse. 
 The same is held in New York, 8 Cowen, 137, Norton v. The People. The doctrine is not re- 
 ceived in New Hampshire. 1 New Hampshire R. 289, Poole v. Symonds. 
 
 The legal possession which a master has of his runaway slave will warrant an indictment 
 for stealing him " from his owner and employer," after he has run away. 2 Nott & M'Cord. 
 1, State v. Miles. See also 2 Car. Law Repos. 291, States. Davis. 
 
 But it has been held in Virginia, that where the indictment alleges that property was 
 stolen " out of the possession" of the bailor, proof that it was taken from the bailee will not 
 support the charge : and also that an allegation that a slave was stolen " from the posses- 
 sion" of the master, is not supported by proof that the prisoner feloniously took and carried 
 the slave away " while he was a runaway." 1 Virginia Cases, 14, Commonwealth v. Wil- 
 liams ; ib. 122, Commonwealth v. Hays. These decisions probably proceeded on the supposed 
 necessity of strict proof of the allegation in the indictment. For it was decided by the 
 same court that it is not necessary to aver that goods were stolen from the possession of 
 the owner, or of any other person, though a statute of Virginia declares, " that if any 
 person shall steal, &c, from the possession of any other person," &c, he shall be punished, 
 &c. 2 Virginia Cases, 135, Tompson v. Commonwealth. Ib. 228, Angel v. Commonwealth. J 
 
 X [In an indictment for larceny, proof that the person alleged to have been the owner
 
 91 OF LARCENY. — OWNERSHIP OF THE GOODS. [BOOK IV. 
 
 "Where goods belonging to a guest at an inn are stolen, they may be 
 laid to be the property either of the innkeeper or the guest, (i) And 
 linen stolen from a washerwoman, by whom it was taken in to wash in 
 the course of her business, may be laid as her goods. (J} In cases of 
 this kind it is considered that the parties have a possessory property ; 
 being answerable to their employers, and being capable of maintaining 
 an appeal of robbery or larceny, and having restitution. (&)f 
 Agister of It has also been holden, that an agister of cattle has such a special 
 cattle. property in them that they may be laid as his goods in the indictment. 
 When this case was referred to the judges, after the conviction of the 
 prisoner, there was at first some doubt upon the point ; one of the judges 
 observing that an agister of cattle is not liable for them at all events, 
 like an innkeeper for the goods of his guest ; but ultimately all the 
 judges agreed that the conviction was right. (A 
 
 Where a house was taken by Kyezor, and Miers, who lived on his 
 own property, carried on the business of a silversmith there for the 
 benefit of Kyezor and his family, but had himself no share in the profits, 
 and no salary, but had power to dispose of any part of the stock, and 
 might if he pleased take money from the till as he wanted it, and some- 
 times bought goods for the shop, and sometimes Kyezor did : it was 
 held that Miers was a kind of bailee of the stock, and that the pro- 
 perty in a watch stolen out of the house might properly be laid in 
 him.(w) 
 
 In a case, where, upon an indictment for stealing a window-glass and 
 hammer-cloth from a carriage, it appeared that the prosecutor, in whom 
 the property was laid, was a coach-master, and had the care of the car- 
 riage, which stood in a coach-house in his yard, at the time the articles 
 were stolen from it ; an objection that the property should have been 
 laid in the owner of the carriage was overruled. («) And a case was at 
 *92 the same time referred to by the court, in which a prisoner *was con- 
 victed of stealing a chariot-glass from a lady's chariot which had been 
 put up at a coach-yard at Chelsea, while the owner of it was at Rane- 
 lagh ; and the property was laid to be in the master of the yard, where 
 
 Ownership the chariot ha . d been P ut u P-(°) 
 
 where the If goods seized under a writ of fieri facias are stolen, they may be 
 
 fnwstoctia describe(i as tne g oods of the party against whom the writ issued, for, 
 legit. though they are in custodia hgis, the original owner continues to have 
 
 (i) Todd's case, 0. B. 1711. 2 East, P. C. c. 16, s. 90. p. 653. 
 
 (j) Packer's case, C. B. 1714. 2 East, P. C. c. 16, s. 90, p. 653. 1 Leach, 357, note (a). 
 
 (k) 2 East, P. C. c. 16, s. 90, p. 653. 
 
 (?) Woodward's case, Leicester Sum. Ass. 1796, Mich. T. 1796, and Hil. T. 1797, at which 
 last meeting of the judges, 4 Inst. 293, was referred to as showing that an agister has a 
 possession, and 2 Rol. Ab. 551, as an authority, that an agister may maintain trespass 
 against any one who takes the beasts. 2 East, P. C. c. 16, s. 60, p. 653. 1 Leach, 357, 
 note (a). See Rooth v. Wilson, 1 B. & Aid. 59. 
 
 (m) Reg. v. Bird, a 9 C. & P. 44, Bosanquet, J. See this case, ante, vol. 1, 829. 
 
 (n) Taylor's case, 0. B. 1785. 1 Leach, 356. 
 
 (o) Statham's case, 0. B. 1770. 1 Leach, 357. 
 
 had a special property in the thing, or that he had it to do some act upon it or for the purpose 
 of conveyance or in trust for the benefit of another, would be sufficient to support the 
 allegation in the indictment. State v. Somerville, 21 Maine, 14.] 
 
 f [When a horse got loose from the owner and was taken in the field of a third person 
 and placed in his stable from whence he was stolen : held, that he was in the constructive 
 possession of the owner, and in the actual possession of such third person, and that the in- 
 dictment may well allege the possession to be in the owner or such third person. Ouen v. 
 The Stale, 6 Humphreys, 330.] 
 
 a Eng. Com. Law Reps, xxxviii. 29.
 
 CHAP. IX. § III.] OWNERSHIP OF THE GOODS. 92 
 
 a property in them until they are sold : if he pays the debt he is enti- 
 tled to have them returned, and his debt to the plaintiff in the suit con- 
 tinues undiminished, until the goods seized are applied to its liquida- 
 tion. And the sheriff is accountable to the original owner for the goods 
 so seized. A sheriff's officer seized goods under a writ of fieri facias 
 against J. S., and afterwards stole part thereof. The indictment against 
 him described the goods as the goods of J. S., upon which it was 
 objected that they were no longer the goods of J. S., and should have 
 been described as the goods of the sheriff : but, upon the point being 
 saved, the judges held that notwithstanding the seizure, the general pro- 
 perty remained in J. S., as the loss would fall upon him if they did not 
 go to liquidate the debt, that the seizure left the debt as it was, and 
 that the whole debt continued until the goods were applied towards its 
 discharge. (p)f 
 
 But'the indictment will not be sustainable if it appear in evidence Ownership 
 that the party in whom the goods are laid had neither the property nor wte ^ e the 
 the possession of them ; as is usually the case of a feme covert or ser- in the eus- 
 vant, who have in their custody the goods of the husband or master, fa) todv of 
 In a late case it was decided that the goods in a dissenting chapel vested 
 in trustees, could not be described as the goods of a servant who had 
 merely the care of the chapel, and the things in it, to clean and keep 
 them in order, though he had the key of the chapel, and no person 
 except the minister had any other key. The indictment was for steal- 
 ing the chandelier and sconces of a dissenting chapel vested in trustees : 
 and the things were described as the property of the trustees, and also 
 of one Evans. The evidence as to the property of the trustees failed, 
 and it appeared that Evans was servant to the trustees, and had the 
 care of the chapel and the things in it, for the purpose of cleaning and 
 keeping them in order, and that he had the only ke}^s, except that the 
 minister had a key of the vestry, from whence he could enter the chapel. 
 Upon a case reserved, the judges were of opinion that the property 
 could not be considered as the property of Evans. (r) But though gene- 
 rally speaking, the possession of the servant is the possession of the 
 master,(s) yet there are some cases where a kind of special property has 
 been considered to exist in the servant. Respecting the case lately 
 mentioned, of a master delivering money to his servant to carry to a 
 certain place, and then robbing his servant on the road, a learned writer 
 observes, " I see no objection to laying the property of the goods in the 
 servant, for though, in general, it may be said that he has no property 
 in *them, as against his master, although he has against every other *93 
 person ; yet having a clear right to defend his possession against A.'s 
 unlawful demand, the special property still remains in the servant. But 
 a taking from the servant of the money or goods of his master in his 
 
 (p) Rex v. Estall, Mich. T. 1822, MS. Bayley, J. See Lucas v. Nockels," 10 Bing. R. 157. 
 
 (q) 2 East, P. C. c. 16, s. 90, p. 652, 653. 
 
 (V) Rex v. Hutchinson, East, 1820, MS. Bayley, J., and Russ. & Ry. 412. They should 
 be laid in such cases as the property of one of the members " and others." Rex v. Boulton, b 
 5 C. & P. 537, post, p. 102. 
 
 (s) Post, Chap. XVII. On Larceny §c, by Servants. And ante, p. 21, et seq. as to the dis- 
 tinction between a bare charge and a possession of goods delivered. 
 
 f [See Yelv. 44, note (2). Clayt. 105, Mayor of Beverley's case. 6 Price, 114, Rex v. 
 Sloper k, aJL 2 N. Hamp. Rep. 208, Churchill v. Warren. Ibid. 432, Folson v. Chesley, Acc.;- 
 [I'almcr v. The People, 10 Wend. 165.] 
 
 a Eng. Com. Law Reps. xxv. 71. b lb. xxxv. 445.
 
 93 OF LARCENY. — OWNERSHIP OF THE GOODS. [BOOK IV. 
 
 presence, by putting in fear, is taking from the master, and the offender 
 may be indicted for robbing him."(t) 
 
 If a servant be employed by his master to receive money for him, 
 and be robbed of such money before he take it to his master, the money 
 may be described as the money of the servant. Upon an indictment 
 for robbery of the moneys of S. Webb, it appeared that Webb's servant 
 was sent out by his master to receive money from his customers, and 
 was robbed of the money he had received, as he returned home. Mr. 
 B. Alderson was inclined to think the money could not be laid as the 
 property of the master ; for it was difficult to see how such an offence 
 as the crime of embezzlement could have been a part of our criminal 
 law, if the possession by the servant of the property, which had never 
 come to the hands of the master, were construed to be the possession 
 of the master; if it were, every servant, who converted to his own 
 use property received by him for his master, would be guilty of lar- 
 ceny.^) 
 Deakin's The question concerning the sort of possession, or special property 
 case. which a servant may have in the goods of his master, was much dis- 
 
 box^as cussed in a modern case, where a stage-coach having been robbed of a 
 stolen from box containing a variety of articles, it became material to determine 
 a stage- whether the goods so stolen could be laid as the property of the coach- 
 
 coachonits ° . t_ 
 
 journey, it man. There were three counts in the indictment : but one of them 
 was holden which \ a [<\ the property in the coach proprietors failed on account of a 
 might be variance; another, which laid the property in persons unknown, was 
 laid as the rejected by the court as improper in this case, and the case, therefore, 
 the driver necessarily proceeded upon the remaining count, which laid the pro- 
 >fthe perty in the coachman. It appeared in evidence, that the box was 
 delivered by the servant of a tradesman in London to the bookkeeper 
 at the inn from which the coach set off, who called it over amongst 
 other things in the way-bill, and delivered it to a porter, who put it into 
 the coach; and that the coachman, in whom the property was laid, 
 drove the coach to a place about thirty-eight miles from London, during 
 which journey the box was stolen from the coach by the prisoners. It 
 also appeared, that the proprietors of the coach never called upon the 
 coachman to make good any losses, except when they happened by his 
 neglect; and that for goods stolen privately from the coach they never 
 expected any compensation from the driver. The jury having found 
 *94 the prisoners *guilty, the case was saved for the consideration of the 
 judges ; and, after it had been ably argued, a majority of the judges 
 were of opinion that the property was well laid to be in the driver. 
 Hotham, B., who delivered their opinion, said, that the material ques- 
 ts 2 East, P. C. c. 16, s. 90, p. 654, ante, p. 87. 
 
 (u) Reg. v. Rudick, a 8 C. & P. 237. His lordship discharged the jury and directed a new- 
 hill laying the property in the servant to be preferred. Rex v. Bull, 2 Leach, 841, cited in 
 Bazley's case, shows that the servant would not have been guilty of larceny if he had con- 
 verted the money to his use ; but a distinction seems to exist between cases where the ques- 
 tion arises between the master and servant, and between the master and the third person. 
 " As between the master and servant or agent, where the master has not otherwise the pos- 
 session than by the receipt of the servant or agent, the servant or agent cannot be charged 
 with a tortious or felonious taking, but as against a third person where there could be no 
 question of a trust, the receipt of effects by an agent by the master's directions might be con- 
 sidered as a receipt by the master himself; and in the common course of business there is 
 often no receipt or possession by the master." Per Graham, B. Rex v. Remnant, Russ. k 
 Ry. 136. post, p. 94, and see Rex v. Murray, R. & M C. C. R. 276, post, tit. Embezzb merit. And 
 Rex v. Deakin, infra. C. S. G. 
 
 a Eng. Com. Law Reps, xxxiv. 368. 
 
 ooach.
 
 CHAP. IX. § III.] SPECIAL PROPERTY. 94 
 
 tion was, whether the driver had the possession of the goods, or only 
 the bare charge of them ; hut that the case was not open to that dis- 
 tinction : for although, as against his employers the masters of the 
 coach, the mere driver can only have the bare charge of the property 
 committed to him, and not the legal possession of it, which remains in 
 the coach-maker; yet, as against all the rest of the world, he must be 
 considered to have such a special property therein, as will support a 
 count charging them as his goods ; for he has in fact the possession of 
 and control over them ; and they are entrusted to his custody and dis- 
 posal during the journey. And the learned judge further observed, that 
 the inconvenience would be great indeed, if the law were otherwise : as 
 the difficulties and mistakes which must unavoidably arise in seeking 
 after all the persons concerned as proprietors of a stage-coach, for the 
 purpose of prosecuting an indictment of this nature, would be endless 
 and insurmountable. That the law, therefore, on an indictment against 
 the driver of a stage-coach, on the prosecution of the proprietors, con- 
 siders the driver to have the bare charge of the goods belonging to the 
 coach; but on a charge against any other person, for taking them tor- 
 tiously and feloniously out of the driver's custody, he must be considered 
 as the possessor. (■«) 
 
 Property may be laid as belonging to the real owner though it never Property 
 was actually in his possession but in the possession of his agent only ; ^Yeione- 
 as in the following case : Turner as agent for Nash sent up notes to ing to the 
 Morgan, another of Nash's agents, and Morgan as agent for Nash sent ™ al °7^ T ' 
 them by the coach directed to Walker : and the prisoner stole them has only 
 from the coach. The indictment having described them as Nash's, it been in the 
 was urged that they could not be so described, because Nash never had ]> f tis 
 them, except by the hands of his agents; but all the judges thought agent, 
 they had been rightly described, and held the conviction right. («,') But 
 the property cannot be laid in a man who has never had either actual 
 or constructive possession, except as far as it resulted from the posses- 
 sion of the thief and of persons acting under him. Thus where Paul 
 had ordered a hat of Beer, and the prisoner sent for it in Paul's name 
 and got it, and was indicted for stealing Paul's hat, the judges held that 
 the property could not be said to be in Paul. (x} 
 
 Clothes, and other necessaries provided for children by their parents, Ownership 
 are often laid to be the property of the parents, especially while the of tbe 
 children are of tender age ; but it is holden good either way.(?/)f There &c#> f' 
 are cases, however, of exclusive property in the children. Thus, in a children, 
 case where the prisoner was charged with stealing wearing apparel, the 
 property of J. Wilson, and it appeared in evidence that the wearing 
 apparel had been furnished by J. Wilson to his son George, and that 
 the son was nineteen years of age, and *bound apprentice to his father, *95 
 who had covenanted to find him in clothing; the court held that the 
 indictment was defective, and that the wearing apparel was exclusively 
 
 (v) Rex v. Deakin and Smith, 0. B. 1800. 2 Leach, 862, 876. 2 East, P. C. c. 16, s. 90, 
 p. 653. 
 
 (w) Rex v. Remant, Mich. T. 1807, MS. Bayley, J., and Russ. & Ry. 136. 
 (x) Rex v. Adams, East. T. 1812, MS. Bayley, J., and Russ. & Ry. 225. 
 (>/) 2 East, P. C. c. 16, s. 91, p. 654. Hayne's case, 12 Rep. 112. 
 
 f« [Necessary articles furnished by a father to his infant son for use, may well be described 
 in an indictment as belonging to either the parent or child. Slate v. Williams, 2 Strob- 
 hart, 229.]
 
 95 OF LARCENY. — OWNERSHIP OF THE GOODS. [BOOK IV. 
 
 the property of the son, who had been furnished with it in pursuance 
 of the condition of the indenture. (2) And in a case which occurred at 
 the Old Bailey above a century ago, upon the court doubting whether 
 the property of a gold chain, which was taken from a child's neck who 
 had worn it for four years, ought not to be laid to be in the father, an 
 ancient clerk of the court said that it had always been usual to lay it to 
 be the goods of the child in such case ; and that many indictments which 
 had laid them to the property of the father had been ordered to be 
 altered by the judges. (a) 
 
 Where the prisoner was indicted for stealing a pair of trowsers, the 
 property of J. Jones, and it appeared that J. Jones bought the cloth of 
 which the trowsers were made and paid for it, but the trowsers were 
 made for his son Thomas, who was seventeen years of age : and J. 
 Jones stated that he found clothes for his son, who was not his appren- 
 tice, but a labourer like himself, and worked for the same master, but 
 at different work, and lived with his father. Patteson, J., said, " I 
 think the property is well laid. It may be laid in these cases either in 
 the father or the child ; but the better course is to lay it in the 
 child."(6) 
 Scott's In a case where the prisoner was indicted for sheep-stealing, the pro- 
 
 case. Pro- perty was laid in Simon Dodd the elder, Simon Dodd the younger, and 
 sheep laid several other persons of the same name. The evidence was, that Simon 
 jointly in Dodd the elder, and a son of his, who afterwards died, took a farm on 
 fatherTnd tne i r joint concern, and kept a stock of sheep, which was their joint 
 grand- property, upon it; that the son died intestate about five years ago, 
 c 1 dren. ] eav j D g a widow, who died soon after him, and several children (being 
 the S. Dodd the younger, and the other persons named in the indict- 
 ment) ; that no division was ever made of the stock ; and that it was 
 from the same stock that all the sheep upon the farm at the time of the 
 felony committed were bred; some before and some after the son's 
 death. It was also proved, that S. Dodd the elder continued to occupy 
 the farm and use the stock as before, considering himself as acting for 
 his grandchildren, who were still infants, in respect of one moiety ; and 
 that he accordingly kept a regular account with them in his books. 
 The prisoner having been convicted, a question was submitted to the 
 consideration of the judges, whether the property were well laid jointly 
 in the grandfather and grandchildren. And the judges were of opinion 
 that it was well laid ; for though in the case of joint traders there was 
 no jus accrescendi, and the remedy survived ; yet here it was proved, 
 by the evidence of the grandfather, that he held one moiety for his 
 grandchildren ; and he might make distribution among them. And 
 some of the judges also said, that the property might have been laid to 
 be in the grandfather alone, who was in possession of the children's 
 *9@ moiety as their agent. The *judges were all of opinion that it was not 
 necessary that the property in the thing taken should be the strict legal 
 property. (c\ 
 
 (2) Forsgate's case, 0. B. 1*787. 1 Leach, 463. 
 
 (a) Anon. 0. B. 1701, 2 East, P. C. c. 16, s. 91, p. 654. 1 Leach, 464, note (a). If ap- 
 parel be put upon a boy, this is a gift in the law : for the boy hath capacity to take it. 
 Hayne's case, 12 Rep. 112. 
 
 (b) Reg. v. Hughes,* Salop Spr. Ass. 1842, MS. S. C. 1 C. & Mars. 593. C. S. G. 
 
 (c) Scott's case, cor. Chambre, J., Northumberland Sum. Ass. 1801, Mich. T. 1801. 2 East, 
 P. C. c. 16, s. 91, p. 655. Russ. & Ry. 13. 
 
 a Eng. Com. Law Reps. xli. 323.
 
 CHAP. IX. § III.] SPECIAL PROPERTY. 9G 
 
 In another case, where the prisoner was indicted for stealing some Gaby's 
 drapery goods, which were stated in the indictment to be the property act u a lpoa- 
 of Benjamin Dodge and Sarah Chilcott, widow, it was objected that the session of 
 property in the goods was misdescribed. The facts upon which the ob- |j y e a 8 g° r . 3 
 jection was taken, were that the goods in question had been part of the viving 
 joint stock in trade of B. Dodge, and one Chilcott, the late husband of P art ™ r ' 
 S. Chilcott, who died a short time only before the theft was committed, widow of a 
 He died without a will, leaving S. Chilcott and some young children ; deceased 
 and no administration of his effects had been granted ; but S. Chilcott, hokleTto 
 from the time of his death, acted as a partner, and regularly attended be a suffici- 
 the business of the shop. The goods in question were stolen on the 6th sJJ* p ° wner " 
 of January, after the death of the husband, who died about the Christ- 
 mas preceding ; and on the 20th of January a division was made of the 
 remaining stock in trade ; S. Chilcott taking one half, and B. Dodge 
 the other half. Upon these facts it was contended, on the part of the 
 prisoner, that the children, in respect of their interest under the statute 
 of distributions, should have been named with B. Dodge and S. Chilcott, 
 as joint proprietors; or that the property should have been alleged to be 
 in the ordinary and surviving partner. But the learned judge, before 
 whom the prisoner was tried, held that the actual possession in B. Dodge 
 and S. Chilcott, as owners, was sufficient; upon which the prisoner was 
 convicted : and the judges afterwards, upon the case being saved for 
 their consideration, held that the conviction was right. (d} 
 
 A case has been already mentioned, in which, upon an indictment for Ownership 
 stealing pheasants, restrained of their liberty, it appeared in evidence of s ame b 7 
 
 fin uuciujili- 
 
 that the prosecutor, in whom the property in the pheasants was laid, g ec i person. 
 was not a qualified person to keep or shoot game; whereupon an objec- 
 tion taken that he could not have any property in them, or any legal 
 possession sufficient to support the indictment, was overruled, (e) 
 
 It is laid down, in some of the books, that larceny cannot be com- Ownership 
 mitted of things wherein no person has any determinate property; and, trov^es 1 " 6 " 
 therefore, that the taking away treasure-trove, or waif, or stray, before trays,' 
 they have been seized by the persons who have a right thereto, cannot wrecks, Ac. 
 be felony. (/) But it is observed, that there seems to be some incor- 
 rectness in the generality of this position ; as, although the lord has no 
 determinate property in waifs, treasure-trove, &c, till seizure, the true 
 owner, though unknown, who has lost, or been robbed of the things, 
 has still a property in thern.(r/) And as to the reason assigned by one 
 writer of these things not being the subject of larceny, namely, the un- 
 certainty of the true owner,(7t) it is ^observed, that it, at least, implies *97 
 that if the owner be known, larceny may be committed of them.(i) 
 
 But, further, it is well settled that larceny may be committed by 0wner ? b lip 
 stealing goods, the owner of which is not known : and that it may be person of 
 stated in the indictment that the things stolen were the goods of a f no owner 
 person to the jurors unknown. (A But upon prosecutions of this kindk nown . 
 
 (d) Rex v. Gaby, cor. Chambre, J., Taunton Spr. Ass. 1810, MS. Russ. & Ry. 118. 
 
 (e) Jones's case, ante, p. 85. 
 
 (/) 3 Inst. 108. 1 Hale, 510. 1 Hawk. P. C. c. 33, s. 38. 
 
 (ff) 2 East, P. C. c. 16, s. 40, p. 606, and s. 88, p. 651. 
 
 (h) Pult de Pace, 131. And also in 3 Inst. 108, the reason is given that dominus rerum 
 non apparet. 
 
 (i) 2 East, P. C. c. 16, s. 40, p. 606. 
 
 (./) 1 Hale, 512. 2 Hale, 181. 1 Hawk. P. C. c. 33, s. 44. 2 East, P. C. c. 16, s. 88, p. 
 651. Anon. Dy. 09, a. pi. 61, 285, a. Webster's case, ante, p. 70. And see note (v),post.
 
 97 
 
 OF LARCENY. — OWNERSHIP OF THE GOODS. [BOOK IV. 
 
 An indict- 
 ment can- 
 not be sus- 
 tained for 
 stealing 
 goods of a 
 person un- 
 known, if 
 it appear 
 that the 
 owner is 
 really 
 known. 
 
 some proof must be given sufficient to raise a reasonable presumption 
 that the taking was felonious, or invito domino ; and Lord Hale, C. J., 
 said that he never would convict any person for stealing the goods 
 cujusdam ignoti, merely because the person would not give an account 
 how he came by them, unless there were due proof made that a felony 
 had been committed of those goods. (A-) It is said, therefore, with re- 
 spect to these cases, that the true ground upon which persons so indicted, 
 may in any instance, claim to be acquitted, when the other facts, ne- 
 cessary to constitute the crime of larceny, appear upon the evidence, 
 seems to be a want of the proper proof that the taking was felonious, or 
 invito domino, and not the want of any property in the true owner, 
 who, by losing his goods, does not lose his property in them until 
 seizure by some other person having a right to seize in such cases. (A 
 
 It should be well observed, however, with respect to prosecutions for 
 stealing goods of a person unknown, that an indictment alleging the 
 goods to be the property of a person unknown, will be improper if the 
 owner be really known ; and that in such case the prisoner must be 
 discharged of the indictment so framed, and tried upon a new one for 
 stealing the goods of the owner by name.(m) In a case where the pri- 
 soner was charged with stealing a box of goods from a stage-coach, one 
 of the counts of the indictment which stated the box to be the property 
 of persons unknown, was rejected by the court, on the ground where it 
 was in the power of a pleader to state a legal proprietor, as in this case, 
 by laying the property to be in the persons from whom and to whom 
 the goods were sent, it was improper to lay the property as belonging to 
 persons unknown. (w) And the same principle is stated to have been 
 acted upon in a case where the indictment charged the prisoner as an 
 accessory before the fact to a larceny, and it appeared, from the opening 
 of the case by the counsel for the prosecution, that the grand jury had 
 found the bill upon the evidence of the thief, who was about to be called 
 as a witness to establish the guilt of the prisoner, upon which the learned 
 judge interposed, and directed an acquittal. (o) 
 
 Where the owner might easily have been ascertained, an indictment 
 for stealing the goods of a person unknown, is not maintainable. The 
 first count laid the property stolen in persons who were therein named, 
 and the second count laid it in persons unknown ; evidence was offered 
 of the ownership as laid in the first count, but *the witness could not 
 recollect the Christian names of some of the owners : the second count 
 was then relied upon. Richards, C. B., » I think the prisoner must be 
 acquitted. The owners, it appears, are known, but the evidence is de- 
 fective on this point. How can I say that the owners are unknown ? 
 I remember a case at Chester, before Lord Kenyon, where the property 
 was laid in a person unknown; but upon the trial, it was clear that the 
 owner was known, and might easily have been ascertained by the pro- 
 secutor; Lord Kenyon directed an acquittal. "(p) 
 
 
 (k) 2 Hale, 290. (I) 2 East, P. C. c. 16, s. 88, p. 651. 
 
 (m) 2 East, P. C. c. 16, s. 88, p. 651. 
 
 (n) Rex v. Deakin and Smith, 2 Leach, 862, ante, p. 94. 
 
 (o) Walker's case, cor. Le Blanc, J., Gloucester Sura. Ass. 1812. 3 Camp. 264. And sec 
 also as to the statement of the principal felon being unknown in the indictment against a 
 receiver of stolen goods, post, Chap. Of Receiving Stolen Goods. 
 
 (p) Rex v. Robinson, a Holt, N. P. C. 595. 2 Stark. Ev. 608. The averment in the in- 
 dictment always is "the jurors aforesaid," i. e. the grand jury " unknown." and in Rex v. 
 a Eng. Com. Law Reps. iii. 191.
 
 CHAP. IX. § III.] GOODS OF A CHURCH. 98 
 
 It is said that when a felony has been committed by stealing the 
 goods of a person unknown, the king shall have the goods. (5) 
 
 The property in the bells, books, or other goods, belonging to a church, Ownership 
 
 has been already spoken of.(r) It is clearly settled that there can be of g° oc j s 
 
 no property in a dead corpse. (s) If, however, a shroud be stolen from t „ a °^r C h 
 
 a corpse, it may be laid to be the property of the executors, or whoever and of 
 
 else buried the deceased : but not as the property of the deceased him- sh ™ ud ? or 
 
 ' 1 comns in 
 
 self, ft) And a case is mentioned where several persons were convicted which 
 
 of larceny in stealing leaden coffins out of the vaults of a church : the cor P ses 
 
 arc Q6- 
 
 coffins being laid as the goods of the executors. (it) If the personal re- posited, 
 presentatives of the deceased cannot be ascertained, or even, as it seems, 
 if it appear probable, from the time which has elapsed since the death, 
 that it might be a matter of some difficulty to ascertain them, it will be 
 sufficient to lay such goods as the property of "a person unknown." 
 In a case where the prisoner was indicted for stealing a leaden coffin, 
 the property of a person unknown, it was objected that, though the coffin 
 had laid in the ground near sixty years, yet, as the same family, of which 
 the deceased had been a member, remained on the spot, and as it did not 
 appear that any inquiry whatever had been made to ascertain the per- 
 sonal representative, there was a want of reasonable diligence in the 
 prosecutor ; but it was ruled to be sufficient after so many years had 
 passed. (v) In the same case it was also ruled that a count, laying the 
 coffin as the ^property of certain persons being the then churchwardens, *99 
 could not be supported. (w) 
 
 If a man die intestate, and the goods of the deceased be stolen before Of the 
 administration committed, such goods shall be supposed to be the goods own ership 
 of the ordinary ; but if a man die, having made a will, and appointed an g00 ds of a 
 executor, the goods shall be supposed to be the goods of the executor, deceased 
 even before probate is granted to him. (x) Where property is stolen peis 
 before administration is granted, with the will annexed, in a case where 
 the executor refuses to prove, it cannot be laid in the administrator. 
 Upon an indictment for stealing the property of R. Roberts, it appeared 
 that a person had made a will and appointed executors, who would not 
 prove it, upon which Roberts took out letters of administration with the 
 will annexed, but they were not dated till after the time when the felony 
 
 Cordy, Gloucester Spr. Ass. 1832, MS. C. S. G., upon its being stated in argument that it 
 had been held that if it were alleged that property was stolen by a person unknown, and it 
 was proved at the trial that the person was known, the prisoner must be acquitted : Lit- 
 tledale, J., said, " That case has been decided, but it is subject to some doubt; the question 
 is, whether the person is known to the grand jury. It will be difficult to prove that he was 
 so known, and unless he was known to the grand jury, I should doubt about that case." If 
 a case should occur where the witnesses who went before the grand jury were wholly ig- 
 norant of the party said to be unknown, and it turned out by other evidence, e. g. by a wit- 
 ness called for the prisoner, that the party was known, it would deserve consideration whether 
 the prisoner would thereby be entitled to be acquitted. In Rex v. Deakin, ante, note (■») ; 
 Walker's case, ante, note (0), and Rex v. Robinson, the grand jury had evidence before them 
 to show that an owner might be ascertained. It may, however, be difficult to distinguish 
 this part of the indictment from the other parts, and as the prisoner may clearly contradict 
 the other parts of the finding, it would probably be held that he might contradict this part 
 also. C. S. G. 
 
 (?) 1 Hawk. P. C. c. 33, s. 44. 2 East, P. C. c. 16, s. 88, p. C51. 
 
 fa) Ante, vol. 1, p. 844. Chap, on Sacrilege. (s) 2 East, P. C. c. 16, s. 89, p. 652. 
 
 (t) Hayne's case, 12 Co. 112, and 3 Inst. 110, where the theft is called furlum inauditum. 
 1 Hale, 515. 1 Hawk. P. C. c. 33, s. 46. 4 Bla. Com. 236. 
 
 (m) Anon. 2 East, P. C. c. 16, s. 89, p. 652. 
 
 (r) Anon. cor. Duller, J., Exeter Lent. Ass. 1V94. 2 East, P. C. c. 16, s. 99, p. 652. 
 
 (iv) Id. ibid. (z) 1 Hale, 514. 2 East, P. C. c. 16, s. 89, p. 652.
 
 99 OF LARCENY. — OWNERSHIP OP THE GOODS. [BOOK IV. 
 
 was committed ; and it was held, that the property ought to have been 
 laid in the ordinary, as letters of administration only had their operation 
 from the time when they were granted, though the rights of an executor 
 commenced from the time of the death of the testator.^) Neither the 
 ordinary, nor an executor, nor administrator, need show their title spe- 
 cially, it being founded on their own possession; in which case a general 
 indictment lies without naming themselves ordinary, executor, or ad- 
 ministrator.^) 
 
 Where a knife was stolen from the dead body of R. S. Kingston, lying 
 on a road in the diocese of Worcester, and the last place of his residence 
 was at Tewkesbury, in the diocese of Gloucester, but it was stated by 
 his father that he believed that the deceased had left Tewkesbury with 
 a view of coming to live with him, and he did not know, of his own 
 knowledge, whether or not the deceased had given up his lodgings at 
 Tewkesbury; Patteson, J., held that the property in the knife was well 
 laid in the Bishop of Worcester. (22) 
 Of the Property vested in a body of persons ought not to be laid as the pro- 
 
 ownership perty of that body, unless such body is incorporated, but should be de- 
 corpora- ° scribed as belonging to the individuals (or one of them by name " and 
 tions and others," 7 Geo. 4, c. 64,) who constitute such body. The 7 Geo. 4, c. 
 trustees, g^ g 2Q ? has, however, enacted that judgment shall not be stayed or 
 reversed on the ground that any person or persons, mentioned in an in- 
 dictment or information, is or are designated by a name of office or other 
 descriptive appellation, instead of his, her, or their proper name or 
 names. (a) This statute does not, however, apply to objections taken 
 upon demurrer. 
 Where a In a case which occurred upon the 17 Geo. 3, c. 17, it was decided, 
 statute t k a £ w h ere an a d of parliament gives a corporate capacity and a corpo- 
 corporate rate name to any body of persons, and vests property in them, such 
 capacity property must be stated in the indictment to belong; to them in their 
 
 and name * * » . . . ° 
 
 to indivi- corporate name, and not in the names 01 the individual members. The 
 duals, and prisoners were indicted for cutting down in the night-time trees grow- 
 perty in m o on Enfield Chase ; and the indictment contained two counts, the 
 them, such first laying the property in the trees as belonging " to Joseph Brown, 
 musTbe 7 George Cook, and William Sedcole, then being the churchwardens of 
 laid in an Enfield aforesaid ; and the second laying the property as belonging: 
 indictment « to j osep h Brown, George Cook, and William Sedcole, they the said 
 
 as belong- _j£ n 
 
 ing to them, Joseph Brown, George Cook, and William Sedcole, then being the 
 in their churchwardens of the parish church of Enfield, in the county of Mid- 
 nameTand dlesex." It appeared that by the 17 Geo. 3, c. 17, (which was passed 
 not in the for the purpose of dividing Enfield Chase,) the allotment of land from 
 thTindivi- which the trees were taken, was vested in the " churchwardens of En- 
 dual mem- field for the time *being," and their successors for ever in trust, &c. ; 
 be *1 00 k Ut tnat by a subsequent section of the statute the churchwardens were 
 incorporated by the name of "The Churchwardens of the parish church 
 of Enfield, in the county of Middlesex." And the counsel for the 
 prisoner submitted that the indictment was defective in laying the pro- 
 perty in the trees as belonging to the individual members composing the 
 corporation by their private names, instead of laying the property as 
 
 (y) Rex v. Smith, a 7 C. & P. 147, Bolland, B., and Coleridge, J. 
 (z) 1 Hale, 514. (zz) Reg. v. Tippin, 1 C. & Mars. b 545. 
 
 (a) See the section more fully stated, post, p. 113. 
 
 a Eng. Com. Law Reps, xxxii. 473. b lb. xli. 297.
 
 CHAP. IX. § III.] CORPORATIONS, ETC. 100 
 
 belonging to the corporation by their public name. On the part of the 
 crown, it was contended, that the private names might be expunged as 
 surplusage. The court held the objection to be fatal, and said, " The 
 indictment would have been clearly right, if the first clause of the act 
 of parliament which vests the property in the churchwardens for the 
 time being had stood single. But the clause which gives the church- 
 wardens a corporate capacity, and a corporate name, puts an end to the 
 question ; for where any description of men are directed by law to act 
 in a corporate capacity, their natural and individual capacity as to all 
 matters respecting the subject of their incorporation, is totally extinct. 
 The present indictment describes the trees to be the property of certain 
 individuals, by their names ; but the act of parliament shows the pro- 
 perty to be in the corporation. If an action were brought in the pri- 
 vate names of the present prosecutors, for any matter relating to their 
 public capacity, they must unavoidably be nonsuited ; and, d fortiori, 
 it must be erroneous in a criminal prosecution. But it is said that the 
 private names may be expunged as surplusage. In the first count, sup- 
 posing them expunged, the remaining description would be 'the church- 
 wardens of Enfield,' which is not the name of the corporation ; and, 
 therefore, that count would still be wrong. In the second count, it is 
 true, the corporate name is used ; but the property is not laid to be in 
 the corporation of that name, it is laid to be in the private persons, and 
 the public name is used merely as a description of those persons. The 
 prisoners must, therefore, be discharged on this indictinent.'YZA 
 
 But where property was vested in certain trastees, under an act of But where 
 parliament, who were not incorporated, nor had any public name given property is 
 to them collectively, it was holden that the property should have been trusteesnot 
 laid in the indictment, as belonging to them in their individual names, incorpo- 
 This point was decided in a case where the prisoners were indicted for {^j n '_ n ^ r 
 stealing lead, which had been affixed to a workhouse of the poor of a public 
 certain place called the "Old Artillery Ground ;" and the property was nan } e g iven 
 laid as belonging to " the Trustees of the Poor of the Old Artillery collective- 
 Ground." It appeared that by the 14 Geo. 3, c. 30, certain persons |y>itshould 
 were appointed trustees of the workhouse in question, and that all the indict- 
 fixtures, furniture, &c, were vested in them ; and that the act also con- ment j n 
 tained this clause, " and the said trustees are hereby empowered to pre- vidual" ' 
 fer, or order the preferring of any bill or bills of indictment against names. 
 any person or persons, who shall steal, take, or carry away any, or any ^ ne , rrin S- 
 part of such things ; and the moneys and things which shall be so stolen, 
 taken or carried away, shall in every such indictment be laid, and 
 deemed and taken to be the property of the Trustees *of the Poor of the *101 
 Old Artillery Ground. And every indictment so preferred shall be 
 held good in law, to all intents and purposes." The question having 
 been raised, whether the indictment had well laid the property as be- 
 longing to « the Trustees of the Poor of the Old Artillery Ground;" 
 the court held that it had not; for as the act of parliament had not in- 
 corporated the trustees, and by that means given them collectively a 
 public name, the property should have been laid as belonging to A. B., 
 C, &c, by their proper names, and the words " Trustees of the Poor of 
 the Old Artillery Ground" subjoined, as a description of the capacity 
 in which they were authorized by the legislature to act.(c) 
 
 {!>) Rox v. Patrick and Pepper. 0. B. 1783, 1 Leach, 253. 2 East, P. C. c. 22, s. 7, p. 
 !039- (c) Rex v. Sherrington and Bulkier, 0. B. 1789, 1 Leach, 513, infra.
 
 101 OF LARCENY. — OWNERSHIP OF TEE GOODS. [BOOK IV, 
 
 Property The point is therefore settled, that property vested in a body of 
 V °b U i l "f persons cannot he laid as the property of that body, unless the body is 
 persons incorporated ; but should be described as belonging to the individuals 
 cannot bo ^ cons titute that body, or some one of them by name " and others. "(cZ) 
 property of And a recent case was decided upon this principle. By the 24 Geo. 3, 
 that body c 15^ certain inhabitants in seven parishes were incorporated by the 
 ineorpo- 1S name of the "Guardians of the Poor" of those parishes, and it was 
 rated. enacted that twelve directors should be appointed out of the guardians, 
 and the property belonging to the corporation was vested in the " direc- 
 tors for the time being." The prisoner was indicted for embezzling 
 moneys of the directors; and an objection was taken that the money 
 should have been described as the money of the guardians by their 
 corporate name, or as the money of the individuals who formed the body 
 of the directors, calling them by their private names as individuals. 
 And upon a case reserved, the judges were of that opinion, on the 
 authority of Rex v. Sherrington, and held the conviction wrong, (e) 
 7 Geo. 4, c. It remains to notice certain cases in which the ownership of goods, 
 64, s. 14. an( j the mode of describing property in them have been regulated by 
 dictrnents tne 7 Geo. 4, c. 64, s. 14, which, in order to remove the difficulty of 
 for offences stating the names of all the owners of property in the case of partners, 
 C011 the pro- an( l other joint owners, enacts, "that in any indictment or information 
 perty of for any felony or misdemeanor wherein it shall be requisite to state the 
 partners owne rship of any property whatsoever, whether real or personal, which 
 laid. shall belong to or be in the possession of more than one person, whether 
 
 such persons be partners in trade, joint-tenants, parceners, or tenants in 
 common, it shall be sufficient to name one of such persons, and to state 
 such property to belong to the person so named, and another, or others, 
 as the case may be, and whenever, in any indictment or information for 
 any felony or misdemeanor, it shall be necessary to mention for any 
 purpose whatsoever, any partners, joint-tenant, parcener, or tenants in 
 common, it shall be sufficient to describe them in the manner aforesaid ; 
 and this provision shall be construed to extend to all joint-stock com- 
 panies and trustees."//) 
 
 Where a bible and hymn-book had been given to a society of Wes- 
 leyans, at whose expense they had been bound, and they were laid in 
 an indictment as the property of B. " and others," B. being both a 
 *102 trustee and a member of the society, it was held that the *property was 
 rightly laid.(^) So where the property in ore stolen from a mine was 
 stated to be in S. Davey " and others," who were proved to be the ad- 
 venturers in the mine, and it was objected that they were not partners, 
 joint-tenants, or tenants in common, within the 7 Geo. 4, c. 64, s. 14, 
 the objection was overruled. (h\ 
 
 If an indictment allege property to belong to A. B. and others, and 
 it appears that A. B. has only one partner, it is a variance. The prisoner 
 was indicted for stealing the property of George Eyre " and others," 
 and it was proved that George Eyre had only one partner, Andrew Stra- 
 ff) 7 Geo. 4, c. 64, s. 14, infra. 
 
 (e) Rex v. Beacall, East, T. 1824, MS. Bayley, J., and R. & M. C. C. R. 15. 
 (/) The Irish Act, 9 Geo. 4, c. 54, s. 28, is similar to this section. 
 \g) Rex v. Boulton, a 5 C. & P. 537, Parke, J.. S. C. MS. C. S. G. 
 
 (h) Rex v. Webb, R. & M. C. C. R. 431. per Patteson, J., on the trial ; but the point was 
 mentioned to the judges afterwards, who gave no opinion upon it. deciding the case on 
 another ground. See the case, ante, p. 4. 
 
 a Eng. Com. Law Reps. xxiv. 445.
 
 CHAP. IX. § III.] BY STATUTES. 102 
 
 ban, it was held that the prisoner must be acquitted. (t) So where a 
 count for forgery laid the intent to be to defraud S. Jones " and others," 
 and it appeared that Jones had only one partner, it was held that the 
 count was not supported. (j) 
 
 The 7 Geo. 4, c. 64, s. 15, with respect to the property of counties, 7 (} e0 , 4 ( c- 
 ridings, and divisions, enacts, " that in any indictment or information 64 > »• 15. 
 for any felony or misdemeanor committed in, upon, or with respect pe °7 y be°-~ 
 to any bridge, court, gaol, house of correction, infirmary, asylum, or longing to 
 other building erected or maintained, in whole or in part, at the expense coun £ es 
 of any county, riding, or division, or on or with respect to any goods or laid, 
 chattels whatsoever, provided for or at the expense of any county, riding, 
 or division, to be used for making, altering, or repairing any highway 
 at the ends thereof, or any court or other such building as aforesaid, or 
 to be used in or with any such court or other building, it shall be suffi- 
 cient to state any such property, real or personal, to belong to the in- 
 habitants of such county, riding, or division ; and it shall not be neces- 
 sary to specify the names of any such inhabitants." 
 
 Sec. 16, with respect to the property of parishes, townships, and Sec. 16. 
 hamlets, enacts " that in any indictment or information for any felonv How P r0 ~ 
 
 . . . perty or- 
 
 or misdemeanor committed upon or with respect to any work-house, or dered for 
 poor-house, or on or with respect to any goods or chattels, whatsoever, the use of 
 provided for the use of the poor of any parish or parishes, township or V ^ T [ S \^ S ° 
 townships, hamlet or hamlets, place or places, or to be used in any work- &c., may 
 house or poor-house, in or belonging to the same, or by the master or e ai " 
 mistress of such work-house or poor-house, or by any workmen or ser- 
 vants employed therein, it shall be sufficient to state any such property 
 to belong to the overseers of the poor for the time being of such parish 
 or parishes, township or townships, hamlet or hamlets, place or places, 
 and it shall not be necessary to specify the names of all or any of such 
 overseers :(k\ and in *any indictment or information for any felony or *103 
 misdemeanor committed on or with respect to any materials, tools, or How ma- 
 implements provided for making, altering, or repairing any highway for re 'p a i r .!' 
 within any parish, township, hamlet or place, otherwise than by the ing high- 
 trustees or commissioners of any turnpike road, it shall be sufficient to ™ {aid™^ 
 aver that any such things are the property of the surveyor or surveyors 
 of the highways for the time being of such parish, townships, hamlet 
 or place, and it shall not be necessary to specify the name or names of 
 any such surveyor or surveyors. 
 
 Sec. 17, with respect to the property under turnpike trusts, enacts 7 Geo. 4, c. 
 " that in any indictment or information for any felony or misdemeanor 64, s. 17. 
 
 (*) Hampton's case, Greenw. Coll. St. 143, Denruan, Com. Serj. 
 
 (J) Wright's case, I Lewin, 268, Bayley, J. 
 
 (A-) The 55 Geo. 3, c. 137, s. 1, vests goods, furniture, apparel, &c, provided for the use of 
 the poor in the overseers of the parish, &c, for the time being, and their successors, and 
 enacts that in any indictment in respect of such goods, &c, the said goods, &c, shall be laid 
 or described to be the property of the overseers of the poor for the time being of such 
 parish, &c, without stating or specifying their names. It was held that an indictment for 
 stealing goods under this statute might state them to be the goods of the overseers of the 
 poor for the time being of the parish of A., and that this sufficiently imported that they be- 
 longed at the time of the theft to the persons who were then the overseers. Thus, where 
 the indictment stated that the prisoner 6lbs. weight of pork of the goods and chattels of 
 the overseers of the poor for the time being, of the parish of K., feloniously did steal, &c, 
 and a case was reserved on the question whether this was properly laid, the judges were of 
 opinion that it sufficiently imported that the goods at the time of the theft were the property 
 of the then overseers, and therefore held the conviction right. Hex v. Went, East. T. 1818, 
 MS. Baylev, J., and Kuss. & Ry. 359. 
 
 Vol. ii.— 8
 
 103 OF LARCENY. — INDICTMENT. [BOOK IV. 
 
 How pro- committed on or with respect to any house, building, gate, machine, 
 perty of \ am -p f board, stone, post, fence, or other thing erected or provided in 
 trustees pursuance of any act of parliament for making any turnpike road, or 
 may be aD y f ^ e conveniences or appurtenances thereunto respectively belong- 
 ing, or any materials, tools, or implements provided for making, altering, 
 or repairing, any such road, it shall be sufficient to state any such pro- 
 perty to belong to the trustees or commissioners of such road, and it 
 shall not be necessary to specify the names of any such trustees or com- 
 missioners." 
 Sec. is. Sec. 18, with respect to property under commissioners of sewers, 
 
 How in in- enacts " that in any indictment or information for any felony or misde- 
 for offences meanor committed on or with respect to any sewer or other matter 
 committed within or under the view, cognizance, or management of any commis- 
 on sewers s } oners f sewers, it shall be sufficient to state any such property to 
 ty may be belong to the commissioners of sewers within or under whose view, 
 laid. cognizance, or management, any such things shall be, and it shall not 
 
 be necesssary to specify the names of any of such commissioners." 
 7 Geo. 4. c. The 7 Geo. 4, c. 46, an act for the better regulation of copartnerships 
 46, Joint f certain bankers in England, provides in what cases, and under what 
 Lank*. circumstances, copartnerships of more than six persons may carry on 
 business in England ; and by sec. 9, " all indictments, informations and 
 prosecutions, by or on behalf of such copartnership, for any stealing or 
 embezzlement, of any money, goods, effects, bills, notes, securities, or 
 other property of or belonging to such copartnership, or for any fraud, 
 forgery, crime, or offence committed against or with intent to injure or 
 defraud such copartnership, shall and lawfully may be had, preferred, 
 and carried on in the name of one of the public officers nominated as 
 aforesaid, for the time being of such copartnership, and that all indict- 
 ments and informations to be had or preferred by or on behalf of such 
 copartnership against any person or persons whomsoever, notwithstand- 
 ing such person or persons may happen to be a member or members of 
 such copartnership, it shall be lawful and sufficient to state the money, 
 goods, effects, bills, notes, securities, or other property of such copart- 
 nership, to be the money, goods, effects, bills, notes, securities, or other 
 property of any one of the public officers nominated as aforesaid, for 
 *104 the time being of such copartnership, and that any forgery, *fraud, 
 crime, or other offence committed against, or with an intent to injure or 
 defraud any such copartnership, shall and lawfully may in such indict- 
 ment or indictments, notwithstanding as aforesaid, be laid or stated to 
 have been committed against, or with intent to injure or defraud any 
 one of the public officers nominated as aforesaid, for the time being of 
 such copartnership, and any offender or offenders may thereupon be law- 
 fully convicted, for any such forgery, fraud, crime, or offence : and that 
 in all other allegations, indictments, informations, or other proceedings 
 of any kind whatsoever, in which it otherwise might or would have 
 been necessary to state the names of the persons composing such co- 
 partnership, it shall and may be lawful and sufficient to state the name 
 of anyone of the public officers nominated as aforesaid, for the time being 
 of such copartnership ; and the death, resignation, removal, or any act 
 of such public officer, shall not abate or prejudice any such action, suit, 
 indictment, prosecution, information, or other proceedings, commenced 
 against or by or on behalf of such copartnership, but the same may be
 
 CHAP. IX. § III.] BY STATUTES. 104 
 
 continued, prosecuted, and carried on in the name of any other of the 
 public officers of such copartnership for the time being." 
 
 It is not imperative upon the banking companies constituted under 
 this act to prosecute in the name of one of their public officers : thus it 
 has been held in a case of forgery that they are not bound to allege an 
 intent to defraud one of their public officers, but may lay the intent to 
 be to defraud one of the shareholders by name, "and others," under 
 the 1 Wm. 4, c. 66, s. 28.(Z) 
 
 In an indictment for forgery, it has been held sufficient to aver the 
 intent to be to defraud R. B., " then and there being one of the public 
 officers for the time being of a certain copartnership of persons carrying 
 on the trade and business of bankers in England, exceeding the number 
 of six persons, and called the National Provincial Bank of England;" 
 and that it is not necessary to aver that R. B. was nominated under the 
 7 Geo. 4, c. 46.(m) 
 
 The return made to the Stamp Office under the 7 Geo. 4, c. 46, is 
 not the only mode of proving that a person is a public officer ; that fact 
 may be proved by other evidence. (n) 
 
 The 7 Geo. 4, c. 46, was amended and continued by the *1 & 2 Yict. *105 
 c. 96, and is further continued by the 3 & 4 Vict. c. Ill, until the 31st 3 *j Vict. 
 August, 1842, and sec. 2 of that act enacts, that " If any person or joint stock 
 persons, being a member or members of any banking copartnership tanks. 
 within the meaning of the said act, or of any other banking copartner- 
 ship consisting of more than six persons, formed under or in pursuance 
 of an act passed in the third and fourth years of the reign of king Wil- 
 liam the Fourth, intituled ' An act for giving to the corporation of the 
 governor and company of the Bank of England certain privileges for a 
 limited period, under certain conditions,' shall steal or embezzle any 
 goods, money, effects, bills, notes, securities, or other property, of or 
 belonging to any such copartnership, or shall commit any fraud, forgery, 
 crime, or offence against or with intent to injure or defraud any such 
 copartnership, such member or members shall be liable to indictment, 
 information, prosecution, or other proceeding in the name of any of the 
 officers for the time being of any such copartnership, in whose name 
 any action or suit might be lawfully brought against any member or 
 members of any such copartnership for every such fraud, forgery, crime, 
 or offence, and may thereupon be lawfully convicted, and if such person 
 
 (I) Reg. v. Beard, a 8 C. & P. 143, Coleridge, J. In Rex v. Burgiss, b V C. & P. 488, Little- 
 dale, J., had expressed great doubts on the point; but in Rex v. James, c 7 C. & P. 553, 
 Patteson, J., had expressed an opinion that either the one mode or the other might be 
 adopted. And it should seem that there is no doubt that an indictment laying property to 
 belong to one member of such a company by name, " and others," would be good, especially 
 as the 7 Geo. 4, c. 64, s. 14, extends to " all joint stock companies ;" ante, p. 1 10. C. S. G. 
 
 (in) Reg. v. Beard, supra. So it has been held in an action brought in the name of a 
 public officer of such a company, that it is not necessary to allege in the declaration that 
 he is a member of the company, that he is resident in England, or that he has been duly 
 registered as required by sec. 4 : but that it is sufficient to allege that he has been " duly 
 nominated and appointed, and now is one of the public officers of the said company ac- 
 cording to the force, form, and effect of the said act of parliament." Spiler v. Johnson, 6 M. 
 & W. 570. So it has been held sufficient to state in the declaration that the plaintiff is the 
 manager of a certain joint-stock copartnership, established for the purpose of banking, and 
 that he has been duly named and appointed as the nominal plaintiff on behalf of the co- 
 partnership, under the provisions of the statute, without expressly stating that he has been 
 duly named as manager, or that the copartnership has been established under the provisions 
 of the act. Christie v. Peart, 7 M. & W. 491. 
 (?i) Edwards v. Buchanan, d 3 B. & Ad. 788. Reg. v. Beard, svpra, note (I). 
 
 a Eng. Com. Law Reps, xxxiv. 320. b lb. xxxii. 5D6. a lb. xxii. G28. d lb. xxxii. 187-
 
 105 OF LARCENY. — INDICTMENT. [BOOK IV. 
 
 or persons had not been or was or were not a member or members of 
 such copartnership, any law, usage, or custom to the contrary notwith- 
 standing." 
 
 A clerk of a joint-stock banking company, established under the 7 
 Geo. 4, c. 46, may be convicted of embezzling the money of the com- 
 pany, although he is a shareholder and partner in the company.(rm) 
 
 Where an indictment in some counts stated that the prisoner was 
 « employed as clerk to J. T., one of the public officers of the Carlisle 
 and Cumberland Banking Company, and in the returns made to the 
 stamp-office under the 7 Geo. 4, c. 46, s. 4, < the true name, title, and 
 firm of the copartnership' was stated to be l The Carlisle and Cumber- 
 land Joint Stock Bank ;' but the usual and only name employed by the 
 company in their dealings was < The Carlisle and Cumberland Banking 
 Company;' and they were so described in a bond of the prisoner to 
 the company;" which was given in evidence; it was held that there 
 was no variance. (oo\ 
 
 Although the 3 & 4 Vict. c. Ill, inaccurately recites the title of the 
 1 & 2 Vict. c. 96, yet the latter act is extended by the former.(p) 
 Friendly The Friendly Society Act, 10 Geo. 4, c. 56, s. 21, provides that "all 
 a"?"™ rea ^ anc ^ h er i ta °l e moneys, goods, chattels, and effects whatever, and 
 Geo. 4, c. all titles, securities for money, or other obligatory instruments and 
 ° 6 - evidences or muniments, and all other effects whatever, shall be vested 
 
 in the treasurer or trustee of such society for the time being," » and 
 shall for all purposes of action or suit as well criminal as civil in law 
 or equity, in anywise touching or concerning the same, be deemed and 
 taken to be, and shall in every such proceeding (where necessary) be 
 stated to be the property of the person appointed to the office of trea- 
 surer or trustee of such society for the time being, in his or her proper 
 name without further description ;" and such person is authorized to 
 bring any prosecution touching the property belonging to the society, 
 provided he has been thereunto authorized by the consent of the majo- 
 rity of the members present at any meeting of the society or a commit- 
 tee thereof, and no prosecution shall abate by the death of such person 
 or his removal from office, but shall and may be proceeded in by the 
 succeeding treasurer and trustee in the name of the person commencing 
 the same. 
 
 Where upon an indictment against the prisoner for stealing a 107. 
 note, the property of William Shildrick, his master, it appeared that 
 Shildrick was the treasurer of a Friendly Society, and that the prisoner 
 was clerk to that society, and also a trustee of it, and that he had been 
 a trustee before he became clerk ; and the rules of the society had been 
 re-enrolled, in pursuance of the 10 Geo. 4, c. 56, as amended by the 4 
 & 5 Wm. 4, c. 40, and a rule of the society provided, that "as soon as 
 101. more than is necessary for immediate use is in the box, it shall be 
 delivered to the trustees chosen for that purpose, who shall dispose of 
 it as the society shall direct, according to the 10 Geo. 4, c. 56, s. 13," 
 and the prisoner had obtained the note from Shildrick under circum- 
 stances which induced the jury to find that he obtained it with intent 
 to steal it. It was held upon a case reserved, that the property in the 
 note was properly laid in Shlidrick, the treasurer, by his proper name, 
 
 (nn) Reg. v. Atkinson, a 1 C. & Mars. 525. All the judges. 
 (oo) Reg. v. Atkinson, supra. (p) Reg. v. Atkinson, supra. 
 
 ■ Eng. Cora. Law. Reps. xi. 287.
 
 CHAP. IX. § IV.] BY STATUTES. 105 
 
 under the 10 Geo. 4, c. 56, s. 21, and that upon this indictment, the 
 prisoner, though one of the trustees of the society, might properly be 
 convicted of larceny in stealing the note. (5) Upon the trial, Bosan- 
 quet, J., thought it so doubtful whether the prisoner could be consi- 
 dered the servant of Shildrick, that he directed the jury to find the 
 prisoner guilty of larceny only. 
 
 The 9 Geo. 4. c. 92, which consolidates the laws relating to savings' Savings' 
 banks, by sec. 8, vests the effects of such institutions in the trustee or Banks, 
 trustees for the time being, and in all criminal proceedings the property 
 may be stated to be that of the trustee or trustees for the time being, 
 "in his, her, or their proper name, without further description." 
 
 The 5 & 6 Wm. 4, c. 23, s. 4, authorizes the laying the property of Loan 
 any loan society in England and Wales in the proper name or names Societies - 
 of the trustee or trustees of such society without further description. 
 
 The 5 & 6 Wm. 4, c. 69, an act to facilitate the conveyance of work- 5 & 6 Wm. 
 houses and other property of parishes and unions, by sec. 7 provides 4 - <*■ 69. 
 that " the guardians of the poor of every union already formed, or which h 0U g e g &t , 
 hereafter shall be formed, by virtue of the aforesaid act, passed in the 
 fourth and fifth years of his present majesty, and every parish placed 
 under the control of a board of guardians by *virtue of the said act, *106 
 shall respectively, from the day of their first meeting as a board, become, 
 or be deemed to have become, and they and their successors in office 
 shall forever continue to be, for all the purposes of this act, a corpora- 
 tion, by the name of the guardians of the poor of the union, (or 
 of the parish of ) in the county of ; and as such corpora- 
 tion the said guardians are hereby empowered to accept, take and hold, 
 for the benefit of such union or parish, any buildings, lands, or heredi- 
 taments, goods, effects, or other property, and may use a common seal; 
 and they are further empowered by that name to bring actions, to prefer 
 indictments, and to sue and be sued, and to take or resist all other pro- 
 ceedings for or in relation to any such property, or any bonds contracts, 
 securities, or instruments given or to be given to them in virtue of their 
 office ; and in every such action and indictment relating to any such pro- 
 perty, it shall be sufficient to lay or state the property to be that of the 
 guardians of the union, or of the parish of ; and in case of 
 any addition to or separation of any parishes from any such union, under 
 the authority of the said act, passed in the fourth and fifth years of the 
 reign of his present majesty, the board of guardians for the time being- 
 shall (notwithstanding such alteration) have and enjoy the same corporate 
 existence, property and privileges, as the board of guardians of the ori- 
 ginal union would have had and enjoyed had it remained unaltered." 
 
 By the 1 Vict. c. 36, s. 40, letters, money, &c, sent by the post, 
 may be laid as the property of the Postmaster-General. (?*) 
 
 SECT IV. 
 Of the Indictment, Trial, and Punishment. 
 
 It is not intended to enter particularly upon the form of an indict- Indict- 
 ment for larceny, concerning which ample information is given in those ment 
 
 (q) Reg. v. Cain, a 1 C. & Mars. 309. 
 
 (n) See this action, post, in the chapter relating to the post-office. 
 a Eng. Com. Law. Reps. xli. 172.
 
 106 OF LARCENY. — INDICTMENT. [BOOK IV. 
 
 works which treat expressly upon the subject of criminal pleading.(o) 
 It may be briefly observed that the prisoner must be charged with the 
 offence in the technical form, " feloniously did steal, take, and carry 
 away;" or, as it is said to be most proper, when cattle are the subject- 
 matter of the larceny, "feloniously did steal, take, and lead away."(jo) 
 And though it is not now necessary that the value of the goods should 
 be stated in order that it may appear whether the offence be grand or 
 petit larceny, yet some value should in general be stated, as if the pro- 
 perty be of no value it is not a subject in respect of which larceny can 
 *107 ^ e committed. And it has *been abundantly shown that the property 
 must be laid in some person who has in legal consideration a sufficient 
 ownership for that purpose. (<?) 
 Descrip- With respect to the proper description of the goods stolen, difficulties 
 
 tion of the will sometimes occur. The general rule is given, that they should be 
 goods. described with such a certainty as will enable the jury to decide, whe- 
 ther the chattel proved to have been stolen is the very same with that 
 upon which the indictment is founded, and show judicially to the court 
 that it could have been the subject-matter of the offence charged, and 
 enable the defendant to plead his acquittal or conviction to a subsequent 
 indictment relating to the same chattel. (?•) And it is quite necessary 
 that it should appear, on the face of the indictment, that the thing taken 
 is such whereof larceny may be committed : so that, as we have seen, 
 where the indictment was for stealing a pheasant, which primd facie 
 is not a subject of larceny, it was h olden to be necessary to state that 
 it was either dead, tame, or confined. (s\ 
 Name of The goods may be described as the goods of a person by the name 
 the owner, which such person has assumed, though it be not his right name. The 
 prisoner was indicted for stealing in the dwelling house of Mary John- 
 son certain goods, her property : and it appeared in evidence that her 
 real name was Davis, but that she had passed by the name of Johnson, 
 without any purpose of fraud, for five years. Upon the point being 
 saved, the judges, (seven being present,) were clear that the time she 
 had been known by the name of Johnson warranted her being so called 
 in the indictment.(Af 
 
 (o) Stark. Crim. Plead. 192, et seq. 449, et seq. 3 Chit. Crim. L. 944, etseq. Cro. Circ. comp. 
 p. 38, et seq. 
 
 (p) 2 Hale, 184. 2 East, P. C. c. 16, s. 159, p. 778. Starkie, Crim. Plead. 78, 451. 3 
 Chit. Crim. L. 950. In Stark. Crim. Plead. 78, note (u), the learned author says, "It has 
 been said that for stealing a horse it should be cepil et abduxit, for stealing a sheep cepit et 
 effugavit ; but I find no decision which warrants these unprofitable distinctions." 
 
 (g) Ante, p. 85, et seq. (r) Stark. Crim. Plead. 193. 1 Ch. C. Law, 235. 
 
 (s) Ante, p. 84. 
 
 (t) Rex v. Norton, East. T. 1823. MS. Bayley, J., and Russ. & Ry. 510. See vol. 1, p. 555. 
 
 f |On an indictment for stealing the goods of A. and B., evidence that some of the goods 
 belonged to A., and some to B., in which they had no joint interest, will not support the 
 charge. 4 McCord, 16, State v. Ryan.} [An indictment for larceny, charging that the goods 
 stolen, were the property of A. is not sustained by proof that they belonged to A. and B. as 
 partners, and that they were at the time of the larceny in A.'s* possession. Hogg v. The 
 State, 3 Blackford, 326. 
 
 In an indictment for larceny of corn belonging to A. and B., tenants and C. landlord, 
 being part of a crop raised on shares and undivided, the corn should be described as 
 the property of A. B. and C, and not merely as the property of A. and B. The State v. Frame, 
 4 Harrington, 569. In an indictment for stealing the property of A. a minor daughter of B. 
 and living with him, the property should be described as the property of A., and not as the 
 property of B. : the property being in the possession of A. and for her exclusive use. The 
 Slate v. Kock, 4 Harrington, 570. If goods, the separate property of the wife, be stolen
 
 CHAP. IX. § IV.] DESCRIPTION OF PROPERTY. 107 
 
 The same certainty is required in an indictment for stealing goods as Certainty 
 in trespass for goods, and rather more certainty, for what will be a de- dictmcnt" 
 feet of certainty in a declaration will be much more defective in an in- 
 dictment, (u) Where several things are stolen, it is necessary to state 
 the number ; therefore, it is not sufficient to say, felonice furatus .est 
 aves or columbas out of a dovecote, or young hawks out of the nest, 
 without expressing the number.(f) And where the number is required 
 to be stated, it must be stated with certainty. It is not, therefore, suf- 
 ficient to say that the prisoner stole twenty sheep and lambs or twenty 
 sheep and wethers, because it does not appear how many of one sort 
 and how many of another.(?c) The property itself must be accurately 
 described ; it is not therefore sufficient to say that the prisoner stole 
 the goods and chattels of B., without showing what goods and chattels 
 in certainty, as one horse, one ox, &c.(x) So an indictment charging the 
 stealing of " one hundred articles of household furniture" would be 
 bad.(w) But an indictment charging the things stolen to be nine 
 printed books would be good. (2) So in an indictment for stealing a 
 handkerchief, it was not necessary to describe it particularly, as a hand- 
 kerchief of any specific make or materials as that it is of silk, linen, 
 or any other particular quality. (a)f 
 
 *If a chattel has obtained a particular name of its own, it ought to *108 
 be described by that name, and it would be wrongly described as so A chattel 
 many pounds weight of the metal of which it is made; but whilst d"f er j];*° d 
 metal is in the progress of manufacture, it may be described as so by its pro- 
 many pounds weight of metal Upon an indictment for stealing P er namc - 
 twenty-five pounds weight of tin, it appeared that the tin consisted of 
 two pieces, which a witness called "lumps of tin," but afterwards ad- 
 mitted that they were called in the trade "ingots 3" but added that the 
 term was applied as well to pieces of tin, as to the mould in which they 
 were cast, and was applied to the shape. The tin had been cast into 
 these pieces for the purpose of being again melted up for use, in the 
 manufacture of tin ; and in the middle of each was an indentation for 
 the purpose of breaking them in two when wanted to be melted up 
 again. It was objected that the tin ought to have been described as 
 two ingots, for wherever an article has obtained a name in the trade, it 
 must be described by it. Coleridge, J., " It seems to me that the de- 
 scription is sufficient to answer all the purposes which are required by 
 law. First, it is the subject of larceny equally whether it be an ingot 
 or so many pounds weight of tin. Secondly, as to the facility of plead- 
 ing autrefois acquit, the prisoner stands in the same situation, whether 
 
 («) 2 Hale, 183. (i>) 2 Hale, 182. 
 
 (w) 2 Hale, 183. (z) 2 Hale, 182. 
 
 (y) Rex v. Forsyth, Russ. & Ry. 274. 
 
 (z) Per Lord Ellenborough and Bayley, J., in Rex v. Johnson, 3 M. & S. 540. 
 
 (a) Per Le Blanc, J., Ibid. 
 
 from the possession of the husband, it is sufficient to describe them in the indictment as the 
 goods of the husband. Davis v. The State, 17 Alabama, 415.] 
 
 f [Particulars descriptive of the property stated, inserted in an indictment for larceny 
 must be strictly proved, even though such as need not have been inserted. The State v. 
 Jackson, oO Maine, 29. Stolen property in an indictment for larceny, must be described 
 with certainty to a common intent, by which is meant such certainty as will enable the jury 
 to say whether the chattel proved to have been stolen is the same upon which the indict- 
 ment is founded. The People v. Jackson, 8 Barbour, Sup. Ct. 637.]
 
 the tra.de 
 
 10S OF LARCENY. INDICTMENT. [BOOK IV. 
 
 it be one or the other, because there must be some parol evidence in all 
 cases to show what it was that he was tried for before, and it would be 
 as easy to prove one as the other. The last question is, whether it is 
 described with sufficient certainty, in order that the jury may be satis- 
 fied that it is the thing described. If this had been some article, that, 
 in ordinary parlance, had been called by a particular name of its own, 
 it would have been a wrong description to have called it by the name of 
 the material of which it was composed ; as, if a piece of cloth were 
 called so many pounds of wool, because it has ceased to be wool, and 
 nobody could understand that you were speaking of cloth. It would 
 be wrong to say so many ounces of gold, if a man stole so many 
 sovereigns ; you would there mislead by calling it gold. If it were 
 a rod of iron, it would be sufficient to call it so many pounds of 
 inm."(&)t 
 Descrip- A set of new handkerchiefs in a piece may be described as so many 
 
 tioo of handkerchiefs, though they are not separated one from another, if the 
 they are pattern designates each, and they are described in the trade as so many 
 known in handkerchiefs. Upon an indictment against the prisoner for stealing 
 six handkerchiefs, it appeared that the hankerchiefs were new and in 
 one piece, but that the pattern designated each, there being a light 
 coloured line between each; and it also appeared that the article was 
 known in the trade as a piece of silk handkerchiefs, and that it was 
 the custom to charge such an article as so many handkerchiefs. The 
 *109 point being saved, the *judges held that the property was rightly de- 
 scribed as six handkerchiefs, and that the conviction was right.(c) 
 Descrip- It is also laid down as a rule that, when the subject-matter is defined 
 
 ters d fi a *d ^ a s t atu te, the descriptive words contained in the act should be also 
 by a stat- used in the indictment; and that where the act uses several descriptive 
 lite - terms, one of which, being general, includes the more specific term, an 
 
 indictment would be bad which used the more general instead of the 
 more special description, (c?) And an instance is given where an indict- 
 ment under the statutes 14 Geo. 2, c. 6, and 15 Geo. 2, c. 34, for steal- 
 ing a coic, was holden not to be sustained by the fact that the defendant 
 stole a heifer : on the ground that as those statutes mentioned both 
 heifer and cow, they must be considered as having used one term in 
 contradistinction to the other in describing the several animals they 
 were intended to protect. (e) Where an article is described in a statute 
 
 (b) Reg. v. Mansfield, 1 C. & M. 140. Rex v. Stott, 2 East, P. C. c. 16, s. 144, p. 752, 753, 
 was cited in support of the objection. There the indictment was for receiving stolen iron, 
 described as so many " pieces of iron called strokes, - ' so many " pieces of iron," and so 
 many "pieces of iron called horse-shoes;'' and the only question seems to have been 
 whether the 29 Geo. 2, c. 30, related to metals in their raw state, as contradistinguished 
 from wrought goods, and no opinion was given ; the counsel for the prisoner waiving the 
 further prosecution of a writ of error upon a doubt intimated by the court of B. R., whether 
 any other judgment could not be passed than that of transportation, directed by the 29 Geo. 3, 
 c. 30, C. S. G. 
 
 (c) Rex v. Nibbs, and Yearns, Trim T. 1824, MS. Bayley, J., and R. & M. C. C. R. 25. 
 
 (d) Stark. Crim. Plead. 193. ( e ) Cook's case, 1 Leach, 105. 
 
 f fWhen a person was indicted for stealing a " bull tongue," and it appeared that he had 
 stolen a peculiarly shaped plough-share called by that name, it was held to be a sufficient 
 specification of the thing stolen. The Slate v. Clarke, 8 Iredell, 226. Turpentine which has 
 flowed down trees into boxes made to catch it, and is in a state to be dipped out, is a subject 
 of larceny ; but where one was indicted for stealing two barrels of turpentine, and it appeared 
 that he had dipped turpentine out of those boxes at different times, until he had taken 
 nearly two barrels, it was held, that the evidence did not support the indictment. The State 
 v. Moore. 11 Iredell, 70.] 

 
 CHAP. IX. § IV.] DESCRIPTION OF PROPERTY. 109 
 
 by a particular name, it is enough to describe it by that name in an 
 indictment for larceny. (/) 
 
 The first count charged the prisoner with stealing four warrants and 
 orders for the payment of money (to wit) for 5^. each, and of the value 
 of 5/. each. The second, four warrants and orders for the payment and 
 of the value of 51. each, commonly called post-office money-orders ; and 
 the third, four valuable securities, that is to say, four warrants and 
 orders, commonly called post-office money orders. The documents in 
 question were in the following terms : — 
 
 " Post-office, Shrewsbury, September 18, 1841. 
 
 " Credit the person named in my letter of advice the sum of five 
 pounds and debit the same to this office ;" and purported to be signed 
 by the post-master at Shrewsbury, and addressed « To the post-office, 
 London •" and under it was a receipt, which the person receiving the 
 money from the post-office was to sign. It was clearly proved that the 
 prisoner had stolen the papers. The first objection was, that this was 
 not an order for the payment of money ; but, upon a case reserved, the 
 judges were unanimously of opinion, that it was an order for the pay- 
 ment of money. The next objection was, that it was an order by the 
 postmaster, but was not drawn on any one. But the judges were of 
 opinion that the designation or address of this order was sufficient au- 
 thority to the persons who carried on business at the post-office in Lon- 
 don. It was next objected, that if the instrument was a money-order 
 it required a stamp. The judges thought it unnecessary to decide this 
 point ; but this being a usage of the post-office, sanctioned by the 3 & 
 4 Vict. c. 96, the judges were of opinion that this was a good money- 
 order, notwithstanding the want of a stamp. The next objection was, 
 that the indictment was uncertain, as the second and third counts were 
 for stealing four warrants and orders (not saying how many orders) for 
 the payment of the sum of hi. each. But the judges were of opinion 
 that the instrument was both a warrant and order, and, therefore, the 
 eounts of the indictment were not uncertain. And lastly, that there 
 was no proper proof that this was a regular post-office order, as there 
 was not sufficient proof that the order was signed by the postmaster ; 
 but the judges were of opinion that it was not necessary it should be 
 in the handwriting of the postmaster himself; it was enough that it 
 was in the handwriting of the postmaster, or some person by him au- 
 thorized to sign.(^f ) 
 
 Where a prisoner was indicted for stealing, inter alia, two shifts, 
 and the only article identified by the prosecutrix was what she called a 
 shirt. It had been made for a little girl six years of age, and the pro- 
 secutrix stated that she called such things shirts while girls were so 
 young. Tindal, C. J., said, " It must be shown that the article is ge- 
 nerally known by the name laid in the indictment, and here the prose- 
 cutrix says she could call it a shirt. The prisoner, therefore, must be 
 acquitted, "(gg) 
 
 Where a chattel is described by a name, such description imports the 
 whole of that chattel, and if it appear that at the time it was stolen it 
 was in pieces, or only part of it stolen, it is a fatal variance. Thus an 
 indictment charging the stealing of a " brass furnace" is not supported 
 
 (/) Rex v. Johnson, 3 M. & S. 540. (/) Reg. v. Gilchrist," 1 C. & Mars. 224. 
 
 \gg) Reg. v. Edward Fox, Salop. Sum. Ass. 1842, MS. C. S. G. 
 a Eng. Com. Law Reps. xli. 126.
 
 109 OF LARCENY. — INDICTMENT. [BOOK IV. 
 
 by evidence of stealing the pieces of brass into which the furnace had 
 been broken up.(<?) So where an indictment charged the prisoner with 
 stealing a " spade," and it appeared that he only stole the bit or flat 
 iron part of the spade, the handle being off at the time the iron was 
 stolen, it was held a fatal variance. (/i) Where articles of different kinds 
 are mixed together, as oats, beans, and chaff, the indictment should 
 describe it as a " certain mixture consisting of one bushel of oats, &c." 
 The prisoner was indicted for stealing "one bushel of oats, one bushel 
 of chaff, and one bushel of beans, of the goods and chattels of A. B., 
 then and there found;" and the proof was, that these articles, at the 
 time of the felonious taking, were mixed together ; Bayley, J., held that 
 the articles ought to have been described as mixed, thus, " a certain 
 mixture consisting of one bushel, &c. ;" and he directed an acquittal on 
 this count. (t) 
 
 Descrip- -^n indictment for stealing 101. in moneys numbered, is not sufficient ; 
 
 Hon of mo- some of the pieces of which that money consisted should be specified. 
 
 Dey ' Upon an indictment for breaking and entering a dwelling-house, and 
 
 stealing therein 101. in moneys numbered, and a pair of stockings, the 
 prisoner was found guilty of stealing the 101. only ; and upon the point 
 being reserved, a majority of the judges held the description to be in- 
 sufficient, and the judgment was arrested. (f\ 
 
 Descrip- It is said to have been formerly the practice, upon all indictments for 
 
 tloDotwn . t " stealing notes or other written securities, to set out the notes or other 
 
 ten '■ecuri- 
 
 ties. securities at full length ;(k\ but it has been long settled that *they may 
 
 *110 be described in a general manner, and need not be set out verbatim.{l) 
 But still the indictment must follow some of the descriptions of property 
 as given in the statute ; so that where a prisoner was charged with steal- 
 ing " a certain note commonly called a bank-note," of the value, &c, 
 and convicted, an objection which was taken to this description of the 
 note was referred to the judges, who all held the indictment ill laid : as, 
 in describing the property stolen to be a "note commonly called a 
 bank-note" it did not follow any of the descriptions of property in the 
 statute, and that the addition "commonly called a bank-note" did not 
 If describ- aid such original wrong description. (m) But if the indictment describe 
 ed m the ^g instrument in the words of the statute creating the offence, it is suf- 
 
 words ot 
 
 the statute, ficient. The prisoner was indicted for stealing a note of the Bank of 
 it is good. England out of a letter, which note was described as " a bank-note" 
 in every count, and it was objected that the description was insufficient, 
 and the preceding case was relied upon ; Taunton, J., « There, the only 
 substantial averment was, that it was « a certain note ;' that was the only 
 description. It might have been a note of invitation. The words 
 « bank-note' followed the words ' commonly called,' that is like < to wit/ 
 which will not remedy an imperfect previous averment. It is sufficient 
 to describe the offence in the words of the statute. If this had been a 
 
 ((/) Rex v. Halloway,* 1 C. & P. 127, Hallock, B.,poet, p. 112. 
 
 \h) Rex v. Stiles, Gloucester Sum. Ass. 1833, Gurnej, B., MS. C. S. G. 
 
 (?) Rex v. Kettle, 3 Chitt. Cr. L. 947, a. 
 
 ( i) Rex v. Fry, East. T. 1822, MS. Bavley, J., and Russ. & Ry. 482. 
 
 (k) 3 M. & S. 541. 
 
 (I) 2 East, P. C. c. 16, s. 159, p. 777. Milne's case, 2 East, P. C. c. 16, s. 37, p. 602. 
 Johnson's case, 2 Leach, 1103, note (a). Stark. Crim. Plead. 454, note (k). 
 
 (m) Craven's case, Lancaster Sum. Ass. 1801. Mich. T. 1801. 2 East, P. C. c. 16, s. 37, 
 p. 601, 602. Russ. & Ry. 14. 
 
 a Eng. Com. Law Reps. xi. 341.
 
 CHAP. IX. § IV.] DESCRIPTION OF BANK-NOTES, ETC. 110 
 
 banker's promissory note, it must have been averred to be for the pay- 
 ment of money; but I do not think that it is necessary in this case."(rc) 
 
 An indictment for stealing a promissory note is good which describes 
 it as " one promissory note for the payment of five guineas.'Yo) 
 
 The necessary description of a bank-note, underwent considerable dis- Johnson's 
 cussion in a late case of an indictment upon the Embezzling Act, 39 ca se. 
 Geo. 3, c. 85, (now repealed.) The indictment charged the prisoner to wit n - ne 
 with embezzling " divers, to wit, nine bank-notes for the payment of bank- 
 divers sums of money, amounting in the whole to a certain sum of ^ e e l' a S T 
 money, to wit, the sum of 9/. of lawful money of Great Britain, and of ment of di- 
 the value of 91. of like lawful monev ; and, upon error to reverse the v ^ rs sums 
 
 />iiii • -i i °* money, 
 
 judgment, it was objected that none of the cases had determined that amounting 
 
 such an indictment containing no description of any particular note in tDe 
 
 whatever was sufficient: but the court held that this was a sufficient certainsum 
 
 description. Lord Ellenborough, C. J., said, that he considered that of money, 
 
 after the statute had made bank-notes the subject of larceny, they might sum " ' f 9 ^ e 
 
 be described in the same manner as other things which have an intrinsic of lawful 
 
 i 
 value, that is, by any description applicable to them as a chattel ; that J^° t " ^'^ 
 
 to describe them as bank-notes for the payment of money seemed to be f9Loflike 
 a larger description than the statute strictly required ; and that the lawful mo- 
 indictment in question had set forth number, value, and species, (bank- tobeasuffi- 
 note being the species, the value 91., and the number nine,) *and thereby *111 
 complied with the strict and technical rule of law. Le Blanc, J., in cient de- 
 delivering his judgment, said, "Where a specific thing is made the sub- b ° a "^, lon 
 ject of larceny, it is only necessary to describe it as such specific thing, notes, in an 
 it being a species of thing that is the subject of larceny. For instance, ^1^°' 
 it is not necessary, in charging a larceny of sheep, to describe it either bezzling 
 as a wether, ewe, or lamb, yet it cannot be doubted, if such an argu-^ ct ' 3 9 Ge0 - 
 ment could prevail, that it would be of advantage to the prisoner that 
 it should be described more particularly, because if it were, and the 
 prosecutor, in such case, should fail to prove it to be of that particular 
 description, the prisoner would thereupon be entitled to an acquittal. 
 So also it may be said of bank-notes ; it is not necessary to describe a 
 bank-note particularly, as a bank-note for the payment of 1?., bl., or 
 20/., because for whatsover sum it may be payable, it is still a bank- 
 note. In like manner, in an indictment for stealing a handkerchief, it 
 is not necessary to describe it as a handkerchief of any specific make or 
 materials, as that it is of silk, linen, or any other particular quality. 
 The argument upon this part of the case has arisen from the practice 
 that has prevailed of describing the particular sum for which the note 
 is payable, and that the money secured thereby is unsatisfied. But the 
 answer to such an argument is this, that whether it be payable for one 
 sum or for another, it is equally a bank-note, and a bank-note is the 
 subject of larceny. Therefore, this is not a good objection, that the 
 bank-note is not sufficiently set out. No further description is neces- 
 sary than is required for other chattels, which are the subject of lar- 
 ceny ; and under the general name of bank-note, the particular species, 
 
 (n) Rex v. Newman, Gloucester Spr. Ass. 1832, MS. C. S. G. The indictment was on the 
 f>2 Geo. 3, c. 143, s. 2, the words of' which are, "any bank-note, bank-post-bill," &c. In 
 Rex v. Johnson, infra, the judges seemed clearly of opinion that the words "for the payment 
 of divers sums of money," were unnecessary. C. S. G. 
 
 {o) Milne's case, 2 East, P. C. c. 16, s. 37, p. 602.
 
 Ill OF LARCENY. — INDICTMENT. [BOOK IV. 
 
 if the sum for which the note is payable can be said to constitute a 
 species, may be proved. "(%) 
 Bank-post- I* was holden that where the thing stolen was described as " a bank- 
 bill- post-bill," and was not set out, the court could not take judicial notice 
 that it was a promissory note, or that it was such an instrument as 
 under the 2 Geo. 2, c. 25, might be the subject of larceny, though it 
 were described as made for the payment of money.(o) 
 Bank- ^ appears to have been determined, that notes, bills, &c, within the 
 notes, &c, 2 Geo. 2, c. 25, new repealed, should be laid to be the property of A. 
 be de- ^'j an( ^ ou ght D °k to be described as chattels; but it was also holden, 
 scribed as that upon an indictment which laid them to be " the property and chat- 
 chattels. te j g Q f g g » ^ wor( j battels might be rejected as surplusage. (p) 
 
 We have seen that re-issuable notes, which are stolen on their way 
 from the bank in London, at which they have been paid, to the bankers 
 in the country, to be re-issued, may be described as so many pieces of 
 paper stamped with stamps. (g) And that such re-issuable notes, if they 
 cannot properly be described as "valuable securities," may be well laid 
 as goods and chattels. (r) And that the halves of country bank-notes 
 may also be described as goods and chattels. (s) An indictment is good 
 *112 which charges the stealing of a certain valuable *security (to wit) a 
 check of the value specified, without stating the drawees to be bank- 
 ers. An indictment charged the prisoner with stealing " a certain valu- 
 able security, to wit, a banker's check, drawn by J. W. Bidewell for 
 371. 16s. 8d., upon J. Mortlock and sons, and payable to G. Mumford 
 or bearer, and of the value of 371. 16s. 8(7., the property of the said J. 
 "W. Bidewell ;" and the question being reserved whether the check 
 was well described, it not being stated that J. Mortlock and sous, upon 
 whom it was drawn, were bankers, the judges held that the indictment 
 was good.(<) A stamped receipt may be described as " one piece of 
 paper stamped with a certain stamp denoting the payment of a duty to 
 our said lady the queen of sixpence, of the property, goods, and chattels 
 of A. B.," or as « one piece of paper of the value of one penny."(M) So 
 a memorandum of a sum of money due to the prosecutor may be de- 
 scribed as " one piece of writing paper, of the value of one penny, one 
 other piece of paper of the value of one penny, and one written memo- 
 randum of the value of one penny, of the goods and chattels of J. &."(y\ 
 So coalmeters' printed certificates, before they are signed and filled up, 
 may be described as "pieces of paper."(w) 
 Cattle and Before the 7 & 8 Geo. 4, c. 29, s. 5, which abolishes the distinction 
 other ani- between grand and petty larceny, it was holden that an indictment for 
 stealing a sheep or any other cattle, must ascribe to it some value, as, 
 
 (n) Rex v. Johnson, 3 M. & S. 540, 552, 553. 
 
 (o) Rex v. Chard, Trin. T. 1822. Russ. & Ry. 488. Bank-post-bills were not in use until 
 two years after the 2 Geo. 2, c. 25, had passed, ante, p. 82. A bank-post-bill cannot be de- 
 scribed as a bill of exchange. Moor's case, 1 Lew. 90. 
 
 (.p) Rex v. Sadi and Morris, 0. B. 1718, and afterwards before all the judges, 2 East, P. 
 C. c. 16, s. 37, p. 601. 
 
 (a) Clarke's case, Russ. & Ry. 181, ante, p. 76. 
 
 (r) Rex v. Vyse, R. & M. C. C. R. 218, ante, p. 77. 
 
 (s) Rex v. Mead," 4 C. & P. 535, ante, p. 76. 
 
 m Reg. v. Heath, 2 Moo. C. C. R. 33. See other points decided in this case, ante, p. 34. 
 
 (w) Reg. v. Rodway, b 9 C. & P. 784, ante, p. 45. 
 
 (v) Reg. v. Bingley, 5 C. & P. 602, Gurney, B. 
 
 (vv) Reg. v. Morris, 3 9 C. & P. 349. See this case. post. 
 
 R Eng. Com. Law Reps. xix. 514. b lb. xxviii. 334. c lb. xxiv. 474. d lb. xxxviii. 143.
 
 CHAP. IX. § IV.] DEAD ANIMALS. 112 
 
 unless the value exceeded 121., it would not be a capital offence. Thus, 
 where the prisoner had been convicted of stealing a cow, a' case was 
 reserved, on the ground that no price or value was ascribed to the cow, 
 in the indictment; and a majority of the judges held, that though the 
 statute in terms made the stealing any sheep, cow, &c, felony without 
 clergy, yet it ought in construction and by analogy to the statute which 
 took away clergy, to be confined to what exceeded the value of 12d., 
 and therefore that a capital sentence could not be passed. (w) 
 
 An indictment for stealing a dead animal should state that it was Dead ani- 
 dead ; for upon a general statement that a party stole the animal, it is mals * 
 to be intended that he stole it alive. (.«) And d fortiori, upon an indict- 
 ment for stealing a live animal, evidence of stealing a dead one is insuf- 
 ficient. Thus, upon an indictment for stealing live tame turkeys, if the 
 evidence is that they were dead when stolen, the indictment will not be 
 supported. The prisoners stole four live tame turkeys in Cambridge- 
 shire, killed them there, and carried them dead into Hertfordshire. 
 They were indicted in Hertfordshire for stealing four live tame turkeys; 
 and upon a case reserved, the judges held that the word live in the de- 
 scription could not be rejected as surplusage, and that as the prisoners 
 had not the turkeys in a live state in Hertfordshire, the charge, as laid, 
 was not proved, and that the conviction was wrongly) 
 
 *So it has been held upon an indictment for sheep-stealing, that a re- *H3 
 nioval whilst the sheep is alive is essential to constitute the offence. (2) 
 
 But where an animal has the same appellation, whether it be alive or 
 dead, and it makes no difference as to the offence, whether it were alive 
 or dead ; and the indictment uses such appellation, it is no variance if 
 the animal was dead at the time the offence was committed. The pri- 
 soner was indicted for receiving a lamb, knowing the same to have been 
 stolen, and the lamb had been killed before it was received ; upon a 
 case reserved, the judges all agreed that the conviction was good, as it 
 was immaterial as to the prisoner's offence whether the lamb was alive 
 or dead, his offence and the punishment of it being in both cases the 
 same, (a) 
 
 The offence of larceny is transitory and not local ; it is therefore Parish, 
 immaterial whether there be any such parish in the county as that laid 
 in the indictment. On an indictment for larceny " at the parish of 
 Hales Owen, in the county of Worcester," it appeared that the parish 
 of Hales Owen is partly in Worcestershire, and partly in Shropshire ; 
 and it was held that the indictment was sufficient. (&) 
 
 (w) Rex v. Peel, Mich. T. 1819, MS. Bayley, J., Riiss. & Ry. 407 ; and Pearle's case, post. 
 
 (x) By Holroyd, J., in Rex v. Edwards, Hil. T. 1823, MS. Bayley, J., and Russ. & Ry. 497. 
 In Rex v. Halloway, a 1 C. & P. 128. Hullock, B., held that an indictment for stealing " two 
 turkeys" was not supported by evidence of stealing two dead turkeys, as " two turkeys" must 
 be taken to mean live turkeys; but this case seems overruled bv Rex v. Puckering, post, p. 
 113. C. S. G. 
 
 (>/) Rex v. Edwards and Walker, Hil. T. 1823, Russ. & Ry. 497. 
 
 (z) Rex v. Williams, R. & M. C. C. R. 107. See this case, post, p. 137. 
 
 (a) Rex v. Puckering, R. & M. C. C. R. 242. 
 
 il>) Rex v. Perkins," 4 C. & P. 363. See Rex v. Woodward, R. & M. C. C. R. 233, where 
 there was no such parish as that laid in an indictment for burning a stock of beans, and it 
 was held immaterial. If, however, the offence was local, as burglary, house-breaking, &c, 
 a variance in the name of the parish would be fatal; or if it turned out to be part in and 
 part out of the county, where it was described in the usual way, and as the parish of A., in 
 the county of B. Rex v. Brookes. Worcester Spr. Ass. 1842, Addenda to vol. 1. Reg. v. 
 Jackson, ibid. 
 
 a Eng. Com. Law Reps. xi. 342. " lb. xix. 419.
 
 1 1 :, OF LARCENY. — INDICTMENT. [BOOK IV. 
 
 Conclusion Where an indictment upon the 2 Geo. 2, c. 25, (now repealed,) stated 
 ,umnt t,u ' offende to nave keen committed against the form of the statute, and 
 '•n "7; "... cot of the statutes, it was objected to on the ground of the 2 Geo. 2, 
 - ' - •'• o. 26, having once expired, and being revived by the 9 Geo. 2, c. 18. 
 1 1 became unnecessary for the judges to give any opinion on this objec- 
 tion, another point having been reserved for their consideration; but 
 those judges who adverted to it thought the form of the indictment 
 o-ood, and that the re-enacting statute was the only statute in force 
 against the offence ;(c) and in a subsequent case, an indictment for 
 stealing bank-notes, against the form of the statute, was ruled to be 
 good.(/) 
 
 An indictment for a common law felony must contain a contra pacem, 
 and so must an indictment for stealing articles, the stealing of which is 
 made felony by statute ; and laying the offence to have been against 
 the form of the statute, will not supply the defect. An indictment was 
 for stealing bank-notes against the form of the statute, but it was not 
 laid to be against the peace, &c, and, after conviction, the judges held 
 the indictment bad, and judgment was arrested. (e) 
 What de- But objections of this kind will not now avail in arrest or reversal of 
 roots phall judgment. The 7 Geo. 4, c. 64, s. 20, professing to have for its object 
 an indict- tnat the punishment of offenders may be less frequently interrupted in 
 ment after consequence of technical niceties, enacts, " that no ^judgment upon any 
 otherwise indictment or information for any felony or misdemeanor, whether after 
 *114 verdict or outlawry, or by confession, default or otherwise, shall be 
 stayed or reversed for want of the averment of any matter unnecessary 
 to be proved, nor for the omission of the words < as appears by the 
 record,' or of the words < with force and arms,' or of the words ' against 
 the peace/ nor for the insertion of the words ' against the form of the 
 statute/ instead of the words ' against the form of the statutes/ or vice 
 versa, nor for that any person or persons mentioned in the indictment 
 or information, is or are designated by a name of office or other descrip- 
 tive appellation instead of his, her, or their proper name or names, nor 
 for omitting to state the time at which the offence was committed, in 
 any case where time is not of the essence of the offence, nor for stating 
 the time imperfectly, nor for stating the offence to have been committed 
 on a day subsequent to the finding of the indictment or exhibiting the 
 information, or on an impossible day, or on a day that never happened, 
 nor for want of a proper or perfect venue, where the court shall appear 
 by the indictment or information to have had jurisdiction over the 
 offence." 
 A had con. A bad conclusion of contra pacem is as no contra pacem, and is 
 Hred!" cured after verdict by this section. If, therefore, an indictment for an 
 offence committed in the reign of one king conclude against the peace 
 of another king, the error is cured by this section. An indictment pre- 
 ferred in May, 1832, charged that the prisoner, on the twelfth of 
 March, 1830, had in his possession a bill of exchange, and that after- 
 wards, to wit, on the day and year aforesaid, he forged an acceptance on 
 the said bill of exchange, and concluded « against the peace of our lord 
 
 (e) Phipoe'a case, 1795. 2 East, P. C. c. 16, s. 37, p. 599, 601. Ante, p. 79. 
 
 Organ's case, cor. Lawrence, J., Reading Lent Ass. 1796. 2 East, P. C. c. 16. s. 37. 
 p. 601. Lawrence, J., conferred with Thompson, B., on the occasion, who declared bis con- 
 currence, considering the reviving statute as in effect re-enacting the provisions of the ex- 
 pired law. 
 
 (e) Rex v. Cook, East. T. 1810, MS. B.iyley, J., and Rasa. & Ry. 176.
 
 CHAP. IX. § IV.] DEFECTS CURED BY VERDICT, ETC. 114 
 
 the king." At the conclusion of the case for the prosecution, it was 
 objected that inasmuch as the felony was committed in the reign of the 
 late king, and the indictment was not preferred till William the Fourth 
 came to the throne, the indictment ought to have concluded " against 
 the peace of our lord the late king;" but upon a case reserved, the 
 judges held unanimously that the objoction was cured by the sta- 
 tute, (e) 
 
 But such a conclusion is still bad upon demurrer. An indictment Except up- 
 alleged a forgery to have been committed on the third of June, in the on demur- 
 seventh year of William the Fourth, but concluded " against the peace 
 of our lady the now queen," and upon demurrer it was held that the 
 indictment was bad for not concluding " against the peace of the late 
 king."(/) And if the indictment be good upon the face of it, but the 
 offence be proved to have been committed in a different reign from that 
 alleged, the prisoner must be acquitted. An indictment for uttering a 
 forged receipt, charged the offence to have been committed in the first 
 year of the reign of Queen Victoria, and concluded " against the peace 
 of our lady the now queen." The uttering was in the reign of William 
 the Fourth, and it was held that the variance was fatal, because there 
 was a distinct averment that the offence was against the peace of the 
 now queen, and the proof negatived that averment ; and as the indict- 
 ment was good on the face of it, the prisoner could not demur, and 
 therefore, the time to take the objection was when it appeared by the 
 evidence at what time the offence was committed. (#) 
 
 *The entire omission of u against the form of the statute" in an in- *;Q5 
 dictment for an offence created by statute, is not cured by this section. Omission of 
 The jury found the prisoner guilty on two counts for larceny in stealing contra for- 
 bank-notes, neither of which counts concluded "against the form of the 
 statute '" and it was objected, after verdict, that both counts were bad 
 in point of law, as the offence of stealing a bank-note was not an offence 
 at common law, but was created by statute ; and, upon a case, reserved, 
 the judges held the omission fatal, and not cured by this section, and 
 the judgment was arrested (A) 
 
 So where an indictment against a bankrupt for fraudulently concealing 
 part of his effects omitted the conclusion " against the form of the sta- 
 tute," and it was objected in arrest of judgment, that it was bad on 
 account of such omission; the judges, upon a case reserved held that 
 the omission was not cured by this section, and that it was fatal to the 
 indictment. (i\ 
 
 Objections to an indictment which fall within sec. 20 or sec. 21, must Objections 
 
 be taken bv demurrer, and it is too late to take them after a plea of not cured b 7 
 
 . . ss 20 and 
 
 guilty, though before verdict. The case for the prosecution, on an in- 21 ' must j )u 
 
 dictment for housebreaking and stealing money therein against the form taken on 
 
 of the statute, being closed, it was submitted that the indictment ought l emurrei ' 
 
 to have concluded contra formam statutorum ; that the prisoner was 
 
 in fact proceeded against under two statutes, 7 & 8 Geo. 4, c. 29, s. 
 
 12, and the 3 & 4 Wm. 4, c. 44, s. 2. For the prosecution it was urged 
 
 (e) Rex v. Chalmers, R. & M. C. C. R. 352. 5 C. & P. 331. 
 
 f/)Reg. v. Smith, 2 M. & Rob. 109, tried March 13, 1838. 
 
 Iff) Reg. v. Pringle, 2 M. & Rob. 276, Erskine, J. 
 
 (A) Reg. v. Pearson, R. & M. C. C. R. 313. 
 
 (i) Reg. v. Radclitfe, 2 Moo. C. C. R. 68. 2 Lew. 57.
 
 11-. 
 
 OF LARCENY. — INDICTMENT. 
 
 [BOOK IV. 
 
 What shall 
 not be suf- 
 ficient to 
 stay or 
 reverse 
 judgment 
 after ver- 
 dict. 
 
 *116 
 
 7 & 8 Geo. 
 4, c. 28, s. 
 14. Rule 
 for the in- 
 terpreta- 
 tion of all 
 criminal 
 statutes. 
 
 Trial 
 Larceny 
 must be 
 tried in the 
 proper 
 county. 
 But this 
 
 that the defect was cured by sec. 20, and that the objection ought to 
 have Wen raised by demurrer, and it was said that Parke, B., had at a 
 former assize ruled that no advantage could be taken of any defect cured 
 by the 20th and 21st sections, except by demurrer. Alderson, B., "I 
 am dearly of that opinion, and am glad to find it confirmed by the au- 
 thority of my brother Parke. The object of the legislature, as it is 
 stated in the preamble, was to discourage ' technical niceties, which in- 
 terrupt the punishment of offenders.' Here this objection is indeed 
 taken before verdict, but still too late, for it should have been taken by 
 demurrer." (J) 
 
 The 7 Geo. 4, c. 64, s. 21, enacts " that no judgment after verdict 
 upon any indictment or information for any felony or misdemeanor shall 
 be stayed or reversed for want of a similiter, nor by reason that the 
 jury process has been awarded to a wrong officer upon an insufficient 
 suggestion, nor for any misnomer or misdescription of the officer return- 
 ing such process, or of any of the jurors, nor because any person has 
 served upon the jury who has not been returned as a juror by the sheriff 
 or other officer ; and that where the offence charged has been created by 
 any statute, or subjected to a greater degree, of punishment, or excluded 
 from the benefit of clergy by any statute, the indictment or information 
 shall, after verdict, be held ^sufficient to warrant the punishment pre- 
 scribed by the statute, if it describe the offence in the words of the sta- 
 tute." 
 
 It will not now be an objection to an indictment, that the matters 
 alleged or the persons described in it, do not correspond in number or 
 gender with the descriptions in the statute upon which it is framed. 
 The 7 & 8 Geo. 4, c. 28, s. 14, enacts " that wherever this or any other 
 statute relating to any offence, whether punishable upon indictment or 
 summary conviction, in describing or referring to the offence or the 
 subject-matter on or with respect to which it shall be committed, or the 
 offender, or the party affected, or intended to be affected by the offence, 
 hath used or shall use words importing the singular number or the mas- 
 culine gender only, yet the statute shall be understood to include several 
 matters as well as one matter, and several persons as well as one person, 
 and females as well as males, and bodies corporate as well as individuals, 
 unless it be otherwise specially provided, or there be something in the 
 subject or context repugnant to such construction ; and wherever any 
 forfeiture or penalty is payable to a party aggrieved, it shall be payable 
 to a body corporate in every case where such body shall be the party 
 aggrieved." 
 
 Larceny, like every other offence, must regularly be tried in the same 
 county or jurisdiction in which it was committed; but it should be 
 noted, with respect to larceny, that the offence is considered as committed 
 in every county or jurisdiction into which the thief carries the goods ; 
 for the legal possession of them still remains in the true owner, and 
 
 (./ ) Reg. v. Law, 2 M. & Rob. 197. Alderson, B., is reported to have added, " Even if it 
 had been taken then, I should have recommended the grand jury to add the letter * to the 
 word statute. See 2 Hawk. P. C. c. 25, s. 98, where it is said to be the common practice at 
 tin- day while the grand jury who found the bill is before the court to amend it by their 
 consent in a matter of form, as the name or addition of a party. See also, Kel. 37. " A 
 party cannot after plea take any objections to any matter on the record which is aided by 
 verdict under the 7 Geo. 4, c. 64, s. 21." Reg. v. Ellis," 1 C. & Mars. 565, Patteson. J. 
 a Eng. Com. Law Reps. xli. 307.
 
 CHAP. IX. § IV.] TRIAL. — COUNTY. 116 
 
 every moment's continuance of the trespass and felony amounts to a offence is 
 
 J ,. i . .. / .\ • considered 
 
 new caption and asportation. (j)j as commit- 
 
 Therefore, if a man steal goods in the county of A. and carry them ted in every 
 into the county of B., he may be indicted for the larceny in the county ^"^7^° 
 of B. But if a compound larceny be committed in one county, and the thief car- 
 offender carry the property into another, though he may be convicted in nes , the 
 the latter county of simple larceny, he cannot be there convicted of the 
 compound larceny. Thus, where the prisoner robbed the mail of a letter, 
 either in Wiltshire or Berkshire, and brought it into Middlesex, and was 
 indicted capitally in Middlesex on the statutes 5 Geo. 3, c. 25, s. 7, and 
 7 Geo. 3, c. 40, the judges, upou a case reserved, held that he could not 
 be convicted capitally out of the county in which the letter was taken 
 from the mail. (A;) So robbery can only be tried in the county where 
 committed; the felony travels. (Z) The larceny may, however, in some 
 respects be considered as a new larceny, and as not necessarily including 
 all the qualities of the original larceny : therefore, if the thing stolen is 
 altered in character in the first county, so as to be no longer what it was 
 when stolen, an indictment in the second county must describe it accord- 
 ing to its altered, and not according to its original state. An indictment 
 was preferred in Hertfordshire for stealing four live tame turkeys ; and 
 it appeared that they were stolen alive in Cambridgeshire, killed there, 
 and carried dead into Hertfordshire ; and upon the point being saved, 
 the judges held that, though the carrying into Hertfordshire constituted 
 a larceny in that county, yet it was a *new larceny there, and a larceny *117 
 of dead turkeys, not of live ones.(m) So where the prisoner was indicted 
 for stealing "a brass furnace" in Herefordshire, and it was proved that 
 he stole the furnace in Radnorshire, broke it up there, and carried the 
 pieces into Herefordshire, it was held that the prisoner must be acquitted, 
 as he never had the "brass furnace," but merely certain pieces of brass, 
 in Herefordshire.^) But a considerable space of time intervening 
 between the theft in one county and the carrying the stolen property 
 into another county will not prevent the case from being considered as 
 a larceny in the county into which the property is carried. Upon the 
 4th of November the prisoner stole a note in Yorkshire, and upon the 
 4th of March he carried it into Durham : and he was indicted for steal- 
 ing it in Durham : and, upon a case reserved, the judges were clear that 
 
 (/) 3 Inst, 113. 1 Hale, 507, 508. 2 Hale, 163. 1 Hawk. P. C. c. 33, s. 52. 4 Bla Com. 
 304. 2 East, P. C. c. 16, s. 156, p. 771. 
 
 (k) Rex v. Thompson, Hil. T. 1795, MS. Bayley, J. (I) 1 Hale, 536. 
 
 (to) Rex v. Edwards and Walker, Hil. T. 1823, MS. Bayley, J. and Russ. & Ry. 497, ante, 
 p. 112. 
 
 («) Rex v. Halloway, a 1 C. & P. 127, Hullock, B. 
 
 | [State v. Douglass, 17 Maine, 193. The legal possession of goods stolen continues in 
 the owner, and every moment's continuance of the trespass and felony amounts in legal 
 consideration to a new caption and asportation. And, therefore, it was held that if goods 
 were stolen, before the revived statutes took effect, and were retained in the possession of 
 the thief until after they came into operation, he might be indicted and punished under 
 those statutes. State v. Somerville, 21 Maine, 14. 
 
 The rule that where property is stolen in one county and is carried by the thief into 
 another, he may be convicted of larceny in the latter county, applies as well to property 
 which is made the subject of larceny by statute, as to property which is the subject of 
 larceny by the common law. Commonwealth v. Rand, 7 Metcalf, 475. 
 
 To constitute larceny, it is not important the intention of the prisoner should be to convert 
 the property to his own uses in the county where it is taken. The State v. Ware, 10 Ala- 
 bama, 814.] 
 
 a Eng. Com. Law Reps. xi. 341. 
 
 Vol. it.— 9
 
 H7 0F LARCEXY. [BOOK IV. 
 
 the interval between the first taking and the carrying it into Durham, 
 did not prevent it from being a larceny in Durham, and that the con- 
 viction in that county was right. (o) 
 
 The following case was ruled upon the principle that the larceny in 
 pris mera the county into which a thief carries the goods may be in some respects 
 stole goods j> a c ]jft' creil t nature from the larceny in the county in which he first 
 tershire, took them. Four prisoners were indicted for stealing a variety of arti- 
 divided c ] es f hardware in the county of Worcester. It appeared upon the 
 thatYoun- evidence that the articles in question were made up into a package at 
 tv. miiI Birmingham, and dispatched by the canal from that place to Worces- 
 HeT their ter, to be forwarded down the river Severn to Bristol. The package 
 .shares into arrived safely at Worcester, where it was transferred from the canal 
 Worcester- ^^ ^ & DaT g e ca ]l e( j the Blutcher, in which it was to be conveyed a 
 their great part of the way down the Severn ; namely, to a place called 
 
 separate Brimspill, in the county of Gloucester. The prisoners were bargemen 
 itwaa ruled on board the Blutcher ; and during the voyage from Worcester to Brim- 
 that this spill, the course of which was nearly equal in the two counties of Wor- 
 joint larce- cester and Gloucester, being about thirty miles in each, the articles in 
 nv in Wor- question were stolen from the package; but they were not missed till 
 sepa- 6 ' the barge arrived at Brimspill. At that place the cargo was unloaded, 
 rate larce- and put on board another vessel, to be carried onwards to Bristol ; and 
 ™* 'jVthe Blutcher barge returned to Worcester navigated by the prisoners. 
 Suspicion having fallen upon them, they were apprehended in the 
 county of Worcester, when their respective bags were immediately 
 searched, and a portion of the stolen articles was found in each of 
 them. It was then proved, that upon their apprehension, and upon 
 being required to account for the possession of the articles, they stated 
 that the packages were broken by accident while on board the Blueher, 
 on the voyage from Worcester to Brimspill, when the articles fell out, 
 and they took them and made a division of them immediately. They 
 did not state at what part of the voyage this transaction took place ; but 
 it appeared probable that it took place in the county of Gloucester, and 
 there was no evidence to rebut that probability. Upon these facts the 
 learned judge ruled that the indictment could not be supported against 
 the prisoners as for a joint larceny in the county of Worcester, and put 
 *118 *the counsel for the prosecution to his election : who accordingly pro- 
 ceeded against one only of the prisoners, who was convicted and sen- 
 tenced to transportation. (A*) 
 
 if two per- But if two persons be guilty of a felonious taking: in one countv, and 
 
 sonsiointly <? ,1 , ^ . , .1, 
 
 in one one ot them alone carr y the property into another county, yet it the 
 
 county.and other afterwards concur with him in the second county in securing the 
 
 securing 11 P ossession > both may be jointly indicted in the second county. County 
 
 and Donovan laid a plan to get some coats from the prosecutrix under 
 
 !ou a n"ty ther P retence of bu y in g them. The prosecutrix had them in Surrey at a 
 they may public house ; the prisoners got her to leave them with Donovan whilst 
 
 (o) Rex v. Parkin, Mich. T. 1824, MS. Bayley, J., and R. & M. C. C. R. 45. 
 
 (p) This case would now fall within the 7 Geo. 4, c. 64, s. 13, post, s. 120. 
 
 (k) Rex v. Barnett, Smith, Burton, and Purser, cor. Holroyd, J.", Worcester Sum Ass. 1818. 
 Separate indictments were afterwards preferred against the three other prisoners, (as the 
 grand jury had not been discharged,) to which they pleaded guilty. The learned counsel 
 (Sir \\ m. Owen,) who was retained to defend them, inclined much to put in a plea of aut- 
 refoi* acjuu on their behalf; and only permitted them to plead guiltv. on the prosecutor un- 
 dertaking to recommend them strongly to mercy. And it should seem that such a plea 
 mght have succeeded. See Rex v. Dann, R. & M. C. C. R. 424. C. S. G.
 
 CHAP. IX. § IV.] TRIAL. — COUNTY. 118 
 
 she went with County, that he might get the money to pay for them ; | Je indicted 
 in her absence Donovan carried them into Middlesex, and County after- county 
 wards joined him there, and concurred in securing them. The indict- 
 ment was laid against both in Middlesex ; and upon a case reserved, 
 the judges were unanimous that as County was present aiding and 
 abetting in Surrey at the original larceny, his concurrence afterwards 
 in Middlesex, though after an interval, might be connected with the 
 original taking, and brought down as larceny to the subsequent posses- 
 sion in Middlesex. They therefore held the conviction right. U\\ 
 
 So if two jointly commit a larceny in one county, and one of them 
 carry the stolen goods into another county, the other still accompany- 
 ing him, without their ever being separated, they are both indictable in 
 either county ; the possession of one being the possession of both in 
 each of the counties, as long as they continue in company. (m\ 
 
 The prisoner must have the stolen property under his control in the The pro- 
 second county to render him liable to be indicted there, and it is not P* 31 ^ must 
 enough that he has the mere possession of it, he being in the custody prisoner's 
 of the constable who apprehended him. On an indictment for stealing free control 
 two geldings in Kent, the only evidence to support the charge of steal- cond^oun- 
 ing in Kent was, that when the prisoner was apprehended at Croydon, ty. 
 in Surrey, he said he had been at Dorking to fetch them, and that they 
 belonged to his brother, who lived at Bromley. The police officer 
 offered to go to Bromley. They took the horses, and went as far as 
 Beckenham church, when the prisoner said he had left a parcel at the 
 Black Horse, in some place in Kent. The police officer accordingly 
 went thither with him, each riding one of the horses; when they got 
 there the officer gave the horses to the ostler. The prisoner made no 
 inquiry for the parcel, but made his escape, and afterwards was again 
 apprehended in Surrey. And, on a case reserved, the judges were 
 unanimously of opinion that there was no evidence to be left to the 
 jury of stealing in Kent.(n) 
 
 *It should be further observed that there are some exceptions to the *H9 
 rule that a larceny is committed in every county or jurisdiction into Exceptions 
 which the thief carries the goods. For if the original taking be such '? * he F ule 
 
 , /»i i t • •<.!■., that a lar- 
 
 whereof the common law cannot take cognizance, as it the goods be ceny is 
 stolen at sea, the thief cannot be indicted for the larceny in any county commi tted 
 into which he may carry them.(o) countyTnto 
 
 So if a larceny be committed out of the kingdom, though within the which the 
 king's dominions, bringing the stolen goods into this kingdom will not ri ™ the' 
 make it larceny here. The prisoner stole a quantity of wearing apparel goods. 
 at St. Helier's in Jersey, and they were shortly afterwards found in 
 his possession in the county of Dorset ; upon a case reserved it was 
 held that this was not larceny in Dorsetshire, and that the case did not 
 fall within the 7 & 8 Geo. 4, c. 29, s. 76, as Jersey could not be con- 
 sidered as part of the united kingdom. (oo) So if a larceny be com- 
 mitted in France, the party cannot be tried in England, though he bring 
 the goods here.(p) 
 
 (I) Rex v. County. East. T. 1816, MS. Bayley, J. 
 
 (»«) Rex v. M'Don'agh, Carr. Supp. 2d edit. 23. 
 
 («) Rex v. Simmonds, R. & M. C. C. R. 408. 
 
 (o) 3 Inst. 113. 1 Hawk. P. C. c. 33, s. 52. 
 
 (oo) Rex v. Prowes, R. & M. C. R. 349. (p) Reg. v. Madge. a 9 C. & P. 29, Parke, B. 
 
 f {Commonwealth v. Dewitt, 10 Mass. Rep. 154, S. P.J 
 a Eng. Com. Law Reps, xxxiii. 23.
 
 11!' 
 
 OF LARCENY. 
 
 [BOOK IV. 
 
 Bxoeptions 
 : \s to Boot- 
 land ami 
 Ireland, 
 removed 
 by 7 a B 
 Geo. 4. c. 
 29, b. t6. 
 
 Stealing 
 fixtures. 
 
 *120 
 
 Offences 
 i-ommitted 
 a t sea. 
 
 A similar exception prevailed formerly where the original taking was 
 in Scotland or Ireland. And it appears to have been holden that a 
 thief who had stolen goods in Scotland could not be indicted in the 
 county of Cumberland, where he was taken with the goods.(g) But the 
 7 & 8 Geo. 4, c. 29, s. 76, enacts, « that if any person having stolen or 
 otherwise feloniously taken any chattel, money, valuable security, or 
 other property whatsoever in any one part of the United Kingdom, shall 
 afterwards have the same property in his possession in any other part 
 of the United Kingdom, he may be dealt with, indicted, tried, and pun- 
 ished for larceny or theft in that part of the United Kingdom where he 
 shall have such property, in the same manner as if he had actually 
 stolen or taken it in that part ; and if any person in any one part of 
 the United Kingdom shall receive or have any chattel, money, valuable 
 security, or other property whatsoever which shall have been stolen or 
 otherwise feloniously taken in any other part of the United Kingdom, 
 such person knowing the said property to have been stolen or otherwise 
 feloniously taken, he may be dealt with, indicted, tried, and punished 
 for such offence in that part of the United Kingdom where he shall so 
 receive or have the said property, in the same manner as if it had been 
 originally stolen or taken in that part."(r)"|' 
 
 We have seen that the stealing of things affixed to the freehold was 
 not larceny at common law,(s) and although it is made felony by the 
 7 & 8 Geo. 4, c. 29, s. 44, still the prisoner cannot be indicted in any 
 other county except the one in which the fixtures are first taken. The 
 prisoner was indicted at common law for stealing lead in Middlesex ; 
 the lead had been stolen from a church at Iver, in Buckinghamshire, 
 and the prisoner was found in possession of it at Southall, in Mid 
 a place within the jurisdiction of the Centra] Criminal Court, which 
 Iver was not ; and it was held *that the prisoner could not be convicted 
 within the jurisdiction of the Central Criminal Court. (>•>■) 
 
 By the 7 & 8 Geo. 4, c. 29, s. 78, "where any felony or misde- 
 meanor punishable under this act shall be committed within the juris- 
 
 (q) Res v. Anderson and others, Carlisle Sum. Ass. 1763, and before the judges. Nov. 
 1763, 2 East, P. C. c. 16, s. 156, p. 772. 
 
 (r) The statutes 45 Geo. 3, c. 92, and 54 Geo. 3, c. 186, make provision for the more easy 
 apprehending and bringing to trial offenders escaping from one part of the United Kingdom 
 to the other, and from one county to another. 
 
 (a) Ante, p. 62. 
 
 («*) Rex v. Miller, 1 7 C. & P. 665, Park, J. A.| J., Alderson, B. and Patteson, J. The 44th 
 section does not make the stealing fixtures a larceny, it only provides that the "offender 
 shall be guilty of felony," and punished "in the same manner as in the case of simple 
 larceny." <C. S. G. 
 
 f {It is held in New York and North Carolina, that stealing property in another State and 
 bringing it there, is not there punishable as larceny. 2 Johns. 477, People i>. Gardner. Ibid. 
 679, People v. Schenck. 1 Hayw. 100, State v. Brown. 
 
 Seem, in Massachusetts and Connecticut, 1 Mass. Rep. 116, Commonwealth v. Cullins. 1 
 Root, 69, Rex v. Peas. 3 Conn. Rep. 185, State v. Ellis. 
 
 And a person receiving in Massachusetts goods stolen in another State, knowing them to 
 be stolen, may be there punished as an accessory after the fact. 2 Mass. Rep. 14, Common- 
 wealth v. Andrews. 
 
 See 5 Mason. 256, United States v. Davis.} 
 
 [One who feloniously takes property in the province of Canada and brings it into Ver- 
 mont, is guilty of larceny, and may be there tried and convicted of the offence State v 
 Bartlett, 11 Vermont, 650. 
 
 A person having possession in Ohio of property which he had stolen in another State. 
 may be there convicted of larceny. Hamilton v. The State, 11 Ohio 435.1 
 a Eng. Com. Law Reps, xxxii. 679.
 
 CHAP. IX. § IV.] TRIAL. — COUNTY. 12<i 
 
 diction of the Admiralty of England, the same shall be dealt with, in- Offi na 
 quired of, tried, and determined in the same manner as any other boundaries 
 felony or misdemeanor committed within that jurisdiction." ofcountiee, 
 
 Some general provisions have also been made with respect to offences °* ''" r " 
 committed near the boundaries of counties, and during a journey or voy- journey 
 a<re through several counties. through 
 
 The 7 Geo. 4, c. 04, s. 12, fur the more effectual prosecution of counties, 
 offences committed near the boundaries of counties, or partly in one 7 Geo 4; t . 
 county and partly in another, enacts, << that where any felony or mis- 04, s. 12. 
 demeanor shall be committed on the boundary or boundaries of two or co ^7tte(l 
 more counties, or within the distance of five hundred yards of any such on bound- 
 boundary or boundaries, or shall be bet^un in one county and completed anes of 
 i o • -i i. i i • i • counties 
 
 in another, every such felony or misdemeanor may be dealt with, in- may be 
 
 quired of, tried, determined, and punished in any of the said counties, ***** in 
 in the same manner as if it had been actually and wholly committed eountv . 
 therein. "(/) 
 
 We have seen that the provisions of this section do not apply to pro- 
 secutions in limited jurisdictions, but only to county boundaries, and to 
 county prosecutions, (w) 
 
 The 7 Geo. 4, c. 64, s. 12, where an offence has been committed 
 within 500 yards of the boundary of a county, gives the prosecutor an 
 option of laying and trying the offence in either county, but does not 
 enable him to lay it in one county and try it in another. Where, there- 
 fore, an indictment found at the Quarter Sessions, for the borough of 
 Stamford, laid an offence in the parish of M., in the county of N., and 
 being removed by certiorari a venire was awarded into L., and the 
 defendant found guilty at the assizes for that county, judgment was 
 arrested, (mm) 
 
 It may be observed that an important alteration has recently been 
 made in the boundaries of some counties by the Boundary Act, 2 & 3 
 Wm. 4, c. 74, and the Municipal Keform Act, 5 & 6 Wm. 4, c. 76; 
 so that if a felony be now committed in that part of a county of a town; 
 which has been added to it by the Boundary Act and the Municipal 
 Keform Act, it is triable within the county of the town. The prisoner 
 was indicted for wounding with intent to do grievous bodily harm ; the 
 offence was committed at a place which was added to the borough of 
 Haverfordwest, which is a county of itself, by the Boundary Act, and 
 declared by the Municipal Reform Act to be part of the borough, the 
 place in question not having been within the borough before the pass- 
 ing of those acts; and it was held that the prisoner might be tried by 
 a jury of the borough. (v} 
 
 By the 7 Geo. 4, c. 64, s. 13, " where any felony or misdemeanor Offences 
 shall be committed on any person, or on or in respect of any property d „™™g * 
 in or upon any coach, wagon, cart, or other carriage whatever employed journey or 
 in any journey, or shall be committed on any person, or on or in re-™^ fe 
 spect of any property on board any vessel whatever employed on any tried in 
 voyage or journey upon any navigable river, canal, or inland naviga- ^y county 
 tion, such felony or misdemeanor may be dealt with, inquired of, tried, wn ich the 
 
 (t) See Rex v. Ruck, MS., C. S. G., ante, vol. 1, p. 827. 
 
 (m) Rex v. Welsh, R. & M. C. C. R. 175, ante, vol. 1, p. 550. 
 
 \uu) Reg. v. Mitchell, 2 G. & Dav. 274. 
 
 (v) Rex v Piller," 7 C. & P. 337, Coleridge, J. In Rex v. the Justices of Gloucestershire,*' 
 4 Ad. & E. 689, it was held that the effect of these statutes was to transfer the parts entirely 
 and for all purposes out of the one county into the other. 
 
 a Eng. Com. Law Reps. xxii. 532. b lb. xxxi. 169.
 
 120 OF LARCENY. [BOOK IV. 
 
 coach, Ac, determined, and punished in any county, through any part whereof 
 such coach, wagon, cart, carriage, *or vessel shall have passed, in the 
 course of the journey or voyage during which such felony or misde- 
 meanor shall have been committed, in the same manner as if it had 
 been aotually committed in such county; and in all cases where the 
 Bide, centre, or other part of any highway, or the side, bank, centre, or 
 Other part of any such river, canal, or navigation shall constitute the 
 boundary of any two counties, such felony or misdemeanor may be 
 dealt with, inquired of, tried, determined and punished in either of the 
 said counties, through or adjoining to, or by the boundary of any part 
 whereof such coach, wagon, cart, carriage, or vessel shall have passed, 
 in the course of the journey or voyage during which such felony or 
 misdemeanor shall have been committed, in the same manner, as if it 
 had been actually committed in such county." 
 Larceny on To bring a case within this section, in order to maintain an indict- 
 i coach, ment in a county other than that in which the offence was committed, 
 it must be proved that the offence was committed " in or upon the 
 coach," &c. The prisoner had been held to bail to appear at the Cum- 
 berland assizes, to answer the charge of larceny committed on a journey. 
 He had acted as guard of a coach from Penrith in the county of Cum- 
 berland to Kendal in Westmoreland, and was entrusted with a banker's 
 parcel, containing bank-notes and two sovereigns : on changing horses at 
 some distance from Penrith, he carried the parcel to a privy, and while 
 there took out of it the sovereigns: and Parke, B., held that as the act 
 of stealing was not " in or upon the coach," the case was not within the 
 statute, and the felony having been committed in Westmoreland, the 
 indictment ought to be preferred in that county.(wA 
 Justices The 2 & 3 Vict. c. 82, s. 1, reciting, that " the administration of 
 
 may com- i us tice is hindered bv the distance of divers detached parts of counties 
 
 Hilt priSO- j 
 
 ners from in England and Wales from the body of the counties to which they 
 detached severally belong, and wherein the justices of the peace having jurisdic- 
 coontiea ^ion in such detached parts for the most part do dwell," enacts, that 
 locally in- after the 26th of August, 1839, "it shall be lawful for any justice or 
 thai, ooun _ justices of the peace acting for any county to act as a justice or justices 
 ty, and of the peace in all things whatsoever concerning or in any wise relating 
 nTrs inay° to an y detached P ar t of any other county, which is surrounded in whole 
 be tried in or in part by the county for which such justice or justices acts or act; 
 rounding an<i ttat a11 acts of sucn J usti ce or justices of the peace, and of any con- 
 county, stable or other officer in obedience thereto, shall be as good, and all 
 offenders in such detached part may be committed for trial, tried, con- 
 victed and sentenced, and judgment and execution may be had upon 
 them, in like manner as if such detached parts were to all intents and 
 purposes part of the county for which such justice or justices acts or 
 act ; and all constables or other officers of such detached parts are here- 
 by required to obey the warrants, orders, and acts of such justice or 
 justices, and to perform their several duties in respect thereof, under 
 the pains and penalties to which any constable or other officer may be 
 liable for a neglect of duty." 
 
 By sec. 3, « the word ' county' shall be taken to mean and include 
 county, riding, division, and parts of a county having a separate com- 
 mission of the peace. "(x\ 
 
 (rr) Sharp's case, 2 Lew. 233. 
 
 (x) Sec. 2, provides for payment of expenses of prosecutions by the county to which the 
 detached part belongs.
 
 CHAP. IX. § IV.] TRIAL. — COUNTY. 121 
 
 *It has been held that the grand jury of the county, which wholly *122 
 surrounds a detached part of another county, may find an indictment T ,ie grand 
 for an offence committed in such detached part, and that the prisoner 8 ^ ound _ 
 may be tried by a jury of such surrounding county. The prisoner was ing county 
 indicted in Dorsetshire for larceny in a parish of Somersetshire, en- j^ fo^jL* 
 tirely detached from it, and surrounded in whole by Dorsetshire. Heofi'ence 
 had been committed by a Dorsetshire magistrate to the gaol of that f oinuiltte, | 
 county. The indictment laid the offence to have been committed in the county. 
 parish of Holwell, the same being a detached part of the county of Som- 
 erset, surrounded in whole by the county of Dorset; the venue in the 
 margin was Dorset. The indictment did not state that the prisoner was 
 in Dorsetshire, or that he was committed by a Dorsetshire magistrate. 
 Fitzherbert objected, first, that this should have appeared on the face 
 of the indictment ; and, secondly, that the grand jury of Dorsetshire 
 could not find the bill, as there were no words in the statute giving any 
 power to find the bill ; and he referred to the 60 Geo. 3, c. 4, the 7 Geo. 
 4, c. 64, s. 12, and the 4 & 5 Win. 4, c. 36, to show that the word 
 " try" in a statute did not include the finding of a bill by the jury; but 
 Rolfe, B., overruled the objection, saying, that it would strike the act 
 out of the statute-book. (y) 
 
 Some evidence is requisite as to the loss of the property, and where Proof ofthe 
 it appears that it was last in the possession of a person, either that per- 1< j' ss t , of ! the 
 son should be called, or some evidence given to show the loss, for other- 
 wise it may be that it has been delivered by that person to the prisoner, 
 or to some one else from whom the prisoner may have received it, or, 
 indeed, it may have been lost. Upon an indictment for stealing a 
 horse, the prosecutor proved that he had put the horse to be agisted 
 with a person who resided twelve miles distant from his own residence, 
 and, in consequence of hearing of its loss from that person, he went to 
 the field where the horse had been put, and discovered that it was gone. 
 Gurney, B., "I think you should prove the loss more distinctly, because 
 non constat, but the prisoners might have obtained possession of the 
 horse honestly. I do not see how we can get at that without the per- 
 son with whom it was put to agist, or his servant. It is perfectly con- 
 sistent with what has been proved that the horse might have got out of 
 this person's possession in some other way, and not by felony.'Vz) So 
 where, on a similar indictment, it appeared that a servant was sent to 
 turn out a horse in a field, and was sent to fetch it up again the next 
 morning, when it was missed, but the servant was not called as a wit- 
 ness, and the prisoner was found in possession of the horse the *next *123 
 day ; it was held, that there was not sufficient proof given of the loss ; 
 and that the servant ought to have been called to prove what he did 
 
 (y) Reg. v. Loader, Ex relatione Mr. Fitzherbet. S. C. Talf. Dick. Q. S. 188, where a 
 quxre. is added to the decision by the learned editor ; but with all respect to his opinion, it 
 should seem that the decision is perfectly correct, as the object of the act clearly was to 
 render prisoners triable in the surrounding county, and to prevent expense, and the effect of 
 a contrary decision would be that they never could be so tried in such county, except where 
 an indictment had been found by a grand jury of the county, to which the detached part 
 belonged ; which would greatly add both to the inconvenience and expense, which it was 
 intended to avoid. It is difficult also to see how it can be correctly said that a person is 
 "tried in such manner as if such detached parts were to all intents and purposes part of 
 the county for which such justice acts," unless he is tried on an indictment found by the 
 grand jury of such county; for that is the mode in which he would be tried if the part 
 were to all intents part of that county. C. S. G. 
 
 (z) Rex v. Yend, a G C. & P. 1 7(3, and MSS., C. S. G. 
 
 11 Eng. Com. Law Reps. xxv. 341.
 
 [23 OF LARCENY. [BOOK IV. 
 
 with the horse, aa for anything that appeared to the contrary, the ser- 
 vant might have delivered the horse to the prisoner.(a) 
 Fv IdwM With regard to the evidence in cases of larceny, it generally consists, 
 Rule that /unless the prisoner is detected in the fact,) of proof of the felony hav- 
 "'!! -n '.'r,'. in - hccn committed, and of the goods stolen having been found shortly 
 pert? is afterwards in the possession of the prisoner; and upon such proof the 
 found in genera] ru l will attach, that wherever the property of one man, which 
 has been taken from him without his knowledge or consent, is found 
 parson, it is U p 0n ano ther, it is incumbent on that other to prove how he came by 
 on°8uch it ; otherwise the presumption is, that he obtained it feloniously. (&) This 
 person to ru i e? founded on the necessity of the case, which cannot admit offences 
 be cameby ot ^ xls kind to g° unpunished, wherever positive and direct evidence is 
 wanting of the guilt of the party, will probably seldom lead to a wrong 
 conclusion if due attention be paid to the particular circumstances, by 
 which such presumption may be weakened, or entirely destroyed. (c) 
 Amongst the most prominent of these will be the length of time which 
 elapsed between the loss of the property and the finding of it in the pos- 
 session of the prisoner: the probability of the prisoner's having been, at 
 the time of the theft, near the place from which the property was 
 taken ; and more especially the conduct of the prisoner from first to last, 
 with respect to the property found in his possession, and the charge 
 brought against him of having obtained it by stealing. 
 
 It has been held that the possession of stolen property sixteen 
 months, ((7) or three inonths(e) after it was lost, is not such a recent 
 possession as to put the prisoner upon showing how he came by it, 
 unless there be evidence of something more than the mere fact of pos- 
 session at such a distance of time after the loss."}" 
 
 (a) Rex v. Fellows, MSS., C. S. G. Stafford Sum. Ass. 1830, Bosanquet, J. 
 (6) 2 East, P. C. c. 16, s. 93, p. 656, Phil, on Evid. 168, 7 edit. 
 
 (c) That it will sometimes, like every other rule of human institution, fail to guide rightly 
 must he admitted. Lord Hale mentions a case, which he says was tried before a very learned 
 and wary judge, where a man was condemned and executed for horse-stealing, upon proof 
 of his having been apprehended with the horse shortly after it was stolen ; and afterwards 
 it came out that the real thief being closely pursued, had overtaken the poor man upon the 
 road, and asked him to walk the horse for him while he turned aside on a necessary occasion, 
 upon which the thief made his escape, and the man was apprehended with the horse. 2 
 Hale, 289. And it is probable that, upon this rule, receivers of stolen goods are frequently 
 convicted of stealing them. 
 
 (d) Rex v. ,» 2 C. & P. 459, Bayley, J. It is not stated what the goods were. 
 
 (e) Rex v. Adams," 3 C. & P. 600, Parke, J. The goods found in the possession of the 
 prisoner were an axe, a saw, and a mattock. 
 
 f [Stale v. Merrick, 19 Maine, 398. The possession of stolen goods is a presumption of 
 guilt and this presumption is not rebutted by the lapse of two months between the theft 
 and finding. State v. Bennett, 3 Brevard, 514. 
 
 The finding of a thing stolen in the possession of the accused, affords evidence to some 
 extent that he took it; which evidence, ordinarily is stronger or weaker in proportion to 
 the length of time intervening between the stealing and the finding. The State v. Williams, 
 9 Iredell. 14n. 
 
 The fact that a portion of the chattels were found upon the premises of the accused 
 
 eighteen months after they were stolen, unaccompanied by other suspicious circumstances, 
 
 prtma facie evidence that the accused was guilty of larceny. Warren v. The State, 
 
 1 Iowa Rep. 106. ' 
 
 In a prosecution for larceny, the fact that the stolen property is found upon the person of 
 the defendant can always be given in evidence against him; but the strength of the pre- 
 sumption which it raises against the accused depends upon all the circumstances surround- 
 ing the case. Bennett v. The State, 1 Swan, 411. 
 
 Possession of stolen property to raise a presumption of guilt, must be recently after the 
 theft. The State v. Floyd, lo Missouri, 349.] 
 
 a Eng. Cora. Law Reps. xxii. 216. b h, xiv 4T4
 
 CHAP. IX. § IV.] EVIDENCE. 123 
 
 Where a prisoner was indicted for stealing two sacks, which had been 
 found about twenty days after they were missed, Coleridge, J., told the 
 jury, "If I was now to lose my watch, and in a few minutes it was to be 
 found on the person of one of you, it would afford the strongest ground 
 for presuming that you had stolen it ; but if a month hence it were to 
 be found in your possession, the presumption would be greatly weak- 
 ened, because stolen property usually passes through many hands. "(/) 
 
 As some articles pass from hand to hand much more readily than 
 others, the nature of the articles ought to be taken into Consideration *124 
 by the jury in determining whether the possession is so recent as to 
 lead to the conclusion that the prisoner stole them. Upon an indict- 
 ment for stealing two ends of woollen cloth, which were about twenty 
 yards each in length ; it appeared that the cloth was missed on the 23d 
 of January, when it was in an unfinished state, and that part of it was 
 left on the 21st of March by the prisoner at the house of one Porter, 
 and that on the 30th of the same month, the prisoner sent the residue to 
 be shorn. It was submitted that the length of time since the loss was 
 so great that no presumption of guilt was raised against the prisoner by 
 the possession of it. Patteson, J., " I think the length of time is to be 
 considered with reference to the nature of the articles which are stolen. 
 If they are such as to pass from hand to hand readily, two months would 
 be a long time, but here that is not so: it is a question to the jury."(^") 
 
 Cases frequently occur where property is found in a house in which 
 several persons reside, any of whom might have stolen it : upon such 
 cases Mr. Starkie observes, "it is also to be carefully observed, that the 
 mere finding of stolen goods in the house of the prisoner where there 
 are inmates of the house capable of stealing the property, is insufficient 
 evidence to prove a possession by the prisoner."(<7)-j- 
 
 Where several chattels are lost, and there is no evidence to show that Where 
 they were stolen at different times, they may have been all stolen at ticles are " 
 one time, the prisoner may be proved to have had some of them in his lost and 
 possession at one time and some at another, although it be probable ^ a ^ ™*^ 
 that they were stolen at different times. On an indictment for stealing taken at 
 a quantity of robes, silk, and other articles, it appeared that the prisoner j^ e sam ? 
 was the servant of the prosecutors, and nothing was missed till justdene'eof 
 before his apprehension, nor had he been seen to take anything out of the loss ° f 
 the house, but after he was apprehended, he admitted having taken a g i ve n. 
 
 (/) Cockin's case, 2 Lew. 235. 
 
 (ff) Eex v. Partridge,* 7 C. & P. 551. It may frequently be very important to consider 
 the number of articles stolen, and the number found on the prisoner, as it should seem that 
 in proportion as the number found is large is the probability increased that he was the thief. 
 C. S. G. 
 
 (g) 2 Stark. Evid. 614, note (g), 3d edit. It must be observed, however, that the learned 
 judges have generally considered such evidence as sufficient to call upon the occupier of 
 the house to account for the possession; on the ground that the house being in his occupa- 
 tion the property was found in his possession ; and there seems good reason for this course, 
 because, as master of the house he must be presumed to have the control over it, and to 
 permit nothing to come into it without his sanction ; at the same time it is for the jury 
 under all the circumstances, to say whether the master stole the property, or any of the 
 other inmates of the house. C. S. G. 
 
 f [On a trial for larceny in a hotel, the commonwealth may prove the presence of the 
 prisoner in the hotel on the night when the larceny was committed, and his acts and con- 
 duct there, and the circumstances attending his arrest, as a part of the whole transaction ; 
 though these acts amount to a felony attempted on another person in another part of the 
 building. Burr's case, 4 Grattan, 534.] 
 
 6 Eng. Com. Law Reps, xxxii. 627.
 
 \-l\ 
 
 OF LARCENY. 
 
 [BOOK IV. 
 
 125 
 
 mal variety of things, some of which he had sent to one Smith; the 
 r.roMvutor swore that he had no doubt that the articles were taken at 
 different times, and it appeared probable that that was the case from the 
 neal variety of the articles, and from its appearing that Smith had been 
 in the habit of pledging several articles, at different times, during a 
 period of between four and five months, Gaselee, J., held that he could 
 qoI compel the prosecutors to elect what set of goods they relied upon; 
 and that though it was probable the goods were taken at different times, 
 it was not impossible that they had been all taken at one time; and, on 
 a ease reserved, the judges were unanimously of opinion that the learned 
 judge was right in not requiring an ^election to be made.(/t) So where 
 seventy sheep were put on Thornley Common on the 18th of June, and 
 were not missed till November, and the prisoner was in possession of 
 four of those sheep in October, and of nineteen others of them on the 
 23d of November, Bayley, J., allowed evidence of both to be given. (7) 
 But where two horses were stolen from different persons at different 
 times, but were taken at the same time by the prisoner into a different 
 county, and it was submitted that the felonies were distinct, and the 
 prosecutor should elect on which he would proceed; Littledale, J., said, 
 " If you could confine your evidence entirely to a single felony in this 
 county, you need not elect; but this you cannot do: for you must prove 
 that the horses were originally stolen in another county. The possession 
 of stolen property soon after a robbery is not itself a felony, though it 
 raises a presumption that the possessor is the thief; it refers to the 
 original taking with all its circumstances. I think, therefore, that you 
 must, in this instance, make your election. "(J) 
 
 Where all that can be proved concerning property found in the pos- 
 session of a supposed thief is that it is of the same kind as that which 
 has been lost, this will not in general be deemed sufficient evidence of 
 its having been feloniously obtained, and some proof of identity will be 
 required. But where the fact is very recent, and the property consists 
 of articles, the identity of which is not capable of strict proof, from the 
 nature of them, the conclusion may be drawn that the property is the 
 same, unless the prisoner can prove the contrary. (/.•) Thus, if a man 
 be found coming out of another's barn, and upon his being searched 
 corn be found upon him, of the same kind as that in the barn, the evi- 
 dence of the guilt will be pregnant; and cases have frequently occurred 
 where persons employed in carrying sugar and other articles from 
 ships and wharfs have been convicted of larceny, upon evidence that 
 they were detected with property of the same kind upon them, re- 
 cently upon coming from such places, although the identity of the 
 property, as belonging to such and such persons, could no otherwise be 
 proved. (7) 
 
 Evidence that the property stolen is of some value will also be mate- 
 rial, as if it be of no value, it is not a subject in respect of which lar- 
 ceny can be committed, (m) But property may be of value to the 
 owner, though not of general value. Thus, where the indictment was 
 for stealing pieces of paper with available stamps thereon, and it ap- 
 
 (A) Rex v. Dunn, R. & M. C. C. R. 146, and see Rex v. Hunt. Hindmareh's Supp. to Dea- 
 an's Cr. L. 1583. Rose. C. E. 217. 
 (0 Rex v. Dewhirst, 2 Stark. Ev. 614, 3d edit. 
 < / Rex v. Smith, R. & M. N. P. R. 295. 
 
 - East, P. C. C. 16, s. 39, p. 657. (/) l d . ibid. 
 
 (m) Phipoe's case, ante, p. 79. Com. Dig. Ind. G., 2 Stark, dim. Plead. 450. 
 
 Identity 
 of the 
 
 property. 
 
 Value 
 of the 
 property.
 
 CHAP. IX. § IV.] EVIDENCE. 125 
 
 peared that the pieces of paper were re-issuable notes of a country bank 
 which had been paid, and were in transitu, for the purpose of being 
 re-issued, it was decided that they were the valuable property of the 
 country bankers, (though not promissory notes within 2 Geo. 2, c. 25) 
 and subjects of larceny. (n)f 
 
 So a memorandum of a sum of money which a person owed the pro- 
 secutor, has been held to be the subject of robbery, (o) But although 
 *the chattel must be of some value, it need not be of the value of some *126 
 known coin, as of a farthing at least. Upon an indictment for receiv- Property 
 ing nine pieces of paper, value two shillings, it appeared that the papers ^"of the 
 had been torn out of a book kept by a coalmeter ; the book was a cer- value of 
 tificate book, which the coalnieters received when they went on board f ome 
 
 ■i. . •/» • t«. i known 
 
 ships ; the certificates were those given to different merchants ; they coin, 
 are not signed as they are in the book ; there are blanks left for the 
 name of the ship from which the coals are delivered, the quantity, the 
 barge, the number of it, the lighterman, and to whose account they are 
 delivered, and the date of the delivery : it is signed by the meter. One 
 only of these pieces of paper were traced to the prisoner. It was sub- 
 mitted that it was not of any value so as to sustain an indictment ; and 
 that it must be of the value of some coin known to the law. Parke, B., 
 " There is no doubt it must be of some value, and it is of some value, 
 but it is quite new to me that it must be of the value of some coined 
 money of a farthing at least." " It must be assigned of some value, 
 you say of the value of some known coin, but I do not know any au- 
 thority for that, I do not know that it could not be stated as of the 
 value of a hundredth part of a farthing. Show me some case where 
 the indictment has failed on the ground of the article being value- 
 less."^) 
 
 With respect to those larcenies which are aggravated by the amount The value 
 of the property stolen, as in the case of stealing in a dwelling-house to must be of 
 the value of bl., it should appear that the property, the value of which i en at the 
 is taken in computation, was all stolen at the same time. For though same time - 
 in former times, when the distinction between grand and petty larceny 
 existed, it appears to have been the received opinion in the older books, 
 that a man stealing at several times, several parcels of goods, each 
 under the value of twelve pence, but amounting in the whole to more, 
 from the same person, might have been convicted of grand larceny;(<?) 
 the severity of that rule became obsolete ; and it was afterwards settled 
 that the value of the property stolen must not only be, in the whole, 
 of such an amount as the law required to constitute grand larceny, but 
 
 (n) Clarke's case, 2 Leach, 1036. Ante, p. 74. 
 
 (o) Rex v. Bingley, a 5 C. & P. 602, Gurney, B. 
 
 (p) Rex v. Morris, b 9 C. & P. 349. It was afterwards shown that in fact the paper was of 
 more than a farthing's value, therefore the point did not arise, but the very learned judge 
 said, "I must be understood for one as not considering that it is necessary to show that the 
 article must be of the value of some known coin. It must be of some value no doubt." 
 
 (q) See 1 Hale, 531, and the authorities there cited. 
 
 f [In an indictment charging the larceny of promissory notes, omission to charge the 
 value of the notes is a material defect. Wilson v. The State, 1 Porter, 118. 
 
 In order to render bonds, notes, &c, the subject of larceny, they must be at the time of the 
 taking legally valid and subsisting securities for the payment of money or some specific 
 article of value. Ibid. 
 
 A verdict for larceny should fix the value of the property stolen. Ray v. The State, 1 
 Iowa Rep. 316 ] 
 
 a Eng. Com. Law Reps. xxiv. 474. b lb. xxxiii. 148.
 
 L26 
 
 OF LARCENY. [BOOK IV. 
 
 that the Stealing must be to that amount atone and the same particular 
 dm,. For, in fact, where things are stolen at different times, there 
 a, v different acts of stealing; and no number of petit larcenies would 
 amount to a grand larceny, nor any number of grand larcenies, where 
 it depended on the value of the property stolen, to a capital offence.(r) 
 Bui it seems that if the property of several persons lying together in 
 one bundle or chest upon the same table, or even in the same house, 
 be stolen together at one time, the value of the whole may be put to- 
 gether, for such stealing is one entire felony.(s) And we have seen 
 that where a servant steals several articles at different times, but car- 
 ries them out of his master's house at the same time, he may be con- 
 victed of stealing in a dwelling-house to the value of bl., if all the arti- 
 *127 cles amount *to that value, although he never took to that amount at 
 any one time.(i) 
 Goods not In a case where the prisoner was indicted upon the 12 Anne, c. 7, 
 produced. / now repealed) for stealing in a dwelling-house to the amount of forty 
 shilliugs, and the goods found were not proved to amount to forty shil- 
 lings; the court left it to the jury to consider, upon the facts of the 
 case, whether the prisoner had not stolen the rest of the things which 
 the prosecutor lost, as well as those which had been produced. (?<) 
 Verdict. A prisoner indicted for larceny cannot be convicted merely of a tres- 
 
 pass, for though larceny, as has been before stated, includes a trespass, 
 yet if, upon an indictment, the taking appear not to be felonious, 
 though amounting to a trespass, the defendant is entitled to a general 
 acquittal, (v) 
 The taking It should be observed, that although to some purpose the taking of 
 of each divers articles at one and the same time may be considered as one entire 
 separate felony,(?t) yet to other purposes the taking of each article has been held 
 felony. to constitute a distinct felony. Thus, if two articles are stolen at the 
 same time, and the prisoner is tried and acquitted or convicted of steal- 
 ing one of them, he may be indicted afterwards, and convicted of steal- 
 ing the other, and no plea of autrefois convict or autrefois acquit can 
 be supported; for " it hath happened that a man acquitted for stealing 
 the horse hath yet been arraigned and convicted for stealing the saddle, 
 though both were done at the same time."(x) 
 
 Where, however, the prisoner has been already convicted and sen- 
 tenced for stealing one article, it is not usual to indict him again for 
 stealing another at the same time, and if he be so indicted the court in 
 its discretion may recommend the second indictment to be abandoned. 
 The prisoner, who was undergoing his sentence for stealing one pig, 
 was indicted for stealing another pig : both were stolen at the same 
 time, and from the same person ; it was admitted by the counsel for the 
 prisoner that the plea of autrefois convict could not be maintained, but 
 the prisoner's case was submitted to the merciful consideration of the 
 
 (r) 1 Hawk. P. C. c. 33, s. 50, 51. 2 East, P. C. c. 16, s. 136, p. 740. Petrie's case, 1 
 Leach, 294. Farley's case, cor. Ashurst, J., Surrey Lent Ass. 1786. 2 East, P. C. ibid. 
 
 (») 1 Hale, 531. 2 East, P. C. c. 16, s. 136, p. 740, 741. 
 
 (t) Rex v. Jones, a 4 C. & P. 217, ante, vol. 1, p. 857. 
 
 (u) Hamilton's case, 1 Leach, 348, ante, vol. 1, p. 857. The jurv found the prisoner 
 guilty of stealing the value of forty shillings. 
 
 (v) Staundf. 24 b. Kel. 29, Schofield's case, Cald. 401. 2 East, P C c 15 s 134 P 737, 
 and s. 159, p. 778. 
 
 (it) Supra, note («). ( z ) 2 Hale, 245. 
 
 a Eng. Com. Law Reps. xix. 352. 

 
 CHAP. IX. § IV.] PUNISHMENT. 127 
 
 court. Cresswell, J., "I remember a case before Baron Wood, where a 
 prisoner was tried and acquitted of uttering a forged note, and after- 
 wards indicted for uttering another forged note, which he had uttered 
 at the same time as the former note, and he held that it might be 
 done ; but here the prisoner has been convicted, and is suffering the 
 punishment for stealing the one pig, and therefore, I think it would be 
 as well not to proceed with the present indictment." On which the 
 counsel for the prosecution offered no evidence, and the prisoner was 
 acquitted.^)")" 
 
 *By the 7 & 8 Geo. 4, c. 28, s. 5, " where any person shall be in- *128 
 dieted of treason or felony, the jury empannelled to try such person Jury not to 
 shall not be charged to inquire concerning his lands, tenements, or in q uir ? ot 
 
 i iiin-ip i /■ i >) the priso- 
 
 goods, nor whether he fled tor such treason or felony. ner's lands, 
 
 For the punishment of simple larceny, the 7 & 8 Geo. 4, c. 29, s. 3, &0 - 
 enacts, " that every person convicted of simple larceny, or of any felony p U nish- 
 hereby made punishable like simple larceny, shall, (except in the cases ment for 
 hereinafter otherwise provided for,) be liable, at the discretion of the ce™y. e ar 
 court, to be transported beyond the seas for the term of seven years, or 
 to be imprisoned for any term not exceeding two years ; and, if a male, 
 to be once, twice, or thrice publicly or privately whipped, (if the court 
 shall so think fit,) in addition to such imprisonment." 
 
 By sec. 4, " where any person shall be convicted of any felony or The Court 
 misdemeanor punishable under this act, for which imprisonment may may for all 
 be awarded, it shall be lawful for the court to sentence the offender to ^. ce !, . 
 
 • • i i • • • within this 
 
 be imprisoned, or to be imprisoned and kept to hard labour, in the com- act order 
 mon gaol or house of correction, and also to direct that the offender shall hi »*d labour 
 be kept in solitary confinement,^^) for the whole or any portion or confine- 
 portions of such imprisonment, or of such imprisonment with hard labour, men t. 
 as to the court in its discretion shall seem meet." 
 
 By sec. 61, " in the case of every felony punishable under this act, Principals 
 every principal in the second degree, and every accesssory before the in the se - 
 fact, shall be punishable with death or otherwise, in the same manner gr e e an ~<j 
 as the principal in the first degree is by this act punishable ; and every accessories. 
 accessory after the fact to any felony punishable under this act, except 
 only a receiver of stolen property, shall, on conviction, be liable to be 
 imprisoned for any term not exceeding two years ; and every person 
 
 (y) Rex v. Brettall, Monmouth Spring Ass. 1842, MSS. S. C. 1 C. & Mars, 690, a C. S. G. 
 Where a prisoner has been acquitted, perhaps a case might occur where a subsequent in- 
 dictment might not be considered as improperly preferred ; but where a prisoner has been 
 convicted and received sentence, such a proceeding can hardly be considered otherwise than 
 vindictive, inasmuch as the court always looks at all the circumstances of the case, and par- 
 ticularly the amount of the property stolen, before fixing the sentence ; and if the prisoner 
 were sentenced to any further punishment on the second indictment, he would in effect be 
 twice punished for the same offence. C. S. G. 
 
 (?/?/) But now, by the 1 Vict. c. 90, s. 5, no offender " shall be kept in solitary confine- 
 ment for any longer periods than one month at a time, or than three months within the 
 space of one year." 
 
 f [On the trial of an indictment for larceny, it is error to permit evidence to go to the 
 jury for the purpose of proving that just before the defendant committed the act for which 
 he is on trial, he committed another larceny. Burton v. The State, 18 Ohio, 221. 
 
 On a trial for larceny in a hotel, it is competent for the commonwealth to prove the 
 presence of the prisoner in the hotel, on the night when the larceny was committed, and his 
 acts and conduct there, and the circumstances attending his arrest, as a part of the whole 
 transaction, though these acts amounted to an attempt to commit a felony on another person 
 in another part of the hotel. Burr v. The Commonwealth, 4 Grattan, 534.] 
 a Eng. Com. Law Reps. xli. 331.
 
 L28 
 
 OF LARCENY. [BOOK IV. 
 
 who shall aid, abet, counsel, or procure the commission of any misde- 
 
 '" " u " u " meanor punishable under this act shall be liable to be indicted and 
 moanors. ' j . . •• «. j »« 
 
 punished as a principal onender. 
 
 Attainder The 7 & 8 Gao. 4, c. 28, s. 4, enacts, " that no plea setting forth any 
 of another attainder shall be pleaded in bar of any indictment, unless the attainder 
 Teadable be for tl,(1 Bam€ offence as that charged in the indictment." 
 
 By sec. 10, " wherever sentence shall be passed for felony on a per- 
 onder sen- son already imprisoned under sentence for another crime, it shall be 
 tence for ]. nv f u i f or the court to award imprisonment for the subsequent offence, 
 Drimela to commence at the expiration of the imprisonment to which such per- 
 convicted gou s \ nx \\ ] iav e been previously sentenced ; and where such person shall 
 the* court be already under sentence, either of imprisonment or of transportation, 
 may pass the court, if empowered to pass sentence of transportation, may award 
 -\ ntonoo suca sentence f° r tne subsequent offence, to commence at the expiration 
 to com- of the imprisonment or transportation to which such person shall have 
 m . oncea ? ter been previously sentenced, although the aggregate term of imprison- 
 tionofthe ment or transportation respectively may exceed the term for which 
 Br8t " cither of those punishments could be otherwise awarded." 
 
 Punish- The 11th section of the same statute reciting that it was expedient to 
 
 ment for a provide for the more exemplary punishment of offenders who commit 
 felony" 60 felony after a previous conviction for felony, whether such ^conviction 
 *129 shall have taken place before or after the commencement of this act, 
 enacts, " that if any person shall be convicted of any felony, not punish- 
 able with death, committed after a previous conviction for felony, such 
 person, shall, on such subsequent conviction, be liable, at the discretion 
 of the court, to be transported beyond the seas for life, or for any term 
 not less than seven years, or to be imprisoned for any term not exceed- 
 ing four years, and if a male, to be once, twice, or thrice publicly or 
 privately whipped (if the court shall so think fit) in addition to such 
 Form of imprisonment ;(z) and in an indictment for any such felony committed 
 indictment a ft er a previous conviction for felony, it shall be sufficient to state that 
 
 forasuose- r . 
 
 ■ ( uent fe- the offender was, at a certain time and place, convicted of felony, with- 
 1 '" : v ; out otherwise describing the previous felony ; and a certificate contain- 
 
 Kvi'lcncG ox »/ / 
 
 offirstcon-iBg tQe substance and effect only (omitting the formal part) of the in- 
 viction. dictment and conviction for the previous felony, purporting to be signed 
 by the clerk of the court or other officer having the custody of the re- 
 cords of the court where the offender was first convicted, or by the 
 deputy of such clerk or officer, (for which certificate a fee of six shil- 
 lings and eight-pence and no more shall be demanded or taken,) shall, 
 upon proof of the identify of the person of the offender, be sufficient 
 evidence of the first conviction, without proof of the signature or official 
 character of the person appearing to have signed the same." 
 6 & 7 u'rn. The 6 & 7 Wm. 4, c. Ill, reciting this provision of the 7 & 8 Geo. 4, 
 ^ JJJj c. 29, and that " since the passing of the said act the practice had been 
 conviction on the trial of any person for any subsequent felony to charge the 
 nadtofha ^"^ t0 inc l uire at tne same time concerning such previous conviction, 
 jury till the and tnat doubts maybe entertained whether such practice is consistent 
 finding for with a fair and impartial inquiry as regards the matter of such subse- 
 quent fe'- c l uent felon y> and tnat it is expedient that such practice should be dis- 
 lony. continued," enacts, that "it shall not be lawful on the trial of any 
 
 person for any such subsequent felony to charge the jury to inquire 
 
 (z) See p. 2. as to hard labour and solitary confinement.
 
 CHAP. IX. § IV.] VERDICT — INDICTMENT. 120 
 
 concerning such previous conviction, until they shall have inquired 
 concerning such subsequent felony, and shall have found such person 
 guilty of the same ; and whenever in any indictment such previous 
 conviction shall be stated, the reading of such statement to the jury as 
 part of the indictment shall be deferred until after such findin°- as afore- 
 said : Provided nevertheless, that if upon the trial of any person for 
 any such subsequent felony as aforesaid, such person shall give evidence 
 of his or her good character, it shall be lawful for the prosecutor, in 
 answer thereto, to give evidence of the indictment and conviction of 
 such person for the previous felony before such verdict of guilty shall 
 have been returned, and the jury shall inquire concerning such previ- 
 ous conviction for felony at the same time that they inquire concerning 
 the subsequent felony."(a) 
 
 The practice since this statute has been to charge the jury first with 
 the subsequent felony, and if they find the prisoner guilty of that felony, 
 then to charge them with the question as to the prisoner being the same 
 person that has been previously convicted. In order to prove that he 
 is the same person that was before convicted, it is *not necessary to call *130 
 any witness that was present at the former trial ; it is sufficient to prove 
 that the prisoner was the person who underwent the sentence mentioned 
 in the certificate. In order to prove a previous conviction, a certificate 
 was put in, stating that at the sessions for the borough of Newbury, 
 held on the 31st October, 1 Vict., the prisoner had been convicted of 
 stealing cotton prints, and sentenced to be imprisoned for four months. 
 The governor of Reading gaol proved that the prisoner was in his cus- 
 tody before those sessions ; that he sent him to Newbury at that time, 
 and received him back with an order from the Newbury sessions, and 
 that he remained in his custody for four months under that sentence ; 
 and this was held sufficient. («a) But where a certificate having been 
 put in, a gaoler, who was called to prove an admission made by the 
 prisoner, said, " I asked the prisoner, < how many years ago was it that 
 you were here before?' He said, 'it was a many years ago.' I then 
 said, ' You were then convicted of felony/ and the prisoner said, l Yes, 
 I was.' " It was objected, first, that some ®ne ought to have been 
 called who was present when the prisoner was previously tried ; and 
 secondly, that this admission was not sufficient, as it did not show of 
 what felony the prisoner was convicted, but only that he had been 
 convicted of a felony. Bosanquet, J., " I think an admission of 
 the prisoner is sufficient : but I think this evidence is not sufficient ; 
 it must be proved to be the same felony as that mentioned in the certi- 
 ficate. "(J) 
 
 Whether a prisoner calls witnesses to his character, or cross-examines If a P" 80 - 
 the witnesses as to his character, he " gives evidence" of his character 
 
 ner cross- 
 examines 
 
 (a) This statute has only half remedied the mischief, for as the prisoner is arraigned in 
 open court, both as to the previous conviction and the subsequent felony, some of the 
 jury in most instances hear the charge ; and in order to avoid this it has been the practice to 
 take the arraignment during the absence of the jury, where that is practicable, but there 
 are many cases where it cannot be done. C. S. G. 
 
 (aa) Reg. v. Crofts, a 9 C. & P. 219. Sed quiere, whether this evidence showed that the 
 prisoner was imprisoned for the same felony as that mentioned in the certificate ? It showed, 
 indeed, that he was in gaol for some offence, but it might be another felony or a misde- 
 meanor. C. S. G. 
 
 (b) Rex v. J. and T. Goodman, Stafford Sum. Ass. 1830, MSS. C. S. G. 
 
 * Eng. Cora. Law Reps, xxxviii. 89.
 
 130 
 
 OF LARCENY. 
 
 [BOOK IV. 
 
 to show 
 
 th.'it he hat 
 
 a good 
 
 oharaotar, 
 the previ- 
 ous oonvic 
 
 tion may 
 
 be proved. 
 
 Restitution 
 of stolen 
 property. 
 
 131 
 
 within the meaning of the 6 and 7 Win. 4, c. Ill, and the previous 
 conviction may be proved in the first instance. Where on an indict- 
 ment charging a previous conviction, a question was asked on cross- 
 examination which might have been asked with a view to show that the 
 prisoner had borne a good character ; Park, B., said, " in his opinion, 
 if a prisoner's counsel cross-examined the witness for the prosecution, 
 in order to show that the prisoner had borne a good character, it would 
 be the duty of the court to direct that the evidence of the previous 
 conviction should be given in the first instance; but as he was in 
 doubt whether the object of the prisoner's counsel was such in the pre- 
 sent case, he had not thought it right to do so."(c) 
 
 An indictment for a subsequent felony need not conclude " against 
 the form of the statute," as the charge of the former conviction is 
 merely in the nature of a suggestion, in order to warrant the higher 
 punishment.^) 
 
 The 57th section of the 7 and 8 Geo. 4, c. 29, for the purpose of 
 encouraging the prosecution of offenders, enacts, "that if any person 
 guilty of any such felony or misdemeanor as aforesaid, in stealing, tak- 
 ing, obtaining, or converting, or in knowingly receiving any chattel, 
 money, valuable security, or other property whatsoever, shall be in- 
 dicted for any such offence, by or on behalf of the owner of *the pro- 
 perty, or his executor or administrator, and convicted thereof, in such 
 case the property shall be restored to the owner or his representative ; 
 and the court, before whom any such person shall be so convicted, shall 
 have power to award, from time to time, writs of restitution for the said 
 property, or to order the restitution thereof in a summary manner. 
 Provided always, that if it shall appear, before any award or order made 
 that any valuable security shall have been bond fide paid or discharged 
 by some person or body corporate liable to the payment thereof ; or, 
 being a negotiable instrument, shall have been bond fide taken or re- 
 ceived by transfer or delivery, by some person or body corporate for a 
 just and valuable consideration, without any notice, or without any rea- 
 sonable cause to suspect that the same had by any felony or misde- 
 meanor been stolen, taken, obtained, or converted as aforesaid, in 
 such case the court shall not award or order the restitution of such 
 security." 
 
 Where a prisoner was convicted of stealing a bill of exchange for 
 100?.. and a considerable sum of money in specie, and the evidence 
 tended to show that he must have purchased a horse with part of the 
 proceeds of the bill, the court ordered the horse to be delivered to the 
 prosecutor, (e) 
 
 Where a prisoner was indicted for stealing a 10?. Bank of England 
 note, it was held that an order could not be made to restore it after it 
 had been paid and cancelled by the Bank.(/) 
 
 (c) Reg. v. Gadbury, a 8 C. & P. 676. (d) Reg. v. Blea,>> 8 C. & P. 735. 
 
 (e) Rex v. Powell, c 7 C. & P. 640. The Common Serjeant, after consulting Gurnev, B.. 
 and Williams, J. 
 
 (/) Rex v. Stanton, 4 7 C. & P. 431, Vaughan and Williams. Js. 
 a Eng. Com. Law Reps, xxxiv. 580. b lb. xxxiv. 610. c lb. xxxii. 669. d lb. xxxii. 572. 
 
 Except in 
 
 certain 
 
 cases.
 
 CilAP. X.] OF STEALING FROM THE PERSON. *132 
 
 *CHAPTEIl THE TENTH. 
 
 OF STEALING FROM THE PERSON. 
 
 With respect to such stealing from the person as does not amount to 1 Vict. c. 
 robbery, the 1 Vict. c. 87, s. 5, enacts, « that whosoever shall rob any 87 > s - 5 - 
 person, or shall steal any property from the person of another, shall be 
 liable, at the discretion of the court, to be transported beyond the seas 
 for any term not exceeding fifteen years nor less than ten years, or to be 
 imprisoned for any term not exceeding tbree years. "(a) 
 
 By sec. 12, the word property shall throughout this act be deemed to 
 denote everything included under the words " chattel, money, or valu- 
 able security" used in the 7 & 8 Geo. 4, c. 29, s. 5,(&) and 9 Geo. 4, c. 
 55, (Irish Act). 
 
 By sec. 9, principals in the second degree and accessories before the 
 fact are punished in the same manner as principals in the first degree, 
 and accessories after the fact (except receivers) are liable to be impri- 
 soned for, not exceeding two years ; and by sec. 10, offenders may be im- 
 prisoned, or imprisoned and kept to hard labour, in the common gaol or 
 house of correction, and kept in solitary confinement for any portion or 
 portions of such imprisonment, or of such imprisonment with hard 
 labour, not exceeding one month at any one time, and not exceeding 
 three months in any one year.(c) 
 
 By the repealed statute 48 Geo. 2, c. 129, s. 2, it was enacted, "that Repealed 
 any person who should feloniously steal, take, and carry away any stat. 48 
 money, goods, or chattels, from the person of any other, whether ^9 s . 2.' 
 privily without his knowledge or not, but without such force, or putting 
 in fear, as is sufficient to constitute the crime of robbery, should be 
 liable to the punishment therein mentioned." In a case upon this Held, that 
 repealed statute it was holden that the indictment need not negative the mdict- 
 
 r . ~, merit upon 
 
 force or fear necessary to constitute robbery, and that, though it should the repeal- 
 appear upon the evidence that there was such force or fear, the punish- ^ statute. 
 ment imposed by that statute might be inflicted. The prisoner was in- c . 129/ 
 dieted for stealing from the person : the indictment did not state that need not 
 there was no such force or fear as is necessary to constitute robbery; f e r ^e oT 
 and it appeared in evidence that such force and fear existed. Lord fear, and 
 Ellenborough, before whom the prisoner was tried, saved the point ^ t *® e 
 whether he could go beyond the common law punishment; and, upon of force or 
 conference, all the iudges held *that he might; and that, where force fear was [ no 
 
 , -1 . 1 . ■,. 1 . ,. answer to 
 
 or fear were not charged in the indictment, the existence of force or the charge. 
 fear would not exempt the party from the statutable punishment; and *133 
 as all that the indictment charged was proved, the proving what made 
 the offence greater would not entitle the prisoner to a smaller punish- 
 ment. (d\ 
 
 A more recent case upon the same repealed statute was to the same 
 effect. The indictment was for stealing from the person, and it did not 
 negative force or fear; and, upon the evidence, the facts amounted to a 
 clear case of highway robbery. The learned judge, before whom the 
 prisoner was tried, doubted whether he ought not to direct an acquittal, 
 
 (a) This offence was once capital by the 8 Eliz. c. 4, ss. 1 & 2. (b) Ante, p. 73. 
 
 (c) See these sections, ante, vol. 1, p. 868. 
 
 (d) Rex v. Pearce, East. T. 1810, MS. Bayley, J., and Russ. & Ry. 174. 
 
 Vol. 11.— 10
 
 ];;- OF STEALING HORSES, COWS, SHEEP, ETC. [BOOK IV. 
 
 and detain the prisoner to be indicted for the robbery; but he let the 
 trial proceed, and on conviction, sentenced the prisoner to transporta- 
 tion for life : but he made a case upon the questions, first, Whether the 
 indictment should not have negatived force and fear; secondly, Whether 
 the existence of force and fear was not an answer to the charge as laid; 
 and, thirdly, Whether the statutable punishment could be inflicted : 
 And the judges were unanimous that the indictment need not, and 
 ought not to negative force or fear, that the existence of such force or 
 fear was no answer to the charge, and that the statutable punishment 
 was rightly inflicted. (e) 
 Tho (! fog To constitute a stealing from the person, the thing taken must be 
 stolen must completely removed from the person. In a case where, upon the evi- 
 ^ T™' e dence of the prosecutor, it appeared that the pocket-book was drawn 
 from his waistcoat-pocket an inch above the top of his pocket, but was 
 from the re t ur ned immediately again into the pocket, probably by the quick mo- 
 tion of the prosecutor's arm upon the hand and arm of the thief, with 
 whom and his accomplices the prosecutor had a severe struggle before 
 he was secured, it was held by a majority of the judges, that the pri- 
 soner was not rightly convicted of stealing from the person, because 
 from first to last the book remained about the person of the prosecutor. 
 But the judges all agreed that the simple larceny was complete, and 
 sentence of transportation for life having been passed, a pardon, on con- 
 dition of transportation for seven years, was recommended. (/) 
 
 We have seen that where a man went to bed with a prostitute, leaving 
 his watch in his hat, on the table, and the woman stole it while he was 
 asleep, it was held not to be stealing from the person, but stealing in 
 the dwelling-house. (#) 
 
 By the 1 Vict. c. 87, s. 13, any felony, punishable under that act, 
 committed within the jurisdiction of the Admiralty of England or Ire- 
 land, " shall be dealt with, inquired of, tried, and determined in the 
 same manner as any other felony committed within that jurisdiction. "(A) 
 
 *134 *CHAPTER THE ELEVENTH. 
 
 OP STEALING HORSES, COWS, SHEEP, ETC. 
 
 We have already seen that larceny may be committed of such do- 
 mestic creatures as are fit for food;(a) and it remains only to notice in 
 this place the statutable provision, which, for the better protection of 
 some of the more valuable domestic animals, makes persons, found 
 guilty of stealing them, liable to transportation. 
 7 & 8 Geo. The 7 & 8 Geo. 4, c. 29, s. 25, enacts, « that if any person shall steal 
 4^c. 29, s. any horsej marej gelding, colt, or filly, or any bull, cow, ox, heifer, or 
 calf, or any ram, ewe, sheep, or lamb, or shall wilfully kill any of such 
 cattle with intent to steal the carcase, or shin, or any part of the cattle 
 
 (c) Rex v. Robinson, cor. Wood. B., and considered by the judges Hil T 1317 MS Bar- 
 ley, J., and Russ. & Ry. 321. 
 
 (f) Rex v. Thompson, Hil. T. 1825, Ry. & Mood. C. C. 78. 
 
 ( g) Rex v. Hamilton*, 8 C. & P. 49, ante, vol. 1, p. 855, and see other ca=e* there 
 (It) The act does not extend to Scotland, sect. 14. 
 
 (a) Ante, p. 82. 
 
 8 Eng. Com. Law Reps, xxxir. 288.
 
 CHAP. XI.] OF STEALING HORSES, COWS, SHEEP, ETC. 134 
 
 so killed, every such offender shall be guilty of felony, and being con- 
 victed thereof shall suffer death as a felon." 
 
 The 2 & 3 Wni. 4, c. G2, recited this section, and repealed the pun- 
 ishment of death, and enacted, that " every person convicted of any of 
 the felonies hereinbefore specified, or of counselling, aiding, or abetting 
 the commission thereof, shall be transported beyond the seas for life." 
 
 The 3 & 4 Wm. 4, c. 44, s. 3, enacted, that all persons punishable 
 by transportation for life under the 2 & 3 Wm. 4, c. 62, « shall be lia- 
 ble, previously to their being transported, to be imprisoned with or 
 without hard labour, in the common gaol or house of correction, or to 
 be confined in the penitentiary, for any term not exceeding four years 
 nor less than one year." 
 
 The 1 Vict. c. 90, s. 1, recites the 2 & 3 Wm. 4, c. 62, and 3 & 4 1 Vict, c 
 Wm. 4, c. 44, and repeals so much of them as relates to the punish- p 0, s * 1- 
 ment of persons convicted of offences, for which they are liable, under punish- 
 the said act of 2 & 3 Wm. 4, c. 62, to be transported for life, and ment - 
 enacts, that after the commencement of this act, (1st of October, 1837,) 
 " every person convicted of such offences, shall be liable to be trans- 
 ported beyond the seas for any term not exceeding fifteen years, nor 
 less than ten years, or to be imprisoned for any term not exceeding 
 three years." 
 
 By sec. 3, " in awarding the punishment of imprisonment for any 
 offence punishable under this act, it shall be lawful for the court to 
 direct such imprisonment to be with or without hard labour, in the 
 common gaol or house of correction, and also to direct that the offender 
 shall be kept in solitary confinement for any portion or portions of such 
 imprisonment, or of such imprisonment with hard *labour, not exceed- *135 . 
 ing one month at any one time, and not exceeding three months in any 
 one year, as to the court in its discretion shall seem meet." 
 
 The 7 & 8 Geo. 4, c. 29, s. 61, enacts, that " every accessory after 
 the fact to any felony punishable under this act, (except only a receiver 
 of stolen property) shall, on conviction, be liable to be imprisoned for 
 any term not exceeding two years. "(i) 
 
 The various points upon the definition of larceny, which have been Points re- 
 considered in the chapter treating generally of that offence,(c) relate as l atin g to 
 well to the stealing of horses as of other property ; and we may re- stealing 
 
 (b) As cattle stealing is no longer punishable under the 7 & 8 Geo. 4, c. 29, it may be 
 doubted whether accessories after the fact are punishable under section 61. If they are not. 
 it should seem that they are punishable under the following provisions as for a felony for 
 which no punishment is specially provided. By the 7 & 8 Geo. 4, c. 28, s. 8, "Every person 
 convicted of any felony not punishable with death, shall be punished in the manner de- 
 scribed in the statute or statutes specially relating to such felony ; and that every person 
 convicted of any felony for which no punishment hath been, or hereafter may be specially 
 provided, shall be deemed to be punishable under this act, and shall be liable, at the discre- 
 tion of the court, to be transported beyond the seas for the term of seven years, or to be 
 imprisoned for any term not exceeding two years ; and, if a male, to be once, twice, or three 
 times publicly or privately whipped, (if the court shall so think fit,) in addition to such 
 imprisonment." By sec. 9, "where any person shall be convicted of any offence punishable 
 under this act, for which imprisonment may be awarded, it shall be lawful for the court to 
 sentence the offender to be imprisoned, or to be imprisoned and kept to hard labour in the 
 common gaol or house of correction, and also direct that the offender shall be kept in soli- 
 tary confinement for the whole or any portion or portions of such imprisonment, or of such 
 imprisonment with hard labour, as to the court in its discretion shall seem meet." But by 
 the 1 Vict. c. 90, s. 5, "it shall not be lawful for any court to direct that any offender shall 
 be kept in solitary confinement for any longer periods than one month at a time, or than 
 three months in the space of one year." C. S. G. 
 
 (c) Ante, p. 1, et seq.
 
 1.',,-, OF STEALING HORSES, COWS, SIIEEP, ETC. [BOOK IV. 
 
 " member a case of considerable nicety, where, upon a finding by the jury 
 i:i ri ,nios tl) t ( j u> p r j soners took some horses, merely with intent to ride, and 
 property, afterwards to leave them, and not to return, or make any further use of 
 
 them, it was holden that such taking amounted to a trespass only, and 
 
 not to larceny. (J) 
 EUwlin's The doctrine that any the least removal of the thing feloniously 
 n"* The taken, will constitute larceny,(e) applies to the stealing of sheep, though 
 5rM°k!diot- part of the animal only be taken. The prisoner was indicted for steal- 
 edfor8teal- ;„,r s | x lambs, without any count for killing with intent to steal the car- 
 u'.Ti tbeevi- l ' :lsc or an y P art thereof, the evidence was that the carcasses of the 
 denoe was lambs, without their skins, were found upon the premises where they 
 that caroa- ^ &( j ^ een ^ e ^ an( j t hat t ] ae prisoner had sold the skins on the morning 
 found in after the offence was committed, upon which the jury were directed to 
 the ground ^ j t j p r i sone r guiltv, on the ground that the lambs must have been 
 
 nt the own- * , -n t ' i t i 1 i 
 
 er, and the r< mured from the fold. But a doubt having occurred whether, as the 
 skins only jj. (j e0 2, c. 6, (now repealed,) specified feloniously driving away, and 
 away : ami feloniously killing with intent to steal the whole or any part of the car- 
 "]""> this case> as we ll as feloniously stealing in general, (although there must, 
 was holden m su<m cases, be some removal of the thing,) it did not intend to make 
 good. these different offences; the case was submitted to the consideration of 
 
 the judges; who held the conviction right : as any removal of the thing 
 
 feloniously taken, constitutes larceny. (/) 
 But this But this decision has been questioned, if not overruled, in the follow- 
 
 I'n'i', !' i Q o case j where it was held that upon a count for *stealing a sheep it 
 douhted. must be shown that the sheep was removed whilst it was alive, and that 
 A *i 1 Qr» al u P on a COUQ t for killing a sheep with intent to steal the whole of the 
 , ., ?. carcase, evidence of killing with intent to steal part of the carcase, is 
 
 while rtlivc 
 
 is neces- sufficient. The first count charged the prisoner with stealing three 
 
 saryto sheep, and the second with killing the sheep with intent to steal the 
 
 -harge of whole of the carcases. It appeared that the sheep were found killed 
 
 stealing a and cut open, and the inside and entrails taken out, and the tallow and 
 indictment im ^ e ^ at taken away, and the fat cut off the backs of two of them, and 
 
 [syingan also taken away, but the fat on the back of the third was left. The 
 
 IteaTthe carcases of tne shee P were lef t, and were found lying in the gripe of the 
 
 whole, is hedge, in the same field where the live sheep had been ; the entrails and 
 
 supported „ uts w hi ca remained after the tallow and inside fat had been cut out 
 
 \)j an in- - . . . , 
 
 tent to steal were also lett, and were found in the adjoining field. There was evi- 
 partofthe dence to satisfy the jury that the prisoner had killed the sheep and 
 stolen the fat; but as the carcases of the sheep, and the entrails and 
 guts, after cutting away the tallow and fat, were left, the learned judge 
 thought the second count, which was for killing the sheep with intent 
 to steal the whole of the carcases, could not be supported, and that the 
 intent ought to have been stated to steal part of the carcases; inasmuch 
 as the 14 Geo. 2, c. 26, specifies both intents, i. e., stealing the whole 
 of the carcases, or any part of the carcases ; and the cutting out the 
 inside fat is one of the offences stated in the recital of the clause in the 
 statute.(^) The count for stealing, the learned judge also, in the ab- 
 
 (d) Rex v. Phillips and Strong, ante, p. 8. r e ) \ nte p 5. 
 
 (/) Rawlin's case, Sarum Sum. Ass. 1800, and Mich. T. 1800 2 East *P C c 16 s 48 
 p. 617. 1 • • • 1 ■ ; 
 
 {g) Vide the cases of Rex v. M'Dermot, Russ. & Ry. 356. Rex v. Duffin, Russ. & Ry. 365, 
 and Rex v. Horwell, R. & M. C. C. R. 405, that if a statute uses words in the alternative, so 
 as to distinguish between them, the distinction mu?t be attended to in the indictment
 
 CHAP. XI.] OF STEALING HORSES, COWS, SHEEP, ETC. 136 
 
 sence of any case to the contrary, was disposed to think was not sup- 
 ported ; for the before-mentioned statute having taken away clergy from 
 such as drive away or steal sheep, and having, in the same clause, made 
 it a capital offence to kill sheep with intent to steal the whole, or any 
 part of the carcase, the driving away or stealing, mentioned in the 
 statute, does not appear such a removal of the sheep as is made merely 
 for the purpose of killing on the spot, but it must be such a removal as 
 is made for the purpose of actually getting the sheep in a live state into 
 a man's complete possession and dominion ; for if it were otherwise, the 
 clause in the act of parliament about killing would have been quite un- 
 necessary ; and so would also the practice, which has generally pre- 
 vailed, of inserting counts in indictments for killing with intent to steal 
 the whole, or part of the carcase. In the cases in which a slight remo- 
 val of the article has been held to amount to larceny, there has always 
 been an intent to steal the article itself, but the thief has been prevented 
 from getting the complete possession of, and dominion over it ; and if 
 it was not held larceny, there would be a failure of public justice. But 
 here there was no intention in the removal to drive away, or steal the 
 living sheep ; but the intent in the removal was to commit another 
 offence of which he might be capitally convicted, and there would be 
 no failure of public justice, if persons were not held to be guilty of 
 stealing the live animal, because if the indictment was properly pre 
 pared they might still be convicted of a capital offence. In all cases 
 where a slight removal has been held larceny, there was evidence given 
 of an actual removal, and how it was done ; but here *there was no *13T 
 evidence of the removal of the sheep in a live state, and the removal 
 after their death would not support a count for stealing sheep, which 
 must be intended to be live sheep. (g\ As there was very sufficient evi- 
 dence of the killing with intent to steal the fat, the learned judge direc- 
 ted the jury to find the prisoner guilty, but desired them to say, whether 
 they were of opinion he killed the sheep with intent to steal the whole, 
 or part of the carcases ; and the jury found him guilty, and also found 
 that he killed the sheep with intent to steal part of the carcases only, 
 and not with intent to steal the whole of the carcases. But the ques- 
 tion of removal under the first count was not put to the jury to find 
 particularly. The learned judge respited the judgment, as the doctrine 
 in Rawlin's case,(A) as applicable to sheep killed with the intent men- 
 tioned in the act of parliament, was not satisfactory to his mind, and he 
 thought it required to be re-considered, and therefore reserved the 
 points upon both counts of the indictment for the consideration of the 
 judges ; who were of the opinion that the second count was supported, 
 and not the first ; a removal while alive being essential to constitute 
 larceny; and nine of the judges held that the offence of intending to 
 steal a part, was part of the offence of intending to steal the whole, and 
 that the statute meant to take it immaterial whether the intent applied 
 to the whole or only to part. (A 
 
 (g) Rex v. Edwards, Russ. & Ry. 497. (h) Supra, note (/_). 
 
 (i) Rex v. Williams, R. & M. C. C. R. 107. In Reg. v. Marley, Monmouth Spring Ass. 
 1842, Creswell, J., held, on the authority of this case, that proof of stealing part of the 
 carcase supported an indictment for killing with intent to steal the whole carcase. MSS. 
 C. S. G. Upon an indictment for stealing a lamb, it should seem that it must be proved 
 that the lamb was alive when it was stolen, in order to warrant the statutory punishment : 
 for although it has been held that upon an indictment for receiving a lamb, it is no vari- 
 ance if the proof is that the lamb was dead when it was received, Rex v. Puckering, R. &
 
 .11.-110. 
 
 J 37 OF STEALING HORSES, COWS, SHEEP, ETC. [BOOK IV. 
 
 Cutting off It w;is decided Hpofc the repealed statute 14 Geo. 2, c. 6, that cutting 
 pari of a ^ t f a s heep whilst it was alive with intent to steal such part, 
 whTl'-t would support the indictment for killing with intent to steal, if the cut- 
 aliTe, with jj n „ ff ums t occasion the death of the animal, especially if the offender 
 Tvliu hid" the part cut off, and meant to fetch it away at a future time. The 
 sufficient if indictment was for killing a lamb with intent to steal part of the car- 
 181 oase; and it appeared that the prisoner cut off a leg from the animal 
 whilst it was alive, and carried it away before the animal died; but that 
 the cutting necessarily caused the death of the animal. The learned 
 judge, before whom the prisoner was tried, thought the giving the death 
 wound before the larceny sufficient, and that the animal might be con- 
 sidered as killed by relation from that time, or if not, that the intention 
 to fetch away the leg was an intent to continue the larceny thereof, but 
 he saved the point for the opinion of the judges, who were unanimous, 
 principally upon the first point, that the conviction was right. (j) 
 *138 *Upon an indictment for killing a sheep with intent to steal the car- 
 case, it appeared that the prisoner was interrupted by the prosecutor 
 while in the act of killing the sheep, which was wounded in the throat, 
 the jugular vain being cut on one side, but not altogether through. 
 The wound was sown up, but the sheep died in two days. The jury 
 having found that the prisoner gave the sheep a deadly wound, of which 
 it died, with intent to steal the carcase, were directed to find the pri- 
 soner guilty. And upon a case reserved, the judges were unanimously 
 of opinion that the prisoner was rightly convicted. (A;) 
 Cook's In a ease where a prisoner was indicted for stealing a cow, it appeared 
 
 •a«e. An U p 0n the evidence, that the animal stolen was a female beast only two 
 forstealing years and a half old, that had never had a calf; and that a female beast 
 a cow held f the cow kind, how old soever, if she have never had a calf, is always 
 supported called a heifer. An objection was therefore taken, by the counsel for 
 hyevidencethe prisoner, that the charge in the indictment was not supported by 
 a AeiYer. nS tne ev idence ; and the prisoner being found guilty, the question was re- 
 ferred to the consideration of the twelve judges, who were of opinion, 
 that as the statute 15 Geo. 2, c. 34, (now repealed,) mentioned both 
 heifer and covj, it must be considered as using one term in contradis- 
 tinction to the other, in describing the several animals intended to be 
 protected; and that, as the beast" stolen was not therefore such as was 
 described in the indictment, the prisoner was entitled to an acquittal. (/) 
 So where the prisoners were indicted under the same repealed statute 
 for stealing five sheep, and upon the evidence they appeared to be 
 lambs, and the prisoners were found guiltv ; the judges, upon a case 
 
 M. C. C. R. 242, yet that decision proceeded on the special ground that the punishment 
 was the same whether the lamb was alive or dead when it was received ; but in the case of 
 stealing a live lamb, the punishment may be fifteen years' transportation, &c, while it can 
 only be seven for stealing a dead lamb. But, as stealing a lamb is felony at common law, 
 it should seem that if it appeared on such an indictment that the lamb was dead, the pri- 
 soner might be convicted and punished for the common law felony. See the observation 
 of Patteson, J., in Reg. v. M'Culley, post, note (s) p. 139, and Rex v. Beany, Russ. & Rv. 41G. 
 And it should seem that that punishment would be under the 7 & 8 Geo." 4 c. 28 ss. 8 & 9. 
 and 1 Vict. c. 90, s. 5 : see my note, ante, p. 135. C. S. G. 
 
 (J) Rex v. Clay. The prisoner was tried before Baylev, J., and the point was considered 
 by the judges, (eleven being present,) in East. T. 1819, MS. Bavlev, J., and Russ. & Rv.387. 
 
 (k) Reg. v. Sutton, 6 2 Moo. C. C. R. 29, 8 C. & P. 291. 
 
 (I) Cook's case, Warwick Lent Ass. 1774, and Serjeants' Inn Hall 1774 l Leach 105 
 2 East, P. C. c. 16, s. 48, p. 616. 
 
 a Eng. Com. Law Reps, xxxiv. 394. 

 
 CHAP. XI.] OF STEALING HORSES, COWS, SHEEP, ETC. 138 
 
 , ^_, — . 
 
 reserved, held the conviction wrong, (m) So where the prisoner was in- 
 dicted for stealing a sheep, and it appeared that the animal stolen was a 
 ewe, and the prisoner was found guilty; the judges upon a case re- 
 served, held the conviction wrong ; inasmuch as the statute specifies 
 both ewe and sheep, and therefore the one really meant should be 
 stated. hi) So where the prisoner was indicted for stealing one sheep, 
 and it appeared that the animal stolen was under a year old, and the 
 prosecutor said he should call it a lamb-teg; Bolland, B., said, " Upon 
 this evidence I must direct an acquittal. In this indictment, the animal 
 in question ought to have been called a lamb. Animals of this kind 
 are lambs, and not sheep till they are a year old. There was a case(o) 
 lately before the twelve judges, in which a man had been indicted at the 
 Old Bailey, and tried before Mr. J. J. Parke for stealing " one sheep," 
 and it appearing at the trial that the animal was a ewe, the twelve 
 judges held, that the prisoner could not be convicted, as the statute 
 used the words "ram, ewe, sheep," &c., and that if the animal was in 
 fact a ewe, the indictment must so describe it ; and it was not enough 
 to use the general term sheep. If a ewe is stolen, it must be called a 
 ewe in *the indictment; and so a lamb must be called a lamb; but a *139 
 wether should be described as a sheep. "(_p) 
 
 But it has been recently held that an indictment for killing a sheep An indict- 
 is supported by proof of killing a ewe, or wether, although it cannot be m ^ n } for 
 proved which it was. On an indictment for killing a sheep with intent s heep g is 
 to steal the carcase, the prosecutor and his man swore that he had forty- supported 
 one sheep, ewes and wethers, but neither of them could tell how many ^^If 
 of each. One was missed, but they could not tell the sex, and no person killing a 
 by inspection of the skin and mutton, could tell the sex. It was con- ew ®. or 
 tended that the word "sheep" in the statute meant "wether," and that 
 it lay on the prosecutor to prove that the sheep was a wether, fo) That 
 as proof of stealing a ewe would not support an indictment for stealing 
 a sheep ; so proof of stealing a ram would not support such an indict- 
 ment ; the only proof, therefore, which would support an indictment for 
 stealing a sheep, would be stealing a wether. It was replied, that the 
 word " sheep" would include either sex, until it was proved to be either 
 a ewe or a ram ; and that the distinctive appellation of ewe and wether 
 are not used till the animals are three years old, and that this animal 
 was much younger; but the jury found that the distinctive appellation 
 is used at any time after weaning; and found the prisoner guilty.M 
 
 (m) Rex v. Loom, R. & M. C. C. R. 130. (re) Rex v. Puddifoot, R. & M. C. C. R. 247. 
 
 (o) Probably Rex v. Puddifoot. 
 
 \p) Rex v. Birket, a 4 C. & P. 216. 
 
 (q) Rex v. Puddifoot, supra, and Rex v. Chalkley, Russ. & Ry. 258, were cited and relied 
 upon. 
 
 (r) Patteson, J., also pointed out that the first act which made sheep-stealing a capital 
 offence, viz. 14 Geo. 2, c. 6, enacted, "that if any person shall feloniously steal one or more 
 sheep or other cattle, or shall wilfully kill one or more sheep or other cattle, with a felonious 
 intent, &c, he shall suffer death," &c. In the subsequent year an act was passed, 15 Geo. 2, 
 c. 34, which recited the clause in the former act, and that it was doubtful to what kind of 
 cattle besides sheep the said act was meant to extend, and enacts, "that the said act was 
 meant and intended, and shall be construed, deemed, and taken to extend to any bull, cow, 
 ox, steer, bullock, heifer, calf or lamb, as well as sheep, and to no other cattle whatsoever." 
 No doubt seems to have arisen at anytime that the word "sheep" in the act 14 Geo. 2, c. 6, 
 extended to sheep of all sexes, rams, ewes, and wethers; but that act, and 15 Geo. 2, c. 34, 
 are expressly repealed by 7 & 8 Geo. 4, c. 27, which received the royal assent on the 21st of 
 June, 1827 ; and, on the same day, 7 & 8 Geo. 4, c. 29, received the royal assent, sec. 25 of 
 which, containing the words "ram, ewe, sheep, or lamb," gives rise to the present question. 
 a Eng. Com. Law Reps. xix. 351.
 
 OF STEALING HORSES, COWS, SHEEP, ETC. [BOOK IV. 
 
 Ami, upon a case reserved on the question whether it was incumbent on 
 the prosecutor upon this indictment to prove that the sheep stolen was a 
 vrether, the judges all held that the word sheep in the statute was a 
 generic term, including ram, ewe, and wether, and that the two former 
 words might be rejected ; except Parke, B., Vaughan, J., and Cole- 
 ridge, J., who were of a contrary opinion. (s) 
 *] in *Where, on an indictment for stealing a sheep, it was doubtful on 
 the evidence whether the animal stolen was a rig sheep or wether ; Al- 
 derson, B., held that it was quite immaterial whether the sheep was a 
 rig or a wether, as the prisoner was equally liable to be convicted on 
 this indictment whether it was one or the other. (<) But it has been 
 held that an indictment for stealing a filly, is not supported by evidence 
 of stealing an animal more than three years old, as at three years of 
 age it ceases to be a filly, and becomes a rnare.(w) 
 ;,e. As the statute 26 Geo. 4, c. 71, was passed in order to remedy (ac- 
 71, as to cording to the recital of the act) the facilities afforded to the stealing of 
 ing cattle, cattle by persons of low condition, who kept houses or places for the 
 purpose of slaughtering horses and other cattle, its provisions may be 
 shortly mentioned in this place. It contains many enactments for the 
 regulation of slaughter-houses ; requires persons keeping them to take 
 out a license, and to give notice, previous to the slaughtering and flay- 
 , ing of any cattle, to an inspector appointed as mentioned in the act, and 
 ing cattle to kill and flay the cattle only within certain hours. The eighth sec- 
 y ithout a ti on enac ts, that if any person keeping or using any slaughtering-house 
 giving pro- or place mentioned in the act, shall slaughter any cattle for any other 
 per notice, purpose than for butcher's meat, or shall flay any cattle brought dead 
 felony. ^ to such slaughtering-house or other place without a license, or without 
 
 It may be observed, that in Puddifoot's case, if it was for stealing a sheep it might have 
 been possible to treat the indictment as one at common law, but in this case it cannot be so 
 treated, as it contains but one count which is for killing with intent to steal the carcase. 
 
 (*) Reg. v. M'Culley, 2 Moo. C. C. R. 34. 2 Lew. 272. With the greatest possible respect 
 
 for the learned judges who decided this case, it is submitted that it may admit of some 
 
 doubl whether this decision be not at variance with several well established rules in the 
 
 construction of statutes. First it is a general rule that effect is to be given to every word in 
 
 ft statute if that can be done by any reasonable construction. Now here the words " ram" 
 
 a i ■ ewe" are rejected, although by construing the word sheep as "wether," every word 
 
 has a fitting and full effect. Secondly, the words of a statute are to be construed in their 
 
 grammatical and natural sense. Rex v. Ditcheat, a 9 B. & C. 176; Rex v. Great Brintly," 
 
 c C. 520 ; Williams v. Roberts, 5 Tyrw. 421 ; and it may be asked how a construction 
 
 renders two out of four words entirely inoperative, can 'be construing the clause in its 
 
 grammatical and natural sense. Thirdly, an expression which has precedence in the order 
 
 of the words must be taken to have been used with reference to things and persons of a 
 
 order or rank. Dwarr. on Stat. 704, citing the Warden of St. Paul's v. The Dean. 4 
 
 Price, 65. According to this rule the word ram is of a higher order than sheep : and this is 
 
 strengthened by the fact that the two clauses immediately preceding, viz., "horse, mare, &c, 
 
 • •/• &c, clearly place the animal of the higher order first. It may be observed, also, 
 
 that in this section, in every other instance the terms used are the names of the species and 
 
 ■ >t of the genus; and particularly that in each of the two preceding classes the order is 
 
 nasculine: second, feminine; third, emasculated; and fourth, young animals; and 
 
 - order is evidently followed in the last class, in the first, second, and last instan- 
 
 nich affords a very strong argument that it was intended to be followed in the third 
 
 also. The only ground on which the decision seems to rest is, that the term " sheep" was 
 
 nown signification, as including ram, ewe, and wether, and that it must therefore 
 
 to have been used in that sense in the statute ; the answer is that the rule is that 
 
 where a word has a known signification, and such word is used generally in a statute, it 
 
 shall be taken to be used in such sense. Smith v. Harman, 6 Mod. 142. Here the word is 
 
 -rally, but in connection with other words, which show that it was not intended 
 
 i used generally. C. S. G. (t) Rex v. Stroud .« 6 C. & P 
 
 | ' . Edward Jones. Stafford Sum. Ass. 1839, Williams. J. 
 
 a Eng. Com. Law Reps. xvii. 305. t> lb. xxi. 122. c t D- xx ;. 599.
 
 QHAP. XI.] OF STEALING nORSES, COWS, SHEEP, ETC. 140 
 
 giving notice, or shall slaughter or flay at any time except within the 
 hours limited by the act, or shall not delay slaughtering or killing ac- 
 cording to the direction of the inspector properly authorized, such per- 
 son so offending in either of these cases, and being convicted, shall be 
 adjudged and taken to be guilty of felony, and shall be punished by 
 fine and imprisonment and such corporeal punishment by public or pri- 
 vate whipping, or shall be transported for any term not exceeding seven 
 years, as the court before whom the offender shall be tried and convicted, 
 shall direct.(«.) The ninth sectionen acts, that persons keeping or using Destroying 
 such slaughtering-house or place, and throwing into lime, or rubbing °? bui 7 in S 
 
 . b . , b l ' . ° . . ° hides, inis- 
 
 therewith or with any other corrosive matter, or destroying, or burying demeanor, 
 hides of cattle slaughtered or flayed by them, shall be guilty of a mis- 
 demeanor, punishable by fine, imprisonment, and whipping. The statute 
 also creates other offences of a smaller degree, and imposes penalties 
 recoverable by summary proceedings before justices of the peace. (wA Excep- 
 The fourteenth section provides, that the act *shall not extend to any tl0 ^- 
 currier, felt-maker, tanner, or dealer in hides, who shall kill any dis- 
 tempered or aged cattle, or purchase any dead cattle for the bond fide 
 purpose of selling, using or curing the hides thereof, in the course of 
 their respective trades; nor to any farrier employed to kill aged and 
 distempered cattle ; nor to any person who shall kill any of their own 
 or other cattle, or purchasing any dead horse or other cattle, to feed 
 their own hounds or dogs, or giving away the flesh for the like purpose. 
 But it is further enacted, that if any collar-maker, currier, &c, or 
 other person shall, under colour of their trades, knowingly or willingly 
 kill any sound or useful horse, gelding, mare, foal or filley, or boil or 
 otherwise cure the flesh thereof for the purpose of selling it, such per- 
 son shall be deemed an offender within the meaning of the act, and for 
 every offence, forfeit any sum not exceeding twenty, nor less than ten 
 pounds. (a;) 
 
 *CHAPTER THE TWELFTH. *142 
 
 OF STEALING AND DESTROYING DEER. 
 
 The former statutes upon this subject are repealed by the 7 & 8 
 Geo. 4, c. 27. 
 
 The 7 & 8 Geo. 4, c. 29, s. 26, enacts, " that if any person shall un- 7 & 8 Geo. 
 lawfully and wilfully course, hunt, snare or carry away, or kill, or t£' g[ e s a 'j. 
 wound, or attempt to kill, or wound, any deer, kept or being in the in- ing, &c, 
 closed part of any forest, chase, or purlieu, or in any inclosed land deer in . any 
 wherein deer shall be usually kept, every such offender shall be guilty ground, 
 of felony, and being convicted thereof, shall be liable to be punished in felony. 
 the same manner as in the case of simple larceny ;(«) and if any person certa in un- 
 
 (v) See a precedent of an indictment against the keeper of a slaughter-house, for slaugh- 
 tering a horse without giving the proper notice. 3 Chit. Crim. L. 721. 
 
 (w) See the statute, and 2 Burn's Just. tit. Horses, sec. 1. 
 
 (x) 26 Geo. 3, c. 71, s. 15. See also, the 5 & 6 Wm. 4, c. 59, ss. 7 & 8, which impose 
 penalties for keeping or using places for slaughtering horses not licensed under the 26 Geo. 
 .'J, and also for employing at work, and not properly feeding horses or cattle intended to be 
 slaughtered. 
 
 (a) Ante, p. 1.
 
 142 
 
 OF STEALING AND DESTROYING DEER. 
 
 [BOOK IV. 
 
 Inclosed 
 ground 
 
 olosed 
 ground 
 
 aft or any 
 
 other of- 
 cneo as to 
 deer, felo- 
 ny. 
 
 shall unlawfully and wilfully course, hunt, snare, or cany away, or kill, 
 , or wound, or attempt to kill or wound, any deer kept or being in the 
 summarily*, uninclosed part of any forest, chase or purlieu, he shall for every such 
 Deer-steal- on ~ one0i on conviction thereof before a justice of the peace, forfeit and 
 " pay such sum, not exceeding fifty pounds, as to the justice shall seem 
 meet; and if any person, who shall have been previously convicted of 
 any offence relating to deer, for which a pecuniary penalty is by this 
 act imposed, shall offend a second time, by committing any of the 
 offences hereinbefore last enumerated, such second offence, whether it 
 be of the same description as the first offence or not, shall be deemed 
 felony, and such offender, being convicted thereof, shall be liable to be 
 punished in the same manner as in the case of simple larceny."(aa) 
 
 Where a prisoner was indicted under this section for a second offence, 
 and the previous conviction was made by two justices, it was held good. 
 And where such a conviction, after stating the venue in the margin in 
 the usual way, set forth that on a certain day at a certain place in the 
 county of Oxford, the prisoner was convicted for that he did on a cer- 
 tain day unlawfully use an engine for the purpose of killing deer in the 
 forest of Wychwood, but omitted to state where or in what county the 
 offence was committed, but proceeded to direct the penalty to be paid 
 to the overseers of D. in the said county, " where the said offence was 
 committed," it was held that this sufficiently showed the offence to 
 have been committed in the county of Oxford. (b) 
 
 Upon an indictment for a second offence against the 42 Geo. 3, c. 
 107, (now repealed,) by killing deer, objections might be taken to the 
 validity of the previous conviction. An indictment on that statute 
 stated that the prisoner was convicted by a justice for the *county of 
 Essex for unlawfully carrying away a deer, and that afterwards he 
 feloniously and unlawfully did offend a second time by feloniously aid- 
 ing in killing a deer. The conviction was made by a magistrate of 
 Essex at a place in Middlesex, and was a conviction of the prisoner and 
 three other persons. The offence was committed in Essex. It was ob- 
 jected, 1st, that the indictment did not state that the prisoner was duly 
 convicted ; 2dly, that he was not duly convicted, as the conviction was 
 in Middlesex ; 3dly, that the conviction was of four, whereas it was 
 stated in the indictment as of the prisoner only. And, on a case re- 
 served, the judges held that the prisoner ought not to have been con- 
 victed of the felony. (bb\ 
 
 The 27th section of the same statute enacts, "that if any deer, or the 
 head, skin, or other part thereof, or any snare or engine for the taking 
 of deer, shall by virtue of a search-warrant, to be granted as hereinafter 
 possession mentioned, be found in the possession of anv person, or on the premises 
 
 oi venison ^ * r 
 
 Ac, and ' of any person, with his knowledge, and such person, being carried before 
 not satis- a justice of the peace, shall not satisfy the justice that he came lawfully 
 accounting *>y suca ^ eer > or tne nea( *> skm , or otner V art thereof, or had a lawful 
 for it occasion for such snare or engine, and did not keep the same for any 
 unlawful purpose, he shall on conviction by the justice, forfeit and pay 
 
 (aa) Ante, p. 1. 
 
 (b) Rex v. Weale, a 5 C. & P. 135, Park, J. A. J. The second point decided in this case 
 is directly contrary to the decision in Rex v. Johnson, 1 Str. 231, and seems to have been 
 wrongly decided. C. S. G. 
 
 (66) Rex v. Allen, Russ. & Ry. 513. The reporters add, the second objection was prob- 
 ably considered fatal. 
 
 a Eng. Com. Law Reus. xxiv. 245. 
 
 
 143 
 
 Sec. 27. 
 Suspected 
 persons 
 found in
 
 CHAP. XII.] OF STEALING AND DESTROYING DEER. 143 
 
 any sum not exceeding twenty pounds; and if any such person shall not, In case 
 under the provisions aforesaid, be liable to conviction, then for the dis- b/oonvict- 
 covery of the party who actually killed or stole such deer, it shall be ed, how tho 
 lawful for the justice, at his discretion, as the evidence given, and the J J "„ t !^ d may 
 circumstances of the case shall require, to summon before him every 
 person through whose hands such deer, or the head, skin, or other part 
 thereof, shall appear to have passed ; and if the person from whom the 
 same shall have been first received, or who shall have had possession 
 thereof, shall not satisfy the justice that he came lawfully by the same, 
 he shall, on conviction by the justice, be liable to the payment of such 
 sum of money as is hereinbefore last mentioned." 
 
 By sec. 28, " if any person shall unlawfully and wilfully set or use Sec. 28. 
 any snare or engine whatsoever, for the purpose of taking or killing letting en - 
 deer, in any part of any forest, chase, or purlieu, whether such part be taking deer 
 inclosed or not, or in any fence or bank dividing the same from any " r P u,lin S 
 
 down nark 
 
 land adjoining, or in any inclosed land where deer shall be usually f enC es. 
 kept, or shall unlawfully and wilfully destroy any part of the fence of 
 any land where any deer shall be then kept, every such offender, being 
 convicted thereof before a justice of the peace, shall forfeit and pay 
 such sum of money, not exceeding twenty pounds, as to the justice 
 shall seem meet." 
 
 By sec. 29, " if any person shall enter into any forest, chase, or purlieu, Sec. 29. 
 whether inclosed or not, or into any inclosed land where deer shall be Deer kee P- 
 usually kept, with intent unlawfully to hunt, course, wound, kill, snare, se iz e the 
 or carry away any deer, it shall be lawful for every person entrusted g uns » &c -> 
 with the care of such deer, and for any of his assistants, whether in his ers wn o cm 
 presence or not, to demand from every such offender any gun, fire-arms, demand, 
 snare, or engine in his possession, and any dog there brought for hunt- cl g U ° er 
 ing, coursing, or killing deer, and in such case the offender shall not the same, 
 immedietely deliver up the same, to seize and take the same from him 
 in any of those respective places, *or, upon pursuit made, in any other *144 
 place to which he may have escaped therefrom, for the use of the owner 
 of the deer ; and if any such offender shall unlawfully beat or wound Resistance 
 any person entrusted with the care of the deer, or any of his assistants, ^ e ^ p ^j s e ' 
 in the execution of any of the powers given by this act, every such execution 
 offender shall be guilty of felony, and, being convicted thereof, shall be ° f £ heir 
 liable to be punished in the same manner as in the case of simple 
 larceny."(6) 
 
 By the express words of this section a demand must be made of the 
 gun, &c, before a seizure ; the 16 Geo. 3, c. 30, s. 9, (now repealed,) 
 authorized persons entrusted with the care of deer to seize any gun, &c, 
 brought by any person with intent unlawfully to shoot deer, without 
 making a previous demand necessary ; but it was held upon that statute 
 that an assistant keeper had no right to seize the person of one so armed, 
 in order to get his gun, without having first demanded the gun. On an 
 indictment under the 16 Geo. 3, c. 30, s. 9, for assaulting one Barrett 
 in the execution of his office as assistant keeper of Cranbourne Chase, it 
 appeared that Barrett saw the prisoner in the Chase with a gun in his 
 hand, running; he pursued him, and called out that if he did not stop 
 he would knock him down, and threw a stick at him, but it did not ap- 
 pear that the stick hit him. When he arrived within twenty yards of 
 
 [b) Ante, p. 1.
 
 1|( OF TAKING, ETC., HARES, ETC., IN A WARREN, ETC. [EOOK IV, 
 
 the prisoner he turned round, and presenting his gun at Barrett, threat- 
 ens! to blow his brains out if he came any nearer. On Barrett still 
 advancing the prisoner ran on, until Barrett came within four or five 
 yards of him, when he again put his gun to his shoulder, pointed it 
 towards Barrett, and threatened as before. Barrett, however, still ad- 
 vanced, and put out his hand to catch hold of the prisoner, his inten- 
 tion being to take both his gun and his person, when the prisoner, seizing 
 the barrel of his gun, struck Barrett with the butt end a violent blow 
 on the head, which knocked him down and stunned him. Upon a case 
 reserved, the judges were unanimous that as the keeper had no right to 
 seize the person in order to get the gun, unless he had first demanded 
 the gun, he was not duly in the execution of his office, when the pri- 
 soner beat him, and that the conviction was therefore wrong, (c) 
 Apprehen- The 63d section of the same statute contains a general provision for 
 sion of £] ie apprehension and discovery of offenders punishable under this act, 
 Summary and the 64th and following sections regulate the proceeding in respect 
 convic- to a summary conviction. 
 
 By the 61st section, in cases of felony, principals in the second de- 
 and^cc'es 3 § ree > anc ^ accessories before the fact, are punishable in the same manner 
 sories. as principals in the first degree ; and accessories after the fact (except 
 ... . receivers') are, on conviction, liable to be imprisoned for any term not 
 
 Abettors in J ' ' . . . r .. . , f . 
 
 misdemea- exceeding two years, and abettors in misdeameanors are liable to be in- 
 nors and dieted and punished as principal offenders. By section 62, abettors in 
 
 in minor .-iii •• i • i i i 
 
 offences, ottences punishable on summary conviction, are made punishable as 
 principal offenders, (c?) 
 
 *145 ^CHAPTER THE THIRTEENTH. 
 
 OF TAKING OR KILLING HARES OR CONEYS IN A WARREN, ETC. 
 
 But the statutes formerly existing upon this subject are repealed by 
 7 k 8 Geo. the 7 & 8 Geo. 4, c. 27. 
 
 30° Killing But the 7 & 8 Geo. 4, c. 29, s. 30, enacts, " that if any person shall 
 hares or unlawfully and wilfully in the night-time take or kill any hare or coney 
 wTrrln, 111 a in an ? warren or ground lawfully used for the breeding or keeping of 
 <fcc., in the hares or coneys, whether the same be inclosed or not, every such offender 
 °hfdiy- rinsllal ! be guilty of a misdeamean or> and being convicted thereof shall be 
 time. punished accordingly ;(a) and, if any person shall unlawfully and wil- 
 
 (c) Rex v. Amey, Russ. & Ry. 500. A further question, not decided, was whether an 
 assistant keeper, not appointed or confirmed by the owner of the chase, had authority to 
 seize guns unless the head keeper were present: the words '-any of his assistants, whether 
 in his presence or not," in sec. 29, seem introduced to meet this point. C. S. G. 
 
 (d) Ante, p. 2, as to hard labour and solitary confinement. 
 
 (a) The 7 & 8 Geo. 3, c. 29, s. 4, "with regard to the place and mode of imprisonment 
 for all indictable offences publishable under this act," enacts that " where any person shall 
 be convicted of any felony or misdemeanor punishable under this act, for which imprison- 
 ment may be awarded, it shall be lawful for the court to sentence the offender to be impri- 
 soned, or to be imprisoned and kept to hard labour in the common gaol or house of correction 
 and also to direct that the offender shall be kept in solitary confinement for the whole or any 
 portion or portions of such imprisonment, or of such imprisonment with hard labour as t'o 
 the court in its discretion shall seem meet." But by the 1 Vict. c. 90, s. 5 it is enacted that 
 " it shall not be lawful for any court to direct that any offender shall be kept in solitary con- 
 finement for any longer period than one month at a time, or than three months in the space 
 of one year."
 
 CHAP. XIII.] OF TAKING, ETC., HARES, ETC., IN A WARREN, ETC., 145 
 
 fully in the day-time, take or kill any hare or coney in any such warren 
 or ground, or shall at any time set or use therein any snare or engine 
 for the taking of hares or coneys, every such offender, being convicted 
 thereof before a justice of the peace, shall forfeit and pay such a sum 
 of money not exceeding five pounds, as to the justice shall seem meet; 
 provided always, that nothing herein contained shall affect any person Proviso, 
 taking or killing in the day-time any coneys on any sea-bank or river- 
 bank in the county of Lincoln, so far as the tide shall extend, or within 
 one furlong of such bank." 
 
 With respect to what shall be deemed a talcing of a hare, &c, it may Glover's 
 be observed, that in a case upon the repealed statute, 5 Geo. 3, c. 14, in ^ se -. 
 which the prisoner was indicted for entering a warren in the night-time, coney in a 
 and there taking a coney against the will of the occupier of the warren, wire, held 
 it appeared in evidence that he set wires in the warren at about six constitute 
 o'clock in the evening of a day towards the latter end of December: the offence. 
 that a coney was caught in one of the wires ; and that he came again an "^i was 
 before six o'clock the next morning, when he was surprised and seized not killed, 
 by the warrener iust as he was about laying hold of the wire in which an<1 th f. 
 
 i i . r party did 
 
 the coney was caught ; the coney being then alive : and, upon a case not take it 
 reserved, the judges thought that the taking by the wire was a taking awa y> 
 by the prisoner *within the meaning of the statute, and that he had *146 
 been properly convicted. (b) 
 
 The 63d section contains a general provision for the apprehension Apprehen- 
 and discovery of offenders punishable under the act, and the 64th and S1 ° n ' &c -' 
 
 ... . J . r ' ofoffend- 
 
 iollowing sections regulate the proceedings in respect of summary con- ers. 
 victions. 
 
 By the 61st section abettors in misdemeanors are liable to be indicted Abetters. 
 and punished as principal offenders : and by the 62d section abettors in 
 offences punishable on summary convictions are made punishable as 
 principal offenders. 
 
 The act applies to places which are either warrens, or which are simi- What 
 lar to warrens, where rabbits are commonly kept, and not to places p l*?"? 8 ®f e 
 
 7 i r ' n i . within the 
 
 where a few rabbits may be kept. On an indictment for destroying statute, 
 coneys in the night-time in a ground lawfully used for breeding them, it 
 appeared that the prosecutor kept rabbits, which ran about loose in his 
 rick-yard, and that the rabbits were destroyed by poison in the night- 
 time ; it was submitted that the statute only applied to warrens, and to 
 places similar to warrens, but which could not legally be called war- 
 rens. Patteson, J., "This place was not used exclusively for rabbits; 
 and it appears that the prosecutor merely kept some rabbits in his rick- 
 yard. If the yard had been kept exclusively for rabbits, I should have 
 doubted it ; but I think that this case is clearly not within the act of 
 parliament. The act applies to places commonly called rabbit-warrens, 
 and not to places where a few rabbits are kept.'Vc) 
 
 (b) Glover's case, cor. Bayley, J., Somerset Spr. Ass. 1814, and East. T. 1814, MS. Bay- 
 ley J., and Russ. & Ry. 269. 
 
 (c) Rex v. Garratt, a 6 C. & P. 369. 
 
 a Eng. Com. Law Reps. xxv. 442.
 
 <147 OF UNLAWFUL TAKING. [BOOK IV. 
 
 ^CHAPTER THE FOURTEENTH. 
 
 OF UNLAWFULLY TAKING OR ATTEMPTING TO TAKE FISH. 
 
 Oflfenoe at I T i s admitted that larceny at common law may be committed of fish, 
 common when confined in a trunk or not;(a) but doubts have been raised whe- 
 1:OV ' ther it may be committed in like manner of fish in a pond. It should 
 
 seem, however, upon principle, and according to the better opinions, 
 that larceny may be committed of fish in a pond, if the pond be private 
 enclosed property, and of such kind and dimensions that the fish within 
 it may be considered as restrained of their natural liberty, and liable 
 to be taken at any time, according to the pleasure of the owner.(6) But 
 clearly larceny at common law cannot be committed of fish at their 
 natural liberty in rivers or great waters. (c) 
 Offences by Many statutes were passed at different times for the better preserva- 
 statutes. tion of fish, and for regulating the fisheries in various parts of the king- 
 dom ; but some of them became obsolete, and the others were repealed 
 by the 7 & 8 Geo. 4, c. 27. 
 Taking fish The 7 & 8 Geo. 4, c. 29, s. 34, enacts, "that if any person shall un- 
 in any lawfully and wilfully take(f?) or destroy any fish in any water which 
 ate in land shall run through or be in any land adjoining(?) or belonging to the 
 belonging dwelling-house of any person, being the owner of such water, or having 
 ing-house. a right of fishery therein, every such offender shall be guilty of a mis- 
 In any pri- demeanor, and, being convicted thereof, shall be punished accord- 
 efsewhere 7 in g>(f) anc ^ ^ any person shall unlawfully and wilfully take or de- 
 stroy, or attempt to take or destroy, any fish in any water, not being 
 such as aforesaid, but which shall be private property, or in which there 
 *148 shall be any private right of fishery, every such offender, *being con- 
 victed thereof before a justice of the peace, shall forfeit and pay, over 
 and above the value of the fish taken or destroyed, (if any,) such sum 
 of money, not exceeding five pounds, as to the justice shall seem meet : 
 Provisions provided always, that nothing hereinbefore contained shall extend to 
 anglers 1Dg an y P erson angling in the day-time ; but if any person shall by angling 
 in the day-time unlawfully or wilfully take and destroy, or attempt to 
 take or destroy, any fish in such water as first mentioned, he shall, on 
 conviction before a justice of the peace, forfeit and pay any sum not 
 exceeding five pounds ; and if in any such water as last mentioned, he 
 shall on the like conviction, forfeit and pay any sum, not exceeding tw<> 
 pounds, as to the justice shall seem meet ; and if the boundary of any 
 
 (a) Ante, p. 83. 2 East, P. C. c. 16, s. 43. p. 610. 
 
 (b) Staundf. 25 b. 3 Inst. 109. Lamb. 274. 1 Hawk. P. C. c. 33, s. 39. 2 East, P. C. 
 c. 16, s. 43, p. 610, 611. But the indictment should describe the pond, so that it may appear 
 on the face of it, that taking fish out of such a pond is felony. 2 East, P. C. 611. 
 
 (c) 3 Inst. 109. 1 Hawk. P. C. c. 33, s. 39. 
 
 (d) If fish were enclosed in a net, or hooked on a line, it would seem tbat the case would 
 come within this clause, by analogy to Glover's case, ante, p. 146, although there had been 
 no actual removal of them by the hands of the prisoner. C. S. G. 
 
 (e) Rex v. Hodges, ante, p. 67, as to the meaning of the term adjoining. 
 
 (/) That is by fine or inprisonment, or both; the imprisonment may be with or without 
 hard labour, in the common gaol or house of correction, and the offender may be kept in 
 solitary confinement for any portion of such imprisonment, or of such imprisonment with 
 hard labour, not exceeding one month at a time, or three months in the space of one year. 
 as to the court shall seem meet, nnder the 7 & 8 Geo. 4, c. 29, s. 4. and 1 Vict. c. OO.'s. 5. 
 See my note, ante t p. 145. C. S. G.
 
 CHAP. XIV.] OF UNLAWFUL TAKING. 148 
 
 parish, township, or vill, shall happen to be in or by the side of any 
 such water as is hereinbefore mentioned, it shall be sufficient to prove 
 that the offence was committed either in the parish, township, or vill 
 named in the indictment or information, or in any parish, township, or 
 vill adjoining thereto." 
 
 By sect. 35, "If any person shall at any time be found fishing against The tackle 
 the provisions of this act, it shall be lawful for the owner of the ground, of fis k ers 
 water, or fishery, where such offender shall be so found, his servants, seized. 
 or any other person authorized by him, to demand from such offender 
 any rods, lines, hooks, nets, or other implements for taking or destroy- 
 ing fish, which shall then be in his possession, and in case such offender 
 shall not immediately deliver up the same, to seize and take the same 
 from him for the use of such owner : provided always, that any person Angler, on 
 angling in the day-time against the provisions of this act, from whom f® 1 ™ rc k ° 1 f> 
 any implements used by anglers shall be taken, or by whom the same exempt 
 shall be delivered up as aforesaid, shall, by the taking or delivering from 
 thereof, be exempt from the payment of any damages or penalty for such 
 angling." 
 
 By sec. 36, " If any person shall steal any oysters or oyster brood Stealing 
 from any oyster-bed, laying or fishery, being the property of any other ovsters or 
 person, and sufficiently marked out or known as such, every such beds, 
 offender shall be deemed guilty of larceny, and, being convicted thereof, Dredging 
 shall be punished accordingly^/") and if any person shall unlawfully within the 
 and wilfully use any dredge, or any net, instrument, or engine whatso- limits of 
 ever, within the limits of any such oyster fishery, for the purpose of gg^ry 8 C 
 taking oysters or oyster brood, although none shall be actually taken ; 
 or shall, with any net, instrument, or engine, drag upon the ground or 
 soil of any such fishery, every such person shall be deemed guilty of a 
 misdemeanor, and, being convicted thereof, shall be punished by a fine 
 or imprisonment, or both, as the court shall award; such fine not to 
 exceed twenty pounds, and such imprisonment not to exceed three 
 calendar months; and it shall be sufficient in any indictment or infor- 
 mation to describe, either by name or otherwise, the bed, laying, or 
 fishery in which any of the said offences shall have been committed, 
 without stating the same to be in any particular parish, township, or 
 vill : provided always, that nothing herein contained shall prevent any 
 person from catching or fishing for any floating fish within the limits of Proviso. 
 *any oyster fishery with any net, instrument or engine adapted for tak- *149 
 ing floating fish only." 
 
 The 63d section contains a general provision for the apprehension of Apprehen- 
 offenders punishable under the act, except only as to the offence of offenders, 
 angling in the day-time : and the 64th and following sections regulate Summary 
 the proceedings in respect of summary convictions. tionl 10 " 
 
 The 61st section as to cases of felony, makes principals in the second Principals 
 degree and accessories before the fact, punishable in the same manner ln the , se " 
 as principals in the first degree ; and accesories after the fact (except gre e and 
 receivers) are on conviction liable to be imprisoned for any term not accessories, 
 exceeding two years ; and abettors in misdemeanors are liable to be 
 indicted and punished as principal offenders. By section 62, abettors 
 in offences punishable on summary conviction, are made punishable as 
 principal offenders. (</) 
 
 (/) For the punishment of larceny, see ante, p. 1. 
 
 (</) See ante, p. 2. as to hard labour and solitary confinement,
 
 L49 
 
 OF TLUNDERING VESSELS, ETC. 
 
 [BOOK IV. 
 
 Indict- 
 ment. 
 
 Where an indictment charged the prisoner with unlawfully entering a 
 earden adjoining a dwelling-house, and with a certain net stealing out 
 of a pond in the said garden a certain quantity of live gold and silver 
 tish of the goods and chattels of S. T. ; the judges held the indictment 
 good, the case being brought within the 5 Geo. 3, c. 14, (now repealed,) 
 without the allegation that the fish were the goods and chattels of any 
 person, and therefore that part of the indictment was surplusage. (A) 
 
 An indictment on the same repealed statute was good, although it did 
 not state the means by which the fish were taken or stolen, and although 
 it alleged them to have been feloniously stolen. An indictment stated 
 that the prisoner unlawfully did enter into a certain park, through 
 which there ran a river, and " feloniously did steal, take, kill, and carry 
 away certain fish," specifying them : it was objected that the ways and 
 means by which the fish were taken ought to have been specified, and 
 that the fact was alleged to be done feloniously, and the offence was not 
 a felony ; but, on a case reserved, the judges thought there was nothing 
 in these objections. (i) 
 
 150 
 
 ^CHAPTER THE FIFTEENTH. 
 
 OF STEALING IN ANY VESSEL IN PORT, OR UPON ANY NAVIGABLE RIVER, 
 ETC., OR IN ANY CREEK, ETC., AND OF PLUNDERING SHIPWRECKED 
 VESSELS. 
 
 Stealing 
 goods from 
 a vessel in 
 a port, 
 river, 
 canal, &c. 
 
 The 7 & 8 Geo. 4, c. 29, s. 17, enacts, " that if any person shall steal 
 any goods or merchandise in any vessel, barge, or boat of any descrip- 
 tion whatsoever, in any port of entry or discharge, or upon any naviga- 
 ble river or canal, or in any creek belonging to or communicating with 
 any such port, river, or canal, or shall steal any goods or merchandise 
 from any dock, wharf, or quay, adjacent to any such port, river, canal, 
 or creek, every such offender, being convicted thereof, shall be liable to 
 any of the punishments which the court may award as hereinbefore last 
 mentioned." 
 
 The 1 Vict. c. 90, s. 2, after reciting the preceding section, repeals 
 so much of it " as relates to the punishment of persons convicted of any 
 of the offences" therein contained, and enacts that " every person con- 
 victed after the commencement of this act (1st October, 1837,) of any 
 such offences respectively, shall be liable to be transported beyond the 
 seas for any term not exceeding fifteen years, nor less than ten years, or 
 to be imprisoned for any term not exceeding three years :" and by sec. 
 3, the court may " direct such imprisonment to be with or without hard 
 labour, in the common gaol or house of correction, and also direct that 
 the offender shall be kept in solitary confinement for any portion or por- 
 tions of such imprisonment, or of such imprisonment with hard labour, 
 not exceeding one month at any one time, and not exceeding three 
 months in any one year." 
 
 The 1 Vict. c. 87, after by sec. 1 repealing sec. 18 of the 7 & 8 Geo. 
 
 (h) Hundson's case, 2 East, P. C. e. 1G, s. 43, p. 611. 
 
 (i) Rex v. Carradice, Russ. & Ry. 205. The judges held the conviction wrong, on the 
 ground that the fish were not " bred, kept, or preserved" in the river, as the river ran in its 
 natural course, and there was nothing to keep or preserve the fish within the park.
 
 CHAP. XV.] OF PLUNDERING VESSELS, ETC. 150 
 
 4, c. 29, as to principals in the first and second degrees and acces- 
 sories before and after the fact respectively, by sec. 8, enacts, " that 
 whosoever shall plunder or steal any part of any ship or vessel which Plunder- 
 shall be in distress, or wrecked, stranded, or cast on shore, or any goods, ? n S T * 8ee,( 
 merchandise, or articles of any kind belonging to such ship or vessel, (b) 
 and be convicted thereof, shall be liable, at the discretion of the court, 
 to be transported beyond the seas for any term not exceeding fifteen 
 years, nor less than ten years, or to be imprisoned for any term not ex- 
 ceeding three years." 
 
 By sec. 9, principals in the second degree and accessories before the 
 fact, are punishable in the same manner as principals in the first *de- *151 
 gree, and accessories after the fact (except receivers) are liable to be im- 
 prisoned for not exceeding two years ; and by sec. 10, the court may 
 sentence offenders to be imprisoned, or be imprisoned with hard labour, 
 in the common gaol or house of correction, and also to be kept in soli- 
 tary confinement for any portion or portions of such imprisonment, or 
 imprisonment with hard labour, not exceeding one month at any time, 
 and not exceeding three months in any one year.(c) 
 
 The 7 & 8 Geo. 4, c. 29, s. 19, enacts, " that if any goods, merchan- Persons in 
 dise, or articles of any kind, belonging to any ship or vessel in distress possession 
 or wrecked, stranded, or cast on shore as aforesaid, shall by virtue of a wrecked 
 search-warrant, to be granted as hereinafter mentioned, be found in the g°°ds, not 
 possession of any person, or on the premises of any person with his gatiTfac^ 
 knowledge, and such person, being carried before a justice of the peace, tory 
 shall not satisfy the justice that he came lawfully by the same, then the accoun • 
 sums shall, by order of the justice, be forthwith delivered over to or 
 for the use of the rightful owner thereof; and the offender, on convic- 
 tion of such offence before the justice, shall forfeit and pay, over and 
 above the value of the goods, merchandise, or articles, such sum of 
 money, not exceeding twenty pounds, as to the justice shall seem meet." 
 
 By sec. 20, " if any person shall offer or expose for sale any goods, If any per- 
 merchandise, or articles whatsoever, which shall have been unlawfully so ? offers 
 
 ' ' . J shipwreck- 
 
 taken, or reasonably suspected to have been, from any ship or vessel in ed goods 
 
 distress, or wrecked, stranded, or cast on shore as aforesaid, in every fors ale, the 
 
 such case any person to whom the same shall be offered for sale, or any be seized, 
 
 officer of the customs or excise, or peace officer, may lawfully seize the &c - 
 
 same, and shall, with all convenient speed, carry the same or give notice 
 
 of such seizure, to some justice of the peace; and if the person who 
 
 shall have offered or exposed the same for sale, being duly summoned 
 
 by such justice, shall not appear and satisfy the justice that he came 
 
 lawfully by such goods, merchandise, or articles, then the same shall, 
 
 by order of the justice, be forthwith delivered over to or for the use of 
 
 the rightful owner thereof, upon payment of a reasonable reward (to be 
 
 ascertained by the justice) to the person who seized the same ; and the 
 
 offender, on conviction of such offence by the justice, shall forfeit and 
 
 pay, over and above the value of the goods, merchandise, or articles, 
 
 such sum of money, not exceeding twenty pounds, as to the justice 
 
 shall seem meet." 
 
 The 63d section contains a general provision for the apprehension Apprehen- 
 
 (b) The 18th section of the 7 & 8 Geo. 4, c. 20, was similar to sec. 8 of 1 Vict. c. 87, but 
 contained a proviso that where things of small value were cast on shore, and stolen without 
 circumstances of violence, the offender might be prosecuted for simple larceny. 
 
 (c) See the sections, ante, vol. 1, p. 868. 
 
 Vol. ii.— 11
 
 151 OF PLUNDERING VESSELS, ETC. [BOOK IV. 
 
 sion of of- and discovery of offenders punishable under the act : and the 64th and 
 fenders, following sections regulate proceedings in respect of summary convic- 
 
 oonrio- tions. 
 
 tiona. j>^ r t j lc gist section, in cases of felony, principals in the second de- 
 
 Principala an( j accesgor i es before the fact are punishable in the same manner 
 
 ami aoces e * . , _ 
 
 sories as principals in the first degree ; and accessories alter the tact (except 
 
 receivers) are on conviction, liable to be imprisoned for any term not 
 
 . exceeding two years; and abettors in misdemeanors are liable to be 
 
 misdemea- indicted and punished as principal offenders. By section 62, abettors 
 
 nora andinj n offences punishable on summary conviction, are made punishable as 
 
 minor of- , J; , 
 
 fences. principal onenders. 
 
 ♦152 *It may be observed, that in a case upon the repealed statute 24 Geo. 
 As to the 2, c. 45, the words " goods, wares, and merchandise" were considered 
 good^fc! as restra i ne d to suca goods, &c, as were usually lodged in vessels, or 
 ' on wharfs or quays.(d) So that where the prisoner was indicted upon 
 that statute for stealing a considerable sum of money out of a ship in 
 port, the case was holden not to be within the statute, though great 
 part of the money consisted of Portugal money, not made current by 
 proclamation, but commonly current.(e) 
 Luggage of The luggage of a passenger going by a steamer, is within the words 
 passengers. u g 00( j s or merchandise" in sec. 17. The prisoners were indicted for 
 stealing a portmanteau, two coats, and various other articles, in a vessel 
 upon the navigable river Thames. The property in question was the 
 luggage of a passenger going on board the Columbian steamer from 
 London to Hamburg; and it was held that the object of the statute 
 was to protect things on board a ship, and that the luggage of a pas- 
 senger came within the general description of goods.(/) 
 
 We have seen that where the master and owner of a ship took some 
 of the goods delivered to him to carry, it was held not to be larceny, 
 as he did not take the goods out of their package ; and it was also held 
 that, even if under the circumstances it had amounted to larceny, it 
 would not have been an offence within the repealed statute of the 24 
 Geo. 2.(g) 
 
 Where the prisoner was indicted for stealing a quantity of deals " in 
 a certain barge on the navigable river Thames," and it appeared that 
 the barge had been brought into Limehouse dock, and there moored ; 
 and by the efflux of the tide it was left aground, and in the night the 
 deals were stolen; it was held that the offence laid was not proved 
 within the meaning of the 24 Geo. 2, c. 45, as the evidence proved that 
 the offence was not committed on the navigable river Thames, but upon 
 the banks of one of its creeks.^) 
 
 By the 1 Vict. c. 87, s. 13, any felony punishable under that act, 
 committed within the jurisdiction of the Admiralty of England or Ire- 
 land, « shall be dealt with, inquired of, tried and determined in the 
 same manner as any other felony committed within that jurisdic- 
 tion."^) 
 
 (d) 2 East, P. C. c. 16, s. 85, p. 647. 
 
 (e) Grimes's case, Maidstone Lent Ass. 17:. 2. Fost. 79. in the note S P in Leieh'a case, 
 O. B. 1764. 1 Leach, 52. 
 
 (f) Rex v. Wright,* 7 C. & P. 159. Park, J. A. J., and Alderson, B. 
 y) Rex v. Madox, Mich. T. 1805. Russ. & Ry. 92. Ante, p. 60. 
 
 \gg) Pike's case, 2 East, P. C. c. 16, s. 85, p. 647. 
 1 h) By sec. 14, the act does not extend to Scotland. 
 
 a Eng. Com. Law Reps, xxxii. 479.
 
 CHAP. XVI.] HAVING CUSTODY AS SERVANTS. *153 
 
 *CHAPTER THE SIXTEENTH. 
 
 OF LARCENY BY SERVANTS, AND PERSONS WIIO HAVE TIIE CUSTODY OF 
 GOODS AS SERVANTS, AND NOT THE LEGAL POSSESSION. 
 
 Some statutes, upon this subject were repealed by the 7 & 8 Geo. 4, Offences at 
 
 comn 
 law. 
 
 c. 27, having been for a long time but little resorted to, as the common co 
 
 law applies to the fraudulent conversion by a servant, to his own use, 
 of the goods of his master. The punishment for a felonious stealing by 
 a servant from his master, is made more severe than in an ordinary 
 case of larceny by the 7 & 8 Geo. 4, c. 29, which will be more fully 
 mentioned at the close of this chapter. 
 
 The clear maxim of the common law, established by a variety of 
 cases, is, that where a party has only the bare charge or custody of the 
 goods of another, the legal possession remains in the owner ; and the 
 party may be guilty of trespass and larceny, in fraudulently converting 
 the same to his own use. (a) And this rule appears to hold univer- 
 sally in the case of servants, whose possession of their master's goods, 
 by their delivery or permission, is the possession of the master him- 
 self.^) 
 
 In support of this maxim of the common law here laid down, it will 
 be proper to cite some of the more modern cases in which it has been 
 recognized."|" 
 
 A sheriff's officer clandestinely selling for his own use part of the Eastall's 
 goods which he has seized under a writ of fieri facias, is guilty of™ se \_, 
 larceny. The prisoner, a sheriff's officer, under a writ of fieri facias officer 
 against one Bell, seized the goods in Bell's house, amongst which were dandes- 
 
 . . tinety sell- 
 
 some engravings in a locked closet. He removed a bead from the door j ng g00 ds 
 of that closet, took out the engravings and sold them for his own use. levied. 
 Upon an indictment against him for larceny, it was urged that this was 
 a breach of trust only; but upon the point being saved, the judges 
 held it a larceny ; on the ground that the officer had the custody of the 
 goods only, like a servant, and not the legal possession ; and the con- 
 viction was held to be right.(c) 
 
 The prisoner was indicted for stealing a bill of exchange of the value Paradiee's 
 of 100?., the property of the prosecutor. It appeared in evidence, that ca ? e " e 
 he was a foreman and book-keeper to the prosecutor, who was a mercer who was 
 at Devizes, at a yearly salary, and paid and received money for him, em P lo y e( * 
 not living in the house, but going there every day to transact his busi- ma n and 
 ness. The prosecutor delivered bills to him to the *amount of 15007., *154 
 and amongst them the bill in question, with directions to enclose them book- 
 in different covers, and send them by the day's post, as he had often not re gi_ 
 
 (a) 2 East, P. C. c. 1G, s. 14, p. 564, et seq. and the authorities there cited. And see as to 
 a bare charge or custody, ante, p. 21. 
 (6) 2 East, P. C. ibid." Ante, p. 21. 
 (c) Rex v. Eastall, Mich. T. 1822, MS. Bayley, J. 
 
 f [The taking by the defendant an article delivered to him as a servant, to remove from 
 one room to another, and converting the same to his own use, is larceny. United States v. 
 Glew, 4 Wash. C. C. Rep. 700. A person employed by a mercantile firm as a salesman in 
 their store, having full control over the goods in the store-room, and the money in the cash 
 drawer, for the purpose of his employment, abstracts a part of the goods and money with a 
 fraudulent intent to convert the same to his own use : Held, he is guilty of larceny. Walker 
 v. The Commonwealth, 8 Leigh, 743.]
 
 154 OF LARCENY BY SERVANTS AND OTHERS. [BOOK IV. 
 
 ding in the sent bills before, to his correspondent in London, as cash to be carried 
 house of to t k e crec iit of the prosecutor's account. The prisoner did not send 
 embezzled' the bills as he was directed ; and the next day, having obtained the 
 a bill of prosecutor's leave to go to visit some relations in the neighbourhood, he 
 which he' went to Salisbury, got cash for the bill in question, which had been 
 received indorsed by the prosecutor, and was also indorsed by the prisoner, and 
 master'to tnen went off; but was afterwards apprehended at Exeter, with part of 
 be trans- the bills and the money. It was contended on behalf of the prisoner at 
 ™rres d pon- a tne trial > tnat tne prosecutor, having delivered the bills to him, had 
 dent, in thereby parted with the possession of them, so that the prisoner could 
 the usual not i je gu iity f felony in taking: them away ; and the case was resem- 
 
 course of ° J /. e 1/7 -r> 
 
 business, bled to that of a carrier intrusted to carry goods. (a) But the prisoner 
 and it was was convicted ; and judgment was respited, in order to take the opinion 
 be larceny, of the judges, whether the case amounted to a felony, or was only a breach 
 of trust. They were all of opinion (with the exception of Lord Camden, 
 who was absent,) that the case amounted to larceny ; upon the princi- 
 ple that the possession still continued in the master. (e) 
 Robinson's A carter going away with his master's cart, was holden to have been 
 
 guilty of felony.(/) 
 Bass's case. The prisoner was convicted of stealing gauze of the value of eighty 
 The pnso- p 0un( j Sj the property of the prosecutor ; and the case was referred to 
 van't of the the consideration of the twelve judges, upon the following facts : The 
 prosecutor, prisoner was servant and porter in the general employ of the prosecutor, 
 delivered who was a gauze-weaver, and was sent with a package of goods from 
 to him by Lis master's house, with directions to deliver them to a customer at a 
 to carry to' particular place. In his way he met two men, who invited him into a 
 a customer, public house to drink with them, and then persuaded him to open the 
 sold and package, and sell the goods to a person whom one of the men brought 
 converted in ; which he accordingly did, by taking them out of the package, put- 
 tohis°own tm = tnem " lto ^ ie m an's bag, and receiving to his own use, part of the 
 use ; and money for which they were sold. All the judges held this to be felony, 
 holdento ° n the S round tnat tae possession of the goods still remained in the 
 
 be larceny ; master, (gr) 
 
 the posses- T u a case where the master of a captured vessel got property from 
 sion of the , -i , , , ,. , , . \ . o rr J 
 
 goods not the vessel clandestinely under particular circumstances, it seems to 
 
 being out have been held not to amount to larceny. The vessel was Prussian, 
 master by sent in b y a British cruzier, and at first ordered to be restored, but 
 such deli- afterwards, hostilities breaking out with Prussia, condemned as prize to 
 ver y- the king, as having been taken before hostilities. The captain of the 
 
 vessel lodged on shore, but went occasionally to the ship j the ship- 
 keeper, who was appointed when the ship was brought in, kept the keys 
 of the hatches, and two custom-house officers and nine of the original 
 crew remained on board. The property in question was secretly con- 
 veyed from the ship, and found at the master's, or at a place to which 
 *155 he had sent it, and it appeared that a bulk-head had *been broken to 
 get at part of such property. But the learned judge before whom the 
 prisoner was tried, doubted whether this regaining the possession of 
 
 (d) Ante, p. 59, et seq. 
 
 (e) Paradice*s case, cor. Gould, J., Sarum Lent Ass. 1766. East. T. 1776. 2 East. P. C. 
 c. 16, s. 15, p. 565, and cited by Gould, J., in Wilkins's case, 1 Leach, 523. 524. See Rex v. 
 Metcalf, post, p. 160. 
 
 (/) Robinson's case, 0. B. 1755. 2 East, P. C. e. 16, s. 15, p. 565. 
 (ff) Bass's case, 1 Leach, 251, 524. 2 East, P. C. c. 16, s. 15. p. 566.
 
 CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 1/ 
 
 >h 
 
 what had belonged to the master's owners, and had been entrusted to 
 his care, amounted to a larceny, and saved the point. And ultimately 
 the prisoner was recommended for a pardon. (A) 
 
 In a case where the prisoner had been convicted for stealing forty Spears's 
 bushels of oats, a question whether the facts amounted to felonv. was casc \ A 
 reserved for the opinion of the judges. The prosecutors, who were corn- having 
 factors, had purchased a cargo of oats on board a ship, lying in the river P urcua sed 
 Thames ; and they sent the prisoner, who was employed in their service catTon ° 
 as a lighterman, with their barge, to one Wilson, a corn-meter, for as hoard a 
 much oats, in loose bulk, as the barge would carry. The prisoner pro-j,," 1 ^^"^ 
 ceeded to the ship, and received from Wilson two hundred and twenty with his 
 cpuarters of oats in loose bulk, and five quarters in sacks. The five ha . rge tor f" 
 
 • i i i n i • i n cgivg port 
 
 quarters were put into sacks by order of the prisoner ; and were after- of the oat.s 
 wards embezzled by him. The question submitted to the judges was, j n 1 5 ,ose 
 whether this was felony, as the oats had never been in the possession the servant 
 of the prosecutors : or whether it was not like the case of a servant, ordered 
 receiving charge of, or buying, a thing for his master, and never deliv- them to be 
 ering it. And the judges held that it was larceny in the prisoner ; and put into 
 a taking from the actual possession of the owner, as much as if the oats which he 
 had been in his granary. (A afterwards 
 
 The following is a case of a similar nature. The prisoner was indicted embezzled ; 
 
 . ° r this was 
 
 (as in the former case) upon the 24 Geo. 2, c. 45, for stealing five quar- holden to 
 ters of oats from a vessel on the navigable river Thames. The prose- be la rceny. 
 cutors, in whom the property was laid, were cornfactors ; and the pris- Abrahat's 
 oner was their servant ; and had been employed by them many years case - Tno 
 in superintending the unloading of their corn vessels. The prosecutors being^orn- 
 had purchased two hundred and forty quarters of oats, on board a factors, 
 Dutch vessel, lying in the river Thames ; and while the corn-meters £"™ ^ 
 were in the act of unloading the oats from the Dutch vessel into the board a 
 prosecutor's barge, the prisoner, with another person, came alongside in ves sel and 
 a boat, handed ten empty sacks on board the Dutch vessel, and desired barge to re- 
 that the sacks might be filled with oats, and tied, as they were going to, ceive i *, iB 
 
 o ' 7 ^ o o bulk; when 
 
 be put into an up-country lug-boat. He also desired that the account their ser- 
 of the oats, put into the sacks, might be carried to the score, and no vant » who 
 separate account be made of them. The whole of the two hundred and p^yeefby 
 forty quarters of oats, excepting the five quarters put into the sacks by them to 
 the prisoner's desire, were loaded, in loose bulk, into the prosecutor's tenaUhe 
 barge. After the sacks were filled, a person, by the prisoner's direction, delivery, 
 took them away from the vessel to a place where they were delivered se P arated a 
 
 • mi • i t P ar ' trom 
 
 to the person who purchased them of the prisoner. The prisoner had the rest, 
 never been employed *by the prosecutors to sell corn for them ; nor was *156 
 he authorized so to do. Upon these facts the jury found the prisoner while on 
 guilty; and, the case being saved for the opinion of the judges, they ^^ l a ® d 
 were of opinion that the conviction was right.(&) It is observed that in embezzled 
 
 (h) Rex v. Vanmuyer, cor. Chambre, J., and before the Judges in Mich. T. 1806, MS. Bayley, 
 J., and Russ. & Ry.118. In MS. Bayley, J., it is observed that there was no evidence to 
 show that the master took the property for himself in opposition to the intention of his 
 owners, and that most of the judges seemed to think it would have been larceny if he had, 
 and contra, if he had not. 
 
 (i) Spears's case, Kingston Spring Ass. 1798. 2 Leach, 825. 2 East, P. C. c. 16, s. 16, 
 p. 568. The ground of the determination mentioned by Heath, J., in Walsh's case, 4 Taunt. 
 276, was that the corn was in the prosecutor's barge, and it was a taking from the master's 
 possession as much as if it had been taken from the master's granary. 
 
 (k) Abrahat's case, Surrey Spring Ass. 1798. 2 Leach, 824 2 East, P. C. c. 16, s. LG, 
 p. 569. Although it is not expressly so stated in the reports, yet it is clearly to be inferred
 
 156 OF LARCENY BY SERVANTS AND OTHERS. [BOOK IV. 
 
 it : and this case there appears to have been a tort committed by the servant in 
 
 e^tobelar- ' ne vei 7 ac ^ °^ ^ e * a ki n g : that the property of his masters in the corn 
 
 ceny. was complete before the delivery to him; and that, after the purchase 
 
 of it in the vessel, they had a lawful and exclusive possession of it as 
 
 against all the world, but the owner of the vessel. (/) 
 
 Where property which the prosecutors had bought was weighed out 
 in the presence of their clerk, and delivered to their carter's servant to 
 cart, who let other persons take away the cart, and dispose of the pro- 
 perty for his benefit jointly with that of the other persons, the carter's 
 servant, as well as the other persons, was held to be guilty of larceny 
 at common law. [Upon an indictment for larceny of barilla, laid in 
 one count as the property of J. Bryant, in another as that of the pro- 
 secutors, it appeared that] the prosecutors contracted for some barilla 
 lying at the London docks ; their clerk went to see it weighed, and 
 after having been weighed in his presence, it was delivered to one of 
 the prisoner's, Harding, a carman's man, to cart, [in the cart of Bryant, 
 who was his master.] By contrivance between Harding and the other 
 prisoners, he left the cart on his way to the prosecutors, and the others 
 drove it away and disposed of the barilla. The learned judge told the 
 jury, that if Harding was to receive any benefit from the disposition, he 
 was equally guilty with the other prisoners ; and the jury found all the 
 prisoners guilty ; and, upon the point being saved, whether as the 
 barilla was delivered to Harding to cart, the taking amounted to a lar- 
 ceny, the judges held that it did, [whether the goods were considered 
 as the property of the prosecutors or of Bryant. ](?n) 
 Money in So if money has been in the possession of the master by the hands of 
 possession one of his clerks, and another of his clerks receives it from such clerk 
 ter by The " an( ^ embezzles it, this is larceny. The prisoner was a clerk in the em- 
 bands of a ploy of A., and received 31. of A.'s money from another clerk, that he 
 clerk. might pay for inserting an advertisement, &c. He paid 10s. and 
 charged A. 20s., fraudulently keeping back the difference; and, upon a 
 case reserved, it was held that this was not embezzlement, because A. 
 had had possession of the money by the hands of the other clerk. (?i) 
 Larceny of It is larceny if a person, hired for the special purpose of driving 
 Person* 7 & SQee P to a f a * r > convert them to his own use ; having an intention of 
 hired to doing so at the time of receiving them from the owner. The prosecu- 
 toYcerUin tor SaW tne P risoner at Bristol fair on a Thursday, and hired him to 
 place, and drive fifty sheep for him to Bradford fair, and he was to meet the pro- 
 *157 secutor on the following Sunday evening, with the sheep, at the *turn- 
 intending pike-gate nearest to Bradford. The prisoner had no authority to sell 
 them to his tne snee P ; he was merely to drive them to Bradford, and for doing so 
 own use at to receive 2s. Qd. per day. He did not come to the turnpike-gate on 
 ieceiSd hetlie Sunda y> nor to Bradford fair, which was held the following day. 
 them from The prosecutor afterwards found forty of his sheep in a field at a place 
 the owner. q U j te j n an pp 0S it e direction to Bradford ; and it appeared that the 
 prisoner had sold the remaining ten of the fifty on the same morning on 
 
 that the sacks of oats were not put into the prosecutor's barge, and the marginal note in 
 Leach shows that this was the case. C. S. G. 
 
 (1) 2 East, P. C. c. 16, s. 16, p. 570. 
 
 (wi) Rex v. Harding and others, tried before Lawrence, J., and considered by the judges, 
 Hil. T. 1807, MS. Bay ley, J., and Russ. & Ry. 125. I have inserted the words between 
 brackets from Russ. & Ry., as they seem to be important to be added. C. S. G. 
 
 (n) Rex t>. Murray," R. & M. C. C. R. 276. 5 C. & P. 145. Ergo, it was larceny. C. S. G. 
 a Eng. Com. Law Reps. xxiv. 246.
 
 
 CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 157 
 
 which he had received from the prosecutor, and had never gone at all 
 towards Bradford. He never was a servant of the prosecutor, but had 
 occasionally been employed to drive sheep for him. Though he had no 
 authority to sell, he represented to the person who purchased the ten 
 sheep of him, that he had such authority, and that he had frequently 
 sold cattle for the prosecutor, and that he had sold thirty ewes for him 
 that morning. Upon this evidence the jury found the prisoner guilty, 
 and in answer to a question put by the learned judge, they said they 
 were of opinion that the prisoner, at the time he received the sheep, in- 
 tended to convert them to his own use, and not to drive them to Brad- 
 ford. The prisoner had no counsel; but a doubt occurred to the learned 
 judge whether, as the delivery to the prisoner was not at his desire, or 
 at his request, he being hired by the owner to take charge of them for 
 a special purpose, his not carrying that purpose into execution, but con- 
 verting them to his own use, and intending so to do, (as found by the 
 jury) at the moment of receiving them from the owner, amounted to 
 felony: and he therefore respited the sentence, in order to take the 
 opinion of the judges upon the point. After considering the case, the 
 judges were unanimously of opinion that the conviction was right.(o) 
 
 So if a person is hired by the day to drive cattle to a particular place, If a person 
 and has no authority to sell them, if he sell them, he is guilty of lar- , ? 1I . cd t0 
 ceny, although at the time he took them into his possession he had no to a par- 
 intention to steal them, but such intention came into his mind afterwards, ticuhu". 
 Upon an indictment for stealing 118 sheep, it appeared that the prose- po'seTof 8 " 
 cutor had employed the prisoner in his service as a drover off and on for them to his 
 nearly five years, but not as a regular servant. He was a general jj^ceny 
 drover, and agreed with the prosecutor for three shillings a day. The although 
 prosecutor gave the prisoner orders and money to bring 119 sheep from ^ e t hi V 1 , I1 ^ 
 Grantham to Smithfield market. The prisoner had no authority from do when 
 the prosecutor to sell the sheep. When the prosecutor came to Smith- * h ^ y we, j e 
 field he found 118 of his sheep in the possession of different salesmen, to him. 
 into whose hands they had been put by one Shelton, who had purchased 
 them of the prisoner, who said they were his own. The jury found 
 that the prisoner did not intend to steal the sheep at the time he took 
 them into his possession. And, upon a case reserved, the judges were 
 unanimously of opinion that as the owner parted with the custody only, 
 and not with the possession, the prisoner's possession was the owner's, 
 and that the conviction was therefore right.(p) And a similar decision 
 was come to where the prisoner was hired to take a heifer to a particular 
 place for a certain sum, although he was not hired by the day, or for 
 any particular time. Upon an indictment for stealing a heifer, it *ap- *158 
 peared that the prosecutor hired the prisoner to take a heifer from York 
 to Kirby Misterton ; the prisoner was to receive two shillings for taking 
 the heifer the same day to Spittle Beck, ten miles from York, which 
 was paid when he took the heifer in charge, and he was to receive two 
 shillings more for taking her to Kirby Misterton, where the prosecutor 
 lived, the next morning. The prisoner having received the heifer, soon 
 after and without authority sold the heifer as his own, and embezzled 
 the proceeds. The jury negatived the existence of any fraudulent in- 
 tention previous to the delivery of the heifer to the prisoner, but found 
 
 (o) Rex v. Stock, cor. Park, J., Taunton Lent Ass. 1825, and East. T. 1825. R. & M. 0. 
 C. R. 87. 
 
 (p) Rex v. M'Namee, R. & M. C. C. R. 368.
 
 158 OF LARCENY BY SERVANTS AND OTHERS. [BOOK IV. 
 
 him guilty: and, upon a case reserved, the judges held the conviction 
 right, the possession of the prisoner heing that of a servant only.(j) 
 Thepriso- But in these cases the prisoner must dispose of the property while he 
 ner must ] ias jj \ n hi s possession, for if he deliver it to another person, who holds 
 the'proper- it w ith tne owner's consent, it is not larceny, although the prisoner after- 
 ty while in wards sell it and dispose of the money to his own use. Upon an indict- 
 sioQ P ° SSeS ment f° r stealing a pig, it appeared that the prosecutor had employed 
 the prisoner on the 18th of December, to drive six pigs from Cardiff to 
 Usk fair on the 20th, and paid him six shillings for so doing; the pri- 
 soner had never before been emploj r ed by the prosecutor, and had no 
 authority to sell any of the pigs. On the 19th of December the prisoner 
 left one of the pigs in his way at Mr. Matthews's, of Coedkernew, to be 
 kept till the night of the 20th, saying it was too tired to walk any fur- 
 ther. On the 20th the prisoner met the prosecutor at Usk fair with 
 the other five pigs, and told him that he had left the pig with Matthews 
 because it was tired: the prosecutor then desired him to call at Mat- 
 thews's, and ask him to keep the pig for him till the Saturday following, 
 and he would pay him for the keep. The prisoner called at Matthews's 
 on the 21st, but instead of asking him to keep the pig for the prosecu- 
 tor, he sold it to him for a guinea; and on the Thursday following told 
 the prosecutor he had seen the pig at Matthews's, and that he would 
 keep it till the Saturday; and it was held that the prisoner was not 
 guilty of larceny, on the ground that the prosecutor had consented to 
 Matthews being the keeper of the pig, and therefore his custody was the 
 custody of the prosecutor.(r-) 
 The dis- The correct distinction in cases of this kind appears to be, that if the 
 
 tinction is, owner parts with the custody only and not with the possession, and the 
 owner prisoner converts the chattel to his own use, it is larceny, although he 
 parts had no felonious intent at the time he received it; but if the owner 
 
 with the P ar ts not only with the custody, but also with the possession of the 
 custody chattel, and the prisoner converts it to his own use, it will not be larceny 
 with'the un l ess tne prisoner had a felonious intent at the time he received the 
 possession, chattel. Thus where a person sent some pigs to a lady to be looked at, 
 wTlTbe anc * t ^ ie P" soner s °ld tne pi» s ar >d did not take them to the lady, we have 
 committed seen that the first question left to the jury was, whether the prisoner 
 by conver- had a felonious intent from the commencement of the transaction: the 
 chattel, second, whether he received the pigs as bailee to deal with them, or only 
 aecw if he as a servant having the custody of them, and whose duty it was to bring 
 with the them. back. If the prosecutor *meant the prisoner to leave the pigs, 
 custody and bring back the money or make a bargain for the sale of them, then 
 ana posses- ^ e wou }d De [ Q t h e situation of a bailee, and not guilty of larceny ; but 
 *159 if tne y were delivered to the prisoner simply that he should show them 
 to the lady, and bring them back bodily, then he had only the custody 
 and not the possession, and was guilty of larceny.(s) 
 employed 11 But if a P erson employed to drive cattle, has not only the custody of 
 to drive them, but also the possession, and he disposes of them to his own use, 
 not'onl 1 * 9 he is DOt guilty of larcen y- I f > therefore, a person be not merely em- 
 the custody ployed to drive cattle, but has also authority to sell them, he will not 
 
 (q) Reg. v. Jackson, 2 Moo. C. C. R. 32. 
 
 (r) Reg. v. Charles Jones," Monmouth Spring Ass. 1842, Cresswell, J MSS. S. C. 1 C. 
 & Mars. 611. C. S. G. 
 (s) Reg. v. Harvey, b 9 C. & P. 353. See this case more fully stated, ante, p. 23. 
 a Eng. Com. Law Reps. xli. 332. b lb. xxxviii. 150.
 
 CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 159 
 
 be guilty of larceny, although he sell them and apply the money to his but the 
 
 own use. Upon an indictment for stealing six oxen, it appeared that ^° s i 8 ®"^ n ' 
 
 the prosecutor had employed the prisoner once or twice as a drover, and guilty of 
 
 that he put eight oxen into the hands of the prisoner to drive to Lon- ! arc . ( r ny lf 
 
 i > t i • • ,. , ,, he disposes 
 
 don; the prosecutors directions to the prisoner were, if he could sell of them to 
 
 them on the road he might, and those he did not sell on the road he his own 
 was to take to the prosecutor's salesman in Smithfield, for him to sell 
 for the prosecutor there ; the prisoner was at liberty to drive other 
 cattle as well as the prosecutor's on this occasion ; there is a regular 
 charge for drovers, so much a head; so much for cattle driven and so 
 much for cattle sold. The prisoner sold two of the oxen in his way to 
 London, and took the other six to Smithfield, where he sold them : the 
 money was paid into a bank at Smithfield for the prisoner, and he re- 
 ceived it there. A witness stated that the prisoner was a salesman as 
 well as a drover ; and the prosecutor's salesman proved that he never 
 received the beasts. That when a person was employed to bring beasts 
 to him, he sometimes deposited them at Islington at the layers, at the 
 Goose-yard, or somewhere. That it was the duty of the drover to deli- 
 ver them to the salesman's drover in the evening, and next morning to 
 come and give information, and see that he had them ; that it was no 
 part of his duty to sell them in Smithfield. The prisoner had brought 
 beasts from the prosecutor before, and delivered them to the salesman's 
 drover. It was submitted that there was no felonious taking in the first 
 instance; that the prisoner was not the servant of the prosecutor at all ; 
 and that the prosecutor had parted with the right of possession as well 
 as the custody of the cattle, by giving the prisoner the right of selling 
 them, if he pleased. It was answered that although the original owner- 
 ship of the prisoner was a lawful one, yet that ownership ended as soon 
 as he reached the layers at Islington, and that his driving them beyond 
 that place was exceeding his commission, and such an illegal assumption 
 of the property as would support the charge of felony. The prisoner 
 was also guilty in another view of the case, as the servant of the prose- 
 cutor, having after his arrival in London only the custody, and not the 
 property of the cattle, and having therefore no right to dispose of them. 
 But, it was held that there was no proof that the prisoner was the 
 servant of the prosecutor, and that there was no felonious taking in the 
 first instance, as the prosecutor had given the prisoner a lawful owner- 
 ship for a particular purpose. (f) 
 
 (t) Reg. v. Goodbody, a 8 C. & P. 665, Littledale, J., and Parke, B., who observed, "If the 
 case had rested on the question of whether the prisoner was the servant of the prosecutor 
 in the first instance, I should have reserved it for the further consideration of the judges ; 
 as I am of opinion that a man cannot be the servant of several persons at the same time, 
 but is rather in the character of an agent. There is one case in which it was held that a 
 man may be the servant of several at one time, but I wish to have that question further 
 considered by the judges." In a note the reporter says, " We presume his lordship referred 
 to the case of Rex v. Carr, Russ. & Ry. 198, post, p. 170. If the prisoner had merely been 
 employed by the prosecutor to drive the oxen to London, instead of having the authority to 
 dispose of them by sale on the road, the question mentioned by Mr. Baron Parke would have 
 arisen in the case, viz., whether the fact of his being at liberty in the regular exercise of his 
 business, to drive for other graziers as well as the prosecutor, would not place him rather 
 in the character of an agent than a servant. But as the delivery of the oxen in the first in- 
 stance was accompanied by a power of sale, and was made to the prisoner to a certain extent 
 in the character of a salesman, which business, it appeared from the evidence that he carried 
 on, the judges were both of opinion that he was not a servant, so as to make him respon- 
 sible in a criminal point of view, but that his conduct amounted only to a breach of trust. 
 a Eng. Com. Law Reps, xxxiv. 575.
 
 159 OF LARCENY BY SERVANTS AND OTHERS. [BOOK IV. 
 
 Where, on an indictment for stealing a waistcoat, it appeared that the 
 
 prosecutor gave the prisoner the waistcoat to take to Rose to be washed, 
 
 and the prisoner took it to Rose, at the same time telling her it was his 
 
 own, and she washed it and delivered it to the prisoner, who disposed 
 
 of it; Erskine, J., held that the prisoner's getting back the waistcoat 
 
 from Rose was no larceny, because he delivered it to her as his own ; 
 
 and he must, therefore, be taken to have converted it to his own use 
 
 before he delivered it to her. But that it must be left to the jury to 
 
 say whether the prisoner, at the time when he received the waistcoat 
 
 from the prosecutor, had an intention of stealing it; for, if at that time 
 
 he had not an intention of stealing it, he was entitled to be acquitted. (M) 
 
 It may, perhaps, admit of some doubt, whether the prisoner was not 
 
 guilty of larceny in delivering the waistcoat to Rose as his property. 
 
 He was merely entrusted with the custody of the waistcoat to carry to 
 
 Rose, and not with the possession, and if he had given the waistcoat to 
 
 any other person than Rose, as his property, there seems no reason to 
 
 doubt that that would have been a larceny, and the delivery to Rose 
 
 being equally at variance with the purpose for which the waistcoat was 
 
 delivered to him, there seems no reason why such a delivery should not 
 
 be a larceny. If he had sold it to Rose it would seem clearly to be a 
 
 larceny, and delivering it as his own, was equally a conversion to his 
 
 own use. See the next case. C. S. G. 
 
 *1(30 *A servant going off with money, given to him by his master to carry 
 
 Lavender's to another, and applying it to his own use, has been holden guilty of 
 
 case. A i arcenv The master of the prisoner delivered to him a sum of money 
 servant -> r -i-m 
 
 going off to carry to a person of the name of Flawn, and to leave it with £ lawn, 
 
 W !!- h if vr° y wno na< ^ a g ree d to give the master of the prisoner bills for the money 
 master had in the course of a few days. The prisoner did not carry the money to 
 given him Flawn, as he was directed, but went away with it, and, with part of it 
 another ° purchased a watch and some other articles, the other part remaining in 
 and apply- his possession when he was apprehended. The jury having found the 
 own use is prisoner guilty, sentence was respited, in order to take the opinion of 
 guilty of the judges, whether this was felony or only a breach of trust; and all 
 larceny. the j U( j ges held that it was felony. (m) 
 
 So where the prisoner, who was occasionally employed by the prose- 
 cutors as a clerk, having received from them a check on their bankers 
 payable to a creditor, with directions to deliver it to the creditor, appro- 
 priated it to his own use, it was held to be larceny. (r) 
 
 This decision, though questioned by some at the moment, appears to be quite consistent 
 with the modern doctrine upon the subject. It was said, " If a man sends his servant with 
 his horse from the country to London, and directs him to sell it if he can upon the road, but 
 if he cannot to leave it at a particular place in London, and the servant instead of doing 
 either, sells the horse in London and absconds with the money, is he not guilty of larceny ?" 
 The answer is undoubtedly " Yes ;" but the distinction is, that in the case supposed the re- 
 lation of master and servant existed at the time when the horse was delivered, whereas, in 
 the present case there was nothing else to create that relation but the fact of the delivery, 
 accompanied by a power of sale. And with respect to the argument used by the counsel 
 for the prosecution, that it was larceny in the prisoner to drive the cattle beyond the place 
 at which he ought to have left them, after the authority to sell was at an end : whatever 
 might have been the case formerly on the subject, such is not the state of the law now." 
 Rex v. Banks, Russ. & Ry. 441, ante. p. 57. 
 
 (tt) Reg v. Evans, 1 C. & Mars. G32. 
 
 (u) Lavender's case, Huntingdon Lent Ass. 1793, twice considered by the judges. East. T. 
 1793, and Trin. T. 1793. In this case all the judges also held that the last point in Watson's 
 case, 2 East, P. C. p. 562, was not law. 
 
 (v) Rex v. Metcalf, R. & M. C. C. R. 433, ante, p. 34, and See Reg. v. Heath, 2 Moo. C. C. 
 R. 33, ibid, and Paradiee's case, ante, p. 154.
 
 CIIAP. XVI.] HAVING CUSTODY AS SERVANTS. 160 
 
 So where on an indictment for stealing a shilling, it appeared that the 
 prisoner, who was the servant of* the prosecutor, was ordered by him to 
 go for twelve cwt. of coals ; and that the prisoner received from the 
 daughter of the prosecutor six shillings, which six shillings she had 
 received from her father to give to the prisoner to pay for the coals; 
 and that the prisoner, instead of getting twelve cwt. of coals, got only 
 nine cwt., the price of which was 3.s. 3(7., and gave 4s. to pay for the 
 coals, and received 9d. in change : and on his return he gave the pro- 
 secutor's daughter Is., and made a false statement as to the quantity of 
 coals he had bought; Patteson, J., held that the prisoner *ought to *161 
 have returned to his master any money that was left, and if, instead 
 of doing so he appropriated it to his own use, he was guilty of lar- 
 ceny.^) 
 
 Where the prisoner was indicted for stealing a sovereign, and it ap- 
 peared that the prosecutor engaged the prisoner to take a canal boat on 
 a voyage from Stourbridge to Ellesmere Port, and paid the prisoner 5/. 
 for wages in advance and for the keep of the towing-horse, and also a 
 separate sum of three sovereigns to pay tonnage dues on the canal; 
 and the prisoner had paid tonnage dues which amounted to rather under 
 21., and had appropriated the remaining sovereign to his own use ; and 
 it was objected that this was a mere breach of contract, and that the 
 relation of master and servant did not exist. Patteson, J., said, " Tak- 
 ing that to be so, it does not appear to me to be material to the case. 
 The prosecutor distinctly states that he gave this man three sovereigns 
 to pay the tonnage dues, and it appears that he has made away with one 
 of the sovereigns. To constitute a larceny in this case, there is no 
 occasion to show that the relation of master and servant existed. If I 
 give a man money to apply to a particular purpose, and he appropriates 
 it to another purpose, with a felonious intent, he is guilty of larceny." 
 " If a man were to employ another to go somewhere with his horse for 
 a certain price, that other is for that purpose his servant; but if in 
 addition to this he gives him a distinct and separate sum of money to 
 be disbursed in a particular way, and if, instead of so disbursing it, he 
 appropriates it to his own use, that is a felony." (w w) A servant 
 
 In a case where the prisoner was indicted for stealing ten guineas, it obtamed 
 
 iii i -i r>,i t ten guineas 
 
 appeared that she was the menial servant ot the prosecutor, who was a f rom jj er 
 manufacturer, and frequently in want of silver to pay his workmen ; mistress, 
 that she went to the wife of the prosecutor, and told her that she was pretence 
 acquainted with a person who could give her ten guineas worth of silver, that she 
 upon which the wife of the prosecutor gave her ten guineas for the J^7onv!ho 
 purpose of getting them changed into silver by the person she had men- would give 
 tioned, when, instead of getting the guineas changed, she immediately f. llver for , 
 
 ' # ' Stoo o J iii them ; and 
 
 ran away with them, and never returned ; and it also appeared that her then run 
 
 clothes had been previously taken away. Upon this evidence she was a , wft y y [ lt }\ 
 n , .., . . ^ . . J J r them, held 
 
 round guilty or larceny. (x) larceny. 
 
 (w) Reg. v. Beavan, a Salop Spring Ass. 1842. S. C. 1 C. & Mars. 595. The indictment, 
 it must be observed, was for stealing the shilling only, not the change, and the ruling of the 
 very learned judge of course applies only to the shilling. C. S. G. 
 
 (ww) Reg. v. Goode, b 1 C. & Mars. 582. 
 
 (x) Rex v. Atkinson, 1 Leach, 302, 303, note (a). There is subjoined, Sed quasre, if the 
 
 case was not saved? The doubt in this case would be whether the property in the guineas 
 
 was not so parted with by the wife of the prosecutor, as to exclude the idea of felony, (ante, 
 
 p. 24). But it should seem that it might be well contended that the property in the guineas 
 
 a Eng. Com. Law Reps. xli. 324. b lb. 31C.
 
 161 OF LARCENY BY SERVANTS AND OTHERS. [BOOK IV. 
 
 Chip- It has also been holden to be larceny for the confidential clerk of a 
 
 chases^ me rchant to take a bill of exchange, unindorsed, from its proper repo- 
 
 clerk who sitory, discount it, and convert the proceeds to his own use, though he 
 
 had the ^ a( j tne general management of his master's cash concerns, and autho- 
 
 manage- . ° . . . ... ~. . m . . .. . . 
 
 ment of nty to get his bills discounted. Ihe indictment against the prisoner 
 the cash was f or stealing a bill of exchange for one hundred and twenty-two 
 the prose- pounds twelve shillings, the property of the prosecutors, Messrs. Burkit 
 cutors, and an d Fothergil. Upon the evidence it appeared that the prisoner was 
 rity to get" c l er k to the prosecutors, and had the sole management of their cash 
 their bills concerns; that he received bill- and money remitted to them, took bills 
 discounted t k e discounted whenever he wanted cash, made payments for freight 
 
 astheocca- , , I J ° 
 
 sionrequir-and other things of a similar nature, and settled the balance with the 
 ed, dis- prosecutors at the end of every week. On the 14th September, 1795, 
 bill, and the bill in question was remitted to the prosecutor-, by the post, when 
 absconded one f them opened the letter, and gave the bill, which was not due till 
 money; the 17th September, to a clerk to get it accept.-. 1, which the clerk ac- 
 and it was cordinglv did, and then laid it amongst other bills on the desk of the 
 be l "en P rosecu tors. On the 16th September, the prisoner carried the bill in 
 question, together with another bill, to the pn when 
 
 the bankers' clerk, observing that neither of them were indorsed by the 
 prosecutors, asked him whether they were to be entered Bhort or dis- 
 counted, upon which he said that he wanted small Dotes and money for 
 them, and that the money must be full weight and good, BS it was for 
 the particular use of the prosecutors. On the same day he absconded 
 with the moneys he had so received, and was taken, under a feigned 
 name, from on board a ship at Falmouth, It was contended, on behalf 
 of the prisoner, that the bill having come legally int.. his possession 
 like any other bill of the prosecutors, over which he had a disposing 
 power, he had a right to receive the money for it, though Dot to eon- 
 vert the money, wh.-n received, to his own use; and that, the Bret tak- 
 *162 ing of the bill not being tortious, his receiving *the money for it at the 
 bankers, and going away with the money, was a mere breach of trust, 
 and no felony. But Heath, .)., was clearly of opinion that thif 
 felony, the bill having been ouvr decidedly in the possession of the 
 prosecutors, by the clerk, who got it accepted, putting it amongst the 
 other bills on the prosecutors' desk, and the prisoner having feloniously 
 taken it away from that possession.^) 
 
 Hammon's a case f modern occurrence requires to be noticed in the same i 
 case. A m , . » 
 
 banker's J-he prisoner was indicted for stealing two bank-notes of Bfty pounds 
 clerk false- eac h, in the dwelling-house of the prosecutors. The facts given in 
 a^ustomer evidence were, in substance, that the prisoner was a clerk in the bank- 
 ofthe ing-house of the prosecutors, and was intimate with B gentleman named 
 helmdpaid ^ ale > whom ne had induced to open hi> cash account at the house. On 
 iu money the 19th December, 1811, he made a fictitious entry in the banking* 
 ditand* D °okof M r - Vale, to his credit, for two hundred pounds, which Mini be 
 thereby in- told Mr. Vale that he had that morning paid in on Mr. Vale's account. 
 d ust° d erto ^ Q the k elief tbat this false entry and false assertion were true, Mr 
 givehima Vale, on the 10th January, 1812, gave him a check on the prosecutors, 
 
 was not parted with to the prisoner; and that she had only the possession of them upon :i 
 bare charge, or specified trust, to get them changed. Ants, p. 21, ei tef. 
 
 (>/) Ghipchase's case, cor. Heath, J., 0. B. 1795. 2 Leach, GOO. 2 K.i<t. P. C. c. 16, s. 15, 
 p. 567. The prisoner was accordingly convicted, and sentenced to be transported for seven 
 years.
 
 OHAP. XVI.] HAVING CUSTODY AS SERVANTS. 162 
 
 dated, l»y the prisoner's desire, on the day before, for one hundred check for 
 pounds, for payment of which the prisoner, under colour of serving &t and"rooo^-- 
 the counter, took out of the prosecutor's bank-note drawer, in the shop, ed the mo- 
 Che two notes stated in the indictment, depositing the check among the ['^^"^ 
 other paid checks of the day, and making in the waste book an entry of vent a dis- 
 guch payment. By this contrivance and other previous practice of tlie covc ^' 
 like kind, Mr. Vale's real balance was burned against him to the amount tious en- 
 of several hundred pounds; and, in order to prevent the discovery ,ril ' s in the 
 which must have immediately ensued if the accounts had Keen suffered rpj,^ ^ M 
 
 to continue in this state, the prisoner made other false entries, to theholdcnto 
 
 credit of Mr. Vale, in the ledger of the house. CTpon these facts the ^2?' 
 jury found the prisoner guilty, (z\ and they also found that at the time being 
 he made the false entries in the ledger, and in the customer's hook, he* l ™*"ky 
 did it fraudulently, with the design of enabling himself to get the mer not to 
 money of the prosecutors. The question whether the offence was a i )led g e ni ? 
 
 own c ret it 
 felony, or amounted only to a fraud, was afterwards submitted to the orto draw' 
 
 consideration of the judges, and eleven of them who met held thai the ,jut mone y 
 offence was felony, that the taking was felonious, and that the desposit- DUt to drft ^ 
 ing the check was not intended to pledge Vale's security, but to prevent out the 
 detection, as Vale did not give the check to pledge his own credit, ortoJ£j™2" 
 enable the prisoner to get money of his, Vale's, but t<> enable, the pri- tended by 
 soner to get away (as he supposed) money of his own. And Grose, J-))^rtohuve 
 in delivering the opinion of the judges, said, " The true meaning of lar- been paid 
 ceny is the felonious taking the property of another without his consent, m b >' hlIU - 
 and against his will, with intent to convert it to the use of the taker. (a) 
 The facts of the case answer every part of this definition. The taking 
 of the property is clear, and that it was taken against the will of the 
 owner, and with a felonious intent, is equally *clear, from the circum- *1G3 
 stance of the prisoner's having fraudulently made these false entries with 
 a view to conceal the means he had artfully made use of to obtain it."(&) 
 
 By the cases which have been now cited, the maxim of the common In the fore- 
 law, already mentioned, relating to the fraudulent conversion by a ser- the"proper- 
 vent to his own use of the goods of his master, appears to be sufficiently ty was re- 
 explained and established. But it should be observed that in all these thTposses - 
 cases it was considered that the property stolen was sufficiently received sion of the 
 into the possession of the master before the taking by the servant. And "^^g 156 " 
 this leads to the consideration of a material distinction respecting the taking, 
 possession of the master, namely, that the property will not be consi- B ^ P™" 
 dered as sufficiently received into his possession, where it has merely sufficiently 
 been delivered to the servant for the master's use. Upon which subject received 
 it is well laid down that " if the servant have done no act to determine mas t e r's 
 his original, lawful, and exclusive possession, as by depositing the goods possession, 
 in his master's house, or the like, although to many purposes, and as w ag mere]y 
 against third persons, this is in law a receipt of the goods by the mas- been dele- 
 ter, yet it has been ruled otherwise in respect of the servant himself, in l™ va ° t fo ® 
 a charge of larceny at common law, in converting such goods to his own the mas- 
 use. "(c) The ground of which doctrine appears to be, that in such JjJjJJJJ. 
 cases there can be no tortious taking in the first instance, and conse- f ore if a 
 
 (z) The jury said that as the prisoner had the check he had a right to pay himself, but 
 Bayley, J., before whom the prisoner was tried, told him that this was matter of law. Their 
 opinion, however, was stated in the case, MS. Bayley, J. (o) Ante, p. 2. 
 
 (6) Hammon's case, 0. B., Feb. 1811, and May 1812. 2 Leach, 1083. S. C. 4 Taunt. 304, 
 MS. Bayley, J., and Russ. & Ry. 221. Lawrence, J., who was absent, doubted. 
 
 (c) 2 East, P. C. c. 16, s. 16, p. 568.
 
 163 OF LARCENY BY SERVANTS AND OTHERS. [BOOK IV. 
 
 servant quently no trespass : and we have seen that without a trespass there can 
 
 £7o- be no larceny.^) ; ; 
 
 perty, it Upon this principle, in a case prior to the 15 Geo. 2, c. 13, s. 12, (e) 
 
 lsnotlarce " where it appeared upon an indictment for stealing East India bonds, 
 
 Waite'a the property of the governor and company of the Bank of England, that 
 
 case. Be- the bonds in question, having been taken to the bank for the purpose of 
 
 Geo 2 \ being deposited there, were not carried to the usual place for such 
 
 23, s. 12, a deposits, namely, a chest in the cellar of the bank, but were received by 
 
 the Bank tne P r i soner > WQ o was a cashier there, and placed by him in his own 
 
 ofEngland, desk, it was ruled that the prisoner was not guilty of larceny in after- 
 
 < h ™i° m a wards selling the bonds, and putting the money into his own pocket. 
 
 delivered, And the ground of the decision appears to have been, that as the bonds 
 
 was not were never put into the cellar, in the usual course, the governor and 
 
 felony in company of the bank had no possession of them, but the possession 
 
 converting remained always in the prisoner. (/) 
 
 own use ^ n an °ther case, where the prisoner was indicted for stealing a half- 
 
 before it crown and three shillings, the property of his master, the same princi- 
 
 had been ^ e was reC0 g n i ze( j # The master of the prisoner was a confectioner ; and 
 
 in the pro- the prisoner was his servant, employed to attend the shop. The master, 
 
 per place. h av i n g some suspicion that the prisoner had occasionally purloined the 
 
 A^servanT mone y paid by persons dealing at the shop, procured a customer to 
 
 attending conic there on pretence of buying something, having previously given 
 
 th *i«A to sucn customer some marked silver of his *own. The customer 
 
 . , accordingly came to the shop in the absence of the master, and bought 
 received ~ J r . ., 
 
 some mo- some articles of the prisoner, paying for them with the marked silver. 
 
 ney from a g oon afterwards the master (who was waiting for the purpose") came in 
 
 customsr ^ * 
 
 which he' ar >d examined the till, in which the prisoner ought to have deposited 
 did not put the silver when it was received ; and finding only some of the marked 
 but pur ' silver there, he procured the prisoner to be immediately apprehended 
 loined it, it and searched, when the rest of the marked money was found upon him. 
 noTtoVe 6 " -^ ne J UI 7 f° un( l tae prisoner guilty; but the point being saved for the 
 larceny ; consideration of the twelve judges, they were of opinion that the pri- 
 the mon . ey oi soner was not guilty of larceny, but only a breach of trust; the money 
 been in the never having been put into the till, and therefore not having been in 
 possession the possession of the master, as against the prisoner.(^) 
 master. Both these cases were much relied upon, in a subsequent case, on 
 
 Bazely's behalf of the prisoner, a banker's clerk, who was indicted for stealing 
 aT ' a bank-note of the value of one hundred pounds, the property of the 
 clerk, bankers. The evidence was, in substance, that a gentleman, who kept 
 
 entrusted ca sh with the bankers, sent, by his servant, the one hundred pound 
 bank-notes bank-note in question, together with twenty-two pounds in other bank- 
 and money notes, and fifteen pounds in money; and that the servant delivered the 
 counter w ^ole into the hands of the prisoner. The prisoner, in his capacity of 
 instead of clerk to the bankers, was authorized to receive and give a discharge 
 utting a j- or f h e same} and it was his duty to put the money received into a till, 
 the proper and to place in another drawer the several bank-notes which he might 
 drawer, receive during the day, for the purpose of another clerk taking down 
 it tohis anc * entering i a a book the. particular description of each note. The 
 
 (d) Ante, p. 5. (e) Post, Chap. xx. 
 
 (/) Waite's case, cor. Carter and Dennison. Js., 0. B. 1743. 1 Leach, 28. 2 East, P. ('. 
 c, 16, s. 17, p. 570. Dennison. J., said that, though this might be such a possession in the 
 hank whereon they might maintain a civil action, yet there was a great difference between 
 such a possession and a possession whereon to found a criminal prosecution. 
 
 (g) Bull's case, cor. Heath, J., 0. B., Jan. 1797 ; Ilil. Term. 1707 cited in Bazelcy's case. 
 2 Leach, 841. 2 East. P. C. c. 16. s. 17, p. 572.
 
 CHAP. XVI.] HAVING CUSTODY AS SERVANTS. 164 
 
 prisoner gave an acknowledgment to the servant of having received the°wn use: 
 full sum of one hundred and thirty-seven pounds, and put the money ^ ^'lden 
 into the till ; but instead of placing the remaining sum of one hundred to be only 
 and twenty-two pounds, which he received in bank-notes, into the * br ® ach of 
 drawer, according to his duty, he kept back the one hundred pound not lar- 
 note in question, and only delivered over those to the amount of twenty- ceny ' tho 
 
 i mi » 1.1 • ., ; . . , . , J note never 
 
 two pounds. Ihe jury found the prisoner guilty, subject to the opinion having 
 of the judges, whether the taking could be considered as felonious, or been in the 
 only as a breach of trust ? When the case came to be argued, an addi- possession, 
 tional fact was stated and admitted, namely, that the prisoner had given 
 his employers security to account for what he received, and against em- 
 bezzlement. The case was argued at considerable length before nine 
 of the judges, who, at first, entertained some doubt on the case, but 
 ultimately agreed that it was not felony, inasmuch as the note was 
 never in the possession of the bankers, distinct from the possession of 
 the prisoner ; but that it would have been otherwise if the prisoner had 
 deposited it in the drawer, and had taken it afterwards. (h\ 
 
 In consequence of this decision (of which, however, it should be ob-in conse- 
 served, that it was perfectly in unison with the due administration f c i uence of 
 criminal justice, in adopting the merciful construction of a doubtful going deci- 
 point of law) it was thought necessary forthwith to make *some provi- *165 
 sions for the better protection of masters against embezzlement by their si °n the 39 
 clerks and servants, many of whom, employed in commercial transac- gs^wa's ' 
 tions, are unavoidably entrusted with the receipt of moneys to a large passed, for 
 amount. The 30 Geo. 3, c. 85, was accordingly passed, and though m r ° s \^ C r S ing 
 that statute is now repealed, the 7 & 8 Geo. 4, c. 29, provides for the from the 
 punishment of such embezzlements, and will be considered in the sue- emhezz ^- 
 
 1 i.i ments ot 
 
 ceeding chapter. their clerks 
 
 In order to bring a prisoner within the 7 & 8 Geo. 4, c. 29, s. 46, it and ser - 
 must be proved that he was the servant of the prosecutor. Upon an 
 indictment charging the prisoner as the servant of the prosecutrix with 
 stealing her purse containing forty sovereigns, it appeared that the pri- 
 soner was the driver of a glass coach, which had been hired by the day 
 by the prosecutrix, and that he stole her purse from the coach ; it was 
 held that the relation of mistress and servant did not exist between the 
 prosecutrix and the prisoner, and that he could only be convicted of 
 simple larceny.(?) 
 
 We have seen that it has been doubted by a very learned judge, 
 whether a person can be the servant of several persons at the same 
 time, (j) 
 
 It has been doubted whether the 7 & 8 Geo. 4, c. 29, s. 46, applies Servants of 
 to larceny by a clerk employed in a public office under the crown. crown . 
 The prisoner, who was indicted as a clerk to the queen for stealing her 
 money and also for embezzlement under the 2 Wm. 4, c. 4, was the first 
 clerk to the Collector of Customs at the Port of Falmouth, and as such 
 it was his duty to receive and place in the collector's box each day 
 
 (h) Bazeley's case, 0. B., 1799. East. T. 1799. 2 Leach, 839. 2 East, P. C. c. 16, s. 17, 
 p. 571. See also Rex v. Sullens, R. & M. C. C. R. 129, and Rex v. Hawtin," 7 C. & P. 281, 
 post, p. 181. 
 
 (t) Rex v. Havdon, b 7 C. & P. 445, Patteson, J., and Gurney, B. See Quarman v. Burnett, 
 6 M. & W. 499. 
 
 (,/) Parke, B., in Reg v. Goodbody, 8 C. & P. 665. See this case, ante, p. 159, and Rex 
 v. Carr, Russ. & Ry. 198, post. 
 
 a Eng. Com. Lavr Reps, xxxii. 510. b lb. 578. « lb. xxxii. 575.
 
 165 
 
 OF LARCENY EY SERVANTS AND OTHERS. 
 
 [BOOK IV. 
 
 Indict- 
 ment. 
 
 moneys received in payment of customs ; the facts were clear to prove 
 that he had taken money out of the box. The prisoner was appointed 
 by the commissioners of customs under the 3 & 4 Wm. 4, c. 51. It was 
 objected that the 7 & 8 Geo. 4, c. 29, s. 46, did not extend to public 
 servants. Coleridge, J., " The great doubt I have had is, whether or 
 no the 7 & 8 Geo. 4, c. 29, s. 46, was meant to include public servants 
 of the crown such as the prisoner. It would seem intended to protect 
 private dwelling of the subjects only against their clerks and servants, 
 and the terms of the 2 Wm. 4, c. 4, seem to confirm this view of it, by 
 specially providing for such a case as this."(Z-) 
 
 An indictment which alleges that the prisoner, being the servant of 
 the prosecutor, on a certain day and year stole his property, is sufficient. 
 An indictment charged that Mary Somerton, on the 1st of March, 
 1827, " being then and there the servant of J. Hellier," on the same 
 day and year, one ring of the said J. H., did steal; and it was objected, 
 first, that there was no positive averment that the prisoner was the ser- 
 vant of J. H. ; 2dly, that it was not sufficiently averred that she was 
 his servant at the time she stole the goods ; but it was held, 1st, that 
 " being the servant of J. H.," was a description of the person of M. S., 
 and that that was a sufficient allegation that she bore that character ; 
 2dly, that reading and understanding the language used in the indict- 
 ment as the rest of mankind would understand the same language, if it 
 were used in other instruments, there *could be no doubt that it im- 
 ported that M. S. was the servant of J. H. at the time she stole the 
 property. (/) 
 
 It is only necessary further in this place to notice the 7 & 8 Geo. 4, 
 c. 29, s. 46, which " for the punishment of depredations committed by 
 clerks and servants, in cases not punishable capitally," enacts, "that if 
 any clerk or servant shall steal any chattel, money, or valuable security 
 belonging to or in the possession or power of his master, every such 
 offender, being convicted thereof, shall be liable, at the discretion of the 
 court, to be transported beyond the seas for any term not exceeding 
 fourteen years, nor less than seven years, or to be imprisoned for any 
 term not exceeding three years; and if a male to be once, twice, or 
 thrice publicly or privately whipped (if the court shall so think fit) in 
 addition to such imprisonment. "(m) 
 
 The 61st section of the act making principals in the second degree, 
 and accessories before the fact, punishable in the same manner as prin- 
 cipals in the first degree, applies to every felony punishable under the 
 act, as does the provision also by which accessories after the fact (except 
 receivers of stolen property) are made liable to imprisonment for any 
 term not exceeding two years. (??) 
 
 *166 
 
 Punish- 
 ment of 
 larceny by 
 servants, 
 Ac. 
 
 Principals 
 ar>d acces- 
 
 (k) Reg. v. Lovell, 2 M. & Rob. 236. The prisoner was convicted on the counts for em- 
 bezzlement, so that it became necessary to decide this point. 
 
 (I) Rex v. Somerton, a 7 B. & C. 463. The indictment was on the 3 Geo. 4, c. 38, s. 2. 
 See Reg v. Page, b 9 C. & P. 756, ante, vol. 1, p. 84. 
 
 (m) As to the present punishment, see note (a), p. 167. 
 
 (n) See the clause, ante, p. 2, tit. Larceny. 
 
 a Eng. Com. Law Reps. xiv. 84. b lb. xxviii. 322.
 
 
 CHAP. XVII.] OF EMBEZZLEMENT BY CLERKS AND SERVANTS. *167 
 
 ♦CHAPTER THE SEVENTEENTH. 
 
 OF EMBEZZLEMENT BY CLERKS AND SERVANTS. 
 
 The 7 & 8 Geo. 4, c. 29, s. 47, " for the punishment of embezzle- 7 & 8 Geo. 
 merits committed by clerks and servants," declares and enacts, "that if 4 > c - 29 » 
 any clerk or servant, or any person employed for the purpose or in the servants 
 capacity of a clerk or servant, shall, by virtue of such employment, re- receiving 
 ceive or take into his possession any chattel, money, or valuable secu- i nymoney ' 
 rity, for or in the name or on the account of his master, and shall their mae- 
 fraudulently embezzle the same, or any part thereof, every such ters ac ~ 
 offender shall be deemed to have feloniously stolen the same from his embezzling 
 master, although such chattel, money, or security, was not received into il ' shaU be 
 the possession of such master, otherwise than by the actual possession have felo- 
 of his clerk, servant, or other person so employed ; and every such niously 
 offender, being convicted thereof, shall be liable, at the discretion of the s ° en * • 
 court, to any of the punishments which the court may award, as here- 
 inbefore last mentioned. "(a) 
 
 The 48th section, " for preventing the difficulties that have been ex- Distinct 
 perienced in the prosecution of the last-mentioned offenders," enacts, acts of em - 
 " that it shall be lawful to charge in the indictment, and proceed against mav be 
 the offender, for any number of distinct acts of embezzlement not ex- charged in 
 ceeding, three, which may have been committed by him against the same j n dict™ e 
 master, within the space of six calendar months from the first to the last ment. 
 of such acts ; and in every such indictment, except where the offence al j t0 *. e 
 shall relate to any chattel, it shall be sufficient to allege the embezzle- and proof 
 ment to be of money, without specifying any particular coin or valuable of tne P r °- 
 
 a t/ o «/ j. perty cm- 
 
 security j and such allegation, so far as regards the description of the bezzled. 
 property, shall be sustained, if the offender shall be proved to have em- 
 bezzled any amount, although the particular species of coin or valuable 
 security of which such amount was composed shall not be proved ; or if 
 he shall be proved to have embezzled any piece of coin or valuable secu- 
 rity, or any portion of the value thereof, although such piece of coin 
 or valuable security may have been delivered to him in order that some 
 part of the value thereof should be returned to the party *delivering *168 
 the same, and such part shall have been returned accordingly." 
 
 These provisions are substituted for the repealed statute 39 Geo. 3, c. 
 85, and those contained in the 48th section are intended to remove the 
 very considerable difficulties which so often prevented a prosecution 
 under the repealed statute from being effectual. The full case, upon 
 which the master had arrived at the conclusion of his servant's guilt, 
 and determined to prosecute, could hardly ever be laid before the jury, 
 on account of the rule, which forbids evidence to be given of two dis- 
 tinct and independent felonies upon one indictment; it repeatedly oc- 
 curred that the person from whom the prisoner had received the money 
 
 (a) The punishment for this offence is now regulated by the 7 &8 Geo. 4, c. 29, s. 4, ante, 
 p. 128, and s. 46, ante, p. 166, and the 1 Vict. c. 90, s. 5, ante, p. 2, and may be transportation 
 for not exceeding fourteen nor less than seven years, or imprisonment not exceeding three 
 years, with or without hard labour, in the common gaol or house of correction, and the 
 offender may be ordered to be kept in solitary confinement for any portion or portions of 
 such imprisonment, or of such imprisonment with hard labour, not exceeding one month at 
 a time, and not exceeding three months in the space of one year ; and if a male, may he 
 one, twice, or thrice publicly or privately whipped in addition to such imprisonment. 
 
 Vol. ii.— 12
 
 168 OF EMBEZZLEMENTS BY CLERKS AND SERVANTS. [BOOK IV. 
 
 could not specify the mode of payment ; and it happened not unfre- 
 quently that the prisoner had received a piece of coin or a note of a 
 larger amount than the sum which was to be paid on account of his 
 master, and had given change.(i) In the former of these cases the 
 jury often acquitted, from an impression that the prisoner had acted by 
 mistake, and unintentional error, an impression which would have been 
 removed, if the facts upon which the master proceeded could have been 
 fully laid before them ; and in the two latter cases the prosecution 
 necessarily failed, as being unsupported by the evidence. It is con- 
 ceived that a better remedy for these defects would have been applied 
 by making the offence a misdemeanor, as the anomalous averments and 
 evidence introduced, by the 48th section, upon a prosecution for felony, 
 would have been avoided. 
 This ?ta- This enactment of the 7 & 8 Geo. 4, c. 29, s. 47, like the repealed 
 tute is statute of the 39 Geo. 3, has the effect it should seem, of constituting 
 uTeffect'to tne offence described in it a larceny. It specifies what the circumstances 
 the repeal- are which shall be sufficient to constitute such offence a larceny, and 
 ed statute, un( j er w hich circumstances the offender shall be deemed to have felon i- 
 
 3» ueo. 6, * 
 
 c. 85. ously stolen. First, he must be a clerk or servant ; then he must by 
 
 virtue of his employment receive or take into his possession some chat- 
 tel, money, &c. ; and that must be for or in the name or on the account 
 of his master; and he must fraudulently embezzle the same. But pro- 
 bably this statute, like the 39 Geo. 3, would be considered not to apply 
 to cases which amount to larceny at common law.(c) 
 
 Some of the points decided upon the construction of the repealed 
 statute, may properly be noticed here. 
 Cases de- It 'was held that a female servant was within that statute. (r7) And 
 cided upon that statute was held not to be confined to the clerks and servants of 
 ed 8 statute persons in trade, but to extend to the clerks and servants of all persons 
 39 Geo. 3, whomsover, if such clerks or servants were employed to receive money, 
 &c. : so that it was decided by the judges, on the point being reserved 
 for their consideration, that a person employed at a yearly salary under 
 the appellation of accomptant and treasurer to the overseers of a town- 
 Servants ship, and whose duty it was to receive all the moneys receivable or pay- 
 3^ m e able by them, was a clerk and servant within that statute. (e) 
 
 *169 *So where upon a nindictment under the 39 Geo. 3, c. 85, for embez- 
 Servants of zling the moneys of his master, it appeared that the prisoner was hired 
 are within as a j 0urne yman miller, and not in any respect as a clerk or accountant, 
 the act. or to collect moneys ; he was, however, in the habit of selling small 
 quantities of meal on his master's account, and of receiving the money 
 for them ; no written account was ever kept of such sales and receipts ; 
 his habit and duty was to pay over on each successive day what money 
 he had received on the preceding day. It was objected that the prisoner 
 was not a servant within the meaning of the statute. Richards, C. B., 
 " There is nothing at all in the objection. It is by no means a new 
 one ; it has been overruled again and again, and convictions have taken 
 place in much slighter cases than the present. I have no doubt that 
 the statute was intended to comprehend masters and servants of all pos- 
 ti ) See Rex v. Ward, Gow. N. P. R. 168. 
 
 (c) Rex v. Headge, Russ. & Ry. 160. Rex v. Murray, R. & M. C. C. R. 276, post, p. 181. 
 
 (d) Rex v. Elizabeth Smith, Hil. T. 1814, MS. Bayley, J., and Russ. & Rv. 267. 
 
 (e) Rex v. Squire, 8 York Spring Ass. 1818, 2 Stark. C. 340, and Russ. k Ry. 340. 
 
 8 Eng. Com. Law Reps. iii. 378.
 
 CHAP. XVII.] WHAT SERVANTS WITHIN THE ACT. 169 
 
 Bible kinds, whether originally connected in any particular character or 
 capacity or not."(/) 
 
 A clerk of a joint stock hanking company is within the statute. (ff) 
 If a person is employed as the servant of a corporation, he is a ser- Servants of 
 vant within the statute, although not duly appointed, nor even ap- c . or l )ora - 
 pointed at all under the common seal of the corporation. Upon an in- 
 dictment for emhezzling the moneys of the guardians of the poor of par- 
 ishes in the town of Shrewsbury, who are incorporated by statute, 
 written appointments of the prisoners, as steward and clerk to the cor- 
 poration, were produced; they bore date in 1810, and were "for one 
 year next ensuing," and it did not appear that either of them had been 
 re-appointed. It was objected, that although they were servants of the 
 corporation for the first year, yet as they were neither re-appointed un- 
 der the common seal, nor according to the statute, they ceased to be 
 servants of the corporation at the end of the first year ; but it was held 
 that it was sufficient ; for if a person be employed as servant, he may be 
 guilty of embezzlement, though not duly appointed. (g\ And a person a clerk em- 
 employed upon commission to travel for orders, and to collect debts, P|°y e,J h y 
 was held to be a clerk within that act, though he was employed by persons 
 many different houses on each journey, and paid his own expenses out was within 
 of his commission each journey, and did not live with any of* his em- ed e g [^ t p u e t " ~ 
 ployers, nor act in any of their counting-houses. - }" In the case in which 
 this point was decided, it appeared that the prisoner was employed by 
 many houses as a traveller to get orders, and to receive debts, and had 
 a commission of such orders and debts ; and further, that he paid his 
 own expenses, and did not live with any of his employers, or act in any 
 of their counting-houses. Stanley and Co. were amongst his employers. 
 He had embezzled part of the money which he had collected for them, 
 and was indicted under this statute ; and the indictment stated that he 
 was employed by Stanley and Co. in the capacity of a clerk, and by 
 virtue of his said employment received, &c. The *prisoner having been *170 
 convicted, a case was reserved, upon which the judges thought the con- 
 viction right, (/t) 
 
 But where a drover and salesman was employed by a farmer to drive But the 
 oxen to London, and was at liberty to drive the cattle of other persons, P recedm g 
 
 i • i tin it- i ir. case nas 
 
 and was to receive so much per head for cattle driven, and so much for beendoubt- 
 cattle sold, Mr. Baron Parke said, " I am of opinion that a man cannot ed - 
 be the servant of several persons at the same time, but is rather in the 
 character of an agent ; there is one case, in which it was held that a 
 
 (/) Rex v. Barker, a Dow. & R. N. P. R. 19. (ff) Reg. v. Atkinson, supra, p. 990. 
 
 (g) Rex v. Beacall, b 1 C. & P. 457, Parke, J. A. J. Rex v. Williams, ibid. See Williams 
 v. Stott, 3 Tyrw. 688, where Vaughan, B., said, " It is singular that the words ' body cor- 
 porate or politic,' in the 39 Geo. 3, c. 85, should have been omitted in the existing act ; how- 
 ever, there is no doubt that clerks or servants to such bodies would be held to be included 
 in its general words." If the learned baron had referred to the 7 & 8 Geo. 4, c. 29, s. 14, 
 he would have seen that the words of the 7 & 8 Geo. 4, c. 29, do not include " bodies cor- 
 porate as well as individuals." See the section, ante, p. 116, C. S. G. 
 
 (h) Rex v. Carr. Mich. T. 1811, MS. Baylev, J., and Russ. & Ry. 198, and Rex v. Leach, 
 3 Stark. N. P. C. 70. 
 
 f [A person who is employed to collect bills for the proprietors of a newspaper establish- 
 ment, and converts to his own use the money which he collects for them, is not such an 
 agent or servant as intended by the Revised Statutes, c. 126, s. 29, of Massachusetts, which 
 prescribe the punishment of embezzlement by agents and servants. Commonwealth v. Lib- 
 bey, 10 Metcalf, 64.] 
 
 a Eng. Com. Law Reps. xvi. 410. b lb. xi. 450. c lb. xiv. 1C5.
 
 170 OF EMBEZZLEMENTS BY CLERKS AND SERVANTS. [BOOK IV. 
 
 man may be the servant of several at the same time, but I wish to have 
 that question further considered by the judges. "(i) 
 The sot- It bas been held that a servant in the employ of two partners is the 
 
 v;mt of servant of each, and that if he embezzled the private money of one, he 
 partners is might De charged as the servant of that partner. The prisoner was ra- 
 the servant dieted as servant of T. R. Bridson, for embezzling his money. T. R. 
 ofeaeh ]j r idson and J. Ridgway were partners in trade, and the prisoner was 
 employed by them as their book-keeper, and whilst he was so employed 
 received and embezzled some notes, the private property of Bridson : 
 it was objected that he could not be considered the servant of Bridson, 
 being the servant of Bridson and his partner jointly ; but Bayley, J., 
 held that he was the servant of both ; and said that it had been decided 
 by the judges that where a traveller is employed by several houses to 
 receive money, he is the individual servant of each. (J) 
 Servants In another case, it was held that a servant employed to carry out 
 receiving g 00( j s } n his employer's barge, to sell them and bring back the price, 
 portions of came within the statute, by embezzling the money for which the goods 
 the profits so ]o^ although he was to have a certain part of such money for his pay. 
 sold. eg °° S The prosecutor had a collier, and barges, and employed the prisoner 
 as captain of one of his barges to carry out and sell coals, and his duty 
 was to bring back the money for which the coals sold, but he was en- 
 titled to two-thirds of the difference between such money and the value 
 at the colliery, and duties. He received twenty wagon loads to take 
 down the river to the best market, and he sold them at Gainsborough, 
 at eighteen shillings per chaldron, the value, when he received them, 
 having been fourteen shillings the chaldron. He embezzled the money, 
 but it was urged that he was not a servant within the statute, and that 
 he had a joint interest with the prosecutor in the money he received. A 
 majority of the judges held that he was a servant within the statute, 
 and that so much of what he received as equalled the value at the col- 
 liery, and duties, was received solely for the use of the prosecutor, and 
 that the embezzlement of it was an offence within the statute. (Z-) 
 A clerk Where a clerk to a banking firm was to receive one-third of one of 
 
 receiving the partner's profits, being the fifteenth share of the whole profits of 
 of the pro- the house, to which the other partners assented, but they considered the 
 fits of one prisoner not liable to them for losses ; it was held that the prisoner was 
 par ner. Qot & p artner jj e wag ^ rece j ve on ] v a S0T ^ f p er ce ntage, and the 
 
 agreement was assented to by the partners merely as a private agree- 
 * 171 ment between the one partner and the prisoner. *He was to receive a 
 share of the particular profits of one partner and not of the general 
 profits of the firm, and therefore he might be guilty of embezzling 
 money received on behalf of the firm. (A So where a prisoner was 
 employed by the master of a coal vessel, who sent him with a cargo of 
 coals : and the custom of the trade was for the person who superin- 
 tended the business to receive two-thirds of the freight, and the owner 
 one-third : the prisoner took the whole ; whereupon he was indicted 
 and convicted. It was objected that he and the master were joint pro- 
 
 (t) Reg. v. Goodbody, a 8 C. & P. 065. per Parke, B. See this case, ante, p. 159. 
 
 (./) Rex v. Leach. b 3 Stark. N. P. R. 70. 
 
 (k) Rex v. Hartley, Hil. T. 1808, MS. Bayley, J., and Russ. & Ry. 139. 
 
 (I) Holme's case, 2 Lewin, 256, Chambre, J. 
 
 a Eng. Com. Law Reps, xxxiv. 575. b lb. xiv. 165.
 
 CHAP. XVII.] WHAT SERVANTS WITHIN THE ACT. 171 
 
 prietors of the freight, but a large majority of the judges held the con- 
 viction right, (m) 
 
 Where the prisoner was indicted for embezzling money received on a driver of 
 account of his master, Bricknell, who was part proprietor of a coach a coa ?h 
 from Birmingham to Hereford, and horsed it from Hereford to Mai- & l ^h" go- 
 vern, living himself at Worcester, and had been in the habit of driving vant of 
 the coach himself from Worcester to Hereford, and employed the pri- °™ °- e 
 soner to drive for him when he did not go himself. The prisoner had tors. 
 all the gratuities, both when he drove himself, and when Bricknell 
 drove. All the proprietors were interested in the moneys received 
 throughout the line, but Bricknell received and held the money taken 
 on that part of the road between Worcester and Hereford, and was ac- 
 countable to the other proprietors for it. On arriving at Malvern from 
 Hereford, the prisoner's duty was to inform the book-keeper what 
 money he had received. The book-keeper then used to deliver to the 
 prisoner what money he had received, and the aggregate amount was 
 inserted in a book kept at the Malvern office, and also on the way-bill 
 as a debt against the prisoner. The prisoner's duty was to pay that 
 amount to Bricknell on his arrival at Worcester,(cA but the way-bill 
 went on to Birmingham. On the 23d of November, the book-keeper 
 at Malvern delivered to the prisoner 8s., and the prisoner stated that 
 he had received 2s. Qd. Accordingly, 10s. Qd. was put down as a debt 
 from him in the book, and on the way-bill. On his arrival at Worcester, 
 he told Bricknell that the sum was 10s., and paid him 10s. only. It 
 was objected that there was a joint interest in the money in Bricknell 
 and the other proprietors, therefore that the money was received to the 
 use of all, and that the prisoner was the servant of all. Mr. Justice 
 Patteson thought that, as between the prisoner and Bricknell, the 
 money was received to the use of Bricknell, and that he was his ser- 
 vant. It was also objected that there was no embezzlement, as the 
 debt appeared truly in the books at Malvern and on the way-bill ; but 
 the learned judge thought that that made no difference, especially as 
 the entries were not made by the prisoner, but by the book-keeper. 
 And upon a case reserved, the judges present all thought the convic- 
 tion right. (p\ 
 
 An apprentice, though under the age of eighteen, was held to be Apprenti- 
 within the statute : but it was considered as extending only to such c f* wlthlu 
 servants as were employed to receive money, and to instances in which 
 they received what they embezzled by virtue of their employment. A 
 butcher's apprentice, under eighteen, carried a bill for seventeen shil- 
 lings and ten-pence to a customer, from whom he *obtained the money, *172 
 and embezzled it, but it appeared that he had never been employed to 
 receive money for his master. Upon a case reserved for the purpose of 
 taking the opinion of the judges whether the act extended to appren- 
 tices, the judges seemed to think that it did, there being no exception; 
 but on the ground that the prisoner was never employed to receive 
 money, and therefore did not receive this by virtue of his employment, 
 the conviction was held wrong, (j) 
 
 (m) Anonymous, ibid., cited by Chambre, J. 
 (o) It is Hereford by mistake in the Report in Moody, C. C. R. 
 
 (p) Reg. v. White,* 2 Moo. G. C. R. 91 ; 8 C. & P. 742. Other instances of embezzlement 
 were stated, but the one stated sufficiently raises the points. 
 
 (q) Rex v. Mellish, East. T. 1805, MS. Bayley, J. and Russ. & Ry. 80. 
 a Eng. Com. Law Reps, xxxiv. 614.
 
 172 OF EMBEZZLEMENTS BY CLERKS AND SERVANTS. [BOOK IV. 
 
 A porson It was however decided that a person was sufficiently a servant with- 
 aliv^ciin-" * n tn * s act ' * nou S n ne was on ly occasionally employed when he had no- 
 ployod is thing else to do. And that it was sufficient if he was employed to re- 
 withm the ce j vc the money he embezzled, though receiving money were not his 
 usual employment, and though it was the only instance in which he 
 was so employed. The prisoner applied to a carrier to give him some 
 employment, and the carrier agreed to let him carry out parcels and go 
 with messages when he had nothing else to do. On the fourth day of 
 his employment, the carrier gave him an order on which he was to re- 
 ceive 21., which money he received and embezzled : and the judges, 
 upon a case reserved, held that his conviction was right. (r) 
 But the A prisoner cannot be convicted of embezzlement unless he be the 
 
 PerS t b servant of the prosecutor at the time he receives the money, and merely 
 in the em- sending the prisoner to a bank to get money, is not sufficient to make 
 ploy of the n j m f. ne servant, although he be paid for going. Upon an indictment 
 ' for embezzlement, it appeared that the prosecutor had given the pri- 
 soner a check to get cashed at a bank, and to bring back the money to 
 the prosecutor. The prisoner had sometimes been employed by the 
 prosecutor as a regular labourer, and sometimes as a rounds-man for a 
 day at a time, and had several times before been sent to the bank for 
 money. The prisoner, however, on the day in question, was not work- 
 ing for the prosecutor; but was to be paid Qd. for fetching this money 
 from the bank : and it was held that the prisoner was not the ser- 
 vant of the prosecutor within the meaning of the 7 & 8 Geo. 4, c. 29, 
 
 S. 4:7.(8.) 
 
 The clerk The clerk of a chapelry who receives the Sacrament money is not the 
 of a church servant either of the minister, churchwardens, or the poor of the cha- 
 servant of pelry. The prisoner was charged in different counts as the servant of 
 the minis- R. C. Wilmot, who was the curate of a perpetual curacy; of Morley 
 wardens, or an< ^ Goodwin, who were the churchwardens; and of the poor of the 
 poor of the township ; and it appeared that the prisoner was clerk of the chapelry, 
 istrict. an( j 0Q a g acraraen t Sunday he collected the alms in a plate from the 
 several communicants, and then took the plate to the altar and delivered 
 it to Mr. Wilmot, who then put in his own donation ; and the prisoner 
 purloined two half crown pieces from the plate, and secreted them in 
 his pocket for his own use; and upon a case reserved, the judges were 
 of opinion that the prisoner was not the servant of any of the persons 
 alleged in the indictment. (A 
 Nettleton's So where a prisoner was charged as the servant of Blades in some 
 counts, and as the servant of Blades " and others" in other counts, and 
 *173 *it appeared that the prisoner was the schoolmaster of a charity school 
 supported by voluntary contributions. The appointment of the prisoner, 
 and the funds of the charity, were vested in the power and control of a 
 committee, and Blades was the treasurer and a member of the commtitee 
 There was a collector appointed to receive the subscriptions of the con 
 tributors to the charity; who was paid by a commission upon the total 
 sum collected. The sole duty of the prisoner was confined to the in 
 struction of the charity children ; and he had never, in any instance 
 
 (r) Rex v. Spencer, East. T. 1815, MS. Bayley, J., and Russ. & Ry. 299, and see Rex v 
 Smith, post, p. 178. 
 
 (*) Rex v. Freeman, 11 5 C. & P. 534, Parke and Taunton, Js. 
 (t) Rex v. Burton, R. & M. C. C. R. 237. 
 
 a Eng. Com. Law Reps. xxiv. 444.
 
 CHAP. XVII.] WHAT SERVANTS WITHIN THE ACT. 173 
 
 been employed or requested to receive any of the contributions, and 
 never did apply for or receive any but in this single instance; and was 
 not to have any the least emolument from this single act of receipt of 
 money; nor was it the least part of the duty of his office of school- 
 master. The money in question was a voluntary contribution from 
 some charitable fund in the possession of the Ironmongers' Company 
 applicable to any object they might approve of, and not limited to this 
 charity. Blades had for two or three years received this money with a 
 view to avoid the payment of any commission for collecting it; but 
 being confined to bed by illness, he had left a written direction for the 
 prisoner to go to Ironmongers' Hall to receive the money. The direc- 
 tion was his individual direction, not an order from the committee of 
 management of the funds of the company. The prisoner never stood 
 in the relation of servant to Blades, unless this single act created such 
 relation. And upon a case reserved, the judges held that the prisoner 
 did not stand in such relation to the treasurer, or committee, as to bring 
 him within the act.(tt) 
 
 Where a drover was employed by a grazier to drive some oxen to Drover 
 London, and his instructions were that if he could sell them on the road withautho- 
 he might, and those he did not sell on the road he was to take to a " y 
 salesman in Smithfield, who was to sell them for the grazier; and the 
 drover sold two of the oxen on the road, and instead of taking the re- 
 mainder to the salesman, drove them into Smithfield, and sold them 
 there, and applied the money which he received for them to his own 
 use, it was held that he was not a servant, and could not, therefore, be 
 convicted of embezzlement.(i') 
 
 But where a drover was employed in a single instance to drive a cow Drover em- 
 and calf to a person to whom they were sold, and to bring: back the P lo y e . doi ]]y 
 
 "to drive in 
 
 money they were sold for, he was held to be a servant within the mean- a single in- 
 ing of the act. Upon an indictment for embezzlement it appeared that stance - 
 a farmer had some beasts in Smithfield, which the prisoner was keeping 
 for him as a drover, and he was employed to drive a eow and a calf to a 
 person to whom they were sold, and bring back 16/. He was not in the 
 service of the farmer, but merely the drover; he had, however, been 
 employed by the farmer at different times; but it was not proved that 
 he had any extra reward beyond what was his due for driving and deli- 
 vering the cattle to the purchaser. Upon a case reserved the judges 
 present were unanimously of opinion that the prisoner was a servant 
 within the meaning of the act.fwA 
 
 *So where it appeared on an indictment for embezzlement that the *174 
 prosecutor employed the prisoner to take some bark to Mr. Morris to be 
 weighed, and he was directed to bring back a written account of the 
 weight, and of the price bark was selling at, and if Mr. Morris offered 
 to pay for the bark the prisoner was to receive the money, and bring it 
 to the prosecutor: the prisoner received Is. Gd. for his day's work; he 
 had been employed many times before by the prosecutor, but not regu- 
 
 (u) Rex v. Nettleton, R. & M. C. C. R. 259. The recorder thought that the prisoner was 
 perfectly free to have refused to receive money without any violation of duty either to 
 Blades or the committee, and also adverted to there being no remuneration contracted for 
 or expected or promised to the prisoner. 
 
 (v) Rex v. Goodbody, a 8 C. & P. 605, Littledale, J., and Parke, B. See this case at 
 length, ante, p. 159. 
 
 (w) Rex v. Hughes, R. & M. C. C. R. 370. The recorder thought Rex v. Nettleton, sapra, 
 strongly applied to this case. 
 
 a Eng. Com. Law Reps, xxxiv. 575.
 
 174 OF EMBEZZLEMENTS BY CLERKS AND SERVANTS. [BOOK TV. 
 
 larly; and on this occasion he was only employed for this one day, 
 and he had never been employed for the purpose of receiving money 
 before. Littledale, J., held that this case was distinguishable from Rex 
 v. Netthton, (x) as in that case the prisoner was not a servant at all, 
 but only employed on a single occasion to receive money.(y) 
 A clerk to A clerk of a savings' bank may properly be described as clerk to the 
 a savings' trustees, although he was elected by the managers. Upon an indictment 
 properly be for embezzlement, stating the prisoner to be clerk in some counts to all 
 described the trustees by name, and in others to one of them by name "and 
 of the trus- others," it appeared that the prisoner was the clerk to a savings' bank, 
 tees, by the regulations of which the institution was to be conducted by 
 
 elected by mana g ers > a treasurer, and clerk. The managers were to include patrons, 
 the mana- presidents, and trustees; the clerk, with one of the managers was to 
 gers- attend to receive deposits and conduct the business of the institution, 
 
 and in case the manager of the day was unavoidably prevented from 
 attending, and unable to find a substitute, the clerk might act for him, 
 upon the said manager's responsibility to the institution. There were 
 about 200 managers over and above the trustees, patrons, and presidents, 
 who were managers ex officio. The clerk was elected every year by 
 ballot at a meeting of the managers, at which meeting, if no trustees 
 attended, the appointment by the other managers would be good; or if 
 no managers attended the appointment by the trustees would be equally 
 good. The manager of the day was absent at the moment a depositor 
 entered the bank and paid the money, which the prisoner appropriated 
 to his own use. It was objected, 1st, that the prisoner was not clerk 
 to the trustees, but to the managers: 2ndly, if the word "others" might 
 include the managers, that the money was not received to their use, but 
 to the use of the trustees, in whom alone it is vested by the 9 Geo. 4, 
 c. 92, s. 8; and lastly, that the clerk had no authority to receive the 
 money, for he and a manager ought to have received it together. But 
 it was held, upon a case reserved, that the prisoner was properly de- 
 scribed as clerk to the trustees, and that the conviction was good.(z) 
 A member A member of and secretary to a society may be stated to be the clerk 
 a as £" ety and servant to the trustees, and the money may be stated to be their 
 stated to be property, though the society be not enrolled, and though the money 
 *°® senrant 0U ght in the ordinary course to have been received by a steward. Upon 
 tees, and an indictment for embezzling the moneys of Barber, Allport and Hay- 
 the money cock, it appeared that the prisoner was secretary and clerk to a society 
 stated to be ne hi at his house called "The One Hundred Pounds and Fifty Pounds 
 their pro- Society," and a member of the society. The ^articles of the society were 
 though the no * enro ^ e( J- By the first article the members were to pay their moneys 
 society be to the stewards for the time being, which were to be paid by the clerk and 
 not enroll- one f ^ e stewards into the bank of the Messrs. Attwood, as treasurers 
 
 ed. . 
 
 *175 to tDe soc i etv - Barber, Allport and Haycock were the trustees of the 
 society. Two stewards had been regularly appointed from time to time 
 from the commencement of the society till within a few months before 
 April, 1834; but no stewards had been appointed in the year 1834, the 
 prisoner having neglected to summon the committee as he ought to have 
 done, according to his duty. No money was receivable from the mem- 
 bers, according to the regulations of the society, except upon club nights; 
 and when there were stewards, the course of business was for the niem- 
 
 (x) Supra, note (u). (y) Rex v. Jones, Monmouth Spring Ass. 1832. MSS. C. S. G. 
 (z) Rex v. Jenson, R. & M. C. C. R. 434.
 
 CHAP. XVII.] WHAT SERVANTS WITHIN THE ACT. 175 
 
 bers to pay their contributions to the junior steward, and for him to hand 
 it over to the secretary, who took an account of it and made an entry, 
 and then carried the money, accompanied by one of the stewards, to the 
 bank ; one entry only of the amount was made by the secretary, signify- 
 ing both the money received from the members and paid into the bank. 
 The only account kept at the bank stood in the names of the trustees. 
 During the time there were no stewards, the secretary had been in the 
 habit of receiving the money from the members on the club nights, and 
 carrying it to the bank. On the 8th of April, 1834, being one of the club 
 nights, the prisoner received from the members of the society the sum of 
 134?. 9s. Ad., and made an entry of it in the usual way ; of this sum he 
 paid into the bank 73/. 18s. Qd. only, and embezzled the remainder, 60?. 
 10s. 10c?. It was objected, 1st, that as no stewards had been appointed, 
 the money had not been received by the prisoner by virtue of his em- 
 ployment ; 2ndly, that the trustees were not properly described as his 
 masters and employers; 3rdly, that the property in the money received 
 could not properly be laid as the property of the trustees, especially as 
 the articles had not been enrolled. The objections were overruled, and 
 the prisoner convicted; and, upon a case reserved, the judges were of 
 opinion that this case was governed by the preceding case, and that the 
 conviction was right.(z) 
 
 So where the prisoner was appointed under the 10 Geo. 4, c. 68, col- Collectors 
 lector of the poor, church, and improvement rates, by the vestry of St. of rates> 
 Paul, Covent Garden, it was held that he might be indicted as servant of 
 the committee of management of the affairs of the parish for embezzling 
 their moneys, for it was no objection that he was appointed under the 
 act of parliament, as it was quite immaterial how he was appointed ; 
 and section 2d provides that the moneys shall be the moneys of the com- 
 mittee, and the act means that though the collectors are to be appointed 
 by the vestry, yet they are to be clerks or servants to the committee of 
 management; and Rex v. Jenson,(a) shows that a person may be the 
 clerk of one though appointed by another.(i) 
 
 Upon an indictment against the prisoner under the 39 Geo. 3, *c. 85, *176 
 for embezzling the property of the churchwardens and overseers of a 
 parish, it appeared that the prisoner was appointed as an extra collector 
 of poor rates by the parish, and that he was paid out of the parish funds ; 
 his remuneration, however, was not by a fixed salary, but by a per 
 centage on his collections, and it was contended that he was not a clerk 
 or servant within the meaning of the statute, but the objection was over- 
 ruled. (bb\ . 
 
 In an action for slander the declaration stated that the plaintiff was the The eham- 
 
 servant of the mayor, aldermen and burgesses of the borough of War- b "; rlam of 
 
 > , . ., . -i ^ne com - 
 
 wick, and alleged the words uttered by the defendant to mean that the mons of a 
 
 plaintiff had feloniously embezzled money received by virtue of his said c . or P° ra " t 
 
 i • ii i ,..~ „ , „ , tion is not 
 
 employment; it appeared that the plaintiff was one of the four cham- a servant 
 berlains of certain commonable lands belonging to the borough of War- within the 
 
 • act 
 
 wick ; the chamberlains are chosen at the court leet, and sworn in by 
 
 (z) Rex v. Hall, R. & M. C. C. R. 474. (a) Supra, p. lT4. 
 
 (6) Reg. v. Callahan,* 8 C. & P. 174, Vaughan and Patteson, Js. The indictment also 
 contained counts charging the prisoner as servant to Walker and others the church-wardens, 
 and he had embezzled the rector's rate, and on objection taken the judges held that the 
 prosecutor should elect on which he would proceed, which he did. 
 
 (66) Rex i>. Ward, Gow, N. P. R. 168, Richardson, J. 
 
 » Eng. Com. Law. Reps, xxxiv. 334.
 
 176 OF EMBEZZLEMENTS BY CLERKS AND SERVANTS. [BOOK IV. 
 
 the steward. Their duties consist in keeping the commons in a good 
 state as to sowing, fencing and draining, &c., and generally superintend- 
 ing them. Their funds arise from pounding the commoners' cattle twice 
 a year till a certain rate per head is paid, and from sums paid by pro- 
 prietors of booths, &c, set up at the races, &c, usually had there. Their 
 accounts are audited annually by two borough magistrates, and any 
 balance in hand is paid over to their successors. Bayley, B., " the 7 & 
 8 Geo. 4, c. 29, s. 47, appears to me to apply to ordinary clerks or ser- 
 vants having masters to account to for the discharge of their duties. 
 Now, can this plaintiff be said to be such a clerk or servant ? He was 
 not nominated chamberlain by the mayor and corporation, or by the com- 
 moners, but by the jury at the court leet held annually by the corpora- 
 tion as lords of the manor, and was sworn in there as many other per- 
 sons are. Then can the mayor and corporation be said to be his mas- 
 ters within this act? In the cases cited for the plaintiff(c) the parties 
 charged with embezzlement stood in the characters of plain and ordi- 
 nary servants appointed to collect money for, and to pay it over to, their 
 employers, e. g., the party appointed by the overseers to receive money. 
 The parish clerk who received and misapplied the Sacrament money 
 was held not to be within the statute, because it could not be said whose 
 servant he was, or in whom the right to the money was. But I am of 
 opinion that this plaintiff is not a clerk or servant within the fair mean- 
 ing of the act, for he filled a distinct office of his own, in respect of 
 which he received money which he was entitled to keep till the year 
 ended, and was not bound to pay over at any time, as a mere clerk 
 Accountant or servant would have been.'VoH An accountant of Greenwich hos- 
 h h"" P^ a '> wno was sworn i Q t° that office, having embezzled money to a great 
 pital. amount, was indicted under the 39 Geo. 3, c. 85, (now repealed) which 
 
 expressly comprehended servants of bodies corporate, and Burrough, J., 
 held that the prisoner did not fall within that statute, on account of its 
 being proved that he was a sworn officer, and not employed as an ordi- 
 nary servant, (e) 
 *177 But a person cannot be convicted for embezzlement as clerk or *ser- 
 Servant of vant to a society, which is illegal. Upon an indictment for embezzling 
 rociety tlie mone y of a society it appeared that the members of the society, 
 when they were admitted into it, had an oath administered to them, 
 which was clearly an unlawful oath within the 39 Geo. 3, c. 79, and 57 
 Geo. 3, c. 19, s. 25 ; and it was held that the prisoner could not be 
 convicted of embezzling the money of this society. (/) 
 A servant Where a servant received money for his master for an article made 
 entitled to out of his master's materials, and embezzled such money, the offence 
 twnofthe was ne ^ to k e within the repealed statute, although the servant made 
 price of an the article, and was to have a given proportion of the price for making 
 ar 1C e * it. A turner's man received an order on his master's account for six 
 dozen coffee-pot handles, his business being to receive orders, take the 
 necessary materials from his master's stock, work them up, deliver out 
 the articles, receive the money for them, and pa}- over the whole money 
 to his master: but at the end of the week he was entitled to receive a 
 
 (c) Rex v. Squire, ante, p. 168. Rex v. Tyers, post, p. 1ST. Rex v. Beaeall. ante, p. 101. 
 
 (d) Williams v. Stott, 3 Tyrw. 688, 1 Cr. & M. 675. 
 
 (e) Anonymous, stated as in the text by Bolland, B., in Williams v. Stott, supra. 
 
 if) Rex v. Hunt, 8 8 C. & P. 642, Mirehousc, C. S., after consulting Bosanquet and Cole- 
 ridge, Js. 
 
 " Eng. Com. Law Reps, xxxiv. 563.
 
 CHAP. XVII.] BY VIRTUE OF THE EMPLOYMENT. 177 
 
 proportion of the money back for his work upon the articles. In the 
 present case he had taken the materials from his master's stock, made 
 the coffee-pot handles on his premises, delivered them to the customer, 
 and received the money; but he had concealed the transaction from his 
 master, and kept the money, which was three shillings, and of which 
 his share would have been one shilling. Upon an indictment for em- 
 bezzling the three shillings, the learned judge doubted whether it was 
 not rather a fraudulent concealment of the order, and an embezzlement 
 of the master's materials ; but upon a case reserved, all the judges 
 who met thought it was an embezzlement of the money and that the 
 conviction was xight.(g\ 
 
 Receiving immediately from a customer that which in the ordinary By virtue 
 course the servant would have received through the medium of another , em " 
 
 liii • ployment. 
 
 servant employed to collect from customers, was held to be a receipt by 
 virtue of the employment of the servant, who received immediately 
 from the customer, in a case where the servant, being intrusted to re- 
 ceive at home from out-door collectors, received abroad from an out-door 
 customer. The prisoner was servant to a carcase butcher, and part of 
 his business was to receive every evening from the out-door porters the 
 money they had received from customers in the course of the day, and 
 to pay it over to another clerk. He went himself to an out-door custo- 
 mer and received of him at the customer's house 111. 8s. Id., which he 
 embezzled. A case was saved for the opinion of the judges, on the 
 ground that this receipt was not within the prisoner's regular trust and 
 employment, but the judges thought that as the prisoner was intrusted 
 to receive from the porters, who would have collected from the customer, 
 the receiving immediately from the customer instead of mediately 
 through the porter, was such a receipt as the act was intended to pro- 
 tect, and the conviction was held right.(7i) 
 
 It was also decided upon the repealed statute, that where a servant *178 
 generally employed by his master to receive sums of one description A servant 
 *and at one place only, was employed by him in a particular instance t^"^^, 
 to receive a sum of different description and at a different place, this money of 
 latter sum should be considered as received by him by virtue of his one . d< r~ 
 employment, because he filled the character of servant, and it was by and at one 
 being employed as servant that he received the money. The lessees of place em- 
 two toll-bars employed the prisoner to collect the tolls at one, and in a rece ive 
 particular instance ordered him to receive the money collected by monevofa 
 another person at the other ; which he received accordingly, and embez- d escr j p ti n 
 zled it. A case being reserved upon the question whether he received and at a 
 that money by virtue of his employment, Abbott, C. J., Holroyd, J., jjj™ 11 * 
 and Glarrow, B., thought he did not, because it was out of the course of 
 his employment to receive that money; but Park, J. A. J., Burrough, 
 J., Best, J., Hullock, B., and Bayley, J., thought otherwise, because, 
 .though this was out of the ordinary course of his employment, yet as 
 he was servant to the lessees, and in his character of servant to them 
 had submitted to be employed by them to receive this money, and had 
 received it by virtue of his being so employed, the case was within the 
 
 (g) Rex v. Hoggins, cor. Bayley, J., and before nine of the judges, East, T. 1809, MS. 
 Bayley, J., and Russ. & Ry. 145. 
 
 (h) Rex v. Beechy, cor. Knowlys, C. S., at the Old Bailey, and before the judges, Hil. T. 
 1817, MS. Bayley, J., and Russ. & Rv. 319.
 
 178 OF EMBEZZLEMENTS BY CLERKS, ETC. [BOOK IV. 
 
 statute, and the conviction right. (M) But in a case precisely similar 
 in its circumstances to the preceding case, Mr. B. Parke directed an 
 acquittal, observing that he had never approved of that decision. (i) 
 
 Where, however, upon an indictment for embezzlement the prosecu- 
 tor stated that he never employed or authorized the prisoner to receive 
 money from any persons who were regular customers, and that the per- 
 sons from whom he had received the sums embezzled were of that de- 
 scription ; it was held that as the customers made the payment to the 
 prisoner as the servant of the prosecutor, it was sufficient to sustain the 
 allegation that the money was received by the prisoner for and on the 
 account of his master. (A 
 Where the To constitute embezzlement the prisoner must have received the 
 money is m0De y by virtue of his employment ; and if the money be received con- 
 contrary to trary to the terms of his employment, it is not embezzlement. The 
 the terms prisoner was hired to lead a stallion ronnd the country during the season, 
 ployment" an & ne was t° c ^ ar g e f° r each mare 30s. and not to take less than 20s. 
 it is not It was proved that he had received a sum of 6s. which was the whole 
 within the c ]j ar g. e h e ] ]a( j ma( j e f or covering one mare, and had not accounted for 
 
 act. & . , m • 
 
 it. It was held that this was not an embezzlement. To constitute 
 an embezzlement the prisoner must have received the money by virtue 
 of his employment ; and as it was his duty to take 30s. and not less 
 than 20s., this sum of 6s. was not received by him by virtue of his em- 
 ployment.^) 
 If a servant If a servant has no authority to receive any money, he cannot be 
 thority ^o" g u ^ty °f embezzlement, although the money is paid to him on the sup- 
 receive position that he has authority to receive it, and he gives a receipt for it 
 money he on Lgh a if f ]ji s master. The prisoner was a servant of Brown and 
 
 cannot be . . r 
 
 guilty of Sons, carriers, and his employment was to look up goods to be carried 
 
 embezzle- hy ^jg masters' wagons, but he had no authority to receive money ; all 
 
 though the moneys were collected and received by a collecting clerk; a debtor to 
 
 money is Brown and Sons went into their counting-house, and seeing the prisoner 
 
 onthesup^ there standing at the desk, with some books near *him, and supposing 
 
 position him to be a clerk authorized to receive moneys, paid him 8/. 4s. 10d.; 
 
 suchautho S ^ or w ^^ c ^ the prisoner gave a receipt in his own name for Brown and 
 
 rity. Sons, and embezzled the money; and, upon a case reserved, -the judges 
 
 *179 were unanimously of opinion that, as the servant had no authority to 
 
 receive the money, the case was not within the statute. (A So where 
 
 the prisoner was in the service of the prosecutor but not authorized to 
 
 receive money, and a person who owed the prosecutor bl. paid it to the 
 
 prisoner, supposing him to be a servant of the prosecutor and authorized 
 
 to receive it, and the prisoner never accounted for the money ; it was 
 
 held not to be embezzlement on the authority of the preceding case. (hi) 
 
 Whining- Shortly after the 39 Geo. 3, c. 35, was passed, it was ruled, that it 
 
 nam ' s case - was an offence within its provisions for a servant to embezzle money 
 
 received from a customer of his master's though the money had been 
 
 (hh) Rex v. Smith, Tr. T. 1823, MS, Bayley, S., and Buss. & Ry. 516. 
 
 (t) Crow's case, 1 Lew. 88. 
 
 (,;') Rex v. Williams, 1 6 C. & P. G26. Arabin, Serjt., after consulting Gaselee, J., Alder- 
 B., and Gurney, B. 
 
 (k) Rex v. Snowley, b 4 C. & P. 390, Parke, J., and Littledale, J. 
 
 (I) Rex v. Thorley, R. & M. C. C. R. 343. 
 
 (m) Rex v. Hawtin, c 7 C. & P. 281, Alderson, B. It was also held not to be larceny of 
 the prosecutor's money, as the money had never come to his hands. 
 
 a Eng. Com. Law Reps. xxv. 568. h lb. xix. 436. c lb. xxxii. 510.
 
 CHAP. XVII.] BY VIRTUE OP THE EMPLOYMENT. 179 
 
 given to the customer by the master in order that it might be paid in The 39 Geo. 
 the course of business to the servant, for the purpose of trying the f " as 1 held 
 servant's honesty. The indictment charged the prisoner, as a servant a servant 
 of one John Gregory, with receiving the sum of seven shillings from u 110 , 6 ?" 
 one Hannah Morris, for and on account of his master, and afterwards money re- 
 feloniously embezzling the same. On the evidence it appeared that ceivedfrom 
 Gregory, who was a potato merchant, having reason to suspect the pri- ^whoS^' 
 soner of dishonesty, procured Morris to come to his shop with a marked his master 
 
 had 
 
 given 
 
 seven-shilling piece of his own money, there to purchase potatoes, and it f fthe 
 to pay for them with the seven-shilling piece. She came accordingly, purpose of 
 bought potatoes to the amount of one shilling and three pence, and paid trying , t , he 
 
 ill l *n* • i • i S6rV8,D t s 
 
 the marked seven-shilling piece to the prisoner, who gave her out of his honesty. 
 own pocket five shillings and nine pence in change, though he might 
 have given the change out of moneys belonging to his master which 
 had been left in the counting-house for that purpose. The seven-shil- 
 ling piece was afterwards found secreted in the prisoner's box. Upon 
 this evidence it was contended, on behalf of the prisoner, that the case 
 was not within the act ; and that the act applied only to cases where the 
 moneys had been paid to the servant by other persons than the master, 
 and not, as in this case, where the moneys had come intermediately 
 from the hand of the master : but the court was perfectly satis6ed that 
 there was nothing in the objection, and that if a servant received the 
 money, either from the master, or from a third person on the master's 
 account, it was sufficient.^*,) 
 
 The same objection was, however, again taken in a case which oc- Headge's 
 curred some years afterwards, and was submitted to the consideration of case * A 
 the twelve judges, who were of opinion that it was not well founded, cretingmo- 
 The prisoner was indicted for embezzling three shillings, the property De y ~ which 
 of his masters, James Clarke and John Gyles. The evidence was, in ^marked 
 substance, that Messrs. Clarke and Gyles, whom the prisoner served in and sent by 
 the capacity of shopman, having reason to suspect that he embezzled ^useTin 
 some of the moneys received by him in the shop, one of them, Mr. making a 
 Gyles, on the day mentioned in the indictment, formed a plan for de- P urc ^ ase at 
 tecting him. In pursuance of it, he *first took an account of the money with a view 
 at the time in the till, and marked it ; and then went to the house of a °/ t f ying 
 neighbour, where he took three shillings from his pocket, marked them f the ser- 
 also, and then gave them to his neighbour's servant, one Frances Moxen, va . nt > com - 
 who by his desire, and also by the order of her mistress, went with them offence 
 to the shop of Messrs. Clark and Gyles, and purchased of the prisoner, within that 
 who was then serving in the shop, articles exactly amounting to three sta ^n>j 
 shillings, and paid for them with the three shillings given her by Mr. 
 Gyles. It was clearly proved that the prisoner embezzled these three 
 shillings. Upon this evidence it was submitted to the court, on the be- 
 half of the prisoner, that as the three marked shillings were the pro- 
 perty of the prosecutors, and had been taken out of Mr. Gyles's own 
 pocket for the purpose of trying the fidelity of the prisoner, the de- 
 livery of them to Frances Moxen had not changed the possession of 
 them, which, it was contended, remained constructively with the prose- 
 cutors up to the moment when the embezzlement took place ; and there- 
 fore that the charge should have been for a larceny at common law, and 
 
 (n) Vvhittingham's case, 0. B. 1801, 2 Leach, 912. The prisoner was acquitted upon 
 another olijection. Sed quscre the correctness of the decision. C. S. G.
 
 180 OF EMBEZZLEMENT BY CLERKS. [BOOK IV. 
 
 not for an embezzlement under the statute. The court overruled the 
 objection; but, upon the prisoner being found guilty, saved the point 
 for the consideration of the judges ; who were of opinion that the case 
 was clearly within the statute, and the conviction proper. Grose, J., 
 who delivered their opinion, referred to Bull's case,(o) as in point; and 
 said, that from that case it appeared that the present, which was pre- 
 cisely similar in its circumstances, was not a case of larceny at common 
 law, but a breach of trust, and as such within the terms and operation 
 of the statute.( p) 
 The repeal- But where the property taken was delivered to the servant by the 
 ed act, 39 mas t er himself, it was decided that the case was not within the repealed 
 85, was statute. Thus, where the evidence was that the prisoner received from 
 held not to ner m aster two five pound notes, and some other money to pay amongst 
 where the other things hi. 3s. to the overseer, and the overseer proved that she 
 property had never paid him, the judges held a conviction upon these facts to be 
 delivered 8 wrong.(j) In a later case the indictment charged the prisoner with 
 to thescr- having received and taken into his possession one shilling on account of 
 vantbyhis his master, and embezzling the same; and upon the evidence it ap- 
 peared, that having two shillings and sixpence of his master's money, 
 to pay on account of his master, he only paid one shilling and sixpence, 
 and converted the other shilling to his own use ; upon which the learned 
 judge directed the jury to acquit the prisoner. (r) 
 If property So if the property embezzled has been in the possession of the master 
 has been m or a f n j g th er servants, the case is not within the 7 & 8 Geo. 4, c. 
 sion of the 29, s. 47. Upon an indictment for embezzlement the prisoner was 
 master or p rove d to be the clerk of A., and he had received from another clerk 
 hiTser-'° 8£ of A.'s money that he might pay (among other things') for inserting 
 vants, it is an advertisement in the Gazette; he paid 10s. for the insertion, and 
 "he' State, charged A. 20s. for the same, and frauduently converted the difference 
 *181 to his own use ; and, upon a case reserved, *the judges thought the case 
 not within the statute, because A. had had possession of the money by 
 the hands of his other clerk. (s) 
 The statute The statute properly applies to those cases where the money has 
 applies to never been in the possession of the master or any other person whose 
 
 eases where . . . . , ., . .^ . TT 
 
 the master possession can be considered as the possession ot the master. I pon an 
 has never indictment for stealing a hi. note, and certain silver coin, it appeared 
 s jon P of tile tnat tne prisoner's master gave him the hi. note to get change ; he got 
 money. the change, said it was for his master, and that his master sent him. He 
 never returned to his master. The prisoner was found guilty of steal- 
 ing the silver coin ; but upon a case reserved, the judges held that the 
 conviction was wrong, because as the master had never had possession 
 of the change, except by the hands of the prisoner, he was only amena- 
 ble under the 39 Geo. 3, c. 85, (now repealed. )(f) 
 Not where Where an indictment charged Edmund W. with embezzling, and 
 the mas- ]\li c hael W. as accessory after the fact, it appeared that Edmund was 
 are sold " the town traveller and collector of the prosecutor, and Michael his ear- 
 without man. Edmund's duty was to go round and take orders from customers. 
 
 (o) Ante, p. 164. 
 
 {p) Headge's case, 0. B. 1809. 2 Leach, 1033. Russ. & Ry. 1G0. It seemed to he the 
 opinion of the judges that the statute did not apply to cases which are larceny at common law. 
 
 (q) Rex v. Eliz. Smith, Hil. T. 1814, MS. Bayley, J., and Russ. & Ry. 267. 
 
 (/•) Peck's case, cor. Parke, J., Stafford Sum. Ass. 1817, MS. But it was usual in indict- 
 ments upon this statute to add a count for larceny at common law. 
 
 (*) Rex v. Murray, R. & M. C. C. R. 276. (t) Rex v. Sullins, R. & M. C. C. R. 129
 
 CHAP. XVII.] PROOF OF THE EMBEZZLEMENT. 181 
 
 and to enter them, on his return to the shop in the evening, in the day authority 
 or the order book, and also to receive nionevs in pavment of such or- a " d their 
 
 iiiii i-i , price em- 
 
 ders, but he had no authority whatever to take or direct the delivery of bezzled. 
 any goods from the shop. A customer gave Edmund an order for two 
 gallons of mixed pickles, and fourteen pounds of treacle, which order 
 was entered by him in the order book as for the pickles only. An in- 
 voice for the pickles, pursuant to the entry, was made out by the prose- 
 cutor's brother, and given to Michael, but he delivered the pickles and 
 fourteen pounds of treacle. The sum charged for the pickles was 6s. 
 Qd., and Michael entered the treacle at the foot of the invoice at 4s. Qd. 
 Edmund afterwards received the whole amount, but paid the prosecu- 
 tor 6s. Qd. only. Mr. Recorder Law, (after consulting Patteson, J.,) 
 held that this was not embezzlement, but larceny, saying, " Edmund 
 does not receive the 4s. Qd. for or on account of his master, but contrary 
 to and in breach of his duty towards his master. I may also liken the 
 case to that of two servants, one of whom has authority to sell, and the 
 other not, but merely to receive money ; if the one who has no author- 
 ity to sell introduces himself behind the counter, and sells his master's 
 goods, putting the money into his own pocket, that is clearly a stealing, 
 for he sells and receives the money contrary to his authority ; and he 
 cannot be said to have been employed or intrusted as clerk and servant, 
 and to have received the money by virtue of such employment, where 
 the act is done contrary to such employment. Here the servant having 
 authority to send out goods to the amount of 6s. Qd., puts up goods to 
 the amount of lis., his intention being to put 4s. Qd.(u\ into his own 
 pocket. The time never arrives when he receives that on account of 
 his master, for all that he does is adverse to, and in fraud of, the interest 
 of the master. "(y\ 
 
 If a person duly enters in his books all sums of money that he has *182 
 received, the mere fact of not paying over the money does not amount The mere 
 to embezzlement. Upon an indictment for embezzlement, it appeared m ° e ^ ay f " 
 *that the prosecutor, to whom the prisoner had acted as clerk, was one money is 
 of the proprietors of a mail ; and it was the duty of the prisoner to re- n . ot em k ez - 
 ceive money for passengers and parcels, and to enter the same in a book, where the 
 and to remit the amount weekly to Liverpool ; the prisoner had made accounts 
 no false entry, and had charged himself in the book with all the moneys 
 that he had received, but he had not sent the sums to Liverpool as he 
 ought to have done ; and it was held that this was not embezzlement ; 
 it was only default of payment. If the prisoner regularly admits the 
 receipt of the money, the mere fact of not paying it over is not felony. 
 It is but a matter of account.(w) It is not 
 
 So it is not enough to prove that a clerk has received a sum of money sufficient to 
 and not entered it in his book, unless there be also evidence that he has receipt of 
 denied the receipt of it or the like. Upon an indictment for embezzle- money, and 
 ment, it appeared that Mr. Bettis, a slate merchant, by means of ^ no t eatored 
 prisoner as his clerk, carried on the slate trade at a wharf at Gloucester : in account; 
 the course of business was for the prisoner to sell the slates and convey ^^^p* 
 them to the customers in his own boats, as Mr. Bettis had no boats, the or a false 
 
 prisoner being also a coal merchant on his own account : the prisoner account 
 f , -ii . . , i ii fill must De 
 
 nad received the sums in question, but he and the prosecutor had had sn own. 
 
 (m) The invoice was for the pickles only. (v) Reg. v. Wilson," 9 C. & P. 27. 
 
 (w) Rex v. Hodgson, b 3 C. & P. 422, Vaughan, B. It docs not appear that the prisoner 
 had ever been called upon to account for the sums in question. C. S. G. 
 a Eng. Com. Law. Reps, xxxviii. 22. b lb. xiv. 377.
 
 182 OF EMBEZZLEMENT BY CLERKS. [BOOK IV. 
 
 no adjustment of accounts for two years, and on Mr. Bettis calling for 
 the prisoner's books, he could not find the sums entered ; he had never 
 specifically asked the prisoner to account for either of the sums, and the 
 accounts of the prisoner amounted to ten or twelve thousand pounds. 
 Bolland, B., " There is not a felonious conversion ; I will take it that the 
 prisoner put the money in his own pocket, and has made no entry ; 
 that is not sufficient. Had he denied the receipt of the money, the case 
 might have been different. If the mere fact of not entering a sum was 
 enough to support an indictment for embezzlement, every clerk who, 
 through carelessness, omitted an entry, would be liable to be convicted 
 of felony. The prisoner must be acquitted. "(x) 
 
 Upon a second indictment against the same prisoner, the evidence of 
 the mode of dealing was the same as in the last case, and it appeared 
 that Mr. Ellis owned 5/. to Mr. Bettis for slates, and paid 3/. 14s. 6c?. in 
 cash, Is. Qd. being allowed to Ellis as discount, and the remaining 11. 
 4s. being set against a cider account due from the prisoner to Ellis, and 
 the prisoner had credited Ellis in his ledger to the amount of bL, and 
 had entered 3?. 14s. Qd., in the cash book. Mr. Bettis had never called 
 upon the prisoner to account as to this sum of bl. Bolland, B., "It ap- 
 pears to me that this does not amount to embezzlement. In cases of 
 this sort the thing alleged to be embezzled should not be laid out of 
 the question. If goods are taken an intent may more clearly appear 
 than in the case of money, as the same pieces of coin may, in many 
 cases, not be paid over. There is nothing in this case to bring the pri- 
 soner within the statute. He never denied the receipt of the money, 
 and was never called upon for it. I think it essential that there should 
 be a denial of having received the money, or else that some false account 
 should be given. The prisoner must be acquitted." (yy\ 
 
 Upon an indictment for embezzlement, it appeared that the prose- 
 cutors were owners of a vessel, and the prisoner was in their service as 
 the master. The vessel carried culm from Swansea to Plymouth, which, 
 when weighed at Plymouth, weighed two hundred and fifteen tons, and 
 the prisoner received payment for the freight accordingly. When he 
 was asked for his account by the owner, he delivered a statement, ac- 
 knowledging the delivery of two hundred and ten tons, and the receipt 
 of freight for so much. Being asked whether this was all that he had 
 received, he answered that there was a difference of five tons between 
 the weighing at Swansea and Plymouth, and that he had retained the 
 balance for his own use, according to a recognized custom between 
 owners and captains in the course of business. But there was no evi- 
 dence of the alleged difference of weight, or of the custom. Cresswell, 
 
 (z) Rex v. E. 0. Jones, a 7 C. & P. 833. 
 
 {y) Rex v. E. 0. Jones,* 7 C. & P. 834. In this case it was objected that there "was no 
 embezzlement, as the prisoner had accounted for all the money he had actually received ; if 
 no money at all had passed, and it had been entirely a credit transaction on both sides, it 
 would not have been embezzlement, for that crime was merely a statutory larceny, and could 
 only be proved by showing the actual receipt of the money, and as all that was received 
 was accounted for, the case was the same as if it had been entirely a credit transaction : 
 and this seems to have been a good objection, but it was not decided, as the prisoner was 
 acquitted on the ground above stated. C. S. G. 
 
 f [One whose duty it is to receive money for his employer, receiving money and rendering 
 
 a true account of all that he has received, is not guilty of embezzlement, though he after- 
 wards absconds and does not pay over the money. Reg. v. Creed, 1 ('. & K. 63. En 
 L. xlvii. 63. A wilful omission of a servant to account and pay over, is equivalent to a denial 
 of the receipt of money. Reg. v. Jackson, 1 C. & K. 384. Eng. C. L. xlvii. 38 i. 
 a Eng. Com. Law Reps, xxxii. 759. b lb. xxxii. 760.
 
 CHAP. XVII.] PROOF OP EMBEZZLEMENT. 182 
 
 J., held that this did not amount to embezzlement. Embezzlement 
 necessarily involved secrecy ; the concealment, for instance, by the de- 
 fendant of his having appropriated the money ; if, instead of denying 
 his appropriation, a defendant immediately owned it, alleging a right 
 or an excuse for retaining the sum, no matter how frivolous the alle- 
 gation, and although the fact itself on which the allegation rested were 
 a mere falsification ; as if, in the present case, it should turn out that 
 there was no such difference as that asserted by the defendant between 
 the tonnage at Swansea and at Plymouth, or that there was no such 
 custom as that set up, it would not amount to embezzlement. (yy\ 
 
 *A case has been decided which would seem to show that an indict- * 183 
 ment for embezzlement may be supported by proof of a general de- Wher ? 
 ficiency of money, without showing any particular sum received and general 
 not accounted for. The 1st count charged the prisoner with embezzling deficiency 
 500?. on the 28th of August; the 2d, 10?. on the 29th ; the 3d, with j^ ? ° of 
 stealing a note, a sovereign, a half sovereign, &c, as clerk ; and the 4th, any partic- 
 like the 3d, omitting to state that he was clerk. The prisoner was" lar i su '? 
 cashier in the bank of Messrs. Masterman, and his duty as cashier was and em- 
 to take charge of the cash when any payment was made into the bank, bezzle d- 
 in money and paper, and the course was for the cashier to hand over 
 the paper to a clerk, and to enter the cash received in a book kept by 
 him (the cashier) called the money-book. It was the duty of the 
 cashier, at the close of the business of each day, to see that the cash in 
 hand agreed with the money-book, and to strike a balance, denoting the 
 sum in cash which the cashier had in his charge, and which ought to 
 have been kept either in the drawer in the counter, of which he had the 
 key, or in a box in the banking-house, of which he had the key and the 
 charge. On the 28th of August, 1835, the cash in the money-book at 
 the close of business was 1762?. and a fraction, which sum was by the 
 prisoner carried forward, as in due course it ought to have been, and 
 formed the first item of the account in the said book for the 29th. On 
 the latter day, at the close of business, the prisoner, after crediting him- 
 self with money paid by him (it being part of his duty to pay away as 
 well as receive money,) and debiting himself with cash received, made 
 the balance in the money-book 1309?. and a fraction, and that sum the 
 prisoner ought to have had in one or the other of the above-mentioned 
 places of deposit on the same day (29th of August.) Soon after the 
 close of business, Mr. Oxley, one of the partners, sent for the prisoner, 
 and after intimating his suspicions, required him to produce his money. 
 The prisoner thereupon said, that he was short, and being asked how 
 much, replied about 900?., and threw himself upon the mercy of his 
 employers. Upon examination it was found that the prisoner, instead 
 of 1309?. in his hands, had only 345?. and a fraction, leaving the actual 
 deficiency 964?. and a fraction. Mr. Oxley, who proved the whole case, 
 had no knowledge of the facts whatever, except what has been above 
 stated, and could not say when the money, or any part of it, had been 
 purloined, from what person or persons it had been received, what sort 
 of money had been abstracted, and whether from the till, or upon its 
 receipts from customers. It was proved that there were two or three 
 other cashiers besides the prisoner, who were stationed close to him, 
 and that there must be at least two cashiers present during the hours of 
 
 Vol. ii.— 13 
 
 (yy) Reg. v. Norman, a 1 C. & Mars. 510. 
 a Eng. Com. Law Reps. xli. 324.
 
 183 OF EMBEZZLEMENT BY CLERKS. [BOOK IV. 
 
 business. It was objected that there was no case to go to the jury, 1st, 
 because the evidence, such as it was, applied equally to the charges of 
 embezzlement and larceny, and not particularly to either ; 2dly, that 
 *184 there ought to have been *some proof of some sum or sums of money 
 having been abstracted, when, from whom, and what sort of money. 
 Williams, J., however, (in concurrence with Grurney, B.,) refused to 
 stop the case, but reserved the points. And accordingly, the jury hav- 
 ing been told that taking money from the till would amount to larceny, 
 and that abstracting money paid to him (the prisoner) before it reached 
 the till, or possession of his masters, would be embezzlement, it was 
 left to them to say whether both, or either of the charges which were 
 stated to them, were established by the proof. The jury found the 
 prisoner guilty of embezzlement to the amount charged, and not guilty 
 of stealing. Upon a case reserved, it was contended that in order to 
 enable the jury to convict either of larceny or embezzlement, there must 
 be proof of some specific sum abstracted, and the time when. That the 
 only evidence in this case was of a deficiency in accounts, but how that 
 arose was not shown. There was considerable difference of opinion 
 amongst the learned judges, and the case was discussed at different 
 meetings, and ultimately eight of the learned judges(z) were of opinion 
 that the conviction was good, but the other seven(a) were of opinion 
 that the conviction was wrong. (i) 
 There must But it should seem that it is not to be inferred from the preceding 
 be proof case fa^ p roo f of a general deficiency will be sufficient, but there must 
 specific be proof that some specific sum has been embezzled. Upon an indict- 
 sum has rnent for embezzlement, it was opened that the prisoner had been shop- 
 bezzlec™" man to ^ e prosecutrix, and that it would be proved that there was a 
 deficiency in the prisoner's accounts, but that there was no proof of the 
 embezzlement of any particular sum. Alderson, B., " Whatever dif- 
 ference of opinion there might be in the case of Rex v. Grove, (i) that 
 proceeded more upon the peculiar facts of that case than upon the law. 
 It is not sufficient to prove at the trial a general deficiency in account. 
 Some specific sum must be proved to be embezzled, in like manner 
 as in larceny some particular article must be proved to have been 
 stolen, "(c) 
 Servants If a servant, having received money on account of her master, goes 
 
 absconding awa y an( j neYer returns to her master's service, that is evidence that 
 embezzle- she embezzled the money. Upon an indictment for embezzlement, it 
 ment. appeared that the prisoner was sent by her master's daughter to receive 
 
 rent due to him from a tenant, and that having received the rent, she 
 went off to Ireland, and never returned to her master's service. Cole- 
 ridge, J., said, in summing up, "I think that the circumstance of the 
 prisoner having quitted her place and gone off to Ireland, is evidence 
 from which you may infer that she intended to appropriate the money; 
 and if you think that she did so intend, she is guilty of embezzle- 
 ment."^) 
 Embezzle- Although the receipt of the money must be whilst the prisoner is in 
 ment after the service of the prosecutor, yet it should seem that the embezzlement 
 
 (z) Lord Denham, C. J., Tindal, C. J., Lord Abinger, C. B., Park, J. A. J., Vaughan, B., 
 Bosanquet, J., Gurney, B., and Williams, J. 
 
 (a) Littledale, J., Gaselee, J., Parke, B., Bolland, B., Alderson, B.. Patteson, J., and 
 Coleridge, J. (b) Rex v. Grove, R. & M. C. C. R. 44 7. 
 
 (c) Rex v. Lloyd Jones,* 8 C. & P. 288. (d) Rex v. Williams, b 7 C. & P. 338. 
 
 a Eng. Com. Law Reps, xxxiv. 393. b lb. xxxii. 532.
 
 CHAP. XVII.] INDICTMENT. 184 
 
 of the money may be after the prisoner has ceased to be the servant, the service 
 In a case upon the 2 Win. 4, c. 4, where it was objected that the indict- 1S ended - 
 ment did not allege that the prisoner embezzled whilst *he was the *185 
 clerk ; Coleridge, J., said, " It is by no means clear that an embezzle- 
 ment (if such a case be possible) after a person ceased to be the clerk or 
 servant, of money received whilst he was such, would not be within 
 the act. "(e) 
 
 Where the prisoner had been convicted upon the 39 Geo. 3, c. 85, Johnson's 
 (now repealed,) upon an indictment, several counts of which charged c ^*' f 
 him with embezzling bank-notes against the form of the statute, and larceny at 
 others with stealing bank-notes in the common form of counts for lar- common 
 
 ip ii- ...-,, „ law, and 
 
 ceny, it was assigned tor error that this was a misjoinder, the counts for f or embez- 
 embezzlement on the statute, and the counts for grand larceny, being z l ein ent 
 counts upon which a different judgment ought by law to be given. But 39 Q e0 _ 3 
 the Court of King's Bench were of opinion that the counts for embezzle- c - 85 > teltl 
 ment might well be joined with the counts for larceny, considering that g° oimd of 
 the statute had in fact made the offence of embezzlement described in error, 
 it a larceny; and that, having so done, it had attached upon it all the 
 properties and consequences attaching upon the crime of larceny. And 
 Lord Ellenborough, C. J., said, " If this were an offence of a perfectly 
 different nature, I should have been of opinion that the judgment could 
 not have been sustained. But the act says, that the offender shall be 
 deemed to have feloniously stolen, which is expressly constituting it a 
 felony, and having so done the offender must, as in the like cases of 
 felony, pray the benefit of clergy. But inasmuch as it is larceny, and 
 therefore liable only to the punishment of seven years' transportation, 
 this act goes further and gives power to transport for fourteen years. 
 The act does not alter the quality of the offence ; he is to be deemed a 
 felon, and as such must pray the benefit of clergy, just the same as if 
 this enactment for an extended term of transportation had not been 
 found in the statute. It makes no alteration in the judgment ; the 
 judgment is to pass against him as a felon ; if he does not pray the 
 benefit of clergy, it must be a judgment of death. And in a variety of 
 cases, though the punishment be different, yet counts may be joined." 
 And he further added, u Here I think it does not appear that there is a 
 misjoinder ; because both are clergyable felonies ; and the defendant is 
 liable to the punishment incident to such a felony with an extension of 
 it to the term of fourteen years. "(f) 
 
 But where an indictment contained a count for embezzlement, and a Election. 
 count for larceny, Littledale, J., insisted on the prosecutor electing on 
 which he would proceed, observing that the counts had a different 
 aspect altogether.^) 
 
 Except as the 48th section of the new act of 7 & 8 Geo. 4, may have Indict- 
 otherwise provided, it seems that the indictment ought to contain all mcut- 
 the requisites of an indictment for larceny at common law. 
 
 In a case upon the repealed statute 39 Geo. 3, an indictment was M'Gregor's 
 holden to be defective, because it did not expressly aver that the money case - }l f d 
 alleged to have been feloniously stolen, taken and carried away by the 39 (j eo . 3, 
 
 (e) Reg. v. Lovell, 2 M. & Rob. 236. See this case, post, chap. 20. 
 
 (/) Rex v. Johnson, 3 M. & S. 540. This case merely decides that the rejoinder of these 
 counts is no objection upon error. C. S. G. 
 
 (g) Rex v. Jones, Monmouth Spring Ass. 1832, MSS. C. S. G. And see 2 Stark. C. P. 
 456, note, from which it appears that the court, in Rex v. Johnson, thought it was a matter 
 for the discretion of the judge whether the prosecutor should be put to his election or not.
 
 185 OF EMBEZZLEMENT BY CLERKS. [BOOK IV. 
 
 c. 85, that prisoner, was the money of any particular person. The point was 
 reentou^ht reserved for the opinion of the judges, and was argued before them at 
 to contaTn considerable length. It was contended, on behalf of *the prisoner, in 
 all there- sup p 0r t f the objection, that as the statute had not made the sort of 
 
 quisites on rf J _ 
 
 an indict- embezzlement therein mentioned eo nomine a distinct and substantive 
 ment for felony, but had only enacted that the property received into the pos- 
 eomnion session of the servant, and feloniously converted by him, should be con- 
 law - sidered as having been by such conversion feloniously taken from the 
 
 ■*•"" possession of the master, the offence still continued a common law lar- 
 ceny ; and that consequently an indictment framed upon the statute 
 must contain all the requisites of an indictment for larceny at common 
 law. And in order to show that it would not be a sufficient answer to 
 the objection, to say that the indictment had followed the words of the 
 statute, several instances were mentioned of indictments upon particu- 
 lar statutes, 1 Edw. 6, c. 12, s. 10 ; 8 Eliz. c. 4 ; 22 Car. 2, c. 5 ; 3 & 
 4 W. & M. c. 9, s. 1 ; 10 & 11 W. & M. c. 23, s. 1 ; 12 Anne, c. 7 ; 
 and 24 Geo. 2, c. 45, relating to the stealing of particular goods, or 
 stealing goods under certain circumstances, all of which pursue the same 
 form as to the requisite parts of larceny at common law. On the part 
 of the crown it was argued, that the statute in question made the em- 
 bezzling by servants, in the manner stated, a substantive felony, whicb 
 before was only a misdemeanor, or breach of trust, for which the master 
 had a civil remedy. That it was therefore sufficient to follow the words 
 of the act, as in other instances where new offences were created; which 
 differed from indictments on statutes merely ousting the offender from 
 clergy in cases which were before larcenies at common law. That the 
 legislature, in this instance, meant to include cases where, from the pro- 
 perty being, as it were, in transitu, it was difficult to ascertain in whom 
 it was at the time of the offence committed; and that it therefore in- 
 tended to relieve the prosecutor from the necessity of laying it to be in 
 any particular person. That at any rate no technical form of words 
 was necessary in charging a thing to be the property of another : and 
 that here enough was stated, to show that it was not the prisoner's own 
 property, being charged to have been received by him on account of his 
 masters ; which was tantamount to an allegation of their having a spe- 
 cial property in it. It appears that the judges at first doubted much 
 upon this case, but that ultimately a majority of them were of opinion 
 that the indictment was defective, as it did not aver that the money 
 alleged to have been stolen was the money of the prosecutors ; that the 
 statute made the offence a larceny, and made the possession of the ser- 
 vant, under such circumstances, the possession of the master. (h\ 
 Allegation The 48th section of the new statute enacts, " that except where the 
 as to the offence shall relate to any chattel, it shall be sufficient in the indictment 
 
 "DroDcrtv 
 
 embezzled, to allege the embezzlement to be of money without specifying any par- 
 ticular coin or valuable security; and that such allegation, so far as 
 regards the description of the property, shall be sustained, if the offender 
 shall be proved to have embezzled any amount, although the particular 
 species of coin or valuable security of which such amount was composed, 
 shall not be proved. "(t) This is one of the enactments intended to 
 prevent the difficulties experienced in the prosecution of offenders under 
 
 (h) M'Gregors case, 0. B. 1801. Feb. 1802. 2 Leach, 932. 3 Bos. & Pul. 106. 2 Bast, 
 P. C. c. 16, s. 18, p. 576. Russ. & Ry. 23. 
 (i) See the section, ante, p. 167.
 
 CHAP. XVII.] INDICTMENT. 186 
 
 the repealed statute of the 39 Geo. 3. Under that statute it had been 
 
 holden that if the evidence did not *show that the prisoner embezzled *187 
 
 some part of the property specified, the case against him could not be 
 
 established. An indictment stated that the prisoner received 11. 2s. Qd. 
 
 in moneys numbered, and 6/. in one pound notes, and embezzled part 
 
 thereof, namely, fifteen shillings and seven-pence in moneys numbered, 
 
 and one 1/. note : the evidence was that he received at the same time 
 
 much other money, and many other notes, but that instead of giving 
 
 credit for 11. 2s. Qd., he only gave credit for bl. 6s. lOd. Upon a case 
 
 reserved, the judges held, that as he might have paid over the whole of 
 
 what he received for the 71. 2s. Qd., and have taken the 1/. 15s. Id. from 
 
 the other moneys he received, he was improperly convicted, there being 
 
 nothing to show that he had stolen any part of that money which he 
 
 was charged with stealing. (f) But it was also holden upon that statute, 
 
 that if a servant immediately on receiving a sum for his master entered 
 
 a smaller sum in his master's books, and ultimately accounted to his Where a 
 
 master for the smaller sum only, he might be considered as embezzling ^ .® r 
 
 the difference at the time he made the entry; at least the jury might tered at the 
 
 so find. And that it would not alter the case if he received other sums time ' °* , re ~ 
 ... . , .... . . ,, ceipt, the 
 
 tor his master on the same day, and in paying those and the smaller jury may 
 
 sums to his master together, he might have given his master every piece p nd an em_ 
 
 . . bezzlenient 
 
 of money, or every note he had received at the time he made the false a t that 
 entry. The prisoner, received for his master from Mrs. W. eighteen one * im e. 
 pound notes, and immediately entered in his master's books 12/. only: 
 in the course of the day he received, for his master, 104/. more, and 
 after that time paid him 116/. The indictment charged him with em- 
 bezzling six of the notes which he received from Mrs. W., and it was 
 urged on his behalf, at the trial, that he might have paid over in the 
 116/. every one of the notes which he received from Mrs. W. ; and if 
 so, that he could not be said to have embezzled any of those specific 
 notes. Bayley, J., told the jury that as in what he payed, he paid only 
 121. as and for all he had received from Mrs. W., and paid the other 
 1047. as and for moneys received of other persons, he ought to be con- 
 sidered as having embezzled six of the notes he received from Mrs. W., 
 because he would then have misapplied six of those specific notes to his 
 own benefit, and to his master's prejudice. And upon a case being re- 
 served, nine judges, (Best, J., being absent,) thought it an embezzle- 
 ment from the time of making the false entry. Wood, B., rather 
 thought otherwise; and Abbott, C. J., thought that the point should 
 have been left to the consideration of the jury.(&) 
 
 Where an indictment upon the repealed statute 39 Geo. 3, c. 85, Where the 
 charged that the prisoner was employed as a clerk to A., and that, by w ^„ s |'» °" 
 virtue of his employment, he received from B., on account of his mas- was omit- 
 ter, 9/. 18s. 9d. without showing of what moneys that sum was made ted befoie 
 
 (j) Rex v. Tyers, Mich. T. 1819, MS. Dayley, J., and Russ. & Ry. 402. The notes had 
 been in the master's possession, who took them and placed them on a heap with others 
 before the prisoner, and this objection was made by the prisoner's counsel, and seemed to 
 be acquiesced in, and the case confined to the 11. 2s. Gd. only which was in silver. It also 
 appeared that the prisoner at first gave credit for the 11. 2s. Gd., and entered it in the proper 
 book in his own hand, but he afterwards erased that sum, and substituted the 5/. 6*. 10rf., 
 and as he might have paid over every note in question, and either paid over or passed away 
 in change every piece of silver in question, the judge thought Rex v. Furneaux in point. 
 See the case of Rex v. Furneaux, Russ. & Ry. 335. 
 
 (k) Rex v. Hall, Mich. T. 1821, MS. Bayley. J., and Russ. & Ry. 463.
 
 *188 OF EMBEZZLEMENT BY CLERKS. [BOOK IV. 
 
 the word U p, a nd that he fraudulently embezzled and secreted the same, *omit- 
 /.W''but ti Q £ tne wor( i feloniously ; and so it concluded that the jurors say that 
 the conclu-he did feloniously embezzle, steal, take and carry away, &c. ;" objection 
 S10I J ^' was made, that in the introductory part of the indictment it was not 
 prisoner alleged that he did feloniously embezzle, &c, and that therefore the 
 " felonious- indictment failed to show that he had committed a felony, and that, un- 
 take " Ac./ less it was shown in the body of the indictment, it was not enough 
 the indict- that it was so alleged in the conclusion of it. The judges, however, 
 holden considered it to be sufficient that it was stated in the conclusion; and 
 good. the indictment was holden good.(£) 
 
 A count A count containing three charges of embezzlement, and not alleging 
 
 containing ^^ ^ Q sums f mone y we re embezzled within six calendar months, is 
 charges of bad. The indictment alleged that the prisoner, on the 15th day of 
 embezzle- November, 5 Victoria, was servant to H. Hodges, and did then and 
 
 lilt' 1 J t £111(1 
 
 notalleg- there by virtue, &c, receive 21. Is. 6c7. on account of his master; and 
 ing that the that the prisoner afterwards and within the space of six calendar months, 
 were em- *° "wit, on the 16th day of November, in the year aforesaid, did receive 
 bezzled the further sum of 21. 3s. on account, &c. ; and that the prisoner after- 
 month/iB* war( ^ s aQ d within the space of six calendar months, from the day first 
 bad. aforesaid, to wit, on the 17th of November in the year aforesaid, did re- 
 
 ceive the further sum of 21. Is. on account, &c. : and that the prisoner 
 on the several days aforesaid, in the year aforesaid, the said several 
 sums of money respectively received by him on each of those days as 
 aforesaid, feloniously did embezzle; and so the jurors do say that the 
 prisoner in manner and form as aforesaid, feloniously did steal the said 
 several sums of money against the form of the statute. Upon demur- 
 rer, it was objected that the indictment was bad; 1st, because it con- 
 tained three offences in one count; whereas the statute only authorized 
 the inserting three offences in three different counts. 2dly, that it did 
 not show that the three offences were committed within six calendar 
 months; for although the receipt of the money might be within six 
 calendar months, the embezzlement might not be within that period. 
 3dly, that the indictment charged a joint stealing on three different days. 
 And lastly, that there was only one contra pacem to three different 
 offences. And the indictment was held bad. At common law it would 
 have been bad, because the contra pacem could not be applied to one 
 more than to another of the offences charged : and it was not rendered 
 good by the 7 & 8 Geo 4, c. 29, s. 48. Under that section it was ne- 
 cessary to allege that the embezzlements were within six calendar months; 
 now the offence is not the receipt of the money, but the embezzlement 
 of it, and in this case, although there was an averment that the moneys 
 were received within six calendar months, there was no allegation that 
 they were embezzled within that period ; and therefore the indictment 
 was bad.(m) 
 Descrip- W e nave seen tnat tne 7 & 8 Geo. 4, c. 29, s. 48, provides that in 
 
 (I) Rex v. Crigton, cor. Thompson, B., Lancaster Sum. Ass. 1083, and before the judges, 
 Mich. T. 1803, MS. Bayley, J., and Russ. & Ry. 62. Rex v. Johnson, 3 M. & S. 540. 
 
 (m) Reg v. Purchase,* Gloucester Spr. Ass. 1842, MSS. S. C. 1 C. & Mars. 617. C. S. 
 G. Patteson, J., after consulting Cresswell, J. The very learned judge expressed no decided 
 opinion whether or not three offences could be included in one count, but said that the safer 
 course was to have three separate counts. His lordship cited a case of Reg. e>. Jeyes, where 
 an indictment, exactly the same as the one in this case, except that the words -'within six 
 calendar months." were not introduced, had been held bad by Lord Abinger, C. B., and 
 himself, at Warwick. C. S. G. 
 
 a Eng. Com. Law Reps. xli. 395.
 
 CHAP. XVII.] VENUE. *189 
 
 *every indictment, except where the offence relates to some chattel ; it tion of the 
 shall be sufficient to allege the embezzlement to be of money, without beefed" 1 
 specifying any particular coin, or valuable security. Where the offence 
 relates to some chattel, the same description as larceny will be suffi- 
 cient.^) 
 
 As an indictment for embezzlement is so general as to afford no in- Bill of par- 
 formation to the prisoner of the precise sums embezzled, or of the tlculars - 
 persons from whom they were received, the prisoner is entitled to be 
 furnished by the prosecutor with a particular of the charges intended to 
 be made ; and if the prosecutor refuse to give such particular, the court 
 on motion, founded upon affidavit, will order a particular to be given, and 
 such particular should contain the names of the persons from whom the 
 sums of money are alleged to have been received. (o) 
 
 Where there is only one count, and the prisoner has received different 
 sums on different days, amounting to the sum laid in that count, the 
 prosecutor must elect one sum, and confine his evidence to that sum. 
 Upon an indictment for embezzling lis. 10c/., it appeared that the pri- 
 soner had received money in different sums, upon different days, amount- 
 ing in the whole to the sum mentioned in the indictment, and it was 
 held that the prosecutor must select one sum received on one particular 
 day, and confine his evidence to that sum.(p) 
 
 Two cases occurred upon the repealed statute, 39 Geo. 3, in which Trial, 
 questions were raised as to the county in which the offence within that ^^the 
 statute might be considered as having been so completed as to author- offence may 
 ize a trial in such county. be tried * 
 
 In the first of these cases the prisoner was indicted in the county of Hobson's 
 Salop. The residence of the master was at Litchfield in Staffordshire, case ; A 
 where the prisoner served him in his trade. On a Saturday morning, servant in 
 both of them were at Shrewsbury ; and the master having authorized a Stafford- 
 person, named Beaumont, to collect some debts for him at that place, having re- 
 returned home the same morning, leaving the prisoner at Shrewsbury, ceived mo- 
 to receive the money from Beaumont, and bring it to him at Litchfield Shropshire 
 the same night. The prisoner received the money from Beaumont is evidence 
 about noon, and also a letter for his master which had been left at £° sh( , w 
 Beaumont's but which did not relate the money transaction. He ceipt in 
 left Shrewsbury soon after, but did not go to his master at Litchfield Shropshire 
 
 was with 
 
 till the following evening. He then delivered the letter ; and being i nten t to 
 asked about the money, he said he had not received any. A few days embezzle : 
 after, the master, in consequence of information he had received by fore the 
 letter, charged the prisoner with having received the money, and an- trial may 
 other servant who had been at Shrewsbury on Saturday, being present, Shropshire 
 told the prisoner that he had seen him receive money, but the pri- 
 soner persisted in denying that he had received any. Some time after- 
 wards, the master, having received further intelligence, bid the pri- 
 soner go to Shrewsbury to clear himself. On the Saturday following 
 the prisoner went to Beaumont, at his house in Shrewsbury, and de- 
 
 (n) See ante, p. 107, et seq. 
 
 (o) Rex v. Hodgson, 1 3 C. & P. 422, Vaughan, B. Rex v. Bootyman," 5 C. & P. 300, Lit- 
 tledale, J. The affidavit should state that the prisoner did not know the charges intended 
 to be brought against him, that it was necessary for his defence to be furnished with the 
 particular charges, and that he had applied to the prosecutor for a particular and been 
 refused. 
 
 (p) Rex v. Williams." G C. & P. 626, Arabin, Serjt., after consulting Gaselee, J., Alder- 
 8on (> B., and Gurney, B. 
 
 a Eng. Com. Law Reps. xiv. 373. b lb. xxiv. 330. c lb. xxv. 568.
 
 189 OF EMBEZZLEMENT BY CLERKS. [BOOK IV. 
 
 sired him to make a search on the left hand side of the room in which 
 *190 they had been ; *but no search was made, Beaumont telling him it was 
 of no use to search, as he had received the money from him. The jury 
 having found the prisoner guilty, the case was submitted to the con- 
 sideration of the twelve judges, upon two questions; first, whether, 
 under this statute, an indictment might not be found in the county 
 where the money or goods were received, although there were no evi- 
 dence of any other fact locally arising within the same county ? and, 
 secondly, whether, if further local proof were necessary, the subsequent 
 conduct of the prisoner at Shrewsbury were not sufficient to obviate 
 the objection, as being an act in furtherance of the purpose of secreting 
 or embezzling? A majority of the judges were of opinion, that the 
 conviction was right. Lawrence, J., thought, that embezzling being 
 the offence, there was no evidence of any offence in Shropshire, and 
 that the prisoner was improperly indicted in that county. But the 
 other judges were of opinion that the indictment might be in Shrop- 
 shire where the prisoner received the money, as well as in Staffordshire 
 where he embezzled it by not accounting for it to his master ; that the 
 statute having made the receiving property and embezzling it amount 
 to a larceny, made the offence a felony where the property was first 
 taken, and that the offender might therefore be indicted in that or in 
 any other county into which he carried the property.(<?) 
 Taylor's In the other case, which occurred shortly afterwards, the indictment 
 
 case. If a c h ar g eo < the prisoner with embezzling the sum of ten shillings, the pro- 
 eeive mo- perty of his master James Barker. The evidence was, that the prose- 
 ney for his cu t r, Barker, who was a fishmonger in Drury-lane, in the county of 
 the county Middlesex, sent his servant, the prisoner, with some herrings to a street 
 of A., and j n Blackfriars-road, in the county of Surrey, to Mrs. Stevens; telling 
 lec^uponto hi m tnat ^ e was to receive the sum of ten shillings for them. He went 
 account for with the herrings about six o'clock in the evening, and delivered them 
 county of to ^ rs - Stevens, who paid him the ten shillings ; after which he re- 
 B., there turned to his master, who asked him if he had brought the money, to 
 deny the wn ; cn h e replied, that he had not, for that Mrs. Stevens had not paid 
 it, he may him. His master then paid him his weekly wages (it being on Satur- 
 be indicted day,) and he went away, he being to return on Monday morning as 
 bezzlement usual : but did not return, nor did he ever account for the money. 
 in the latter Up 0n this evidence it was contended, on the part of the prisoner, that 
 county. ^ wag oQ jy 1^}}^ to be indicted in the county of Surrey, where the 
 money was received : and the jury having found him guilty, this point 
 was reserved for the consideration of the judges. The opinion of the 
 judges was afterwards delivered by Lord Alvanley, C. J., who first re- 
 ferred to the foregoing ease of Hobson, and then proceeded. " In the 
 present case no doubt can be entertained. The prisoner being sent 
 over Blackfriars-bridge into the county of Surrey, there received ten 
 shillings for his master. The receipt of that money was perfectly legal, 
 and there was no evidence that he ever came to the determination of 
 appropriating the money to his own use until after he had returned into 
 the county of Middlesex. It was not proved that the money ever was 
 embezzled until the prisoner was in the county of Middlesex. In cases 
 *191 of this sort the nature of the thing embezzled *ought not to be laid out 
 
 (?) Hobson's case, Shrewsbury Lent Ass. 1803, and East. T. 1803. 1 East, P. C. Ad- 
 denda, xxiv. and Russ. & Ry. 56.
 
 CHAP. XVIII.] OF EMBEZZLEMENT BY BANKERS, BROKERS, ETC. 191 
 
 of the question. The receipt of money is not like the receipt of an in- 
 dividual thing, where the receipt may be attended with circumstances 
 which plainly indicate an intention to steal, by showing an intention in 
 the receiver to appropriate the thing to his own use. Thus, if a servant 
 receive a horse for his master, and sell it before he gets out of the 
 county where he first received it, it might be said that he is guilty of 
 the whole offence in that county. But with respect to money, it is not 
 necessary that the servant should deliver over to his master the identical 
 pieces of money which he receives, if he should have lawful occasion to 
 pay them away. In such a case as this, therefore, even if there had been 
 evidence of the prisoner having spent the money on the other side of 
 Blackfriars-bridge, it would not necessarily confine the trial of the offence 
 to the county of Surrey. But here there is no evidence of any act to 
 bring the prisoner within the statute until he is called upon by his mas- 
 ter to account. When called upon by his master to account for the 
 money the prisoner denied that he had ever received it. This was the 
 first act from which the jury could with certainty say that the prisoner 
 intended to embezzle the money. In this case there was no evidence of 
 the prisoner having done any act to embezzle in the county of Surrey, 
 nor could the offence be complete, nor the prisoner be guilty within the 
 statute until he refused to account to his master. We are, therefore, of 
 opinion, that the prisoner was properly indicted in the county of Mid- 
 dlesex."^) 
 
 It should be observed, that by the 7 Geo. 4. c. 64, s. 12, where a 7 Geo. 4, e. 
 felony is begun in one county, and completed in another, such felony b ' ° n e j° ce 
 may be dealt with, inquired of, tried, determined, and punished in any one county 
 of the said counties, in the same manner as if it had been actually and an ° oni " 
 wholly committed therein. another. 
 
 By sec. 61, of the 7 & 8 Geo. 4, c. 29, principals in the second de- Principals 
 gree, and accessories before the fact, are punishable in the same manner ^^^ 
 as principals in the first degree ; and accessories after the fact (except gree, and 
 receivers of stolen property) are liable to be imprisoned for any term access °- 
 not exceeding two years. (s) 
 
 *CHAPTER THE EIGHTEENTH. *192 
 
 OF EMBEZZLEMENT BY BANKERS, BROKERS, FACTORS, AND OTHER 
 
 AGENTS. 
 
 Shortly after the decision in Walsh's case, which has been noticed 
 in a former part of this work, (a) the 52 Geo. 3, c. 63, was passed for 
 more effectually preventing the embezzlement of securities for money 
 and other effects, left or deposited for safe custody, or other special 
 purpose, in the hands of bankers, merchants, brokers, attorneys, or other 
 agents. This act was repealed by the 7 & 8 Geo. 4, c. 27, but the 7 & 
 8 Geo. 4, c. 29, contains other enactments upon the same subject. 
 
 The 7 & 8 Geo. 4, c. 29, s. 49, " for the punishment of embezzlements 7 & 8 Geo. 
 committed by agents intrusted with property,"(6) enacts " that if any 4 > c - 29 - 
 
 (r) Taylor's case, 3 Bos. & Pull. 596. 2 Leech, 974. Russ. & Ry. 63. 
 («) Ante, p. 2, as to hard labour and solitary confinement. 
 
 (a) Ante, p. 30. 
 
 (b) The words in the preamble of the 52 Geo. 3, c. 63, were " bankers, merchants, brokers, 
 attorneys, or other agents, entrusted by their customers and employers."
 
 192 OF EMBEZZLEMENT BY BANKERS, BROKERS, [BOOK IV. 
 
 Agents em- money,(c) or security for the payment of money, shall be intrusted to 
 money fn- an J banker, merchant, broker, attorney, or other agent, (d) with any 
 trusted to direction in writing to apply such money, or any part thereof, or the 
 tnem *? be proceeds or any part of the proceeds of such security, for any purpose 
 any special specified in such direction, and he shall, in violation of good faith, and 
 purpose; or con trary to the purpose so specified, in anywise convert to his own 
 
 embezzling ' 
 
 any goods use or benefit, such money, security, or proceeds, or any part thereof 
 or valuable respectively, every such offender shall be guilty of a misdemeanor, and, 
 trusteVto 1 "being convicted thereof, shall be liable, at the discretion of the court, to 
 them for be traosported beyond the seas for any term not exceeding fourteen 
 dv V^for y ears > nor l ess than seven years, or to suffer such other punishment by 
 any special fine or imprisonment, or by both, as the court shall award ;(e) and if any 
 purpose, (.battel or valuable security, or any power of attorney for the sale or 
 misde- transfer of any share or interest in any public stock or fund, whether of 
 meanor. ^g kingdom, or of Great Britain, or of Ireland, or of any foreign state, 
 or in any fund of any body corporate, company or society, shall be in- 
 *193 trusted to any banker, merchant, broker, attorney, *or other agent, for 
 safe custody, or for any special purpose, without any authority to sell, 
 negotiate, transfer, or pledge, and he shall, in violation of good faith, 
 and contrary to the object or purpose for which such chattel, security, or 
 power of attorney shall have been intrusted to him, sell, negotiate, trans- 
 fer, pledge, or in any manner convert to his own use or benefit such 
 chattel or security, or the proceeds of the same, or any part thereof, or 
 the share or interest in the stock or fund to which such power of attor- 
 . ney shall relate, or any part thereof, every such offender shall be guilty 
 of a misdemeanor, and, being convicted thereof, shall be liable, at the 
 discretion of the court, to any of the punishments which the court may 
 award, as hereinbefore last mentioned. "(/) 
 Not to af- By sec. 50, " nothing hereinbefore contained relating to agents shall 
 tees ot S ' an ~ ec t an y trustee in or under any instrument whatever, or any mort- 
 mortga- gage of any property, real or personal, in respect of any act done by 
 gees; nor suc j 1 trustee or niortsragee in relation to the property comprised in or 
 
 bankers, so r i j _ r 
 
 &c.,receiv- affected by any such trust or mortgage ; nor shall restrain any banker, 
 ing money merchant, broker, attorney, or other agent, from receiving any money 
 curities or which shall be or become actually due and payable upon or by virtue 
 disposing f any valuable security, according to the tenor and effect thereof, in 
 ties on " su °b manner as he might have done if this act had not been passed ; 
 which they nor from selling, transferring, or otherwise disposing of any securities 
 have a hen. Qr e g" ec t s [ Q jjj s possession, upon which he shall have any lien, claim, 
 or demand entitling him by law so to do, unless such sale, transfer, or 
 other disposal, shall extend to a greater number or part of such secu- 
 rities or effects than shall be requisite for satisfying such lien, claim, or 
 demand." 
 Factors By sec. 51, « if any factor or agent intrusted, for the purpose of sale, 
 
 (c) The word " money," was not in the 52 Geo. 3, c. 63. 
 
 (d) The words in the 52 Geo. 3, c. 63, were, " agent or agents of any description what- 
 soever." 
 
 (e) The present punishment by virtue of this section, and sec. 4 of the same statute, ante, 
 p. 145, and the 1 Vict. c. 90, s. 5, ante, p. 145, is transportation for not exceeding fourteen, 
 nor less than seven years, or fine or imprisonment, with or without hard labour in the 
 common gaol or house of correction, or both, and the offender may be sentenced to solitary 
 confinement for any portion or portions of such imprisonment, or of such imprisonment with 
 hard labour, not exceeding one month at a time, and not exceeding three months in the 
 space of one year. 
 
 (/) See the last note for the present punishment.
 
 CHAP. XVIII.] AND OTHER AGENTS. 193 
 
 with any goods or merchandise, or intrusted with any bill of lading, pledging 
 
 warehouse-keeper's or wharfinger's certificate, or warrant or order for ^^ lr 
 
 delivery of goods or merchandise, shall, for his own benefit, and in vio- any goods 
 
 lation of good faith, deposit or pledge any such goods or merchandise, or d ° cu - 
 
 „ , . , , 'x j> . , , ments rela- 
 
 or any ot the said documents, as a security tor any money or negotiable ting to 
 
 instrument borrowed or received by such factor or agent, at or before g° ocls in - 
 
 trusted to 
 
 the time of making such deposit or pledge, or intended to be thereafter them for 
 borrowed or received, every such offender shall be guilty of a misde- thepurpose 
 meanor, and, being convicted thereof, shall be liable, at the discretion of gu nty' f a 
 the court, to be transported beyond the seas for any term not exceeding misdemea- 
 fourteen years, nor lest than seven years, or to suffer such other punish- nor ' 
 ment by fine or imprisonment, or by both, as the court shall award ;(g\ 
 but no such factor or agent shall be liable to any prosecution for depo- Not t0 ex - 
 siting or pledging any such goods or merchandise, or any of the said cases 
 documents, in case the same shall not be made a security for or subject where the 
 to the payment of any greater sum of money than the amount which, jj e t f^ceed 3 
 at the time of such deposit or pledge, was justly due and owing to such the amount 
 factor or agent, from his principal, together with the amount of any bill ^ n eir 
 or bills of exchange, drawn by or on account of such principal, and 
 accepted by such factor or agent." 
 
 By sec. 52, " nothing in this act contained, nor any proceeding, *con- *194 
 viction, or judgment to be had or taken thereupon, against any banker, These pro- 
 merchant, broker, factor, attorney, or other agent, as aforesaid, shall to agents 
 prevent, lessen, or impeach any remedy at law or in equity which any shall not 
 party aggrieved by any such offence might or would have had if this ^edy ^ 
 act had not been passed ; but nevertheless the conviction of any such which the 
 offender shall not be received in evidence in any action at law or suit in P art yag- 
 
 J grieved 
 
 equity against him ; and no banker, merchant, broker, factor, attorney, now has. 
 or other agent, as aforesaid, shall be liable to be convicted by any evi- 
 dence whatever as an offender against this act, in respect of any act done 
 by him if he shall at any time previously to his being indicted for such 
 offence have disclosed such act, on oath, in consequence of any com- 
 pulsory process of any court of law or equity in any action, suit, or 
 proceeding, which shall have been bond fide instituted by any party 
 aggrieved, or if he shall have disclosed the same in any examination or 
 deposition before any commissioners of bankrupt." 
 
 By sec. 61, "every person who shall aid, abet, counsel, or procure Abettors 
 the commission of any misdemeanor punishable under this act, shall be P" p 1 ^ 1 ^. 6 
 liable to be indicted and punished as a principal offender." pals. 
 
 It was held that the 52 Geo. 3, c. 63, (now repealed) only applied to The repeal- 
 persons to whom securities were intrusted in the exercise of their func- ^ nl a __ 
 tion or business, and not to persons gratuitously engaging to procure the plied to 
 discount of bills, such persons not being in any business within which {^"omse- 
 such an employment regularly falls. The defendant was indicted under curities 
 the 52 Geo. 3, c. 63, for unlawfully negotiating and applying to his own ^^"in 
 use a bill of exchange deposited with him as agent for the owners with- tne exer- 
 out any authority to pledge, for the purpose of getting it discounted, cise of their 
 The defendant was not a bill-broker, and was to receive no commission 
 for discounting the bill ; but was in the habit of discounting bills for the 
 owners of the bills, and they were in the habit of doing so for him. The 
 bill had been drawn by the owners by the advice of the defendant, who 
 
 (g) See p. 128, as to hard labour and solitary confinement.
 
 194 OF EMBEZZLEMENT BY BANKERS, BROKERS, ETC. [BOOK IV. 
 
 informed them that he had the means of getting it discounted; and it 
 was delivered to him for that purpose, and he deposited it with a creditor 
 of his own as collateral security. It was objected that the defendant 
 was not an agent within the meaning of the statute ; that his offices 
 were gratuitous, and not performed in his regular business ; it was 
 replied that the words included agents of any description whatsoever, 
 and tbat a gratuitous agency was an agency of some description. Ab- 
 bott, C. J., "We must endeavour to ascertain the intention and object of 
 the statute ; and that appears to have been the punishment of persons 
 who, in the exercise of their functions, receive securities and afterwards 
 embezzle them. It is true, that for certain purposes, a friend is an agent, 
 but can he be called such an agent as the legislature had here in view? 
 Now here the parties are merely friends, accustomed to accommodate 
 each other, and taking the transaction as one between such friends mu- 
 tually aiding each other, can it be said to fall within the operation of an 
 act passed with such an intention and object? The words, 'any de- 
 scripton whatsoever,' are certainly very comprehensive, but if it had 
 been intended to comprehend within the enactments of the statute de- 
 posits for any purposes, (such for instance as safe custody,) all the 
 preceding words, 'banker, merchant/ &c, would have been unnecessary, 
 *195 aQ d *might have been omitted. It was, therefore, intended to confine 
 the operation of the statute to persons acting in the discharge of their 
 functions. I entertain a very clear opinion on the point. "(/i) 
 What not An indictment on the same statute alleged that the defendant had 
 an agency rece i ve( j th e sum f 10/. 8s. as an agent for safe custody, and had em- 
 for safe bezzled the same. The defendant was the proprietor of a weekly saving 
 custody, bank, in which there were 130 members, each member paid iu weekly 
 the sum of 2s. Id., and the penny being allowed to the defendant as a 
 remuneration for her trouble; at the end of each week a lottery took 
 place, in which there were 129 blanks and one prize, the holder of which 
 prize received the sum of 13/., the total amount of each week's subscrip- 
 tion ; all parties then went on with their subscriptions until 130 weeks 
 had gone round, and each member had received the 13/. prize. The 
 prosecutrix was one of the members, and had paid in subscriptions to 
 the amount of 10/. 8s., without ever obtaining the prize, when the de- 
 fendant suddenly absconded, and the deposit had never been forthcom- 
 ing. It was objected, first, that the defendant could not be considered 
 as an "agent," within the meaning of the act, no such establishment as 
 the one managed by the defendant being in existence at the time of the 
 passing of the law; second, that the money mentioned in the indictment 
 was not in the keeping of the defendant " for safe custody," within the 
 meaning of the act of parliament ; third, that the indictment averred 
 that the defendant had received the sum of 10/. 8s. of the prosecutrix, 
 whereas the evidence proved that she never had at one time received 
 or had in her possession more than 2s. Id. belonging to the prosecutrix. 
 Park, J. A. J., said, that "the three objections were, in his opinion, 
 clearly fatal to this indictment ; there did not seem to be any such 
 agency or keeping for safe custody on the part of the defendant, as was 
 contemplated by the statute; and with regard to the receipt of the 
 
 (h) Rex t>. Prince,* M. & M. 21. S. C. 3 C. & P. 517. See notes (6), and (c), ante. p. 102. 
 a Eng. Com. Law Reps. xii. 242.
 
 CHAP. XIX.] OF EMBEZZLEMENTS OF MINOR IMPORTANCE. 195 
 
 money, the evidence was decidedly at variance with the averment upon 
 that point. "(i) 
 
 It was held that by the same repealed statute the indictment must An indict- 
 correctly specify the direction given to the agent ; where, therefore, an ment must 
 indictment stated such direction as absolute, and it proved to be condi- specify the 
 tional, it was held that the defendant must be acquitted. An indict- direction 
 ment alleged that Anne Hubert deposited with the defendant twofu' vento t 
 exchequer bills for 500?. each, with an order in -writing for the defendant 
 to invest the sums of money, to which the said bills related, in the pur- 
 chase of government funds, and that the defendant unlawfully applied 
 the said bills to his own use.(_/) The written order was in terms, "for 
 the purpose and with the intent of your investing it or the proceeds, in 
 case of any unexpected accident, in the government funds, at a time 
 when you shall judge it desirable to buy in." Lord Tenterden, C. J., 
 " This direction in writing does not sustain the allegation in the indict- 
 ment, for the *allegation is that the defendant was directed to invest *196 
 absolutely and unconditionally ; and the direction proved is only to in- 
 vest, in case of any accident happening to Mrs. Hubert. Now no acci- 
 dent has happened, and under these circumstances the defendant cannot 
 be liable to punishment for not investing. The defendant must be ac- 
 quitted."^) 
 
 ^CHAPTER THE NINETEENTH. * 19 7 
 
 OF EMBEZZLEMENTS OF MINOR IMPORTANCE. 
 
 Several enactments are to be found amongst the statutes relating to Embezzle- 
 
 embezzlements of minor importance, and providing for their punish- meuts of 
 
 ,, in t/\ minor im- 
 
 ment by a summary mode ot proceeding.(a) portance. 
 
 The 55 Geo. 3, c. 137, reciting that persons received into public 55 Geo - 3 » 
 work-houses for the relief of the poor, pawn and dispose of their clothes, £, em {) ez _ ? 
 and the goods belonging to such work-houses, and that poor persons zlements 
 relieved by having clothes and apparel given them by the officers of by poor 
 parishes, frequently pawn and sell the same, and that by the laws then in work- 
 in force no punishment could be inflicted on them 7 or on the persons houses > &c - 
 buying or receiving the same pawn ; first vests the property of such 
 clothes, goods, &c, in the overseers for the time being; and then enacts, 
 that the overseers or other persons appointed for managing or providing 
 for the poor, may cause all goods, clothes, linen, &c, and things belong- 
 ing to such overseers or other persons, to be marked with the word 
 " work-house," and such other marks as they shall think proper, for 
 identifying the parish, &c, by which the same shall have been pro- 
 vided,^) and that if any person shall knowingly take in pawn, or re- 
 
 (i) Rex v. Mason, a D. & R., N. P. 22. A further point was that the case was not within 
 the statute, as the word " money" was not found in it. 
 
 (j) There was another count stating the order to be to invest in " government securities." 
 (k) Rex v. White, b 4 C. & P. 46. 
 
 (a) The 54 Geo. 3, c. 110, relating to embezzlements by Greenwich pensioners, and in- 
 serted here in the last edition, was wholly repealed by the 10 Geo. 4, c. 29, s. 1. 
 
 (b) By a subsequent part of the section, it is directed that such marks shall not be placed 
 on articles of wearing apparel so as to be publicly visible on the exterior of the same. 
 
 ■ Eng. Com. Law Reps. xvi. 417. b lb. xix. 268.
 
 197 OF EMBEZZLEMENT BY OFFICERS, ETC., OF THE [BOOK IV. 
 
 ceive any goods, &c, provided for the use of the poor in the work-house, 
 or given to the poor by the overseers, &c, or any goods, &c, or mate- 
 rials belonging to a work -house ; or shall receive or buy any of the pro- 
 visions provided for the poor or such work-house, or shall deface the 
 marks, &c, they shall forfeit, for every offence, not exceeding five 
 pounds, nor less than one pound, upon conviction before a justice. And 
 it further enacts, that if any persons shall desert, or run away from any 
 work-house, and carry with them any clothes, &c, or things as aforesaid, 
 such persons being lawfully convicted before any justice of the peace, 
 shall be forthwith committed to gaol or to the house of correction 
 for three calendar months. And it provides that the marks, &c, 
 on such things (being duly authenticated) shall be sufficient evi- 
 dence of property in the overseers, or other persons appointed as afore- 
 said.^) 
 Embez- An ac ^ f° r ^ ne warehousing of goods, the 3 & 4 Wm. 4, c. 57, s. 41, 
 
 zling, &c, enacts, that " in case it shall at any time happen that any embezzle- 
 h^is d ment ) *waste, spoil, or destruction shall be made of or in any goods or 
 goods. merchandise which shall be warehoused in warehouses under the autho- 
 *198 rity of this act, by or through any wilful misconduct of any officer or 
 officers of customs or excise, such officer or officers shall be deemed 
 guilty of a misdemeanor, and shall upon conviction, suffer such punish- 
 ment as may be inflicted by law in cases of misdemeanor.'Yrf) 
 Embezzle- In a late publication a precedent is given of an indictment against a 
 ment by a f surveyor of highways, for using materials obtained for repairing the 
 the high- highways upon his own premises, for employing the public labourers 
 ways of on kj g own g rounc l Sj and for embezzling the gravel and other materials 
 procured which had been procured for the parish. (e) This indictment does not 
 for repair- appear to have been framed upon the provisions of any statute ; but to 
 theexpense have charged the offence against the defendant as a misdemeanor at 
 of the pa- common law; laying the act to have been done by colour of his office, 
 and in dereliction of his duty as surveyor of the highways. (/) 
 
 rish. 
 
 *199 
 
 *CHAPTER THE TWENTIETH. 
 
 OF EMBEZZLEMENT BY OFFICERS AND SERVANTS OF THE BANK OF ENG- 
 LAND, AND BY PUBLIC OFFICERS. 
 
 Embezzle- Subsequently to the transaction in the case of Waite,(a) but prior 
 ments by ^ ^he decision of the judges upon it, the 15 Geo. 2, c. 13, was passed; 
 the bank of the twelfth section of which relates to embezzlements by officers and 
 England, servants of the Bank of England. f 
 
 (c) 55 Geo. 3, c. 137, s. 2. 
 
 (d) And in case of a conviction the owner is to be repaid for his loss by the commis- 
 sioners of excise. 
 
 (e) 3 Chit. Crim. L. 666, where it is said, in note (p), that this indictment was procured 
 from the crown office, and was used in 1799 against one Robinson. 
 
 (/) See vol. 1, p. 135, et seq. as to offences by persons in office. 
 (a) Ante, p. 163. 
 
 f [The provision in the Revised Statutes of* Massachusetts, c. 126, s. 27, for the punish- 
 ment of embezzlement committed by any cashier " or other officer'' of a bank, includes em- 
 bezzlement committed by the president and directors. Commonwealth v. Wyman, 8 Metcalf, 
 247.]
 
 CHAP. XX.] BANK OF ENGLAND AND PUBLIC OFFICERS, ETC. 199 
 
 It enacts, " that if any officer or servant of the said company being 15 Geo. 2, 
 intrusted with any note, bill, dividend-warrant, bond, deed, or any secu- An^officer' 
 rity, money, or other effects belonging to the said company, or having Ac, of the' 
 any bill, dividend-warrant, bond, deed, or any security, or effects of any said c , om ~ 
 other person or persons, lodged or deposited with the said company, or intrusted^ 
 with him as an officer or servant of the said company, shall secrete, witl f or 
 embezzle, or run away with any such note bill, dividend-warrant, bond, bm,' Tc^or 
 deed, security, money, or effects, or any part of them ; every officer or other ef - 
 servant so offending, and being thereof convicted in due form of law, secreting 
 shall be deemed suilty of felony, and shall suffer death as a felon, with- the same, 
 out benefit of clergy." e™ 1 * of 
 
 The same provisions are repealed in the 35 Geo. '3, c. 66, s. 6, and 
 37 Geo. 3, c. 46, s. 6, (which makes certain annuities, created by the 
 parliament of Ireland transferable, and the dividends payable at the 
 Bank of England) with respect to effects deposited in pursuance of those 
 act. And there is a similar provision in the 24 Geo. 2, c. 11, s. 3, 
 with respect to the officers and servants of the South Sea Company. 
 
 The 4 & 5 Vict. c. 56, reciting the 15 Geo. 2, c. 13, s. 12, the 35 Certain of- 
 Geo. 3, c. 66, s. 6, the 37 Geo. 3, c. 46, s. 6, and the 24 Geo. 2, c. 11, fen f s ? f 
 
 embezzle- 
 
 s. 3, and that it is expedient that the said several offences should nomentnotto 
 longer be punishable with death, enacts, " that from and after the com- be P un ,isb- 
 mencement of this act,(i) if any person shall be convicted of any of the death, 
 offences hereinbefore specified, such person shall not be subject to any Punish- 
 sentence, judgment, or punishment of death, but shall, instead of the men '■ 
 sentence or judgment in and by the said several acts hereinbefore re- 
 cited ordered to be given or awarded against persons convicted of the 
 said offences, or any of them respectively, be liable, at the discretion of 
 the court, to be transported beyond the seas for the term of the natural 
 life of such person, or for any term not less then seven years, or to be 
 imprisoned for any time not exceeding three years." 
 
 *By sec. 4, " in awarding the punishment of imprisonment for any *200 
 offence punishable under this act, it shall be lawful for the court to Imprison- 
 direct such punishment to be with or without hard labour in the com- ^witrTor 
 mon gaol or house of correction, and also to direct that the offender without 
 shall be kept in solitary confinement for any portion or portions of such , h, y d 
 imprisonment, whether the same be with or without hard labour, not 
 exceeding one month at any one time, and not exceeding three months 
 in any one year, as to the court in its discretion shall seem meet." 
 
 By sec. 6, " none of the offences hereinbefore specified shall be tried 
 or triable before any justices of the peace at any general or quarter 
 sessions of the peace." 
 
 It seems that a note once cancelled by the bank is not within the 15 It seems 
 
 Geo. 2, a note, security or effects of the bank ; or at least that a person that a note 
 
 i i ii i ii once can- 
 
 only employed to call over the sums and numbers from the cash-book, celled at 
 
 though he has access to the "file" of cancelled notes, cannot be found the bank is 
 
 guilty for taking the note from the file as a person intrusted with such & . t within 
 
 note. The prisoner was indicted as a servant intrusted with a note of tue 15 ® eo - 
 
 the governor and company for embezzling it. It appeared that he took ^ ' T J,^ ' 
 
 it off a cancelled file, to which he and many other clerks had access, person of- 
 
 and that he was the person who read from the cash-book the sums and wUh'irfthis 
 
 dates to check the cancelled account, and there was evidence that his act must be 
 
 (b) 1st October, 1841.
 
 200 OF EMBEZZLEMENT BY OFFICERS, ETC., OF THE [BOOK IV. 
 
 a person motive was to get a reward from the bank by showing how this fraud 
 intrusted, cou j ( j ^ e committed. The recorder saved the points whether the can- 
 celled note came within the description in the 15 Geo. 2, of a note, 
 security, or effects of the bank; and also, whether, in case it did, the 
 prisoner was so intrusted with the possession of it as to be within the 
 statute. The conviction was held bad, on the ground that it did not 
 appear by the facts, as stated, that the prisoner was a person intrusted 
 with the cancelled note, although he had access to it.(d\ 
 Aslett's An indictment on this statute was holden bad in charging the pri- 
 
 'Hi d^t " soner with embezzling " certain bills, commonly called exchequer bills," 
 ment char- when the person who signed the bills on the part of government was 
 ged the noti legally authorized so to do. It appeared that the bills in question 
 with em- were issued under the 43 Geo. 3, c. 5, which contained a proviso that 
 bezzling every such bill should be signed by the auditor of the exchange, or in 
 bills com- hi s name by any person duly authorized by him to sign the same with 
 monly the approbation of three or more of the lords commissioners of the trea- 
 e!rt™e<7uer SUI T * n "writing under their hands ; but which proviso had not been 
 bills,-" and complied with, inasmuch as the authority of a Air. Jennings, by whom 
 it was hold- t jj e kiij g werej j n f ac ^ signed, had not been properly renewed. Upon 
 its appear- this it was objected, on behalf of the prisoner, that the bills in question 
 ing that the were not legal exchequer bills; and that, as the indictment in every 
 been signed count, averred the instruments alleged to have been embezzled to be 
 by a person exc hequer bills, the allegation was not proved, and the prisoner must be 
 authorized acquitted. And the court were of opinion that the objection was good ; 
 to sign that as the formalities required by the statute, by which these bills were 
 them. created, had not been complied with, they were not good exchequer 
 *201 bills ; and that *the circumstances of the Bank of England having pur- 
 chased them as exchequer bills, and of the bills having in that charac- 
 ter answered the purpose for which they were originally created, could 
 have no effect in this case, as they could not alter the nature of the 
 fact.(e) 
 Aslett's B u t the prisoner was detained ; and shortly afterwards another indict- 
 
 case? 11 Ex- ment was preferred against him, upon which he was convicted. This 
 chequer indictment described the exchequer bills in question as effects belonging 
 chasedTv *° tne g overnor an d company of the Bank of England; stating the 
 the bank effects, in the first count, as paper writings, purporting to be exchequer 
 for a good \)\\\ s . [ n t ne second count, as certain papers upon the credit whereof 
 
 COD BluOFfl" 
 
 tion, but the bank had advanced a large sum of money; and in the third count, 
 signed in ascertain papers, &c, purporting to be bills commonly called exchequer 
 the auditor bills > an ^ ^ n other counts, the exchequer bills in question were called 
 of the ex- securities instead of effects. It was objected by the counsel for the pri- 
 ll person y soner ? before any evidence was called on the part of the posecution. 
 not legally that, as it had been determined, by his acquittal on the former indict- 
 
 authonzed men f fa^ t ne papers he was charged with having embezzled were not 
 
 are '* secu- ' r r ° ° 
 
 rities," or, exchequer bills at the time of the embezzlement, he could not be again 
 
 at least,^ charged with having embezzled the same papers, as being effects belong- 
 within the i n g to tne Bank of England; he having committed no other act of em- 
 
 (d) Rex ». Bakewell, November, 1802, MS. Bayley. J., and Russ. & Ry. 35. The case is 
 reported in 2 Leach, 943, and noticed by Le Blanc, J., 2 Leach. 9G2, and there said to have 
 gone off upon another point. The cancelling was effected merely by a punch through. 
 
 (e) Aslett's (first) case, cor. Macdonald, C. B.,Rooke, J., and Lawrence, J., 0. B. 1803. 2 
 Leach, 954. 

 
 CHAP. XX.] BANK OF ENGLAND AND PUBLIC OFFICERS, ETC. 201 
 
 bezzleinent than that contained in the former indictment; for though by meaning of 
 a remedial statute, 43 Geo. 3, c. 60, these defective papers had been « l i/* e °' 
 rendered good and valid exchequer bills for civil purposes, yet, that sta- 12, and a 
 tute having impliedly declared that these papers were, previously to the s f rv f nt ' ,f 
 passing it, mere waste papers, and of no value at the time the embezzle- embezzling 
 ment of them took place, it could not ex post facto make them valuable such bills 
 effects, within the 15 Geo. 2, c. 13, s. 12; which word effects, it was ™n^i c e ted 
 
 contended, could apply only to things in themselves of intrinsic value, of felony 
 
 under th 
 statute. 
 
 But Le Blanc, J., observed, that the word " securities" was used in the" nc 
 
 statute as well as the word " effects;" which showed that the legislature 
 intended that the statute should extand to other kinds of property than 
 securities; the word "effects" being of a larger and more comprehen- 
 sive meaning than the word "securities:" and he directed that the trial 
 should proceed. The facts of the case were then proved; and the jury 
 having found the prisoner guilty, the case was reserved for the consi- 
 deration of the twelve judges. The important question submitted to 
 them was, whether, on the true construction of the statute 15 Geo. 2, 
 c. 13, s. 12, these papers, which were issued as exchequer bills, did, iu 
 point of law, come within the words "effects, or securities," meant to 
 be described in the act of parliament ? After able argument by coun- 
 sel, and much consideration by the judges, at different conferences, the 
 result of their mature deliberation was communicated by Lord Alvan- 
 ley, C. J., who stated that the judges had not been unanimous upon this 
 point, but that a majority of them were of opinion, that the bills, or 
 papers, were "effects or securities," within the true meaning of the act, 
 and that the prisoner was properly convicted. After alluding to the 
 great object of the legislature, in giving protection and security to the 
 Bank of England, his lordship proceeded to state that the papers in 
 question were papers of value ; that though they might not, on the face 
 of them, be of any descriptive legal value, yet that they ^carried about *202 
 them such a consequence, at least, as might make their preservation of 
 infinite importance to the bank; that the government of the country was 
 pledged to pay them even as they were, the holders of them having as 
 strong a claim upon the justice of the government for such payment, as 
 if they were technically correct in all their parts ; and that they were, 
 therefore, in the true meaning of the word, securities which might be 
 rendered available to any person having the legal right to them. He 
 then observed, that the papers in question were not less to be deemed 
 effects ; which word was a very large and general term, and confined to 
 no particular description of property, either in specie or value ; and was, 
 therefore, probably inserted in the act, studiously, when the legislature 
 were placing a special guard around the bank ; and also that the offence 
 of embezzling the effects, or securities, mentioned in the act, was not 
 made larceny, where some value must attach on the thing taken, but 
 was created a felony, which induced no necessity for any value being 
 ascertained. He then put several cases to show that the papers in ques- 
 tion were effects ; and after stating that the judges had not found them- 
 selves driven to the extreme length of construing the word "effects" to 
 extend to such trifling articles as the stumps of old pens, or a piece of 
 blotting-paper, (an absurdity which had been supposed in argument,) he 
 said that their judgment only determined that the words of the act ne- 
 cessarily extended to such securities, or effects, as were intrusted to the 
 Vol. ii.— 14
 
 202 EMBEZZLEMENT BY OFFICERS, ETC., OF THE [BOOK IV. 
 
 officers and servants of the bank ; and that the bills in question came 
 
 under that description. (/) 
 Ofembez- The 50 Geo. 3, c. 59, s. 1, reciting that "it is most expedient that 
 the^nibiic ^ ue provision should be made effectually to prevent the embezzlement 
 moneys by of money or securities for money belonging to the public, by any collector, 
 pubhc offi- rece i ver> or other person intrusted with the receipt, custody, or manage- 
 loctors, &o. ment thereof;" enacts, " that if any person or persons to whom any 
 
 money or securities for money shall be issued for public services, shall 
 Any person embezzle such money, or in any manner fraudulently apply the same 
 orfraudi£ g to n * s own use or benefit, or for any purpose whatever except for public 
 lently ap- services, every such person so offending, and being thereof duly con- 
 plymg mo- v j c ^. e( j acc0 rding to law, in any part of the United Kingdom, shall be 
 to them for adjudged guilty of a misdemeanor, and shall be sentenced to be trans- 
 
 the public ported bevond the sea, or to receive such other punishment as may bv 
 service 51 to.. • j *> 
 
 be guilty of ' aw be inflicted on persons guilty of misdemeanors, and as the court 
 
 a misde- before which such offenders may be tried and convicted shall adjudge." 
 meanor. -g^ gee g^ u jf anv guc } 1 officer, collector, or receiver so intrusted with 
 
 officer &c tne receipt, custody, or management of any part of the public revenues, 
 intrusted shall knowingly furnish false statements or returns of the sums of money 
 ^\ ptg Yc " collected by him or intrusted to his care, or of the balances of money in 
 of the re- his hands or under his control, such officer, collector, or receiver so 
 furu U ishin nd offering, aQ d being thereof convicted, shall be adjudged guilty of a 
 false state- misdemeanor, and shall be adjudged to suffer the punishment of fine 
 ments, an( j imprisonment, at the discretion of the court, and be rendered for- 
 misdemea- ever incapable of holding or enjoying any office under the crown." 
 nor. *The 2 Wm. 4, c. 4, s. 1, reciting sec. 1 of the 50 Geo. 3, c. 59, and 
 
 •" U£ * that " it is expedient that further provision should be made with regard 
 4. Persons *° embezzlement by persons employed in the public service of his ma- 
 in the pub- jesty," repeals so much of the said act as is therein recited, except as to 
 embezzling &n J offences against the same committed before the passing of this act, 
 any money which offences are to be dealt with and punished as if this act had not 
 ..r valuable p asse( j an( j enacts that " from and after the passing of this act (13th 
 
 securities, *_ ' . . * «. . ^ . 
 
 with which February, 1832) if any person employed in the public service of his 
 
 they are in- majesty, and intrusted by virtue of such employment, with the receipt, 
 
 be deemed custody, management, or control of any chattel, money, or valuable 
 
 guilty of security, shall embezzle the same, or any part thereof, or in any manner 
 
 * e <> n J . fraudulently apply or dispose of the same, or any part thereof, to his 
 
 own use or benefit, or for any purpose whatsoever, except for the public 
 
 service, every such offender shall be deemed to have stolen the same, 
 
 and shall in England and Ireland be deemed guilty of felony, and in 
 
 Scotland of a high crime and offence, and on being thereof convicted in 
 
 due form of law, shall be liable, at the discretion of the court, to be 
 
 transported beyond the seas for any term not exceeding fourteen years 
 
 nor less than seven years, or to be imprisoned with or without hard 
 
 labour, as to the court shall seem meet, for any term not exceeding three 
 
 years." 
 
 What to be gy sec 2, "every tally, order, or other security whatsoever entitling 
 
 under the or evidencing the title of any person or body corporate to any share or 
 
 words interest in any public stock or fund, whether of the United Kingdom, or 
 
 security." °f Great Britain, or of Ireland, or of any foreign state, or to any share 
 
 (/) Aslett's (second) case, 0. B. 1803, and 1804, 1 New Rep. 1. 2 Leach, 958, and Russ. 
 & Uv. 67. It was also decided in this case, that the 15 Geo. 2, c. 13, was not repealed by 
 39 Geo. 3, c. 85.
 
 CHAP. XX.] BANK OF ENGLAND AND PUBLIC OFFICERS. 203 
 
 or interest in any fund of any body corporate, company, or society, or 
 to any deposit in any savings' bank, and every debenture, deed, bond, 
 bill, note, warrant, order, or other security whatsoever for money or for 
 payment of money, whether of this kingdom or of any foreign state, 
 and every warrant or order for the delivery or transfer of any goods or 
 valuable thing, shall throughout this act be deemed for every purpose 
 to be included under and denoted by the words " valuable security ;" 
 and that if any person so employed and intrusted as aforesaid shall 
 embezzle or fraudulently apply or dispose of any such valuable security 
 as aforesaid, he shall be deemed to have stolen the same within the 
 intent and meaning of this act, and shall be punishable thereby in the 
 same manner as if he had stolen any chattel of like value with the 
 share, interest, or deposit to which such security may relate, or with 
 the money due on such security, or secured thereby and remaining 
 unsatisfied, or with the value of the goods or other valuable thing men- 
 tioned in such security." 
 
 By sect. 3, " it shall be lawful to charge in the indictment to be Different 
 preferred against any offender under this act, and to proceed against j* cts ofeni - 
 him for any number of distinct acts of embezzlement or of fraudulent may be 
 application or disposition as aforesaid, not exceeding three, which may c ^ ar g ed in 
 have been committed by him within the space of six calendar months indict- 
 from the first to the last of such acts; and in every such indictment, ment As 
 where the offence shall relate to any money or other valuable security, it t ° n and" 
 shall be sufficient to allege the embezzlement or fraudulent application proof of the 
 or disposition to be of money, without specifying any particular coin or j^be^'led 
 valuable security; and such allegation, so far as it regards the descrip- 
 tion of the property, shall *be sustained, if the offender shall be proved *204 
 to have embezzled any amount, although the particular species of coin 
 or valuable security of which such amount was composed shall not be 
 proved, or if he shall be proved to have embezzled any piece of coin or 
 any valuable security, or any portion of the value thereof, although 
 such piece of coin or valuable security may have been delivered to him 
 in order that some part of the value thereof should be returned to the 
 party delivering the same, and although such part shall have been 
 returned accordingly." 
 
 By sect. 4, " in every such case of embezzlement or fraudulent ap- Property to 
 plication or disposition as aforesaid of any chattel, money or valuable he deswib- 
 security, it shall be lawful in the order of committal by the justice of king's. 
 the peace before whom the offender shall be charged, and in the indict- 
 ment to be preferred against such offender to lay the property of any 
 such chattel, money, or valuable security as aforesaid in the king's 
 majesty." 
 
 By sect. 5, " every offender against this act may be dealt with, in- venue, 
 dieted, tried, and punished, either in the county or place in which he 
 shall be apprehended, or in the county or place where he shall have 
 committed the offence." 
 
 An indictment upon this statute is sufficient, although it does not The indict- 
 allege that the prisoner embezzled the money whilst he was employed ™ e t n *]^e 
 in the public service. A count charged that the prisoner, being at a the embez- 
 certain time and place a clerk employed in the public service of her element to 
 
 ... „ , i • 1--I1 • have been 
 
 majesty, and by virtue of such employment intrusted with the receipt whilst the 
 
 and custody of money, the property of her majesty, did then and there prisoner 
 
 receive into his possession, by virtue of such employment as such clerk, sorv ; ce f
 
 204 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. 
 
 the certain money, the property, &c, and did then and there feloniously 
 
 erown ' embezzle the same, and so did feloniously steal, take, and carry away 
 the same; and it was objected that the count was bad, as it did not 
 allege that the prisoner embezzled whilst he was such clerk; the allega- 
 tion of his being clerk was confined to the fact of receiving the money, 
 and did not necessarily extend to the time of the embezzlement. Cole- 
 ridge, J., "I am clearly of opinion that the indictment is good; if the 
 fact of the prisoner's continuing clerk be necessary to the offence, the 
 indictment,- grammatically taken, would perhaps contain a sufficient 
 averment of that fact. But it is by no means clear that an embezzle- 
 ment, (if such a case be possible,) after a person ceased to be clerk or 
 servant, of money received whilst he was such, would not be within the 
 act. The statute, in its words, does not necessarily imply that he should 
 embezzle whilst clerk or servant, and if it does so imply it, the indict- 
 ment which pursues the same terms also implies it."( g) 
 
 Evidence of acting in the capacity of an officer employed by the 
 crown is sufficient to support an indictment under this statute, and the 
 appointment need not be regularly proved. (K) 
 
 *205 *CHAPTER THE TWENTY-FIRST. 
 
 OF LARCENY AND EMBEZZLEMENT BY PERSONS IN THE POST-OFFICE ; OF 
 STEALING LETTERS; AND OF SECRETING BAGS OR MAILS OF LETTERS. 
 
 These offences were formerly punished under the provision of the 5 
 
 Geo. 3, c. 25, the 7 Geo. 3, c. 50 ; the 42 Geo. 3, c. 81, and the 52 
 
 Geo. 3, c. 143 ; but the 1 Vict. c. 32, after the 1st of August, 1837, 
 
 repeals the whole of the 5 Geo. 3, c. 25, " except so much thereof as 
 
 relates to the postage on letters and packets conveyed by the post within 
 
 the British dominions in America and the West Indies, and to any 
 
 felony or other offence committed within such dominions ;" the whole 
 
 of the 7 Geo. 3, c. 50, "except so much thereof as relates to any felony 
 
 or other offence committed within the British dominions in America 
 
 and the West Indies;" the whole of the 42 Geo. 3, c. 81 ; and so much 
 
 of 52 Geo. 3, c. 143, "as relates to the post-office." And the punishment 
 
 of these offences is now regulated by the 1 Vict. c. 36, which came into 
 
 operation on the 1st of August, 1837. (a) 
 
 l Vict. e. That statute, by sec. 25, enacts, " that every person employed by or 
 
 36. Open- un( Jer the post-office who shall, contrary to his duty, open or procure, 
 
 laying post or suffer to be opened a post letter, or shall wilfully detain or delay, or 
 
 letters, a procure or suffer to be detained or delayed, a post letter, shall in Eng- 
 
 meanor. l aQ d an ^ Ireland be guilty of a misdemeanor, and in Scotland of a 
 
 (g) Reg. v. Lovell, 2 M. & Rob. 236. See this case, ante, p. 165, as to the point whether 
 a servant of the crown be a servant within the 7 & 8 Geo. 4, c. 37, s. 46, 47. 
 
 (h) Rex v. Borrett, a 6 C. & P. 124; Rex v. Townsend, b 1 C. & M. 178. See these cases in 
 the next chapter, p. 213. 
 
 (a) The previous sections impose penalties on contravening the privilege of the post-office, 
 retaining ship letters, abusing the privilege of newspapers, or masters of ships not taking 
 letter bags, or carelessness and misconduct of persons engaged in conveying or delivering 
 letter bags, letters, &c, on collectors of tolls demanding toll or stopping mails : and provide 
 as to the mode of proceeding for recovery of the penalties, &c. 
 
 a Eng. Com. Law Reps. xxv. 312. b lb. xli. 102.
 
 CHAP. XXI.] PERSONS IN THE POST-OFFICE. 205 
 
 crime and offence, and being convicted thereof shall suffer such punish- 
 ment by fine or imprisonment, or by both, as to the court shall seem meet; 
 provided always, that nothing herein contained shall extend to the open- Proviso, 
 ing or detaining or delaying of a post letter returned for want of a true 
 direction, or of a post letter returned by reason that the person to whom 
 the same shall be directed is dead or cannot be found, or shall have re- 
 fused the same, or shall have refused or neglected to pay the postage 
 thereof; nor to the opening or detaining or delaying of a post letter in 
 obedience to an express warrant in writing under the hand (in Great 
 Britain) of one of the principal secretaries of state, and in Ireland 
 under the hand and seal of the Lord Lieutenant of Ireland." 
 
 *By sec. 26, <l every person employed under the post-office who shall *206 
 steal, or shall for any purpose whatever embezzle, secrete or destroy a Embezzle- 
 post letter, shall in England and Ireland be guilty of felony, and in™^' j" 
 Scotland of a high crime and offence, and shall, at the discretion of the ter or 
 court, either be transported beyond the seas for the term of seven years, j? acket > 
 or be imprisoned for any term not exceeding three years ; and if any 
 such post letter so stolen or embezzled, secreted or destroyed, shall con- 
 tain therein any chattel or money whatsoever, or any valuable security, 
 every such offender shall be transported beyond the seas for life." 
 
 By sec. 27, "every person who shall steal from or out of a post letter Stealing 
 any chattel or money or valuable security, shall in England and Ireland T° ney ' fc f 
 be guilty of felony, and in Scotlaud of a high crime and offence, and letters, 
 shall be transported beyond the seas for life." felony. 
 
 By sec. 28, « every person who shall steal a post letter bag, or a post Stealing 
 letter from a post letter bag, or shall steal a post letter from a post-office, letter bags 
 or from any officer of the post-office, or from a mail, or shall stop a mail sen t by the 
 with intent to rob or search the same, shall in England and Ireland be man > 
 guilty of felony, and in Scotland of a high crime and offence, and shall 
 be transported beyond the seas for life." 
 
 By sec. 29, " every person who shall steal or unlawfully take away Stealing 
 a post letter bag sent by a post-office packet, or who shall steal or un- let * e ^ ba S s 
 lawfully take a letter out of any such bag, or shall unlawfully open any se nt by 
 such bag, shall in England and Ireland be guilty of felony, and in Scot- packets, 
 land of a high crime and offence, and shall be transported beyond the 
 seas for any term not exceeding fourteen years." 
 
 Sec. 30, " with regard to receivers of property sent by the post and Receiving 
 stolen therefrom," enacts, « that every person who shall receive any 2 e b rty t . 
 post letter or post letter bag, or any chattel or money or valuable secu- post, and 
 rity, the stealing or taking or embezzling or secreting whereof shall st0 ' en ° r 
 amount to a felony under the post-office acts, knowing the same to have felony. 
 been feloniously stolen, taken, embezzled, or secreted, and to have been 
 sent or to have been intended to be sent by the post, shall in England 
 and Ireland be guilty of felony, and in Scotland of a high crime and 
 offence, and may be indicted and convicted either as an accessory after 
 the fact or for a substantive felony, and in the latter case, whether the 
 principal felon shall or shall not have been previously convicted, or shall 
 or shall not be amenable to justice; and every such receiver, howsoever 
 convicted, shall be liable to be transported beyond the seas for life." 
 
 Sec. 31, reciting that "post letters are sometimes by mistake deliv- Fraudu- 
 ered to the wrong person, and post letters and post letter bags are lostj^ 1 / '' e ~ 
 in the course of conveyance or delivery thereof, and are detained by the after de- 
 finders in expectation of gain or reward," enacts, " that every person hve, 7> lv
 
 206 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. 
 
 mistake, who shall fraudulently retain, or shall wilfully secrete or keep or de- 
 &<? and 1 "' ta * a > or ^ ein S required to deliver up by an officer of the post-office, shall 
 wilfully se- neglect or refuse to deliver up a post letter which ought to have been 
 creting, delivered to any other person, or a post letter bag or post letter which 
 letters, shall have been sent, whether the same shall have been found by the 
 Ac, that person secreting, keeping or detaining, or neglecting or refusing to de- 
 lost, a mis- liver up the same, *or by any other person, shall in England and Ire- 
 demeanor. i anc i be guilty of a misdemeanor, and in Scotland of a crime and offence, 
 ~" ' and being convicted thereof, shall be liable to be punished by fine and 
 imprisonment.' Y&) 
 Stealing, Sec. 82, " for the protection of printed votes and proceedings in par- 
 Ac, any ]i ame nt and printed newspapers sent by the post," enacts, " that every 
 votes or person employed in the post-office who shall steal, or shall for any pur- 
 proceed- p 0ge embezzle, secrete, or destroy, or shall wilfully detain or delay in 
 liament, course of conveyance or delivery thereof by the post, any printed votes 
 newspa- or proceedings in parliament, or any printed newspaper, or any other 
 mTsdemea* printed paper whatever sent by the post without covers, or in covers 
 nor. open at the sides, shall in England and Ireland be guilty of a misde- 
 
 meanor, and in Scotland of a crime and offence, and being convicted 
 thereof shall suffer such punishment by fine or imprisonment, or by 
 both, as the court shall seem meet."(c) 
 Principal By sec. 35, " in the case of every felony punishable under the post- 
 'ondde 6 °^ CQ ac ^ s > every principal in the second degree, and every accessory 
 gree, and before the fact, shall be punishable in the same manner as the principal 
 accesso- j n ^ e g rs ^ (j e g re e i s by the post-office acts punishable ; and every acces- 
 be punish- sory after the fact to any felony punishable under the post-office acts, 
 ed - (except only a receiver of any property or thing stolen, taken, embez- 
 
 zled or secreted,) shall, on conviction, be liable to be imprisoned for 
 any term not exceeding two years ) and every person who shall aid, 
 abet, counsel, or procure the commission of any misdemeanor punishable 
 under the post-office acts, shall be liable to be indicted and punished as 
 a principal offender." 
 Endeav- By sec. 36, " every person who shall solicit and endeavour to procure 
 ounng to an y other person to commit a felonv or misdeameanor punishable by the 
 commis- post-office acts, shall in England and Ireland be guilty of a misde- 
 sion of any me anor, and in Scotland of a crime and offence, and being thereof con- 
 
 crime 
 
 victed, shall be liable, at the direction of the court, to be imprisoned 
 for any term not exceeding two years." 
 Venue. Sec. 37, " for the more effectual prosecution of offences committed 
 
 against the post-office acts," enacts, " that the offence of every offender 
 against the post-office acts may be dealt with, and indicted and tried, 
 and punished, and laid and charged to have been committed in England 
 and Ireland, either in the county or place where the offence shall be 
 committed, or in any county or place in which he shall be apprehended 
 or be in custody, as if his offence had been actually committed in that 
 county or place, and if committed in Scotland either in the high court 
 of justiciary at Edinburgh, or in the circuit court of justiciary to be 
 holden by the lords commissioners of justiciary within the district 
 where such offence shall be committed, or in any county or place with- 
 
 (i) This provision is similar to the 42 Geo. 3, c. 81, s. 4, (now repealed) ; and would meet 
 such cases as Rex v. Mucklow, R. & M. C. C. R. 160, ante, p. 58. 
 
 (c) Sec. 33 relates to forging the hand-writing of the receiver general in England or Ire- 
 land, and will be found in Chap. 38 ; and sec. 34 relates to the forgery of franks.
 
 CHAP. XXI.] PERSONS IN THE POST-OFFICE. 207 
 
 in which such offender shall be apprehended or be in custody, as if his 
 offence had been actually committed there; and when an offence shall be 
 committed in or upon or in respect of a mail, or upon a person engaged 
 in the conveyance or delivery of a post letter bag or post letter, or in 
 respect of a post letter bag or post letter, or a chattel or money or val- 
 uable security sent by the post, such offence may be dealt with and 
 inquired of, and tried and punished, and laid and charged to have been *208 
 committed, as well in any county or place in which the offender shall 
 be apprehended or be in custody, as also in any county or place through 
 any part whereof the mail, or the person, or the post letter bag or the 
 post letter, or the chattel, or the money, or the valuable security sent 
 by the post in respect of which the offence shall have been committed, 
 shall have passed in due course of conveyance or delivery by the post, 
 in the same manner as if it had been actually committed in such county 
 or place; and in all cases where the side or the centre or other part of 
 a highway, or the side, the bank, the centre, or other part of a river, or 
 canal or navigation, shall constitute the boundary of two counties, such 
 offence may be dealt with and inquired of, and tried and punished, and 
 laid and charged to have been committed in either of the said counties 
 through which or adjoining to which or by the boundary of any part 
 of which the mail or person shall have passed in due course of convey- 
 ance or delivery by the post, in the same manner as if it had actually 
 been committed in such county or place; and every accessory before or Accesso- 
 after the fact to any such offence, if the same be a felony or high crime, ries in felo ~ 
 and every person aiding and abetting, or counselling, or procuring the persons 
 commission of any such offence, if the same be a misdemeanor, may be aidin g anil 
 dealt with, indicted, tried, and punished as if he were a principal, and in misde- S 
 his offence laid and charged to have been committed in any county or meanor. 
 place in which the principal offender may be tried."(cZ) 
 
 By sec. 39, "where an offence punishable under the post-office acts Admiralty 
 shall be committed within the jurisdiction of the admirality the sameJ! iris(iic - 
 shall be dealt with and inquired of and tried and determined in the 
 same manner as any other offence committed within that jurisdiction." 
 
 By sec. 40, "in every case where an offence shall be committed in Property 
 respect of a post letter bag or a post letter, or a chattel, money, or a sentby , tht 
 valuable security, sent by the post, it shall be lawful to lay in the in- laid in the 
 dictment or criminal letters to be preferred against the offender the pro- P os tmaster 
 perty of the post letter bag or of the post letter, or chattel or money or generd ' 
 the valuable security sent by the post, in the postmaster general ; and 
 it shall not be necessary in the indictment or criminal letters to allege 
 or to prove upon the trial or otherwise that the post letter bag or any 
 such post lettei or valuable security was of any value ; and in any in- 
 
 (d) Sec. 38 relates to bail in Scotland. It was formerly decided that an indictment for 
 robbing a mail bag of letters must be laid in the county where the letters were actually 
 taken, in order to bring the case within the statute of 7 Geo. 3, c. 50, s. 2 ; and that it could 
 not be laid in the county where the prisoner was only in possession of them ; the jury hav- 
 ing found that the letters were taken from the bag in some other county, through which the, 
 mail had passed. Thomas's case, 0. B. 1794. 2 Leach, 634. 2 East, P. C. c. 16, s. 30, p. 
 605. It was argued in this case that there was a new taking and offence in the county 
 where the prisoner had possession of the letters ; but upon this it is observed that the- 
 statute 7 Geo. 3, c. 50, s. 2, did not make the stealing of letters generally a capital offence, 
 but the stealing them from places particularly specified ; which is a definite act, local in its 
 nature, and cannot be extended, by construction, to a new taking in every county into which 
 the thing stolen is conveyed, as in the case of simple larceny. 2 East, P. C. c. 16, s. 39. p. 
 606.
 
 208 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. 
 
 dicttnent or in any criminal letters to be preferred against any person 
 
 employed under the post-office for any offence committed against the 
 
 *209 post-office acts, it shall be lawful to state and *allege that such offender 
 
 was employed under the post-office of the United Kingdom at the time 
 
 of the committing such offence, without stating further the nature or 
 
 particulars of such employment." 
 
 Punish- By see. 41, "every person convicted of any offence for which the 
 
 ments. punishment of transportation for life is herein awarded shall be liable 
 
 to be transported beyond the seas for life, or for any term not less than 
 
 seven years, or to be imprisoned for any term not exceeding four years; 
 
 and every person convicted of any offence punishable according to the 
 
 post-office acts by transportation for fourteeen years shall be liable to be 
 
 transported for any term not exceeding fourteen years nor less than 
 
 seven years, or to be imprisoned for any term not exceeding three 
 
 years." 
 
 Power to By sec. 42, " where a person shall be convicted of an offence punish- 
 
 award hard aD j e U nder the post-office acts for which imprisonment mav be awarded, 
 
 labour or r F . .- 
 
 solitary the court may sentence the offender to be imprisoned, with or without 
 
 confine- hard labour, in the common goal or house of correction, and mav also 
 
 uient. . . J 
 
 direct that he shall be kept in solitary confinement^^) for the whole 
 or any portion of such imprisonment, as to the court shall seem 
 meet."(e) 
 Iaterpreta- Sec. 47, " for the interpretation of the post-office laws," enacts, "that 
 au»e. ^ e f ]j ow i n g terms and expressions shall have the several interpreta- 
 tions hereinafter respectively set forth, unless such interpretations are 
 repugnant to the subject, or inconsistent with the context of the pro- 
 visions in which they may be found; (that is to say,) the term British 
 letter shall mean a letter transmitted within the United Kingdom : and 
 the term British newspaper* shall mean newspapers printed and pub- 
 lished in the United Kingdom, liable to the stamp duty and duly 
 stamped ; and the term British postage shall mean the duty chargeable 
 on letters transmitted by post from place to place within the United 
 Kingdom, or if transmitted to or from the United Kingdom, chargeable 
 for the distance which they shall be transmitted within the United 
 Kingdom, and including also the packet postage, if any ; and the term 
 Colonial letter shall mean a letter transmitted between any of her 
 majesty's colonies and the United Kingdom; and the term Colonial 
 newspapers shall mean newspapers printed and published in any of her 
 majesty's dominions out of the United Kingdom ; and the term con- 
 vention posts shall mean posts established by the postmaster general 
 under agreements with the inhabitants of any places; and the term 
 double letter shall mean a letter having one inclosure; and the term 
 double postage shall mean twice the amount of single postage; and the 
 term East Indies shall mean every port and place within the territorial 
 acquisitions now vested in the East India Company in trust for her 
 majesty, and every other port or place within the limits of the charter 
 of the said company, (China excepted) and shall also include the Cape 
 
 (dd) By the 1 Vict. c. 90, s. 5, i: it shall not be lawful for any court to direct that any of- 
 fender shall be kept in solitary confinement for any longer period than one month at a time. 
 or than three months in the space of a year." 
 
 (e) Sec. 43 gives a power of distress for the recovery of sums due for postage, not exceed- 
 ing 201., in the United Kingdom or elsewhere in Her Majesty's dominions. Sec. 44 provides 
 in what way duties for postage may be sued for. Sec. 45 gives the forms of conviction. *C. 
 Sec. 46 regulates the mode of proceeding in actions.
 
 CHAP. XXI.] PERSONS IN THE POST-OFFICE. 209 
 
 of Good Hope; and the term express shall mean every kind of convey- 
 ance employed to carry letters on behalf of the post-office other than the 
 usual mail; and the term foreign country shall mean any country, state, 
 or kingdom not included *in the dominions of her majesty; and the *210 
 term foreign letter shall mean a letter transmitted to or from a foreign 
 country ; and the term foreign newspapers shall mean newspapers 
 printed and published in a foreign country in the language of that 
 country; and the term foreign -postage shall mean the duty charged for 
 the conveyance of letters within such foreign country; and the term 
 franking officer shall mean the person appointed to frank the official 
 correspondence of offices to which the privilege of franking is granted; 
 and the term her Majesty, shall mean her Majesty, her heirs, and suc- 
 cessors ; and the term her Majesty's colon irs shall include every port 
 and place within the territorial acquisitions now vested in the East India 
 Company in trust for her majesty, the Cape of Good Hope, the islands 
 of St. Helena, Guernsey, Jersey, and Isle of Man, (unless any such 
 places be expressly excepted,) as well as her majesty's other colonies 
 and possessions beyond seas; and the term inland postage shall mean 
 the duty charged for the transmission of post letters within the limits of 
 the United Kingdom or within the limits of any colony; and the term 
 letter shall include packet, and the term packet shall include letter; and 
 the expression Lord Lieutenant of Ireland shall mean the chief governor 
 or governors of Ireland for the time being; and the expression lords of 
 the treasury shall mean the lord high treasurer of the United Kingdom 
 of Great Britain and Ireland, or the lords commissioners of her ma- 
 jesty's treasury of the United Kingdom of Great Britain and Ireland, 
 or any three or more of them ; and the term mail shall include every 
 conveyance by which post letters are carried, whether it be a coach, or 
 cart, or horse, or any other conveyance, and also a person employed in 
 conveying or delivering post letters, and also every vessel which is in- 
 cluded in the term packet boat; and the term mail bag shall mean a 
 mail of letters, or a box, or a parcel, or any other envelope in which post 
 letters are conveyed, whether it does or does not contain post letters ; 
 and the term master of a vessel shall include any person in charge of a 
 vessel, whether commander, mate, or other person, and whether the 
 vessel be a ship of war or other vessel; and the expression officer of the 
 post-office shall include the postmaster general, and every deputy post- 
 master, agent, officer, clerk, letter carrier, guard, post boy, rider, or 
 any other person employed in any business of the post-office, whether 
 employed by the postmaster general, or by any person under him or on 
 behalf of the post-office ; and the term packet postage shall mean the 
 postage chargeable for the transmission of letters by packet boats be- 
 tween Great Britain and Ireland, or between the United Kingdom and 
 any of her majesty's colonies, or between the United Kingdom and 
 foreign countries ; and the term packet letter shall mean a letter trans- 
 mitted by a packet boat; and the term penalty shall include every 
 pecuniary penalty or forfeiture ; and the expression persons employed 
 by or tinder the post-office shall include every person employed in any 
 business of the post-office according to the interpretation given to officer 
 of the post-office ; and the terms packet boats and post-office packets 
 shall include vessels employed by or under the post-office or the admi- 
 ralty for the transmission of post letters, and also ships or vessels 
 (though not regularly employed as packet boats,) for the conveyance of
 
 210 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. 
 
 post letters under contract, and also a ship of war or other vessel in the 
 service of her majesty, in respect of letters conveyed by it; and the term 
 postage shall mean the duty chargeable for the transmission of post 
 *211 letters; and the term *post town shall mean a town where a post-office is 
 established (not being a penny or twopenny or convention post-office ;) 
 and the term post letter bag shall include a mail or box, or packet or 
 parcel, or other envelope or covering in which post letters are conveyed, 
 whether it does or does not contain post letters; and the term post letter 
 shall mean any letter or packet transmitted by the post under the 
 authority of the postmaster general, and a letter shall be deemed a 
 post letter from the time of its being delivered to a post-office to the 
 time of its being delivered to the person to whom it is addressed ; and 
 the delivery to a letter carrier or other person authorized to receive 
 leters for the post shall be a delivery to the post-office ; and a delivery 
 at the house or office of the person to whom the letter is addressed, or 
 to him, or to his servant or agent or other person considered to be 
 authorized to receive the letter according to the usual manner of deli- 
 vering that person's letters, shall be a delivery to the person addressed ; 
 and the term post-office shall mean any house, building, room, or place 
 where post letters are received or delivered, or in which they are sorted, 
 made up, or despatched ; and the term postmaster general shall mean 
 any person or body of persons executing the office of postmaster general 
 for the time being, having been duly appointed to office by her 
 majesty; and the terms post-office acts and post-office laws shall mean 
 all acts relating to the management of the post, or to the establishment 
 of the post-office, or to postage duties, from time to time in force; 
 and the term shij)s shall include vessels other than packet boats ; and 
 the term single postage shall mean the postage chargeable for a single 
 letter ; and the term single letter shall mean a letter consisting of one 
 sheet or piece of paper, and under the weight of an ounce ; and the 
 term sea postage shall mean the duty chargeable for the conveyance of 
 letters by sea by vessels not packet boats; and the term ship letter shall 
 mean a letter transmitted inwards or outwards over seas by a vessel not 
 being a packet boat; and the term treble letter shall mean a letter con- 
 sisting of more than two sheets or pieces of paper, whatever the number 
 under the weight of an ounce ; and the term treble postage shall mean 
 three times the amount of single postage : and the term treble the duty 
 of postage shall mean three times the amount of the postage to which 
 the letter to be charged would otherwise have been liable according to 
 the rates of postage chargeable on letters; and the term United King- 
 dom shall mean the United Kingdom of Great Britain and Ireland ; and 
 the term valuable security shall include the whole or any part of any 
 tally, order, or other security whatsoever, entitling or evidencing the title 
 of any person or body corporate to any share or interest in any public 
 stock or fund, whether of this kingdom or of Great Britain or of Ireland, 
 or of any foreign state, or in any fund of any body corporate, company, 
 or society, or to any deposit in any savings' bank, or the whole or any 
 part of any debenture, deed, bond, bill, note, warrant, or order, or other 
 security whatsoever for money or for payment of money, whether of 
 this kingdom or of any foreign state, or of any warrant or order for the 
 delivery or transfer of any goods or valuable thing; and the term vessel 
 shall include any ship or other vessel not a post-office packet; and when- 
 ever the term between is used in reference to the transmission of letters,
 
 CHAP. XXI.] PERSONS IN TIIE POST-OFFICE. 211 
 
 newspapers, parliamentary proceedings, or other things between one 
 place and another, it shall apply equally to the transmission *from either *212 
 place to the other ; and every officer mentioned shall mean the person 
 for the time being executing the functions of that officer ; and when- 
 ever in this act or the schedules thereto, with reference to any person or 
 matter or thing, or to any persons, matters, or things, the singular or 
 plural number or the masculine gender only is expressed, such expres- 
 sion shall be understood to include several persons or matters or things 
 as well as one person or matter or thing, and one person, matter, or 
 thing as well as several persons or matters or things, females as well as 
 males, bodies politic or corporate as well as individuals, unless it be 
 otherwise specially provided, or the subject or context be repugnant to 
 such construction." 
 
 By sec. 48, the act extends to " the islands of Man, Jersey, Guernsey, Where pro- 
 Sark, and Alderney, and all her majesty's colonies and dominions where V1 f°? ,? f 
 any post or post communication is established under the postmaster extend to. 
 general of the United Kingdom." 
 
 The 52 Geo. 3, c. 143 (now repealed), related expressly to the embez- The 52 
 zling and stealing the whole or any part of a bank-note, &c. The i43°' re 'iat. 
 former statute, 7 Geo. 3, c. 50, was not equally extensive ; but it was ing to the 
 holden that a letter-carrier secreted half a bank-note in one letter on one ^jj™ ez V 
 day, and the other half in another letter on another day, was guilty of a of any part 
 secreting within that statute.(/) And the 42 Geo. 3, c. 81, s. 2, ex- °^ a ba ^ k ~ 
 tended the provisions of the 7 Geo. 3, c. 50, to the protection of any 
 parts of the securities or instruments therein mentioned. fa) 
 
 Some of the cases decided upon the 7 Geo. 3, c. 50, and 52 Geo. 3, Construc- 
 c. 143, may be useful in the construction of the similar provisions of the y 10 ^" 3 ^ 
 new statute. 50. 
 
 It was holden on an indictment on the 7 Geo. 3, c. 50, charging the It is suffi- 
 prisoner, as a servant to the post-office, with embezzling a letter con- p r e ^ e t ° hat 
 taining a bill of exchange, that it was not necessary to prove that he the prison- 
 had taken the oath required by the statute 9 Anne, c. 10, s. 41. (Ji) It JJ a ^^. in 
 was objected, that as he had not taken the oath, he could not be con- city charg- 
 sidered as a legal servant to the post-office ; but the objection, being sub- f d V 1 the 
 mitted to the consideration of the twelve judges, was overruled. (?') 
 
 It has been held in several cases that it is sufficient to prove that the 
 prisoner acted in the capacity charged in the indictment. Thus where 
 husband and wife were indicted on the 52 Geo. 3, c. 143, s. 2, for em- 
 bezzling a letter containing a bill of exchange, and it was proved by the 
 postmaster of Carmarthen that he had appointed the husband postmas- 
 ter of Ferryside, and that that appointment was sanctioned by the post- 
 master general, and that the husband had been postmaster for three 
 years ; it was submitted that to support the indictment against the wife, 
 
 {f) Rex v. Moore, O. B. 1TT2, 2 Leach, 675. 2 East, P. C. c. 16, s. 22, p. 582. 
 
 (g) See the interpretation clause, ante, p. 210. 
 
 (A) That statute enacted, that no person should be capable of exercising any employment 
 relating to the post-office, &c, unless he should have first taken an oath therein mentioned. 
 But no penalty was annexed to the omission. 
 
 (i) Clay's case, York Lent Ass. 1784, East. T. 1784, 2 East, P. C. c. 16, s. 21, p. 580. _ 1 
 Leach, 3, note (a). The prisoner was acquitted on one indictment, on the supposed validity 
 of the objection, that he had not taken the oath; but other indictments having been pre- 
 ferred against him for similar offences, it was thought necessary to take the opinion of the 
 judges on the point.
 
 *213 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. 
 
 she must be employed by or under *the post-office, and in this case she 
 merely acted as the assistant of her husband in his absence; and with 
 respect to the husband, the written appointment ought to have been pro- 
 duced ; but Parke, B., held it was sufficient to show that the prisoners 
 had acted as servants of the post-office. (A So where the prisoner was 
 indicted under the 2 Wm. 4, c. 4, as a person employed in the public 
 service of his majesty, for embezzling the overcharge of a letter, and no 
 evidence was offered of his appointment, as a letter-carrier, but it was 
 proved that he acted as such; this was held to be sufficient.(&) So 
 where the prisoner, who was indicted under the same statute, was a let- 
 ter-carrier employed by the post-office to deliver letters about Glouces- 
 ter, and had been in the habit of calling at the lodge of the Gloucester 
 Infirmary, and receiving letters there, and a penny upon each to prepay 
 the postage, and his practice was to deliver these letters at the Glouces- 
 ter post-office ; but he sometimes omitted to call at the lodge, and then 
 the letters were taken by some person and put in the post-office ; and 
 during the time he had been ill, another person, who performed his 
 duties, had also called at the lodge and received the letters and the pen- 
 nies, and delivered them at the post-office in the same way as the pri- 
 soner. Evidence was also given to show that the prisoner had embez- 
 zled pence received at the lodge to prepay letters. It was admitted that 
 proving that the prisoner acted as a letter-carrier was sufficient to show 
 that he held that situation, but it was urged that where the charge was 
 of embezzling money received by virtue of his employment, it must be 
 shown that it was the duty of the prisoner to receive the money, and 
 in this case it was the mere voluntary act, and he was neither bound to 
 go to the lodge nor to receive the letters ; but it was held that there was 
 evidence to go to the jury that the pence were received by virtue of the 
 prisoner's employment. (I) 
 Servants of It was held that a person, employed as a servant to clean boots and 
 the post- shoes, &c, by a law-stationer at a receiving-house of the general post- 
 office in Middle Temple Lane, and who used to assist in tying up and 
 sealing the post-office bag, was not a person "employed by or under the 
 post-office," within the meaning of the 52 Geo. 3, c. 143. (II) 
 
 But where a post-mistress employed the prisoner at a salary of 14s. 
 
 a-week to carry the letter bag from Dursley to Berkeley, and she was 
 
 allowed by the post-office, in her quarterly account, the sums she paid 
 
 him; but the prisoner never sorted the letters or opened any mail bag; 
 
 it was held that he was a person in the employ of the post-office. (»i) 
 
 by's cafe." ^ was decided on the 7 Geo. 3, c. 50, that a bill of exchange might 
 
 Ilolden be laid in the indictment as a warrant for the payment of money. The 
 
 that a bill p r i soner) a c \erk employed in the post-office at Birmingham, was charged 
 
 change in the indictment with stealing from a letter a certain warrant for the 
 
 might be payment of money ; and it was objected on his behalf that the instru- 
 
 lilll.l <l S Si « • _ , • i» 1 
 
 warrant for ment in question was not, according to the true construction ot the 
 *214 statute, a warrant for the payment of money, *but a post-bill, note, or 
 
 (/) Rex v. Rees, a 6 C. & P. G06. (k) Rex w. Borrett," 6 G. & P. 124. 
 
 (I) Reg. v. Townsend, ° 1 C. & M. 178. See also Goodwin's case, 1 Lew. 100. 
 
 (II) Rex v. Pearson, 11 4 C. & P. 572, Littledale and Bosanquet, Js. 
 (m) Rex v. Salisbury, « 5 C. & P. 155, Patteson, J. 
 
 8 Eng. Com. Law Reps. xxv. 559. b lb. xxv. 312. ° lb. xli. 102. 
 
 a lb. xix. 533. e lb. xxiv. 253.
 
 CHAP. XXI.] PERSONS IN TIIE POST-OFFICE. 214 
 
 bill of exchange. («) The prisoner having been found guilty, this point the pay- 
 was submitted to the consideration of the judges. Three of the judges m ® nt of 
 doubted, at first, whether the instrument could be considered as a war- within the 
 rant within the meaning of the statute; for as the statute enumerated L Ge0 ' 3 ' c ' 
 specific things, and expressly mentioned bills of exchange, they thought 
 that the words " other warrant" must mean something besides a bill of 
 exchange (such as warrants from some of the public boards for pay- 
 ment of money,) but they afterwards admitted that the case could not 
 be distinguished from a case of forgery, where an indictment laid in the 
 same manner was holden good ;(o) and they ultimately appeared to be 
 satisfied as to the indictment in the present case. The other nine judges 
 were clear that the indictment was well laid ; as the instrument, though 
 it was a bill of exchange, was also a warrant for the payment of money, 
 that it was a voucher to the bankers or drawees, if genuine, for the pay- 
 ment, and that it might also have been laid as a draft. (p) 
 
 When on an indictment for stealing a post letter, containing a penny, 
 the property of the postmaster general, it appeared that a female ser- 
 vant took a letter of her mistress to the post-office, and a penny for the 
 purpose of paying the postage ; but finding the shop shut, put the penny 
 inside the letter, and fastened it with a pin, and dropped it into the let- 
 ter-box, intending that the penny should be applied for the payment of 
 the postage; this letter the prisoner got into his possession. Lord Den- 
 man, C. J., was of opinion that the latter came within the description 
 in the act of parliament, viz.,& letter containing money; and although 
 the money was not put in for the purpose of its being conveyed in the 
 letter to the country, yet that it was in fact money contained in the let- 
 ter ; and though it was only of small amount, yet the intention of the 
 prisoner, and the breach of trust, and the dishonesty committed by him, 
 were the same as if the money had been of larger amount, and had 
 been inclosed in the letter to be sent into the country."/ pp>) 
 
 But where an indictment stated that the prisoner, being employed 
 under the post-office, stole a post letter containing a sovereign, and there 
 were counts charging the embezzling the letter and money, and a count 
 for stealing a sovereign, the property of the postmaster general ; and it 
 appeared that the prisoner was a letter-carrier, and in consequence of 
 suspicions, an assistant inspector of the letter-carriers inclosed a marked 
 sovereign in a letter, and sealed it and marked it as if it had been put 
 into the post-office in the regular way as a paid letter; and while the 
 letters were being sorted at the office where the prisoner was employed, 
 the letter was placed in the heap of letters which he was about to sort, 
 
 (n) It was in the following form : — 
 
 Post Bill. 
 No. 6127. 
 
 Birmingham, 13th Feb. 1783. 
 Sir Wm. Lemon, Bt. and Co., bankers, London, pay 5 Gs. to Mr. Richd. Moore or bearer, 
 on dem d . value rec d . Robt. Coales. 
 
 Five Gs. 
 Entd. R. Moore. 
 
 As to this being a post bill, it was observed, that the words of the act were " Bank post 
 bill." 
 
 (o) Shepherd's case, Mich. T. 1781. 2 East, P. C. c. 16, s. 22, p. 582. 
 (p) Willonghby's case, Warwick Lent Ass. 1783, East. T. 1783. 2 East, P. C, c. 16, s. 
 22, p. 581. 
 
 {PP) R«g- v- Mence, a 1 C. & Mars. 234. 
 
 » Eng. Com. Law Reps. xli. 132.
 
 214 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. 
 
 and which he was about to deliver. The letter was not delivered, and 
 the marked sovereign was found in the prisoner's pocket. The sove- 
 reign was one of those that are occasionally found on the floor of the 
 general post-office, having fallen out of letters; they are collected and 
 deposited with one of the officers of the post-office, and form a fund, 
 which is carried to the credit of the public, under the direction of the 
 postmaster general. It was objected that the letter could not be con- 
 sidered as a post letter, and that the sovereign could not be treated as 
 the property of the postmaster general. Upon a case reserved, the 
 judges were unanimously of opinion, that the objection, that it was not 
 a post letter, or a letter put into the post, must prevail; the statute 
 only applying to letters put into the post in the ordinary way ; and 
 secondly, that the sovereign must be considered, in point of law, as the 
 property of the postmaster general, all the persons in the office being 
 his servants ; and therefore the sovereign was correctly described as the 
 sovereign of the postmaster general ; it was his sovereign against all the 
 world, except the owner of it.(g-g') 
 Pooley's In a case where the indictment charged the prisoner, as a person em- 
 ?vv, e ployed in sorting letters in the post-office, with secreting a letter, con- 
 
 draft pur- taining a draft purporting to be drawn in London, but which appeared 
 porting to U p 0I1 the evidence to have been drawn at Maidstone, without having 
 in London any stamp upon it, contrary to the 31 Geo. 3, c. 25, s. 4, it was holden 
 but in fact that this was not a draft for the payment of money within the 7 Geo. 
 Maidstone 3, c. 50, s. 1. The objections submitted on behalf of the prisoner at the 
 without trial were, first, that a draft on a banker or bill of exchange not stamped 
 onufco^ pursuant to the directions of the 31 Geo. 3, c. 25, and 37 Geo. 3, c. 136, 
 trary to a could not be received in evidence for any purpose ; but if, on the au- 
 Btamp act, thority of decided cases, it should be thought admissible, then, secondly, 
 by a ser- that such a draft or bill of exchange, if it could be so called, could not 
 vantof the k e the subject of larceny, inasmuch as it could not be of any value 
 out of a let- whatever; and, thirdly, that being so invalid, it could not be considered 
 ter intrust- as a security for the payment of money within the 2 Geo. 3, c. 25, s. 3, 
 care it was ^ e secreting of which, when sent in a letter, came within the meaning 
 holden that of the 7 Geo. 3, c. 50. The note was, however, received in evidence 
 not^draft ^ v ^ e cour * > an< ^ * ne J ul 7 f° un d the prisoner guilty. But the case was 
 for the pay- reserved for the consideration of the twelve judges, and argued before 
 ment of them at considerable length. It was contended, on behalf of the pri- 
 
 moncv 
 
 within 7 soner, that the paper writing in question, purporting to be a draft for 
 Geo. 3, c. payment of money, was not in law a draft for payment of money, within 
 the 7 Geo. 3, c. 50, inasmuch as it was not stamped pursuant to the 
 stamp acts ;(g) and that, being unstamped, it was not a chose in action, 
 the stealing of which could be the subject of larceny within the 2 Geo. 
 *215 2, c. 25, s. 3,(r) for without a stamp it was of no value. *That the 7 
 Geo. 3, c. 50, either creates a new felony, or takes away the benefit of 
 clergy from an old offence; and that, in either case, the instrument se- 
 creted or stolen must be of some value; whereas the draft in question 
 was of no legal value, being a draft drawn contrary to the directions of 
 the legislature, who by the stamp act had declared that a draft so drawn 
 should not "be pleaded or given in evidence in any court, or admitted 
 
 (qq) Reg. v. Rathbone, a 1 C. & Mars. 220. 
 
 (q) 31 Geo. 3, c. 25, and 37 Geo. 3, c. 136. (r) Repealed by 1 Wm. 4, c. 60, s. 31. 
 
 a Eng. Com. Law Reps. xli. 124.
 
 CHAP. XXI.] PERSONS IN THE POST-OFFICE. 215 
 
 in any court to be good, useful, or available, in law or equity.'Vs) And 
 several cases of forgery were cited, in which it had been holden, that a 
 forged order for the payment of money, or delivery of goods, must be 
 such as, if genuine, would be compulsory, and . might be legally en- 
 forced.^) It was also argued, that even if the paper writing in question 
 were admissible in evidence on this indictment, though not stamped 
 according to the directions of the statute, yet that it did not prove the 
 allegation in the indictment that the said draft " then and there was in 
 force, and the property of, &c, and the sum of money made payable 
 and secured thereby unsatisfied;" that this allegation was material and 
 not proved, but on the contrary absolutely negatived by the evidence ; 
 inasmuch as, for want of a stamp, the writing in question appeared to 
 be an instrument which could not be enforced, which could not import 
 any property in the drawer, which could not secure any sum of money, 
 and on which of course nothing could be due and unsatisfied. For the 
 crown it was contended, that though a draft not stamped cannot be given 
 in evidence in any action brought thereon to recover its value, yet that 
 it is not void and of no effect to all intents and purposes ; and cases were 
 cited in which it was decided that a forged draft drawn on unstamped 
 paper may be given in evidence, not only on an indictment for forgery, 
 but in an action for the recovery of the penalty. (it) That though in 
 case the indictment had been framed for larceny, on the 2 Geo. 2, c. 25, 
 it might have been questionable whether the prisoner could have been 
 legally convicted, as that statute does not mention " a draft for the 
 payment of ?nonei/" eo nomine, and as the instruments therein enu- 
 merated are such as, by retaining a value, may be legally in force for 
 the money due and unsatisfied upon them ; yet in this case, as the in- 
 dictment was framed entirely upon the 7 Geo. 8, c. 50, it charged an 
 offence quite different and distinct from that of stealing a chose in action 
 under the 2 Geo. 2, c. 25; the object of the legislature in passing the 
 later statute 7 Geo. 3, c. 50, being to secure the conveyance of every 
 instrument, whether immediately valuable or not, that might be sent by 
 the post, and to protect the revenue arising from the postage of letters; 
 and the two statutes being therefore made with different objects in view, 
 and not in pari materia. And with respect to the objection, that the 
 allegation in the indictment that the draft " was in force" was not 
 proved *it was answered that it was an unnecessary allegation, and need *216 
 not be proved. In the course of the argument, Lord Eldon, C. J., 
 observed, that the legislature had not made it felony to secrete any 
 letter, but to secrete any letter containing any of the particular securi- 
 ties specified in the statute. (v) The judges were all of opinion that the 
 
 (s) 31 Geo. 3, c. 25. 
 
 (t) Mitchell's case, Fost. 119. Lockett's case, 1 Leach, 94. 2 East, P. C. c. 19, s. 38, p. 
 940. Williams's case, 1 Leach, 114. 2 East, P. C. c. 19, s. 37, p. 937. Ellor's case, 1 Leach, 
 323. 2 East, P. C. c. 19, s. 37, p. 938. Clinch's case, 1 Leach, 540. 2 East, P. C. ibid., 
 and Moffatt's case, 1 Leach, 431. 2 East, P. C. c. 19, s. 45, p. 954. 
 
 («) Hawkeswood's case, 1 Leach, 257. 2 East, P. C. c. 19, s. 45, p. 955. Reculist's case, 
 2 Leach, 703. 2 East, P. C. c. 19, s. 45, p. 956. And it was observed that Moffatt's case, 
 ante, note (t), proceeded upon the words of 15 Geo. 3, c. 51, and 17 Geo. 3, c. 30, which en- 
 act, that all notes drawn contrary to the directions of those acts shall be void. For the cases 
 on this subject see post, chap, on Forgery. 
 
 (v) And in 2 Leach, note (a), it is observed, that there does not appear to be any clause 
 in either of the more recent statutes, 42 Geo. 3, c. 81, or 51 Geo. 3, c. 143, by which a ser- 
 vant of the post-office, who is intrusted with a letter, may be punished for secreting, embez- 
 zling, or stealing such letter, unless it contains some, or one, or part of the securities men- 
 tioned in the statutes.
 
 216 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. 
 
 conviction was wrong; that the draft not being stamped was of no value, 
 nor in any way available, and therefore was not a bill or draft within the 
 act. (it - ) 
 
 In a case where the letter embezzled was described as having con- 
 tained several notes, it was held to be sufficient to prove that it con- 
 tained any one of them ; and also that if the instrument is upon the 
 face of it, a note, the maker's signature need not be proved. In the 
 same case it was also held, that upon an indictment stating the prisoner 
 to have been employed in two branches of the post-office, proof of his 
 having been employed in either is sufficient, (a;) 
 Ranson's A case has been mentioned in a former part of this work,(y) where 
 case. Se- U p 0n aa indictment on the first section of the 7 Geo. 3, c. 50, it was 
 letter con- holden, that a servant of the post-office, employed as a facer of letters, 
 taming the who secreted a letter containing the paid notes of a country bank, which 
 of a county were in * ne course of being conveyed from the London bankers, who 
 bank hold- paid them, to the country bankers, for the purpose of being re-issued, 
 en l°- b ? L had committed an offence within the statute ; as the notes, though not 
 
 within the . . . . . / ./„; . , . 
 
 7 Geo. 3, c. re-issued, were considered as retaining the character and tailing within 
 50 - the description of promissory notes. (z) 
 
 A person Upon an indictment on the 7 Geo. 3, c. 50, the charge was laid 
 indicted on a g a i ns t the prisoner, in the first and third counts, as a person "employed 
 asacharger in sorting and charging letters in the post-office;" and in the second 
 and sorter, an( j f our th counts as a person " employed in the business relating to the 
 other General Post-office;" and upon the evidence it appeared that the pri- 
 
 ccmnts, as soner was only a sorter and not a charger of letters, whereupon the jury 
 employed 1 were directed to convict him on the second and fourth counts only. But 
 in the post- an objection was afterwards taken that, as the prisoner had been acquit- 
 ac C uitt a f te( ^ on tne counts which charged him as a sorter and charger, and he 
 on the did not appear to be a person employed by the post-office in any other 
 co " nts ^ n business but that of sorting, which is one of the employments particu- 
 was indict- larly specified in the statute, he could not be convicted on the second 
 ed as a an d fourth counts. And this objection being submitted to the conside- 
 and sorter, ration of the judges, they thought the objection valid : but they inclined 
 cannot he to think that the jury might have convicted the prisoner on the first and 
 ontheother tn ^ r ^ couats > D y a special finding that he was a sorter only.(a) 
 two counts. Where an indictment upon the 7 Geo. 3, c. 50, s. 1, charged thepri- 
 *217 soner as a person employed in the business of the post-office as a *post- 
 Dawson's boy, &c, with secreting, &c, certain bills of exchange, contained in a 
 Point* as ^ e ^* er sen ^ by * ne P os t, which came to his possession in his said employ- 
 to the de- ment, it was holden not to be a variance to describe such letter in the 
 scnptionof indictment as one " to be delivered to Messrs. B., N., and H. : as the 
 
 tnc letter 
 
 and of the word 3Iessrs. was frequently added to their address in the direction of 
 bills se- letters, and other papers received on business, though the parties them- 
 selves, in drawing or indorsing bills, making out invoices, &c, wrote 
 B., N., and H., without ever adding Messrs. as part of their description. 
 And it was considered that the acceptance of bills, directed to them in 
 that manner, would be a using of that firm. It was also holden to be 
 
 (w) Pooley's case, 2 Leacb, 887. 3 Bos. & Pull, 311. Russ. & Ry. 12. See Rex v. Yates. 
 R. & M. C. C. R. 170, ante, p. 79. 
 
 (x) Rex v. EUins, Mich. T. 1810, Russ. & Ry. 188. 
 
 (//) Ante, p. 79. 
 
 (z) Ranson's case, 2 Leach, 1090, Russ. & Ry. 232. And sec Clarke's case. ante. p. 74. 
 
 (a) Shaw's case. O. B. 1 77 1 . cor. the recorder, and Mich. T. 12 Geo. 3. 2 Black. Rep. 789. 
 2 East, P. C. c. 16, s. 21, p. 580. 1 Leach, 79.
 
 CHAP. XXI.] PERSONS IN THE POST-OFFICE. 217 
 
 sufficient to allege, in part description of the bills so secreted and 
 stolen, that they were subscribed by A. and B., without saying that 
 they were drawn or made by them. (6) 
 
 Where an indictment on the 52 Geo. 3, c. 143, alleged that a letter 
 was " to be delivered to a certain person at Turvey," and the letter was 
 directed to Mr. P. at Turvey-house, which was in the parish of Turvey 
 about a quarter of a mile from the village of that name, it was held 
 sufficient ; for it was to be delivered at Turvey-house that was a delivery 
 at Turvey, as Turvey-house was in the parish of Turvey. (c) 
 
 Though the post-office marks in town or country, proved to be such, Evidence. 
 are evidence that the letters, on which they appear, were in the office 
 to which those marks belong at the dates which they specified ; yet a 
 mark of double postage having been paid on a letter is not of itself evi- 
 dence that the letter contained an inclosure. Upon a case reserved the 
 judges held a conviction wrong, on the ground that there was not suffi- 
 cient evidence of a double letter having been put into the post-office ; 
 the clerk who put it into the office, paid the postage, and wrote " post 
 paid 2s.," not having been called. ((Z) 
 
 The offence of embezzling moneys received for the postage of letters Embez- 
 was made punishable by the 5 Geo. 3, c. 25, s. 19, and the 7 Geo. 3, c. zlin s the „ 
 
 tm postage of 
 
 50. s. 3. But these statutes are repealed by the 1 Vict. c. 32. and the letters. 
 1 Vict. c. 36, contains no provisions for the embezzlement of moneys 
 received for postage. (e) 
 
 In a case where the prisoner was indicted for secreting a letter, con- Sloper's 
 taining a bank-note for ten pounds, the jury found specially that the case : Se ~ 
 prisoner was an officer employed in the business of the post-office, in letter with 
 stamping and facing letters ; that he secreted the letter in question, intent to 
 while in the execution of his office, without opening it, and without t jj e p 0gt . 
 knowing that the ten pound bank-note was contained in it ; and that age. 
 he secreted it with intent to defraud the king of the postage thereof, 
 which had been paid. The determination of the judges upon this case 
 was never communicated. (/) But it is suggested that the case *seems *218 
 to fall within one of the offences provided for by the 5 Geo. 3, c. 25, 
 s. 19 ; though some difficulty might have arisen in bringing it within 
 the corresponding clause, 7 Geo. 3, c. 50, s. 3, because it appeared 
 that the letter had not been destroyed, but was found in the prisoner's 
 custody. (/) 
 
 In a case upon the 7 Geo. 3, c. 50, s. 2, it appeared that the prisoner, Pearce's 
 intending to steal the mail bags, went one night, about the usual time, ease >P ri ?°- 
 
 & o ' ° . ., ner obtain- 
 
 to the post-office at High Wycombe ; and, pretending to be the mail e d the mail 
 guard, obtained, from the person who was there, the bags of letters, ba f s 5j ai J" 
 which were let down to him from out of the window of the post-office t h e deiive- 
 
 (&) Dawson's case, cor. Chambre, J., Lancaster Spr. Ass. 1801, and before the judges, 
 Trin. T. 1801, 2 East, P. C. c. 16, s< 39, p. 605. 
 
 (c) Rex v. Pearson,* 4 C. & P. 572, Littledale and Bosanquet, Js. 
 
 (d) Rex v. Plumer, Hil. T. 1814, Russ. & Ry. 264. It seems to have been considered also 
 in this case, that though a letter found upon the prisoner might properly be read, it was not 
 evidence of the facts stated in it, and that such facts must, therefore, be proved by other 
 evidence. 
 
 (e) The practice recently has been to indict in such cases under the 2 Wm. 4, c. 4, ante, p. 203. 
 (/) Sloper's case, cor. Blackstone, J., O. B. 1772. 2 East, P. C. c. 16, s. 23, p. 583. 1 
 
 Leach, 81, in which last authority it is said, that the prisoner remained in Newgate till July, 
 1777 ; and that in the following session, Sept. 1777, there was no account of him. 
 (/) 2 East, P. C. c. 10, s. 23, p. 583 ; and See Howatt's case, infra. 
 a Eng. Com. Law Reps. xix. 533. 
 
 Vol. ii.— 15
 
 218 OF LARCENY AND EMBEZZLEMENT BY [BOOK IV. 
 
 ry of a per- by a string, from whence he took them, and immediately made off. 
 S '"t'office Upon these facts the prisoner was convicted on a count in the indict- 
 to him ment for stealing the letters out of the post-office ; and the case being 
 
 while on submitted to the consideration of the twelve iudges, thev were all of 
 
 the out- . 
 
 side; and it opinion that the conviction was right; and that the artifice of the pri- 
 
 was holden soner? i n obtaining the delivery of the letters, in the bag, out of the 
 stealing house, was the same as if he had actually taken them out himself.^) 
 out of the l n this case the property did not pass; as the postmaster had no pro- 
 pos o c . p er jy i Q |. ne ma j] Da g S to p art w ith.(A) 
 
 Servants of It was supposed to have been decided that the second section of the 
 the post- 7 Q eo 3^ c 50 ? did not extend to servants of the post-office. (A But the 
 he convict- report of such decision has been mentioned as incorrect. And it is 
 ed of steal- clear that a person might be convicted under the third section of the 52 
 the post- ^ e0 - 3> c - 143, for stealing a letter, though such person bad an employ- 
 office. ment in the post-office, especially if such letter did not come to him in 
 the course of his employment. The prisoner was employed by the 
 post-office to deliver letters, and not to sort them ; but he did sort them, 
 when regularly he ought not to have done so, and, whilst sorting, stole 
 a letter. The indictment charged him as a sorter with secreting, and 
 as a common person, (under sec. 3, of the 52 Geo. 3) with stealing : 
 but as it appeared that he ought not to have been allowed to sort, he 
 was acquitted of secreting, and it was then urged that he could not be 
 convicted under the third section, because he was a person employed in 
 the post-office, and the case of Rex v. Pooley was cited. A case being 
 reserved, the judges stated that the report of Rex v. Pooley was as to 
 the point in question mistaken ; that Rex v. Simpson, cor. Lord Ellen- 
 borough, Thomson, B., and Lawrence, J., 0. B. 1810, was in point the 
 other way ; and that a man who stole was not less a person stealing 
 because he had some employment in the office ; and that upon a contrary 
 construction if a person in the office stole, but not in the course of his 
 employment, he would be unpunishable. (/) 
 *219 Previously to the last case it had been holden that a letter-carrier 
 Howatt's taking letters out of the post-office, intending to deliver them to the 
 ~ s ?" *owners, but to embezzle the postage, was not indictable for stealing 
 
 that a let- such letters, under the second section of the 7 Geo. 3, c. 50. The pri- 
 ter carrier SO ner was a letter-carrier at the post-office, at Manchester; he contrived 
 ters out to obtain possession of the letters in question before they were counted 
 of the office ou t, and delivered to him, by any of the clerks, in the usual way; and 
 to deliver ne was detected with them in his pocket, in the letter-carrier's room, 
 them to the which was near to the clerk's office. But it appeared from circum- 
 tTenTbez Ut stances ' anc ^ ^ ie J ur ^ so f° un d, when they convicted him of the offence 
 zie the of stealing the letters, " that he intended to have delivered the letters, 
 
 (g) Pearce's case, Hil. T. 1793. 2 East, P. C. c. 16, s. 39, p. 603. 
 
 (h) This was noticed as differing the case from that of Atkinson, 2 East, P. C. c. 16, s. 
 104. p. 673. Ante, p. 34. 
 
 (?) Rex v. Pooley, Russ. & Ry. 31. 2 Leach, 904. 1 East. P. C. Addenda, xvii. 3 Bos. & 
 Pal. 315. Skutt's case, O. B. July Sess. 1774, as stated in Pooley's case, 2 Leach, 904. A 
 different objection is mentioned as the ground of the acquittal in Skutt's case, in another 
 report of it, (1 Leach, 106. 2 East, P. C. c. 16, s. 22, p. 582.) namely, that the letters con- 
 tained money, and not any security relating to the payment of money, mentioned in the 
 statute. 
 
 (j) Rex v. Brown, East. T. 1817, MS. Bayley, J., and Russ. & Ry. 32. note (a). And see 
 Rex v. Salisbury, 5 C. & P. 155, where Patteson, J., held that a letter carrier might be con- 
 victed of stealing a letter out of a post-office upon an indictment under the 52 Geo. 3, c. 143. 
 a Eng. Com Law Reps. xxiv. 253.
 
 CHAP. XXI.] PERSONS IN THE POST-OFFICE. 210 
 
 and only to have embezzled the postage. Upon the case being after- postage, 
 
 wards submitted to the consideration of the twelve judges, two of them, *"f. "°h 
 
 . jo> > indictable 
 
 at first, suggested that as the act of the prisoner deprived the crown of under the 
 its lien, though there was no intention to defraud the true owner, it was 7 G * ' \ 
 as much larceny as stealing from a pawnbroker ; and that the clause in 
 question was positive, without- adverting to the view with which the 
 act was done. On the other hand, it was observed that the two first 
 clauses of the statute, sec. 1 and 2, respected the safe carriage of letters, 
 and seemed to be confined, as appeared further by the preamble, to a 
 taking to the prejudice of the owner : and that the third clause, sec. 3, 
 was for the protection of the revenue : which went to show that the 
 legislature did not mean to protect the revenue by the antecedent clauses. 
 And it was also observed that if the letters had been so taken by those 
 to whom they were directed, it would not have been within the clause 
 under consideration : though, if it were a question of larceny at common 
 law, it would be equally larceny in the owner. And this being an in- 
 dictment on the statute, and not for taking the goods of such an one, 
 as charged in an indictment for stealing the goods of the bailee, all the 
 judges ultimately agreed that the conviction was wrong, on the finding 
 of the jury, which negatived a stealing within the act.(/i:) 
 
 Secreting a letter containing a bill of exchange was not within the 52 Secreting a 
 Geo. 3, c. 143, s. 2, if the object was to deliver the letter with its con- let * er | n 
 tents, but to cheat the revenue of the postage. The first count stated obtain the 
 the prisoner to be employed in stamping letters, and that he secreted a P osta g e 
 letter containing bills of exchange. The second count charged the pri- secreting 
 soner with stealing the bills. The prisoner was a stamper in the Lon- within the 
 don post-office, and having been seen slip a letter into his coat pocket, c 143°^' 
 was desired to empty his pocket, which he did, and thereout produced the object 
 eight letters, one of which was the letter stated in the indictment; it nve/the 6 " 
 was a letter written from America, and put in the post-office at Liver- letter and 
 pool, marked " Liverpool ship letter ;" from whence it arrived that e™ bezzle 
 morning, directed " Mr. Samuel Williams, 13, Finsbury Square." It age. 
 was and had been taxed as a double letter, and the sum of three shil- 
 lings and twopence marked upon it as the amount of postage, and had 
 been afterwards stamped by the prisoner, whose duty it was, after stamp- 
 ing it, to deliver it to the sorter. The other seven letters were single 
 letters, and it was sworn that they could be of no use to the prisoner, 
 but to enable him to receive the postage. When the prisoner produced 
 the letters, he was asked if he had any explanation to give, and he said 
 he had taken them to cog, which is a cant phrase for taking them as 
 missorted letters to get *the postage. The jury found the prisoner *220 
 guilty, but added that they thought the secreting the letter was only 
 for the purpose of appropriating the postage ; and upon a case reserved, 
 the judges were of opinion, that as the statute extended to such letters 
 only as contained valuable documents, the security of the documents 
 was the object contemplated by the legislature, and as the prisoner had 
 no intention to put these documents in hazard, or to prevent the person 
 for whom they were intended from receiving them, the case, though 
 within the letter, was not within the spirit of the act, and the conviction 
 was therefore wrong, (n) 
 
 (k) Howatt's case, Lancaster sum. Ass. 1795, and Mich. T. 1795. 2 East, P. C. c. 16, s. 
 39, p. 604. 
 
 (n) Rex v. Sharpe, R. & M. C. C. R. 125. Sect. 26 of the 1 Vict. c. 36, seems framed to
 
 220 OF STEALING OR SECRETING LETTERS, ETC. [BOOK IV. 
 
 "Receiv- The 52 Geo. 3, c. 143, s. 3, made it felony to steal "from or out of 
 ing-house. an y p 0S |;. omce or bouse or place for the receipt or delivery of letters ; 
 office, and and under that act it was held that a receiving-house was not a " post- 
 steahug fg ce) " but "a place for receipt of letters," and that the whole shop, 
 out of a and not merely the letter-box, was to be considered " a place for the re- 
 post-office. ce ipt of letters ;" and that in order to constitute a stealing from or out 
 of such a place, the letter must be carried out of the shop, and therefore 
 if a person took a letter and stole its contents in the shop, that was not 
 an offence within that section of the act. The indictment in some counts 
 charged the prisoner with stealing a letter from and out of a certain 
 post-office, and it appeared that the prisoner was servant of Mr. Abram, 
 law stationer, at a shop in Middle Temple Lane, which was a receiving- 
 house of the general post-office. The letter in question was taken to 
 Mr. Abram's shop, but whether it was put in the letter-box, or given to 
 a person in Mr. Abram's shop, was not clearly proved. One of the 
 notes contained in the letter was afterwards found in a boot, in a room 
 of a house opposite to Mr. Abram's shop, and the prisoner acknow- 
 ledged having put this note into the boot : it was held that this shop 
 was not a post-office within the meaning of the act : but that it was "a 
 place for the receipt of letters ;" that the whole room was the place for 
 receiving letters, and not the mere box, and that if a person went into 
 the shop, and laid a letter on the counter, that was sufficient ; but that 
 in order to convict the prisoner of stealing the letter out of the post-office, 
 the jury must be satisfied that he took the letter out of the shop, and it 
 was not sufficient if he opened it in the shop and took its contents out 
 in the shop.(o) 
 Pigeon- It has been held that letters put into pigeon-holes in a post-office for 
 
 holes for private individuals, are still within the post-office. On an indictment 
 letters in a on tne 52 Geo. 3, c. 143, for stealing letters from the post-office at Liver- 
 post-office, pool, it appeared that at the post-office there is a set of pigeon-holes, 
 into which letters for certain merchants, who pay to the postmaster a 
 guinea a year, were placed immediately on their arrival ; and by this 
 means those merchants were enabled to get those letters sooner than 
 they otherwise would do; it was objected, that as soon as the letters 
 were deposited in the pigeon-holes they ceased to be in the post-office, 
 and consequently, that the indictment for stealing from the post-office, 
 could not be sustained ; but the objection was overruled. (^) 
 *221 *The 52 Geo. 3, c. 143, s. 2, contained two clauses, one relating to 
 letters, &c, with which persons employed under the post-office had been 
 " intrusted in consequence of such employment," the other relating to 
 letters, &c, which in any other manner came into the possession of such 
 persons » whilst so employed." The prisoner, who was indicted under 
 this act for stealing a letter from the post-office atDursley, was employed 
 by the postmistress at Dursley to carry letters from Dursley to Berke- 
 ley, and the evidence tended to show that he had stolen a letter, sent 
 from Cardiff and directed to Dudley, but which had been missent to 
 Dursley, Patteson, J., " I think this letter cannot be said to have come 
 to his hands in consequence of his employment, because ho. as a letter 
 
 meet this and the preceding case, as it makes the offence to secrete, " for any purpose what- 
 ever," a post letter, without reference to its contents. C. S. G. 
 
 (o) Rex v. Pearson 11 4 C. & P. 572. Littledale and Bosanquet. Js. 
 
 (p) Brett's case, 1 Lew. 228, Vaugban, B. 
 
 a Eng. Com. Law Reps. xix. 533.
 
 CHAP. XXII.] OF LARCENY AND EMBEZZLEMENT, ETC. 221 
 
 carrier from Dursley to Berkeley, would not have a letter addressed from 
 Cardliffto Dudley come to his hands in the course of his duty. However 
 the second section of the act goes on ' whilst so employed.' The ques- 
 tion then is, whether those words relate to time only, or whether they 
 make it essential that the letter should come to his hands in the course 
 of his duty. I am inclined to think that they relate merely to time, 
 because the words ' in consequence of such employment' are used in 
 another part of the section. "(j) 
 
 Under the 52 Geo. 3, c. 143, s. 3, which provided for the stealing 
 mail bags, &c, from " any carriage or from the possession of any person 
 employed to convey letters," in a case where a mail rider had fixed the 
 mail portmanteau on the saddle of his horse, containing four bags of 
 letters, and had slung the bridle of his horse on a staple at the stable 
 door of the post-office about thirty yards from the door of the house, 
 and then went into the house to put on his great coat, and stayed about 
 two minutes, and in the interval the robbery took place ; it was held to 
 be a stealing from the possession of the mail rider, (r) 
 
 In a case upon the 7 Geo. 3, c. 50, s. 2, where it appeared that the a draft or 
 check or draft which the prisoner had taken out of the letter was drawn check on 
 on unstamped paper, it was objected on behalf of the prisoner that it paper may 
 could not be received in evidence, even as a medium to show that he be received 
 had stolen the letter; but the court overruled the objection, being of ^collate- 
 opinion that the draft, though unstamped, might be received in evi- ral pur- 
 dence for collateral purposes though not for the purpose of recovering P oses ' as 
 
 r . \ o _ r r f s> to prove 
 
 the money contained in it. And they relied upon the cases in which the steal- 
 it had been decided that such an instrument might be given in evi- in &> &c - 
 dence on an indictment for forging it, or in an action to recover the 
 penalty, (s) 
 
 ♦CHAPTER THE TWENTY-SECOND. *222 
 
 OF LARCENY AND EMBEZZLEMENT OF NAVAL AND MILITARY STORES. 
 
 The 4 Geo. 4, c. 53, enacts, " That every person who shall be law- 4 Geo - *> 
 fully convicted of stealing or embezzling his majesty's ammunition, SO ns'steal- 
 sails, cordage, or naval or military stores, or of procuring, counselling, ing or em- 
 aiding or abetting any such offender shall be liable, at the discretion of a ^^ n f_ 
 the court, to be transported beyond the seas for life, or for any term tion, or 
 not less than seven years, or to be imprisoned only, or to be imprisoned ^ ^jj^ 
 and kept to hard labour in the common gaol or house of correction for stores, may 
 any term not exceeding seven years." (a) be ^i^l 
 
 Some provisions respecting the embezzlement of naval stores, when i Geo. i, st. 
 
 (q) Rex v. Salisbury, 8 5 C. & P. 155, and MSS. C. S. G. The new act omits the distinc- 
 tion contained in the 52 Geo. 3, c. 143. 
 
 (r) Rex v. Robinson, b 2 Stark. N. P. C. 485, Wood, B. 
 
 (s) Pooley's (second) case, 0. B. 1801. 2 Leach, 900, S. C. 1 East, P. C. Addenda, xvii., 
 and 3 Bos. & Pull. 315. And see Morton's case, and Reculist's case, post, Chap, on Forgery. 
 
 (a) All the other provisions of this statute are repealed by the 7 & 8 Geo. 4, c. 27. No 
 provision is made by the 4 Geo. 4, for the punishment of accessories after the fact, they are 
 therefore punishable under the 7 & 8 Geo. 4, c. 28, s. 8 and 9, and 1 Vict. c. 90, s. 5. See 
 ante, p. 135, note (b). 
 
 a Eng. Com. Law Reps. xxiv. 253. b lb. iii. 443.
 
 ■)O0 
 
 OF LARCENY AND EMBEZZLEMENT, ETC. 
 
 [BOOK IV. 
 
 2, c. 25, 9 
 Geo. 3, c. 
 30, s. 5. 
 
 As to the 
 apprehen- 
 sion of per- 
 sons steal- 
 ing or em- 
 bezzling 
 naval 
 stores. 
 
 *223 
 
 under the value of twenty shillings, were made by the 1 Geo. 1, stat. 
 2, c. 25, but that statute was repealed by the 2 Wm. 4, c. 40, s. 
 35.(5) 
 
 The 9 Geo. 3, c. 30, s. 5, relates to the apprehension of persons steal- 
 ing or embezzling naval stores. It enacts "that for the more speedy 
 and effectual bringing to justice persons guilty of stealing or embezzling 
 his majesty's naval stores, the treasurer, comptroller, surveyor, clerk of 
 the acts, or any commissioners of the navy for the time being, may 
 from time to time in all places whatsoever, exercise the office of a jus- 
 tice of the peace to all intents and purposes, in causing any person who 
 shall be charged with stealing or embezzling of any naval stores, the 
 property of his majesty, to be apprehended, committed, and prosecuted 
 for the same; and it requires all constables and other officers to execute 
 and obey all warrants of such persons, touching any of the matters and 
 things thereinbefore contained." 
 
 Provision is made by the Annual Mutiny Acts for the punishment 
 of persons embezzling military and naval stores, by the proceedings of 
 a court-martial. 
 
 The 5 Vict. c. 12, s. 8, the Annual Mutiny Act, enacts, that " every 
 paymaster or other commissioned officer of her majesty's forces, or any 
 person employed in the ordinance or commissariat department, or in 
 any manner in the care or distribution of any money, provisions, *for- 
 age, or stores, who shall embezzle, or fraudulently misapply, or be con- 
 cerned in or connive at the embezzlement, fraudulent misapplication, or 
 damage, of any money, provisions, forage, arms, clothing, ammunition, 
 or other military stores belonging to her majesty's forces or for her use, 
 may be tried for the same by a general court-martial, which may ad- 
 judge any such offender to be transported as a felon for life, or for any 
 certain term of years, or to such punishment of fine, imprisonment, dis- 
 missal from her majesty's service, and incapacity of serving her majesty 
 in any office, civil or military, as such court shall think fit, according 
 to the nature and degree of the offence, and every such offender shall, 
 in addition to any other punishment, make good at his own expense the 
 loss and damage sustained, which shall have been ascertained by such 
 court-martial ; and the loss and damage so ascertained as aforesaid shall 
 be a debt to her majesty, and may be recovered in any of her majesty's 
 courts at Westminster or in Dublin, or the court of exchequer in Scot- 
 land, or in any court in her majesty's colonies, where a person sentenced 
 by such court-martial shall be resident after the said judgment shall be 
 confirmed and made known. "(c) 
 
 The offences of knowingly receiving, or concealing naval or military 
 stores which had been stolen, or of unlawfully having possession of 
 naval or military stores, will be mentioned in a subsequent chapter. 
 
 (b) The act is wholly repealed, except so much thereof as continues two acts made iu the 
 eleventh William the Third, and the fifth of Anne. 
 
 (c) And see a similar provision in the Marine Mutiny Act, 5 Vict. c. 12, s. 10.
 
 CHAP. XXIII.] OF LARCENY OP CLOTH, ETC. *224 
 
 *CHAPTER THE TWENTY-THIRD. 
 
 OF LARCENY OF CLOTH AND OTHER ARTICLES IN PROCESS OF MANU- 
 FACTURE. 
 
 Particular provisions have been enacted by several statutes for 
 punishing the embezzlement of articles in a course of manufacture, 
 which as they relate to petty offenders, (principally workmen employed 
 in particular manufactories) and subject them to the summary jurisdic- 
 tion of justices of the peace, do not come within the scope of this trea- 
 tise, (a) 
 
 The 7 & 8 Geo. 4, c. 29, s. 10, enacts, " that if any person shall steal 7 & 8 Ge>. 
 to the value of ten shillings any goods or article of silk, woollen, linen g t p 
 or cotton ; or of any one or more of these materials mixed with each certain 
 other, or mixed with any other material, whilst laid, placed or exposed S oods in . 
 
 , . v - ,, . , .,,. process of 
 
 during any stage, process or progress of manufacture, in any building, ma nufac- 
 field, or other place, every such offender being convicted thereof shall ^ ure > pun- 
 be liable to any of the punishments which the court may award as here- transportL 
 inbefore last mentioned." tion, Ac. 
 
 The 1 Vict. c. 90, s. 2, recites this section and enacts, that so much 
 of the said act as relates to the punishment of persons convicted of any 
 of the offences hereinbefore specified as in that act contained shall from 
 and after the commencement of this act (1st of October, 1837) be re- 
 pealed; and that "every person convicted after the commencement of 
 this act of any of such offences respectively shall be liable to be trans- 
 ported beyond the seas for any term not exceeding fifteen years nor less 
 than ten years, or to be imprisoned for any term not exceeding three 
 years." And by sec. 3, " it shall be lawful for the court to direct such 
 imprisonment to be with or without hard labour, in the common gaol 
 or house of correction, and also to direct that the offender shall be kept 
 in solitary confinement for any portion or portions of such imprison- 
 ment or of such imprisonment with hard labour, not exceeding one 
 month at one time, and not exceeding three months in any one year, as 
 to the court in its discretion shall seem meet." 
 
 By the 7 & 8 Geo. 4, c. 29, s. 61, principals in the second degree and Principals 
 accessories before the fact are punishable in the same manner as princi- j."^^^" 
 pals in the first degree ; and accessories after the fact (except receivers gre e, and 
 of stolen property) are liable to be imprisoned for any term not exceed- a . c cesso- 
 ing two years. (i) 
 
 *Sorne questions may possibly arise upon the words « laid, placed or *225 
 exposed during any stage, process or progress of manufacture in any Cases u P° n 
 building, field, or other place." In a case in which the prisoner was e d act , is 
 indicted upon the 18 Geo. 2, c. 27, (now repealed,) for stealing yarn out Geo. 2, c. 
 of a bleaching ground, the evidence was that the yarn had been spread 
 upon the ground, but was afterwards taken up and thrown into heaps 
 in order to be carried into the house, in which state some of it was 
 stolen by the prisoner ; Thomson, B., held that the case did not come 
 
 (a) The greater part of them will be found collected and well arranged in 5 Burn's Just, 
 tit. Servants. 
 
 (b) Ante, p. 2. As sec. 61 only relates to felonies punishable under that act, it admits of 
 doubt whether principals in the second degree and accessories are now punishable under 
 it ; if not, they will seem punishable as for a felony not specially provided for. See note (6), 
 ante, p. 135.
 
 225 OF LARCENY BY TENANTS AND LODGERS. [BOOK IV. 
 
 within the statute, as there was no occasion to leave the yarn upon the 
 ground in the state in which it was taken by the prisoner.(c) So in 
 another case upon that statute where the indictment was for stealing 
 calico placed to be printed and dried in a certain building, it was held, 
 that in order to support the capital charge, it was necessary to prove 
 that the building from which the calico was stolen was made use of 
 either for drying or printing calico.(<^) But it should be observed, that 
 this repealed statute mentioned particularly a building, &c, made use of 
 by any calico printer, &c, for printing, whitening, bowking, bleaching, 
 or drying. 
 
 It has been decided in a case upon the 7 & 8 Geo. 4, c. 30, s. 3, that 
 goods remain in a " stage," " process," or "progress of manufacture," 
 though the texture be complete, if they be not yet brought into a con- 
 dition fit for sale.(e) 
 
 *226 *CHAPTER THE TWENTY-FOUKTH. 
 
 OP LARCENY BY TENANTS AND LODGERS. 
 
 Qu. offence It was long doubted whether, as a lodger had a special property in 
 at common ^ g 00( ] s wn ich were let with his lodgings, the stealing of them was 
 felony :(a) and it was at length decided by a majority of the judges that 
 it was not.(&) In consequence of this decision, the 3 Wm. & M. c. 9, 
 s. 5, was passed, which, after reciting that it was a frequent practice for 
 idle and disorderly persons to hire lodgings with an intent to have an 
 opportunity to take away, embezzle, or purloin the goods and furniture 
 being in such lodgings, enacted and declared that if any person or per- 
 sons should take away, with intent to steal, embezzle, or purloin any chat- 
 tel, bedding, or furniture, which by contract or agreement he or they 
 were to use, or should be let to him or them to use, in or with such lodg- 
 ing, such taking, embezzling, or purloining, should be to all intents and 
 purposes taken, reputed, and adjudged to be larceny and felony, and the 
 offender should suffer as in case of felony. 
 
 Several points of nicety and difficulty arose upon the construction of 
 this statute, and upon the statement of the contract in the indictment,(c) 
 
 (c) Hugill's case, cor. Thomson, B., at York, 4 Bla. Cora. 249, note (8), ed. 1800. 
 id) Rex v. Dixon and others, Russ. & Ry. 53. 
 
 (e) Rex v. Woodhead, 1 M. & Rob. 549, Coleridge, J. See this case in its proper place in 
 chap. 52. 
 
 (a) Raven's alias Aston's case, Kel. 24, 81, 82. 1 Hawk. P. C. c. 43, s. 2. And see as to 
 a special property or bare use, &c, ante, p. 21. 
 
 (b) Meeres's case, Show. 50. One of the judges thought it was felony, and that a lodger 
 had a bare use of the goods, like a guest. And two of the judges only thought it no felony, 
 because no intent was found to steal, either in the taking of the lodgings, or carrying away 
 the goods. And all the judges thought it a point deserving very good consideration. Show. 
 55. Mr. East remarks upon the point, that if it clearly appear that a lodger took the lodg- 
 ings with intent to gain a better opportunity of rifling them, and to elude the law, there 
 seems no reason why it should not be felony at common law. 2 East, P. C. c. 16, s. 26, p. 
 585. And in 6 Ev. Col. Stat. Pt. V. CI. VII. No. IT, p. 472, note (13), a qu. is made whether 
 it would not now be holden that a lodger purloining furniture is guilty of larceny at com- 
 mon law, on the ground of the possession still continuing in the owner of the house. But 
 it has lately been ruled that if a man hires a lodging with intent that a comrade of his may 
 steal the furniture, the thief cannot be indicted at common law as for stealing the goods of 
 the original owner. Rex v. Belstead, East. T. 1820, MS. Bayley, J., and Russ. & Rv. 411. 
 
 (c) 2 East, P. C. 586. 6 Ev. Col. Stat. Pt. V. CI. VII. No. IT, p. 472, note (14). Brown's
 
 CIIAP. XXV.J OF EMBEZZLEMENTS AND FRAUDS BY BANKRUPTS. 226 
 
 but it was repealed by the 7 & 8 Geo. 4, c. 27, and the statute passed 
 for consolidating and amending the laws relative to larceny has substi- 
 tuted a more simple enactment, and provided that the indictment shall 
 be in the common form as for larceny. 
 
 *The 7 & 8 Geo. 4, c. 29, s. 45, for the punishment of depredations *227 
 committed by tenants and lodgers, enacts "that if any person shall steal 7 & 8 Goo. 
 any chattel or fixture let to be used by him or her in or with any house 45°" T ^ n s _" 
 or lodging, whether the contract shall have been entered into by him or ants and 
 her, or by her husband, or by any person on behalf of him or her, or ^s? 1 " 8 
 her husband, every such offender shall be guilty of felony, and being any pro- 
 convicted thereof, shall be liable to be punished in the same manner as P erty from 
 in the case of simple larceny ;(<i) and in every such case of stealing any apartments 
 chattel, it shall be lawful to prefer an indictment in the common form as lettothein. 
 for larceny, and, in every such case of stealing any fixture, to prefer an 
 indictment in the same form as if the offender were not a tenant or 
 lodger, and in either case to lay the property in the owner or person 
 letting to hire." 
 
 *CHAPTER THE TWENTY-FIFTH. *228 
 
 OF EMBEZZLEMENTS AND FRAUDS BY BANKRUPTS. 
 
 The 6 Geo. 2, c. 16, s. 112, enacts, « that if any person against whom 6 Geo. 4, c. 
 any commission had been issued, or shall hereafter be issued, where- 16- Bank - 
 upon such person hath been or shall be declared bankrupt, shall not, surrender- 
 before three of the clock, upon the forty-second day after notice thereof in » an< ? 
 in writing, to be left at the usual place of abode of such person, or per- to be exa- 
 sonal notice in case such person be then in prison, and notice given in mined; 
 the London Gazette of the issuing of the commission, and of the meet- 
 ings of the commissioners, surrender himself to them, and sign or sub- 
 scribe such surrender, and submit to be examined before them, from 
 time to time, upon oath, or, being a Quaker, upon solemn affirmation; 
 or if any such bankrupt,(a) upon such examination, shall not discover or not mak- 
 all his real or personal estate, and how and to whom, upon what con- ing dls L c ,°: 
 
 . very ot his 
 
 sideration, and when he disposed of, assigned, or transferred any of such estate and 
 estate, and all books, papers, and writings relating thereunto, (except effects > 
 such part as shall have been really and bond fide before sold or disposed 
 in the way of his trade, or laid out in the ordinary expense of his family) ; 
 or if any such bankrupt shall not, upon such examination, deliver up or not de- 
 to the commissioners all such part of such estate, and all books, papers, ^ r ^^ 
 and writings relating thereunto, as be in his possession, custody, or books, &c; 
 power, (except the necessary wearing apparel of himself, his wife, and ? r remov - 
 children) ; or if any such bankrupt shall remove, conceal, or embezzle bezzling to 
 any part of such estate, to the value of ten pounds or upwards, or any tlie value of 
 
 case, 1 Hawk. P. C. c. 43, s. 3. Palmer's case, 2 Leach, 680. 2 East, P. C. 586. Pope's 
 case, 1 Leach, 336. 2 East, 587. Bill's case, 1 Hawk. P. C. c. 43, s. 7. Rex v. Goddard 
 and Fraser, 2 Leach, 545. Pike's case, 1 Hawk. P. C. c. 43, s. 4. Mann's case, 1 Hawk. P. 
 C. c. 43, s. 6. Butler's case, 1 Hawk. P. C. c. 43, s. 8. Rex v. Healey, R. & M. C. C. R. 1. 
 Rex v. Bew, Russ. & Ry. 480. (d) Ante, p. 1. 
 
 (a) Lord Hanley, Bank. L. 383, observes, " there is an inaccuracy in this clause which 
 should be remedied on a future revision of the law ; it has omitted the words ' in case of 
 any default or wilful omission.' "
 
 228 OF EMBEZZLEMENTS AND FRAUDS. [BOOK IV, 
 
 io?. felony, books of account, papers, or writings relating thereto, with intent to 
 
 uienT " defraud his creditors, every such bankrupt shall be deemed guilty of 
 
 felony, and be liable to be transported for life, or for such term, not less 
 
 than seven years, as the court before which he shall be convicted shall 
 
 adjudge, or shall be liable to be imprisoned only, or imprisoned and kept 
 
 to hard labour in any common gaol, penitentiary-house, or house of 
 
 correction, for any term not exceeding seven years. "(&) 
 
 Lord Chan- The 113th section enacts, " that the Lord Chancellor shall have power, 
 
 celior may as ft en as h e g^H think fit, from time to time to enlarge the time for 
 
 time for the bankrupt surrendering himself for such time as the Lord ^Chancellor 
 
 surrender. s ball think fit, so as every such order be made six days at least before 
 
 . " the day on which such bankrupt was to surrender himself." 
 surrender The 115th section enacts, " that if any bankrupt apprehended by any 
 by bank- warrant of the commissioners, shall, within the time hereby allowed for 
 hendedf ^ n ^ m to surrender, submit to be examined, and in all things conform, he 
 
 shall have the same benefit as if he had voluntarily surrendered." 
 Repealed Upon the repealed statute 5 Geo. 2, c. 30, which contained provisions 
 statute, 5 f a similar nature, though (as to some of them) imperfectly framed, it 
 30. ' ' was observed, that no instance ever occurred of a capital punishment, or 
 (as we believed) of a capital conviction, for the mere omission to sur- 
 renderee) And the learned judges presiding in the Court of Chancery, 
 in many instances, superseded commissions, in order to prevent a prose- 
 cution for not surrendering in time, where there did not appear to have 
 been any intention in the bankrupt of defrauding his creditors by not 
 appearing within the time appointed, and where his absence proceeded 
 rather from an ignorance of the consequence, or accident.(cZ) Such an 
 order did not, however, prevent a prosecution, but operated only as an 
 intimation of the Chancellor's opinion that the bankrupt did not keep 
 out of the way fraudulently, and that it was a case in which the Chan- 
 cellor did not see reason to think that if prosecuted he would have been 
 convicted :(e) and it appears clear that there must have been a wilful 
 omission to surrender to constitute a felony.(/ ) 
 Points up- Very few points appear in the books upon the construction of this 
 on the re- repealed statute, and some of them are inapplicable to the present 
 statute. kw-(</) 
 
 In an early case, upon the repealed statute, an objection was taken to 
 an indictment that there ought to have been an averment in the indict- 
 ment, that the commissioners did sit, and that those commissioners should 
 have been named ; whereas they were not named in the notice, which 
 
 (b) "The words 'such bankrupt,' mean a person not merely declared a bankrupt by the 
 commissioners, but a person liable to be so ' declared.' " Per Parke, J, Rex v. Jones,* 4 B. 
 & Ad. 345. " The words ' such bankrupt' import not merely a person against whom a valid 
 commission has issued, but one who has 'become bankrupt,'" per Patteson, J., ibid. 
 
 (c) 4 Ev. Col. Stat. Bankrupts, p. 88. 
 
 Id) Ex parte Wood, 1 Atk. 222. Ex parte Shiles, 1 Madd. 249. 
 
 (e) By the Vice-Chancellor, in Ex parte Shiles, 1 Madd. 249. (/) Id. ibid. 
 
 (ff) The 1 Geo. 4, c. 115, s. 1, after reciting so much of the 5 Geo. 2, c. 30, as made it a 
 capital felony for a bankrupt to conceal, embezzle, &c, to the value of 201., or any books of 
 account, &c, with an intent to defraud his creditors, enacted, that so much of the said act 
 as inflicted capital punishment of death on the offence therein before recited, which was 
 punishable with death under the recited act, should be liable to be transported beyond the 
 seas for life, or for such term not less than seven years, as the court should adjudge, or 
 should be liable to imprisonment, or imprisonment and hard labour, for any term not ex- 
 ceeding seven years. Then succeeded the 6 Geo. 4, c. 16. 
 a Eng. Com. Law Reps. xxiv. Tl.
 
 that sta- 
 tute. 
 
 CHAP. XXV.] BY BANKRUPTS. 229 
 
 only set forth that he was required to surrender to the commissioners 
 at Guildhall ; and it might as well be understood of the commissioners 
 of sewers, or of the lieutenancy, as of the commissioners of bankrupts, 
 for they all sit at the same Guildhall. The court were of opinion that 
 this, together with the other objections, was good. (/A 
 
 *It was observed that the principal nicety in framing an indictment on *230 
 that statute consisted in the recital of the proceedings before and under Nicety iu 
 
 ,, . . / .-. framing 
 
 the commission. (ij indict- 
 
 And the necessary evidence required attention; as it was necessary to merits on 
 prove regularly the trading, the petitioning creditor's debt, the act of 
 bankruptcy, the issuing the commission, and the subsequent proceed- 
 ings. " While the commission subsists, its validity may be assumed for 
 certain civil purposes; but when a criminal case occurs, unless the party 
 was a bankrupt, all falls to the ground. "(j) In a case where a defend- 
 ant was indicted for refusing to give the commissioners an account of 
 his effects, he was acquitted on the ground that he was an infant at the 
 time the debts were contracted, and could not, therefore, be a bankrupt 
 for debts which he was not obliged to pay.(/t) And it has since been 
 held that a commission against an infant is void.(/) And the Court of 
 Chancery refused to lend its aid to a prosecution on that statute by or- 
 dering the clerk under the commission to attend the trial, and produce 
 the proceedings. (m\ 
 
 The following points were understood to have been decided in a case 
 upon the repealed statute in which the defendant was charged by the 
 indictment with concealing his effects to the amount of 201., with intent 
 to defraud his creditors : first, that an averment in an indictment for 
 felony, that a commission issued under the great seal of Great Britain, 
 was sufficiently proved by evidence that it issued under the great seal 
 of Great Britain and Ireland ; secondly, that a bankrupt could not set 
 up a prior secret act of bankruptcy to invalidate his commission ; thirdly, 
 that a creditor might prove the act of bankruptcy before the commis- 
 sioners; and fourthly, that a commission of bankruptcy was not liable 
 to any of the stamp duties imposed by the 44 Geo. 3, c. 98.(%) But 
 it has since been doubted whether, on such an indictment, the petition- 
 ing creditor is a competent witness. (o\ 
 
 (A) Rex v. Frith, 0. B. 1738. 1 Leach, 10. Upon this opinion of the court being pro- 
 nounced, the prosecutor moved that the indictment might be quashed. But the court said 
 that it was by no means proper to encourage the quashing of indictments after prisoners 
 have pleaded. The motion was accordingly refused, and the prisoner being put upon his 
 defence, an acquittal was entered. 1 Leach, 11. But the court may, in its discretion, quash 
 an indictment at any time before the jury are charged with the trial of the prisoner. 
 
 (i) 2 Chit. Crim. L. 511, notes. 
 
 (j) By Lord Ellenborough, C. J., Rex v. Punshon, 5 Campb. 97. 
 
 (k) Rex v. Cole, 1 Ld. Raym. 443. (I) Belton v. Hodges,* 9 Bing. 365. 
 
 (m) 1 Hawk. P. C. c. 49. Fraudulent Bankruptcy, s. 7. 
 
 (n) Rex v. Bullock, 2 Leach, 996. 1 Taunt. 71. But upon the third point, viz., the proof 
 of the act of bankruptcy by a creditor, a qu. is made by the reporter in 2 Leach, 996 ; and 
 in 1 Taunt. 71, the marginal note upon this point is, " Semble, that commissioners of bank- 
 rupt may receive evidence of the act of bankruptcy from a creditor, who seeks to prove 
 under the commission : or at least if they do, after evidence aliunde of the act of bankruptcy, 
 proof that the commissioners declared the bankrupt to be such on the creditor's evidence, 
 will not disprove the allegation that he was duly declared a bankrupt. But it has been 
 ruled in a late case that upon an issue to try whether an act of bankruptcy has been com- 
 mitted a creditor is an incompetent witness, though he has not proved under the commis- 
 sion. Crook v. Edwards, b 2 Stark. R. 302. And see Adams v. Malkin, 3 Campb. 543. And 
 see 2 Stark. Evid. 153, and the cases there collected. 
 
 (o) Rex v. Walters, 9 C. & P. 138. Park, J. A. J., after consulting Patteson, 
 a Eng. Com. Law Reps, xxiii. 309. b lb. iii. 355. c lb. xxiv. 246.
 
 230 OF EMBEZZLEMENTS AND FRAUDS. [BOOK IV. 
 
 It was also ruled that on indictment against a bankrupt where the 
 petitioning creditor's debt was alleged to be due to A., B., and C, sur- 
 viving executors of the last will and testament of D., after proof that 
 A., B., and C, were the executors, and were directed by the will to 
 carry on the business, it was necessary to prove that they all assented 
 to act in discharge of the trust: and that a general admission by the 
 prisoner of a debt, due to the executors of D. would not supply the 
 defect, (p) 
 *231 * Where a bankrupt was indicted for not surrendering himself under 
 Abankruptsec. 112 of 6 Geo 4, c. 16, to the commissioners pursuant to notice, 
 not "bound S anc ^ ** appeared that he was in custody under a detainer collusively 
 to apply for lodged; and it was contended that he was bound to give notice of his 
 a habeas situation to the commissioners, in order to enable them to issue their 
 
 corpus, &C. . ' . 
 
 warrant to bring him before them for examination, and that he was 
 bound to apply for a habeas corpus to enable him to appear before the 
 commissioners, or at all events that he was bound to apply to the Lord 
 Chancellor for an enlargement of the time, in which to surrender: Lit- 
 tledale, J., said, "This being a case of felony, the act must be con- 
 strued favourably for the prisoner; and as it does not provide money 
 to pay the expenses of a habeas corpus in the first instance, I think the 
 bankrupt is not compellable to make the application contended for. 
 And as the commissioners have the power to issue their warrant, and 
 by diligent search may discover where he is, the bankrupt is not bound 
 to give them notice. I am further of opinion that the not doing the 
 things contended for, will not make a bankrupt guilty of felony, though 
 the detainer under which he is in custody be conclusive."^) 
 
 A bankrupt is not indictable for concealment until he has concluded 
 his last examination. A bankrupt was indicted for not delivering up 
 certain account books, and it appeared that the final examination had 
 never been completed, but that it had been adjourned sine die; it was 
 held that he must be acquitted, for until the final examination was con- 
 cluded, he had a locus penitentiary and might deliver up all his books 
 correctly/'M 
 Indictment It appears to have been holden, that where an indictment against a 
 specifying bankrupt for concealing property did not, in stating the property, suffi- 
 sufficiently ciently specify particular parts of it, though it might have sufficiently 
 particular specified others, and those specified mio-ht have been of the necessary 
 
 parts of the r . _ . ' • f & •> 
 
 property, value, such indictment was bad, on the ground that the statement as to 
 the parts not specified tended to embarrass the prisoner. And the de- 
 cision appears to have proceeded upon the principle that where the 
 value is essential to constitute an offence, and the value is ascribed to 
 many articles collectively, the offence must be made out as to every one 
 of those articles; the grand jury having only ascribed that value to all 
 those articles collectively, (s) 
 
 J. offered to admit the witness, subject to further consideration, but he was not 
 examined. 
 
 (p) Rex v. Barnes, a 1 Stark. R. 243. In this case it was also ruled that, although the 
 probate of a will had been produced, the will itself could not be read in evidence upon the 
 mere production of it by the officer of the ecclesiastical court, without some indorsement 
 upon it for the purpose of authentication. 
 
 (q) Mitchell's case, 1 Lew. 20, 4 C. & P. 251. 
 
 (r) Rex v. Walters," 5 C. & P. 138, Park, J. A. J. 
 
 (s) Rex v. Forsyth, Russ. & Ry. 274. 
 
 a Eng. Com. Law Reps. ii. 374. b lb. xxiv. 240.
 
 CHAP. XXV.] BY BANKRUPTS. 281 
 
 An indictment on the 6 Geo. 4, c. 16, s. 112, must allege that there The indict- 
 had been a trading by the party, a petitioning creditor's debt, and that j^" *™ U8t 
 he became bankrupt, and it is not sufficient to allege that a commission trading 
 of bankrupt was duly awarded, by virtue of which the commissioners P etltl0nm S 
 found that the party became a bankrupt. An indictment stated that a debt, and 
 commission of bankrupt was duly awarded and issued against E. 0. act of bank- 
 Jones, directed to the commissioners therein named, thereby giving ^ll' the 
 them authority to proceed, according to the statute, with the body of issuing of 
 the said E. 0. Jones, as also all his lands, which he had in his own m : sa ^™ " 
 right, before he became bankrupt, &c, by virtue of which said commis- 
 sion the commissioners found that the said E. 0. Jones did become a 
 bankrupt within the true intent *and meaning of the said statute before *232 
 the suing forth of the said commission, and did adjudge him to be a 
 bankrupt accordingly. It then charged the defendants with conspiracy 
 to conceal and embezzle a great part of the personal estate of Jones. 
 The defendants having been found guilty, the judgment was arrested 
 on the ground that the indictment did not state enough to show that 
 the defendants conspired to do an illegal act ; it ought to have alleged 
 not merely the issuing of a commission of bankrupt, but that there had 
 been a trading by Jones, and a petitioning creditor's debt, and that he 
 became bankrupt. Without such allegation the indictment would clearly 
 have been insufficient under the 5 Geo. 2, c. 30, and sec. 112 of the 6 
 Geo. 4, c. 16, implied that the commission therein mentioned should 
 have duly issued, and sec. 12 showed that a valid commission could 
 issue only against a trader who had committed an act of bankruptcy, 
 and upon the petition of a creditor. (ss) 
 
 An indictment against a bankrupt for concealing part of his personal Indictment 
 estate must conclude » against the form of the statute," or it is bad in mu ^ con ~ 
 arrest of judgment. The indictment, after stating that the prisoner was « against 
 a trader, &c, alleged that he did not disclose and discover all his estate tne form , of 
 
 statute 
 
 and effects to the commissioners, but fraudulently and feloniously con- 
 cealed and embezzled part of his personal estate, specifying it ; to this 
 indictment it was objected, in arrest of judgment, that the offence was 
 not stated to be done " against the form of the statute ;" and, upon a case 
 reserved, the judges were unanimously of opinion that the omission of 
 contra formam, &c, was not cured by the 7 Geo. 4, c. 64, ss. 20 and 
 21, and was fatal to this indictrnent.(e) 
 
 Where an indictment alleged that notice of the fiat was delivered to Averment 
 the bankrupt according to the direction of the statute, it was objected °£ ser Y lce 
 that as the words of the statute are " notice thereof in writing to be left 
 at the usual place of abode of such person, or personal notice in case 
 such person be then in prison," the indictment ought to have alleged 
 that the bankrupt was in prison ; for if he was not, the service ought 
 to have been at the dwelling-house : but Williams, J., was inclined to 
 think that personal sendee would do in any case. (u^j But where an 
 indictment on the 5 Geo. 2, c. 30, in a similar case alleged a personal 
 service, without stating whether the bankrupt was at the time in con- 
 
 (ss) Rex v. Jones, 4 B. & Ad. 345. 
 
 (t) Reg. v. Radcliffe, 2 Moo. C. C. R. 68, S. C. 2 Lew. 57, where the indictment is set out 
 at length. It was further objected that the indictment only alleged that the fiat was 
 " issued," not that it was " duly issued," but Williams, J., held that the word " duly" was 
 better omitted, as he was bound to presume that it was duly issued, as it was issued by 
 competent authority. This point also was reserved, but not decided by the judges. 
 
 («) Reg. v. Radcliffe, supra. The point was reserved but no opinion given upon it.
 
 232 
 
 OF EMBEZZLEMENTS AND FRAUDS. 
 
 [BOOK IY. 
 
 *233 
 
 Refusal to 
 submit to 
 examina- 
 tion. 
 
 Evidence. 
 
 finement or not; Best, J., was inclined to think that the indictment 
 ought to have averred that the bankrupt was in prison. (v) And where 
 such an indictment stated a notice requiring the bankrupt personally 
 to appear before the commissioners, according to the directions of the 
 several statutes made and then in force concerning bankrupts, and par- 
 ticularly the statute passed in the 5 Geo. 2, entitled, "An act to pre- 
 vent the committing of frauds by bankrupts," and on the production 
 of the notice it appeared that the title to the 49 Geo. 3, viz., " An act to 
 alter and *aniend the laws relating to bankrupts," had been substituted 
 for that of the 5 Geo. 2; it was held a fatal variance. (?/•) 
 
 Upon an indictment on the same repealed statute of 5 Geo. 2, charg- 
 ing the bankrupt with not submitting to be examined, it was decided, 
 that if a bankrupt surrendered to his commission, and at the time of 
 such surrender refused to answer particular questions concerning his 
 property, but took the oath, and assigned, as his reason for not an- 
 swering, that he intended to dispute the commission, the refusal to 
 answer such question was not a capital offence within the statute. (.r) 
 
 Upon an indictment on the same statute, qualified by 1 Geo. 4, c. 
 115, s. 1, against a bankrupt for concealing his effects, where the evi- 
 dence was that the prisoner, on his last examination, stated that a book 
 given in by him contained an account of all his effects, it was holden to 
 be incumbent on the prosecutor to produce the book, or to account for 
 its non-production. The book was a necessary part of the prosecutor's 
 case, in order that it might have been seen whether that book men- 
 tioned the property. (?/) 
 
 In the same case it was held at the trial that it was not necessary that 
 the goods should be concealed by the prisoner himself, or that he should 
 have had the possession of them after the bankruptcy ; but that it was 
 sufficient if another person had them as the agent of and subject to the 
 control of the prisoner, and had taken them by the direction, and with 
 the privity and knowledge of the prisoner, to the place where they 
 were deposited. (z\ 
 
 In the same case it was also held at the trial that the indictment 
 might be preferred in Middlessex, if the prosecutor could prove an actual 
 concealment there ; although the last examination of the bankrupt took 
 place in London. (a) 
 
 Where an indictment for conspiracy stated the bankruptcy of one of 
 the defendants in a prefatory allegation, Lord Tenterden, C. J., held that 
 the assignment could not be putin without callingthe attesting witness. (V) 
 
 Parol evidence of any thing a bankrupt says at the time of his last 
 examination cannot be received, although it appear that no part of what 
 he said was taken down in writing. The paper purporting to be the 
 final examination, did not contain any questions or answers ; it merely 
 stated that the commissioners, not being satisfied with the answers of 
 the bankrupt adjourned the examination sine die ; and it was proposed 
 to give parol evidence of what the bankrupt said before the commis- 
 sioners, which it was contended might be done, as it was shown that 
 
 Parol evi- 
 dence of 
 what the 
 bankrupt 
 says at his 
 examina- 
 tion. 
 
 (v) Rex v. Burraslon, Gow. N. P. R. 210. 
 (w) Ibid., Best, J. after consulting Richardson. J. 
 
 (x) Rex v. Page, Russ. & Ry. 392. (y) Rex v. Evani. (1825,) R. & M. C. C. R. 
 
 (z) Ibid, per Littledale, J. 
 
 (a) Ibid, per Littledale, J. (b) Rex v. Pope,» 5 C. & P. 208. 
 
 a Eng. Com. Law Reps. xxiv. 283. 
 
 70.
 
 CHAP. XXV.] BY BANKRUPTS. 233 
 
 what the bankrupt said was not taken down ; and besides by sec. 36, 
 the commissioners are empowered to examine by parol : Park, J. A. J., 
 « I can receive no evidence of the examination but the writing. The 
 examination is required to be in writing by the act of parliament; and 
 that part which relates to the examining by parol applies only to the 
 questions which may be either put by parol or by written interrogato- 
 ries. "(c) So where an indictment alleged that after the examination 
 of the bankrupt and after he had subscribed *the same, a question was *234 
 put to the bankrupt, and it was objected to any evidence being given of 
 questions and answers, which were not reduced to writing; it was 
 replied that the material answers alone were taken down ; and it some- 
 times happened that answers which at the time seemed immaterial, af- 
 terwards became material. The answers proposed to be given in evi- 
 dence were given after the examination had concluded in the first 
 instance, but they also were reduced to writing. "Williams, J., "I cannot 
 receive parol evidence of any answers to questions that were put to the 
 bankrupt before the commissioners subscribed their name to the ex- 
 amination. I must presume, that all the answers prior thereto that 
 were material were taken down, and included in the examination before 
 their signatures were affixed to it. But answers to questions put sub- 
 sequently to such examination may be given in evidence. "(d) 
 
 It has been held that a balance sheet of a bankrupt signed and sworn The bal- 
 by him was not evidence against him on an indictment for concealing oflVank- 
 his effects, to prove the petitioning creditor's debt.(e) The ground of rupt. 
 this decision was that the balance sheet could not be given in evidence, 
 unless there were a valid commission, and therefore the balance sheet 
 being part of the proceedings, could not be put in evidence to prove the 
 petitioning creditor's debt as a part of the commission//) 
 
 But it has since been held that the examination of a person taken on 
 oath before commissioners of bankruptcy, is admissible against him on 
 a charge of forgery, he having been cautioned and allowed to elect what 
 questions he would answer. (#) 
 
 It was agreed that a bankrupt's wife could not be examined on the 
 part of the prosecution on an indictment against the bankrupt for offen- 
 ces against the 5 Geo. 2, c. 30.(7?) 
 
 It seems that the production of the Gazette will be sufficient without 
 proof of its being bought of the Gazette printer, or where it comes 
 from : and possibly, where the prisoner has appeared to his commission, 
 and has been examined, averment of notice in the Gazette may not be 
 necessary. (?') 
 
 (c) Rex v. "Walters, 3 5 C. & P. 238. 
 
 (d) Reg. v. Radcliffe, 2 Lew. 57. 
 
 (e) Rex v. Britton, 1 M. & Rob. 297. Patteson, J., after consulting Alderson, B. 
 (/) Per Patteson, J., in Reg. v. Wheater, infra. 
 
 \g) Reg. v. Wheater, 2 Moo. C. C. R. 45. S. C. 2 Lew. 157. See this case more fully in 
 the chapter on Evidence. 
 
 (h) 1 Hawk. P. C. c. 49, of Fraudulent Bankruptcy, see. 4. Ex parte James, 1 P. Wms. 610. 
 where the Lord Chancellor said, that a wife could not by the common law be a witness for 
 or against her husband; and that though a former statute, 21 Jac. 1, authorized the com- 
 missioners to examine the wife, touching any concealments of the goods, effects, or estate 
 of the bankrupt, yet it did not extend to examining the bankrupt's wife touching his bank- 
 ruptcy, or whether he had committed any act of bankruptcy, and how or when he became a 
 bankrupt. 
 
 («') Reg. v. Forsyth, Russ. & Ry. 274. But it will be more prudent to be provided with the 
 full proof. 
 
 a Eng. Com. Law Reps. xxiv. 246,
 
 *235 
 
 OF EMBEZZLEMENTS AND FRAUDS, ETC. [BOOK IV. 
 
 Wilfully 
 omitting 
 any thing 
 in sche- 
 dule, mis- 
 demeanor. 
 
 What mat- 
 ters only 
 the indict- 
 ment need 
 set out. 
 
 Separate 
 indict- 
 ments may 
 be prefer- 
 red for each 
 separate 
 fraudulent 
 omission. 
 
 *236 
 
 Wilful 
 
 omission 
 from the 
 schedule. 
 
 ^CHAPTER THE TWENTY-SIXTH. 
 
 OF EMBEZZLEMENTS AND FRAUDS BY INSOLVENT DEBTORS. 
 
 The 7 Geo. 4, c. 57, s. 70, enacts, « that in case any prisoner shall, 
 with intent to defraud his or her creditors or creditor, wilfully and 
 fraudulently omit in his or her schedule, so sworn to as aforesaid, any 
 effects or property whatsoever, or retain or except out of such schedule, 
 as wearing apparel, hedding, working tools and implinients, or other 
 necessaries, property of greater value than twenty pounds, every such 
 person so offending, and any person aiding and assisting him to do the 
 same, shall upon being thereof convicted by due course of law, be ad- 
 judged guilty of a misdemeanor, and thereupon it shall and may be law- 
 ful for the court before whom such offender shall have been so tried and 
 convicted, to sentence such offender to be imprisoned, and kept to hard 
 labour for any period of time not exceeding three years; and that in 
 every indictment or information against any person for such offence, it 
 shall be sufficient to set forth the substance of the offence charged on 
 the defendant without setting forth the petition, or conveyance, or as- 
 signment to the provisional assignee, appointment of assignee or as- 
 signees, or any conveyance or assignment whatever, or balance sheet, 
 order for hearing, adjudication, order of discharge or remand, or any 
 warrant, rule, order or proceeding of or in the said court, except so 
 much of the schedule of such prisoner as may be necessary for the pur- 
 pose. 
 
 In point of law a prosecutor may prefer separate indictments for the 
 fraudulent omission of each article. To an indictment under the preced- 
 ing section for fraudulently omitting ten chairs, ten tables, two carts, 
 &c, the prisoner pleaded autrefois acquit ; and the former indictment 
 was the same as the present, except that the two carts mentioned in the 
 present indictment were not specified in the former one ; it was, how- 
 ever, submitted that the two charges were substantially the same ; the 
 charge in each indictment was that the prisoner had fraudulently sworn 
 to a schedule, which did not contain a true enumeration of his goods. 
 Patteson, J., "I cannot say that the plea autrefois acquit is, in strict- 
 ness, a good defence to the whole of this indictment. The prisoner may 
 have fraudulently omitted out of his schedule the goods mentioned in 
 this indictment, which were not mentioned in the last : and, in point of 
 law, I think a prosecutor may prefer separate indictments for each such 
 omission. But though the present indictment be in point of law main- 
 tainable, I cannot help saying that, excepting under very peculiar cir- 
 cumstances, I think such a course ought not to be pursued ; and if the 
 *case goes on, I shall strongly advise the jury to acquit the prisoner, un- 
 less they think that the goods, now for the first time brought forward, 
 were omitted out of the schedule under circumstances essentially differ- 
 ent from the others. "(a) 
 
 The 1 & 2 Vict. c. 110, the act for abolishing arrest on mesne pro- 
 cess in civil actions, by sec. 99, enacts, " that in case any prisoner 
 whose estate shall, by an order under this act, have been vested in the 
 
 (a) Reg. v. Champneys,* 2 M. & Rob. 26. See Rex v. Moody, 5 C. & P. 23. f>osf, Pery'urp. 
 a Eug. Com. Law. Reps. xxiv. 196.
 
 CHAP. XXVII.] BY INSOLVENT DEBTORS. 236 
 
 said provisional assignee, shall, with intent to defraud the creditors or 
 creditor of such prisoner, wilfully and fraudulently omit in his schedule 
 so sworn to as aforesaid, any eflects or property whatsoever, or retain 
 or except out of such schedule, as wearing apparel, bedding, working 
 tools and implements, or other necessaries, property of greater value 
 than twenty pounds, every such person so offending, and any person 
 aiding and assisting him to do the same, shall, upon being thereof con- 
 victed by due course of law, be adjudged guilty of a misdemeanor, and 
 thereupon it shall be lawful for the court before whom such offender 
 shall have been so tried and convicted to sentence such offender to be 
 imprisoned and kept to hard labour for any period of time not exceed- 
 ing three years ; and that in every indictment or information against 
 any person for any offence under this act, it shall be sufficient to set 
 forth the substance of the offence charged on the defendant without 
 setting forth the petition, or order vesting such prisoner's estate in the 
 provisional assignee, appointment of assignee or assignees, or balance 
 sheet, order for hearing, adjudication, order of discharge or remand, or 
 any warrant, rule, order, or proceeding of or in the said court, except 
 so much of the schedule of such prisoner as may be necessary for the 
 purpose." 
 
 Upon an indictment under the 1 & 2 Vict. c. 110, s. 99, against an 
 insolvent for wilfully and fraudulently omitting sums of money from 
 his schedule, it was opened that the omissions were those of certain 
 sums of money which had been received by him prior to the date of the 
 vesting order, and which, in accordance with the 1 & 2 Vict. c. 110, s. 
 69, should have been inserted in the special balance sheet, which had 
 been filed by the defendant ; there, however, they had been omitted. 
 Lord Abinger, C. B., held that the indictment would not lie under the 
 circumstances. The special balance sheet was, as it were, a mere memo- 
 randum of the insolvent's receipts and disbursements, for the guidance 
 of the court, and a man should not be held thus criminally responsible 
 for errors therein. The consequence of such an interpretation of sec. 
 99, as would be necessary for the purpose of this indictment, would be 
 to make a highly penal clause apply to cases possibly of no intentional 
 fraud, and of comparatively trifling inaccuracy. The section applied 
 only to cases where the omission would affect the interests of creditors, 
 and not where it is a mere omission of money received and subsequently 
 expended by the insolvent. (b\ 
 
 *CHAPTER THE TWENTY-SEVENTH. *237 
 
 OF RECEIVING STOLEN GOODS, (a) 
 
 Receivers of stolen goods were at common law punishable only as The offence 
 for a misdemeanor, even after the thief had been convicted of felony in at common 
 
 (b) Reg. v. Warner. a 1 C. & Mars. 628. 
 
 (A) Massachusetts. — The statutes of Massachusetts, made for the punishment of the 
 
 offence of receiving stolen goods, are substantially the same as those of Great Britain. The 
 
 tenth, eleventh, twelfth, and thirteenth sections of the statute of 1840, c. 143, particularly 
 
 relate to this offence, and are similar to the provisions in some of the English statutes 
 
 a Eng. Com. Law Reps. xli. 341. 
 
 Vol. il— 16
 
 237 OF RECEIVING STOLEN GOODS. [BOOK IV. 
 
 law was stealing theni;(a) but by the provisions of several statutes, now re- 
 d anor 3 Pealed, such receivers were made accessories after the fact to the felony 
 of the thief, in cases where the thief had been convicted, or was amena- 
 ble to justice ; and were made liable to be prosecuted for a misde- 
 meanor in cases where the thief had not been convicted, and whether 
 he was amenable to justice or not. And the 7 & 8 Geo. 4, c. 29, passed 
 for consolidating and amending the laws relative to larceny, contains 
 several enactments upon the subject of receiving stolen goods. 
 7 <fc 8 Geo. Section 54 enacts, " that if any person shall receive any chattel, 
 5 4 C ' ' s ' money, valuable security or other property whatsoever, the stealing or 
 Receivers taking whereof shall amount to a felony, either at common law, or by 
 ot stolen v } r t ue f this act, such person knowing the same to have been feloni- 
 
 property: ' r °. 
 
 where the ously stolen or taken, every such receiver shall be guilty of felony, 
 original an( j ma y De indicted and convicted either as an accessory after the fact, 
 felony, the or for a substantive felony ; and in the latter case, whether the princi- 
 receivers p a j felon shall or shall not have been previously convicted, or shall or 
 tried either shall not be amenable to justice; and every such receiver, howsoever 
 
 (a) Fost. 373. 
 
 contained in this chapter on the same subject, that the construction and expositions of 
 the latter, in the English courts, are applicable to the statute of this state above mentioned. 
 
 Thomas Andrews was indicted in March term, 1806, in Suffolk, for knowingly receiving, 
 &c, stolen goods, the property of Moses Dow, before feloniously stolen by one Amos Tuttle. 
 It appeared in evidence that Tuttle stole the goods in New Hampshire, that they were 
 brought to Boston in this state, and sold to Andrews, the defendant, under circumstances 
 which showed satisfactorily that he must have known them to have been stolen. Upon a mo- 
 tion for a new trial, as on a verdict against evidence, the court decided that a person re- 
 ceiving in this state goods stolen in another state, knowing them to be stolen, may be 
 indicted in this state as a receiver of stolen goods. Cullin's case, (1 Mass. Rep. 116,) and 
 Lord's case, decided at York, June term, 1792, were considered directly in point, and 
 conclusive against the motion, which was overruled. Commonwealth o. Andrews. 2 Mass. 
 Rep. 14. 
 
 In a subsequent case against the same defendant, Thomas Andrews, he was indicted for 
 receiving stolen goods. &c, the property of Josiah Bellows and David Stone, which had 
 been stolen by Amos Tuttle. To the indictment, the defendant pleaded in bar, in substance, 
 that he had been tried and convicted for having knowingly, &c, received of the same Amos 
 Tuttle. other goods which had been previously stolen by him from Moses Dow ; that the 
 judgment upon the former conviction still remained in force ; that the goods mentioned in 
 this indictment, and alleged to have been stolen from Bellows and Stone, and those alleged 
 to have been stolen by Dow, were in the same packages and parcels, at the time they were 
 received by the defendant ; that they were all received by him at the same time ; and that 
 the act of receiving them was one and the same. The plea was adjudged insufficient. 
 
 The guilt of the accessory is in relation to the crime of the principal, and as the principal 
 in this case had committed two crimes, the defendant, by his participation, was equally guilty 
 of both. Commonwealth v. Andrews, 2 Mass. Rep. 409. 
 
 'United States. — See 1 U. S. Laws, (Story's ed.) 87. 3 ib. 2001. Ind. Dig. 157, 158. 
 
 South Carolina. — Oliver Scovel was indicted for receiving stolen goods. The facts were, 
 that Brown, the principal felon, brought the goods to the house, where the defendant and 
 one Sterret lived together ; that the prisoner had knowledge that Brown had stolen them : 
 that afterwards a passage was engaged by Sterret for the prisoner, on board a vessel bound 
 to North Carolina ; that the stolen goods were sent in a trunk to the vessel with another 
 trunk containing the prisoners clothes ; that Sterret and the prisoner went to the vessel. 
 when the former said to the captain, '• here is your passenger and his baggage :" that the 
 trunks were received as the prisoner's, and that he gave directions that one of them should 
 be put into the hold of the vessel. This was held to be such a reception of the goods, as 
 justified a conviction under the statute, for receiving stolen goods; the possession of the 
 goods at the house before the removal, was a sufficient possession under the statute : but 
 the subsequent acts of the prisoner, showed an actual independent possession. — 1 Rep. Com. 
 Ct. 274, State v. Scovel. 
 
 Since st. Wm. & M. no indictment as for a misdemeanor at common law can be main- 
 tained against a receiver of stolen goods ; and a receiver of stolen goods from a slave cannot 
 be indicted for a misdemeanor : but he may be indicted as an accessory. 4 McCord. 
 State v. Wright. 
 
 See Revised Statutes of New York, Vol. II.. 687.}
 
 CHAP. XXVII.] OF RECEIVING STOLEN GOODS. 237 
 
 convicted, shall be liable at the discretion of the court, to be transport- for a sub- 
 ed beyond the seas for any term not exceeding fourteen years, nor less ^™ tlTe 
 than seven years, or to be imprisoned for any term not exceeding three 
 years, and, if a male, to be once, twice, or thrice publicly or privately 
 whipped, (if the court shall so think fit) in addition to such imprison- 
 ment : provided always, that no person howsoever tried for receiving as 
 aforesaid, shall be liable to be prosecuted a second time for the same 
 offence."(6) 
 
 By sec. 55, " if any person shall receive any chattel, money, valua- See. 55. 
 ble security, or other property whatsoever, the stealing;, taking, obtain- W . be . re , th< ; 
 
 J . , „ . , . ,. i , . , B ' original of- 
 
 ing or converting whereof is made an indictable misdemeanor by this fence is a 
 act, such person knowing the same to have been unlawfully stolen, misd eniea- 
 taken, obtained, or converted, every such receiver shall be guilty of a 
 misdemeanor, and may be indicted and convicted thereof, whether the 
 person guilty of the principal misdemeanor shall or shall not have been 
 previously convicted thereof, or shall or shall not be amenable to jus- 
 tice ; and every such receiver shall, on conviction, be liable, at the 
 discretion of the court, to be transported beyond the seas for the term 
 of seven years, or to be imprisoned for *any term not exceeding two *238 
 years ; and, if a male, to be once, twice, or thrice publicly or privately 
 whipped (if the court shall so think fit) in addition to such imprison- 
 ment." 
 
 The 56th sec. enacts, " that if any person shall receive any chattel, Sec 56 - 
 money, valuable security, or other property whatsoever, knowing the ^ ay be 
 same to have been feloniously or unlawfully stolen, taken, obtained or tried where 
 converted, every such person, whether charged as an accessory after the Li/t"" 01 " 
 fact to the felony, or with a substantive felony, or with a misdemeanor able, or 
 only, may be dealt with, indicted, tried and punished in any county or where the 
 
 DroDcrtv is 
 
 place in which he shall have, or shall have had any such property in found in 
 his possession, or in any county or place in which the party guilty of their P os - 
 the principal felony or misdemeanor may by law be tried, in the same 
 manner as such receiver may be dealt with, indicted, tried, and pun- 
 ished in the county or place where he actually received such pro- 
 perty." 
 
 Sect. 76, after providing that nothing contained in the act shall ex- Sec. 76. 
 tend to Scotland or Ireland except as follows, and then enacting as to p e "^ n ° g f re _ 
 trials in cases of larceny where the thief, having stolen, &c, property ceiving in 
 in one part of the kingdom, shall afterwards have the same property in °J" e ,? a r t °, f 
 his possession in any other part, further enacts, that " if any person in Kingdom, 
 any one part of the United Kingdom shall receive or have any chattel, property 
 money, valuable security or other property whatsoever, which shall - m all y 
 have been stolen or otherwise feloniously taken in any other part of other part, 
 the United Kingdom, such person knowing the said property to have 
 been stolen or otherwise feloniously taken, he may be dealt with, in- 
 dicted, tried, and punished for such offence in that part of the United 
 Kingdom where he shall so receive or have the said property, in 
 the same manner as if it had been originally stolen or taken in that 
 part." 
 
 Sec. 60 provides for the punishment of receivers where the stealing, Sec. 60. 
 &c, is punishable on summary conviction, and enacts, " that where the *f C p^ p ®" 
 stealing or taking of any property whatsoever is by this act punishable on w hcrc the 
 summary conviction, either for every offence, or for the first or second original of- 
 
 (b) As to hard labour and solitary confinement, see sec. 4, ante, p. 128.
 
 238 OF RECEIVING STOLEN GOODS. [BOOK IV. 
 
 fence is offence only, or the first offence only, any person who shall receive any 
 Tsum sucn P r0 P ert y? knowing the same to he unlawfully come hy, shall, on 
 mary con- conviction thereof before a justice of the peace, be liable, for every first, 
 viction. second, or subsequent offence of receiving, to the same forfeiture and 
 punishment to which a person guilty of a first, second, or subsequent 
 offence of stealing or taking such property, is by this act made liable." 
 The author thought that the provisions of this statute would prevent 
 a difficulty, which frequently occurred, in consequence of the proof not 
 corresponding with the charge in the indictment, either where the party, 
 being charged as the thief, turned out to have been the receiver, or 
 being charged as a receiver, appeared upon the evidence to have actu- 
 ally stolen the property. And it was conceived that where from the 
 nature of the case, it appeared to be advisable, a count charging the 
 party accused as receiver might be joined in the same indictment with 
 a count charging him as the thief, and that he might be convicted upon 
 such of the counts as was supported by the evidence. But although 
 there is no objection in point of law to including a count for stealing 
 and a count for receiving in the same indictment, and the judges differed 
 in opinion as to whether the prosecutor should be put to his election on 
 *239 which of the two *counts he would proceed, yet they all agreed that 
 directions should be given to the respective clerks of assize not to put 
 both charges in the same indictment. (6) 
 Distinction In some cases, upon the repealed statutes, the distinction between 
 between a a receiver and an accomplice was the subject of attentive consid- 
 
 receiver 
 
 and princi- eratlOH. 
 
 pal. Dyer Dyer and Distinge were indicted for stealing a quantity of barilla, the 
 te's ease. " property of M. Hawker. It appeared that the barilla was on board a 
 Goods re- foreign ship at Plymouth, consigned to Hawker ; that Hawker em- 
 one'^art ™ pl° ve d Dyer, who was the master of a large boat, for the purpose of 
 another of bringing it on shore ; and that Distinge, together with several others, 
 a boat by were employed as labourers in removing it to Hawker's warehouses, 
 afterwards after it was landed. And the jury found that, while the barilla was in 
 taken from Dyer's boat, some of his servants, without his privity, consent, or par- 
 A. and B. ticipation, severed some of it from the rest where it was stowed, and 
 removed it to another part of the boat, where they concealed it under 
 some rope. But they also found that Dyer afterwards assisted the 
 other prisoner and the persons on board, who had before separated this 
 part from the rest, in removing it from the boat, for the purpose of 
 carrying it off. It was objected for the prisoner Dyer, that his offence 
 was not that of a principal, as laid in the indictment, but that of re- 
 ceiver or accessory after the fact. But the learned judge, before, 
 whom the trial was had, was of opinion, that though for some pur- 
 poses, as with respect to those concerned in the actual taking and sepa- 
 ration, the offence would have been complete by the severance and re- 
 moval of the barilla to another part of the boat, as being an asportation 
 
 (b) Rex v. Galloway, R. & M. C. C. R. 234. This point was again considered in Rex v. 
 Madden, R. & M. C. C. R. 277, and a great majority of the judges held that the rule laid 
 down in Rex v. Galloway, should be adhered to. In Rex v. Flower. 3 3 C. & P. 413, the in- 
 dictment contained counts for stealing and receiving two pigs, and Vaughan. B.. compelled 
 the prosecutor to elect upon which he would proceed. •• The reason why counts ought not 
 to be joined in an indictment against a prisoner for stealing, and also for receiving, is, be- 
 cause they are in fact totally distinct offences, and a prisoner cannot be found guilty of 
 both ;" per Parke, B. Reg. v. Blackson, b 8 C. & P. 43. 
 
 a Eng. Com. Law Reps. xiv. 374. * lb. xxxiv
 
 CHAP. XXVII.] OF RECEIVING STOLEN GOODS. 239 
 
 in point of law, yet, with respect to Dyer, who joined in the scheme 
 before the barilla bad been actually taken out of the boat, where it was 
 properly deposited for the purpose of being landed, and who assisted in 
 the act of carrying it off from thence, it was one continuing transac- 
 tion, and could not be said to be completed till the removal of the com- 
 modity from such place of deposit ; and that Dyer, having assisted in 
 the act of carrying it off, was therefore guilty as principal. (c)f 
 
 Another case arose out of the same transaction. It appeared that Cases of 
 the rest of the barilla was lodged in M. Hawker's warehouse : that while A , t T wc11 a "' 1 
 
 ,1 i iiii , Donuell. 
 
 it was there several persons, employed as labourers or servants by Haw- Goods re- 
 ker, entered into a conspiracy to steal some of it; that accordingly, moved in 
 some of them, who had access to the warehouse, removed a parcel ofi ng f rom " 
 it nearer to the door than it was before, in the course of the morning; part of a 
 and that about nine at night these persons, together with the prisoners t^nother 
 Atwell and O'Donnell, wbo had in the meantime agreed to purchase by A., and 
 it of the others, came to the warehouse yard and assisted the others, (, A n aWi | y 
 who took it to the ^warehouse, in carrying it away from thence. They B.at night. 
 were all indicted as principals in the felony ; and the same objection was *2-A0 
 made as before, that Atwell and O'Donnell were only receivers or ac- 
 cessories after the fact, the felony being complete before their partici- 
 pation in the transaction. But it was ruled that, so long as the goods 
 remained in the warehouse, which was the lawful place for their deposit, 
 although to some purposes, as to those who severed this parcel from the 
 rest for the purpose of stealing it, and more conveniently removing it 
 afterwards, the felony might be said to be complete ; yet it was a con- 
 tinuing transaction as to those who joined in the same plot before the 
 goods were finally carried away from the premises ; and that all the de- 
 fendants, having concurred in or being present at the act of removing 
 them from the warehouse wherein they were lawfully deposited, were 
 principals.^) 
 
 But where the goods had been so entirely taken away from the prem- King's 
 ises or actual possession of the owner, that their further removal could case - If 
 
 fifOOQS £1X6 
 
 not be deemed a continuing part of the original taking, the case was removed 
 holden to come under a different consideration ; and the party concerned from tn . e 
 only in such further removal was decided not to be guilty of stealing of thepro 1 - 
 the goods. Upon an indictment for larceny, in stealing several firkins secutor by 
 of butter and some cheeses, the facts proved were, that two men, in the absence'of 
 absence of the prisoner, broke open the warehouse of the prosecutor, B., and B. 
 stole the butter and cheese in question, carried them into the adjoining? . en ! ards 
 street, and deposited them a distance of about thirty yards from the carrying 
 door of the warehouse : after which they went for the prisoner, brought ^ em awav > 
 him to the place and informed him of what they had done; and he as- principal. 
 sisted in carrying the property to a cart, which was kept in waiting at 
 
 (c) Rex v. Dyer and Distinge, Exeter Sum. Ass. 1801, cor. Graham, B., who conferred with 
 the other judge, (Le Blanc, J.,) and afterwards said that he was fully satisfied that his opi- 
 nion was well founded. 2 East, P. C. c. 16, s. 154, p. 161, 168. 
 
 (d) Rex v. Atwell, O'Donnel and others, cor. Graham, B., at the same time as the prece- 
 ding case of Dyer and Distinge, and decided after the like consideration. Ante, note (c), 2 
 East, P. C. ibid. All the prisoners found guilty on both indictments as principals iu the 
 two several transactions received sentence of transportation for seven years. 
 
 f [A person suffering a trunk of stolen goods to be put on board of a vessel destined for 
 North Carolina, as a part of his baggage, he having taken his passage, is such a reception 
 of the goods as a purchaser or bailee, as will justify a conviction under the statute for re- 
 ceiving stolen goods. The State v. Scovcl, 1 Mills's Const. Rep. 134.]
 
 240 OF RECEIVING STOLEN GOODS. [BOOK IV. 
 
 some distance to be ready to convey it away. Upon this evidence an 
 objection was taken on behalf of the prisoner, that he could not be found 
 guilty of stealing in this case, as the felonious taking of the property 
 was complete before he had any part in the transaction. It seemed, 
 however, in the first instance, to the learned judge by whom the pri- 
 soner was tried, that he might properly be found guilty ; on the ground 
 that as every continuation of a larceny, is so far a new larceny, and a 
 new taking, as to sustain an indictment for larceny in any county into 
 which the property is carried, and as the possession in law of the pro- 
 perty in this case remained in the prosecutor, notwithstanding the re- 
 moval of it from his warehouse to the place where it was deposited in 
 the street, so that he might have brought trespass against any stranger 
 taking in from the place in the street without any felonious intent ; it 
 might be considered that the prisoner, who was at present aiding and 
 abetting in a continuation of the larceny, was a principal in the larceny 
 so continued : and the prisoner was accordingly convicted. But, the 
 case being reserved for the consideration of the twelve judges, they were 
 of opinion that as the property was removed from the owner's premises 
 before the prisoner was present, he could not be considered as a princi- 
 pal ; and that the conviction of him as a principal was therefore wrong.(e) 
 *241 *So going towards the place where a felony was to be committed in 
 order to assist in carrying off the property, and assisting accordingly, 
 was held not to make the party a principal, if he was at such a distance 
 at the time of the felonious taking as not to be able to assist in it. The 
 prisoner, and J. S., went to steal two horses ; J. S. left the prisoner half 
 a mile from the place in which the horses were, and brought the horses 
 to him, and both rode away with them. Upon a case reserved, the 
 judges thought the prisoner an accessory only, not a principal, because 
 he was not present at the original taking. (f\ But where a man com- 
 mitted a larceny in a room of a house, in which room he lodged, and 
 threw a bundle containing the stolen property out of the window to an 
 accomplice who was waiting to receive it, the judges came to a different 
 conclusion, and held that such accomplice was a principal, and that the 
 conviction of him as a receiver was wrong.^) 
 commitT* Where a servant is intrusted with goods by his master, the possession 
 larceny at of the servant is the possession of the master, but such possession is de- 
 
 the time he termined by the felonious act of the servant, and in cases where the 
 gives his . , , . ' . 
 
 master's servant delivers his master's goods to another person, who is his acconi- 
 
 goods to an pHce, it frequently becomes material to ascertain at what time the ser- 
 vice, both vant committed the felonious act, because if he committed it at the time 
 are princi- when he delivered the goods to his confederate, both are guilty of lar- 
 If a^ervant oen y as principals J but if he committed it in the absence of his confe- 
 commit a derate, and afterwards delivers the goods to him, the servant is the 
 andafter- P ri ncipal and his confederate a receiver. Butteris and Grove were in- 
 wards de- dieted as principals for stealing some fat. Butteris, being in the service 
 IlVe ds^o °*" tne P rosecutor ? was sent by him to deliver some fat to A. B., but he 
 his accom- did not deliver all the fat to A. B., having previously given part of it 
 plice, the to Grove ; it was objected that Grove ought to have been charged as a 
 receiver, receiver; but it was held that it was a question for the jury whether 
 
 (e) Rex ». King, cor. Bayley, J., York Lent Ass. 181T. And before the judges in East. T. 
 1817, Rnss. & Ry. 332. And see Rex v. M'Makin and Smith, Russ. & Ry. 333, note (*). 
 
 (/) Rex v. Kelly, Mich. T. 1820, MS. Bayley, J., and Russ. & Ry. 421. And see ante, vol. 
 1, book 1, p. 28. 
 
 ((/) Rex v. Owen, East. T. 1825, R. & M. C. C. R. 9G. Ante, vol. 1. p. 28.
 
 CHAP. XXVII.] OF RECEIVING STOLEN GOODS. 241 
 
 drove was present at the time of the separation, as the fat was in the 
 master's possession till the separation ; and the case was left to the jury 
 to say whether drove was present at the time when the separation was 
 made, or received the fat afterwards. (A) So where druncell was in- 
 dicted for stealing a quantity of hay, and Hopkinson for receiving the 
 hay, knowing it to have been stolen, and it appeared that druncell, who 
 was a carter, and allowed by his master a small quantity of hay for the 
 use of his horses on their journey to and from London, took from his 
 master's stables two trusses of hay above the quantity which was allowed 
 for the horses ; and that Hopkinson, who was the ostler at a public 
 house where the wagon stopped on the journey, came to the tail of the 
 wagon and received the two trusses of hay from druncell, and carried 
 them to the stable : it was objected that if Hopkinson had committed 
 any offence at all it was that of stealing, as the hay being in the master's 
 wagon was in the master's possession, and the act of the prisoner in re- 
 moving it from the wagon constituted a larceny and not a receiving ; 
 but it was held that the indictment was properly framed, on the ground 
 that as the hay was not hay appropriated* by the master for the horses, *242 
 •the moment it got into the wagon, animo furandi, the larceny was com- 
 plete. If, however, it had been hay allowed for the horses which had 
 been stolen, it would have been otherwise. (i) 
 
 It was settled upon the repealed statutes, that a party might be in- A party 
 dieted for receiving goods stolen by persons unknown : and where an ^ted^o*" 
 indictment was objected to because it did not ascertain the principal receiving 
 thief, and did not therefore state to whom in particular the prisoner was S°° ds 
 
 , . ,„..,. ■■ stolen by 
 
 accessory, the judges were unanimously of opinion that it was good) p er8om un _ 
 the great view of the statutes being to reach the receivers, where the known. 
 principal thieves could not easily be discovered. (/) But where the tne p r i nc i- 
 principal was known, it was considered to be proper to state the facts pal is un- 
 according to the truth. (/c) And a case is reported in which it was g^oJid'be 
 ruled, that an indictment against an accessory before the fact to a lar-so stated, 
 ceny, which stated a stealing by "a certain person to the jurors un- ^ see 2 ,,, 
 known," and that the prisoner incited, &c, "the said person unknown" 244.' 
 to commit the said felony, could not be supported where the principal 
 felon was a witness before the grand jury. The counsel for the prose- 
 cution, in opening the case, stated that the grand jury had found the bill 
 upon the evidence of the principal, who acknowledged that he had stolen 
 the goods in question, and proposed to call the principal as a witness to 
 establish the guilt of the prisoner. But Le Blanc, J., interposed, and 
 directed an acquittal. He said, he considered the indictment wrong, in 
 stating that the wheat had been stolen by a person unknown ; and 
 asked, how the person who was the principal felon, could be alleged to 
 be unknown to the jurors, when they had him before them, and his 
 name was written on the back of the bill ?(l) Where, however, two 
 
 (h) Rex v. Butteris, a 6 C. & P. 147, Gurney, B. 
 
 (i) Reg. v. Gruncell, b 9 C. & P. 3G5. Mirehouse, S. C, after consulting Patteson, J., who 
 went very carefully through the cases on the subject, and was clearly of opinion the indict- 
 ment was properly framed. 
 
 (./) Thomas's case, 0. B. 1766. 2 East, P. C. c. 16, s. 1G4, p. 781. 
 
 (/c) 2 East, P. C. c. 16, s. 164, p. 781. And see ante, p. 97, that though in an indictment 
 for larceny the goods may be laid to be the property of persons unknown, yet such an alle- 
 gation will be improper if the owner be really known. 
 
 (I) Rex v. Walker, 3 Campb. 264. And S. P. by Dallas, J., Anon. Worcester Lent Ass. 1815. 
 a Eng. Com. Law Reps. xxv. 324. b lb. xxxviii. 257.
 
 242 OF RECEIVING STOLEN GOODS. [BOOK IT. 
 
 bills of indictment had been found by the same grand jury, one of which 
 charged the prisoner with receiving goods stolen by a person unknown, 
 and the other charged him with receiving the same goods stolen by one 
 H. Moreton, and the prisoner was tried on the first-mentioned indict- 
 ment, the counsel for the prosecutor having declined to proceed upon 
 the other against H. Moreton, and objection was taken that the allega- 
 tion of the person who committed the principal felony being unknown to 
 the grand jury was negatived by the other record, the judges (upon the 
 point being reserved for their consideration) held the conviction right. 
 They were of opinion that the finding by the grand jury of the bill im- 
 puting the principal felony to H. Moreton, was no objection to the 
 second indictment, although that indictment stated the principal felony 
 to have been committed by a person to the jurors unknown. (m) 
 *243 *I Q an indictment against a receiver, as an accessory after the fact to 
 
 It is suffi- the felony, where the principal had been convicted, it was decided to be 
 cient to sufficient to state the conviction, without stating- the attainder of the 
 
 st'ltG tllG 
 
 conviction, principal. In a case where it was moved in arrest of judgment that 
 without the indictment was bad because it did not state that the principal was 
 Attainder ° attainted, the point was reserved for the consideration of the judges, 
 o/"theprin- who all held that the indictment was good, upon reference to a great 
 Clp number of precedents, and on a consideration of the statute 1 Anne, 
 
 st. 2, c. 9, s. 1, 2-M In a subsequent case, where the prisoner was 
 charged with knowingly receiving stolen goods, the indictment stated 
 that the goods had been stolen by Isaac Powell, who had been duly 
 convicted of the felony at the great session for Brecon. An examined 
 copy of the record of Powell's conviction was produced, which stated 
 that the prisoner was asked if he was (not is\ guilty; and it did not state 
 that issue was joined, or how the jurors were returned, and the only 
 award against the prisoner was, that he should be in mercy, &c. It was 
 objected that this entry was not sufficiently formal and correct to sup- 
 port the averment that Powell had been duly convicted. But the learned 
 judge ruled, that the judgment was not necessary, and might be rejected; 
 that the conviction was sufficient; that in the common case, where the 
 receiver is tried with the thief, there is no judgment on the thief, before 
 the verdict against the receiver; and that although this record was full 
 of errors, yet an erroneous attainder of the principal was sufficient 
 against the accessory until it was reversed. (o\ And the judges held, 
 that the objections to the copy of the record produced were not ma- 
 terial. (p\ 
 7 Geo. 4, c. The statute 7 Geo. 4, c. 64, s. 11, in order that all accessories maybe 
 64, s. 11, convicted and punished in cases where the principal felon is not at- 
 
 accessories , r . . 
 
 to suffer tainted, enacts, "that if any principal offender shall be in anywise con- 
 
 the same v i c ted of any felony, it shall be lawful to proceed against any accessory, 
 
 ment either before or after the fact, in the same manner as if such principal 
 
 though felon had been attainted thereof, notwithstanding such principal felon 
 
 (m) Rex v. Bush, Mich. T. 1818, Russ. & Ry. 3T2. This case seems to overrule a case 
 mentioned in 2 Stark. Ev. 617, where the prisoner was indicted for a misdemeanor in re- 
 ceiving stolen goods, and it appeared that the principal had been convicted at the same as- 
 sizes, and Thomson, B., directed an acquittal. The statement of the case in Rex v. Caspar.. 
 post, p. 244, seems to show that Littledale, J., adhered to the opinion expressed in Rex v 
 Cordy, ante, p. 98, note (p). C. S. G. 
 
 (n) Hyman's case, 2 Leach. 925. 2 East, P. C. c. 16, s. 164, p. 782. 
 
 (o) Rex v. Baldwin, cor. Thompson, B., Monmouth Sum. Ass. 1812. 3 Campb. 265, MS. 
 Bayley, J. 
 
 (p) Mich. T. 1812, MS. Bayley, J., and Russ. & Ry. 241.
 
 CHAP. XXVII.] OF RECEIVING STOLEN GOODS. 243 
 
 shall die, or be admitted to the benefit of clergy, or pardoned, or other- principals 
 wise delivered before attainder; and every such accessory shall suffer °j l attaillt 
 the same punishment, if he or she be in anywise convicted, as he or she 
 should have suffered if the principal had been attainted." 
 
 The indictment against the receiver of stolen goods, charging him as The indict- 
 accessory, need not allege time and place to the fact of stealing the goods ; ment need 
 
 j> i re e • -n no '' s '- a '' e 
 
 a statement of them to the offence of the receiver will be sufficient. (r) time, place, 
 And in a case where an indictment charged the prisoner by the name of &c - 
 Francis Morris, with receiving stolen goods, "he the said Thomas 
 Morris, knowing, &c," it was holden that the words "the said Thomas 
 Morris"might be rejected as surplusage. (s) 
 
 As the statute makes the offence to consist in receiving the goods *244 
 ^knowing- them to have been stolen, the indictment need not name the The indict- 
 principal, nor allege that he was unknown."}" The second count of an j^u^e 
 indictment charged the prisoner with having received goods stolen by the princi- 
 "a certain evil disposed person," and it was objected that it ought pal ' 
 either to have stated the name of the principal, or else to have stated 
 that he was unknown. Tindal, C. J., "It will do. The offence created 
 by the act of Parliament is not the receiving stolen goods from any par- 
 ticular person, but receiving them knowing them to have been stolen. 
 The question, therefore, will be whether the goods are stolen, and 
 whether the prisoner received them knowing them to have been stolen. 
 The objection is founded on the too particular form of the indictment. 
 The statute makes the receiving the goods, knowing them to have been 
 stolen, toe offence."(Y) _ An indict . 
 
 An indictment for a substantive felony against several prisoners, for merit a- 
 separate receipts of stolen property, which alleges that a certain evil & ainst 
 disposed person stole the property, is good, and it is no objection after ceivers 
 verdict that the prosecutor was not compelled to elect against which of a ^ legin S 
 the prisoners he would proceed. The first count alleged that a certain } )y an ev ii 
 evil disposed person stole one hundred and two pounds weight of gold disposed 
 dust, &c. ; the second count charged Lewin Caspar with feloniously good° n and 
 inciting the said evil disposed person to commit the said felony; the third it is no ob- 
 count, Ellis Caspar the like offence; the fourth count, E. Moses feloni- af^ ^ 
 ously receiving the said one hundred and two pounds' weight of gold verdict 
 dust; the fifth count, I. Isaacs feloniously receiving all the goods stolen; gg a ar s " t g h 
 the sixth count, A. Abrahams feloniously receiving as in the fifth count; receivers 
 the seventh counth, Ellis Caspar feloniously receiving as in the fifth nav *j been 
 count. (u\ Upon the case being opened, it was contended that the ge ther. 
 
 (r) Stott's case, 2 East, P. C. c. 16, s. 144, p. 753, and s. 163, p. 780. 
 
 (s) Morris's case, 1 Leach, 109. And see also Redman's case, 1 Leach, 477, where words 
 which obstructed the sense of an indictment on the statutes 3 W. & M. c. 8, s. 4, and 5 
 Anne, c. 31, s. 5, were rejected as insensible and useless. 
 
 (t) Rex v. Jervis, tt 6 C. & P. 156. 
 
 (u) It struck Littledale, J., on looking over the abstract, that it was incorrect in calling 
 the statement of the offences committed by the several prisoners so many counts ; and he 
 thought that what were called the first seven counts were only one count against a princi- 
 pal and several accessories, assuming that receivers may be considered as accessories in the 
 strict legal sense of the word. And see my note, vol. 1, p. 688. C. S. G. 
 
 f [In an indictment for receiving stolen goods, it is not necessary to state the name of 
 the principal felon, and if stated, it is not necessary it should be proved. State v. Cappenbttrg, 
 2 Strobhart, 273. 
 
 An indictment for receiving stolen goods must charge the defendant with receiving them 
 With intent to deprive the true owner thereof. Hurell v. The State, 5 Humphreys, 68.] 
 a Eng. Com. Law Reps. sxv. 339.
 
 244 OP RECEIVING STOLEN GOODS. [BOOK IV. 
 
 prosecutor ought to elect which of the prisoners he would proceed 
 against, but Littledale, J., in the view he then took of the indictment, 
 that it was a case of principal and accessories, thought the prosecutor 
 was not bound to elect; if he had thought otherwise, he would have 
 directed him to elect. The case then proceeded, and H. Moss was 
 examined as the evil disposed person mentioned in the indictment who 
 stole the gold dust. He was not a person unknown either to the grand 
 jury or the prosecutor, for his name was on the back of the indictment, 
 and there was another indictment found by the grand jury, in which H. 
 Moss was charged as the person who stole the gold dust. Though H. 
 Moss was examined, it was a question for the jury upon the whole evi- 
 dence, whether he or Lewin Caspar stole it. At the close of the case 
 for the prosecution, it was again contended that an election should be 
 made, but Littledale, J., still thought the prosecutor was not bound to 
 elect; other objections were then taken, which (the prisoners having 
 been found guilty) were saved for the consideration of the judges; 
 before whom it was contended, first, that this was an indictment against 
 principal and accessories, and not for a substantive felony; and, there- 
 fore, it ought to have shown that the principal had been convicted or 
 *245 outlawed ; *secondly, that the prosecutor ought to have been compelled 
 to elect against whom he would proceed ; and thirdly, that the indict- 
 ment was bad as to the accessories before the fact, inasmuch as the 
 principal was not named; and, after elaborate argument, the learned 
 judges determined that the statement that an evil disposed person stole, 
 was too uncertain to support the charge against Lewin Caspar as acces- 
 sory before the fact, but that the other prisoners was sufficiently charged 
 with a substantive felony in receiving, and properly convicted. (v\ 
 Separate Where a count charging Hartall and Neal with a burglary and steal- 
 
 ^ e ^ ersof ing sundry articles, and Mole with receiving part of the articles stolen, 
 goods may and Horseman with receiving other part of the articles, was joined with 
 be tried at a count charging Mole and Horseman with the substantive felony of 
 
 the S tl 111 G . • 
 
 time with jointly receiving all the articles, and with counts charging Mole and 
 the prfnoi- Horseman separately with a separate substantive felony, in each sepa- 
 pa e ° n * rately receiving a part of the articles stolen ; and it appeared that Mole 
 and Horseman had received part of the stolen property on different 
 occasions, and quite unconnectedly with one another ; it was objected, 
 that as distinct felonies had been committed by Mole and Horseman, 
 each ought to have been tried separately ; but it was held that all the 
 prisoners might be convicted upon this indictment. (tc) So where two 
 prisoners were indicted for stealing a sheep, and two others, separately 
 in distinct counts, for receiving separate parts of the mutton so stolen, 
 and all the prisoners were found guilty; it was moved in arrest of 
 judgment on behalf of the receivers, on the ground that they were 
 charged with separate felonies, for which they ought to have been in- 
 dicted separately. Parke, B., » The objection forms no ground for a 
 motion in arrest of judgment. If there had been any thing in the point, 
 you ought to have asked me to put the prosecutor to his election, if 
 justice had required the separation, while the trial was going on ; but 
 you can take no advantage of the objection after verdict. "(.rj 
 
 (v) Reg. v. Caspar,* 2 Moo. C. C. R. 101. S. C. 9 C. & P. 289. 
 (w) Reg. v. Hartall, b 7 C. & P. 475, Littledale, J. 
 
 {x) Reg. v. Hayes, 2 M. & Rob. 155. It is clearly settled that the principal md acces- 
 a Eng. Com. Law Reps, xxxviii. 124. b lb. xxxii. 5S9.
 
 CHAP. XXVII.] OF RECEIVING STOLEN GOODS. 245 
 
 Where a principal and a receiver are included in the same indict- Counts 
 ment, the receiver may be charged in one count with receiving the the r^fv- 
 goods from the principal, and in another count with a substantive felony ing from 
 for receiving them from an evil disposed person. The indictment ^ P nnci - 
 charged four prisoners with a burglary and stealing a number of articles, charging a 
 and the fifth prisoner with receiving a part of the stolen goods from the substantive 
 other prisoners, and another count charged the fifth prisoner with a be joined. 
 substantive felony in receiving the same part of the goods from a certain 
 evil disposed person. It was objected that there was a misjoinder of 
 counts ; that the statute allowed the party to be indicted in one way or 
 the other, but not *in both; and that by joining the two counts in one *246 
 indictment, the prisoner was deprived of the benefits of pleading autre- 
 fois acquit, which was given him by the 7 & 8 Geo. 4, c. 29, s. 54, 
 but it was held that there was no misjoinder. And Parke, B., after- 
 wards said, "There was an objection taken on the ground of a misjoin- 
 der of counts, where a count for receiving was added as for a substan- 
 tive felony. I had some doubt on the point; but I have conferred with 
 my brother Bolland, and looked at authorities, and I now find that it is 
 a matter quite in the discretion of the judge. It is not open to a 
 demurrer; neither is it a ground for quashing the indictment. There- 
 fore, whenever it is clear that there is only one offence, and the joinder 
 of the counts cannot prejudice the prisoner, we think that the objection 
 ought not to prevail. We have accordingly directed the officer to draw 
 these indictments in the manner which we understand has prevailed on 
 the circuit, and at the Old Bailey."(y) 
 
 An indictment charging the principal with killing a sheep with intent A count for 
 to steal one of the hind legs of the sheep, and the accessory with receiv- j^g felony 
 ing nine pounds of the mutton so stolen as aforesaid, cannot be supported in receiv- 
 against the accessory, but if such an indictment also contain a count P? ^ -th 
 for a substantive felony in receiving the mutton from a certain evil a count for 
 disposed person, the accessory may be convicted upon it. The first kl . 1 . 1 / n . s , 
 count charged that Wheeler killed a sheep "with intent to steal one of to steal. 
 the hind legs of the said sheep." The second count charged Cowley 
 with receiving nine pounds weight of mutton, part of the goods and 
 chattels "so stolen as aforesaid." The third count charged Cowley 
 with receiving the nine pounds weight of mutton from a certain evil 
 disposed person ; and it was held that the second count could not be 
 supported, as it stated the mutton to have been "so stolen as aforesaid;" 
 and there was no stealing mentioned, but only an intention to steal ; 
 but it was held that Cowley might be convicted on the third count. (2) 
 
 sory may be included in the same indictment and tried together. 1 Hale, 623. Fost. 365. 
 And the felony of the principal is just as distinct from the felony of the accessory, as the 
 felony of one receiver from the felony of another receiver, and there is a stronger ground 
 for the principal and receiver being tried separately, than for separate receivers being tried 
 separately, inasmuch as evidence may be admissible against the principal, which is not 
 admissible against the receiver, Rex v. Turner, R. & M. C. C. R. 347, and the receiver may 
 be prejudiced by the receipt of such evidence. C. S. G. 
 
 {y) Rex v. Austin,* 7 C. & P. 796. 
 
 (z) Rex v. Wheeler, b 7 C. & P. 170. Coleridge, J., who at first doubted, first, whether if 
 the principal were known, his name should not be stated, and if not known whether it 
 should not be charged that he was not known: secondly, that the count was for receiving- 
 stolen goods, and was joined not with a count for stealing but with a count for killing with 
 intent to steal, which seemed to be an offence of a different nature. His lordship, how- 
 ever, left the case to the jury, and the prisoners were found guilty, and afterwards sen- 
 tenced. 
 
 a Eng. Com. Law Reps, xxxii. 740. b lb. 483.
 
 246 OF RECEIVING STOLEN GOODS. [BOOK IV. 
 
 Joinder of A count charging a person with being accessory before the fact may 
 coun s. k e joined with a count charging him with being accessory after the fact 
 to the same felony, and the prosecutor cannot be compelled to elect 
 upon which he will proceed, as the party may be found guilty upon 
 both. (a) And a case has occurred, in which a party was indicted for 
 receiving stolen goods, and also for receiving, harbouring, and comfort- 
 ing the felons, and tbe prisoner was convicted. (6) 
 *247 -A- 11 indictment upon the 7 & 8 Geo. 4, c. 29, s. 55, for receiving goods 
 
 Indictment which have been obtained by false pretences, must allege the *goods 
 re oo<T" ^° nave Deen obtained by false pretences, and that tbe receiver knew 
 obtained by that they were so obtained. The indictment stated that the prisoner 
 false pre- un l aw f u lly did receive of a certain evil disposed person one shoulder of 
 
 L6QC6S 
 
 mutton, of the weight of seven pounds, of the value, &c, of the goods 
 and chattels of T. W., which said goods and chattels had been then 
 lately before to wit, on &c, at &c, unlawfully obtained, taken and car- 
 ried away, she the prisoner, at the time of her so receiving the said 
 goods and chattels, well knowing the said goods and chattels to have 
 been unlawfully obtained, taken and carried away : after a verdict of 
 guilty, it was moved in arrest of judgment that the offence was not 
 brought within the 7 & 8 Geo. 4, c. 29, s. 55, unless it appeared on 
 the indictment that the goods had been obtained by false pretences, 
 and that the receiver knew them to be so unlawfully obtained ; and, 
 upon a case reserved, the judges were unanimously of opinion, that the 
 indictment was bad, on the ground stated in the motion in arrest of 
 judgment. (c\ 
 
 Receiving The bare receiving of stolen goods, knowing them to be stolen, did 
 °ds at not make an accessory at common law. But if a party received goods 
 
 common from the thief to keep for him, knowing them to have been stolen, or if 
 
 aw ' he received goods to facilitate the escape of the thief, or if he know- 
 
 ingly received them upon an agreement to furnish the thief with sup- 
 plies out of them, and accordingly supplied him, this made the party 
 an accessory at common law, for it was relieving and coinforting.(c7) 
 
 Under the jf ^he prisoner receive the property knowing it to be stolen for the 
 purpose of assisting the thief, or for the purpose of concealment, it is a 
 receiving within the statute, although he never gains any profit or ad- 
 vantage by the receipt. Upon an indictment for receiving stolen goods, 
 Taunton, J., told the jury, that " if the prisoner received the property 
 for the mere purpose of concealment, without deriving any profit at all, 
 he is just as much a receiver as if he had purchased it : it is a receiving 
 within the meaning of the statute."(e) So in a similar case, Gurney, 13., 
 told the jury, that " if the receiver takes without any profit or advan- 
 tage, or whether it be for the purpose of profit or not, or merely to 
 assist the thief, it is precisely the same."(/)f 
 
 (a) Reg. v. Blackson, a 8 C. & P. 43, Parke. B., and Patteson. J. 
 
 (b) Anonymous, mentioned by Parke, B., ibid. In many case? it is advisable to insert 
 such counts, as the evidence may fail to prove the receipt* of the stolen property, and yet 
 be sufficient to obtain a conviction for comforting and assisting the felon. See Rex v. 
 Lee, b 6 &. & P. 536, ante, vol. 1, p. 37, and see Reg. v. Caspar, ante, p. 245, where one count 
 charged Ellis Caspar as an accessory before, with inciting the principal, and another as ac- 
 cessory after, in receiving the stolen propertv. 
 
 (c) Reg. v. Wilson, 2 Moo. C. C. R. 52. (d) 1 Hale, 620. 
 
 (e) Rex v. Richardson, 6 C. & P. 335, cor. Gaselee. J., Vaughan, B., and Taunton. J. 
 (/) Rex v. Davis, 6 C. & P. 177. 
 
 f [If a stranger pursuant to an arrangement with one whom he knows lias stolen goods, 
 B Eng. Com. Law Reps, xxxiv. 285. b lb. xxv. 530. <= lb. xxv. 341.
 
 CHAP. XXVII.] OF RECEIVING STOLEN GOODS. 247 
 
 Where, upon an indictment for receiving stolen brass, it appeared 
 that the brass having been stolen by a servant lad, and having been 
 taken from him by another servant in the presence of the prosecutors, it 
 was restored to the lad again in order that he might take it to the house 
 of the prisoner for sale, and the lad took it and sold it to the prisoner ; 
 Coleridge, J., held that the evidence was sufficient to support the in- 
 dictment.^) 
 
 This offence is not punishable with hard labour. (y) 
 
 Upon an indictment for receiving stolen goods there should be some Uponanin- 
 
 evidence to show that the goods were in fact stolen bv some other ner-^ lctmen ! ; 
 
 c J r for receiv- 
 
 son, and recent possession ot the stolen property is not alone sufficient ing there 
 
 to support such an indictment, as such possession is evidence of stealing sbould be 
 
 some Gvi— 
 
 and not of receiving. Upon an indictment for receiving stolen property dence that 
 the evidence was that the property having been discovered after the loss the goods 
 concealed in an old engine-house, several persons kept watch, and one s t i e n by 
 of the prisoners came alone in the night, and took the property out of some other 
 the engine-house, on which he was immediately seized, and dropped the P erson- 
 bag in which the property was, among some standing corn, and shortly 
 afterwards the other prisoners came up, and carried the bag away. 
 After telling the jury that they must be satisfied that all the prisoners 
 knew that there was stolen property in the engine-house, and that they 
 took it away with a common design, Patteson, J., proceeded, "but if 
 you do believe that, then another difficulty arises, for, if you believe 
 that *they all went away together, then the question will arise, whether *248 
 all were not the stealers ? There is no evidence that any other person 
 stole the property; if there had been evidence that some one person 
 had been seen near the house from which the property was taken, or 
 there had been strong suspicions that some one person stole it, then 
 those circumstances would have been evidence that the prisoners re- 
 ceived it, knowing it to have been stolen. But, if you are of opinion, 
 that some other person stole it, and that the prisoners knew of that fact, 
 and planned together in order to get the property away, they may be 
 convicted of receiving. I confess it appears to me, on this evidence, 
 rather dangerous to convict them for receiving. It is evidence on 
 which persons are constantly convicted of stealing. The question is, 
 whether you are satisfied that they were the stealers or the re- 
 ceivers !"(/) 
 
 But a statement by the prisoner that he received the stolen property Butastate- 
 from another person is sufficient. On an indictment for receiving a p r ^ *ng r the 
 stolen shirt, it appeared doubtful whether the principal felony had not having 
 been committed by several persons, and the only evidence against the received is 
 prisoner was the possession of the shirt, and a statement made by her 
 that she had received it from another person; it was objected that there 
 was no evidence of receiving ; Littledale, J., " In a case on the early 
 part of this circuit, the only evidence was recent possession, and the 
 counsel for the prosecution urged that that was evidence of receiving, 
 
 (/) Reg. v. Lyons, a 1 C. & Mars. 217. 
 
 (g) Reg. v. Silversides, T. T. 1842. 11 Law J. Mag. C. 82. 
 
 (/) Rex v. Densley, b 6 C. & P. 399. 
 
 invite an interview with the owner, and afterwards receive the goods under mere colour of 
 an agency but really to make a profit out of the larceny, he is within the statute against re- 
 ceiving stolen goods. The People v. Wiley, 3 Hill, 194.] 
 
 ft Eng. Com. Law Reps. xli. 122. b lb. xxv. 457.
 
 eumstan- 
 ces. 
 
 248 OF RECEIVING STOLEN GOODS. [BOOK IV. 
 
 but I held that it was not. I hold it essential to prove that the pro- 
 perty was in the possession of some one else before it came to the pri- 
 soner ; here the prisoner said some one brought the shirt to her ; that 
 Other cir- i s an admission that it had been in the possession of some one else. 
 That is evidence of receiving."^) And where a mother, her son, and 
 a third party, were indicted for sheep-stealing, and the only evidence 
 against the mother was, that the house in which the carcase of the 
 sheep was found, was her house, but there was no female footsteps seen 
 near the spot from which the sheep was taken, but only male footsteps, 
 which were traced to the son and the other prisoner ; and there was 
 distinct evidence affecting the son and the other prisoner, and the son 
 lived in the same house with his mother : Parke, J., told the jury that 
 there was no evidence to put the mother on her defence for stealing, 
 whatever evidence there might be of receiving.^) 
 If the in- If an indictment allege that the goods was received from the thief, 
 dictment jj. mvLS t L e p r0 ved that they were received from the thief, and if it 
 the goods appear that the thief gave them to a person, from whom the prisoner 
 were re- received them, it is a fatal variance. The prisoner was indicted for 
 articular receiving stolen goods, and the indictment alleged that he received them 
 person it from the person who stole them, and that the person who stole them was 
 provedthat a certa i n ill-disposed person to the jurors unknown; it was proved that 
 they were the person who stole the property handed it to J. S., and that J. S. de- 
 received ]i vere( j it to the prisoner, and Parke, J., held that on this indictment it 
 
 from some r 7 • • i i 
 
 such per- was necessary to prove that the prisoner received the property from the 
 ?nn - person who actually stole, and he would not allow it to go to the jury to 
 
 say whether the person from whom he was proved to have received it 
 *249 was an *innocent agent or not of the thief.(t') So where an indictment 
 charged Woolford with stealing a gelding, and Lewis with receiving it, 
 knowing it to have been " so feloniously stolen as aforesaid," and Wool- 
 ford was acquitted ; Patteson, J., held that Lewis could not be convict- 
 ed upon this indictment, and that he might be tried on another indict- 
 ment, charging him with having received the gelding, knowing it to 
 have been stolen by some person unkuown.(_y') 
 But if there But where some persons are indicted as principals and some as re- 
 foi^iTsub- cervers j an< i tne indictment contains, as it may,(/t) separate counts 
 stantive against each receiver for a substantive felony, although all the princi- 
 felony the p a j g are acquitted, the receivers may be convicted and sentenced. An 
 may be con- indictment charged three prisoners with stealing a carpet bag and a 
 victed > , number of articles therein contained, and two other prisoners with re- 
 principal ceiving separately certain of the goods so stolen as aforesaid, and there 
 be acquit- we re two other counts, each of them charging one of the two last-men- 
 tioned prisoners with a substantive felony in separately receiving por- 
 tions of the same goods, and the jury acquitted the three principals, but 
 found the receivers guilty ; it was moved in arrest of judgment, that 
 the principals having been acquitted, no judgment could be given 
 against the receivers: that a larceny committed by another person 
 could not be given in evidence upon this indictment, and although a 
 count for a substantive felony might be inserted, such count was only 
 
 (ff) Rex v. Sarah Cordy, Gloucester Lent Ass. 1832, MS. C. S. G. 
 
 (h) Arundel's case, 1 Lew. 115. 
 
 (i) Elsworthv's case. 1 Lew. 117. 
 
 (/) Rex v. Woolford, 1 M. & Rob. 384. See Res v. Austin, ante. p. 246.
 
 CHAP. XXVII.] OF RECEIVING STOLEN GOODS. 249 
 
 introduced to prevent an acquittal, if it turned out that the property 
 was received from some other person, hut still the principal must be 
 proved to have committed the felony; hut the objection was overruled, 
 and judgment given against the receivers. (/) 
 
 If two prisoners are charged jointly with receiving stolen goods, a Upon a 
 joint act of receiving must be proved ; and proof that one received in charge of 
 the absence of the other, and afterwards delivered to him, will not suf-cefringa 
 fice. Successive receivers are all separate receivers, and all punishable J oint re - 
 as such. Two prisoners, John and Mary Messingham, were convicted be^rored* 
 on a joint indictment for receiving fifty pounds weight of pork. • The 
 pork had been stolen by some person unknown, and both prisoners 
 knew it to have been stolen ; it was found in the cottage of Mary M. 
 in which John M., her son, lived with her. The voluntary statements 
 of the prisoners showed that John received the pork in the absence of 
 Mary, and took it into the cottage when she was not at home, and that 
 Mary afterwards salted it. It was objected that Mary could not be 
 legally convicted jointly with John upon this indictment, because the 
 oifence of John was complete before Mary took any part in the transac- 
 tion ; and, upon a case reserved, the judges were unanimous that, on a 
 joint charge, it was necessary to prove a joint receipt ; and as the mo- 
 ther was absent when the son received, it was a separate receipt by 
 hiin.(m) 
 
 But it has since been holden that where a person knowing goods to Servant re- 
 have been stolen, directs his servant to receive them into his premises, ?r v d ° s hj 
 and the servant in pursuance of that direction, afterwards receives them tion of bis 
 in the master's absence, the servant knowing that they had been stolen, master - 
 they may be jointly indicted for receiving them. Upon an indictment 
 against two principals for receiving goods, and *against Miller and *250 
 Holborne for receiving the goods knowing them to have been stolen, it 
 appeared that the principals brought the goods to Holborne's ware- 
 house, and left them with Miller, who after some hesitation, accepted 
 them • Holborne was at this time absent ; but it was clear on the facts 
 that shortly after he came home, he was aware of the goods having been 
 left, and there was strong ground for suspecting that he knew that they 
 had been stolen ; it was also clear that his servant Miller, soon after 
 the goods were left with him, was aware they had been unlawfully pro- 
 cured, as he w r as found disguising the barrels in which they were con- 
 tained ; it was submitted for Holborne, that as the goods were in the 
 first instance received by Miller in Holborne's absence, the indictment, 
 alleging a joint act of receiving could not be supported, even though 
 the jury thought that Holborne, when he came in, assented to the un- 
 lawful act of his servant, and the preceding case was cited; for the pro- 
 secution it was contended that there was some evidence to go to the 
 jury, that Holborne, even before he went out, must have been aware 
 that the goods were about to be left at the warehouse, and must have 
 given orders for their reception, and if Miller took them in, in pur- 
 suance of previous orders from Holborne, the prisoners might be con- 
 victed of a joint receiving. Maule, J., thought there was sufficient 
 evidence of this nature and told the jury that if they were satisfied that 
 Holborne had directed the goods to be taken into the warehouse, know- 
 
 (l) Reg. v. Pulnam, a 9 C. & P. 280, Gurney, B. 
 (m) Rex v. Messingham, R. & M. C. C. R. 257. 
 
 a Eng. Com. Law Reps, xxxviii. 12L
 
 250 OF RECEIVING STOLEN GOODS. [BOOK IV. 
 
 ing them to have been stolen, and that Miller in pursuance of that 
 direction, had actually received them into the warehouse, he also know- 
 ing them to have been stolen, they might properly convict both of the 
 prisoners, (n) 
 
 Where husband and wife are jointly indicted for receiving stolen 
 
 goods, and there is no evidence to show that the wife was present, or of 
 
 her conduct when they were received, she ought not to be convicted if 
 
 the husband is.(o) 
 
 The thing It is sufficient if the thing received be the same in fact as that which 
 
 received wag s ^ | eQ) though passing under a new denomination; so that where 
 
 stated un- the indictment charged the principal with stealing a live sheep, and the 
 
 der a dif- accessor y with receiving " twenty pounds of mutton, part of the goods," 
 
 nomina- &c, the conviction was holden to be proper.(p) 
 
 tion from J3 u t where an indictment charged one prisoner with stealing six pro- 
 ' missory notes of 100/. each, and the other prisoner with receiving the 
 stolen* 3 S ° sa ^ promissory notes, knowing them to have been stolen, and the only 
 goods. evidence against the receiver was that at one time he showed a number 
 of 20/. notes, which he said were part of the prosecutor's money, and 
 at another time he threw down a sovereign, saying, " I had a hundred 
 sovereigns of the captain's money, and this is one of them :" it was 
 held that if the prisoner never received either of the 100/. notes into his 
 possession, he must be acquitted upon that indictment. He was not here 
 charged with receiving the proceeds ; this indictment imputed that he 
 received " the said promissory notes ;" now the only notes mentioned 
 in the indictment were the notes of 100/. each. (q\ Where some priso- 
 *251 ners were charged with feloniously *" receiving, harbouring, comfort- 
 ing, assisting, and maintaining" other prisoners, and the prisoners who 
 were charged with harbouring, &c, had been found in possession of 
 various sums of money derived from the disposal of the property stolen, 
 but it did not appear, although they were in frequent communication 
 with the principals, that they had received any of the stolen property 
 itself, or done any act to assist the principals personally, Law, R., after 
 consulting Littledale and Patteson, Js., said, that " in their opinion the 
 proof amounts to evidence of an imperfect receiving, and not to the 
 offence charged in the indictment.'Yr) 
 
 The averment of the guilty knowledge, which is the gist of the 
 offence, should be correctly made ; as where an indictment against a re- 
 ceiver who was tried with the principal, contained a defective statement, 
 that the receiver knew the goods to have stolen (omitting the word 
 "been,") the judges thought the indictment bad, this being the gist of 
 the offence; but they afterwards took time to consider.^) 
 
 (n) Reg. v. Parr, 2 M. & Rob. 346. 
 
 (o) Rex v. Archer, R. & M. C. C. R. 143, ante, vol. 1, p. 19. See note (g), ibid. 
 
 (p) Rex v. Cowell and Green, 1*796. 2 East, P. C. c. 16, s. 48, p. 617. 
 
 \q) Rex v. "Walkley, a 4 C. & P. 132. Taddy, Serjt. It is conceived that no indictment 
 could be framed on the 7 & 8 Geo. 4, c. 29, s. 54, for receiving the proceeds of stolen pro- 
 perty. That section only applies to receiving the chattel stolen, knowing that chattel to 
 have been stolen. In the case of gold, silver, &c, if it were melted after the stealing, an in- 
 dictment for receiving it might be supported, because it would still be the sa?ne chattel, 
 though altered by the melting: but where a 100Z. note is changed for other notes, the iden- 
 tical chattel is gone, and a person might as well be indicted for receiving the money for 
 which a stolen horse was sold, as for receiving the proceeds of a stolen note. C. S. G. 
 
 (r) Reg. v. Chappie,* 9 C. & P. 355. 
 
 («) Rex v. Kernon, Hil. T. 1788, MS. Bayley, J., but see Redman's case, 1 Leach. 477. 
 contra. 
 
 » Eng. Com. Law Reps. xix. 308. b lb. xxxviii. 151.
 
 CHAP. XXVII.] OF RECEIVING STOLEN GOODS. 251 
 
 The necessary evidence of the offender knowing the goods which he Evidence 
 has received to have been originally stolen, may be collected from the kn.fwi'If 
 circumstances of the particular case ; and it is said, that the buying 
 goods at an under value is presumptive evidence that the buyer knew 
 they were stolen. (A 
 
 Upon an indictment for receiving stolen goods, evidence may be given Evidence 
 of different receipts of goods stolen from the same person in order to of °* her 
 show guilty knowledge in the receiving at least of such receipts as were stolen pro- 
 prior to the one charged in the indictment ; but where, on an indictment pert 7 **. 
 for receiving several articles, it appears that they were received at dif- to provV ° 
 ferent times, the prosecutor must elect on which receipt he will pro- s uilt y 
 ceed. Upon an indictment against a principal and receiver, the evi- knowled S e - 
 dence against the receiver was that many of the goods were found in her 
 possession; others pledged by herself, and others by her direction, with 
 different pawnbrokers at different times for a period of between four and 
 five months, and other parcels were proved to have come into her pos- 
 session at several and distinct times, and she admitted that all these 
 things had been given to her by the principal ; and it was submitted 
 that the prosecutor should elect what articles he meant to rely upon, 
 and Gaselee, J., decided that as there was evidence that some of the 
 things came at different times, these were several distinct acts of receiv- 
 ing, and that the prosecutor must elect what act of receiving he relied 
 upon to support the felonious receiving. The prosecutor then elected to 
 go upon the receiving of two particular pieces of silk. It was then ob- 
 jected that evidence ought not to be allowed of the receiver having 
 pledged or disposed of, or having in her possession the other articles of 
 stolen property, in order to raise an inference of guilty knowledge ; but 
 as all the property had been stolen from the same persons, and had all 
 *been brought to her by the principal, Gaselee, J., thought it was ad- *252 
 missible, and proper to be left to the jury, as an ingredient to make out 
 the guilty knowledge; and he told the jury that they might take into 
 their consideration the circumstances of her having the various articles 
 of stolen property in her possession, and pledging or otherwise disposing 
 of them at various times, as an ingredient in coming to a determination 
 whether, when she received the two pieces of silk, she knew them or 
 either of them to have been stolen. The jury found the prisoner guilty ; 
 and, upon a case reserved, the judges were unanimously of opinion that 
 evidence of other acts of receiving was properly admitted against the 
 receiver, and the conviction was therefore right.(w) So where upon an 
 indictment for receiving stolen goods, it was proposed to prove other 
 receipt of stolen articles, besides those laid in the indictment; Guruey, 
 B., held that any receipts that were before those laid in the indictment 
 were evidence, and that strictly speaking the receiving another article 
 the subject of another indictment was admissible.^?;) In the same case 
 it was held that evidence might be given not only of the finding of the 
 
 (<) 1 Hale, 619. 2 East, P. C. c. 16, s. 153, p. 765. 
 
 (u) Rex v. Dunn, R. & M. C. C. R. 146. The marginal note seems to limit the evidence 
 of all other receipts to such as were "prior to that on which the prosecutor elects to 
 proceed ;" but no such point seems to have been raised in the case : but see the next case. 
 C. S. G. 
 
 {v) Rex v. Davis,* 6 C. & P. 177, MSS. C. S. G. Gurney, B., thought if the receipt 
 charged in the other indictment were given in evidence on this, that, as a matter of candour, 
 the other indictment ought to be waived. 
 
 a Eng. Com. Law. Reps. xxv. 341. 
 
 Vol. ii.— 17
 
 252 
 
 OF RECEIVING STOLEN GOODS. 
 
 [book rv. 
 
 Advertise- 
 ment in a 
 paper. 
 
 o-oods mentioned in the indictment in the house of the prisoner, but also 
 of the finding of many other goods marked with the mark of the prose- 
 cutor, with a view to the scienter.(w) So upon an indictment for re- 
 ceiving stolen tin, it was held that evidence might be given that when 
 the constable went to search the prisoner's warehouse for stolen iron, he 
 saw the prisoner endeavouring to conceal some brass in some sand, and 
 that after he was taken away in custody, his wife carried some tin under 
 a cloak from a warehouse on the premises. (a:) In the same case it was 
 held that what the prisoner said to the constable not only relating to 
 the tin which was stolen, and for which the constable was not searching, 
 but also relating to the iron for which he was searching, was admissible 
 in evidence. (?/) 
 
 Where, upon an indictment for receiving stolen reissuable notes, the 
 prisoner's counsel in cross-examination attempted to show that no means 
 has been taken to inform the public of the number and particulars of 
 the notes, and the counsel for the prosecution then proposed to read an 
 advertisement from the British Traveller, it was objected to, unless it 
 could be shown that it had come to the knowledge of the prisoner ; but 
 Gaselee, J., held that as by the cross-examination it was attempted to 
 be shown that no means had been taken to apprise the public that any 
 notes had been stolen, or guard them against taking them, it was admis- 
 sible : and, upon a case reserved, the judges were clearly of opinion, 
 that under the particular circumstances of the case, it was properly re- 
 ceived.^) 
 
 In those cases where it was necessary to prove that the principal has 
 been duly convicted, we have seen that it appears to have been ruled to 
 be sufficient to give in evidence the examined copy of a *record, show- 
 ing that he was found guilty of the felony before a court of competent 
 jurisdiction, though the proceedings be informal, and the judgment 
 erroneous. (a) 
 
 In prosecutions for the misdemeanor in receiving stolen goods, on the 
 repealed statute 22 Geo. 3, c. 5^, it was settled that the principal felon, 
 though not convicted or pardoned, was a competent witness against the 
 receiver. (&) 
 
 In cases where the principal and receiver are joined in the same in- 
 dictment, and tried together, there is no doubt that the receiver may 
 enter into the full defence of the principal, and avail himself of every 
 matter of fact and every point of law tending to his acquittal ; and in 
 cases where the principal has been previously convicted, though the 
 record of the conviction will be sufficient presumptive evidence that 
 everything in the former proceeding was rightly and properly trans- 
 acted, yet according to great authority, it is competent to the receiver 
 to controvert the guilt of the principal, and to show that the offence of 
 which he was convicted, did not amount to felony in him, or not to that 
 species of felony with which he was charged. (c) 
 
 Evidence 
 of the con- 
 viction of 
 the princi- 
 pal. 
 
 *253 
 
 Principal 
 felon a 
 witness. 
 
 The recei- 
 ver may 
 controvert 
 the guilt 
 of the 
 principal. 
 
 (x) Reg. v. Mansfield,* 2 C. & M. 140. 
 (z) Rex v. Vyse, R. & M. C. C. R. 218. 
 Rex v. Baldwin. 3 Campb. 265. 
 
 Coleridge, J. 
 See this case, ante, p. 76. 
 
 (re) Ibid. 
 
 (y) Ibid. 
 
 (a) Ante, p. 243 
 
 (6) Haslam's ease, 0. B. 1786, and before the twelve judges, 1 Leach, 418. 
 c. 16, s. 166, p. 782. Patram's case, cor. Grose, J., Bridgewater Sum. Ass. 17 
 419, 'note (a). 2 East, P. C. ibid. 
 
 (c) Fost. 365. Smith's case, 0. B. 1783, 1 Leach, 288. Rex v. Blick. b 4 C. & P. 377, 
 where Bosanquet, J., thought that the record of the principal's conviction on his own con- 
 a Eng. Com. Law Reps. xli. 81. b lb. six. 429. 
 
 2 East, P. C. 
 87. 1 Leach.
 
 CHAP. XXVIII.] OF TAKING A REWARD FOR HELPING, ETC. 253 
 
 Where several prisoners are jointly indicted for receiving stolen goods, 
 and one of them convicted and the others acquitted, and one of the 
 prisoners who was acquitted is afterwards separately indicted for re- 
 ceiving the same goods, a plea of autrefois acquit on the former indict- 
 ment is good, if it be demurred to on the part of the prosecution. (d) 
 
 As to the restitution of the stolen property, upon the conviction of the Restitution 
 receiver, the 7 and 8 Geo. 4, c. 20, s. 57, in order to encourage the of stolen 
 
 . a a. j i .,, ° property. 
 
 prosecution of offenders, enacts, « that it any person guilty of* such The owner 
 felony or misdemeanor as aforesaid, in stealing, taking, obtaining, r ofsto,en 
 converting, or in knowingly receiving any chattel, money, valuable prosecut- 
 security, or other property whatsoever, shall be indicted for any such in s t nief or 
 offence, by or on behalf of the owner of the property, or his executor concretion' 
 or administrator, and convicted thereof, in such case the property shall shall have 
 be restored to the owner or his representative ; and the court before whom r ® 8 ' 1 . tutlon 
 any such person shall be convicted, shall have power to award from perty. Ex- 
 time to time writs of restitution for the said property, or to order the ce P tl0E - 
 restitution thereof in a summary manner : provided always, that if it 
 shall appear, before any award or order made, that any valuable se- 
 curity shall have been bond fide paid or discharged by some person or 
 body corporate liable to the payment thereof, or being a negotiable 
 instrument shall have been bond fide taken or received by transfer or 
 delivery, by some person or body corporate, for a just and valuable con- 
 sideration, without any notice or without any reasonable cause to sus- 
 pect that the same had, by any felony or misdemeanor, been stolen, 
 taken, obtained, or converted as aforesaid, in such case the court shall 
 not award or order the restitution of such security.'Ve) 
 
 ^CHAPTER THE TWENTY-EIGHTH. *254 
 
 OF TAKING A REWARD FOR HELPING TO THE DISCOVERY OF STOLEN 
 
 PROPERTY. 
 
 An offence nearly connected with that of receiving stolen goods, is Offence of 
 
 that of taking a reward to help any person to goods which have been takin g a 
 ° ir * * c reward to 
 
 stolen. help to 
 
 The 7 & 8 Geo. 4, c. 29, s. 58, enacts, « that every person who shall stolen 
 corruptly take any money or reward, directly or indirectly, under pre- f & 8 Geo. 
 tence or upon account of helping any person to any chattel, money or 4, c. 29, s. 
 valuable security, or other property whatsoever, which shall by any a j ew ^ n8 
 felony or misdemeanor have been stolen, taken, obtained, or converted for helping 
 as aforesaid, shall (unless he cause the offender to be apprehended and to re ; 
 
 \ . -i i • • covery of 
 
 brought to trial for the same) be guilty of felony, and being convicted stolen pro- 
 
 thereof, shall be liable to the discretion of the court, to be transported P e! ; tv Wlth - 
 iii i»/» ii ol " ,jnn g- 
 
 beyond the seas for life, or for any term not less than seven years, or to - ms the 
 
 be imprisoned for any term not exceeding four years, and if a male, to offender to 
 
 be once, twice, or thrice publicly or privately whipped (if the court shall m isdemca- 
 
 BO think fit), in addition to such imprisonment.'Va) nor « 
 
 fession -was prima facie evidence against the accessory: but see Rex v. Turner, ante, vol. 1, 
 p. 42. 
 
 (d) Rex v. Dann, R. & M. C. C. R. 424. See this case, ante, vol. 1, p. 834. 
 
 (e) Ante, p. 131. 
 
 («) As to principals in the second degree and accessories, see sec. Gl, as to hard labour 
 and solitary confinement, see sec. 4, and the 1 Vict. c. 90, s. 5, ante, p. 128.
 
 254 OF TAKING A REWARD FOR HELPING, ETC. [BOOK IV. 
 
 As to the In a case upon a statute relating to the same subject, 4 Geo. 1, c. 11. 
 that The 11 now re P ea l e d D y the 7 & 8 Geo. 4, c. 27, it was considered proper to aver, 
 offender that the defendant had not apprehended, or caused to he apprehended, 
 
 ••had not ^ p r i nc jp a ] & c such reservation beinsr in the enacting clause, and part 
 apprehen- . . ° P • • » 
 
 ded, nor of the description of the offence. (&) In a case where the principal felon 
 caused to was d eac l an d } ia( j no t been convicted of the offence, it was objected 
 hended,the that the person receiving the reward to help to the stolen goods could not 
 principal." be convicted. The point was reserved as one of great importance, and 
 of the first impression, for the consideration of the judges : but their 
 As to the opinion was never publicly communicated, though it was presumed, from 
 conviction ^g prisoner being discharged, after remaining some time in gaol, that 
 cipul felon, the objection prevailed. (c) With respect, however, to another objec- 
 tion, that the principal felon had not been convicted of the offence, it 
 was well observed that this could not have been the ground of the pri- 
 soner's discharge, inasmuch as the statute, by the very terms of it, pre- 
 cluded the supposition of a conviction of the principal being a necessary 
 preliminary to the trial and punishment of the offender ; for it stated 
 that the offender should be guilty of felony, &c, "unless he did appre- 
 hend, or cause to be apprehended, the felon who stole the goods, and 
 cause such felon to be brought to his trial for the same, and give evidence 
 against him." And it was therefore suggested, that the true ground 
 of the doubt was, that by the death of the principal, the stipulated con- 
 dition had become impossible to be performed without any default of 
 the defendant. («A 
 *255 *There is also a case upon the repealed statute, where the principal 
 The princi- felon was not only not convicted, but was admitted as a witness against 
 may be a tne P art y indicated for taking a reward ; namely, the case of the notorious 
 witness Jonathan Wild, whose extensive traffic in the taking of such rewards is 
 
 against the g^ ^ Q ] iave been the occasion of the passing: of this clause in the re- 
 party in- , . . 
 dieted for pealed statute. (e) The prisoner was first indicted on the 10 & 11 Wm. 
 
 taking the 3^ c 23, (now repealed) for privately stealing a box of lace in a shop, 
 and acquitted upon its appearing from the testimony of one Kelly, who 
 had actually stolen the box, and who was admitted as a witness for the 
 crown, that the prisoner was not in the shop at the time, but only waited 
 at the corner of the street to receive the goods ; but immediately upon 
 this acquittal he was again arraigned, tried, and convicted, on the statute 
 in question, 4 Geo. 1, c. 11, s. 4, for receiving ten guineas from the owner 
 of the shop as a reward for helping her to the box of lace so stolen by 
 Kelly; and Kelly was again examined as a witness on the part of the 
 crown on this indictment^/) 
 
 In a late case it was held to be an offence within this act of 4 Geo. 1, 
 c. 11, s. 4, (now repealed,) to take money under pretence of helping a 
 man to goods stolen from him, though the prisoner had no acquaintance 
 with the felon, and did not pretend that he had, and though he had no 
 power to apprehend the felon, and though the goods were never re- 
 stored, and the prisoner had no power to restore them.(y) 
 
 i b) 2 East, P. C. c. 1G, s. 155. p. 771. 
 
 (c) Drinkwater's case, 1740. 1 Leach, 15. 2 East. I*. C. c. 1G, s. 155, p. 7 To. And see 
 Wild's case on the statute 5 Anne, c. 31, s. G. 2 East. P. C. c. 16, s. 142. p. 74G. 
 
 (d) 2 East, P. C. c. 16, s. 155, p. 770. (e) 4 Bla. Com. 132. 
 
 (/) Wild's (Jonathan) case, 1725, 1 Leach. 17, note (a). 2 East. P. 0. c. 16. s. 156, p. 
 770. 4 Bla. Com. 132. The prisoner was executed upon this conviction. Sec also as to 
 the point of the principal felon being a witness, ante, Haslam's case. p. 253. 
 
 (g) Res r. Ledbitter, R. & M. C. C. R. 76.
 
 OHAP. XXIX.] OF UNLAWFULLY RECEIVING, ETC. 255 
 
 As a further means of putting a stop to this pernicious traffic in sto- 
 len goods, it is enacted by the 7 & 8 Geo. 4, c. 29, s. 59, " that if any person 
 shall publicly advertise a reward for the return of any property what- 
 soever, which shall have been stolen or lost, and shall in such advertise- 
 ment use any words purporting that no questions will be asked, or shall 
 make use of any words in any public advertisement purporting that a 
 reward will be given or paid for any property which shall have been 
 stolen or lost, without seizing or making any inquiry after the person 
 producing such property, or shall promise or offer in any public adver- 
 tisement to return *to any pawnbroker or other person who may have *256 
 bought, or advanced money by way of loan upon any property stolen or 
 lost, the money so paid or advanced, or any other sum of money or re- 
 ward for the return of such property, or if any person shall print or pub- 
 lish any such advertisement, in any of the above cases, every such per- 
 son shall forfeit the sum of fifty pounds for every such offence, to any 
 person who will sue for the same by action of debt, to be recovered with 
 full costs of suit." 
 
 *CHAPTER THE TWENTY-NINTH. *257 
 
 OF UNLAWFULLY RECEIVING OR HAVING POSSESSION OF PUBLIC 
 
 STORES. 
 
 The several statutes relating to the offences mentioned in the title to 
 this chapter will be set forth, in the first instance in the order in which 
 they were passed ; and the few decided cases which have occurred upon 
 their construction will be subsequently noticed. 
 
 The statute 9 & 10 W. 3, c. 44, s. l,(a) recites, "that notwithstand- 9&10 Wm. 
 ing divers good laws made and enacted for the preventing of the steal- D^-fV'r' 
 ing and embezzlement of his majesty's stores of war, and naval stores, the fre- 
 those frauds, thefts, and embezzlements were frequently practised, and q«ent em-^ 
 the convicting of such offenders was rendered difficult and impractica- f stores 
 ble, by reason that it rarely happened that direct proof could be made and the 
 of such offenders' immediate taking, embezzling, or carrying away such ousting 
 stores from the places for keeping and preserving the same, but only offenders. 
 that such goods were marked with the king's mark, and found in the 
 custody and possession of the said person accused for stealing or em- 
 bezzling; the same :" and it then enacts, "that it shall not be lawful to ^ na< ;* m 1 en , t , 
 & . . that it shall 
 
 or for any person or persons whatsoever, other than persons authorized not be law- 
 
 by contracting with his majesty's principal officers or commissioners of ful * or P er ~ 
 the navy, ordnance or victualling office for his majesty's use, to make cept those 
 any stores of war, naval stores whatsoever, with the marks usually authorized) 
 used to and marked upon his majesty's said warlike and naval or ord- an „ Stores 
 nance stores ; that is to say, any cordage three inches and upwards, with the 
 wrought with a white thread laid the contrary way, or any similar cor-™*^ 8 ^ 6 
 dage, to wit, from three inches downwards, with a twine in lieu of a King's 
 white thread, laid to the contrary way as aforesaid, or any canvass, stores > . 
 wrought or unwrought, with a blue streak in the middle, or any other f forfeit- 
 stores with the broad arrow by stamp, brand, or otherwise, upon pain in £* he 
 
 , J i i ii i ij goods, and 
 
 that every such person or persons, who shall make such goods SO20OL. Ac. 
 (a) Made a public act by 1 Geo. 1, St. 2, c. 25, ?. 14.
 
 257 OF UNLAWFULLY RECEIVING OR HAVING [BOOK IV. 
 
 marked as aforesaid, not being a contractor with his majesty's princi- 
 pal officers or commissioners of the navy, ordnance or victuallers, for 
 his majesty's rise, or employed by such contractor for that purpose as 
 aforesaid, shall for every such offence forfeit such goods, and the sum 
 of two hundred pounds, together with costs of suit ;" one moiety thereof 
 to his majesty, and the other moiety to the informer, to be recovered 
 by action of debt, &c, in any court of record at Westminster. 
 *258 And the second section enacts, "that such person or persons, in whose 
 
 Sec. 2. custody, possession, or keeping such goods or stores marked as afore- 
 wJ^TboT said shall be found, not being employed as aforesaid, *and such person 
 session or persons who shall conceal such goods or stores marked as aforesaid, 
 stores so |j e i n g indicted and convicted of such concealment, or of the having such 
 shall be goods found in his custody, possession, or keeping, shall forfeit such 
 found, and goods, and the sum of two hundred pounds, together with the cost of 
 concealing prosecution, one moiety to his majesty, and the other moiety to the in- 
 such stores, former, to be recovered as aforesaid, and shall also suffer imprisonment, 
 the goods 1 unt il payment and performance of the said forfeiture, unless such person 
 and 200/., shall upon his trial, produce a certificate under the hand of three or 
 Ac, and :>e more f j,j g majesty's principal officers or commissioners of the navy, 
 
 imprisoned • 11 ■ • • 
 
 till pay- ordnance, or victuallers, expressing the numbers, quantities, or weights 
 ment. f sucn goods, as he or she shall then be indicted for, and the occasion 
 gee. 4. and reason of such goods coming to his or her hands or possession." 
 Provision 33ut the statute provides, that the principal officers or commissioners 
 commis- 0I> tne navv > & c -> ma J se ^ aQ d dispose of any of the stores so marked, 
 sioncrs of as they might have done before ; and that persons buying such stores of 
 &e "may' tDe principal officers, &c, or by their order, may keep the same without 
 sell stores; incurring any penalty, upon producing a certificate or certificates under 
 and buyers ^ e nan( j anc j sea i f three or more of the said principal officers, &c, 
 
 secured r x > > 
 
 from the that they bought such goods from them, or from persons who did buy 
 penalty by th e ga j,j s t res f rom the said principal officers, &c, at any time before 
 cate. such stores were found in their custody. (J) And also, that the act shall 
 
 not hinder any of the principal officers, &c, or any chief commander of 
 The act not an y 0I> n ^ s majesty's ships at sea, to lend any stores to any merchant 
 to hinder ship or vessel in distress, or otherwise, as might lawfully be done be- 
 Ac^from f° re tne ac * : * n case * ne g°°ds so lent be restored with all possible con- 
 lending veniency, and provided the persons borrowing have such certificate as 
 stores to beforernentioned, which the said principal officers, &c, or commander- 
 distress in-chief are required to give to the party borrowing.(c) 
 
 tificato Ac" The statute 9 Ge0 - *> c - 8 > s - 3 > recites tlie provision of the 9 & 10 
 ' Win. 3, c. 41, s. 2, and that it was necessary to give power to mitigate 
 9 Geo. l,o. the penalties therein mentioned, and to explain and amend the act: and 
 Persons then enacts "that if any person or persons shall be lawfully convicted 
 having or of having in his, her, or their custody, any timber, thick stuff, or plank, 
 morfced 11 ' 8 mai "ked with the broad arrow, by stamp, brand, or otherwise, or of 
 timber, Ac, concealing any timber, thick stuff or plauk so marked, every such 
 to suffer as p ers0 n so offending shall suffer, forfeit and pay, as for having, keeping, 
 
 (b) Sec. 4. As to the form of the certificate the section further enacts, " in which cer- 
 tiorate or certificates the quantities of such stores shall be expressed, and the time when 
 and where bought of the said commissioners." And it empowers the commissioners or any 
 three of them, from time to time, to give to persons who shall desire the same, and shall 
 have bought any of the said stores, within thirty days after the sale and delivery of the 
 stores. 
 
 (c) Sec. 8. The 1 Geo. 1, st. 2, c. 25, here introduced in the last edition is repealed by the 
 2 Win. 4, c. 40, s. 35, except so much as continues the 11 Wm. 3. c. 7, and 5 Auue, c. 34. 
 C. S. G.
 
 CHAP. XXIX.] POSSESSION OF PUBLIC STORES. 258 
 
 or concealing any other warlike, naval, or ordnance stores, contrary to in case of 
 
 Said act." having or 
 
 concealing 
 
 The fourth section provides, that it shall be lawful "for any judge, other 
 justice or justices, before whom any offender or offenders shall be con- stores - 
 victcd of any of the crimes or offences before recited, enacted or men- g ec 4 
 tioned in this act, to mitigate the penalty of the same, as he or they gives a 
 shall see cause, and to commit the offender or ^offenders, so convicted, P°^ er t0 
 to the common gaol of the county or place where the offence shall be penalties, 
 committed, there to remain without bail or mainprize, until payment be *259 
 made of the penalty and forfeiture imposed by this or the said former 
 act, or mitigated as aforesaid, or to punish such offender or offenders 
 corporeally, by causing him, her,(d\ or them to be publicly whipped, or 
 committed to some public workhouse, there to be kept to hard labour 
 for the space of six months or a less time, as to such judge, justice, or 
 justices, in his or their discretion shall seem meet: anything in the said 
 recited act, or in any other act to the contrary notwithstanding." 
 
 The succeeding section enacts, that where any dispute shall arise be- Sec. 5, as 
 tween the persons on whose information on oath persons offending in the to dls P u . tes 
 premises, or against the said former act, shall be prosecuted or convicted, penalties, 
 touching the right to the forfeitures or penalties, the judge or justice 
 before whom the offender shall be convicted shall examine and finally 
 determine the matter. 
 
 The statute 17 Geo. 2, c. 40, s. 10, recites the statute 9 & 10 Wm. 3, 17 Geo. 2, 
 c. 41, and the 9 Geo. 1, c. 8, ss. 3, 4, 5, and that doubts had arisen gj^'^J q 
 touching the method of trial and punishment of offenders against those & 10 Wm. 
 acts, whether they might be indicted and tried for the offences, and 3. c. 41, and 
 whether any judge, justice of assize, or justices of the peace at sessions, 8, and 
 might hear, try, and determine the same, and on conviction set such fine, d °" b * s , 
 or mitigate the same and the forfeitures, &c, or whether such offenders, arisen upon 
 in order for recovering the said forfeitures, &c, could only be proceeded these sta- 
 against by action of debt, bill, &c, in a court of record at Westminster; Andenacts 
 and then declares and enacts, "that it shall and may be lawful to and that judges 
 for any judge, justice or justices at the assizes, or justice of the peace at ^g^nd" 
 the general quarter sessions to be holden for any county, city, borough, justices at 
 or town corporate, to hear, try, and determine by indictment or other- session s 
 wise, all or any the crimes or offences mentioned in the said recited indictment 
 acts; and that the said judge, justice or justices of assizes, or justices of an Y offe n- 
 the peace as aforesaid, before whom such offender or offenders shall be t i one( j j n 
 indicted or tried, and convicted of all or any the crimes or offences in those sta- 
 the said recited acts mentioned, may impose any fine, not exceeding the m l a y S ' fi n e 
 sum of two hundred pounds, on such offender or offenders (one moiety &c, or in 
 to be paid to his majesty, and the other moiety to the informer;) and p^ilh^or- 
 may mitigate the said penalty and forfeitures inflicted by the said re- porally. 
 cited acts or either of them, and to commit the offender or offenders so 
 convicted and fined, to the common gaol of the county or place where the 
 offence shall be committed, there to remain without bail or mainprize, 
 until payment be made of the penalty and forfeitures imposed by this 
 or the said former acts, or mitigated as aforesaid ; or in lieu thereof, to 
 punish such offender or offenders in the premises corporally, by causing 
 him, her,(<fc?) or them to be publicly whipped, and committed to some 
 house of correction or public work-house, there to be kept to hard labour 
 
 (d) The whipping of females is abolished by the 1 Geo. 4, c. 57, s. 2. 
 (dd) Supra, note (d).
 
 259 OF UNLAWFULLY RECEIVING OR HAVING [BOOK IV. 
 
 for the space of three months or less time, as to such judge, justice or 
 
 justices of assize or justice of the peace, shall in his or their discretion 
 
 seem meet." 
 
 *260 The 39 & 40 Geo. 3, c. 89, a principal statute upon this subject, and 
 
 39 & 40 entituled, "An act for the better preventing the embezzlement of his 
 
 89 6 °s. i re- majesty's naval, ordnance, and victualling stores, recites a statute 22 
 
 cites a sta- Car. 2, c. 5,(e) and also the statutes 9 & 10 Win. 3, c. 41, s. 2, 9 Geo. 
 
 Tt?b and X > c - 8 > ss - 3 > 4 > and 17 Geo " 2 ' c> 40 ' s - 10 ' and further recites, that it 
 also the 9 was become necessary to make some further and more effectual provision 
 f 10 jT'q' f° r preventing the wicked practices of the stealers, embezzlers, and 
 Geo.l,c. 8, receivers of his majesty's warlike and naval, ordnance and victualling 
 and 17 Geo. stores : and then enacts, "that every person or persons (such person or 
 the neces- persons not being a contractor or contractors, or employed as in the said 
 Bityoffur- recited act, 9 & 10 Wm. 3, c. 41, is mentioned) who shall willingly or 
 ventioiTof knowingly sell or deliver, or cause or procure to be sold or delivered to 
 the embez- any persons whomsoever, or who shall willingly or knowingly receive or 
 «tore»°and nave in *" s > her, or their custody, possession, or keeping, any stores of 
 enacts that war, or naval, ordnance, or victualling stores, or any goods whatsoever, 
 persons marked as in the said recited acts are expressed, or any canvass marked 
 
 knowingly . 
 
 selling, re- either with a blue streak in the middle, or with a blue streak in a ser- 
 ceiving, pentine form, or any bewper, otherwise called buntin, wrought with one 
 erf stores or more streaks of raised tape (the said stores of war, or naval, ordnance, 
 (beingnew, r victualling stores or goods above mentioned, or any of them, being in 
 one-third a raw or unconverted state, or being new and not more than one-third 
 worn,-) and worn,) and such person or persons who shall conceal such stores or 
 persons p- 00( j s or arJ y f them, marked as aforesaid, shall be deemed receivers 
 
 concealing o ' J / 
 
 such stores, of stolen goods, knowing them to have been stolen, and shall, on being 
 .-^hall be convicted thereof in due form of law, be transported beyond the seas 
 ceivers of for the term of fourteen years, in like manner as other receivers of 
 stolen stolen goods are directed to be transported by the laws and statutes of 
 be trans- this realm, (/) unless such person or persons shall, upon his, her or 
 ported for their trial, produce a certificate under the hands of three or more of 
 vears un- his majesty's principal officers or commissioners of the navy, ordnance, 
 less they or victualling, expressing the numbers, quantities or weights of such 
 certificate stores or goods as he, she, or they shall then be indicted for, and the 
 
 occasion and reason of such stores or goods coming to his, her, or their 
 
 hands or possession." 
 Sec. 2. The second section enacts, " that such person or persons (not being a 
 
 sons hav contractor or contractors, or employed as aforesaid) in whose custody, 
 ing posses- possession, or keeping, any of the said stores called canvass, marked 
 S1 ° u ol ^ er " with a blue streak in a serpentine form, or bewper, otherwise called 
 
 tain arti- . r iiiii-i/'i 
 
 ties mark- buntin, wrought as above mentioned, shall be found, (such canvass or 
 ed, &c, but bewper, otherwise called buntin, not being charged to be new, or not 
 Ac , and more than one-third worn,) and all and every person and persons who 
 persons shall be convicted of any offence contrary to so much of the recited act 
 of any of- 0I> *he & 10 Wm. 3, as reates to the making or the having in posses- 
 fence con- sion or concealing any of his majesty's warlike, or naval or ordnance 
 thel) & 10 st, °res, marked as therein specified, shall, besides forfeiting such stores, 
 Wm. 3, c. and the sum of two hundred pounds, together with costs of suit, as 
 
 (e) Now repealed by the 7 & 8 Geo. 4, c. 27. 
 
 (/) Mr. Lonsdale, St. Cr. Law, p. 221, makes a quxre whether the punishment of these 
 offences is affected by the 7 & 8 Geo. 4, c. 29, s. 54, ante, p. 237.
 
 OHAP. XXIX.] POSSESSION OF PUBLIC STORES. *261 
 
 ♦therein mentioned, be corporally punished by pillory,(</) whipping,(/A 41, shall 
 and imprisonment, or by any or either of the said ways and means, in forf^tfnc 
 such manner, and for such space of time as to the judge or justice be- such stores, 
 fore whom such offenders or offenders shall be convicted, shall seem meet, , and 200L > 
 anything in the said last-mentioned act, or in the before recited acts of rally pun- 
 9 Geo. 1, and 17 Geo. 2, to the contrary thereof, in anywise notwith- ished - 
 standing : provided always, that it shall and may be lawful to and for 
 such judge or judges to mitigate the said penalty of two hundred 
 pounds, as he or they shall see cause." 
 
 It is then provided by the third section, that nothing in this act, or Sec. 3. 
 in the said recited act of the 9 & 10 Wm. 3, contained, shall extend to As t0 the 
 exempt from the operation of this act, or the said recited act, respec- of "contrac- 
 tively, "any person or persons being a contractor or contractors, or em- tors- 
 ployed as in the said last mentioned act is mentioned, except only so 
 far as concerns stores or goods marked as aforesaid, which shall be bond 
 tide provided, made up, or manufactured by such person or persons, or 
 by their order, and which shall not have been before delivered into his 
 majesty's store, unless, having been so delivered, they shall have been 
 sold or returned to such person or persons by the commissioners of his 
 majesty's navy, ordnance or victualling respectively." 
 
 The fourth section enacts, '< that if any person or persons shall wil- Sec. 4. 
 
 fully and fraudulently destroy, beat out, take out, cut out, deface, obli- fa™™lfo~ 
 
 terate, or erase, wholly or in part, any of the marks in the said act of marks de- 
 
 the 9 & 10 Wm. 3, or in this act mentioned, or any other mark what- " otin » the 
 i • I • i • i • • -king s P r °- 
 
 soever, denoting the property of his majesty, his heirs or successors, in perty in 
 
 or to any warlike or naval ordnances, or victualling; stores, or cause, stores > 
 
 made o'uil- 
 
 procure, employ, or direct any other person or persons so to do, for the ty f fe- 
 purpose of concealing his majesty's property in such stores, such person ] on y> P un - 
 or persons shall be deemed guilty of felony, and shall, on being con- transporta- 
 victed thereof, be transported to parts beyond the seas for the term of tion for 
 fourteen years, in like manner as othor felons are directed to be trans- ™ r r g een 
 ported by the laws and statutes of this realm." 
 
 The fifth section enacts, " that if any person or persons who shall Sec 5. 
 hereafter be convicted of any offence contrary to this act, for which he °° e ° de f s 
 shall not have been transported beyond the seas, or contrary to the said been trans- 
 recited act of 9 & 10 Wm. 3, shall be rmilty of a second offence, either P° rfced ; and 
 
 . i • i it i • offending a 
 
 contrary to that act or to this present act, which would not otherwise, second 
 as the first offence, subject him, her, or them, to transportation, and t ime > are to 
 shall be thereof legally convicted, such person or persons shall, by por t e d for 
 judgment of the court wherein he, or she, or they shall be so convicted, fourteen 
 be transported to parts beyond the seas for the term of fourteen years, yeais ' 
 in like manner as other offenders may be transported by the laws and 
 statutes of this realm now in force." 
 
 The sixth section enacts, " that if any person or persons transported Sec. 6. 
 in pursuance of this act, shall return into any part of Great Britain or j^ e r r n S ;° n ns re " 
 Ireland before the end or expiration of the term for which he or she from trans- 
 shall have been so transported, every such person or persons so return- partition 
 ing shall suffer as felons, and shall have execution awarded against time, ex- 
 him, her, or them, as persons attainted of felony, without benefit of eluded from 
 clergy." c *| y g 2 
 
 By the seventh section provision is made for the mitigation of *pun- Sec ^ pro . 
 
 (ff) But the pillory is now abolished by the 56 Geo, 3, c. 138, and 1 Vict. c. 23. 
 (/() See note (d), ante, p. 259.
 
 262 OF UNLAWFULLY RECEIVING OR HAVING [BOOK IV. 
 
 vides for ishment, by the court before which any offender is convicted. It enacts, 
 
 tionTf lga " " ^ na * it shall an( i ma y De lawful to and for the court before whom 
 
 punish- any offender or offenders shall be indicted and convicted of all or any of 
 
 ment by £ Qe cr j mes or offences hereinbefore mentioned to be punishable with 
 
 before transportation, to mitigate or commute such punishment, by causing the 
 
 which any ff en cler or offenders to be set on the pillory,( A publicly whipt^JA 
 
 committed, fined, or imprisoned, or by all or any one or more of the said ways and 
 
 means, as such court in its discretion shall think fit; one moiety of 
 
 which fine (if any imposed) shall be to his majesty, and the other moiety 
 
 thereof to the informer, and also to order such offender or offenders to 
 
 be imprisoned until such fine be paid." 
 
 Sec. 8, 9, The three succeeding sections of the act relate to rewards to be given 
 
 10. Re- to persons discovering or apprehending offenders, and the mode in 
 
 which they shall be distributed and paid.(&) 
 Sec. 11, The eleventh section enacts, that any commissioner of the navy, 
 
 aDycom- ordnance, or victualling, for the time being, (who is authorized for 
 missioner these purposes to act as a justice of peace for the county, &c. VA or any 
 &c toissu' J us ^ ce °^ P eace ma y? u pon the oath of a credible person, that there is 
 a warrant reason to suspect that any stores, &c. are concealed, by warrant under 
 to search nanc [ an( j sea i cause the place to be searched in the day-time, by a peace 
 
 IOrCODCGJll- 
 
 ed stores, officer, and in case any stores, &c. marked as mentioned either in this 
 
 and to ac t ; or the 9 & 10 Wm. 3, c. 41, shall be found, cause the same and the 
 
 same and offenders to be brought before them, and commit, bind over, or otherwise 
 
 the offen- deal with such offenders according to law : and it then enacts, "that in 
 
 them and case u P on an y such search, or upon any seizure whatsoever of stores or 
 
 to commit, goods, marked as aforesaid, any naval, ordnance, or victualling stores, 
 
 the' H " f no ' so mar k e d as aforesaid, shall be found, which may reasonably be sus- 
 
 whose pos- pected to belong to his majesty, the party or parties in whose possession 
 
 session the or keeping the same shall be found, shall be required to give to the corn- 
 stores were . . r ° . . „. • i ■l » i i • i 
 found, do missioner or justice of the peace respectively before whom the said 
 
 not satis- stores or goods shall and may be brought, an account to the satisfaction 
 
 factorily . 
 
 account for °f such commissioner or justice, that the same were not embezzled or 
 them, such stolen from any of his majesty's ships or vessels, yards, storehouses, or 
 to°be S for 6 °^ er places, or that if the same were embezzled or stolen, the same had 
 feited, and come to the possession of the said party or parties honestly, and with- 
 £ ^ e P ar ^ y *°out any knowledge or suspicion that the same had been embezzled or 
 guilty of a stolen ; on failure whereof by a reasonable time, to be set by such com- 
 misdemea- missioner or justice of the peace, the said stores or goods shall thereupon 
 
 become forfeited, and such party or parties shall be deemed and adjudged 
 
 guilty of a misdemeanor." 
 Sec. 12, 13. The twelfth section authorizes persons deputed by the principal offi- 
 boatsT&c. cers > or commissioners of the navy, &c. to search and detain any barge, 
 and per- boat or other craft, reasonably suspected to contain any stores, &c. em- 
 veyine °" Dezz l e ^ or unlawfully procured ; and apprehend the persons reasonably 
 stores in suspected of having, or conveying them in such barge, &c. and convey 
 * he !j a . m . fty them, together with the stores, &c. before a ^commissioner of peace, who 
 ed, <fec. is to commit, bind over, or otherwise deal with such persons according 
 *263 to law, in respect of the marked stores, etc. ; and in respect of the stores, 
 
 &c. not marked, but nevertheless reasonably suspected to be the pro- 
 
 (j) See note (g), aiite, p. 2G0. (jy) See note (d), ante, p. 229. 
 
 (k) And see the 2 Wm. 4, c. 40, s. 34, by which these rewards are now regulated. 
 (I) And see also the authority of the treasurer, &c, or any commissioner of the navy for 
 the time being, to act as a justice of the peace, 9 Geo. 3, c. 30, s. 3.
 
 meanors. 
 
 CHAP. XXIX.] POSSESSION OF PUBLIC STORES. 263 
 
 perty of his majesty, the persons on whom they are found are to be 
 required to give an account, to the satisfaction of the commissioner or 
 justice, that they were not embezzled, or if embezzled had come to their 
 possession honestly, and without knowledge or suspicion that they had 
 been embezzled; on failure whereof by a reasonable time to be set, as 
 thereinbefore mentioned, such stores, &c. are to become forfeited, and 
 the person apprehended to be adjudged guilty of a misdemeanor, and 
 the barge, boat, &c. are to be forfeited. The following section of 
 the act gives power to persons so deputed, and also to any peace offi- 
 cer, to apprehend persons having any stores, &c. though not in any 
 barge, boat or other craft, and authorizes similar proceedings in such 
 cases. 
 
 The act then provides for the disposal of stores, &c, and any barge, 
 boat, &c. which have become forfeited. 
 
 The sixteenth section enacts, that every person adjudged guilty of Seo. 16. 
 any of the aforesaid misdemeanors, before any commissioner or justice m en|, S f 
 of peace, shall, for every such misdemeanor, forfeit for the first offence misde- 
 the sum of forty shillings ; for the second offence the sum of five pounds ; 
 and for the third and every subsequent offence the sum of ten pounds, 
 over and above the other forfeitures thereinbefore mentioned. And it 
 further provides for the levying and disposal of the forfeitures. 
 
 By the seventeenth section, every adjudication in any of the said mis- Sec. 17. 
 
 demeanors is to be certified by the commissioner or justice making it to Conviction 
 
 • t> i zm -i i i to " e certl - 
 
 the next general or quarter sessions of the peace, to be filed and entered ged to the 
 
 amongst the records of the session : and such conviction is not to be set quarter 
 
 sessions 
 aside or quashed for want of form, nor be removed by certiorari, advo- 
 cation, or suspension into any other court ; but shall be deemed to be 
 final to all intents and purposes whatsoever. 
 
 Powers are then given to the commissioners of the navy, ordnance, Sec - 1S > 19, 
 
 20 21 22 
 and victualling, and to justices of peace out of sessions, to hear and de- 23' g um l 
 
 termine offences in a summary way, in cases where the stores found are mary juris- 
 of a value not exceeding twenty shillings, and punish the offender by 1C lon " 
 fine, &c. And an appeal is given to the quarter sessions from such 
 convictions. 
 
 The twenty-fourth section enacts, « that nothing hereinbefore con- Sec 24. 
 tained, which gives to any commissioner or justice of the peace power th ° J,"^ s m 
 and authority to hear and determine offences in a summary way, shall to sum- 
 extend or be deemed, construed or taken to extend, to prevent the party "^[j^"" 8 " 
 or parties accused of selling or delivering, or of having in his, her or to prevent 
 their custody, possession or keeping, or of receiving or concealing any tlie parties 
 of the stores, marked as above mentioned, under the value of twenty from being 
 shillings, from being prosecuted as receivers of stolen goods under this prosecuted 
 act, or for unlawfully having the same in his, her or their custody, or' of stolen 
 concealing the same under the said recited acts of the 9 & 10 Win. 3, goods. 
 9 Geo. 1, or 17 Geo. 2, in any court or record, oyer and terminer, or 
 otherwise, as they might have been if no such power or authority had 
 been given ; or to take away from any person or court whatsoever, any 
 power, right, jurisdiction, pre-eminence or authority, which he, or 
 they, or any of them *ought lawfully to have enjoyed for the hearing *264 
 and determining of such offences, in case no such power or authority 
 to hear and determine the same in a summary way had been given; 
 so as that the same person shall not be punished twice for the same 
 offence."
 
 false certi 
 ficate 
 
 264 OF UNLAWFULLY RECEIVING OR HAVING [BOOK IV. 
 
 Sec. 25, 26. It is then enacted, that the commissioners of the navy, ordnance, or 
 sioner of victualling, may sell and dispose of marked stores, as before the making 
 the navy, of the act ; and that persons buying them of the commissioners may 
 li' ma k d keep them without incurring any penalty, upon producing a certificate 
 stores, and under the hand and seal of three or more of the commissioners, that 
 the buyer ^gy bought the stores from them, or a certificate from such persons as 
 ed by a cer- shall appear to have bought the stores from the commissioners, that 
 tificate. such stores were stores or part of stores bought of the commissioners. 
 In these certificates the quantities of the stores are to be expressed, and 
 the time when and where bought of the commissioners : and the com- 
 missioners, or any three of them, and also the persons afterwards selling 
 the stores are directed, from time to time, to give such certificates to the 
 buyers desiring the same, within thirty days after the sale and delivery: 
 Penalty for And provision is made for the punishment, by forfeiture of 200^., of 
 persons giving or publishing any false certificate. 
 
 Several enactments are then made for the protection of persons mak- 
 ing seizures, and otherwise acting in execution of the statute. 
 Sec. 29, et By the twenty-ninth section, the statute is to extend to Scotland ; 
 *eq. Scot- an( j gevera ] subsecpient sections direct the course of proceedings in that 
 
 country. 
 52 Geo. 3, The statute 52 Geo. 3, c. 12, recites the statute 22 Car. 2, c. 5,(m) 
 
 tends the and als0 the statutes 9 & 10 Wm - 3 > c - 41 > 9 Geo - h c - 8 > 17 & eo - 2 > 
 
 former sta- c. 40, and 39 & 40 Geo. 3, c. 89 ; and enacts, that all those acts, so far 
 tutes to as they severally relate to his majesty's naval ordnance and victualling 
 stores, therein respectively mentioned, shall extend to Ireland ; but pro- 
 vides that no summary proceeding shall be had there before a justice 
 of the peace, without the consent in writing of the naval store-keeper, 
 for the time being, at any port in Ireland. 
 
 54 Geo. 3, The statute 54 Geo. 3, c. 60, extends the provisions of the 9 & 10 
 
 tend°s the 9 Wm - 3 ' C " 41 > and 39 & 40 Ge0, 3 > C ' 89 ' in res P ect to the making, 
 & 10 Wm. selling, delivering, receiving, having in possession, and concealing cord- 
 
 3 ' C {w' a » e wrou S nt either with a white thread laid the contrary way, or with 
 
 49 Geo. 3, a twine laid to the contrary way, mentioned in those acts, to cordage 
 
 c. 89. wrought with one or more worsted threads. 
 
 55 Geo. 3, The statute 55 Geo. 3, c. 127, repeals a former act, 53 Geo. 3, c. 126. 
 
 cites the C 9 lt also recites the statutes 9 & 10 Wm. 3, c. 41, 9 Geo. 1, c. 8, 17 Geo. 
 
 & 10 Wm. 2, c. 40, and 39 & 40 Geo. 3, c. 89, and enacts, that those statutes, « so 
 
 3, c.4l,thef ar as tue same severally relate to his majesty's naval, ordnance, and 
 
 9 Geo. 1, c. . ... J . J . J • 
 
 8, the 17 victualling stores therein respectively mentioned, and all the pains, 
 
 Geo. 2, c. penalties, forfeitures, regulations, restrictions, powers, provisions, clauses, 
 39' & 40 matters, and things therein respectively contained, relating to his ma- 
 Geo. 3, c. jesty's naval, ordnance, and victualling stores therein respectively men- 
 extends tioned, shall extend and be construed to extend to all public stores, what- 
 those acts soever, under the care, superintendence or control of any officer or per- 
 r a <!t PUb son * n ^ e serv 'i ce °f hi s ma jesty, his heirs or successors, or employed in 
 *265 any P u k nc department or office, either *ruarked with the marks or any 
 of them in the said recited acts or any of them specified, or with the 
 broad arrow, and the letters B. O., or with a crown and the broad 
 arrow, or with his majesty's arms, or with the letters G. R., to denote the 
 property of his majesty, his heirs or successors therein, and to all and 
 every person and persons, not authorized by the proper officer or officers, 
 person or persons in his majesty's service, in that behalf so to do, 
 
 (m) Ante, p. 2G0.
 
 CHAP. XXIX.] POSSESSION OF PUBLIC STORES. 265 
 
 using any such marks, or making any goods marked with such marks, 
 or any of them, and to all and every person and persons in whose cus- 
 tody, possession or keeping any such public stores so marked as afore- 
 said shall be found, or who shall willingly or knowingly receive or have 
 in his her or their custody, possession or keeping, or who shall conceal 
 any such public stores so marked as aforesaid, unless such person or 
 persons shall upon his, her or their trial, produce a certificate or certifi- 
 cates under the hand or hands of the proper officer or officers, person 
 or persons in his majesty's service authorized to grant the same, of such 
 and the like nature as the certificate in the said recited acts of the 9 & 
 10 Win. 3, and 39 & 40 Geo. 3, mentioned; and to all and every per- 
 son and persons who shall wilfully and fraudulently destroy, beat out, 
 lake out, cut out, deface, obliterate or erase wholly or in part, any of 
 the said marks, or cause, procure, employ, or direct any other person or 
 persons so to do, for the purpose of concealing the property of his ma- 
 jesty, his heirs or successors therein, as fully and effectually, to all in- 
 tents and purposes, as if all the same several pains, penalties, forfeit- 
 ures, regulations, restrictions, powers, provisions, clauses, matters, and 
 things, in the said several acts contained, so far as the same severally 
 relate to his majesty's naval, ordinance and victualling stores, and the 
 punishment of persons offending in manner therein mentioned were 
 herein and hereby severally repeated and re-enacted in respect to all 
 other public stores whatsoever." 
 
 Upon the construction of these statutes it should be observed that the Construc- 
 king's mark denotes the original ownership, and that the omis propandi 1 ™ 11 of 
 is thrown upon the party having public stores in his possession, to ac- tutes. 0»«« 
 count satisfactorily for that possession according to the regulations ■pre-P rohand ' 
 scribed. But though the bare fact of possession ordinarily concludes party hav- 
 the party, it is open to explanation ; and the presumption arising from ing stores 
 it may be rebutted by circumstances. (w) session** 
 
 This principle was acted upon by Mr. Justice Foster, in a case where Butthefact 
 a widow woman was indicted on the 9 & 10 Wm. 3, c. 41, for having °f posses- 
 in her custody divers pieces of canvas marked with his majesty's mark, toexplana- 
 in the manner described in the act, she not being a person employed by tion ; anfl 
 the commissioners of the navy to make the same for his majesty's use. SU mptlon 
 The canvas was produced at the trial marked as charged in the indict- arising 
 ment, and was proved to the satisfaction of the court and jury to be of f rom , lt! t u t n ^ 
 that sort which is commonly made for the use of the navy ; and to have by circum- 
 been found in the defendant's custody. The defendant did not attempt stances - 
 to show that she was within the exception of the act, as being a person 
 employed to make canvass for the use of the navy ; nor did she offer to 
 produce any certificate from any officer of the crown touching the occa- 
 sion and reason of such canvas coming into her possession. Her de- 
 fence was that when there happened to be in his majesty's stores a con- 
 siderable quantity *of old sails no longer fit for that use, it had been *26() 
 customary for the person intrusted with the stores, to make a public 
 sale of them in lots, larger or smaller, as best suited the purposes of 
 the buyers ; and that the canvass produced in evidence, which happened 
 to have been made up long since, some for table linen and some for 
 sheeting, had been in common use in the defendant's family a con- 
 siderable time before her husband's death, and upon his death came to 
 the defendant; and had been used in the same public manner by ber 
 
 (re) 2 East, P. C. c. 16, s. 153. p. VG5.
 
 266 
 
 OF UNLAWFULLY RECEIVING OR HAVING 
 
 [BOOK IV. 
 
 to the time of the prosecution. This was proved by some of the family, 
 and by the woman who had frequently washed the linen. This sort of 
 evidence was strongly opposed by the counsel of the crown, who insist- 
 ed that as the act allows of but one excuse, the defendant, unless she 
 can avail herself of that, cannot resort to any other ; and they asked 
 why, if the canvas was really bought of the commissioners, or of per- 
 sons acting under them (which is the only excuse pointed out by the 
 statute), no certificate of that mattter was taken at the time of the pur- 
 chase, since the fourth section of the act admits of that excuse, and the 
 second section admits of no other? But Foster, J., was of opinion 
 that though the clause of the statute, which directs the sale of these 
 things, had not pointed out any other way for indemnifying tbe buyer 
 than the certificate; and though the second section seemed to exclude 
 any other excuse for those in whose custody they should be found ; yet 
 still, the circumstances attending every case, which might seem to fall 
 within the act, ought to be taken into consideration ; otherwise a law 
 calculated for wise purposes might by too rigid a construction of it, be 
 made a handmaid to oppression. He observed that there was no room 
 to say that this canvas came into the possession of the defendant by 
 any act of her own ; that it was brought into family use in the lifetime 
 of her husband, and continued so to the time of his death ; and by act 
 of law it came to her. That things of this kind had been frequently 
 exposed to public sale ; and though the act pointed out an expedient 
 for the indemnity of the buyers ; yet, probably, few buyers, especially 
 where small quantities had been purchased in one sale, had used the 
 caution suggested to them by the act. And that if the defendant's hus- 
 band really bought this linen at a public sale, but neglected to take a 
 certificate, or did not preserve it, it would be contrary to natural justice, 
 after such a length of time, to punish her for this neglect. He there- 
 fore, thought the evidence given by the defendant proper to be left to 
 the jury; and directed them that if, upon the whole of the evidence 
 they were of opinion, that the defendant came to the possession of the 
 linen without any fraud or misbehaviour on her part, they should ac- 
 quit her; and she was acquitted. (o\ 
 
 In a subsequent case of an information upon the 9 & 10 TVm. 3, c. 
 
 Banks's 
 case. A 
 defendant 
 against 
 whom the 
 possession 
 of stores is 
 proved, 
 may dis- 
 charge 
 himself by 
 other evi- 
 dence than 
 that of a 
 navy board 
 certificate. 
 
 *267 
 
 41, and 17 Geo. 2, c. 40, s. 10, it was contended for the counsel for 
 the prosecution that the only mode by which the defendant, against 
 whom a possession of the stores were proved, could discharge himself, 
 was by producing the Navy Board certificate granted at the time of the 
 sale, as that was the only evidence of the legal possession of them. 
 But Lord Kenyon, C. J., said that though it was clear that in prosecu- 
 tions under the statutes in question it was sufficient for the crown to 
 prove the finding of the stores, with the king's mark, in the defendant's 
 possession, to call upon him to account for that possession, and the man- 
 ner of his coming by them, so as to throw the onus upon the defendant 
 of proving that he had legally become *possessed of them ; yet, that it 
 could not bear a question, but that the defendant had other means of 
 showing that he had lawfully become possessed of them than by the 
 production of the certificate from the Navy Board, as, for example, he 
 might show that he had bought them from another person who was in 
 the practice of buying stores at the navy sale ; and who, therefore, 
 might fairly be presumed to have had the regular certificate, but who, 
 
 (o) Anon. cor. Foster. J., on the Western circuit. Fost. 439.
 
 CHAP. XXIX.] POSSESSION OF PUBLIC STORES. 267 
 
 when he sold part to the defendant, could not, consistently with his own 
 safety, part with the certificate he had obtained, of his having been the 
 purchaser of the whole lot.(p) And his lordship, after alluding to the 
 case in which this doctrine had been holden by Mr. Justice Foster 
 (whom he spoke of as one of the best crown lawyers that ever sat in 
 Westminister-hall,) said that if the defendant could show either a navy 
 certificate, or prove the purchase of the stores mentioned in the informa- 
 tion from any person who might be presumed to have been possessed 
 of the proper certificate from the circumstance of such person having 
 frequently been a purchaser at such sales, he was of opinion that it was 
 such evidence as ought to induce the jury to find the defendant not 
 guilty. And the defendant, accordingly, gave such evidence, and was 
 acquitted, (j) 
 
 Where an indictment charged that one T. Cole, on the 28th of Janu- Cole's 
 ary, 1801, unlawfully, willingly, and knowingly, did receive and have V^f: 4 
 in his custody, possession, and keeping, certain naval stores of the king, taken (up 
 being all marked with the broad arrow, he not being a contractor, &c, °. n t , he par " 
 
 ., ., , ,.,.., ,. ' ticular cir- 
 
 against the statute ; with a second count, charging him with concealing cumstances 
 naval stores, &c, and the jury found the prisoner guilty on the first of the case) 
 count, but acquitted him on the second, and said that they did not find re ceivm°- 
 that he received the stores after the 28th July, 1800, but only that he and having 
 had them in his possession after that day ; the judgment was respited in gi^ 085 
 order to take the opinion of the judges upon the point. A majority of 
 the judges were inclined to think that the statute was to be construed in 
 the disjunctive, and the word or (receive or have) not to be taken as 
 and, but, because of the disagreement of some, and that the case was 
 not likely to occur again, the prisoner, on the finding of the jury, was 
 recommended to mercy. (?■) 
 
 It appears to have been agreed that the foregoing case was not within 
 the 9 & 10 Wm. 3, c. 41, because the goods were not charged to have 
 been found in the prisoner's possession. (s) 
 
 An indictment, stating that the defendant on, &c., at, &c.,had in his 
 possession certain naval stores, describing them, the said defendant 
 " not being a contractor," &c, is sufficient as to the statement of the 
 time when the prisoner was not such contractor. 
 
 In a case upon the 9 & 10 Wm. 8, c. 41, s. 2, an exception was The forfeit- 
 taken to the indictment, in arrest of judgment, that no indictment tayn&iow 1 ' 
 because it was a new offence, and a particular penalty inflicted of for- 3, c. 41, s. 2, 
 feiture of the goods and 2001. ; but the exception was overruled because accri ! e f. by 
 
 tor- t -i ■ ■ • t c conviction 
 
 the forfeiture accrues by the conviction on an indictment for the of- on an in- 
 
 fence/A dictment. 
 
 *Though the having in possession new stores, or stores not more 
 than one-third worn, is subject to transportation for fourteen years, by U p n see- 
 the 39 & 40 Geo. 3, c. 89, s. 1, and the having in possession stores tions l and 
 not new, or more than one-third worn, is, by the second section of that & ^ Geo> 
 statute, subjected to a different punishment, yet counts for both these 3, e. 89, 
 
 (p) At this time, by the statute 39 & 40 Geo. 3, c. 89, s. 25, a buyer is protected by pro- 
 ducing a certificate from such person as shall appear to have bought the stores from the 
 commissioners, ante, p. 261. 
 
 (q) Rex v. Banks, cor. Lord Kenyon, C. J., 1794. 1 Esp. R. 145. 
 
 {r) Cole's case, 1801, MS., and 2 East, P. C. c. 1G, s. 153, p. 161. The date of thestat. 
 39 & 40 Geo. 3, c. 89, is the 28th July, 1800. 
 
 (*) Id. ibid. (t) Reg. v. Harman, (3 Anne,) 2 Lord Raym. 1104.
 
 268 OF UNLAWFULLY RECEIVING OR HAVING [BOOK IV. 
 
 may be offences may be included in the same indictment. (*<) It is said to have 
 
 the^same Deen agreed that, although an indictment state that the prisoner, « then 
 
 indict- or at at any time before not being a contractor with or authorized by the 
 
 p eUt f f principal officers or commissioners of our said lord the king, of the 
 
 negative navy, ordnance, &c, for the use of our said lord the king, to make any 
 
 averment s t ores f war> & c .," yet, that it is not incumbent on the prosecutors to 
 
 soner not prove this negative averment, but tbat the defendant must show, if the 
 
 being a truth be so, that he is within the exception in the statute. (v\ 
 
 £ Ci ' It appears to havebeen holden in one case, that the informer was an 
 
 interested witness, as being entitled to a moiety of the fine of 200?., on 
 
 As to the a prosecution on the 17 Geo. 2, c. 40, s. 10, and 9 & 10 Wm. 3, c. 41, 
 
 informer * .. ,, . . , ,. . „ . . , . „. 
 
 being a though it was urged that it was in the discretion or the judge to inflict 
 witness. a corporeal punishment in lieu of the fine, and the witness was rejected. (u-\ 
 But, in a subsequent case, Lord Kenyon, C. J., said, that he had consi- 
 dered the objection to the competency of the informer's being a witness 
 on the ground of interest ; and that, as the statute had given the court 
 a power, at their discretion, either to inflict a corporal punishment, or 
 to impose a fine in case of conviction, and as it was only in case a fine 
 was imposed that the witness could expect to derive any benefit (an un- 
 certainty depending upon the judgment of the court,) he was then of 
 opinion that the objection went to the credit, not to the competency, of 
 the witness, and that, therefore, his evidence was admissible, (x) 
 As to the It appears to have been holden that, where a peace-officer, in search- 
 
 personcon- j Q „ f or Q^gj. goods, discovered naval stores, and in consequence of such 
 
 sidered as ° ■ p. ' . . 7 . i «* i 
 
 an inform- discovery by him an information was filed against the offender, such 
 
 er - peace-officer was to be deemed the informer.^) But where a witness 
 
 stated, that though no information respecting the stores in question had 
 been given to the Admirality until the time of the seizure, yet that he 
 made the seizure in consequence of information given to him, by an- 
 other person, of the stores being in the defendant's possession, it was 
 ruled that the witness was not to be considered as the informer, and that 
 the informer was the person upon whose information the seizure had 
 been made, not he who had made the seizure in consequence of such 
 information, (z) 
 Corporal With respect to the power of the court to inflict corporal punishment, 
 
 mrat ma under the authority of the statutes 9 & 10 Wm. 3, c. 41, s. 2, 9 Geo. 1, 
 be inflicted c. 8, s. 4, and 17 Geo. 2, c. 40, s. 10, it was contended, in a case where 
 
 U D . d ^ 0° the defendant had been convicted on an indictment charging; him in one 
 
 9 & 10 Win. .. . , ° °. 
 
 3, c. 41, s. count with concealing naval stores, and in another with having them in 
 
 2, 9 Geo. 1, his custody, that no such power existed under either of those statutes, 
 
 and'l7 ' where the defendant was *ready, and offered to pay the penalty of 200?., 
 
 Geo. 2, c. but the Court of King's Bench said it was impossible to raise any 
 
 *9PQ sei 'i° us doubt upon the point, for that the words of the statutes were in 
 
 the disjunctive, enabling them either to impose a penalty, or to punish 
 
 the offender corporeally. (a) In another case where the defendant was 
 
 may be brought up for judgment for a similar offence, it was moved on the part 
 
 (u) By Lord Ellenborough, C. J., in Rex v. Johnson, 3 M. & S. 550. 
 
 (v) Willis's case, 1781, 1 Hawk. P. C. c. 89, s. 17. 
 
 (w) Rex v. Blackman, cor. Kenyon, C. J., 1791, 1 Esp. R. 93. 
 
 (x) Rex v. Cole, cor. Lord Kenyon, C. J., 1794. 1 Esp. 169. 
 
 (y) Rex v. Blackman, 1 Esp. 5. (z) Rex v. Banks, 1 Esp. R. 145. 
 
 (a) Rex v. Bland, 5 T. R. 370. 2 Leach, 595. 2 East, P. C. c. 1<;. s. 148, p. 760. And 
 the latter statute, 39 & 40 Geo. 3, c. 89, s. 1. expressly enacts as to corporeal puuishnieut. 
 Ante, p. 260.
 
 CHAP. XXX.] POSSESSION OP PUBLIC STORES. 269 
 
 of the prosecution, that he should be adjudged to pay the whole penalty awarded 
 of 200/. and the costs, and submitted that the court had the power of ^^ 9 ? 
 awarding costs under the words of the 9 & 10 Wm. 3, c. 41, s. 2. And c. 41, s. 2.' 
 the court adjudged the defendant to pay the penalty of 200/., together 
 with the costs, which were taxed at 12l.(b\ 
 
 But the statute 39 & 40 Geo. 3, c. 89, took away the power of the But the 39 
 court to sentence to hard labour. A defendant was brought up for judg- & 40 Geo - 
 nient after conviction, on the stat. 9 & 10 Wm. 3, c. 41, s. 2, for unlaw- took away 
 fully having in his possession the king's naval stores, marked with the the power 
 king's mark, and judgment was about to be pronounced that he should courUo 
 be imprisoned in the house of correction for the county of Surrey, and sentence 
 there kept to hard labour for three calendar months, and be once during |° harcl 
 that time publicly whipped. This would have been warranted by the 
 statute 17 Geo. 2, c. 40, s. 10, reciting the statutes 9 & 10 Wm. 3, c. 41, 
 and 9 Geo. 1, c. 8 ; but a doubt occurring how far the power of sen- 
 tencing to hard labour was taken away by the subsequent statute of the 
 39 & 40 Geo. 3, c. 89, s. 2, the court upon further consideration, and 
 comparing the different provisions of these statutes, were of opinion 
 that the power of sentencing to hard labour was taken away by the 
 latter statute, and therefore pronounced judgment that the defendant 
 should be imprisoned in the house of correction for the county of Sur- 
 rey, for three calendar months, and be once during that time publicly 
 whipped, (c) 
 
 *CHAPTER THE THIRTIETH. *270 
 
 OF UNLAWFULLY RECEIVING TACKLE OR GOODS CUT FROM OR LEFT BY 
 SHIPS; AND OF RECEIVING GOODS STOLEN ON THE RIVER THAMES. 
 
 The 1 & 2 Geo. 4, c. 75, s. 1, enacts, "that all pilots, boatmen, hovel- 1 A 2 Geo. 
 lers, or other persons who shall take up any anchors, cables, tackle, *' c- p.^' s " 
 apparel, furniture, stores, or materials, or any goods or merchandise & c ., taking 
 which may have been parted with, cut from or left by any ship or ves- u ? , anch ^ r ' 
 sel within any harbours, rivers, or bays, or on any of the coasts of this or goods, "' 
 kingdom, whether the same ship or vessel shall be or shall have been in &c -> cu t 
 distress or otherwise, and which shall have been weighed, swept for or b r ° ^p S c 
 taken possession of by any such boatmen, pilot, hoveller, or other per- arc to make 
 son," shall send a report in writing of the articles so found, and stating {^5°!^° 
 the marks, if any, thereon, and also an accurate and particular descrip- vice-admi- 
 tion of the bearings, distances, and situations, and the time when and r . a1 ' and to 
 
 n -i t .i-ii« deliver the 
 
 where the same were so found, to a deputy vice-admiral or his agent, at articles, 
 or near to the port or place where such boatmen, &c, shall first arrive &c - 
 with such articles, within forty-eight hours after their arrival at such 
 port, &c, or before they shall leave the port, if they shall quit it before 
 that time shall expire ; and shall also within the same period, deliver 
 such articles so found into a proper warehouse, or such other place as 
 the vice-admiral of each county shall appoint for safe custody, until the 
 same shall be claimed by the owner thereof, or his agent, until the sal- 
 vage, together with such other charges and expenses as are thereinafter 
 
 (b) Chappel's case, 5 T. R. 371, note (a). 
 
 (c) Rex v. Bridges, K. B. 1806, 8 East, 53. 
 
 Vol. ii.— 18
 
 270 OF RECEIVING GOODS STOLEN [BOOK IV. 
 
 And pilots, directed to be paid in respect of such, articles, paid by him or them, or 
 alentbTre- secur *ty given for the payment thereof, to the satisfaction of the salvor, 
 taming, and that " every such pilot, boatman, hoveller, or other person, who 
 f c 'u anj f- shall wilfully and fraudulently keep possession of, or retain or conceal, 
 cles, or ile- or secrete any anchors or cables, tackle, apparel, furniture, stores, or 
 lacing materials, or anv goods or merchandise, or deface, take out, or obliterate 
 
 nvvxks ft-nd . 
 
 not report- the marks and numbers thereon, or alter the same in any manner, with 
 ingand intent thereby directly or indirectly to prevent the discovery and identi- 
 .fcV^to'bf' fication of such articles so found, weighed, swept for, or taken posses- 
 guilty of sion of as aforesaid, and shall not report and deliver the same at some 
 " C ods 1DS proper warehouse or other place in manner aforesaid, and within the 
 knowing time hereinbefore limited, shall forfeit all claim to salvage, and shall, on 
 | hem *° conviction, be adjudged and deemed guilty of receiving goods knowing 
 stolen. them to have been stolen, and *shall suffer the like punishment as if the 
 
 *271 same had been stolen on shore. "(6) 
 
 See. 12. The twelfth section enacts, " that if any person shall knowingly and 
 
 knowingly, wilfully, and with intent to defraud and injure the true owner or owners 
 
 &c, pur- thereof, or any person interested therein as aforesaid, purchase or receive 
 
 receiving an y anchors, cables, or goods or merchandise, which may have been 
 
 any an- taken up, weighed, swept for, or taken possession of, whether the same 
 
 oka & s hall have belonged to any ship or vessel in distress or otherwise, or 
 
 or goods ' whether the same shall have been preserved from any wreck, if the 
 
 taken up, directions hereinbefore contained with regard to such articles shall not 
 
 have been previously complied with, such person or persons shall, on 
 
 conviction thereof, be deemed guilty of receiving stolen goods, knowing 
 
 the same to have been stolen, as if the same had been stolen on shore, 
 
 and suffer the like punishment as for a misdemeanor at the common law, 
 
 or be liable to be transported for seven years, at the discretion of the 
 
 court before which he, she, or they shall be tried." 
 
 Sec. 13, re- The statute then requires, that in case any master, &c, of any ship 
 
 '[un-es bound to parts beyond the seas, shall find and take on board any anchor, 
 
 Ac, of' &c., or any goods, &c, or shall receive such articles on board from any 
 
 ships going ther person who may have found the same, knowing the same to have 
 
 finding or' been so found, the master, or other person having the command of the 
 
 receiving ship, shall make a true entry in the log-book of the description of the 
 
 cabies^&c ar ticles, stating the marks, and the bearings, time, &c, when taken on 
 
 board, and shall transmit a report on the first opportunity to the Trinity 
 
 House, and on the return of the ship shall deliver up the articles into 
 
 the possession of a deputy vice-admiral, or his agent, within twenty-four 
 
 hours, with a similar report ; and for default imposes a pecuniary penalty 
 
 not exceeding 100£.(c) 
 
 Sec 15, The fifteenth section, reciting that " pilots, hovellers, boatmen, and 
 
 makes the Q^gj. persons in small vessels, have for many years conveyed anchors 
 
 conveying l ' . J J J 
 
 anchors and cables which may have been weighed, swept for, or taken posses- 
 and cables s j on f jjy them as aforesaid, or which they may have purchased of other 
 by weigh- persons, knowing them to have been weighed, swept for, or taken posses- 
 ing, sweep- s i oa of^ without being reported as aforesaid, to foreign countries, and 
 ' ' there sold and disposed of, to the manifest injury and loss of the owners 
 thereof," enacts, " that every pilot, hoveller, boatman, or the master of 
 
 (h) The act contains no provisions as to the punishment of principals in the second degree 
 and accessories, they are therefore punishable under the T & 8 Geo. t. c. 28, s. 8 and 9, and 
 1 Vict. c. 90, s. 5. See my note, ante, p. 135. C. S. G. 
 
 (c) Sec. 13.
 
 
 CHAP. XXX.] ON THE RIVER THAMES. 271 
 
 any such vessel, who shall convey any such anchor or cable to any 
 foreign port, harbour, creek, or bay, and there sell and dispose of the 
 same, shall be deemed and adjudged guilty of felony, and shall be trans- 
 ported for any term not exceeding seven years." 
 
 This act requires dealers in marine stores to have their names, with Depreda- 
 the words, "dealer in marine stores," painted upon the front of the tl h °. ns upon 
 places where their goods are deposited ;(<i) and contains many other re-ers, <fec. 
 gulations for preventing depredations on ship-owners, &c, and for the 
 adjustment of salvage, some of which are enforced by pecuniary penal- 
 ties, recoverable by proceedings of a summary nature. 
 
 By sec. 22, all felonies, misdemeanors, and other offences under the *272 
 
 act shall be laid to be committed, and shall be tried in any *city or Sec 22. 
 
 county, (being a county,) where any article, &c, in relation to which the T I of 
 
 offence shall have been committed, shall have been found in the posses- where 
 
 sion of the person committing the offence ; or if the same shall have been artlcl n es 
 
 ...p. . •. , . . found ; or 
 
 sold in foreign parts, then in the county or place in which the person where of- 
 
 sellins; the same shall reside. (e) fenders re- 
 
 \ ' . . side if 
 
 The 2 Geo. 3, c. 28, contained various provisions relative to persons articles 
 unlawfully receiving or having in possession ropes, materials, &c, of found in 
 any vessel on the river Thames, and provided that if any person should p^tf a 
 buy or receive any part of the cargo, &c, of a vessel in the said river, 
 knowing the same to have been stolen, he should be transported for four- 
 teen years. This statute is, however, wholly repealed by the 2 & 3 
 Vict. c. 47, s. 24. 
 
 The 39 & 40 Geo. 3, c. 87, made further provisions for the more 
 effectual prevention of depredations on this river and its vicinity, and 
 recited that the said offences not being declared by the 2 Geo. 3, c. 28, 
 to be felony, the trial might be traversed, and provided that the parties 
 indicted under 2 Geo. 3, should not traverse. 
 
 From this section of the statute, it appears to have been the opinion It appears 
 of the legislatures, that the offence of receiving, under the former act, 2 ^° ha T e ]d 
 Geo. 3, c. 28, s. 12, was only a misdemeanor. But a different construe- en in K. B. 
 tion was put upon the former statute, by the Court of King's Bench, in that . a re - 
 a case where a motion was made to bail a defendant, committed for re- stolen 
 ceiving part of a cargo, belonging to a vessel in the Thames, knowing it goods is a 
 to have been stolen. The motion was opposed on the ground that the e ° ny " 
 offence was a felony. And it was argued that by the 3 & 4 W. & M. 
 c. 9, s. 4, (now repealed,) receivers of stolen goods might be prosecuted 
 as felons; and by 1 Anne, st. 2, c. 9, s. 2, (also now repealed,) might 
 be punished as for a misdemeanor, where the principal felon was not 
 convicted ; that the statute under which the prisoner stood committed, 
 must be considered as in pari materia ; and that although the twelfth 
 section of it did not, in express words, declare that such offenders should 
 be /dons, yet it was evident they were intended by the legislature to be 
 80 considered; for by the fourteenth section it was enacted, that any 
 
 (d) Sec. 16. 
 
 (e) By sec. 23, the act is not extended within the limits of the Cinque Ports, specified in 
 the 48 Geo. 3, c. 130; nor to the 48 Geo. 3, c. 104, which is an act for the regulation of 
 pilots. Sec. 24 contains a proviso for the jurisdiction, &c, of the High Court of Admiralty, 
 &C. ; sec. 25, a proviso for the right of the crown, and of the lords of manors; sec. 34, for 
 the right of the Trinity-houses of Kingston-upon-Hull, Newcastle-upon-Tyne, and Scarbo- 
 rough ; and sec. 35, for the rights of the city of London. By sec. 3G, the act is not to ex- 
 tend to Scotland or Ireland. As to offences within the jurisdiction of the Cinque Ports, see 
 now 1 & 2 Geo. 4, c. 1G.
 
 272 OF CHEATS, FRAUDS, FALSE TOKENS, ETC. [BOOK IV. 
 
 person stealing, or unlawfully receiving stolen goods, knowing the same 
 to be stolen, should, on discovering two other offenders, be entitled to a 
 pardon for all such felonies; and the court was of opinion that it was 
 a felony.f/) And upon this point it is observed, that the statute seems 
 only to have made the receiving of the goods under such circumstances 
 evidence of their having been received by the party, knowing them to 
 have been stolen. (9) But the words of the statute appear to be very 
 general in their expression, if in fact they were intended only to apply 
 to the evidence of a receiving. 
 *273 *By the 2 & 3 Vict. c. 47, s. 26, "every person who within the me- 
 Receiving tropolitan police district shall knowingly take in exchange from any sea- 
 stores on man or othej. person, not being the owner or master of any vessel, any- 
 Thames. thing belonging to any vessel lying on the river Thames or in any of the 
 docks or creeks adjacent thereto, or any part of the cargo of any such 
 vessel, or any stores or articles in charge of the owner or master of any 
 such vessel, shall be deemed guilty of a misdemeanor." 
 Cutting By sec. 27, " every person who shall unlawfully cut, damage, or de- 
 
 ropes, stroy any of the ropes, cables, cordage, tackle, headfasts, or other the 
 furniture of or belonging to any ship, boat, or vessel lying in the river 
 Thames or in any of the docks or creeks adjacent thereto, with intent 
 to steal or otherwise unlawfully obtain the same or any part thereof, 
 shall be deemed guilty of a misdemeanor." 
 
 By sec. 28, "it shall be lawful for any constable to take into custody 
 every person, who, for the purpose of preventing the seizure or disco- 
 very of any materials, furniture, stores, or merchandise, belonging to or 
 having been part of the cargo of any ship, boat, or vessel lying in the 
 river Thames or the docks or creeks adjacent thereto, or of any other 
 articles unlawfully obtained from any such ship or vessel, shall wilfully 
 let fall or throw into the river, or in any other manner convey away 
 from any ship, boat, or vessel, wharf, quay, or landing place, any such 
 article, or who shall be accessory to any such offence, and also to seize 
 and detain any boat in which such persons shall be found or out of which 
 any article shall be so let fall, thrown, or conveyed away; and every such 
 person shall be deemed guilty of a misdemeanor." 
 
 *274 *CHAPTER THE THIRTY-FIRST. 
 
 OF CHEATS, FRAUDS, FALSE TOKENS, AND FALSE PRETENCES. (A) 
 
 Where the possession of goods is obtained, in the first instance, 
 without fraud upon a contract or trust, a subsequent dishonest conver- 
 
 (/) Rex v. Wyer, 1 Leach, 480, decided in 28 Geo. 3. 2 T. R. 77. 2 East, P. C. c. 16, 
 s. 145, p. 753. 
 
 (g) 2 East, P. C. c. 16, s. 145, p. 753. 
 
 (A) Maine. — In the case of Cross and al. v. Peters, 1 Greenl. Rep. 387, there is an expo- 
 sition of the statutes of 33 H. 8, c. 1, and of 30 G. 2, c. 24, by Mellen, C. J. The English and 
 Massachusetts authorities are there referred to, and the former opinions adopted. The case 
 of the Commonwealth v. Warren, 6 Mass. Rep. 72, was cited, and Mellen, C. J., observes, 
 " Had the statute of Massachusetts (Stat. 1815, eh. 136,) been in force at the time of War- 
 ren's trial, he would probably have been convicted, as he used several false pretences to 
 obtain credit, by means of which his fraud was successful." 
 
 Massachusetts. — It is not an indictable offence for a man under false pretences to get 
 possession of a deed lodged in the hands of a third person as an escrow, in violation of the
 
 CHAP. XXXI.] OF CHEATS, FRAUDS, FALSE TOKENS, ETC. 274 
 
 sion of them, while the privity of contract continues undetermined, will 
 in general be only a breach of trust or civil injury, and not the subject 
 of a criminal prosecution. (a) But where the party obtaining the goods 
 
 (a) 3 Inst. 107. 2 East, P. C. c. 1G, s. 113, p. 693. Ibid. c. 18, s. 1, p. 816. Ante, p. 56. 
 
 agreement. Commonwealth v. Hearsey, 1 Mass. Rep. 137. Nor is an intention to cheat. 
 indictable at common law. Commonwealth v. Moore, 2 Mass. Rep. 139. At common law 
 it is an indictable offence to cheat any man of his money, goods, or chattels, by false tokens! 
 or by using false weights and measures, but not by false affirmation only without using anv 
 false tokens, weight, or measures, and by no conspiracy ; but the party cheated may pursue 
 a civivil remedy for the injury. The statute of 33 H. 8, c. 1, has been considered here as a 
 part of our common law. The object of the law is to protect persons who in their dealino-s 
 use due diligence and precaution, and not those who suffer through their own credulity 
 and negligence. But as prudent persons may be overreached by means of false weights and 
 measures, or by false tokens, or by a conspiracy, where two or more persons confederate to 
 cheat, frauds effected in either of these ways aie punishable by indictment. The English 
 statute of 30 G. 2, c. 24, punishing cheats by false pretences, is not in force in this state. 
 Commonwealth v. Warren, 6 Mass. Rep. 72. Jggg^Since the case of the Commonwealth v. 
 Warren, a statute has been passed in this state, (1815, ch. 136,) for the punishment of 
 cheats by false pretences, which is a transcript of 30 G. 2, c. 24. By the second section of 
 this statute, the Supreme Judicial Court, and the Municipal Court of the city of Boston, 
 have exclusive jurisdiction of all gross frauds or cheats at common law. 
 
 New York. — To constitute a cheat or fraud at common law, the act must be such a fraud 
 as would affect the public, — such a deception as common prudence cannot guard against it ; 
 as by using false weights or measures, or false tokens ; or where there is a conspiracy to 
 cheat. Where A. had a judgment against B., and B. came to A. and said he would settle 
 it, by paying money in part, and giving a note for the residue ; on which A. drew a receipt 
 in full in discharge of the judgment, and B. got possession of the receipt without paying 
 the money or giving the note ; the indictment charged him with having obtained the receipt 
 falsely, fraudulently, and deceitfully, and under false arts, colours, and pretences, and under 
 pretence that he had the money in his pocket, and would pay it immediately and give his 
 note for the residue, it was held upon these facts, that there was no false token, but only a 
 false assertion, and that an indictment would not lie. There was a motion in arrest of 
 judgment in this case which succeeded. The court say : " In the present case we search in 
 vain for the false token. There was nothing beyond the defendant's false assertion that he 
 was ready to pay the judgment ; there was not even the production of either note or money, 
 and common prudence would have dictated the withholding the receipt until the money was 
 paid, and the note drawn. To support this indictment would be to overset established 
 principles." The People v. Babcock, 7 Johns. Rep. 201. {See also 14 Johns. 371, People 
 v. Miller. 9 Cowen, 578.} 
 
 A person that obtains goods under a pretence that he lived with, and was employed by. 
 A. B. who sent him for them, is indictable for obtaining goods by false pretences, under the 
 statute' sess. 36, c. 29, s. 13. The statute provides that if any person shall knowingly and 
 designedly by false pretence, obtain any money, goods, or chattels, &c, with intent to cheat 
 or defraud any person, he shall be punished, &c. This is a transcript of the English statute 
 of 30 G. 2, ch. 24, which, according to the English decisions, has been considered as extend- 
 ing the common law offence of cheating, and as introducing a new rule of law. The sta- 
 tute of 9 Geo. 2, is considered in England as extending to every case where a party has ob- 
 tained money or goods by falsely representing himself to be in a situation in which he 
 was not, or by falsely representing any occurrence that had not happened, to which persons 
 of ordinary caution might give credit. (4 T. R. 98.) The ingredients of the offence are, ob- 
 taining the goods by false pretences, and with an intent to defraud. If the false pretence 
 produced the credit it has been considered as bringing the case within the statute. (2 
 East, C. L. 830.) The People v. Johnson, 12 Johns. Rep. 292. 
 
 Where a person got possession of a promissory note by pretending that he wished to 
 look at it, and then carried it away, and refused to deliver it to the holder, it was held that 
 this was merely a private fraud, and not punishable criminally, according to the doctrine, 
 laid down in the case of the People v. Babcock, 7 Johns. Rep. 204. Qusere. If the original 
 intention was to take away the note, when delivered upon request, and to destroy or con- 
 vert it to the party's own use, is it not felony ? 
 
 {See Revised Statutes, Vol. ii. 667.} 
 
 Pennsylvania. — It is an indictable offence in a public officer to impose false marks on 
 stores provided for the army of the United States, whereby the public is injured. The de- 
 fendant in this case was a baker, employed by the army of the United States, and was 
 indicted for a cheat in baking a number of barrels of bread, and marking them as weighing 
 eighty-eight pounds each, whereas in fact they weighed only sixty-eight pounds. The de- 
 fence was that false tokens are only indictable by the statute of 33 H. 8, c. 1, which had no 
 operation in Pennsylvania. The answer by the Attorney-General was, that the defeudant's
 
 274 OF CHEATS A5TD FRAUDS AT COMMON LAW. [BOOK IV. 
 
 has a recourse to fraudulent means in the first instance, and therehy 
 succeeds to the extent of inducing the owner not only to deliver the 
 possession of the goods to him but absolutely to part with the property 
 in them, though such a taking will not as we have seen, be considered 
 as felonious and amounting to larceny,/fe) yet if effected by means of a 
 false pretence, it will come within the enactment of the 7 & 8 Geo. 4, 
 c. 29, s. 53, and be punishable as a misdemeanor. And that statute, 
 reciting thefrequent failure of justice from the subtle distinction between 
 larceny and fraud, provides, that if upon the trial of any person indicted 
 for such misdemeanor, it shall be proved that he obtained the property 
 in question in any such manner as to amount in law to larceny, he shall 
 not by reason thereof, be entitled to be acquitted of such misdemeanor. 
 There are also other statutes which relate to particular cheats and frauds 
 therein specified. And besides the offences of this kind punishable by 
 statute, the common law also provides for the punishment of many of 
 such cheats and frauds as may affect the public welfare. It was decided 
 Tbere rnnst t }j a t j n or( j er to constitute a cheat properly so called, there must be a 
 
 be a preju- . ' ,. .. . , ii 11 / 
 
 .lice in the prejudice received, both at common law and under the statutes (now 
 partj chca- repealed) of 33 Hen. 8, c. 1, and 30 Geo. 2, c. 24. (c) 
 
 In treating of these offences we may consider; I. Of cheats and 
 frauds punishable at common law. II. Of cheats and frauds by means 
 of false pretences, within the 7 & 8 Geo. 4, c. 29, s. 53 ; and III. Of 
 some of the cheats and frauds punishable' by other statutes. 
 
 *275 • *SECT. I. 
 
 Of Cheats and Frauds Punishable at Common Law. 
 
 Cheats Those cheats which are levelled against the public justice of the 
 
 against kingdom are indictable at common law.(VA Judicial acts done without 
 
 public ° '-'... 
 
 justice. authority, in the name of another, are cheats of this description ; but as 
 they are generally attended by a false personating of some one, they 
 will come under consideration in a subsequent chapter.(e) It may 
 briefly be mentioned in this place, that with respect to a precedent of an 
 indictment against a married woman, for pretending to be a widow, and 
 as such executing a bail bond to the sheriff for one arrested on a bail- 
 able writ, it is observed, that perhaps this was considered as a fraud 
 upon a public officer in the course of justice. (A And another case 
 should be noticed, where, upon an application to the Court of King's 
 Bench to discharge a defendant who had been holden to bail under a 
 judge's order, made upon an affidavit of debt sworn before a magistrate 
 
 (b) Ante, p. 24, et seq. And see the opinion of Eyre, B., on the debate in Pear's ease. 2 
 . East, P. 0. c. 16, s. 122, p. 689, note (a). 
 
 (c) Ward's case, 13 Geo. 1. 2 Lord Raym. 1461. 2 Str. 747. 2 East, P. C. c. 19, s. 7, 
 p. 860, 861. 
 
 (d) 2 East, P. C. c. 18, S. 4, p. 821. (e) Post, Chap. Of Falsely Personating, $c. 
 (f) 2 East, P. C. c. 18, s. 4, p. 821, citing Rex v. Blackburn, M. 3*6 Car. 2. Treni. P. C. 
 
 101. Cro. Circ. Comp. 78. 
 
 office was a public trust : and of this opinion were the court. Respublica i\ Powell, 1 
 Dall. 47. 
 
 An indictment may be obtained for a cheat of such a nature as may prejudice others, 
 though it does not charge that any person was actually defrauded. Ibid. 
 
 Cheating with false dice, has been indicted and punished in Pennsylvania. Per MKean, 
 C. J., in Respublica v. Teischer, 1 Dall. 338. 

 
 CHAP. XXXI. § I.] OF CHEATS AND FRAUDS AT COMMON LAW. 275 
 
 at Paris, the court desired that the counsel would speak upon the point, 
 how far the making, or knowingly using such an affidavit, if false, was 
 punishable. (</) And after argument, Lord Ellenborough, C. J., said, that 
 he had not the least doubt, that any person making use of a false instru- 
 ment, in order to pervert the course of justice, was guilty of an offence 
 punishable by indictment. (A) In a former case it had been holden, that 
 a person who, being committed to gaol under an attachment for a con- 
 tempt in a civil cause, counterfeited a pretended discharge, as from his 
 creditor, to the sheriff and gaoler, under which he obtained his dis- 
 charge from gaol, was guilty of a cheat and misdemeanor at common 
 law, in thus effecting an interruption to public justice; although, the 
 attachment not being for non-payment of money, the order was in itself 
 a mere nullity, and no warrant to the sheriff for the discharge. (A 
 
 Those frauds which affect the crown and the public at large, are also Frauds 
 clearly the subject of indictment, though they may arise in the course ^ ectin g 
 of some particular transaction or contract with private individuals. f and public. 
 
 Amongst offences of this description, is the selling of unioholesome *276 
 provisions. (k) And it is said, more largely, that the giving of any Selling un- 
 
 * V ( 1 ■ * l * ** # . * * 7 ■ - wholesome 
 
 ^person unwholesome victuals, not fit tor man to eat, lucri causa, provisions. 
 or from malice and deceit, is undoubtedly, in itself, an indictable 
 offence. (A 
 
 A case is reported, where the indictment against the defendant was, Treeve's 
 that he knowingly, wilfully, deceitfully, and maliciously, did provide, ° ase - . 
 furnish, and deliver to and for eight hundred French prisoners of war, prisoners'^ 
 whose names were unknown, and being under the protection of the king, war witb - 
 confined in a certain hospital, called Eastwood Hospital, divers large some food 
 quantities, to wit, five hundred pounds weight of bread, to be eaten as not fit to be 
 food by the said French prisoners of war, such bread being then and ^J^^ 
 there made and baked in an unwholesome and insufficient manner, and en to be an 
 then and there being made of, and containing dirt, filth, and other per- ^ictable 
 nicious and unwholesome materials and ingredients, not fit to be eaten 
 by man • and the said defendant then and there well knowing the said 
 bread to be baked in an unwholesome and insufficient manner, and to 
 
 (ff) The authorities referred to for the purpose of showing that it was punishable, were 2 
 Hawk. P. C. c. 22, s. 1, 38 and 39, (which cites Waterer v. Freeman, Hob. 205, 206.) Wor- 
 ley v. Harrison, Dy. 249, (a), pi. 84. Rex v. Mawbey, 6 T. R. 619, 635. Rex v. Crossley, 
 7 T. R. 315, and 2 East, P. C. 821, which cites the authorities mentioned, ante, note (/). 
 
 (h) Omealey v. Newell, 8 East, 364, and his lordship said that the case of the King v. 
 Mawbey, (ante, note (ff),) went the whole length of the proposition. 
 
 (i) Fawcett's case, York Spr. Ass. 1793, and East. T. 1793. 2 East, P. C. c. 19, s. 7, p. 
 862, and s. 45, p. 952. See the case cited more at large, post, Chap. Of Forgery, s. 2, upon 
 the point of the offence being indictable as a forgery. 
 
 (k) 4 Bla. Com. 162. (I) 2 East, P. C. c. 18, s. 4, p. 822. 
 
 f [The obtaining of a false credit, otherwise than by false tokens, and the removal and 
 secreting of goods with intent to defraud creditors, are not indictable at common law. 
 Hartman v. The Commonwealth, 5 Barr, 60. 
 
 To sustain an indictment at common law, for cheating by a false token, the instrument 
 or device by which the cheat was effected must be calculated to deceive the public ; that is, 
 it must be the semblance of a public and not a private instrument : it must be such as affects 
 or may affect the public. State v. Stroll, 1 Richardson, 244. 
 
 Defendants purchased goods from the prosecutor's clerk, and gave in payment an instru- 
 ment purporting to be a five dollar bank note — the blanks of which were filled up except 
 those opposite the words " Cashier," and " President." In those blanks an illegible scrawl 
 was written, which, on careless inspection might have been mistaken for the names of those 
 officers. Defendants knew before they had passed the instrument that it was worthless. 
 Held, that they were guilty at common law of cheating by a false token. State v. Stroll, 1 
 Richardson, 244.]
 
 276 
 
 OF CHEATS AND FRAUDS AT COMMON LAW. 
 
 [BOOK IV. 
 
 be made of, and to contain dirt, filth, and other pernicious and unwhole- 
 some materials and ingredients, not fit to be eaten as aforesaid ; where- 
 by the said prisoners of war did then and there eat of the said bread, 
 and thereby then and there became distempered in their bodies, and 
 injured and endangered in their healths ; to the great damage of the 
 French prisoners, to the great discredit of our said lord the king, to the 
 evil example, &c, and against the peace, &c.(m) And the defendant 
 having been convicted, it was objected, in arrest of judgment, that the 
 offence as laid was not indictable ; as it did not appear that what was 
 done was in breach of any contrcct with the public, or of any moral or 
 civil duty; and the judgment was respited to take the opinion of the 
 judges upon the point; when they all held the conviction right. (?i\ In 
 this case the defendant was a contractor with government for the sup- 
 plying of provisions to some of the French prisoners then in this coun- 
 try : but the indictment did not state this fact; and it is observed, that 
 it was not material to state it, otherwise than as a matter of aggrava- 
 tion, if such a case wanted any; as there could be no doubt of the 
 offence being in itself the subject of indictment upon the principles 
 already mentioned. (o) 
 
 In a more recent case, the indictment charged the defendant, a baker, 
 with supplying to the Royal Military Asylum at Chelsea, as and for 
 good wholesome household loaves, divers loaves mixed with certain 
 noxious ingredients, not fit for the food of man, which he well knew so 
 to be at the time he so supplied them. It appeared in evidence that 
 many of the loaves delivered by the defendant at the Military Asylum 
 on a particular day were strongly impregnated with alu?n, and that 
 there were found in them several pieces of alum in its chrystaline form 
 as large as horse beans; the tendency of alum to injure the health was 
 also proved; and a statute, 37 Geo. 3, c. 98, s. 21, referred to, by 
 which the use of alum in the making of bread is prohibited under a 
 penalty. On the part of the defendant, it was proved that though he 
 permitted alum to be used to assist the operation of the yeast, and to 
 make the loaves look *white, yet, that very great care was employed in 
 the use of it ; that it was first dissolved, and then used in such small 
 quantities, and so equally distributed, as not to be capable of occasion- 
 ing injury; and that if, on any particular occasion, the loaves delivered 
 at this asylum had alum put into them in a different manner, it was 
 quite contrary to the directions and intentions, and wholly without the 
 knowledge or privity of the defendant. x\nd it was contended that 
 these facts completely negatived the averment in the indictment that 
 the defendant, at the time these loaves were delivered, well knew that 
 they were not wholesome, and that they were unfit for the food of man : 
 and it was urged that the defendant could not be criminally responsible 
 for the acts of his servants. But by Lord Ellenborough, C. J., "Whoever 
 introduces a substance into bread, which may be injurious to the health 
 of those who consume it, is indictable, if the substance be found in the 
 bread in that injurious form, although, if equally spread over the mass, 
 it would have done no harm. If a baker will introduce such a sub- 
 stance into his bread, he must do it at his own hazard, and he must 
 
 Dixon's 
 case. 
 
 H olden to 
 be an in- 
 dictable 
 offence for 
 a baker to 
 sell bread 
 containing 
 alum in a 
 shape 
 which ren- 
 ders it 
 noxious, 
 although 
 he gave 
 directions 
 to his ser- 
 vants to 
 mix it up 
 in a man- 
 ner which 
 would have 
 rendered it 
 harmless. 
 
 *277 
 
 (m) There were eight other counts in the indictment, charging the offence to have been 
 done at different times, and in different prisons. 
 
 (n) Treeve's case, 1796. 2 East, P. C. c. 18, s. 4, p. 821. 
 (o) 2 East, P. G. c. 18, s. 4, p. 822. 

 
 CHAP. XXXI. § I.] OP CIIEATS AND FRAUDS AT COMMON LAW. 277 
 
 take especial care that the benefit he proposes to himself, does not pro- 
 duce mischief to others. He is engaged in an illegal act and he must 
 abide the consequences. The statute 37 Geo. 3, c. 98, shows the judg- 
 ment of the legislature with regard to alum, and a medical gentleman 
 has given evidence as to its deleterious effects. If taken in very minute 
 quantities it is innoxious. The same may be said of calomel, and even 
 of arsenic. But would not a baker be answerable for selling bread 
 having these substances mixed with it in a dangerous form, although 
 he intended they should be so equally subdivided over the whole mass 
 which he baked at one time, that no harm could follow ? If the de- 
 fendant was cognizant of the manner in which his business was carried 
 on, and knew that the alum was at all used in the making of the loaves 
 sent to the Military Asylum, which are proved to have contained it to 
 a very dangerous degree, he is guilty of this indictment." And the 
 defendant was accordingly convicted.(jt») The point was afterwards 
 brought under the consideration of the Court of King's Bench, who 
 concurred in the direction of Lord Ellenborough, given at the trial ; 
 and Lord Ellenborough said, " He who deals in a perilous article must 
 be wary how he deals ; otherwise, if he observe not proper caution, he 
 will be responsible."^) 
 
 A case is reported where the court of King's Bench held that the Malaprcae- 
 mala praxis of a physician is a great misdemeanor and offence at com- pij ys i^ an 
 mon law, (whether it be for curiosity and experiment or by neglect,) 
 because it breaks the trust which the party has placed in the physician, 
 and tends directly to its destruction. (r\ 
 
 *In some cases the rendering false accounts and other frauds practised *278 
 by persons in official situations, have been deemed offences so affecting Rendering 
 the public as to be indictable. Thus, where two persons were indicted c * un t s and 
 for enabling persons to pass their accounts with the pay office in such a other 
 way as to enable them to defraud the government; and it was objected r e a r " o ^ g j^ 
 that it was only a private matter of account, and not indictable ; the official 
 court held otherwise, as it related to the public revenue. (s) And instances situations. 
 appear in the books of indictments against overseers of the poor for re- 
 fusing to account,^) and for rendering false accounts. (m) And a pre- 
 cedent is given of an indictment against a surveyor of the highways for 
 converting to his own use gravel which had been dug at the expense of 
 the inhabitants of the parish, and also for employing for his own private 
 gain and emolument the labourers and teams of the parishioners, which 
 
 (p) Rex v. Dixon, cor. Lord Ellenborough, C. J., Guildhall, 1814, 4 Campb. 12. See pre- 
 cedents for similar offences, 2 Chit. Crim. L. 556, et scq. 2 Stark. Crim. Plead. 682. 
 
 (q) Rex v. Dixon, 3 M. & S. 11. And some exceptions to the indictment, taken in arrest 
 of judgment were overruled ; and the court held that the indictment was sufficiently cer- 
 tain without showing what the noxious materials were, or stating that the defendant intend- 
 ed to injure the children's health. Upon the last point Lord Ellenborough, C. J., said that 
 it was an universal principle, that when a man is charged with doing an act, of which the 
 probable consequence may be highly injurious, the intention is an inference of law resulting 
 from doing the act ; and that in this case, it was alleged that the defendant delivered the 
 loaves for the use and supply of the children, which could only mean for the children to 
 eat ; for otherwise they would not be for their use and supply. And see Rex v. Bower, post, 
 279, note (m). 
 
 (r) Dr. Groenvelt's case, 1697, 1 Ld. Raym. 213. 
 
 (*) Rex v. Bembridge and Powell, cited 2 East, 136. Ante, vol. 1, p. 141. 22 St. Tri. 
 (by Howell,) p. 1. 
 
 (0 Rex v. Cummings and another, 5 Mod. 179. 1 Bott. pi. 370. 
 
 (u) Rex v. Martin, 2 Campb. 269. 3 Chit. Crim. L. 701. 2 Nol. (2d ed.) 230, note (4). 
 Ante, vol. 1, p. 141.
 
 278 OF CHEATS AND FRAUDS AT COMMON LAW. [BOOK IV. 
 
 he ought to have employed in repairing the highways. (a;) A case is 
 also mentioned of an application to the Court of King's Bench for an 
 information against the minister and churchwardens of a parish, who 
 had spent the larger part of a sum of money, collected by a brief for 
 certain sufferers by fire, at tavern entertainments, and then returned, 
 upon the back of the brief, that a smaller sum only was collected ; and 
 the court, though they refused the information, yet referred the prose- 
 cutors to the ordinary remedy by indictment. (y) A fraud committed 
 by a parish officer, in procuring the marriage of a pauper, so as to throw 
 the burthen of maintaining such pauper on another parish, may also, as 
 we have seen, be an indictable offence. (z) And several precedents 
 are given of indictments for misdemeanors in procuring sick and impo- 
 tent persons, standing in need of immediate relief, to be conveyed into 
 parishes where they had no settlements, and in which they shortly after- 
 wards died, thereby causing great expense to the inhabitants of such 
 parishes, (a) 
 False news. It is said to have been resolved by all the judges that writers of false 
 news are indictable and punishable ; and that probably at this day the 
 fabrication of news, likely to produce any public detriment, would be 
 considered as criminal. (6) 
 Fraud in Where an indictment charged that the defendant, being an appreu- 
 tke^sUng ^ ce ? an ^ fraudulently intended to obtain money from the paymaster of 
 asasoldier, a regiment, and to defraud the king, &c, procured himself to be en- 
 ? n °, listed as a soldier, without the consent of his master, by means whereof 
 
 king's he fraudulently obtained from the paymaster divers sums of money, well 
 bounty, knowing himself to be, without the consent of his master, disqualified 
 from serving as a soldier, to the great deceit, fraud, &c, of the king, 
 &c, it appears to have been admitted that this was an offence at com- 
 mon law. But the conviction was holden bad, on the ground that the 
 *279 necessary proof of the indenture of apprenticeship had not been given 
 at the trial, there being two subscribing witnesses to the indenture, and 
 neither of them having been produced. (c\ The offence is now made 
 punishable by a provision of the Mutiny Acts. 
 Falsely A case is mentioned where a person, falsely pretending that he had 
 
 a'power'to P ower to discharge soldiers, took money from a soldier to discharge him ; 
 discharge and being indicted for this offence, the court held the indictment to be 
 soldiers. good .^ 
 
 Fraud by A curious species of fraud may be here mentioned. It is laid down 
 
 ™^ 1 ™ 1 t ° gin in the books that, by the common law, if a person maim himself in or- 
 
 haveapre-der to have a more specious pretence for asking charity, or to prevent 
 
 tence to jjis De i n g impressed as a sailor, or enlisted as a soldier, he may be in- 
 
 _, . , dieted, and, on conviction, fined and imprisoned. (e) 
 Cheats by ' ' , ' * \, J 
 
 means of Besides the offences which have been here mentioned, there are other 
 
 false instances of cheats clearly affecting the public, and therefore indictable ; 
 
 measures, namely, such cheats as are effected by means of false weights or mea- 
 ty 3 Chit. Crim. L. 666, et seq. 
 
 (y) Rex v. The Minister, &c, at St. Botolph, 1 Black. Rep. 443. 
 (z) Ante, vol. 1, p. 137. Rex v. Tarrant, 4 Burr. 2106. 
 
 (a) 3 Chit. Crim. L. 698, et seq. And see ante, vol. 1, p. 137. 
 
 (b) Starkie on Lib. 546, citing 4 Read, S. L. Dig. L. L. 23. Et vide Hale's Sum. 132 ct 
 per Scroggs, C. J. Rex v. Harris, at Guildhall, 1680. 7 St. Tri. (by Howell.) 929, 930. 
 
 (c) Jones's case, 1 Leach, 202. 
 
 (d) Serlestead's case, Latch, 202. 
 
 (e) 1 Hawk. P. C. c. 55. Of Maiming, £c, s. 4. 1 Hale, 412, Co. Lit. 127, a.
 
 CHAP. XXXI. § I.] OF CHEATS AND FRAUDS AT COMMON LAW. 279 
 
 sures, which are considered as instruments or tokens purposely calcu- 
 lated for deceit, and by which the public in general may be imposed 
 upon without any imputation of folly or negligence. And this reason- 
 ing is considered as applying to all cases where any species of false 
 token is used which has the semblance of public authenticity :(/) as to 
 a case where cloth was sold with the alneager's seal counterfeited 
 thereon ;(#) and to another case where a general seal or mark of the 
 trade on cloth of a certain description and quality was deceitfully coun- 
 terfeited^/*) And the instances mentioned in the books of cheating by 
 means of false dice, &c.,(t) are referred to the same principle. (j) 
 
 If, therefore, a person selling corn should measure it in a bushel 
 short of the statute measure, or should measure it in a fair bushel, but 
 put something into the bushel to help to fill it up, it seems that he 
 might be indicted for the cheat.(/c) And a precedent was given of an 
 indictment against a baker, who had contracted with a guardian of the 
 poor, in the city of Norwich, to supply bread for the use of the poor, 
 for delivering bread deficient in weight.(^) And though the knowingly 
 exposing to sale and selling wrought gold, under the sterling alloy, as 
 and for gold of the true standard weight, was holden not to be an in- 
 dictable offence, but a private imposition only, in a common person, 
 where no false weight or measure, was used ;(m) *yet if in such case the *280 
 stamps or marks, required by statute on plate of a certain alloy, had 
 been falsely used, it should seem that an indictment might have been 
 sustained. (n) In the case in question the gold was not marked : and 
 Aston, J., in giving his opinion, said that it was not selling by false 
 measure, but only selling under the standard ; and he cited a case in 
 which it had been holden that selling coals under measure was not an 
 indictable offence, but that selling them by false measure was.(o) And 
 the result of the cases upon this subject appears to be that if a man sell 
 hy false weights, though only to one person, it is an indictable offence ; 
 but if without false weights he sell-to many persons a less quantity than 
 he pretends to do, it is not indictable. (p) 
 
 (/) 2 East, P. C. c. 18, s. 3, p. 820. (g) Edwards's case, Trem. P. C. 103. 
 
 (/*) Worrel's case, Id. 106. As to the deceitful making of linen cloth, see 3 Burn's Just. 
 Linen Cloth, and 1 Eliz. c. 12, s. 1. And as to the deceitful working of woollen cloth, see 
 Burn's Just., Woollen Manufacture. 
 
 (i) Leeser's case, Cro. Jac. 497. Maddock's case, 2 Rol. R. 107. 2 Rol. Ab. 78. The 
 practice is now further punishable by penalties under the statutes 16 Car. 2, c. 7, and 9 
 Anne, c. 14. 
 
 (j) 2 East, P. C. c. 18, s. 3, p. 820. 
 
 (k) Per Cur, in Pinckney's case, 2 East, P. C. c. 18, s. 3, p. 820. As to the penalties for 
 selling or buying corn otherwise than by the proper measure, see 1 Burn's Just. Corn. 
 
 (1) 2 Chit. Crim. L. 559 ; but it has since been held bad. Ibid. As to the assize of 
 bread, &c, see 1 Burn's Just., Bread. 
 
 (m) Rex v. Bower, Cowp. 323. In this case the sale of the gold was by a servant of the 
 defendant ; but the court agreed that the master was responsible for the act of his servant 
 done in the course of his employment, and within the scope of his authority. And see as 
 to this point, Rex v. Dixon, ante, p. 277. That it would be indictable in a goldsmith to sell 
 gold, (under the statute) see 2 East, P. C. c. 18, s. 3, p. 820, and Cowp. 324. 
 
 (n) 2 East, P. C. c. 18, s. 3, p. 820, note (b). And see 1 East, P. C. c. 4, s. 34, p. 194. 
 where it is said that offenders fraudulently affixing public and authentic marks on goods of 
 a value inferior to such tokens, are liable to suffer at common law upon an indictment for 
 a cheat. 
 
 (o) The case cited was Rex v. Lewis. And the learned judge also cited Rex v. Wheatly, 
 2 Burr. 1125, post, 285. See also Rex v. Driffield, Say. 146. 
 
 (p) Per Buller, J., in the case of Young and others 3 T. R. 204. And see Rex v. Nichol- 
 son, cited in Rex v. Wheatley, 2 Burr. 1130, and Rex v. Dunnage, 2 Burr. 1130 ; Rex v. Drif- 
 field, Say. 146.
 
 280 OF CHEATS AND FRAUDS AT COMMON LAW. [BOOK IV. 
 
 But cheats But though in the cases which have been thus mentioned, an indict- 
 effectedin men t mav > an & m most of them clearly is, maintainable as for a cheat 
 the course or fraud at common law, on the ground that they consist of offences 
 * pnvate which affect, or may affect the public, being public in their nature, and 
 tions he- calculated for the purposes of general fraud and deceit ; yet, other 
 tween inch- cases consisting of cheats or frauds, effected in the course of private 
 
 viduals /cd i 
 
 fall umier transactions between individuals, fall under a different consideration, 
 a different This distinction, however, does not appear to have been at all times pro- 
 tion. 6ra P er ty noticed : and in a book of great authority, cheats, punishable at 
 common law, are denned as " deceitful practices in defrauding or endea- 
 vouring to defraud another of his known right by means of some artful 
 device contrary to the plain rules of common honesty."^) But this 
 Unless definition has been observed upon as not sufficiently distinct or accu- 
 mount to ra t e ; aQ d many of the authorities, from whence it seems to have ori- 
 conspiracy ginated, not involving considerations, either of public justice, public 
 whiclfar'e' trade, or public policy, have been said to be founded either in conspi- 
 substan- racy or forgery, which are in themselves substantive offences, and the 
 tive offen- ] a j.j er f w hich was usually, when successful, prosecuted as a cheat, be- 
 fore the various statutes, by which forgeries were, in so many instances, 
 made capital offences. (;•) 
 Cases of Thus the case mentioned where the suppression of a will was holden 
 
 amount- to be indictable as a cheat, (s) is said to have been probably a case of 
 to conspi- conspiracy or combination.^) And the same explanation is given(u) 
 racy. f> ^ e cage w h ere several persons were indicted for causing an illiterate 
 
 person to execute a deed to his prejudice, by reading it over to him in 
 *281 words different from those in which it was *written :(i) and also of the 
 case of a person who was convicted upon a charge of having run a foot 
 race fraudulently, and with a view to cheat a third person, by a previous 
 Mackarty understanding with the running competitor to win.(x) 
 den " ^ n aaotner case of a cheat at common law, which has undergone con- 
 bourgh's siderable discussion, the indictment charged the two defendants, Mack- 
 nf 6 't f ar ty an( ^ Fordenbourgh, that they falsely and deceitfully intending to 
 fected by a defraud one Chowne of divers goods, together deceitfully bargained 
 conspi- with him to barter, sell and exchange a certain quantity of intended 
 where one wine, as good and true new Portugal wine, of him the said Forden- 
 person pre-bourgh, for a certain quantity of hats, of him the said Chowne; and 
 b^amer- u P on sucn bartering, &c, the said Fordenbourgh, pretended to be a mer- 
 chant and chant of London, and to trade as such in Portugal wines, when, in fact, 
 the other a ] ie wag no guc ^ merc ] ian t, nor traded as such in wines ; and the said 
 
 nroKcr * 
 
 and as such Mackarty, on such bartering, &c, pretended to be a broker of London, 
 bartered w hen, in fact, he was not : and that Chowne, giving credit to the said 
 
 bad wine n .... .. . i i • t i T u i 
 
 for hats, fictitious assumptions, personating, and deceits, did barter, sell and ex- 
 
 (q) 1 Hawk. P. C. c. 71, s. 1. 
 
 (r) 2 East, P. C. c. 18, s. 2, et seq. p. 817, et seq. The distinction between forgery and 
 the general class of cheats was well settled in Ward's case, Hil. T. 13, G. 1. 2 Lord Raym. 
 1461. 2 Str. 747. 2 East, P. C. c. 19, s. 7, p. 860, 861. It was there shown to be imma- 
 terial to the offence of forgery, properly so called, whether any person were prejudiced or 
 not, provided any might have been prejudiced : but that to constitute a cheat, properly so 
 called, there must be a prejudice received both at common law, and under the statutes 33 
 Hen. 8, c. 1, and 30 Geo. 2, c. 24, now repealed. 
 
 (s) 1 Hawk, P. C. c. 71, s. 1, citing Rex v. Brereton and others, Noy. 103. 
 
 \t) 2 East, P. C. c. 18, s. 5, p. 823. («) Id. ibid. 
 
 (v) Rex v. Skirret and others, 1 Sid. 312, cited in 1 Hawk. P. C. c. 71, s. 1, and Rex v. 
 Parris and others, 1 Sid. 431. 
 
 (x) Rex v. Orbcll, 6 Mod, 42, cited in the note to 1 Hawk. P. C. c. 71, s. 1.
 
 CHAP. XXXI. § I.] OP CHEATS AND FRAUDS AT COMMON LAW. 281 
 
 change, to Fordenbourgh, and did deliver to Mackarty, as the broker 
 between Chowne and Fordenbourgh, for the use of Fordenbourgh, a 
 certain quantity of hats, of such a value, for so many hogsheads of the 
 pretended new Portugal wine; and that Mackarty and Fordenbourgh, 
 on such bartering, &c, affirmed that it was true new Lisbon wine of 
 Portugal, and was the wine of Fordenbourgh, when in fact it was not 
 Portugal wine, nor was it drinkable or wholesome, nor did it belong to 
 Fordenbourgh; to the great deceit and damage of the said Chowne, and 
 against the peace, &c.(,y) Upon this case considerable doubts were en- 
 tertained; but it seems that, ultimately, judgment was given for the 
 crown, and that the true ground of such judgment was, that it was a 
 case of conspiracy. (z\ And even if it were not a case of conspiracy, 
 yet as the cheat was effected by means of bartering pretended port wine, 
 which the indictment alleged was not wholesome, nor fit to drink, the 
 vending of such an article for drinking was clearly indictable ;(a) and 
 within the principle already mentioned, of cheats or frauds, by which 
 the public may be affected. (&) 
 
 In one of the principal cases where the cheat was effected by means Gover's 
 of a forged instrument, the indictment charged that the defendant, in- case - 
 
 . . Cheat ef- 
 
 tending to cheat J. S., did deceitfully take upon himself the style andf ec ted by 
 character of a merchant, and did deceitfully affirm to J. S. that he was means of a 
 a merchant, and had received divers commissions from Spain; and, in s trument." 
 order to induce J. S. to believe the same, and to *give him credit, the # 282 
 defendant deceitfully produced to J. S. several paper icritings, ichichhe 
 falsely affirmed to be letters from Spain, containing commissions for 
 jewels, watches and other goods, to the amount of 4,000?. ; by means 
 whereof the defendant got into his hands two watches, the property of 
 J. S. : whereas, in truth, the defandant was not a merchant ; and the 
 paper writings, containing such commissions, were false and counterfeit. 
 And it does not appear that the indictment concluded against the form 
 of the statute, though the false tokens made use of came directly within 
 the 33 Hen. 8, c. 1, (now repealed. )(c) But it is observed, that if this 
 were sustained as an indictment at common law, the fraud being prac- 
 tised in a private transaction, and the false tokens mere private letters, 
 having no semblance of public authenticity, the only ground on which 
 the judgment can be maintained, without going the length of saying 
 that the 33 Hen. 8, c. 1, was merely declaratory of the common law, 
 is, that the cheat was effected by means of a forgery, (in which all are 
 principals at common law ;) and that the publication of such forged in- 
 struments, for the purpose of deceit, was itself a substantive offence, in- 
 dictable at common law.(rf) And in a case where the defendant was in- other eases 
 
 (y) Reg. v. Mackarty and Fordenbourgh, 2 Lord Raym. 1179. 3 Lord Raym. 235. 2 
 Burr. 1129. 
 
 (z) 2 Lord Raym. 1184. 2 Burr. 1129. 2 East, P. C. c. 18, s. 1, p. 824. Upon a recent 
 discussion of this case, (in Rex v. Southerton, 6 East, 133,) it was objected to such con- 
 struction that the word conspired was not in the indictment ; but in 2 East, P. C. ubisupra, 
 it is stated that, though the indictment did not charge that the defendants conspired, 
 eo nomine, it charged that they, together, &c, did the acts imputed to them ; which might 
 be considered to be tantamount. 
 
 (a) By Lord Ellenborough, C. J., in Rex v. Southerton, 6 East. Rep. 133. 
 
 (b) Ante, p. 275, el seq. The sale of corrupted wine, contagious or unwholesome flesh, 
 &c, is prohibited by an ancient statute, 51 Hen. 3, st. 6, and the ordinance for bakers, c. 
 7, under severe penalties. And, by the stat. 12 Car. 2, c. 25, s. 11, any brewing or adulte- 
 ration of wine is punished with the forfeiture of 100Z. if done by the wholesale merchant, 
 and 40?. if done by the vintner, or actual trader. See 4 Bla. Com. 102. 
 
 (c) Rex v. Covers. 2 Say. 20(1. 2 East. P. C. c. 18. s. 6. p. 824, 825. 
 \d) 2 East, P. C. c. 18, s. 6, p. 825.
 
 282 OF CHEATS AND FRAUDS AT COMMON LAW. [BOOK IV. 
 
 of forgeries dieted for falsely and deceitfully obtaining 450^. from one W. Harle, by 
 as cheatsat a ^ a ^ se t°ken, viz. a promissory note, in the name of R. Hales, payable 
 common to J. E., &c., with a counterfeit indorsement thereon, the jury were 
 law. directed that they must find the defendant guilty if it appeared to be a 
 
 forged instrument; the instrument being a false token. (e) But a forgery 
 could not, it seems, be prosecuted at common law as a cheat, unless it 
 were successful ; as in a case where the defendant was convicted of for- 
 gery at common law of an acquittance, the court said, that there was 
 no reason why the offence should not be punished as a forgery, as well 
 as if the thing fabricated had been a deed, but that it could not be pro- 
 secuted as a cheat at common law without an actual prejudice, which 
 was an obtaining on the statute 33 Hen. %•(/) 
 The more It does not appear, therefore, that these cases, when duly examined, 
 accurate are con trary to that which has been given as a more accurate definition 
 of cheats, of cheats and frauds, punishable at common law, namely, " The fraudu- 
 &c, at l en t obtaining the property of another, by any deceitful and illegal 
 law practice or token, (short of felony) which affects or may affect the 
 
 describes public."(g\ And there are many cases by which it is supported, tend- 
 afiectine * n » to snow ^ at a cheat or fraud, effected by an unfair dealing and im- 
 the public, position on an individual, in a private transaction between the parties, 
 
 cannot be the subject of an indictment at common law. 
 Cheats by In several of these cases of impositions upon individuals in private 
 means of a transactions, which have been holden not to be indictable, the cheat was 
 
 bare he, or .,' „. _ . . .. _, .,. 
 
 false affir- effected by a mere raise affirmation, or bare he. Ihus an indictment 
 
 mation, in was quashed, upon motion, which charged the defendant with selling at 
 
 transaction market a sack of corn, which he *falsely affirmed to be a Winchester 
 
 holden not bushel, whereas it was greatly deficient, and the court said, that this was 
 
 datable" no more than telling a lie. (A) And an indictment was also quashed 
 
 *283 which charged the defendant with selling to a person eight hundred 
 
 weight of gum, at the price of seven pounds by the hundred weight, 
 
 falsely pretending and affirming that the gum was gum seneca, and that 
 
 it was worth seven pounds by the hundred weight, whereas, in truth, 
 
 the gum was not gum seneca, but a gum of an inferior kind, and was 
 
 not worth more than three pounds by the hundred weight. (i\ And a 
 
 case was holden not to be indictable where the defendant obtained 
 
 money of another, by pretending that he was sent by a third person 
 
 for it; and Holt, C. J., said, "Shall we indict one man for making a 
 
 fool of another ? Let him bring his action. "(A- ) In another case the 
 
 (e) Hale's case, cor. Pengelly, C. B., and other judges, 1729, 9 St. Tri. 75. 5 East, P. 
 C. c. 18, s. 6, p. 825 : a case of misdemeanor at common law, before the statute making the 
 offence felony. 
 
 (/) "Ward's case, 2 Str. 747. And see further the authorities collected upon the subject 
 in 2 East, P. C. c. 18, s. 2, p. 817, note (a), and Id. s. 6, p. 825. 
 
 (g) 2 East, P. C. c. 18, s. 2, p. 818. 
 
 (h) Pinckney's case, 2 East, P. C. c. 18, s. 2, p. 818, cited in 2 Burr. 1129. But see ante, 
 p. 280 ; that this case might have come under a different consideration if the vendor had 
 fraudulently measured the corn. 
 
 (f) Rex v. Lewis, Say. 205. Indictments quashed upon motion may be considered as 
 authorities : but no stress can be laid on several cases to be found in the books, particu- 
 larly in Mod. Rep., where indictments of this kind were refused to be quashed upon motion, 
 because it Wa3 the practice of the court, as often declared, not to quash on motion, indict- 
 ments for offences founded in fraud or oppression, but leave the defendant? to plead : 2 East, 
 P. C. c. 18, s. 2, p. 818, note (a), citing 5 Mod. 13, 6 Mod. 42, 12 Mod. 409. 
 
 (k) Reg. v. Jones, 1 Salk. 379. 2 Lord Raym. 1013. And see also Leg. v. Hannon, 6 
 Mod. 311, and '2 Hawk. P. C. c. 71, s. 2 : and Xehuff's case, Salk. 151, where the defendant 
 borrowed 000?. of a feme covert, and promised to send her fine cloth and gold dust, as a
 
 CIIAP. XXXI. § I.] OF CHEATS AND FRAUDS AT COMMON LAW. 283 
 
 indictment set forth, that the defendant came to the shop of a mercer, 
 and affirmed that she was a servant to the Countess of Pomfret, and was 
 sent by her from St. James's to fetch silk for the queen, endeavouring 
 thereby to defraud the mercer, whereas, in fact, she was no servant of 
 the Countess of Pomfret, nor was sent upon the queen's account; and 
 it was moved, in arrest of judgment, that this was not an indictable 
 offence, there being no false token, nor any actual fraud committed, and 
 the* court arrested the judgment, saying, that the case was no more than 
 telling a lie.0 
 
 And it appears that the same construction will prevail, though the And the 
 defendant make use of an apparent token, which in reality is, upon the same ,? on ' 
 very face of it, of no more credit than his own assertion. (m\ An in- will prevail 
 dictment at common law charged that the defendant, deceitfully intend- though an 
 ing, by crafty means and devices, to obtain possession of certain lottery token be 
 tickets, the property of A., pretended that he wanted to purchase them usecl > if il 
 for a valuable consideration, and delivered to A. a fictitious order, for ^ ° e credit 
 payment of money, subscribed by him the defendant, &c, purporting to than the 
 be a draft upon his banker for the amount, which he knew he had no a*sertion Wn 
 authority to draw, and that it would not be paid, but which he falsely Lara's 
 pretended to be a good order, and that he had money in the banker's ?u Se w hei i e 
 hands, and that it would be paid, by virtue of which he obtained posses- ant gave a 
 sion of tickets, and defrauded the prosecutor of the value. And the de- ?k eck u P on 
 fendant having been convicted, the Court of King's Bench arrested the which he 
 judgment. Grose, J., said, lt That, in order to make this case some- knew he 
 thing more than a bare naked lie, it had been said *that the defendant aut h rity 
 used a false token, for that he gave a check on his banker; but that was t° draw, 
 only adding another lie ; and that if the court should determine that this ^"^ a * \ 
 case was indictable, he did not know how to draw the line, for it might be paid, 
 equally be said that every person who overdrew his banker used a false 284 
 token, and might be indicted for it." Lawrence, J., said, "It is admit- 
 ted that a mere false assertion, unaccompanied by a recommendation, is 
 not indictable, and, I think, there is nothing in the case beyond the de- 
 fendant's own false assertion."^) So in a case where the defendant, Wilder's 
 a brewer, was indicted for a cheat, in sending to the keeper of an ale- casejwhero 
 
 i iri 77 j. ■ • i the defend- 
 
 house so many vessels ot ale, marked as containing such a measure, ant gent 
 and writing a letter to him, assuring him that they did contain that vessels of 
 measure, when in fact, they did not contain such measure, but so much a S \™ntain- 
 less, &c. ; the indictment was quashed upon a motion after argument, as ing a cer- 
 containina; no criminal charge, (o) Foster, J., indeed, doubted, concern- tam mea : 
 
 o , . ° . V / . ' ' '. ' sure; and 
 
 ing this case when it was cited, because it seemed to him that the vessels wrote a let- 
 being marked as containing a greater quantity than they really did, * er a ffi rm - 
 were false tokens.^p} But as it does not appear that cheating, by vessels 
 
 pledge, and sent no gold dust, but some coarse cloth, -worth little or nothing ; and the court 
 said that it was not a matter criminal, and that it was the prosecutor's fault to repose such 
 a confidence in the defendant. 
 
 (I) Rex v. Bryan, 2 Str. 896. In the case as cited in 2 East, P. C. c. 18, s. 2, p. 819, it 
 is said that the defendant obtained the goods. 
 
 (m) 2 East, P. C. c. 18, s. 2, p. 819. 
 
 (n) Rex v. Lara, 1796, 6 T. R. 565. 2 Leach, 652. 2 East, P. C. c. 18, s. 2, p. 819. But 
 see in Rex v. Jackson, post, p. 819, a different doctrine laid down upon an indictment on 
 the statute 36 Geo. 2. c. 24, as to a check drawn on a banker with whom the party keeps 
 no cash. And see Rex v. Parker, post, p. 298, et scq. 
 
 (o) Rex v. Wilders, cited by Lord Mansfield, and supplied by Denison, J., in Rex v. 
 Wheatly, 2 Burr. 1128. 
 
 (p) 2 Burr. 1129.
 
 284 OF CHEATS AND FRAUDS AT COMMON LAW. [BOOK IV. 
 
 contained means of mere private or privy tokens, were punishable at common law, 
 
 sure mea without the aid of the 33 Hen. 8, c. 1, (now repealed,)^) it was well 
 
 observed, upon this doubt of the learned judge, that possibly the court, 
 
 in deciding the case, thought that those marks, not having even the 
 
 semblance of any public authority, but being merely the private marks 
 
 of the dealer, did, in effect, resolve themselves into no more than the 
 
 dealer's own affirmation that the vessels contained the quantity for which 
 
 they were marked, (r)"}" 
 
 Channel's Where an indictment charged the defendant, for that he, keeping a 
 
 case. A common grist-mill, and being employed by one Bare to grind three 
 
 charged bushels of wheat, did, with force and arms, unlawfully take and detain 
 
 with de- forty-two pounds weight of wheat, judgment was given for the defend- 
 
 corn'^eld ant upon a demurrer, there being no actual price laid, nor any charge of 
 
 matter of a taking as for unreasonable toll, and it being a matter of a private nature, 
 
 ture, B not ^ f0r Which an aCti0n WOuld He -( S ) 
 
 indictable. The following case has been considered to have clearly established 
 Wheatly's the true boundary between those frauds that are, and those that are not 
 case. Sel- indictable at common law. (t) The defendant, a brewer, was charged by 
 
 ling sixteen .-,. \ ' n i , i • . t i j ■ ii 
 
 gallons of an indictment at common law, lor that he, intending to deceive and de- 
 liquor in- fraud one Richard Webb of his money, falsely, fraudulently, and de- 
 ei^hteen ceitfully sold and delivered to him sixteen gallons of amber, for and as 
 holden to eighteen gallons of the same liquor, and received fifteen shillings, as for 
 unfaV an eighteen gallons, knowing there was only sixteen gallons. And this 
 dealing, was holden clearly not to be an indictable offence, but only a civil in- 
 and lmpo- i ur y f or w hich an action lay to *recover damages. Lord Mansfield, C. 
 
 sition onan 1 ' •" J .7° . .. 
 
 individual, J-, said, "It amounts only to an untair dealing, and an imposition on 
 
 and not an this particular man, by which he could not have suffered but from his 
 
 offence. own carelessness, in not measuring the liquor when he received it, 
 
 *285 whereas fraud, to be the object of criminal prosecution, must be of that 
 
 kind, which, in its nature, is calculated to defraud numbers, as false 
 
 weights or measures, false tokens, or where there is a conspiracy."(w) 
 
 The doctrine that an indictment for a cheat at common law cannot be 
 maintained upon a mere false affirmation, has been subsequently recog- 
 nized, (x) 
 Haynes's And in a case of recent occurrence, the doctrine of a transaction in 
 case. The the nature of an unfair dealing, and imposition upon any particular in- 
 a transac- dividual, not being an indictable offence at common law, was still fur- 
 tion in the ther established. The indictment, in substance, charged the defendant, 
 unfair ° a m ilier, with receiving good barley to grind at his mill, and delivering 
 dealing, a mixture of oat and barley meal, different from the produce of the 
 and mipo- Dar ] e y an d which was niusty and unwholesome : and the defendant 
 
 sition upon . . , p i m • • i /. . 
 
 a particular having been tound guilty, it was assigned for error, amongst other things, 
 individual, that no indictable offence was charged against him. As to one of the 
 
 (?) 2 East, P. C. c. 18, s. 5, p. 833, 834. 
 
 (r) 2 East, P. C. c. 18, s. 3, p. 820. 
 
 (*) Channel's case, 2 Str. 793, 2 East, P. C. c. 18, s. 2. 818. And see Rex v. Haynes, 
 post, p. 285. 
 
 (t) By Lord Kenyon, C. J., in Lara's case, 6 T. R. 569. 
 
 («) Whetly's case, 2 Burr. 1125. 1 Black. Rep. 273. 2 East. P. C. c. 18, s. 2, 818. And 
 see ante, 280, et seq. 
 
 (z) By Lord Kenyon, C. J., in Rex v. Gibbs, 1 East, R. 185. 
 
 f [Fraud to be indictable must be such as affects the public. When charged to have 
 been effected by means of a false token, the token must be such as indicates a general intent 
 to defraud ; a mere privy token or counterfeit letters in other men's names seems not to come 
 within the meaning of false token as used at common law. People v. Stone, 9 Wend. 182.]
 
 QHAR XXXI. § I.] OF CHEATS AND FRAUDS AT COMMON LAW. 285 
 
 grounds upou wliich it was contended that the offence charged was not not being 
 indictable, namely, that the statement should have been, that the de- 1 " dlctable 
 
 n i ii* Tiii i n *^ common 
 
 fondant delivered the barley " to be eaten as for food," and that it was law, fur- 
 "not fit to be eaten by man ;"(?/) Lord Ellenborough, C. J., said, that JJj ? s J ab " 
 if the indictment had alleged that the defendant delivered the barley this case 
 as an article for the food of man, it might possibly have been sustained, where a 
 but that he could not say that its being musty and unwholesome, ne- dialed '^ 
 cessarily, and ex vi termini, imported that it was for the food of man, wi *^ re - 
 and it was not stated that it was to be used for the sustentation of man, good^ar- 
 only that it was a mixture of oat and barley-meal. As to the other ley to 
 point, that this was not an indictable offence, because it respected a f" ncl -ii at i 
 matter transacted in the course of trade, and where no tokens were ex- delivering 
 hibited by which the party acquired any greater degree of credit ; his meal j?L re ~ 
 lordship said that, if the case had been that this miller was owner of a ent from 
 soke mill, to which the inhabitants of the vicinage were bound to resort, the produce 
 in order to get their corn ground, and that the miller, abusing the con- i ey and 
 fidence of this his situation, had made it a colour for practising a fraud, mu sty, &c, 
 this might have presented a different aspect, but, as it then stood, it hoiden^not 
 seemed to be no more than the case of a common tradesman who was to be in- 
 guilty of a fraud in a matter of trade or dealing, such as was adverted tllctable - 
 to in Rex v. Wheatly, and the other cases, as not being indictable. (z\\ 
 
 Again, in a still more recent case, where the indictment against the Pywell's 
 defendants was for a conspiracy to cheat and defraud the prosecutor by ° a ^: 
 selling him an unsound horse ; and the case did not *upon the evidence, unsound 
 assume the shape of a conspiracy; Lord Ellenborough, C. J., said, that hor f e not 
 if such a transaction were to be considered an indictable offence, then *9Qf: ' 
 instead of all the actions which had been brought on warranties, the de- 
 fendants ought to have been indicted as cheats ; and that no indictment 
 in a case like this could be maintained, without evidence of concert be- 
 tween the parties to effectuate a fraud. And the defendants were, ac- 
 cordingly, acquitted. (a) 
 
 These cases seem sufficient to support the definition above adopted, (i) 
 and to show that the cheat or fraud must be effected by some deceitful 
 and illegal practice or token, which affects, or may affect the public, in 
 order to be indictable at common law. And it seems also to result from 
 these cases that a cheat or fraud, in order to be punishable by the com- 
 mon law, must be such against which common prudence could not have 
 guarded. (c) Indeed it can hardly be supposed that a cheat will much 
 affect the public which is open to the detection of any man of common 
 prudence. 
 
 With respect to the indictment for a cheat or fraud at common law, indict- 
 it may be brieflly observed, that where the transaction has been effected mer >t. 
 
 (y) See Treeve's case, ante, 276. 
 
 (z) Rex v. Haynes, 4 M. & S. 214. Qu. Therefore the case of Rex v. Wood, 1 Sess. Cas. 
 217, where the defendant being a miller, and indicted for changing corn delivered to him to 
 be ground, and giving bad corn instead of it ; a motion was made to quash the indictment, 
 because the transaction was only a private cheat, and not of a public nature : but it was 
 answered that, being a cheat in the way of trade, it concerned the public ; and the court 
 were unanimous not to quash it. And see the observations as to the authority of cases of 
 this kind, in which the court refused to quash the indictment, ante, p. 283, note (i). 
 
 (a) Rex v. Pywell and others, 1 Stark. R. 402. (b) Ante, p. 282. 
 
 (c) 1 Hawk. P. C. c. 71, s. 1, 2. Rex v. Wheatly, 2 Burr. 1125, ante, p. 284. By Fielding, 
 arguendo in the case of Rex v. Young and others, 3 T. R. 99, assented to by Buller, J., lb. 
 104, but see ante, p. 289. 
 
 f {See Commonwealth v. James, 1 Pick. 375.} 
 
 Vol. ii.— 19
 
 286 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK TV. 
 
 by false tokens, and the offence is so charged, it is necessary to specify 
 and set forth what the tokens were ; and it is not sufficient to allege 
 generally that the cheat was effected by certain false tokens or false pre- 
 tences, (e?) But it does not seem to be necessary to describe them more 
 particularly than they were shown or described to the party at the time, 
 and in consequence of which he was imposed upon ; and it is also said 
 not to be necessary to make any express allegation that the facts set forth 
 show a false token. (e) An objection appears to have been made to one 
 of the counts of an indictment for a cheat at common law, that it charged 
 the false pretence to have been made to one person, and the deceit to 
 have been practised on a different person. (/) 
 Punish- The punishment of this offence at common law is, as in other cases 
 
 ment. f misdemeanor, by fine, imprisonment, or further by infamous corporal 
 
 pain, in aggravated cases. (c/\ 
 
 SECT. II. 
 
 Of Cheats and Frauds hy means of False Pretences, Within the statute 
 7 & 8 Geo. 4, c. 92, s. 53. 
 
 The 7 & 8 Geo. 4, c. 29, s. 53, reciting that a failure of justice fre- 
 op quently arose from the subtle distinction between larceny and fraud, 
 4"c 29, s." for remedy thereof, enacts, " that if any person shall by any *false pre- 
 33. Ob- tence obtain from any other person any chattel, money, or valuable 
 money S security, with intent to cheat or defraud any person of the same, every 
 &e., by such offender shall be guilty of a misdemeanor, and, being convicted 
 tcnTes^a" thereof, shall be liable, at the discretion of the court, to be transported 
 misdeinea- beyond the seas for the term of seven years, or to such other punish- 
 " or- . ment, by fine or imprisonment, or by both, as the court shall award : 
 tal on the provided always, that if upon the trial of any person indicted for such 
 ground misdemeanor it shall be proved that he obtained the property in ques- 
 caseprovedtion in any such manner as to amount in law to larceny, he shall not 
 amounts toby reason thereof be entitled to be acquitted of such misdemeanor; and 
 arceny. ^ sxl Qh. i n( ]ictnient sna n De removable by certiorari ; («) and no person 
 
 tried for such misdemeanor shall be liable to be afterwards prosecuted 
 
 for larceay upon the same facts." [1]| 
 
 (d) 2 East, P. 0. c. 18, s. 13, p. 837. (e) 2 East, P. C. c. 18, s. 13, p. 838. 
 
 (/) Lara's case, 2 Leach, 647, but see Rex v. Douglas, 1 Campb. 212, post, p. 301, "where 
 the pretence was made to a servant, but the money of the mistress obtained. 
 
 (<7) 2 Hawk. P. C. c. 72, s. 3. 2 East, P. C. c. 18, s. 13, p. 838. 
 
 (a) These words prevent the issuing of a certiorari in every case of indictment for obtain- 
 ing goods by false pretences. Reg. v. Butcher, 9 Dowl. & R. 135, Patteson, J. 
 
 [1] {Obtaining credit in account from the party's own banker, by drawing a bill on a 
 person on whom the party has no right to draw, and which has no chance of being paid, is 
 not within this statute, though the banker pays money for him, in consequence thereof, to 
 an extent he would not otherwise have done. Ry. & Mood. C. C. 224, Rex o. Wavell. 
 
 An unstamped order on a banker, (which ought bylaw to be stamped,) is not a "valuable 
 security" within this statute, because it would be a breach of the law in the banker to pay 
 it. Ry. & Mood. C. C. 170, Rex v. Yates. Car. Crim. L. 333, S. C.} [See People v. Stone, 
 9 Wend. 182.] 
 
 •j- [In an indictment under the statute for obtaining by false pretences, the signature of 
 a person to a written instrument, it is not necessary to charge loss or prejudice to have been 
 sustained by the prosecutor ; the offence is complete when the signature is obtained by false 
 pretences with intent to cheat or defraud: and it is not essential that actual loss or injury 
 should be sustained. People v. Gcnung, 11 Wend. 18. 
 
 The false assertion or possession of money on the credit whereof goods were obtained, is 
 a false pretence. Commonwealth v. Burdick. 2 Barr, 163.
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 287 
 
 The enactments of the 7 Geo. 4, c. 64, as to the statement of the Statement 
 indictment of the ownership of property in particular instances of part- ^i^f" 
 ners, counties, parishes, turnpike trustees, &o., having been stated in the property. 
 preceding chapter upon larceny.(i) 
 
 Some of the cases decided upon the repealed act, 30 Geo. 2, c. 24, Cases upon 
 may assist in the construction of the recent statute. the re P eal - 
 
 That act, after reciting that evil-disposed persons had, by various 30 Geo. 2, 
 subtle stratagems, &c, fraudulently obtained divers sums of money, c - 24 - 
 goods, &c, to the great injury of industrious families, and to the mani- 
 fest prejudice of trade and credit, enacted <• that all persons who, know- 
 ingly and designedly, by false pretence or pretences should obtain from 
 any person or persons, money, goods, wares or merchandizes, with in- 
 tent to cheat or defraud any person or persons of the same, should be 
 deemed offenders against law and the public peace." and should be pun- 
 ished, &c, as therein mentioned. 
 
 In an indictment framed on this repealed statute, the first count Rex v. 
 charged that the four defendants, Young, Randal, Mullins, and Osmer, Youi >g> an(l 
 
 * " ' others 
 
 fraudulently intending to obtain the money of the king's subjects, by indictment 
 false colours and pretences, unlawfully and knowingly, &c, did falsely 011 the re - 
 pretend to one Thomas, that Young had made a bet of five hundred JioVeor^ 
 guineas on each side, with a colonel in the army, then at Bath, that 0. 24, for 
 one Wm. Lewis would, on the next day, run on the high road, leading ^™»_ 
 from Gloucester to Bristol, ten miles in length, within one hour : and der the 
 that Young and Mullins did go two hundred guineas each in the bet, [ alse pr J?" 
 
 o c / tence of 
 
 and Randall did go the other hundred guineas : and that, under colour sharing a 
 and pretence of such bet, they obtained from Thomas, as a part of such supposed 
 pretended bet, twenty guineas of the five hundred guineas ; by which have been 
 said false pretences the defendants unlawfully, &c, obtained from the before laid 
 
 (b) Ante, p. 101, et seq. The property itself may be described as in larceny. See ante, p. 
 107, et seq. As to hard labour and solitary confinement, see the 7 & 8 Geo. 4, c. 29, s. 4, 
 and the 1 Vict. c. 90, s. 5, ante, p. 128. 
 
 In an indictment for obtaining the signature of a person to a written instrument by false 
 pretences, it need only appear that the instrument on its face is one calculated to prejudice 
 the party who has signed it, though on the fact stated in the indictment it would be void for 
 fraud. People v. Crissie, 4 Denio, 525. 
 
 An indictment alleging that the defendants falsely pretended to a third person that a 
 drove of sheep which they offered to sell him were free from disease and foot ail, and that a 
 certain lameness apparent in some of them was owing to an accidental injury, by means of 
 which they obtained a certain sum of money, on the sale of said sheep to such person, with 
 proper qualifying words, and an averment negativing the facts represented, is good under 
 the statute against cheating bj T false pretences. The People v. Crissie, 4 Denio, 525. 
 
 An indictment on the Revised Statutes of Massachusetts, for obtaining money, goods, or 
 other property by any false pretence with intent to defraud, must set forth all the material 
 facts and circumstances which the prosecutor would be bound to prove in order to procure 
 a conviction. An indictment on that section is insufficient, if it merely alleges that the de- 
 fendant, intending to cheat and defraud A. of his money and property, designedly and 
 knowingly did falsely pretend to A. that a watch which the defendant had was a gold watch, 
 by means whereof the defendant did designedly and knowingly obtain from A. thirty-five 
 dollars with intent to cheat and defraud him of the same, — where is in truth the said watch 
 was not, and the defendant knew that it was not a gold watch. 
 
 When money or other property is obtained by a sale or exchange of property effected by- 
 means of false pretences, such sale or exchange ought to be set forth in the indictment, and 
 that the false pretences should be alleged to have been made with ;i view to effect such a 
 sale or exchange, and that by reason thereof the party was induced to buy or exchange, as 
 the case maybe. Commonwealth v. Strain, lo Metcalf, 521. false pretences must be of 
 some existing fact and not of future transactions. Burrow v. The State, 7 English, 65. When 
 the pretences charged are of too vague and indefinite a. character to d ceive a person of or- 
 dinary prudence and understanding, they are not within the purview of the statute. — 
 Ibid.j
 
 287 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. 
 
 with an- said Thomas the said twenty guineas, with intent to cheat and defraud 
 which" "as bim thereof; whereas, in truth, no such bet had been made, &c, 
 to be de- against the form of the statute, &c. A second count stated the bet to 
 cided the -^ave Deen ma( j e between Young and Osmer. The defendants having 
 
 HCXt'KlV. ^ ^ 
 
 been convicted, it was objected upon error that the supposed false pre- 
 *288 tences shown in the first and second counts were neither *contrary to 
 the 33 Hen. 8, c. 1, (now repealed,) or the 30 Geo. 2, c. 24, (now re- 
 pealed,) or any other statute. And it was argued that the transaction 
 itself was not the subject-matter of a criminal prosecution, for that it 
 did not affect the public ; and that it was one against which common 
 prudence might have guarded : for, as it was the representation of a 
 future transaction, the party had an opportunity of inquiring into the 
 truth of it, and that therefore it was his own fault if he were deceived : 
 but the objection was overrruled. Lord Kenyon, C. J., said, " Undoubt- 
 edly this indictment, being founded on the statute of 30 Geo. 2, c. 34, is 
 different from a common law indictment. When it passed it was consid- 
 ered to extend to every case where a party had obtained money, by falsely 
 representing himself to be in a situation in which he was not, or any oc- 
 currence that had not happened, to which persons of ordinary caution 
 might give credit. The statute of 33 Hen. 8, c. 1, requires a false seal or 
 token, to be used in order to bring the person imposed upon into the confi- 
 dence of the other; but that being found to be insufficient, the statute 30 
 Geo. 2, c. 24, introduced another offence, describing it in terms extremely 
 general. It seems difficult to draw the line, and to say to what cases 
 this statute shall extend ; and therefore we must see whether each par- 
 ticular case, as it arises, come within it." His lordship then adverted 
 to the facts of the case, before the court ; and after saying that the de- 
 fendants, morally speaking, had been guilty of an offence, proceeded 
 thus : " I admit that there are certain irregularities which are not the 
 subject of criminal law. But when the criminal law happens to be 
 auxiliary to the law of morality, I do not feel any inclination to explain 
 it away. Now this offence is within the words of the act ; for the de- 
 fendants have, by false pretences, fraudulently contrived to obtain money 
 from the prosecutor ; and I see no reason why it should not be held to 
 be within the meaning of the statute." Ashurst, J., said, in giving his 
 opinion, " The statute 30 Geo. 2, c. 24, created an offence which did not 
 exist before, and I think it includes the present. The legislature saw 
 that all men were not equally prudent, and this statute was passed to 
 protect the weaker part of mankind. (c) The words of it are very general 
 < All persons who knowingly by false pretences shall obtain from any 
 person money, goods, &c, with intent to cheat or defraud, &c./ and we 
 have no power to restrain their operation." And Buller, J., after 
 observing upon the 33 Hen. 8, says, « The legislature thought that the 
 former statute was too limited; and therefore the 30 Geo. 2, c. 24, was 
 passed : which enacts, " That all persons who shall obtain money from 
 others by false pretences with intent to cheat or defraud such persons, 
 shall he deemed offenders against the 'public peace.' The statute, there- 
 fore, clearly extends to cases which were not the subject of an indict- 
 ment at common law. The ingredients of this offence are, the obtain- 
 ing money by false pretences, and with an intent to defraud. Barely 
 asking another for a sum of money is not sufficient : but some pretence 
 must be used, and that pretence false ; and the intent is necessary to 
 
 (c) See the observations of Lord Denman, C. J., in Reg. v. Wickham, post, p. 298.
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 288 
 
 constitute the crime. If the intent be made out, and the false pretence 
 used in order to effect it, it brings the case within this statute. "(d) 
 
 *It was argued in this case, that even the generality of the term *289 
 "false pretences," in the 30 Geo. 2, c. 24, did not extend the law to Question 
 cases against which common caution might guard : h u t Ashurst. J., said. n , iade upo , n 
 
 i i , n ,ii -i ' ' > the repeal- 
 
 as we have seen, that as all men were not equally prudent, this statute ed act, 3d 
 
 was passed to protect the weaker part of mankind ; still, however, it has 9?°'?' c- 
 
 been observed, that it might have been a question whether the statute it extended 
 
 extended to every false pretence, either absurd or irrational upon the tne law t0 
 
 face of it, or such as the party had, at the very time, the means of de- against 
 
 tecting at hand ; or whetherthe words, which were general, should have which com - 
 
 been construed co-extensively with the cheat actually effected by means ™° n pru 
 
 of the false pretence used. And it was suggested, that these might might 
 
 perhaps, be matters proper for the consideration of the jury, with the guard? 
 
 advice of the court. (e)"j" 
 
 It should seem that a pretence to come within the meaning of the new It seems 
 
 statute need not be such an artificial device as will impose upon a man t . he new act 
 
 docs ex— 
 
 of ordinary caution. In a late case where it was said in argument that tend to 
 an opinion had always prevailed that the fraud to constitute an indicta- sucn case ' ; - 
 ble offence, must be such an artificial device as would impose upon a 
 man of ordinary caution; Lord Deninan, C. J., said, " I never could 
 see why that should be. Suppose a man has just enough to impose 
 upon a very simple person, and defraud him ; how is it to be determined 
 whether the degree of fraud is such as shall amount to a misdemeanor ? 
 Who is to give the measure?" It was answered that the law prescribed 
 it. Regina v. Jonesf f\ was then cited; in that case the defendant was 
 indicted for having obtained money by pretending to be sent for 20?. for 
 the use of J. S., and Holt, C. J., said, " It is no crime unless he came 
 with false tokens. Shall we indict a man for making a fool of another ? 
 Let him bring his action." Upon which Lord Deuman, C. J., added, 
 " Why is it the prosecutor's folly more than the defendant's fraud ? This 
 point is sometimes put as if a lie were something laudable. There are 
 indeed cases, where the pretence is so very foolish that it is difficult to 
 say that an imposition is practised ; but still who is to give the mea- 
 sure V'(g\ 
 
 (d) Rex v. Young and others, 1789. 3 T. R. 98. 
 
 (e) 2 East, P. C. c. 18, s. 8, p. 828. 
 (/) 2 Lord Raym. 1013. 
 
 Iff) Reg. v. Wickham, a 10 Ad. & E. 34. It is submitted that the jury are the proper per- 
 sons to give the measure, and that it is for them to say whether or not the pretence used 
 were the means of obtaining the property. Any rule founded upon the pretence being such 
 as would impose upon persons of ordinary caution would leave all such as were unfortu- 
 nately gifted with a less degree of caution at the mercy of the fraudulent and designing. 
 And as in robbery it would be absurd to lay down any rule which denned the force necessa- 
 
 f [A representation, though false, is not within the statute against obtaining property. 
 &c, by false pretence, unless calculated to mislead persons of ordinary prudence and cau- 
 tion. The People v. Williams, 4 Hill, 9. 
 
 It is essential to constitute the offence of obtaining money, &c, by false pretences, that 
 the person alleged to have been defrauded should have believed the false pretences to be 
 true, and that they should have been such that if true they would naturally operate upon 
 an honest and ordinarily prudent person, and also that such person in parting with his pro- 
 perty was not himself guilty of a crime. Therefore, held on demurrer, that an indictment 
 for obtaining a watch from a person upon the false representation that the defendanl M as a 
 constable and had a warrant against such a person, issued by a justice of the peace for the 
 crime of rape, and that he would settle the same if the person defrauded would give the de- 
 fendant the watch, could not be sustained. The People v. Stetson, 4 Barb. Sup. Ct. 151.] 
 a Eng. Com. Law Reps, xxxvii. 29.
 
 289 OF CHEATS, ETC., by false pretences. [book IV. 
 
 Where the defendant was indicted for obtaining money by falsely pre- 
 tending on one occasion, to a pawnbroker, that a certain material, which 
 he produced, was " gold shruff," and, on another occasion, that an article 
 he produced was " ribbon gold j w and it appeared that gold shruff and 
 ribbon gold were worth SI. 18s. an ounce, but the thing which the pri- 
 soner said was gold shruff was worth only 18s. an ounce. Both the arti- 
 cles produced were tried by the pawnbroker with aquafortis, and stood 
 the test. But some days after the money was obtained, the pawnbroker 
 filed the ribbon gold, and found it was silver gilded over. Adams, Serj., 
 was of opinion, that as the defendant had merely stated an untruth with 
 reference to an article which he produced? and not about a fact which 
 the person imposed upon could not detect at the time, the untrue state- 
 ment did not amount to a false pretence, but was only an untrue asser- 
 tion. He likened it to the case of a tradesman, who sold a waistcoat or 
 coat of a particular material, when it was of an inferior sort ; and 
 asked whether it could be contended that such a man was liable to trans- 
 portation ? But he left the facts to the jury, who said they were of 
 opinion that the defendant had passed off the articles, well knowing them 
 to be spurious, and he was found guilty. Adams, Serjt., afterwards 
 mentioned the case to several of the judges, and said they agreed with 
 him that the mere assertion that the article produced was what in fact it 
 was not, was not sufficient to sustain the conviction, and the defendant 
 was fined a shilling and discharged. {gg} 
 
 But where a count stated that the defendant did falsely pretend that 
 eleven thimbles which he then produced were silver, and of the value of 
 five shillings or more, with intent to cheat and defraud, &e, but did not 
 allege that any money was obtained ; and it appeared that the defend- 
 ant went to a pawnbroker's shop and laid down eleven thimbles on the 
 counter, and asked for five shillings on them ; and being asked whether 
 they were silver said they were, but the thimbles were immediately 
 tested and found not to be silver, and nothing advanced upon them. 
 Mirehouse, C. J., told the jury that the pretence must be so false that 
 a man exercising reasonable discretion might still be deceived by it; and 
 the jury having found the prisoner guilty, the facts of the case were 
 mentioned to some of the judges, who were of opinion that in point of 
 law the evidence was amply sufficient to justify the verdict. (hh\ It is 
 conceived that this case was rightly decided. And it is suggested that 
 the correct distinction in such cases is, that if by ocular inspection the 
 falsity of the defendant's statement be discoverable, it is a mere false 
 assertion, and not a false pretence; but if the article to all appearance 
 be such as it is alleged to be, and it requires something to be done to 
 it, either by the application of tests or otherwise, to ascertain whether 
 it be what it is alleged to be, it is a false pretence. C. S. Gr. 
 
 ry to constitute a robbery with reference to the ordinary strength of mankind ; so in false 
 pretences it would be equally absurd to establish a rule with reference to the ordinary ca- 
 pacity of mankind. On the other hand, as in robbery, the correct rule clearly is that am 
 force sufficient to overcome the bodily resistance of the party robbed, constitutes the offence, 
 whether that party be a powerful man or a feeble woman ; so it is submitted that any pre- 
 tence sufficient to overcome and impose upon the mind of the party to whom it is made 
 ought to be considered to constitute an offence within this statute ; and that whether it 
 were of such a character or not. ought to be left to the determination of the jury with refe- 
 rence to all the facts of the particular case. C. S. G. 
 
 \gg) Reg. v. Tabram, 1 cited 1 C. & Mars. 251. 
 
 (hh) Reg. v. Ball," 1 C. & Mars. 249. 
 
 a Eng. Com. Law Reps. xli. 141. » lb. xli. 140.
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 289 
 
 A pretence that the party would do an act which he did not mean to A pretence 
 
 do (as a pretence that he would pay for goods on delivery,) was holden party* 16 
 
 not to be a false pretence within the repealed statute. The prisoner would d<. 
 
 bargained for the carcases of three sheep and some other meat, and the I" act b ? 
 
 ii -i • /• i i • • i does not m - 
 
 seller having refused to trust lain, promised to pay for them on delivery ; tend to do. 
 
 but he did not mean to do so, and when *they were delivered, sent back *290 
 an evasive letter. The indictment was for obtaining the carcases and 
 meat by falsely pretending he would pay for them on delivery, whereas 
 he did not, and never meant to do so ; and he was convicted ; but upon 
 a case reserved, the judges thought this was not a pretence within the 
 statute ; that it was merely se promise for future conduct ; and that com- 
 mon caution would prevent any injury from tbe breach of it; and, there- 
 fore, that the conviction was wrong. (*/) 
 
 So an indictment averring that the prisoner falsely pretended that he Prisoner 
 would tell the prosecutor where his mare and gelding were, is bad. The pretending 
 indictment stated that the mare and gelding of one E. Young had strayed te {i w here 
 to a place unknown to E. l'oung, and that the prisoner unlawfully did the prose- 
 falsely pretend to the said E. Young that he would tell him where the j^ r gg S s arc 
 said mare and gelding were, if he would give him a sovereign, whereas if he will 
 in fact the prisoner would not tell the said E. Young where the said fo^ereiei . ^ 
 mare and gelding were, if he would give him a sovereign. It appeared 
 that the prosecutor having lost a mare and gelding, went in search of 
 them to Lincoln, where the prisoner on being introduced to the prose- 
 cutor, said he knew where they were, and would tell him if he would 
 give him a sovereign ; the prosecutor hesitated to give the sovereign, 
 but the prisoner refusing to give the information unless the sovereign 
 was delivered into his hands, the prosecutor reluctantly put two half- 
 sovereigns into his right hand, which the prisoner immediately put into 
 his pocket. The prosecutor then required the prisoner to give him the 
 information he had promised, which he refused to do, or to return the 
 money, saying he had no information to give him. The jury having 
 found the prisoner guilty, upon a case reserved upon the question, 
 whether this was a false pretence within the 7 & 8 Geo. 4, c. 29, s. 53, 
 the judges held that the indictment should have stated tbat the prisoner 
 pretended he knew where the horses were, and that the conviction was 
 wrong, (/i) 
 
 A pretence to a parish officer, as an excuse for not working, that the 
 party had no clothes when he really had, though it induced the officer 
 to give him clothes, was holden not to be obtaining goods by false pre- 
 tences, within the meaning of the repealed statute, 30 Geo. 2. The 
 overseer of the prisoner's parish asked him why he did not work to sup- 
 port his family, which received parish relief; the prisoner said he had 
 no shoes : upon which the overseer gave him a pair; but the prisoner 
 had at the time two good pairs. Upon a case reserved, the judges 
 thought that this was not within the act, and that the conviction was 
 wrong ; for it was rather a false excuse for not working, than a false 
 pretence to obtain goods. (i) 
 
 Where a count stated that the defendant pretended to A. Crellin, a 
 single woman, that he was an unmarried man, and having thereby ob- 
 
 0) Rex v. Goodhall, Mich. T. 1821, MS. Bayley, J., and Russ. & Ry. 461. 
 
 (h) Rex v. Douglass, R. & M. C. C. R. 402. See Rex v. Parker, post, p. 298, el seq. 
 
 (i) Rex v. Wakeiing, Ihl. T. 1823. Russ. & Ry. 504.
 
 290 
 
 OF CHEATS, ETC., BY FALSE PRETENCES. 
 
 [BOOK IV. 
 
 tained a promise of marriage from A Crellia, that she refused to marry 
 the defendant, and that he falsely pretended, at the time of such refu- 
 sal, that he was an unmarried man, and entitled to bring an action 
 against her for the breach of promise of marriage, by means of which 
 he obtained from her 100^. Whereas in truth he was not an unmar- 
 ried man, and not entitled to maintain an action for the breach of pro- 
 mise of marriage against her. The prisoner was a married man, and A. 
 Crellin stated that she being a single woman, and possessed of consider- 
 able property, the prisoner had paid his addresses to her, and that she 
 had consented to marry him, she being then ignorant that he was a mar- 
 ried man, and afterwards changed her mind, and intimated as much to 
 the defendant, and that he thereupon threatened her with an action at 
 law for breach of promise of marriage, and he added, that, by means of 
 such proceeding, he could take half of her fortune from her ; and that 
 she, believing that he could and would carry his threat into effect, and 
 in order to induce him to refrain from doing so, paid him a sum of 
 money, under a written stipulation, that in consideration of such pay- 
 ment he would forego proceedings at law against the prosecutrix for 
 breach of promise of marriage. That but for the prisoner's threat of 
 bringing an action, she would not have paid the money; and that she 
 was induced by such threat to pay the money ; and that, had she known 
 he was a married man she would not have paid the money. The case 
 was left to the jury to say whether the money was, in fact, obtained by 
 the false pretence that the defendant was single, and they found the 
 prisoner guilty; and Lord Denman, C. J., and Maule, J., were both 
 clearly of opinion that there was evidence to go to the jury, that the 
 money was obtained by the false pretence that the prisoner was a single 
 man, and in a condition to intermarry with the prosecutrix ; and Maule, 
 J., was further of opinion, that there was also evidence of the money 
 having been obtained by the false pretence of the defendant, that he was 
 entitled to maintain an action for breach of promise of marriage; and 
 that such latter false pretence was a sufficient false pretence within the 
 statute, (i A 
 
 In the case of Young and others, above mentioned, Buller, J., cited 
 the following as a case in point ; the defendant, Count Villeneuve, ap- 
 plied to Sir T. Broughton, telling him that he was intrusted by the 
 Duke de Lauzun to take some horses from Ireland to London, and that 
 
 
 Count Vil- 
 leneuve's 
 case. 
 
 Money ob- 
 tained by 
 the false 
 
 beino^in- ne na< ^ been detained so long by contrary winds that his money was 
 *291 spent ; by which representation Sir T. *Broughton was induced to ad- 
 trusted by vance some money to him ; after which it turned out that the prisoner 
 a foreign never } la( j been employed by the Duke de Lauzun, and that his whole 
 to take story was a fiction. For this offence he was convicted, and sentenced 
 horses from t0 ] iarc | \ a \, 0ViY on the Thames.( i)f 
 Ire and to ^ ' 
 
 London, It was agreed upon by all the judges, that a case was within the 30 
 
 and that Q. e0- 2, c. 24, where the credit was created by means of the false pre- 
 was 'spent fence ; and they held that in the following case the prisoner would not 
 
 (ii) Reg. v. Copeland, a 1 C. & Mars. 516. 
 
 (/) Villeneuve's case, cor. Moreton, C. J., of Chester, and Buller, J., Chester, 1778. 3 T. 
 R. 104, 105. 
 
 f [An indictment lies for obtaining goods by false pretences when a party represents 
 himself to be the owner of property which does not belong to him. and thus fraudulently 
 induces the owner to sell the goods to him on credit. The People v. Kendall, 25 Weud. 
 399.] 
 
 a Eng. Com. Law Reps. xli. 282.
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 291 
 
 have obtained the credit but for the false account which he delivered. Witehell's 
 The prosecutors, from whom the prisoner was charged with obtaining gup e e ' rin 
 money by false pretences, were clothiers ; the prisoner was a shearman, tcndant in 
 in their service, and employed to superintend the other shearmen, and a clothin g 
 to take an account of the persons employed, and of the amount of their tory having 
 wages and earnings; at the end of each week he was supplied with to kee P an 
 money to pay the different shearmen, by the clerk of the prosecutors, the number 
 who advanced to him such sum as, according to a written account or of shearers 
 note delivered to him by the prisoner, was necessary to pay them. The andt°he° d ' 
 prisoner was not authorized to draw from the clerk for money generally amount of 
 on account, but merely for the sums actually earned hy the shearmen ;lj~ evcea *?~ 
 and the clerk was not authorized to pay him any sums except what he wages, and 
 carried in his account or note as the amount of what was due to the *° . dellver 
 
 it id every 
 
 shearmen for the work they had done. The prisoner, on the 9th of week, de- 
 September, 1796, delivered to the prosecutor's clerk a note in writing, livered. in 
 in the following form: " 9th September, 1796, Shearmen, 44£. lis. Od., count, by" 
 which was the common form in which he made out his account of the which ho 
 amount of their week's wages. And in a book in his handwriting, which ° ar ger e su a 
 it was his business to keep, (of the men employed, of the work they had than was 
 done, and of their earnings,] there were the names of several menwho^ e g '^ 1(le ^ 
 had not been employed, who were entered as having earned different to be within 
 sums of money, and also false accounts of the work done by those who * he 3 2 4 Ge0 ' 
 were employed; so as to make out the sum stated in the note to be due 
 to the shearmen. Upon this evidence the jury found the prisoner guilty; 
 but sentence was respited in order to take the opinion of the judges, 
 whether this case were within the statute 30 Geo. 2, c. 24, the prisoner's 
 counsel contending that no cases were within the statute but those where 
 the original credit was obtained by means of the false pretence; and 
 that it did not extend to cases where there was a previous confidence, as 
 he said was the case here. The judges, after some difference of opinion, 
 ultimately all agreed on the principle, that if the false pretence created 
 the credit, the case was within the statute ; and they considered that in 
 this case the defendant would not have obtained the credit, but for the 
 false account which he had delivered in, and, therefore, that he was pro- 
 perly convicted. (7c) 
 
 In the following case it was contended, that where a party obtained *292 
 money, by assuming a character which did not belong to him, without Story's 
 making any false declarations or assertions, the repealed *statute of p ' r j soner 
 30 Geo. 2, did not apply. The indictment charged, that the prisoner obtained 
 fraudulently and deceitfully produced and delivered to E., the wife of J^ m e { he 
 John Rayner, which John Rayner was employed in the business of the keeper of a 
 post-office, as deputy postmaster of the town of Nottingham, an order post-office, 
 for payment of money, commonly called a money order, to wit, for the ; ng to be 
 payment of the sum of one pound, to one John Storcr ; and that he un- the person 
 lawfully, &c., pretended to the said E. Rayner, that he was the person ? u amoney 
 named in the same order, by means of which false pretence, he unlaw- order, 
 fully, &c, obtained from the said E. Rayner, the sum of one pound of ^ r " s c cnte ^ 
 the moneys of the said John Rayner, with intent to cheat and defraud for pay- 
 the said John Rayner; averring also, that the prisoner was not the per- ™ e ^*£ ^ 
 son named in the order, nor the person entitled to receive the money ma ko any 
 
 (k) Witchell's case, East, T. and Trin. T. 1798. 2 East, P. C. c. 18, s. 8, p. 830. One of 
 the judges observed, that the prisoner was not to have any sum he thought fit, on account; 
 but only so much as was worked out.
 
 292 
 
 OF CHEATS, ETC., BY FALSE PRETENCES. 
 
 [BOOK IV. 
 
 false decla- 
 ration or 
 assertion in 
 order to 
 obtain the 
 money. 
 
 *293 
 
 therein mentioned. There was a second count differing from the first 
 only in alleging the money to be John Storer's, and the intent to be to 
 cheat him. It appeared that the prisoner went to the post-office at 
 Nottingham, and inquired of Mrs. Rayner, who transacted the business 
 there for her husband, if there were any letters directed to "John Story, 
 post-office, Nottingham, to be left till called for." Mrs. Rayner finding 
 amongst the letters one directed for "John Storer, to be left till called 
 for, Nottingham," and supposing it to be the letter for which the pri- 
 soner inquired, delivered it to him. The direction then upon the letter 
 was a re-direction of it from Northampton, to which place it had been 
 originally sent from Nottingham. The prisoner, on receiving it, objected 
 to the payment of two shillings for the postage, saying, "It was too 
 much from Manchester;" but he paid the money and went with the 
 letter into the office passage, where he remained a sufficient time to have 
 read it, after which he returned into the office with the money order in 
 question, which had been enclosed in the letter, and offered it to Mrs. 
 Rayner. Mrs. Rayner told him he must write his name on the back of 
 the order before she could pay him the money, upon which he wrote 
 his real name, John Story, and she paid him with a one pound note. He 
 then told her, that if she would look again she would find another letter 
 for him from Manchester, which she did, and he paid for it. The order 
 in question (which was signed by Mrs. Rayner in the name of her hus- 
 band,) was in the following form : 
 
 "No. 52. Order given by one Deputy on another. 
 
 «£1. Post Office, Nottingham, Augt. 2nd, 1804. 
 
 " At sight, pay John Storer, according to my letter of advice of the 
 number and date, the sum of one pound, and place the same to the ac- 
 count of the money order office. 
 
 "J. Rayner." 
 "To the Post Master of Northampton. 
 
 " This order must be signed by the person to whom it is made pay- 
 able, and sent up with the quarterly account, as a voucher for the 
 payment." 
 
 The terms of the letter clearly explained, that the order could not 
 have been intended for the prisoner: and it was proved, that when he 
 was first apprehended, he denied having received the *money, or having 
 ever seen Mrs. Rayner: but he afterwards assigned a want of money 
 as a reason for has conduct. In the conversation with Mrs. Rayner, she 
 never asked him if he was the person for whom the letter and order 
 were intended; nor did he say that he was so. The prisoner's counsel 
 contended, that as the order was given to the prisoner by Mrs. Rayner 
 herself, and the prisoner had merely presented it to her for payment, 
 without making any untrue declaration or assertion, the case was not 
 within the statute. The learned judge left it to the jury to find against 
 the prisoner, if they were satisfied that by his conduct he had fraudu- 
 lently assumed a character which did not belong to him, although he had 
 made no false assertions: and the jury found him guilty. But the sen- 
 tence was respited, in order to take the opinion of the judges, as well 
 upon the objection made, as upon a further doubt, whether the signature 
 of the prisoner's name, under the circumstances, did not amount to a 
 forgery of a receipt for money, in which the lesser offence was merged.
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 293 
 
 All the judges were of opinion that this did not appear to be a forgery, 
 the prisoner having signed his own name, which was not the same name 
 as that of the person to whom the note was payable : and upon the 
 other objection, they held that the prisoner was properly convicted of 
 obtaining the money by false pretence, because by presenting the order 
 for payment, and signing at the post-office, he represented himself to 
 Mrs. 11. as the person named in the note.(Z) 
 
 There might be a sufficient false pretence within the same repealed Freeth's 
 statute 30 Geo. 2, by the acts and conduct of the party, without any T s *' f T , he 
 verbal representations of a false and fraudulent nature. The count in tering a 
 the indictment upon that statute stated, that the prisoner, intending to counterfe i t 
 
 note 3.S ii 
 
 cheat and defraud John Beebee, of his moneys, goods, and merchan- genuine 
 dizes, on, &c, did falsely, &c, utter, publish, offer, and tender to the said note > held 
 J. B. a false, forged, and counterfeit paper, as and for a true paper, and m0U nt to a 
 did then and there falsely, knowingly, and designedly, fraudulently and representa- 
 wickedly, pretend to the said J. B. that the said false, &c, paper was ^ go a 1 
 a true paper, and signed by one Win. Sparrow, which paper was as 
 follows : 
 
 "Wolverhampton, 27 Feb. 1807. 
 " I promise to pay the bearer on demand the sum of ten shillings 
 and sixpence. " Wm. Sparrow." 
 
 with intention the moneys, goods, &c., of the said J. B. to obtain, well 
 knowing such paper to be forged and counterfeit : by means of which 
 false pretences, he did obtain from the said J. B. a sum of money, to 
 wit, nine shillings and tenpence, against the form of the statute, &o. 
 The third count stated that the prisoner, contriving and intending to 
 cheat and defraud the said J. B. of his moneys, goods, &c, on, &c, did 
 fraudulently and wickedly utter, publish, offer, and tender to the said 
 J. B., a false, forged, and counterfeit paper, as and for a true paper, and 
 which he then and there did pretend and represent to the said J. B. to 
 be a true paper, subscribed, &c, (and setting forth the paper) with 
 *intention to cheat and defraud the said J. B. and the moneys, goods, *294 
 &c, of the said J. B. fraudulently to obtain, well knowing the said paper 
 to be forged, &c, by means of which last-mentioned false pretences, he 
 did then and there fraudulently obtain from the said J. B. a sum of 
 money, to wit, nine shillings and tenpence, of the money of the said J. B. 
 It appeared by the evidence of John Beebee, that the prisoner came to 
 his shop at Bilston, on a Saturday night, and asked for a loaf; that he 
 served him with one for fivepence ; that the prisoner then asked for some 
 tobacco, and the witness served him with an ounce for threepence, upon 
 which the prisoner threw down a note for ten shillings and sixpence. 
 The witness said he had no change, but in copper, which the prisoner 
 said would do ; and the witness then gave him nine shillings and ten- 
 pence, in copper, which he took, together with the loaf and tobacco, 
 and went away. The note was that which was set forth in the indict- 
 ment, and was a forged note : and it was proved that the prisoner, in the 
 course of the same evening and the next morning, put off several other 
 notes of the same kind and amount, and all forged. Sparrow was a person 
 of good credit; and his notes under twenty shillings were generally cir- 
 culated in that neighbourhood, as it was found impracticable to pay in 
 (/) Rex v. Storey, East. T. 1805, MS. and Russ. & Ry. 81.
 
 294 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. 
 
 cash, or larger notes, the wages of the numerous day-labourers engaged 
 in the iron manufactories. But by the 15 Geo. 8, c. 51, s. 1, promissory 
 notes, &c, negotiable for any sum less than twenty shillings, were de- 
 clared absolutely void and of no effect ; and the second section of that 
 act declared, that if any person should publish or utter such notes, &c, 
 for a less sum than twenty shillings, or should negotiate the same, he 
 should forfeit any sum not exceeding twenty pounds, nor less than five 
 pounds; the third section gave directions as to the form of conviction. 
 The counsel for the prisoner objected, first, that this was not a case within 
 the 30 Geo. 2, c. 24, the general expression of that statute being confined 
 to cases of false suggestions of fact, as in Rex v. Young ;(m) to cases 
 where the party falsely represents himself to be in a situation which 
 he is not, as a servant of another, or as having his order or authority, or 
 produces a false account of disbursements, on the face of which the party 
 would be entitled to be reimbursed, as in Witchell's case;(n) and to 
 those cases where credit is acquired, and the moneys, <fcc, are obtained 
 by the false pretence. And it was urged, that in this case the credit 
 was given to the note, and to no representation or pretence of the pri- 
 soner himself; that the fraud consisted in the fabrication of the instru- 
 ment, not in any representation made by the prisoner. But the learned 
 judge who tried the prisoner thought that the uttering it as a genuine 
 note was tantamount to a representation that it was so. An objection was 
 also taken, as to this being a cheat at common law, upon the ground that 
 as a note of this sort was void, and prohibited by law, it was no offence 
 to forge it or to obtain money upon it when forged, as the party taking 
 it ought to be upon his guard. The case was, however, left to the jury, 
 with a direction that the evidence, if true, sustained both or one of the 
 latter counts of the indictment; and the jury found the prisoner guilty 
 *295 on both these *counts ; and the learned judge respited the sentence, 
 for the purpose of submitting the points to the consideration of the 
 twelve judges. All the judges, (except Rooke, J.) being present, the 
 majority of them thought that the conviction was right, and that it was 
 a false pretence, although the note, upon the face of it, would have 
 been good for nothing in point of law, if it had not been false. Law- 
 rence, J., was of a different opinion, and thought that the shop-keeper 
 was not cheated if he parted with his goods for a piece of paper, which 
 he must be presumed in law to know was worth nothing if true.(o) 
 Flint's The prisoner was tried on an indictment, which charged that he did 
 
 case. In- f a ] se ly fraudulently and deceitfully deliver to one Joseph Blood, certain 
 
 dictruent ■" .• . i. • t> i i , A „ i 
 
 for deliver- papers, purporting to be promissory notes of bankers at Uundle, as and 
 
 ing in pay- f r good and available notes, (one of which was set out ;) and that 
 
 horse ce* Blood believing them to be good and available, delivered to the prisoner 
 
 tain pro- a gelding, of the price of 12/. his property; whereas the notes were not 
 
 missory j | available, but of no value, as the prisoner then well knew; 
 
 notes as te ' . ■>• ■, 
 
 and for and so the prisoner, by colour of the said papers, unlawfully, &c, did 
 
 s °°m ^ obtain, and get into his possession from Blood, the said gelding, with 
 
 promissory intent to cheat him of the same, and of his said gelding did cheat and 
 
 notes, defraud him, &c. It appeared that the prisoner, on the 4th of June, 
 
 prisoner ° 1821, bought of the prosecutor, at Rugeley fair, the gelding in question, 
 
 knew to be for the price of 1SL, and tendered in payment notes to that amount on 
 
 (to) Ante, p. 288. (n) Ante, p. 291. 
 
 (o) Freeth's case, 1807, MS. and Russ. & Ry. 127.
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 295 
 
 the Ouudle bank. On the prosecutor's objecting to accept these notes, n °t good 
 the prisoner assured him they were good notes, and upon this assurance ^[^ ^ 
 the prosecutor parted with the gelding. It further appeared that these notes pur- 
 notes had never been presented by the prosecutor at Ouudle, or at Sir Parted to be 
 
 T tti i »i » • t i i .-i , ,, the notes ot 
 
 James Lsdaile s, in London, where they were made payable. A wit- a country 
 ness stated, that he recollected Iiickett's bank at Oundle, that he knew hilI \ k > 
 nothing but what he saw in the papers, and heard from people who had supposedto 
 bills there. The notes appeared to have been exhibited under a com- havefailetl - 
 mission of bankrupt against the Oundle bank ; the words importing the at e a u. 
 memorandum of exhibit had been attempted to be obliterated ; but the events it 
 names of the commissioners remained on each of them. The iurv found was ueces ~ 
 
 • n sary to 
 
 the prisoner guilty ; and said, they were of opinion that when he bar- prove the 
 gained for, and obtained the horse, he well knew that the notes were of , not , es w *j re f 
 no value, and that it was his intention to cheat the prosecutor of his no value, 
 horse. But the learned judge respited the judgment, and submitted the 
 case to the consideration of the judges, who held the conviction wrong; 
 being unanimously of opinion that the evidence was defective, in not 
 sufficiently proving that the notes were bad. No opinion was given 
 whether this would have been an indictable fraud, if the evidence had 
 been sufficient, (p) 
 
 So where an indictment stated that the prisoner unlawfully pretended Not suffi- 
 that a promissory note of Coleman, Smith, and Morris, for the payment e ™ x e ^ hat 
 of 11. as copartners and bankers trading under the firm of Coleman, two out of 
 Smith, and Morris, was a good and available note, whereas it was not £ ^g ^^*" 
 a good and available note, &c, and it appeared that the prisoner had bank have 
 been told that the bank from which the note issued had stopped pay- failed - 
 ment ; and the banking house was shut up, and Coleman *and Morris *296 
 had become bankrupts, but Smith had not become bankrupt : and it 
 was objected that as one of the partners had not become bankrupt, the 
 note remained an available note as it respected him : and non constat, 
 that if presented to him it would not have been paid. Gaselee, J., said, 
 " On this evidence the prisoner must be acquitted ; because, as it ap- 
 pears that the note may ultimately be paid, I cannot say that the pris- 
 oner was guilty of a fraud in passing it away."(g) So where on an in- 
 dictment for obtaining a bull by falsely pretending that a promissory Insufficient 
 note of Vincent and Co. was a good note, it appeared that the prisoner ^£ank- ° 
 uttered the note to the prosecutor at Bracknell fair, in payment for his note being 
 bull, and in answer to his inquiry whether the note was good, said it valueless - 
 was a very good one : and when asked where he lived he gave a false 
 address. It was also proved that the bank of Vincent and Co. had 
 ceased business above twenty years ago, and one of their then clerks 
 swore that the note uttered by the prisoner had been regularly cancelled 
 and withdrawn from circulation, by the makers having drawn a large 
 cross across the face of it ; and the note was old and discoloured, of the 
 date of 1816, and a large hole through the middle had taken away the 
 middle part of the cross, leaving however the ends of it quite distinct. 
 The proceedings in bankruptcy against Vincent and Co. were not pro- 
 duced. Coleridge, J., held that there was no evidence to go to the jury 
 that the prisoner knew the note to be cancelled and unavailable at the 
 
 (p) Rex v. Flint, December, 1821. Russ. & Ry. 460. 
 (q) Rex v. Spencer," 3 C. & P. 420. 
 
 a Eng. Com. Law Reps. xiv. 370.
 
 296 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. 
 
 time he uttered it, so as to constitute a false pretence within the sta- 
 tute. (r)f 
 *297 *Iu a case where the defendant was charged in an indictment that 
 
 Airey's being a common carrier, had received goods to carry and deliver at a 
 Where a certain place ; and that afterwards contriving and intending to cheat 
 carrier pre- the consignor of his money, he pretended to him that he had carried 
 tended to a an( j c ] e ]i vere( j the <;oods to the consignee, and that the consignee had 
 
 consignor _ , . , . . . . . . „ 
 
 of goods, given to him (the said carrier) a receipt expressing the delivery of the 
 that he had goods ; but that he had lost or mislaid the receipt ; and then demanded 
 
 deli vcretl 
 
 them to the sixteen shillings for tbe carriage of the goods, and by means of such 
 consignee, f a l se pretences, (which were expressly stated to be false,) obtained the 
 by obtain- sum °f sixteen shillings from the consignor, it was holden that the 
 ed money offence was sufficiently brought within the words and meaning of the 
 j,^* 6 ^ 1 "" statute. (s) So where the defendant in the assumed character of a por- 
 was holden ter from an inn, delivered a parcel as from the country, with a printed 
 ^ l ^ m g ticket, with writing charging carriage and porterage, and received the 
 c. 24. ' money charged ; and the parcel turned out to be a mock parcel, worth 
 nothing ; and part of the false pretences charged in the indictment was 
 taken from the porter's ticket; and it was objected that the defendant 
 
 (r) Reg. v. Clark. Dick. Q. S. by Talf. 315. The first count stated that the prisoner did 
 deliver to one J. F. N. a certain paper writing, partly written and partly printed, purporting 
 to be a promissory note, made by one 0. V., for certain persons therein described, as using 
 the names, style, and firm of Vincent, Baily, and Vincent, for the payment by the makers 
 thereof to A. G., or bearer, oh demand, of five pounds, at the Hon. B. D. &c, bankers, Lon- 
 don, or on demand in Newbury, value received, as and for a good and available promissory 
 note of the said makers thereof, and the said prisoner then and there unlawfully and falsely 
 did pretend to the said J. F. N. that the said paper writing was a good and available pro- 
 missory note of the said persons so using the names, style, and firm of the said V. B. and 
 V.: by means of which said false pretence the said prisoner did then and there unlawfully 
 obtain from the said J. F. N. a bull, the property of the said J. F. N., with intent then and 
 there to cheat, and defraud him, the said J. F. N., of the same: whereas in truth and in fact 
 at the time the said prisoner so delivered the said paper writing, and made the said false 
 pretence as aforesaid, the said paper writing was not a good and available promissory note 
 of the said persons using the names, style, and firm of V. B. and V., but on the contrary 
 thereof, at that time was and from thence hitherto hath been and still is a cancelled, bad. 
 and unavailable promissory note of the said V. B. and V., and of no value, as he the said 
 prisoner then and there well knew." The second count was like the first, except in omitting 
 the makers' names, and stating them to be " certain persons therein more particularly de- 
 scribed as makers thereof, for the payment by the makers thereof,*' &c. The third count 
 was for a cheat at common law, and charged the prisoner with uttering and delivering to 
 the prosecutor a certain other paper writing (setting it out as in the first count), and as for a 
 good and available promissory note, the payment of which to the holder or holders thereof, 
 the said persons so therein particularly described as the makers thereof were there and at that 
 time liable, with intent then and there to cheat and defraud the said prosecutor, and did 
 then and there and thereby cheat the said prosecutor to the amount of the said sum of ol. ; 
 said prisoner then and there well knowing that the said last-mentioned paper writing was 
 there, and at that time a bad, cancelled, and unavailable promissory note, to the payment of 
 which to the holder or holders thereof, the said persons so therein particularly described as 
 the makers thereof, were not there and at that time liable, against the peace, &c. The next 
 case tried was Reg. v. Mesheck Ferris, on a similar indictment. As the evidence closely 
 resembled that in the last case, the counts for the false pretences were abandoned, and the 
 opinion of the court was taken whether the facts did not constitute a cheat at common law 
 as laid in the last count; and the third count in Rex v. Freeth, to which no objection was 
 made at the trial or before the judges, was mentioned. Coleridge, J., was of opinion that 
 the facts did not constitute an indictable cheat, and the prisoner was acquitted. 
 (s) Rex v. Airey, 2 East. R. 30. 
 
 f [On a trial of a person indicted for cheating by false pretences, by representing that a 
 bill of an insolvent bank was worth its nominal value, it is competent to show the depreci- 
 ated value of the bill in the market connected with evidence that the bank has refused to 
 pay, and it is not necessary to prove that the bauk is insolvent. Commonwealth \ '. 
 Metcalf, 43.]
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 297 
 
 had not uttered these words; Lord Ellenborough, C. J., said, "I take 
 the defendant to have uttered every word contained in the ticket which 
 he brought with the parcel. "(«) So if a person go to a shop dressed in Assuming 
 the costume of a particular class of persons for the purpose of fraudu- the di ; ess of 
 lently obtaining goods, this is a pretending that he is a person of such clasffor " 
 class, although he makes use of no words. The indictment charged the purpose 
 that the prisoner falsely pretended that he was an undergraduate of the of fraud - 
 University of Oxford and a commoner of Magdalen College, and it ap- 
 peared that the prisoner went to a bootmaker's, wearing a commoner's 
 cap and gown, and ordered boots, which were not sent to him, and straps 
 which were sent to him ; and he stated that he belonged to Magdalen 
 College. The prisoner, however, did not belong to that college. Bol- 
 land, B., "If nothing had passed in words, I should have laid down 
 that the fact of the prisoner's appearing in the cap and gown would 
 have been pregnant evidence from which a jury should infer that he 
 pretended he was a member of the University, and if so, would have 
 been a sufficient false pretence to satisfy the statute. It clearly is so by 
 analogy to the cases in which offering in payment the notes of a bank 
 which has failed, knowing them to be so, has been held to be a false 
 pretence without any words being used."(?t) 
 
 Where the prisoner went to a tradesman's house, and said she came Coleman's 
 from a Mrs. Cook, a neighbour, who would be much obliged if he would p ase " „ 
 let her have a half a guinea's worth of silver, and that she would send being sent 
 the half guinea presently; upon which she obtained the silver, went byaneigh- 
 away with it, and never returned ; the case was holden not to amount to borrow 
 felony.(v) And it is said that, in truth, this was a loan of the silver, money, 
 upon the faith that the amount would be repaid *at another time ; it *298 
 was money obtained by a false pretence ; and that the same determina- 
 tion had been made in similar cases at the Old Bailey.(ii>) So where 
 the prisoner borrowed half a sovereign of the prosecutor under the pre- 
 tence that he wanted to buy some tea, but never returned any money 
 to the prosecutor, and the pretence made use of was stated to be ficti- 
 tious : Parke, J., told the grand jury, who asked his opinion on the case, 
 that he thought this was not a larceny, and advised them to ignore a 
 bill for larceny of the half sovereign. (.x\ 
 
 We have seen, that it was holden that an indictment for a cheat or Fraudu- 
 fraud at common law could not be supported against a person for deliv- ; e ^;^ ° 3 " 
 ering a draft on a banker, which he knew he had no authority to draw, goods by 
 and would not be paid, and thereby obtaining certain lottery tickets. (#) S lvin S in 
 But a different doctrine appears to have been laid down in a case of an check upon 
 indictment on the repealed statute 30 Geo. 2, c. 24. The prosecutor a banker 
 was a jeweller at Cheltenham, who was defrauded of goods to a consid- t h party 
 erable value by the defendants. Among other things, for the purpose keeps no 
 
 (l) Rex v. Douglass,* V C. & P. 785, note (a). 
 
 \u) Rex v. Bernard," 7 C. & P. 784. And see Reg. v. Wickham, b 10 Ad. & E. 34, where 
 the defendant pretended that he was a captain in the West India service, and Coleridge, J., 
 after citing this case added, " Suppose in the present case the defendant had not stated that 
 he was an officer but merely appeared in uniform." 
 
 (v) Coleman's case, 0. B. 1785. 2 East, P. C. c. 16, s. 104. p. 672. 1 Leach, 303, note (a). 
 
 (w) 2 East, P. C. c. 16, s. 104, p. 673. 
 
 (x) Rex v. George Bromley, Hereford Spr. Ass. 1829, MSS. C. S. G-. An indictment was 
 afterwards preferred for obtaining the half-sovereign by false pretences, and on the trial it 
 appeared that the pretence was true. C. S G. 
 
 (y) Rex v. Lara, ante, p. 284. 
 
 a Eng. Com. Law Reps. xxii. 736. b lb. xxxii. 29.
 
 298 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. 
 
 cash, and f deceiving him, they gave him in payment for the goods a check upon 
 knows will certain bankers in London, with whom it was proved they kept no cash, 
 not be and had no account. It was contended on behalf of the defendants, 
 pau1, that as far as the check was concerned, they were not criminally liable. 
 
 But Bayley, J., is reported to have said, "This point has recently been 
 before the judges; and they were all of opinion that it was an indicta- 
 ble offence, fraudulently to obtain goods by giving in payment a check 
 upon a banker with whom the party keeps no cash, and which he knows 
 will not be paid. "(z\ And the defendants were convicted and sentenced 
 to seven years' transportation. (a)f ., 
 
 Obtaining j t [ s an ff e nce within the 7 & 8 Geo. 4, c. 29, s. 53, to obtain goods 
 means of a D y payment of a check drawn by the prisoner on bankers, to whom he 
 cheek j s unknown and with whom he has no account, he representing that he 
 the prison- ^ as an account, and knowing that the check will not be paid ; an iu- 
 cr on ban- dictment may allege the false pretence to be that the check was a good 
 kers with an( j g enu i ne or( j er f or the payment of, and of the value of, the sum 
 has neither specified. The first count stated that the prosecutor, a gold and silver- 
 funds nor sm jth Jiad agreed to sell the prisoner a watch and watch chain for 251., 
 anaccount, ■,-,,., n -, -i oct it -i 
 
 he repre- and to deliver the same on payment ot the said 251. , and that the pn- 
 
 senting goner had agreed to buv such watch and chain on the said terms : that 
 
 that he has . . 
 
 anaccount the prisoner intending to cheat, &c, on the 27th of December produced 
 
 is within and tendered a certain paper writing as and for a true and valuable or- 
 
 Geo. 4 c. ^er f° r payment of 25?., and as payment of the said watch and chain, 
 
 29, s. 53. which writing was as follows : 
 
 The indict- 
 ment may „ , _ -~,._ 
 
 *299 *^ 25 " 6tn January, 1837. 
 
 state the 
 
 pretence to « ff 3i essrs . Stuckey & Co., bankers, Bristol, pay the bearer twenty- 
 
 06 i h .' i * LI1G _^ 
 
 check was five pounds. 
 
 a good and R. Q m Q. SMYTHE PARKER." 
 
 genuine 
 order for 
 
 the pay- And did unlawfully pretend to the prosecutor that the said paper writiug 
 certain & would be a true and genuine order for payment of 251. and of the value 
 sum, and of 251., and that 251. would be payable on the day of the date of the 
 of that^ 116 sa ^ P a P er writing to the bearer of the same upon presentment at the 
 Represen- banking house of V. Stuckey and others : by means, &c. The second 
 tations as coun t stated that the prisoner produced and tendered a certain other 
 
 to a tuture .. in i • -i j> n 
 
 event seem paper writing as and tor a true and genuine order tor payment ot money, 
 to be not setting it out, and did by such tendering and production unlawfully 
 statute. pretend that such paper writing was a true and genuine order for the 
 
 (z) The case here alluded to was Rex v. Freeth, ante, p. 295. See R. & M. C. C. R. 229. 
 note (a). 
 
 (a) Rex v. Jackson and another, cor. Bayley, J., Glouccester Lent Ass. 1813. 3 Campb. 
 370. In Rex v. Henry Jackson, Matth. Dig. 167, the same learned judge held the same 
 where the bankers had no effects of the prisoner. And see Lockett's case, 177_. 1 Lead]. 
 94. 6 T. R. 567, note (c). 2 East, P. G. c. 19, s. 38, p. 940. where upon an indictment for 
 forging an order for payment of money being in truth a draft upon a banker drawn in the 
 name of a fictitious person, the judges held that it was immaterial whether such person 
 existed or not, it being sufficient that the order on the face of it imported a right, on the 
 part of the drawer, to direct such a transfer of his property. 
 
 f {Assuming a false name, and delivering spurious quarters of lottery tickets to A. for 
 sale on commission, and declaring that he (the defendant) had in a bank the genuine corres- 
 ponding whole tickets, are false pretences, and sufficient evidence of an intent to defraud 
 A. — under the statute of Massachusetts, copied from 30 Geo. 2, c. 24. 4 Pick. 177. Com- 
 monwealth v. Wilgus.} 

 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 299 
 
 payment of the money specified on the face of it at the banking house 
 of V. Stuckey and others. The third count was similar, stating that the 
 prisoner pretended the paper writing was a true and genuine security 
 for the payment of 25/. And the fourth count charged that the prisoner 
 unlawfully did pretend to the prosecutor that a certain other paper 
 writing, which he then produced to the prosecutor, and which was as 
 follows (setting the check out) was a good and genuine order for pay- 
 ment of the said 25?., and of the value of 25/., by means of which said 
 last mentioned false pretence he obtained a watch of the value of 20/., 
 and a watch chain of the value of 5/. The prisoner, on the 27th of 
 December, 1836, selected a watch and chain at the prosecutor's shop, 
 which the prosecutor agreed to let him have for 25/. down. The pri- 
 soner requested some paper to write a check, and on being asked on 
 what bank, he said » on a Bristol Bank," and that any of the coachmen 
 would take it down and get it cashed ; he then commenced writing a 
 check, and whilst so doing he asked the prosecutor to keep the check till 
 the 6th of January, to which he ultimately agreed. The check was then 
 finished, and dated the 6th of January. On receiving it the prosecutor 
 delivered the watch and chain to the prisoner. The prisoner on different 
 occasions, before the 6th of January, requested the prosecutor to delay 
 presenting the check, promising to bring the money before, and saying 
 at one time that he had 1000/. in Stuckey's bank, which he did not wish 
 to disturb : but no money was paid to the prosecutor ; the check was 
 presented after the 6th, and dishonoured. The prisoner had no account 
 with Messrs. Stuckey, and was an entire stranger to them. An objec- 
 tion was taken by the prisoner's counsel to the first part of the indict- 
 ment on the ground that the false pretence therein stated was not a false 
 pretence of an existing fact, and that the other counts were not proved. 
 The learned judge thought it right to take the opinion of the jury on 
 the facts, there being, as there seemed to him, a question as to the mean- 
 ing of the terms, « true, good, and genuine," in the third and fourth 
 counts; whether they meant merely that the instrument was signed 
 by the person whose name it bears, or that it was drawn by a person 
 having funds in the banker's hands, or having a right to draw such a 
 draft; and the learned judge left two questions to the jury; who 
 found, 1st. *That the prisoner, before the completion of the sale by the *300 
 delivery of the goods, represented to the prosecutor that he then had 
 an account with bankers at Bristol, trading under the firm of Stuckey 
 & Co., and then had a right to draw on them, though he postponed the 
 date of the check for his own convenience only to a future day ; that 
 such representation was false ; and that the prisoner at the time of 
 making such representation knew it to be so. 2d. That he represented 
 to the prosecutor, before the completion of the sale by the delivery of 
 the goods, that the check would be paid on presentment on or after the 
 day of the date, and that he then had no reasonable ground to believe 
 that it would be paid at that time, or that he would be able to provide 
 funds to pay it. Upon a case reserved, it was contended that the first 
 count was bad, as the pretence referred to a future period, and in order 
 to bring the case within the statute, the pretence must be of some fact 
 either existing or past.(&) As to the second and third counts, that the 
 meaning of the words " true and genuine order," and " good and genuine 
 security," was the same, namely, that the check on the face of it, was 
 
 (b) Rex v. Goodall, ante, p. 290, and Rex v. Douglas, ibid., were relied upon as in point. 
 
 Vol. ii.— 20
 
 300 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. 
 
 what it purported to be, the prisoner's order for the payment of money, 
 and so genuine. As to the fourth count, that the addition of the words 
 "of the value of 25?.," did not carry the case any further; they only 
 meant that the liability on the check was for 251., and though the check 
 might be dishonoured, the drawer would still be liable. On the part of 
 the crown it was submitted that the first count was good ; and that 
 under the 7 & 8 Geo. 4, c. 29, s. 53, every false representation of a state 
 of things, whether past, present, or future, was an offence ; that the 
 mischief in the one case was as great as in the other, as a person had 
 as little means of ascertaining the truth of a representation as to a 
 future fact as he could have as to a past or present transaction. (c) At 
 least the fourth count was good : it alleged the pretence to be that the 
 order was a good and genuine order for 251., and it never was good for 
 any sum whatever. The count also alleged that the order was pretended 
 to be of the value of 25?., which was negatived by the jury. Eight of 
 the learned judges(tZ) were of opinion that the conviction was good on 
 the fourth count; six of the judges(e) were of a contrary opinion ; and 
 the conviction was affirmed. (/) 
 
 Where an indictment for false pretences alleged that the defendants 
 pretended that one of them was then and there possessed of a certain 
 sum of money, which was a false representation of an existing fact. 
 Parke, B., observed, in the presence of the other judges: "In Reg. V. 
 Parker, a 7 C. & P. 825, I left it to the jury to say, whether the de- 
 fendant had falsely represented that he had an account at the bank of 
 Stuckey & Co. The jury found the representation to be false, and the 
 judges held the conviction right, as it was a false representation of an 
 existing fact."(jf ) 
 *301 *^ was sa *^' tna ^ tnou g n a man cannot be guilty of forgery, merely 
 by passing himself off for the person whose real signature appears to a 
 written instrument, although for the purpose of fraud, and in concert 
 with such real person, there being no false making, yet that this 
 appeared to be a false pretence within the 30 Geo. 2, c. 24. (g} 
 Rex v. Several points were ruled in a modern case, upon the same repealed 
 
 Douglass, statute 30 Geo. 2, c. 24. The indictment changed that the defendant 
 
 \Y licro n. 
 
 porter de- having in his custody and possession a certain parcel, to be by him de- 
 
 (c) Rex v. Young, ante, p. 288, and Coleman's case, ante, p. 297, were relied upon, as 
 showing that a pretence of a future race, and of future repayment of money, lost, was a 
 false pretence : and the preceding 2 Stark. Cr. PI. 496, and Rex v. Scott, post, p. 307, were 
 also referred to. 
 
 (rf) Lord Denman, C. J., Tindal, C. J., Vaughan, J., Bolland, B., Patteson, J., Williams, 
 J., Coleridge, J., and Coltman, J. 
 
 (e) Lord Abinger, C. B., J. A. J.,Littledale, J., Parke, B., Bosanquet, J., and Alderson, B. 
 
 (/) Rex v. Parker, b 2 Moo. C. C. R. 1. 7 C. & P. 825. In the course of the argument 
 Alderson, B., said, " The fourth count might have charged that the prisoner pretended that 
 he had a right to draw the check :" Tindal, C. J., il or that he had money at the bankers." 
 And Parke, B., said, " There was enough proved at the trial to show that the prisoner pre- 
 tended that he kept an account at Messrs. Stuckeys." If a similar case should occur it 
 would be prudent to aver that the prisoner pretended that he kept an account with the 
 bankers, on whom the check was drawn, that he had funds in their hands, that he had full 
 power, right, and authority to draw checks upon the bank, and thereby to draw out the 
 money held to his credit, and that the check was a good, valid, and available order for the 
 sum specified, and for the purpose of drawing the same out of the bank, and of the value 
 specified ; and it might be well in one count at least to add that the prisoner pretended it 
 would be paid on presentment. C. S. G. 
 
 (ff) Rex v. Henderson, 1 C. & Mars. 328. 
 
 ( S ) 2 East, P. C. c. 19, s. 5, p. 856. See Rex v. Wickham,* 10 A. & E. 34. Pox v. Story. 
 ante, p. 291. 
 
 » Eng. Com. Law Reps, xxxii. 755. b Ibid. c II). xli. 183. d lb. xxxvii. 29,
 
 CIIAP. XXXI. § II.] OF CIIEATS, E^C, BY FALSE PRETENCES. 301 
 
 livered to Maria, Countess Dowager of Uchester, upon the delivery of livered 
 which he was authorized and directed to receive and take the sum of ^bafket^f 
 six shillings and sixpence and no more, for the carriage and porterage fish a false 
 of the same; yet that defendant produced and delivered to Thomas tic S et d t" 
 Harris, then being servant to the said Countess of Uchester, the said 9°. Tod. in- 
 parcel, together with a certain false and counterfeit ticket, made to stead of 6t - 
 denote that the sum of nine shillings and tenpence was charged for the be paid for 
 carriage and porterage of the said parcel, and unlawfully, knowingly, % it was 
 and designedly, did falsely present to the said Thomas Harris, that the ^basket 
 said false and counterfeit ticket was a just and true ticket, and that the was well 
 said sum of nine shillings and tenpence had been charged, and was due des ° rib . ed 
 
 ■ , /. i . •■ pi.-i ln tne m- 
 
 and payable, tor the carriage and porterage ot the said parcel ; and that dictmentas 
 defendant was authorized and directed to receive and take the said sum a P al ^ el : . 
 of nine shillings and tenpence for the carriage and porterage of the said would have 
 parcel; by means of which false pretences, defendant did unlawfully, b( ! en °. ther - 
 knowingly, and designedly obtain of and from the said Thomas Harris indictment 
 the sum of three shillings and fourpence in moneys, of the moneys of natlbe en 
 the said countess, with intent to cheat and defraud her of the same ; act^Geo 
 whereas in truth and in fact, &c. The delivering the parcel mentioned 3, c. 58, 
 in the indictment, and receiving nine shillings and tenpence, instead of whlcb / enu " 
 that which he ought to have received, namely, six shillings and six- baskets, 
 pence was sufficiently brought home to the defendant. But it appeared P acka S es > 
 that the parcel was a basket of fish : upon which it was contended on &<>., speci- 
 behalf of the prisoner, in the first place, that the indictment was not finally, 
 upon the 30 Geo. 2, c. 24, but upon a public local act, the 30 Geo. 3, 
 c. 58, (/A by which it is enacted, that if any porter, or other person em- 
 ployed in the porterage or the delivery of the " boxes, baskets, pack- 
 ages, parcels, trusses, game, or other things," mentioned in the act, shall 
 demand or receive in respect of such porterage or delivery, any greater 
 sum or sums, than the rates of prices thereinbefore fixed, such person 
 shall for every such offence forfeit not exceeding twenty, nor less than 
 five shillings ; and that, being upon such act, the basket in question 
 was not properly described as a parcel ; that parcel was not a generic 
 name, and that the indictment should have described the thing accord- 
 ing to the fact.(t') Lord Ellenborough, C. J., was of opinion, that if the 
 indictment had been upon the 39 Geo. 3, this would have been a fatal 
 variance ; but that, as the indictment was upon the 30 Geo. 2, c. 24, a 
 basket answered the general description of a parcel well *enough. In *302 
 the next place it was objected that as the nine shillings and tenpence 
 were paid to the defendant by the servant of the Countess of Uchester, 
 the indictment had improperly averred that the moneys obtained by the 
 defendant, namely, the three shillings and fourpence, were "the moneys 
 of the countess," though she had afterwards repaid the servant the 
 whole sum of nine shillings and tenpence; that in fact the three shillings 
 and fourpence never had been hers, and whether or not she was bound 
 to reimburse her servant, this particular sum of three shillings and four- 
 pence was at the instant the sole property of the servant. And upon 
 this point Lord Ellenborough held, that the subsequent allowance by 
 the Countess of Uchester did not make the money paid to the defendant 
 
 (/() Entitled " an act for regulating the rates of porterage to he taken by innkeepers and 
 other persons within the cities of London and Westminster, the borough of Southwark, and 
 places adjacent." 
 
 (/) .See as to this objection, Cook's case, 1 Leach, 105. 2 East, P. C. 616.
 
 302 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. 
 
 ** ___ ! 
 
 her property at the time, that she was not chargeable for more than 
 was actually due for the carriage of the basket, and that it depended 
 upon herself whether she should pay the overplus. But the servant 
 afterwards stated, that at the time of this transaction he had in his 
 hands upwards of nine shillings and tenpence, the property of his mis- 
 tress, which Lord Ellenborough considered sufficient to sustain the 
 averment. In the last place it was objected, that as the offence cer- 
 tainly came within the 39 Geo. 3, c. 58, the defendant ought to have 
 been prosecuted on that statute ; but Lord Ellenborough said, that the 
 remedy given by that statute was cumulative, and did not take away 
 the remedies which before existed either at common law, or by other 
 acts of parliament. (J) 
 
 The first count charged that the defendant did unlawfully pretend 
 that he was Mr. Hitchings, who had cured Mrs. Clarke at the Oxford 
 Infirmary, and that he thereby obtained a sovereign from G. Palmer 
 with intent to cheat him of the same. The second count charged the 
 defendant with obtaining by similar pretences a sovereign from the said 
 G. Palmer, with intent to cheat him " of the sum of five shillings, par- 
 cel of the value of the said last mentioned piece of the current gold 
 coin." It appeared that the defendant made the pretence charged, and 
 thereby induced the prosecutor to buy a bottle containing something 
 which he said would cure the eye of the prosecutor's child, for five shil- 
 lings ', the prosecutor gave him a sovereign, and the defendant gave him 
 fifteen shillings in exchange. It was objected, first, that the first count 
 was not proved, as the defendant did not intend to defraud of a sove- 
 reign but of five shillings. Secondly, that the second count ought to 
 have charged that the defendant obtained five shillings with intent to 
 defraud Palmer of the same. Thirdly, that this was not an obtaining 
 by false pretences within the statute, as the money was obtained by the 
 sale of the stuff in the bottle. And it was held first, that it could not 
 be taken that the defendant intended to defraud the prosecutor of a sove- 
 reign, and, therefore, the first count was not proved. Secondly, that 
 the allegation in the second count was supported; and lastly, that 
 the case must go to the jury.^') Cresswell, J. A stronger objection, 
 which seems not to have been taken, might have been raised both on the 
 facts and on the face of the second count ; the statute provides, that u if 
 any person shall by any false pretence obtain from any person any chat- 
 tel, money, or valuable security, with intent to cheat any person of the 
 same, &c. It should seem, therefore, that it might well be contended 
 that obtaining one thing with intent to cheat of another was not within 
 the statute, and that to bring a case within the statute it must be shown 
 that the party obtained a chattel with intent to cheat and defraud of 
 that same identical chattel. The decision in this case was only that the 
 second count was proved, and the question whether that count was good 
 was not raised. C. S. G. 
 Obtaining Obtaining credit in account from a banker by drawing a bill on a per- 
 credit in SO n, on whom the party had no right to draw and which has no chauce 
 with"* 11 °f ^ e i u g P a id, is not within the act, though the banker pays money in 
 
 (j) Rex v. Douglas, cor. Lord Ellenborough, C. J., 1808. 1 Campb. 212. But qu. whether 
 the offence charged in the indictment is within the 39 Geo. 3, c. 58. It certainly is not 
 -within the section cited, -which relates only to an overcharge for the porterage. 
 
 (jj) Reg. v. Bloomfield, a 1 C. & Mars. 537. 
 
 a Eng. Com. Law Reps. xli. 293.
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 302 
 
 »— 
 
 consequence thereof to an extent that he would not otherwise have done banker by 
 The prisoner had kept an account with certain bankers for more than ^bnTof' 
 three years. They had told him that they could not allow him to over- exchange 
 draw beyond 2001., but on the 29th November, 1828, his account was^™ 1 B1BfS- 
 400?. in debt, of which he had had notice, and was told that he must get 
 them some money; on that day he met Mr. Roe, one of the partners, 
 and told him he had been obliged to give a check to Mr. Jacob for 701. ; 
 Mr. Roe, said we certainly shall not pay it unless you give us some 
 money first; he said, " Sir, I can give you a good bill on Mr. Foster," 
 Mr. Roe said very well. About two hours afterwards the prisoner sent 
 a letter to the bank containing a bill of exchange in his own hand writ- 
 ing, of which the following is a copy: 
 
 "Newport, S. W., Nov. 29th, 1838. 
 " Two months after date pay to my order 200?. value received in 
 flour. " Thomas B. Wavell." 
 
 » Mr. John Fo'ster, Mark Lane," 
 "London." 
 
 (Indorsed) "Thomas B. Wavell." 
 
 After this, checks drawn by the prisoner were brought in and paid 
 *there on that day, and amongst others that in favour of Jacob for 70?. *303 
 Mr. Jacob banked with the prosecutors, and they placed the amount to 
 his credit, which Roe swore he should not have done unless he had met 
 the prisoner and received the bill. Several other checks were after- 
 wards paid, or placed to the credit of parties, on whose behalf they were 
 sent in. The bill was not accepted, and searches were made in vain for 
 a person of the description of John Foster, and the bill was not paid 
 The prisoner endeavoured to prove that at the time he drew the bill he 
 had reason to expect that it would have been accepted, but the jury 
 disbelieved the defence; and, upon a case reserved, it was objected that 
 no chattel, money, or valuable security was obtained by the prisoner, 
 by means of the false pretences ; he only obtained such credit with the 
 bankers as to induce them to honour his checks; and the judges held 
 that the prisoner could not be said to have obtained any specific sum 
 on the bill ; all that was obtained by him was credit in account ; some- 
 body else received the money : and therefore the conviction was 
 wrong. (k\ 
 
 »~ If one profess to sell an interest in property, and receives the pur- Selling an 
 chase money, the vendee taking the usual covenant for good title ; and ^^J^t 
 it turns out that the vendor has in fact previously sold his interest in f or title 
 the property to a third person ; this is not sufficient to support an in- wherc ^*' 
 dictment for false pretences. The indictment charged that the defend- previously 
 ant obtained 29?. 3s. by falsely pretending to one Varlow, that he was sold his 
 
 ,-ii, • • . , • xii e /.interest t,i. 
 
 entitled to a reversionary interest in one-seventh snare or a sum or anotner 
 money left by his grandfather, whereas in fact he was not entitled to any person, 
 interest in any share, &c, negativing the pretences. To prove the pre- 
 tence, a deed, assigning the defendant's interest in his one-seventh share 
 of the money to Varlow, was put in, and in this deed there was the usual 
 covenant for title. It was objected that this deed was no evidence of 
 
 (k) Rex v. Wavell, R. & M. C. C. R. 224. A point was also reserved, viz., whether pre- 
 tending that the prisoner had shipped flour to Foster, the drawer of the bill, was anything 
 more than a naked lie: but no opinion was given upon it.
 
 SOi 
 
 OF CHEATS, ETC., BY FALSE PRETENCES. 
 
 [BOOK IV. 
 
 any false pretence, for if it was every breach of covenant would be in- 
 dictable. Littledale, J., " Certainly a covenant in a deed cannot be 
 taken to be a false pretence." The prosecutor was then called, and he 
 proved that the defendant asked him to purchase a seventh share of some 
 money that he would be entitled to under his grandfather's will on the 
 death of one of his relatives, and that he agreed to purchase it, and got 
 a deed of assignment executed to him, and he thereupon paid the money. 
 A previous assignment by the defendant of all his interest to one Pick 
 was also put in. It was then objected that the prosecutor did not ad- 
 vance the money in consequence of the verbal pretence used by the 
 defendant, but took the covenant as his security : what passed between 
 the parties by parol was afterwards embodied in the deed, it was a mere 
 breach of covenant. For the crown it was urged that the indictment 
 charged that the defendant obtained the money by pretending that he 
 was entitled to this reversionary interest; and that pretence was proved 
 to be false ; and it could not become no offence because the pretence 
 was reiterated in the deed. Littledale, J., " The doctrine contended 
 for on the part of the prosecution would make every breach of warranty 
 or false assertion at the time of a bargain, a transportable offence. Here \ 
 the party bought the property and took as his security a covenant that j 
 the vendor had a good title. *If he now finds that the vender has not ' 
 a good title, he must resort to the covenant. This is only a ground for ^ 
 a civil action. "(1} ^^ 
 
 So an indictment will not lie, it should seem, for a false pretence by 
 a deceitful representation and warranty of the soundness of a horse. 
 Upon an indictment for conspiring to defaud General Maclean, by sell- 
 ing him an unsound horse, it appeared that one of the defendants had 
 advertised the sale of horses, undertaking to warrant them. Upon ap- 
 plication by General Maclean at this defendant's stables, another of the 
 defendants stated that he had lived with the owner of the horse, and 
 that he knew the horse to be perfectly sound, and as the agent of the 
 other defendant warranted him to be sound ; and a written warranty of 
 soundness was given. It was discovered very soon after the sale that 
 the animal was nearly worthless. Lord Ellenborough, C. J., intimated 
 that the case did not assume the shape of a conspiracy; the evidence 
 would not warrant any proceeding beyond that of an action on the war- 
 ranty, for the breach of a civil contract. If this (he said) were to be 
 considered to be an indictable offence, then instead of all the actions 
 which had been brought on warranties, the defendants ought to have 
 been indicted as cheats. And that no indictment in a case like this 
 could be maintained, without evidence of concert between the parties to 
 effectuate a fraud. (m\ 
 
 Upon an indictment for obtaining a sovereign by false pretences, it 
 appeared that the defendant, an attorney, had appeared before the 
 magistrates as attorney for the prosecutor, who kept a house for the 
 sale of beer, and who was fined 21. by the magistrates. The defendant 
 afterwards called on the wife of the prosecutor, and said he had been 
 with a person from Frankwell to the magistrates, which person had been 
 fined 21. for a similar offence, and he had prevailed on the magistrates 
 to take 1?. instead of 2/. ; and if she could make it convenient to cive 
 
 e 304 
 
 ■'heating 
 by false 
 warranty 
 utf a horse. 
 
 Money ob- 
 tained in 
 i he charac- 
 ter of an 
 attorney. 
 
 Rev v. Codrington, 1 C. & P. 6G1. See the observation of Pattern. J., on this case 
 in Reg. v. Crossley, post, p. 305. (m) Rex v. Pywell, h 1 Stark. N. P. R. 402. 
 
 1 Eng. Com. Law Reps. xi. 518. b lb. ii. 45.
 
 CHAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 304 
 
 hiru a sovereign, he would go and do the same for her. She gave him 
 a sovereign. The defendant had never made any application to either 
 of the magistrates respecting any person in Frankwell, or either of the 
 fines, and both the person residing in Frankwell and the prosecutor had 
 been obliged to pay their full fines of 2?. each. It was submitted that 
 this was not a false pretence within the statute ; but a matter of bar- 
 gain between an attorney and his client. But it was held to be a case 
 clearly within the statute, as under the guise of an attorney the money 
 was obtained. («) 
 
 Obtaining as a loan from the drawer of a bill accepted by the prisoner Obtaining 
 part of the amount, for the purpose of paying the bill, under the false L^^inof 
 pretence that the prisoner was prepared with the residue of the amount exchange, 
 is within the new statute, if it be proved that the prisoner was not so 
 prepared, and did not intend so to apply the money. The indictment 
 stated that the prosecutor had drawn a bill of exchange upon the pri- 
 soner for 2638?., which the prisoner had accepted, and that when it 
 became due, the prisoner, by falsely pretending that he was then pro- 
 vided with sufficient funds to pay the full amount of the bill, excepting 
 300?., obtained *tke last mentioned sum from the prosecutor : and it *305 
 was proved that the prisoner had accepted a bill, drawn on him by the 
 prosecutor for 2638?. the amount he then owed to the prosecutor; the 
 bill was put into circulation, and when it became due, the prosecutor 
 became anxious about its being duly taken up by the prisoner, and 
 applied to him on the subject, asking him whether he was prepared to 
 pay it. The prisoner answered that he was prepared with sufficient 
 funds all but 300?., and that he expected to get the loan of that sum 
 from a friend. The prosecutor expressed his willingness to advance the 
 300?. himself, and ultimately did so ; but the prisoner, instead of taking 
 up the bill, applied the 300?. to his own purposes, and suffered the bill 
 to be dishonoured, and the prosecutor ultimately had to pay it. There 
 was evidence that at the time the prisoner obtained the money he was 
 not in possession of funds sufficient to make up the balance between the 
 2638?. and the 300?., but was in insolvent circumstances. It was ob- 
 jected that the prisoner's statement, that he could take up the bill, 
 formed a mere misstatement : at the worst a naked lie ; and Rex v. 
 Wakeling,(o) and Rex v. Codrington(p ) were cited. Secondly, that 
 the statute did not extend to cases where the prosecutor had only lent, 
 not parted with the property of the money. Patteson, J., " The words 
 of this act are very large, and I do not think I can withdraw the case 
 from the jury. If they are satisfied that the prisoner fraudulently ob- 
 tained the 300?. by a deliberate falsehood, averring that he had all the 
 funds to take up the bill except 300?. when in fact he knew that the 
 had not, and meaning all the time to apply the 300?. to his own pur- 
 poses, and not to take up the bill, the jury ought to convict the prisoner. 
 In Rex v. Codrington, it does not appear that the prisoner did distinctly 
 allege that he had a good title to the estate that he was selling. Then 
 as to the money being advanced by the prosecutor only as a loan, the 
 terms of the act embrace every mode of obtaining money by false pre- 
 tences, by loan as well as by transfer."^) 
 
 By reference to the decisions upon the repealed statute 30 Geo. 2, c. As t0 tue 
 
 (re) Rex v. Asterley," 7 O. & P. 191. Park, J. A. J. 
 
 (o) R. & M. C. C. R. 504, supra, p. 290. (p) 1 C. & P. 661," supra, p. 304. 
 
 (q) Rex v. Crossley, 2 M. & Rob. 17. But qu. the last point. The corrected distinction 
 a Eng. Com. Law Reps, xxxii. 490. b lb. xi. 518.
 
 305 OF CHEATS, ETC., BY FALSE PRETENCES. [BOOK IV. 
 
 statement 24, it seems to be clear that the indictment upon the 7 & 8 Geo. 4, c. 
 pretenIS S629 > should state what the false pretences are.(V)[l]f They should be 
 in the in- set out, in order that the court may see what they are, and whether 
 dictment. t key come w ithin the statute, (s) But it does not appear to be necessary 
 to describe them more particularly than they were shown or described 
 to the party at the time ; and in consequence of which he was imposed 
 upon : and it does not seem to be necessary to make any express allega- 
 tion that the facts set forth show a false pretence. (?) In a case upon 
 the repealed statute, where it was assigned for error that it was no 
 *306 where alleged in the ^indictment that the defendant " did falsely pre- 
 tend," the judgment was nevertheless affirmed. The indictment alleged, 
 in substance, that the defendant unlawfully, knowingly, and designedly 
 pretended certain things, " by means of which said false pretences' he 
 obtained the money; and, in the subsequent part of the indictment, all 
 the pretences were to be false ; and the court held this to be sufficient. 
 And it seems also to have been their opinion, that the indictment would 
 have been good if it had only alleged that the defendant obtained the 
 money by such and such pretences, (stating them ;) and then averred 
 The indict- that those pretences were false. (u) But a special averment, that the 
 "tate thT P retences > or some of them, are false, cannot be dispensed with ; and, in 
 the preten-a case upon the repealed statute, where it was omitted, and an exception 
 «es,orsome taken on a writ of error, the judgment was reversed. The court con- 
 false, sidered the case by analogy to the necessary averments in an indictment 
 for perjury, framed under the 28 Geo. 2. c. H,(*>) and were decidedly 
 of opinion that, where a party were charged with obtaining money, &c, 
 by false pretences, and the matter charged as the pretence, contained 
 more than one proposition, the indictment ought to announce the pre- 
 cise charge by distinct averments, and state in what particular such 
 pretences are false. Lord Ellenbourgh, C. J., said, " To state merely 
 the whole of the false pretence, is to state a matter generally combined 
 of some truth as well as falsehood. It hardly ever happens that it is 
 
 between larceny and false pretences seem to be that in the former the property was not 
 parted with, in the latter it was. See Rex v. Davenport, Arch. Peel's Acts, 4 ; Rex v. Sav- 
 -.ige* 5 C. & P. 143 ; Rex v. Robsou, R. & R. C. C. R. 413 ; Rex v. Nicholson, 2 East, P. C. 
 H69 ; Rex v. Adams, R. & R. C. C. R. 225. But if the cases show that it would not be ob- 
 taining by false pretences, still if the jury found that the prisoner obtained the loan with 
 intent to steal, that would be larceny, and he might be convicted of that upon this indict- 
 ment. See ante, p. 28. C. S. G. 
 
 (r) Rex v. Mason, 2 T. R. 581. (s) Fuller's case, 2 East, P. C. c. 18, s. 13, p. 837. 
 
 (1) 2 East, P. C. c. 18, s. 13, p. 837, 838. Terry's case, Cro. Car. 564. 
 
 (u) Rex v. Airey, 2 East, R. 30, ante, p. 297. (v) Post, Book V., Chap, on Perjury. 
 
 [1] jSee 9 Cowen, 578, Lambert v. The People.} 
 
 f [In an indictment for obtaining goods by false pretence all the false pretences relied 
 on to sustain the indictment, and to convict the accused, must be specifically negatived ; 
 but to authorise a conviction it is not necessary to prove all the pretences laid in the indict- 
 ment to be false, unless all are material to constitute the offence charged. 
 
 Where one or more of the pretences are proved to be false, and the pretence or pretences 
 thus proved to be false are sufficient per se to constitute the offence, the accused will be 
 convicted, notwithstanding that the public prosecutor fails in proving to be false other pre- 
 tences alleged in the indictment ; such other pretences will in such ca_e be regarded as 
 surplusage. 
 
 It is not necessary to a conviction, that the pretences proved to be false should be the 
 sole and only inducement to the credit or delivery of the property ; it is enough if they had 
 so material an effect in procuring the credit or introducing a delivery of the property that 
 without their influence upon the mind of the party defrauded, he would not have given the 
 credit or parted with the property. People v. Haynes, 11 Wend. 557. 
 
 An indictment for obtaining goods by false pretences must charge the falsity of the pre- 
 tence by special averment. Amos v. The State, 10 Humphreys, 117.] 
 a Eng. Com. Law. Reps. xxiv. 246.
 
 C1IAP. XXXI. § II.] OF CHEATS, ETC., BY FALSE PRETENCES. 306 
 
 unaccompanied with some truth. Suppose the offence, instead of being 
 comprised within five or six separate matters of pretence, as here, had 
 branched out into twenty or thirty, of which some might be true, and 
 used only as the vehicle of the falsity; are we to understand from this 
 form of charge that it indicates the whole to be false, and that the defen- 
 dant is to prepare to defend himself against the whole ? That would be 
 contrary to the plain sense of the proceeding, which requires that the 
 falsification should he applied to the particular thing to be falsified, and 
 not to the whole. And the convenience also of mankind demands, and, 
 in furtherance of that convenience, it is part of the duty of those who 
 administer justice to require that the charge should be specific, in order 
 to give notice to the party of what he is to come prepared to defend ; 
 and, to prevent his being distracted amidst the confusion of a multifa- 
 rious and complicated transaction, parts of which only are meant to be 
 impeached for falsehood. The legislature have expounded their under- 
 standing of the matter in the case of perjury ; and I am at a loss to dis- 
 cover why, in reason, in justice, and in mercy to the party, the charge 
 in this case should not be as distinctly ascertained by proper averments 
 that specifically draw his attention to it, as in the case of perjury.'Yw) 
 It appears from this case that it is not necessary that the whole of what 
 is stated in order to obtain the property should be false ; it is sufficient 
 if part is false ; provided that part has a material effect in inducing the 
 party defrauded to give up his property. (.r) 
 
 In a case which has been previously mentioned, on another point, (y) *307 
 an objection was taken that the pretence was not stated *with sufficient As to the 
 certainty, inasmuch as a wager therein mentioned was stated only to ^*h which 
 have been made "with a colonel in the army, then at Bath," without a false pre- 
 setting forth the colonel's name. (2) But the objection was overruled ; t ? nee 1(1 . 
 and Lord Kenyon, C. J., said, that the charge was sufficiently certain stated. 
 to enable the defendants to know what they were called upon to answer 
 for ; and that perhaps the colonel's name with whom the wager was 
 stated to have been made was not mentioned; in which case he could 
 not have been described with greater accuracy. And further, that if 
 such a wager had been actually depending, it was competent to the de- 
 fendants to have proved it in their defence. f 
 
 It is sufficient to state the effect of the pretence correctly, and the It is suffi- 
 
 very words used need not be stated. The indictment alleged that the c ! ent *? 
 • • i m r\ state the 
 
 prisoner did falsely pretend that he was the servant of one T. Groves, effect of 
 
 of Gloucester, butcher, and that he was sent by the said Groves to look the P re - 
 
 tcncG cor— 
 
 at two heifers, the property of the prosecutor, for the said Groves, and rec tiy. 
 
 (w) Rex v. Perrott, 1814. 2 M. & S. 379, 386. (x) And see Rex v. Hill, post, 310. 
 
 (?/) Rex v. Young and others, ante, 288, et seq. 
 
 (z) See the abstract of the indictment, ante, p. 287. 
 
 f [When a signature to a note has been obtained by false pretences, and the party de- 
 frauded has been obliged to pay the note, the indictment may charge the sum paid to 
 have been obtained by false pretences, without setting forth the obtaining of the signature. 
 The People v. Herifk, 13 Wend. 87. 
 
 An indictment for false pretences need not state all the property which the defendant ob- 
 tained by the false pretences set forth. The People v. Parish, 4 Denio, 153. 
 
 The offence of cheating by false pretences is, in judgment of law, committed when the 
 false pretences are successfully used, and when the money or property is obtained, although 
 the fraud originated and was contrived elsewhere. People v. Adams, 3 Denio, 190. 
 
 An allegation in an indictment that the defendant obtained goods of A., B., and C, part- 
 ners in trade, by false pretences made to them, is supported by proof that the defendant 
 made the alleged false pretences to a clerk or salesman. Commonwealth v. Harley, 7 Met- 
 calf, 462.]
 
 307 OF CHEATING, ETC., BY FALSE TOKENS. [BOOK IV. 
 
 that lie was sent by the said Groves to buy the said heifers of the pro- 
 secutor for the said Groves, and that the said Groves would buy the said 
 heifers for the sum of 231. 10s., and that the said Groves would pay the 
 prosecutor the said sum of 23?. 10s. for the said heifers, and that the 
 said Groves would be over on the next Thursday, and would pay the 
 prosecutor for the said heifers on that day. The evidence was, that the 
 prisoner said he came from Groves, &c, and that either Groves or him- 
 self would be over the following Thursday ; and it was submitted that 
 the indictment was supported ; first it was sufficient to state the effect 
 of the evidence correctly, and that the allegation that the prisoner was 
 sent by Groves was supported by proving that he said " he came from 
 Groves." Secondly, that the alternative that the prisoner would him- 
 self come was a mere naked lie, on which no indictment could be sup- 
 ported, and, therefore it was unnecessary to state it in the indictment ; 
 and Littledale, J., held that the evidence was sufficient to support the 
 indictment; and the prisoner was convicted. (a) 
 Indictment An indictment for obtaining goods by false pretences must state them 
 taTeoodsT *° ^ e * ne P ro P er ty 0I> some person, and it is not sufficient to state that 
 to be the they were obtained from a person with intent to defraud that person of 
 property of ^ e sam e. The indictment stated that the defendant made certain false 
 
 SOX3Q.6 "DCr— 
 
 son. pretences, by means of which he obtained from S. Yates a certain sum 
 
 of money, with intent to cheat and defraud the said S. Yates of the same. 
 Alderson, B., "There is an objection to the indictment in this case. The 
 money which has been obtained is not laid to be the property of any 
 person, which it ought to be, in order to exclude a subsequent indictment 
 for larceny. It would be impossible to plead an acquittal or conviction 
 on this indictment in bar to a prosecution for larceny under the provi- 
 If it do not sions of the statute." And the court ordered the indictment to be 
 it is bad quashed. (i) And if such an indictment omit to state to whom the goods 
 diet. belonged, is bad upon error, and the defect is not cured by the 7 Geo. 
 
 *308 4, c. 64, s. 21. (c) The indictment stated that the *defendants made 
 certain false pretences, and that they thereby obtained from "W. J. Holt, 
 divers goods and merchandises, with intent then and there to cheat and 
 defraud the said W. J. Holt of the same ; and the defendants having 
 been convicted and sentenced to be transported, error was brought upon 
 the judgment, on the ground, among others, that it was not stated in 
 the indictment that the goods were the property of any person ; and 
 the court held that the indictment was clearly bad upon the face of it, 
 and that it was not made good after verdict by the 7 Geo. 4, c. 64, s. 
 21 ; for that enactment assumes that the words shall be so employed as 
 to show that some offence had been committed ; and there were many 
 instances in which, if merely the statuatory form were followed, no of- 
 fence would be charged, in which cases it would not be sufficient to de- 
 scribe the offence in the words of the act. Thus it would not be enough 
 to charge the stealing goods in a dwelling-house, the destroying a will, 
 the taking pigeons, without adding whose goods, whose will, whose 
 pigeons, (cc) 
 Reed's Where an indictment alleged that the prisoner having in his posses- 
 
 case. g i on a cer tain iron weight, of the weight of twenty-eight pounds and 
 
 no more ; on, &c, did falsely pretend that a certain quantity of coals, 
 
 (a) Rex v. John Scott, Hereford Spr. Ass. 1832, cited in Rex v. Parker, ante, p. 300. 
 
 (b) Reg. v. Norton, 8 8 C. & P. 196, Alderson, B., Williams and Coltman, Js. 
 (c) Ante, p. 115. (cc) Reg. v. Martin, 11 8 Ad. & E. -181. 
 
 a Eng. Com. Law Reps, xxxir. 350. b lb. xxxv. 443.
 
 CHAP. XXXI. § II.] AND FALSE PKETENCES. 308 
 
 which he then and there delivered to and upon the premises of the 
 prosecutor, weighed sixteen cwt., (meaning one thousand seven hun- 
 dred and ninety-two pounds weight ;) that the said coals were worth 
 the sum of 11., and that the said iron weight was a half-hundred weight, 
 (meaning of the standard weight of fifty-six pounds ;) by means of 
 which false pretences he unlawfully obtained one sovereign, with intent 
 to cheat the prosecutor of part thereof, to wit, the sum of 10s., (d) and 
 then negatived the pretences; after a verdict of guilty, it was moved 
 in arrest of judgment, that all the false pretences, except that relating 
 to the false weight, were no more than false affirmations ; and that as 
 to the weight there was no allegation to connect the sale of the coals 
 with the use of the weight; and, upon a case reserved, the judges held 
 that the indictment was bad, and the conviction wrong, (e) 
 
 Where an indictment for false pretences stated that the defendants, 
 Henderson and Barlow, did falsely pretend to F. Pawson, that he, the 
 said J. Barlow, was then and there possessed of a certain sum of money, 
 to wit, the sum of 12?., " and that if Pawson would exchange his mare 
 for Henderson's horse, Barlow was ready to purchase the horse of 
 Pawson and pay him 121. ; by means of which false pretence, the de- 
 fendants obtained the mare from Pawson with intent to defraud him of 
 the same ; whereas, in truth and in fact, the said J. Barlow was not 
 then and there possessed of the said sum of 121., and was not then and 
 there ready and willing to purchase the said horse of the said F. Paw- 
 son, and was not then and there ready and willing to pay the said F. 
 Pawson the said sum of 12?." And it was held, upon a case reserved, 
 that the indictment was bad, as it did not allege that the defendants or 
 either of them knew that Barlow had not the money, and did even 
 charge that the defendants did knowingly falsely pretend that Barlow 
 had the sum of 12l.(ee\ In the same case the defendants pleaded a 
 plea of autrefois acquit, which stated that the defendants were indicted 
 for stealing a mare of J. Pawson, and were acquitted ; and averred the 
 identity of the defendants, of F. Pawson, and the mare, and that the 
 taking of the mare in the former indictment, and the obtaining the 
 mare in the present indictment, were one and the same, and that the 
 larceny to which the obtaining the mare would amount, if, upon the 
 trial, on the indictment now pending, it should be proved that they ob- 
 tained the mare in such a manner as to amount to. larceny, and the said 
 larceny of which the defendants had been acquitted, were one and the 
 same, and not other and different larcenies ; and upon demurrer to this 
 plea it was held, upon a case reserved, that the plea was bad, as it did 
 not show that the prisoners had been in jeopardy for the misdemeanor 
 charged in this indictment, and the first acquittal might have been on 
 the ground that the offence did not amount to a felony, (ff} It is con- 
 ceived that no plea of autrefois acquit on an indictment for felony, 
 could be successfully pleaded to an indictment for obtaining goods by 
 false pretences, unless it could be averred and proved that the facts 
 
 (d) Qusere, whether the indictment was not bad, on the ground that it did not state the 
 intent to be to cheat the prosecutor of the sovereign : the words of the act were with in- 
 tent to cheat "of the same." See ante, p. 287. C. S. G. 
 
 (e) Rex v. Reed, 11 1 C. & P. 848. 
 
 (ee) Reg. v. He nderson, b 1 C. & Mars. 328, and per Erskine, J. " He might have had the 
 money five minutes before, and have got his pocket picked." 
 (ff) Reg. v. Henderson, supra. 
 
 6 Eng. Com. Law Reps, xxxii. 706. " lb. xli. 183.
 
 308 OF CHEATING, ETC., BY FALSE TOKENS [BOOK IV. 
 
 amounted to a larceny, because unless that were so the defendant could 
 not have been convicted of the larceny. But that an acquittal on an 
 indictment for obtaining goods by false pretences might in all cases be 
 successfully pleaded to an indictment for stealing the same goods, as on 
 such an indictment for obtaining goods, the prisoner might have been 
 convicted, although the facts amounted to a larceny. C. S. Gr. 
 Tully's Where the first count of an indictment charged that the prisoner did 
 
 ( ' ase " falsely pretend to J. Lovelock that he was sent by "W. P. for an order 
 
 to go to Bracey's (meaning J. Bracey, a shoe factor) for a pair of high 
 shoes : by means of which false pretence he unlawfully obtained from 
 the said J. Bracey one pair of shoes of the goods and chattels of the 
 said J. Bracey, with intent to cheat the said J. Lovelock of the price 
 and value of the said shoes, to wit, of the sum of nine^hillings of the 
 moneys of the said J. Lovelock; and the second count "arged that the 
 prisoner did falsely pretend to the said J. Lovelock that W. P. had said 
 that the said J. Lovelock was to give him an order to go to Bracey's 
 for a pair of high shoes ; by means of which false pretence he unlaw- 
 fully obtained from the said J. Bracey, in the name of the said J. 
 Lovelock, one pair of shoes, of the goods and chattels of the said J. 
 Bracey, with intent to cheat the said J. Lovelock of the same; the 
 *309 prisoner having pleaded guilty, judgment *was arrested on the ground 
 that neither count charged an offence within the 7 & 8 Geo. 4, c. 29, s. 
 
 ■'Feloni- It has been held that if the indictment state that the prisoner felo- 
 
 t' UF r«f r< i ~ n i° us fy pretended, it is bad. The indictment alleged that the prisoner 
 
 "unlawfully, knowingly, and designedly did feloniously pretend;" and 
 
 Law, B., thought that the indictment was bad, and after consulting 
 
 Bosanquet and Taunton, Js., stated that they were of the same opinion, 
 
 and the prisoner was therefore acquitted. (</) 
 
 Several de- It has been held that several defendants might be charged jointly in 
 
 fendants ^g same indictment, if they were all present and in concert together, 
 
 charged taking part in the same transaction. (A) And it was holden also to be 
 
 jointly in no objection in arrest of judgment, that the indictment contained seve- 
 
 indict- ra ^ charges of the same nature in the different counts. Lord Kenyon, 
 
 ment, if C. J., said, " This objection would be well founded if the legal judg- 
 
 alfpresent men t on eacn count was different ; it would be like a misjoinder in civil 
 
 and taking actions. But, in this case, the judgment on all the counts is precisely 
 
 part in the ^ game . a misdemeanor is charged in each. Most probably the 
 transac- ; ° • t 
 
 tion. charges were meant to meet the same facts ; but if they were not so, I 
 
 think they may be joined in the same indictment. "(Af 
 
 In general on an indictment against two charging them with a joint 
 
 (/) Reg. v. Tully, a 9 C. & P. 227, Gurney, B., after consulting Patteson, J. 
 
 (g) Rex ». Walker, b 6 C. & P. 657 ; but "see Rex v. Carradice, Russ. & Ry. 205. ante, p. 
 149, where an indictment for taking fish alleged them to have been "feloniously"' taken, 
 and the judges thought that did not vitiate the indictment. C. S. G. 
 
 (h) See Reg. v. Martin, 8 A. & E. 481, where husband and wife were convicted. 
 
 (») Rex v. Young, ante, p. 287. 
 
 f [Where two persons are jointly indicted for obtaining goods by false pretences, made 
 designedly and with intent to defraud, evidence that one of them, with the knowledge, ap- 
 probation, concurrence and direction of the other, so made the false pretences charged, 
 warrants the conviction of both. Commonwealth v. llarlcy, 7 Metcalf, 462. 
 
 And it is not necessary in order to convict the defendants in such case, to prove that 
 they, or either of them obtained the goods on their own account, or derived, or expected to 
 derive, personally, any pecuniary benefit therefrom. Ibid.] 
 
 a Eng. Com. Law Reps, xxxviii. 92. b lb. xxv. 582. c lb. xxx. 443.
 
 CHAP. XXXI. § II.] AND FALSE PRETENCES. 309 
 
 offence, either may be found guilty. But they cannot be found guilty 
 separately of separate parts of the charge; yet if they be found guilty 
 separately, upon a pardon or nolle prosequi as to the one who stands 
 second upon the verdict, judgment may be given against the other. 
 Hempstead and Hudson were indicted for stealing in the dwelling-house 
 value Ql. 10s., and the jury found Hempstead guilty as to part of the 
 articles value 61. and Hudson guilty as to the residue. On case, the 
 judges held, that judgment could not be given against both, but that 
 upon a pardon or nolle prosequi as to Hudson it might be given against 
 Hempstead. (j) 
 
 Where the goods are obtained by a forged instrument, which falls If the 
 within the class of instruments, the forging of which is made felony by g , ood . s w , ere 
 statute, the indictment must be for forging the instrument, as the mis- by an in- 
 demeanor is mwged in the felony.^}') The prisoner was indicted for strument. 
 obtaining goods by the following counterfeit instrument: felony to 
 
 forge, an 
 
 -Mr. Brooks, ^ST 
 
 " Please to let the bearer, William Turton, have for J. Roe four pretences 
 
 cannot be 
 supported 
 
 yards of Irish linen and a waistcoat. 
 
 " John Roe." 
 -Jan. 6, 1833." 
 
 Taunton, J., held that this was a forged request for the delivery of 
 goods within section 10 of the 1 Wm. 4, c. 66; that it was a felony 
 and not a misdemeanor, and that the prisoner must be acquitted. Uc\ 
 
 *Upon an indictment for obtaining money by false pretences, the pre- *310 
 tences which, as we have seen, must be distinctly set out,(A must at the The pre- 
 trial be proved as laid : so that, where the indictment stated that the ^^ a be 
 defendant pretended that he had paid a sum of money into the Bank of proved as 
 England, and it appeared upon the evidence that he did not say that he ' 
 paid the money, but that he said generally that the money had been 
 paid into the bank, Lord Ellenborough, C. J., held this to be a fatal 
 variance ; and said, that an assertion that money had been paid into 
 the bank was very different from an assertion that it had been paid into 
 the bank by a particular individual. (ni\ But it is not necessary to prove Not neces- 
 the whole of the pretence charged : proof of part of such pretence, and sar y to 
 that the money is obtained by such part is sufficient. An indictment the preten- 
 on the repealed statute 30 Geo. 2, charged the prisoner with obtaining ces; proof 
 money under colour of obtaining a pension for a discharged seaman, by thauhe" 1 ' 
 falsely pretending that the prisoner had received an answer by letter, in money was 
 reply to an application he had made on the seaman's behalf, that t wo b y that 
 guineas must be sent to the under clerks as fees, which they always part, is 
 expected, and that nothing coidd be done without it. There was no ev i- SUDlcie,1t - 
 dence that the prisoner used that part of the pretence in italics, but there 
 was evidence that he used the residue, and by means thereof obtained 
 the money : and on a point saved, the court held it not necessary that 
 
 (j) Rex v. Hempstead, Mich. T. 1818, MS. Bayley, J., and Russ. & Ry. 344. 
 (jj) Foster, 373. 
 
 (k) Rex v. Evans, a 5 C. & P. 553. See other similar cases in the Chapter on Larceny, 
 post. (I) Ante, 306. 
 
 (m) Rex v. Plestow, cor. Lord Ellenborough, C. J., 1808. 1 Campb. 494. 
 a Eng. Com. Law Reps. xxiv. 453.
 
 310 OF CHEATING, ETC., BY FALSE TOKENS [BOOK IV. 
 
 the whole of the pretence- charged should have been proved, and that 
 the conviction was right.(zi) 
 Proof of But the rule that it is sufficient to prove any part of the pretences 
 part of ]&[([, if th e property were obtained thereby, must be confined to those 
 so con- cases where such part is a separate and independent pretence : for if 
 nected to- false pretences are so connected together upon the record that one can- 
 f he „ canno t not be separated from the other, and the statement that one of those 
 be severed pretences is insufficient in point of law, no judgment can be given upon 
 den" SU " the other pretence. The indictment stated that the prisoner did " falsely 
 pretend to W. Walker that he was a captain in the service of the East 
 India Company, and that a certain promissory note, which he then and 
 there produced and delivered to the said W .Walker, purporting to be 
 made for the payment of the sum of 21?., was a good and valuable secu- 
 rity for the sum of 21Z. •" " whereas the defendant was not a captain in 
 the service of the East India Company, and whereas the said promissory 
 note was not a good and valuable security for the sum of 21?., or for 
 any other sum of money whatsoever." Upon error, it was objected 
 amongst other things, that the allegations respecting the note were too 
 loose. No description of the note was given. The record did not show 
 who was the maker, nor when the note was payable. Something ought 
 to have been stated to identify it, and the indictment ought to have 
 shown how the note proved not to be a valuable security. It might 
 have been a forgery, or invalid, for want of a stamp. The record ought 
 *311 to show that the defendant knew the instrument to *be worthless. It 
 might have been a note drawn by himself, and then so far as it was a 
 token, it was a true one. On the part of the crown it was admitted that 
 the defendant's knowledge was not alleged, except by the words "false- 
 ly" and "fraudulently," which was not sufficient, and the note was not 
 set out so as to identify it. But the false pretence of being a captain 
 in the East India Company's service was properly alleged, and bore out 
 the conviction. The crime as charged being made up of two false pre- 
 tences it must be presumed that the judge would tell the jury that one 
 of them was so laid as not to call for an answer.(o) Lord Denman, C. 
 J., "The indictment here omits to say in what respect the note was not 
 valuable. It may have been for want of a stamp or from other causes. We 
 do not mean to throw any doubt on the late decisions, and there is 
 much of the argument for the defendant below in which we do not con- 
 cur. But the pretences stated in this indictment must be taken to- 
 gether, and the falsification as to that part which relates to the note is 
 not sufficient. The judgment must therefore be reversed." Patteson, 
 J., "I do not know that I should have gone the whole length of revers- 
 ing this judgment if the note had appeared to be that of another per- 
 son; but consistently with this indictment, the note may have been the 
 defendant's own, and then the pretences are so connected together that 
 we cannot separate them.'Yjj) 
 
 " (re) Rex v. Hill, East. T. 1811, MS. Bayley, J., and Russ. & Ry. 190. In Reg v. Ady,» 7 
 C. & P. 140, Patteson, J., said, "It is not necessary that all the pretences should be false. 
 If you believe that any one of them was false, and that the mind of the prosecutor -was ope- 
 rated upon by it, then you will find the defendant guilty." See per Coleridge, J., in Rex o. 
 Dale, post, p. 310. 
 
 (o) Lord Denman, C. J., observed, " Can we presume on a writ of error? On a special 
 verdict it might have been stated that the jury convicted as to one pretence, but negatived 
 the other." 
 
 (;j) Reg. v. Wickham, b 10 Ad. & E. 34. Littledale and Coleridge, Js. concurred. 
 a Eng. Com. Law Reps, xxxii. 469. b lb. xxxvii. 29.
 
 CHAP. XXXI. § II.] AND FALSE PRETENCES. 311 
 
 It must be shown that the prisoner obtained the goods by means of The goods 
 some of the false pretences laid in the indictment. The indictment sta- ta^edV 1 *" 
 ted that the prisoner did falsely pretend that he was a gentleman's ser- means of 
 vant, that he had lived in Brecon, and that he had bought twenty horses some of the 
 in Brecon fair, and that he thereby obtained a filly from the prose- FaTdhTthe 
 cutor. The pretences were proved to have been made by the prisoner indict - 
 as stated in the indictment, but it was also proved that the prosecutor men ' 
 sold the filly to the prisoner for 11/., and that the prisoner said he had 
 twenty other horses at the Cross Keys at Brecon, and that if the prose- 
 cutor would take the horse that the prisoner had got at the Cross Keys, 
 he would come down there in about half an hour, and pay the prosecu- 
 tor for the filly. The prosecutor then delivered the filly to the prisoner, 
 and took the prisoner's horse to the Cross Keys, where he ascertained 
 the prisoner's statement to be false. In his cross-examination, the pro- 
 secutor said, that he delivered the filly to the prisoner, because he be- 
 lieved that the prisoner would call at the Cross Keys and pay him, and 
 not because he believed him to be a gentleman's servant, or lived at 
 Brecon, or had purchased twenty horses. Coleridge, J., told the jury, 
 "The question for you to consider is, whether the prosecutor parted 
 with his filly by reason of his having believed any false pretence made 
 use of by the prisoner. It is sufficient for the prosecutor to prove 
 that any one of the false pretences charged in the indictment was false, 
 and that he parted with his filly by reason of such false pretence, the 
 prisoner intended to defraud him thereby. However, in this case, the 
 prosecutor himself says that he parted with his filly because the 
 prisoner promised to pay him, and not on account of any *of the *312 
 false pretences charged. If you think that was so you will acquit the 
 prisoner."^) 
 
 The money must be proved to have been obtained by means of the The money 
 false pretences used, and not delivered through the imprudence of the mu . stnotl5e 
 prosecutor. The prisoner was indicted for obtaining a 10/. note by false through 
 pretences from James Barnett, and it appeared that the prisoner had the impru- 
 gone to Barnett, and said his (the prisoner's) master wanted two or the* prose- 
 three pounds to pay for some wheat; Barnett said he had no small cutor. 
 money, but he had a 10/. note, and he would let him have that; which 
 he did, and he said the reason he did so was, that he had no small change, 
 and in consequence of what the prisoner said. Taunton, J., expressing 
 doubts whether the 10/. note was obtained by the false pretence; it was 
 submitted that if the pretence had not been used the prisoner would not 
 have obtained the note, the note therefore was obtained by means of the 
 pretence, which was all the indictment alleged. Taunton, J., " The 
 prisoner asks for one thing and obtains another : he did not obtain the 
 10/. note by means of the pretence, but through the imprudence of the 
 prosecutor. I think that that is not sufficient."(?') The pro- 
 
 It is not sufficient to prove that the prisoner knowingly made use of uotonlTbe 
 false pretences, and by them obtained the goods, it must also be shown obtained 
 that he did so with intent to cheat the owner of them. Upon an indict- h ? lalse 
 bent for obtaining two sacks full of malt, by pretending that the master but there' 
 of the prisoner had bought them, it appeared that the prosecutor owed must be an 
 the prisoner's master a sum of money, of which he could not procure aofntua. 
 
 (cj) Rex v. Dale," 1 C. & P. 352. 
 
 \r) Rex v. George Smith, Hereford Spr. Ass. 1822, MSS. C. S G. 
 * Eng. Com. Law Reps, xxxii. 539.
 
 312 OF CHEATS, ETC., BY FALSE TOKENS, ETC. [BOOK IV. 
 
 payment, and that the prisoner, in order to secure to his master the 
 means of paying himself, had gone to the prosecutor's wife in his 
 absence, and told her that his master had bought of her husband two 
 sacks of malt, and had sent him to fetch them away, and thereupon she 
 delivered the two sacks of malt to the prisoner, who carried them to his 
 master. The pretence was false, and the prisoner knew it to be so at 
 the time he used it. It was submitted that the prisoner must be acquit- 
 ted, as he had no intent to defraud ; it was replied that every one must 
 be taken to intend the natural consequence of his own act, and the 
 natural consequence of the prisoner's act was to defraud the prosecutor. 
 Coleridge, J., told the jury, "Although prima facie every one must be 
 taken to have intended the natural consequence of his own act, yet if, in 
 this case, you are satisfied that the prisoner did not intend to defraud 
 the prosecutor, but only to put it in his master's power to compel him 
 to pay a just debt, it will be your duty to find him not guilty. It is not 
 sufficient that the prisoner knowingly stated that which was false, and 
 thereby obtained the malt; you must be satisfied that the prisoner at 
 the time intended to defraud the prosecutor. "(s)f 
 It is no de- If a party obtain money by false pretences, it is no defence to show 
 f( f nce l ° , that the party from whom he obtained the money, laid a plan to entrap 
 a plan was him into the commission of the offence. Upon an indictment for ob- 
 laid to en- taining a sovereign, it appeared that the prosecutor and a magistrate 
 prisoner, went and saw the defendant in consequence of a letter, which had been 
 previously received, stating that the writer was able to give information 
 *313 of something to the prosecutor's advantage, and *that the prisoner said 
 J. Laurie was his partner, and was the brother of Sir P. Laurie, neither 
 of which was the fact. The prosecutor paid him a sovereign, upon 
 which he gave him a paper containing some information which turned 
 out to be useless. The defendant refused to return the money. For the 
 defence an endeavour was made to show that the prosecutor and the 
 magistrate went together to the defendant, well knowing who he was, 
 for the purpose of making evidence to support a case against him. 
 Patteson, J., "If I understand the defence set up, it is nothing more nor 
 less than this, that a conspiracy existed between the prosecutor and the 
 magistrate to entrap the defendant into the commission of the offence. 
 You will judge for yourself whether it be so or not. But still if the 
 defendant did obtain the money by false pretences, and knew them to 
 be false at the time, it does not signify whether they intended to entrap 
 him or not."(<) 
 
 Where the false pretence was in writing, and it has been lost, parol 
 
 evidence of its contents may be given in evidence. On an indictment 
 
 for false pretences, it appeared that the prisoner had obtained the goods 
 
 by a false letter, which had been lost before the trial; and Tindal, C. J., 
 
 allowed parol evidence of its contents to be given. (u\ 
 
 liestitu- In cases where goods had been obtained from another by mere fraud, 
 
 tion by the th e court had formerly no power of awarding restitution on conviction 
 
 goods ob- °f the offender, as in cases of felony;(i) though the obtaining goods by 
 
 (*) Rex v. Williams," 1 C. & P. 354. (t) Rex v. Ady, b 7 C. & P. 140. 
 
 (u) Rex v. Chadwick, 6 C. &. P. 181. 
 
 (t>) Parker v. Patrick, 5 T. R. 175 ; and Rex v. De Vaux and others, 2 Leach. 585. 
 
 f [A false representation tending merely to induce one to pay a debt previously due from 
 him is not within the statute against obtaining property by false pretences, though payment 
 be thereby obtained. The People v. Thomas, 3 flil. L69.] 
 
 a Eng. Com. Law Reps, xxxii. 540. b lb. xxxii. 469. c lb. xxv. 344.
 
 CnAP. XXXI. § III.] OF CHEATS AND FRAUDS PUNISHABLE, ETC. 313 
 
 false pretences did not in general change the property in the goods. (w) tained by 
 But the statute 7 & 8 Geo. 4, c. 29, s. 57, in order to encourage the f alse pre " 
 prosecution of offenders, enacts, " that if any person, guilty of any such 
 felony or misdemeanor as aforesaid, in stealing, taking, obtaining, or 
 converting, or in knowingly receiving any chattel, money, valuable 
 security, or other property whatever, shall be indicted for any such 
 offence, by or on the behalf of the owner of the property, or his executor 
 or administrator, and convicted thereof, in such case the property shall 
 be restored to the owner or his representative ; and the court, before 
 whom any such person shall be so convicted, shall have power to award 
 from time to time writs of restitution for the said property, or to order 
 the restitution thereof in a summary manner : Provided always, that if 
 it shall appear before any award or order made, that any valuable secu- 
 rity shall have been honafi.de paid or discharged by some person or body 
 corporate liable to the payment thereof, or being a negotiable instru- 
 ment, shall have been bond fide taken or received by transfer or deli- 
 very, by some person or body corporate, for a just and valuable con- 
 sideration, without any notice, or without any reasonable cause to sus- 
 pect that the same had by any felony or misdemeanor been stolen, taken, 
 obtained, or converted as aforesaid, in such case the court shall not 
 award or order the restitution of such security, "(cc) 
 
 *314 
 *SECT. III. 
 
 Of Cheats and Frauds Punishable by Other Statutes. 
 
 The few statutes by which, in addition to thuse which have been 
 already mentioned, cheats and frauds are subjected to punishment, will 
 be mentioned according to the order of the time at which they were 
 passed. 13 Eliz. c. 
 
 The statute 13 Eliz. c. 5, intituled, "An Act against Fraudulent ^; oi ^ the 
 Deeds, Gifts, Alienations, &c," recites " that feoffments, gifts, grants, fraudulent 
 alienations, conveyances, bonds, suits, judgments, and executions, had conv . ey . an " 
 been and were devised and contrived of malice, fraud, covin, collusion, men ts, &c, 
 or guile; to the end, purpose, and intent to delay, hinder, or defraud enacts,that 
 creditors and others of their just and lawful actions, suits, debts, accounts, ^ Q vo j,] # 
 damages, penalties, forfeitures, heriots, mortuaries, and reliefs ;" and 
 then enacts, in the first place, that " all and every feoffment, gift, grant, 
 alienation, bargain, and conveyance of lands, tenements, hereditaments, 
 goods and chattels, or any of them, or of any lease, rent, common, or 
 other profits or charge out of the same lands, tenements, hereditaments, 
 goods and chattels, or any of them, by writing or otherwise, and all and 
 every bond, writ, judgment, and execution shall be deemed and taken; 
 (only as against that person, his heirs, executors, assigns, &c, whose 
 actions, suits, &c, by such fraudulent devices and practices, as aforesaid, 
 shall or might be in any ways disturbed, delayed, or defrauded,) " to be 
 clearly and utterly void." The third section then enacts, "that all and 
 every the parties to such feigned covinous or fraudulent feoffment, gift, 
 
 (w) Noble v. Adams, a 7 Taunt. 59. Stephenson v. Hart, b 4 Bing. 476. 
 (z) See ante, p. 131. 
 
 a Eng. Com. Law Reps. ii. 24. b lb. xv. 47. 
 
 Vol. ii.— 21
 
 314 OF CHEATS AND FRAUDS PUNISHABLE [BOOK IV. 
 
 And that grant, alienation, bargain, conveyance, bonds, suits, judgments, execu- 
 touieni 16S tions, and other things before expressed, and being privy and knowing 
 shall incur of the same, or any of them ; which shall wittingly and willingly put 
 a forfeiture j n ure ^ avow ^ maintain, justify or defend the same, or any of them, as 
 value of true, simple, and done, had or made hand fide, and upon good conside- 
 the lands, ra tion ; or shall alien, or assign any of the lands, tenements, goods, 
 suffer im- leases, or other things before mentioned, to him or them conveyed as is 
 prisonment aforesaid, or any part thereof; shall incur the penalty and forfeiture of 
 half year. one year's value of the said lands, tenements, and hereditaments, leases, 
 rents, commons, or other profits, of or out of the same ; and the whole 
 value of the said goods and chattels ; and also so much money as are or 
 shall be contained in any such covinous and feigned bond;" one moiety 
 to the crown, the other to the party grieved, to be recovered in any of 
 the queen's courts of record, by action, &c. ; " and also being thereof 
 lawfully convicted, shall suffer imprisonment for one half year, without 
 bail or mainprise."^) 
 *315 *The statute 27 Eliz. c. 4, recites, that subjects and corporations, 
 27 Eliz. c. u after conveyance and purchases of lands, tenements, leases, estates 
 the mis- aQ d hereditaments, for money, or other good considerations, may have, 
 chief of incur and receive great loss and prejudice by reason of fraudulent and 
 and coyi- covinous conveyances, estates, gifts, grants, charges, and limitations of 
 nous con- uses heretefore made or hereafter to be made of, in or out of lands 
 veyances, tenements, or hereditaments so purchased or to be purchased ; which 
 said gifts, grants, charges, estates, uses, and conveyances were, or hereafter 
 shall be, meant and intended by the parties that so make the same to be 
 fraudulent and covinous, of purpose and intent to deceive such as have 
 purchased, or shall purchase, the same ; or else, by the secret intent of 
 the parties, the same to be to their own proper use, and at their free dis- 
 position, coloured nevertheless by a feigned countenance, and show of 
 words and sentences, as though the same were made bond fide, for good 
 And enacts causes, and upon just and lawful considerations." The second section 
 dulentcon- tnen enacts > " that all and every conveyance, grant, charge, lease, estate, 
 veyances incumbrance, and limitation of use or uses of in or out of any lands, 
 deceive° tenements, or other hereditaments whatsoever, had or made for the in- 
 purchasers tent and of purpose to defraud and deceive such person or persons, bodies 
 shall be politic or corporate, as have purchased or shall afterwards purchase in 
 fee-simple, fee-tail, for life, lives, or years, the same lands, tenements 
 and hereditaments, or any part or parcel thereof, so formerly conveyed, 
 granted, leased, charged, incumbered, or limited in use, or to defraud 
 and deceive such as have or shall purchase any rent, profit, or commo- 
 dity in or out of the same, or any part thereof, shall be deemed and 
 taken" (only as against that person, body politic, &c, their heirs, suc- 
 cessors, executors, &c, and persons lawfully claiming under them, which 
 so purchase for money or other good consideration, the same lands, &c.,) 
 And that " to be utterly void." And the third section enacts, "that all and every 
 the parties the parties to such feigned, covinous, and fraudulent erifts, grants, leases, 
 
 to such 
 
 convey- charges or conveyances before expressed, or being privy and knowing of 
 ances, who the same or any of them, which shall wittingly and willingly put in ure, 
 
 (y) See 1 Chitty's Statutes, 385, for the cases decided on this statute, to which may be 
 added Shears v. Rogers,* 3 B. & Ad. 362. Gale v. Williamson, 8 M. & W. 405. Martindale 
 v. Booth," 3 B. & Ad. 498. Bowen v. Bramidge, c 6 C. & P. 140. Butcher v. Harrison, 3 4 B. 
 & Ad. 129. 
 a Eng. Com. Law Reps, xxiii. 9G. b lb. xxiii. 130. c lb. xxv. 320. a lb. xxir. 39.
 
 CHAP. XXXI. § III.] BY OTHER STATUTES. 315 
 
 avow, maintain, justify, or defend the same or any of them as true, avow the 
 simple, and done, had or made, bona fide, or upon good consideration, in™ e r '^ h ha11 
 to the disturbance or hindrance of the said purchaser or purchasers, les- forfeiture 
 sees or grantees, or of or to the disturbance or hindrance of their heirs, of , a y ears 
 successors, executors, administrators or assigns, or such as have or shall lands, &c. 
 lawfully claim anything by, from, or under thetn or any of them, shall and s . uSor 
 incur the penalty and forfeiture of one year's value of the said lands, n^enTfor ~ 
 tenements, and hereditaments, so purchased or charged ;" (the one one half 
 moiety to the crown, and the other moiety to the party grieved, to be year ' 
 recovered in any of the Queen's courts of record, by action, &c.,) "and 
 also, being thereof lawfully convicted, shall suffer imprisonment for one 
 half year without bail or mainprize."(z) 
 
 The statutes relating to those cheats which are effected by means of 9 Anne, c. 
 cards, dice, and other kinds of gaming (and particularly the statute 9 14 ' and 
 Anne, c. 14,) having been mentioned in a former part of this treatise. (a) tutes^refat- 
 
 *The 9 Geo. 2, c. 5, repeals certain acts relating to conjuration, ing to gam- 
 witchcraft, &c, and then for the more effectual preventing and punish- 1D *q-i£ 
 ing of any pretences to any acts or powers of witchcraft, sorcery, or in- 9 (j eo- 2 c 
 chantment, or conjuration, whereby ignorant persons are frequently 5, s. 4. 
 deluded and defrauded, enacts, " that if any person shall pretend to .j^e ^ 
 exercise or use any kind of witchcraft, sorcery, inchantment, or conjura- to exercise 
 tion, or undertake to tell fortunes, or pretend from his or her skill or I ltc t h n raft .' 
 knowledge in any occult or crafty science to discover where or in what tunes, &c., 
 manner any goods or chattels, supposed to have been stolen or lost, may and ^ ein s 
 be found ; every person so offending, being thereof lawfully convicted, ar e to be ' 
 (on indictment or information in England, or on indictment or libel in imprisoned 
 Scotland,) shall for every such offence, suffer imprisonment by the &,, y a 
 space of one whole year without bail or mainprise, and once in every 
 quarter of the said year in some market town of the proper county upon 
 the market day, there stand openly on the pillory by the space of one 
 hour,(&) and also shall (if the court by which such judgment shall be 
 given shall think fit) be obliged to give sureties for his or her good 
 behaviour, in such sum and for such time as the said court shall judge 
 proper, according to the circumstances of the offence, and in such case 
 shall be further imprisoned until such sureties shall be given." 
 
 The 32 Geo. 3, c. 56, entitled "An act for preventing the counter- 32 Geo. 3, • 
 feitina; of certificates of the characters of servants," after reciting the c - 66 ' of ~ 
 
 fences re- 
 
 great and increasing evil occasioned by false and counterfeit characters lating to 
 of servants being given either personally or in writing, by evil disposed tho giving 
 persons, enacts, that any person falsely personating any master or mis- characters 
 tress, or the executor, administrator, wife, relation, housekeeper, stew- to servants 
 ard, agent or servant, of a master or mistress, and, either personally or [XibYeb'y 
 in writing, give a false character to a servant ; or pretending, or falsely a penalty 
 asserting in writing that a servant had been hired for a period of time, j^w™ 
 or in station, or was discharged at any other time, or had not been hired two justi- 
 in any previous service, contrary to truth ; and any person offering him- ees - 
 self or herself as a servant, pretending to have served where he or she 
 has not served, or with a false certificate of character, or who shall alter 
 
 (z) See 1 Chitty's Statutes, 387, for the cases decided on this statute ; to which may be 
 added Doe dcm. Tunstil v. Bottriell, a 5 B. & Ad. 131. S. C. 2 N. & M. 64, and Kerrison v. 
 Dorrien, b 9 Bing. 76. 
 
 (a) Ante, vol. I, p. 455. 
 
 (b) The punishment of the pillory is abolished by the 1 Vict. c. 23. 
 
 a Eng. Com. Law Reps, xxvii. 64. b lb. xxiii. 269.
 
 316 OF FORGERY. [BOOK IV. 
 
 such certificate; and any person who having before been in service 
 shall pretend not to have been in any previous services, shall, on con- 
 viction before two justices, forfeit the sum of twenty pounds. (d) 
 56 Geo. 3, The statute 56 Geo. 3, c. 63, which was passed for regulating the 
 Affi 3 ' 8 ' 12 ' g enera l penitentiary for convicts at Millbank, in the county of Middle- 
 servants of sex, enacts by sec. 12, that if the committee (appointed by the act) shall 
 the Peni- SU spect any fraudulent or improper charges in any accounts of the 
 Millbank governor, or other officer or servant, or any omission therein, they may 
 *317 examine on oath, &c. ; and in case there shall appear any *false entry, 
 making knowingly made, or any fraudulent omission, or other fraud or collusion, 
 entrv^i- 6 tae y ma y dismiss the officer, &c, and cause an indictment to be pre- 
 traudulent ferred against them at the next quarter or other general session of the 
 omission in p eace f or t he coun ty wherein the penitentiary is situated, or any other 
 counts, Ac. adjoining county, and that in case the person indicted be found guilty 
 may be in- f suaQ an offence, he shall be punished by fine and imprisonment at 
 the discretion of the court." 
 
 We have already seen the provisions relative to the fraudulent omis- 
 sions in the schedules of insolvent debtors. (e) 
 Mutiny The annual mutiny acts usually contain clauses providing for the 
 
 acts. punishment of apprentices and other persons fraudulently enlisting 
 
 themselves. (/) 
 
 Cheats and frauds and false personation, for the purpose of obtaining 
 the pay, prize-money, &c, of soldiers or sailors, are mentioned in sub- 
 sequent chapters. (#) 
 Cheats and ^ n addition to the statutes which have been thus mentioned, there 
 frauds in are others relating to cheats or frauds practised by servants and others, 
 trades" ** * n particular trades, and punishable by pecuniary fines or summary 
 proceedings, before magistrates, which will be found arranged under 
 their proper titles in that very excellent work, " Dr. Burn's Justice of 
 the Peace." 
 
 *318 "CHAPTER THE THIRTY-SECOND. 
 
 OF FORGERY. (A) 
 
 Definition. Forgery at common law has been defined as "the fraudulent 
 
 (d) See the different sections of the statute, the substance of which only is here given. 
 The statute provides also that the informer may be a witness, and indemnifies offenders dis- 
 covering accomplices before information. It also gives a form of conviction, provides for 
 the recovery of the penalties, and gives an appeal to the quarter sessions. An abstract of 
 the statute is given in 5 Burn's Just., Servants, sec. 2. In 8 Ev. Col. Stat. Pt. vi. CI. xxxi. 
 No. 12, p. 309, note (/), the learned editor says, that a case which he had lately known to 
 occur, is not within the provisions of the act, although attended with all the mischiefs in- 
 tended to be provided against by it, viz.. the case of assuming the name of another person 
 who has been a servant in the same place with the offender. As to the civil consequences 
 of knowingly giving a false character, see 1 Bla. Com. 432, note (13). 
 
 (e) Ante, p. 235. 
 
 (/) As to similar offences by persons enlisting into the maiine forces, see the annual acts 
 relating to those forces. We have seen that it was a cheat or fraud at common law for an 
 apprentice to enlist as a soldier, and obtain the King's bounty. Jones's case, ante, p. 278. 
 And see Burn's Just. Military Law. 
 
 (g) See post, Chap, xxxiii. On the Forgery of Official Papers, §c. ; and Chap. xxxv.. On 
 False Personation. 
 
 (A) Massachusetts. — An indictment for forging a promissory note, need not allege 
 le indorsement of the note, though it be forged. It is no part of the note ; and a motion
 
 CHAP. XXXII.] OF FORGERY. 318 
 
 making or alteration of a writing to the prejudice of another man's 
 right ;"(a) or, more recently, as "a false making, a making malo ani- 
 
 (a) 4 Bla Com. 247. 
 
 for a new trial because the indorsement was not alleged, was unanimously overruled. 
 Commonwealth v. Ward, 2 Mass. Rep. 397. 
 
 Uttering a forged bank bill, with the name of a fictitious cashier, countersigned thereto, 
 was not within the statute of 1800, c. 64 ; but it is a fraud at common law, " and the court 
 is bound to animadvert upon it." A motion in arrest of judgment, because the jury found 
 that the name of the cashier inserted in the forged bill, " was not the name of anv person 
 who has been at any time, cashier of the said bank," was overruled, and judgment for the 
 fraud at common law, was rendered against the defendant. Commonwealth v. Boynton 2 
 Mass. Rep. 77. 
 
 (The same course has been pursued in other cases by the judges in this State at nisi 
 prim.) 
 
 The possession of materials devised, adopted and designed, for forging and counterfeiting 
 bank notes, without an intention to use them in counterfeiting, is not an oflfence within the 
 statute of 1804, c. 120. The words "devised, adopted, and designed," relate to the form 
 of the nature of the materials. They have no reference to the person having them iu his 
 possession, to his own intention. Commonwealth v. Morse, 2 Mass. Rep. 128, 132. 
 
 Where a merchant entrusts his clerk with his blank indorsements, and one by false pre- 
 tences obtains and uses them, such fraudulent use of them is not forgery ; " the paper with 
 the blank indorsement was delivered with the intention that a note should be written on 
 the face of the paper by the promisor, for the purpose of negotiating it as indorsed in blank 
 by the house ; and we must consider the delivery by the clerk, who was intrusted with the 
 power of using these indorsements (although his discretion was confined) as a delivery by 
 one of the house, — whether he was deceived, as in the present case, or had voluntarily ex- 
 ceeded his discretion ; for the limitation imposed on his discretion was not known to any 
 but himself and his principals. If the clerk has fraudulently, and for his own benefit, made 
 use of all the indorsements for making promissory notes, to charge the indorsers, we are of 
 opinion that this use, though a gross fraud, would not amount to forgery; and for the same 
 reason when one of these indorsements was delivered by the clerk who had the custody of 
 them, to the promisor, who by false pretences had obtained it, the fraudulent use of it would 
 not be forgery." Per Parsons, C. J., in Putnam & al. v. Sullivan & al., 4 Mass. Rep. 53. 
 
 Murry Brown was indicted upon the 2d sect, of the statute of 1804, c. 120, for having in 
 his possession ten or more counterfeit bank bills, with intent to pass them. He was con- 
 victed and sentenced on this indictment, and afterwards brought a writ of error to reverse 
 the sentence and assigned the following errors : that the bills were alleged to be payable 
 to the bearers thereof, instead of bearer ; that they were not alleged to be similar bills ; 
 that they were described as promissory notes, or bank bills ; and that it was not alleged 
 that the plaintiff in error had knowledge of the false making, &c. The objections to the in- 
 dictment were, by the unanimous opinion of the court, held to be insufficient, and judg- 
 ment was rendered that the prisoner take nothing by bis writ. , Brown, in Error v. Com- 
 monwealth, 8 Mass. Rep. 59. 
 
 In the case of the Commonwealth v. Hayword, 10 Mass. Rep. 34, it was decided, that it is 
 not an indictable offence, to tear or cut a piece out of a bank note, with intent, with the bill 
 thus altered and with such piece, together with other pieces of similar bank notes, altered, 
 cut, and torn out, to form other bank bills, with intent to utter the same, and thereby to in- 
 jure and defraud the banking company issuing such notes. (The method pursued by the de- 
 fendant was, to take a number, say seven bills of the same bank, and of the same denomi- 
 nation, and to cut a strip, perpendicularly from each bill, uniting the parts thus separated, 
 and with the several strips united, to form an eighth bill.) In this case the court said, " it 
 was a nondescript offence, and not within the provision of the law against altering bills, 
 which is such an alteration as increases the apparent value of the bill. If there is danger 
 of the growth of this practice, the legislature will provide a statute to meet the evil. If the 
 defendant had completed, what may be presumed to have been his intent, and had made an 
 eighth bill, perhaps this would have been forgery." 
 
 On an indictment for altering an order for money payable to the defendant, the evidence 
 was his confession that another did it, the defendant knowing, and being present at and 
 consenting to the alteration, and it was held sufficient to warrant a conviction. Common- 
 wealth v. Stevens, 10 Mass. Rep. 181. 
 
 The procuring a counterfeit bank bill to be passed by an ignorant boy as a true one, was 
 held to be a sufficient passing within the statute of 1804, c. 120, s. 3. Commonwealth v. 
 Hill, 11 Mass. Rep. 136. {Post 396, note (1).| 
 
 In an indictment for forging an acquittance, it is not necessary to allege that any goods 
 were delivered in consideration of such acquittance. The false making with intent to de- 
 fraud, is the gist of the offence. A bill of parcels was given of the following tenor, viz.: 
 •' Mr. John Ladd, bought of Eveleth & Child, 2.18 Swedes iron, $4.80, the above charged to 
 Geo. Carpenter," which bill the defendant altered by adding thereto the words, " by order,
 
 318 OF FORGERY. [BOOK IT. 
 
 mo, of any written instrument, for the purpose of fraud and deceit '-"(b) 
 the word " making" in this last definition being considered as including 
 
 (b) 2 East, P. C. c. 19, s. 1, p. 852. Rex v. Parkes and Brown, 2 Leach, 785. 2 East, P. 
 C. c. 19, s. 49, p. 965. 
 
 Eveleth <fe Child 7 ' — it was held that this addition amounted to an acquittance of John 
 Ladd, and was a forgery within the statute of 1804, ch. 120, s. 1 ; that the addition pur- 
 ported to be an acknowledgment by Eveleth & Child, that the goods delivered to the defend- 
 ant were charged to Carpenter, by his order, and that this amounted in law, to an acquit- 
 tance or discharge of the defendant. Commonwealth v. Ladd, 15 Mass. Rep. 526. 
 
 To constitute a forgery of "an order for the delivery of goods" within the statute of 1804, 
 ch. 120, s. 1, it is not necessary that the person whose name is forged, should have goods in 
 the hands of the drawer. This point was settled in the case of the Commonwealth v. 
 Fisher, 17 Mass. Rep. 46. The words of the order were, " Mr. Parker — Sir, deliver my son, 
 one pair of walking shoes, and charge the same to me. — Yours, James Fisher." The jury 
 returned a special verdict, "that the said James Fisher had no goods or effects in the hands 
 of said Parker, when the order was made or afterwards" — "but whether the order was, 
 within the true intent and meaning of the statute, an ' order for the delivery of goods,' the 
 jury are ignorant and pray the advisement of the court," &c. It was argued for the de- 
 fendant, that the paper cited in the indictment was not an "order for the delivery of goods.'' 
 but a mere request ; that the words in our statute are a transcript of the statute of 7 Geo. 
 
 2, c. 22, and that the judicial construction of that statute has been similar to that now con- 
 tended for. But by the court, " the language of our statute is similar to that of the statute 
 on which the English decisions are founded, and in favour of life the latter received a 
 stricter construction than we think it necessary to give to our own, by which the life of the 
 offender is not put in jeopardy. We are all satisfied that the facts found by the jury, bring 
 the defendant within the statute upon which the indictment was framed: and that it makes 
 no difference in the crime whether the supposed drawee of the order has funds in the hands 
 of the drawer or not." S. P. 2 Bay's Rep. 262. 
 
 In the case of the Commonwealth v. Hutchinson, 1 Mass. Rep. 7, it was unanimously de- 
 cided by the court that the persons whose signature is alleged to be forged, is not a com- 
 petent witness to prove the forgery, unless the instrument alleged to be forged, is produced 
 at the trial. The court said, that although the practice in England was now settled not to 
 admit the person as a witness to the forgery whose name was forged, the practice in this 
 state has been otherwise for a long time. 
 
 In a subsequent case, where nothing was alleged in the indictment as an excuse for not 
 producing the instrument, on proof that it had been secreted by the prisoner, or his friends, 
 the court permitted a copy to be given in evidence. The Ch. Justice observed, "that in this 
 State for a period of thirty years at least, a witness has been considered as competent, both 
 in criminal and civil prosecutions, unless he was interested in the event of the suit; in the 
 present case, whether the defendant was convicted or acquitted, Smith (the person whose 
 name was forged,) might be sued on the note in question, as a genuine note: and the ver- 
 dict upon this indictment could not be given in evidence ; for although an instrument found 
 to be forged, is retained on the files of the court, yet any person interested may have a copy, 
 by which to form his writ, and a duces tecum to the clerk to bring the original into court on 
 the trial ; Smith was therefore properly admitted to testify, the objection against him going 
 only to his credibility. Commonwealth v. Snell, 3 Mass. Rep. 82. 
 
 See the opinion of the court in this case upon another point, viz., in what cases the pro- 
 duction of the instrument will be dispensed with. See also the case of the Commonwealth 
 v. Houghton, 8 Mass. Rep. 107, in which it was decided, that in an indictment on the statute 
 for having in possession more than ten counterfeit bank bills, it is necessary to describe the 
 bills in the indictment, or to assign a sufficient reason why they are not described. {See 
 post, 359, note.} 
 
 In the cases of Commonwealth v. Baily, 1 Mass. Rep. 62, and Commonwealth t\ Stevens, 
 1 Mass. Rep. 203, it was decided that it was not necessary to set out the ornamental parts of 
 a bank bill, its devices and mottos, in an indictment for forging or uttering the bill. 
 
 Connecticut. — In the case of Bruce v. Ross, 1 Day's Rep. 100, the following points were 
 decided ; 1. That a person injured by a forged note, though the note was not forged in his 
 name, may have an action on the statute for the forgery : — 2. That an action on the statute 
 to recover damages for a forgery, is not barred in one year by the statute of limitations : — 
 
 3. That evidence that a note is in the hands of a defendant, and that it was forged, is ad- 
 missible without producing the note ; — 4. That in such case it is unnecessary to give the 
 defendant notice in the declaration, to produce the note. 
 
 New York. — In the case of the People v. Thompson, 2 Johns, Ca. 342, it was decided that 
 forging the following order, viz., " Captain Godfry, Sir, the bearer. Mr. Richardson, being 
 our particular friend, who has occasion to proceed from New York to Philadelphia, we have 
 requested him to call on you, desiring you to accept his draft on us, on demand, for fifteen 
 dollars, your compliance will much oblige. Sir, Your humble servants, Gibbs & Channing."
 
 CHAP. XXXII.] OF FORGERY. 318 
 
 every alteration of, or addition to, a true instrument. (c) Besides the 
 offence of forgery at common law, which is of the degree only of mis- 
 
 (c) Id. ibid. As to the word forge, it is said in 3 Inst. 169, "To forge is metaphorically 
 taken from the smith, who beateth upon his anvil, and forgeth what fashion or shape he will ': 
 the offence is called crimen falsi, and the offender falsarius; and the Latin word to forge is 
 falsare, or fabricare." 
 
 — is not forging an order for the payment of money within the statute; but by a subsequent 
 statute, Sess. 24, c. 54, such an order, or request, is declared to be forgery. The court in 
 delivering this opinion, cited 1 Leach, 111. Fost. 19, Mitchell's case. 1 Leach, 134, Wil- 
 liams's case. 1 Leach, 3G5, Ellor's case. 2 Leach, 615, Church's case. In all these cases it 
 was ruled that the order was not within the statute, because it did not purport to be the 
 order of a person who had, or assumed to have authority to make it. The words of the statute 
 of New York, above referred to (Sess. 24, ch. 54) are, "any warrant or order for payment of 
 money or delivery of goods, whether such order purports to be the order of the owner of the 
 goods or money specified therein, or of some person who claims interest in the same, or of 
 any other person, with intent to defraud," &c. The latter statute is said to have been 
 passed in consequence of the construction given in this case to the former one. 
 
 A person indicted for forging " an order for the payment of money," is not entitled to a 
 peremptory challenge, it being an offence under the statute, punishable only with imprison- 
 ment for a term of years. A bank check will fall within the description of "an order for the 
 payment of money," and may be so described and alleged in an indictment for the forgerv 
 of it. With respect to the rule of admitting the person whose name is forged as a witness 
 on the trial for forgery, Kent, C. J., observes, " the ancient rule in England, that a witness 
 whose name was forged was incompetent to prove the forgery on an indictment, because he 
 was interested in the question, still prevails in their courts, and was adopted by this court in 
 the year 1794. The grounds or reasons of that decision are not before the public, and there- 
 fore we do not know them ; it is probable the court assumed the English rule, as they found 
 it then existing. But since that time, the question of interest in a witness, has been investi- 
 gated and defined with more precision both in England and this state. The rule now in 
 all such cases, and I believe in almost all criminal cases, except in a case of a forged instru- 
 ment, is that the witness is to be received, if he be not interested in the event of the suit, so 
 that the verdict could be given in evidence in an action in which he was a party. The inter- 
 est which the witness may have in the question put, is no longer the test. That degree of 
 interest, goes only to the credit of the witness. The exclusion of the witness, in the case of 
 forgery, has therefore become an anomaly in the law of evidence, for it is certain, that the 
 conviction of the party charged with forging a check, cannot be given in evidence in a sub- 
 sequent civil suit on the check ; and as the reason of the old rule has ceased, by a sounder 
 definition of the question of interest, and as it is not now applied to other criminal cases, it 
 would seem to be fit and proper, that the rule itself should no longer be applied to the case 
 of forgery." The People v. Howell, 4 Johns. Rep. 296, 302. 
 
 Forging a paper in the following words, " Mr. Seward — Sir, Let the bearer trade thirteen 
 dollars, twenty-five cents, and you will much oblige yours, &c. Aug. 16, 1809. Samuel 
 Layton," — was held to be an order for the delivery of goods within the statute, (24 Sess. c. 
 54,) and the terms of it sufficiently explicit and intelligible. The People v. Shaw, 5 Johns. 
 Rep. 236. 
 
 Since the act of Sess. 30, c. 173, s. 1, it is not a felony in this state to utter and publish a 
 forged bank note of another state, of a sum less than one dollar ; nor is a person possessing 
 such a note with intent to utter it, indictable under the act of Sess. 31, c. 155, s. 7. Notes 
 of this description are not absolutely void, for they may be collected of the bank by which 
 they are issued ; but the circulation of them in New York is prohibited by the first mention- 
 ed statute. The People v. Wilson, 6 Johns. Rep. 320. 
 
 Forging an order in these words, " To the Cashier of Levi McKean's change office, pay to 
 John Low, or bearer, fifteen hundred dollars, in N. Myers's bills or yours — David B. Leist," is 
 not within the act to prevent forgery. The language of it is too indefinite ; whether Myers's 
 bills, or McKean's bills are money or goods, is wholly uncertain. It is not an order for the 
 payment of money, nor for the delivery of goods. The People v. Farrington, 14 Johns. Rep. 
 348. — (Qucere) is not such a fraud cheating by false tokens ? Is not a cheat punishable at 
 common law? 
 
 Forging a deed within this state for lands lying in the Missouri territory, or in another 
 state, is an indictable offence under the acts to prevent forgery. (1 N. R. L. 405, 408.) It 
 cannot be material where the lands lie, if the act of forgery, and the existence of the fraud- 
 ulent intention, both concur and happen within this state. The prisoners have committed 
 no offence cognizable by the laws of Missouri. The corpus delicti is here, and here the pri- 
 soners are punishable, or no where. The forgery of bills of banks in other states, when 
 forged or uttered within this state scienter, has been punishable as an offence within this 
 statute. Such forgeries are punishable under the statute, on the sole ground that they are 
 frauds upon our own citizens. The People v. Flanders and Hauy, 18 Johns. Rep. 164.
 
 318 OF FORGERY. [BOOK IV. 
 
 demeanor, there are a great many kinds of forgery, especially subjected 
 to punishment by the enactments of a variety of statutes, which many 
 
 Pennsylvania. — The forgery of any writing which may be prejudicial to another, is in- 
 dictable at common law. Pennsylvania v. M'Kee, Addis. 33, 34. 
 
 Forgery of a name to an assignment of a bond, is indictable, although there be no seal to 
 the forged assignment, as it gives a possibility to defraud. A co-obligor may be guilty of 
 forgery, iu assigning a bill given by himself and another ; but his possession of it may be 
 evidence of and authority over it, and if there be no intention to defraud, it is no forgery. 
 Pennsylvania v. Misner, Addis. 44. 
 
 Notwithstanding the expiration of the corporate powers of a bank, it is still an indictable 
 offence and punishable within the act of April 22, 1794, to pass a counterfeit note of such a 
 bank, knowing it to be counterfeit; and any forged note, counterfeiting a genuine note of a 
 bank whose corporate powers have expired, is a counterfeit note of such bank. This was 
 decided upon a writ of error brought against the Commonwealth by one White, who had 
 been convicted of passing a counterfeit note of the bank of the United States. The objection 
 to the indictment was, that at the time the offence was alleged to have been committed, the 
 bank of the United States was not in existence : the period for which the stockholders were 
 incorporated having expired. The indictment was founded on the act of Pennsylvania, of 
 April 22, 1794, s. 5, by which it is made penal for any person to pass a counterfeit note of 
 the bank of the United States, knowing it to be such. — "Although the corporation (the bank 
 of the United States) was not in existence when this counterfeit note was passed, yet the 
 genuine note represented by it, had a legal existence. The notes are still in circulation and 
 the trustees in whom the stock was vested after the dissolution of the corporation, are bound 
 to pay them. The act of Assembly on which this indictment was founded is still in full 
 force ; and even the act of Congress incorporating the bank of the United States, is for some 
 purposes in force, although the corporation expired the 4th of March, 1811. But whether 
 the notes were receivable in payment or not, they had a lawful existence until they were 
 paid and cancelled." Per Tilghman, C. J., in White v. The Commonwealth, 4 Binn. 418. 
 
 On an indictment for forging a receipt by adding a farther sum, judgment was arrested 
 after conviction, because the presumption, arising from the manner of stating the offence was, 
 that the additional sum was added, (inserted) after the name, and so no one could be de- 
 ceived by it. Pennsylvania v. M'Kee, Addis. 33, 36. 
 
 The offence of uttering, publishing, and passing a counterfeit bank note of another state 
 with intent to defraud, is punishable by imprisonment at hard labour, under the act of April 
 5, 1790, s. 4. " I see no reason to doubt, that by the common law, this offence was subject 
 to an infamous punishment, and that being the case, it falls within the 4th section of the 
 act of the 5th of April, 1790. Per Tilghman, C. J., in the case of Lewis v. The Common- 
 wealth, 2 Serg. & Rawle, 551. 
 
 In the case of the Commonwealth v. Searle, 2 Binn. 332, the following points of law were 
 settled : — 1. That the publishing of a forged writing of a private nature, though not under 
 seal, with intent to defraud, is an offence indictable at common law. This point was fully 
 investigated and decided in the case of the King v. Ward, 2 Ld. Rayru. 1461. 13 Geo. 1. 
 Since which the law has been considered as settled. — 2. That to utter and publish a bank 
 bill, is to declare or assert directly or indirectly, by words or actions, that the note is good ; 
 but that a note is not passed until it is received by the person to whom it is offered. It is 
 not decided in this case whether the note would be passed, if the person to whom it is offered, 
 receives it for the purpose of having it examined. — 3. That the publishing of a counterfeit 
 note of the bank of North America, is not an offence punishable under the act of April 22, 
 1794. (3 Smith's Laws, 189 ;) but it is punishable at hard labour under the acts of April 
 5, 1790, (2 Smith's Laws, 531,) and April 4, 1807, (4 Smith's Laws, 393). There is no doubt 
 that this offence might have been punished by setting in the pillory, by virtue of the acts 
 before mentioned, and therefore, that it is within them. — 4. That in an indictment for pub- 
 lishing a counterfeit bank note, it is not necessary to set forth the ornamental parts of the 
 bill, the devices or mottos. The court expressed their concurrence with both the cases de- 
 cided in Massachusetts. Commonwealth v. Bailey, 1 Mass. Rep. 62, — and Commonwealth v. 
 Stevens, 1 Mass. Rep. 203, where it was ruled to be unnecessary to set forth the devices and 
 ornamental parts of a bill. 
 
 South Carolina. — The forging of a general indent of this State, is not made a capital 
 offence by the act of Assembly, which authorizes the issuing of the same ; but the forging 
 a receipt on such indent for the accruing annual interest, which appears to be payable upon 
 the face of it, with intent to give the indent currency, and uttering the same with intent to 
 defraud, is felony without benefit of clergy, under the statute of 2 Geo. 2, c. 25, which is of 
 force in this State. The State v. Washington, 1 Bay's Rep. 120. 
 
 An indictment stating an offence to be against the State, and concluding with the words, 
 " against the peace and dignity of the same,'' is good within the terms of the constitution 
 of 1790. Ibid. 
 
 The last of these points was considered of no weight by the court. With respect to the 
 first, it was argued that the receipt charged in the indictment was not such as came within
 
 CHAP. XXXII.] OP FORGERY. 318 
 
 years ago were spoken of as so multiplied as almost to have become 
 general. (<Z) 
 
 These statutes, which for the most part, made the forgeries, to which 
 they related, capital offences, were consolidated by the 1 Wm. 4, c. 66. 
 At present it will be attempted briefly to review the doctrine of forgery 
 at common law, together with such principles and decided points as 
 (though some of them may have arisen in prosecutions upon particular 
 statutes) appear to be of general application. And, pursuing the 
 order of the definitions above given, we may consider, I. Of the making 
 or alteration of a written instrument necessary to constitute forgery; 
 II. Of the written instruments in respect of which forgery may be com- 
 mitted; and III. Of the fraud and deceit to the prejudice of another's 
 right. We may then briefly treat, IV. Of j^'indl^als and accessories; 
 and V. Of the indictment, trial, evidence and punishment. 
 
 In the first place, however, it should be observed that the offence of A publica- 
 forgery may be complete, though there be no publication or uttering of 110 ? orut - 
 the forged instrument. For the very making with a fraudulent inten- the forged 
 tion, and without lawful authority j of any instrument which, at com- instrument 
 
 (d) 4 Bla. Com. 248. 
 
 the act of March 5, 1736, made for putting in force part of the statutes of 2 & 3 G. 2. 
 The form of the receipt set forth in the different counts was as follows: "Received 14th 
 Oct. 1*785, two years' interest on 86/. 2*. Ad., the within indent — Thos. Reynolds. — 86Z. 2s. 
 Ad." The clause of the statute on which the indictment was founded, is not recited in the 
 report of the case : but it is supposed to be in these words, " any acquittance or receipt for 
 money on goods." See 1 Brevard's Dig. 368, Tit. 82, where the statute of 2 Geo. 2, c. 25, 
 may be found. 
 
 It was contended that if counterfeiting the indent was not felony, counterfeiting the re- 
 ceipts upon the back of it, could not be felony. To this it was answered by the court, that it 
 is of no consequence on what the receipts were written; whether on the back of an indent, 
 or on any other paper. If the receipt was for money, and was forged with intent to defraud, 
 that is sufficient to constitute felony. Ibid. 
 
 Forging a bill of the paper medium of this State, with two of the commissioner's names 
 only to it, does not constitute a capital offence, under the act of Assembly giving currency 
 to such bills, which requires that such bills shall be signed by three commissioners. It is 
 evident that any bills not signed by three commissioners, as the law directs, but signed by 
 only one or two of them, would not be receivable at the treasury,. because they are not such 
 as the act requires and makes receivable there. And although there is no negative clause, 
 which makes such bills void, yet they would have been void in law — for " expressio unius 
 est ezclusio alterius." It does not purport to be a true bill upon the face of it. (Anne 
 Lewis's case, Fost. 116.) Moffat's case, 1 Leach, C. C. 372, is directly in point. Per Bay, 
 J., in the State v. Jones, 1 Bay's Rep. 204, 209. 
 
 If a special verdict states the passing of a forged note, knowing of the forgery, it is suffi- 
 cient to warrant a judgment on the conviction, though such finding does not express that it 
 was done with a fraudulent intention. For the fraudulent intention springs out of the know- 
 ledge of the forgery, as a natural consequence. The law will presume in odium fraudis, that 
 it was done with a fraudulent intention. State v. Fuller, 1 Bay's Rep. 245. The following 
 authorities were cited in support of this decision. 12 Mod. 627. 2 Strange, 844, 5. 1 
 Leach, 204, Donally's case; and 5 Rep. 97. 
 
 Forging an order for the delivery of goods, is felony within the meaning of the statute, 
 though the party making the supposed order has no goods in the hands of the drawer. It 
 is of no consequence what the form or the tenor of the order may be, if it be false and cal- 
 culated to deceive and defraud : such an order is both within the mischief and the words 
 of the statute. West's case, tried at Charleston, in 1785, settled the doctrine in this state. 
 State v. Holly, 2 Bay's Rep. 262, 266. See ante, the case of the Commonwealth v. Fisher, 17 
 Mass. Rep. 46, where the same point was decided. 
 
 If an indictment states the offence to be against a British act of Parliament, made of force 
 here, when in fact no such act has ever been made of force, instead of concluding against 
 the act of the legislature of the State, it is good ground to arrest the judgment. The State 
 ». Holly, 2 Bay's Rep. 162. 
 
 [The State Courts have jurisdiction to punish the uttering and publishing counterfeit bills 
 of the Bank of the United States, as well as of all other counterfeits of the currency of the 
 State. Slate v. Tult, 2 Bailev, 44.]
 
 318 OF FORGERY. — OF THE NECESSARY [BOOK IV. 
 
 is not ne- m0 n law, or by statute, is the subject of forgery, is of itself a sufficient 
 complete completion of the offence before publication ; and tbougb the publica- 
 the offence tion of the instrument be tbe medium by which the intent is usually 
 of forgery. mac j e manifest, yet it may be proved as plainly by other evidence. (e) 
 *319 Thus, in a case where the note which the *prisoner was charged with 
 having forged, was never published, but was found in his possession at 
 the time he was apprehended, no objection was taken to the conviction, 
 on the ground of the note never having been published, there being in 
 the case circumstances sufficient to warrant the jury in finding a fraudu- 
 lent intention//) At the present time most of the statutes which 
 relate to forgery make the publication of the forged instrument, with 
 knowledge of the fact, a substantive offence. 
 
 
 SECT. I. 
 
 Of the Making or Alteration of a Written Instrument necessary to 
 constitute Forgery. 
 
 Of the Not only the fabrication and false making of the whole of a written 
 
 alteration* instrument, but a frauduent insertion, alteration, or erasure, even of a 
 of a written letter, in any material part of a true instrument, whereby a new opera- 
 instrument t - Qn j g gj ven £ i^ will amount to forgery ; and this, although it be 
 to consti- afterwards executed by another person ignorant of the deceit.((yr) And 
 tute for- ^g fraudulent application of a true signature to a false instrument, for 
 which it was not intended, or vice versa, will also be forgery.(/*) Thus 
 it is forgery in a man who is ordered to draw a will for a sick person, 
 to insert legacies in it of his own head//) So if a man insert in an 
 indictment the names of those against whom, in truth, it was not 
 found ;{k\ or, if finding another name at the bottom of a letter, at a 
 considerable distance from the other writing, he caused the letter to be 
 cut off, and a general release to be written above the name, and then 
 take off the seal, and fix it under the release. (A And in a late case it 
 appeal's to have been considered that if a party make a copy of a receipt, 
 add to such copy material words, not in the original, and then offer it in 
 evidence on a suggestion of the original being lost, he may be prose- 
 cuted for forge ry.(??i) The fraudulent alteration of a material part of a 
 deed is forgery ; as the making a lease of the manor of Dale appear to 
 be a lease of the manor of Sale, by changing the letter D into an S ; or 
 the making a bond for five hundred pounds, expressed in figures, seem 
 
 (e) 2 East, P. C. c. 19, s. 4, p. 855. 
 
 (/) Elliott's case, 1777, 1 Leach, 175. 2 East, P. C. c. 19, s. 44, p. 951. 2 New R. 93, 
 note (a). And see also Crocker's case, Russ. & Ry. 97. 2 Leach, 987, where it appears to 
 have been holden by Le Blanc, J., that though the note there in question had been kept in 
 the prisoner's possession, and never attempted to be uttered by him, yet it was a question 
 for the jury under all the circumstances of the case, whether the note had been made inno- 
 centlv or with an intent to defraud. 
 
 (ff) 2 East, P. C. c. 19, s. 4, p. 855. (A) Id. ibid. 
 
 (*) Noy, 101. Moar, 759, 760. 3 Inst. 170. 1 Hawk. P. C. c. 70, s. 2. Bac. Ab. For- 
 gery (A). 
 
 (k) Rex v. Marsh and others, 3 Mod. 66. 1 Hawk. P. C. c. 70, s. 2. 
 
 (I) 3 Inst. 171. 1 Hawk. P. C. c. 70, s. 2. Bac. Ab. Forgery (A). 
 
 (»;) By Lord Ellenborough, Cor. in Upfein v. Leit. 5 Esp. 100. The words inserted were 
 " in full of all demands.''
 
 CHAP. XXXII. § I.] MAKING, ALTERATION, ETC. 319 
 
 to have been made for five thousand :(?t) and though it seems to have 
 been thought that a deed, so altered, is more properly to be called a 
 false than a forged deed, not being forged in the name of another, nor 
 his *seal nor hand counterfeited ;{6) yet, according to the better opinion, *320 
 such an alteration amounts to forgery ; on the ground that the fraud and 
 villany are the same, as if there were an entire making of a new deed 
 in another's name ; and also that a man's hand and seal are falsely made 
 use of to testify his assent to an instrument, which, after such an altera- 
 tion, is no more his deed than a stranger's. (p) Altering the date of 
 a bill of exchange after acceptance, and thereby accelerating the time 
 of payment, would come within the same rule. (5) So altering a bill 
 payable at three months, into a bill payable at twelve months is for- 
 gery.(r) And, upon the principle that the false making of any part of 
 a genuine note, which may give it a greater currency, is forgery ; it was 
 holden, in a modern case, that where a note of a country banker's was 
 made payable at their house in the country, or at their banker's in Lon- 
 don, and the London banker had failed, it was forgery to alter the name 
 of such London banker to the name of another London banker, with 
 whom the country bankers had made their notes payable subsequent to 
 the failure. The judges held that the act done by the prisoner was a 
 false making, in a circumstance material to the value of the note, and 
 its facility of transfer, by making it payable at a solvent instead of an 
 insolvent house. (s) And upon the general principle that the alteration 
 of a true instrument makes it, when altered, a forgery of the whole in- 
 strument, it was holden that where the indictment charged the prisoner 
 with " making, forging, and counterfeiting" a bill of exchange, and 
 with uttering it, knowing it to be forged ; and the evidence was of an 
 alteration of the bill of exchange from 10?. to 50?, in the part of it in 
 which the sum is expressed in figures, and also in the part in which it 
 is expressed in letters, the prisoner was properly convicted 5 though the 
 statute, on which the indictment proceeded, 7 Geo. 2, c. 22, contained 
 the word alter, as well as the word forge ; " if any person shall falsely 
 make, alter, forge, or counterfeit, or utter, or publish, as true, any false, 
 altered, forged, or counterfeited, &c. •" from which it was contended 
 that to alter a bill of exchange was made a distinct offeuce.(^) So alter- 
 ing a banker's one pound note by submitting the word ten for the word 
 one, was held to be forgery, (u) And discharging one indorsement and 
 
 (n) Moor, 619. 1 Hawk. P. C. c. 70, s. 2. So in Elsworth's case, 2 East, P. C. c. 19, s. 
 58, p. 986, where a cypher being added after the figure 8, the bill which was for 81. became 
 a bill for 80Z. (0) 3 Inst. 169. 
 
 (p) 1 Hawk. P. C. c. 70, s. 2. Bac. Ab. Forgery (A) in the notes. 
 
 \q) Master v. Miller, 4 T. R. 320. 2 East, P. C. c. 19, s. 4, p. 853. 
 
 (r) Rex v. Atkinson," 7 C. & P. 669, Park, J. A. J. 
 
 (s) Rex v. Treble, 2 Taunt. 328, 2 Leach, 1040. Russ. & Ry. 164. The alteration was 
 effected by pasting a slip of paper bearing the words Ramsbottom & Co., over the words 
 Bloxam & Co., in the same manner as the prosecutors had themselves altered their re-issu- 
 able notes after the failure of their first London bankers, Bloxam & Co. 
 
 (t) Teague's case, cor. Le Blanc, J., Hereford Sum. Ass. 1802, Mich. T. 1802. 2 East, P. 
 C. c. 19, s. 55, p. 979. Russ. & Ry. 33. The judges held that the point was governed by 
 Dawson's case, Mich. 3 Geo. 1. 1 Str. 19. 2 East, P. C. c. 19, s. 55, p. 978, where the pri- 
 soner having altered the figure of 2 in a bank note to 5 (220Z. 520Z.) ten of the judges 
 agreed that it was forging and countei'feiting a bank note; and that 3 Inst. 171, 172, was 
 not law in this respect ; for non assumpsit might be pleaded to such a note. 
 
 («) Rex v. Post, East. T. 1800, and Russ. & Ry. 101. 
 
 ft Eng. Com. Law Reps, xxxii. 679.
 
 320 OF FORGERY. — OF THE NECESSARY [BOOK IV. 
 
 inserting another, or making it thereby a general instead of a special 
 
 indorsement, has been holden to be altering an indorsement.(r) 
 
 *321 So if a person gives another a blank acceptance, and at the time 
 
 It is for- limits the amount either by writing upon it or otherwise, and if in *the 
 
 ge j^ on ° r a filling up of the acceptance that amount be exceeded, with intent to 
 
 having au- defraud either the acceptor or any other person, that is forgery. The 
 
 thonty to prisoner was indicted for forgintr the following bill of exchange : 
 fill up a * o e o o 
 
 blank ac- 
 ceptance "London, August 20, 1836. 
 
 for one r .-nr\ 
 
 sum only, " £»00. 
 to fill up it Two months after date pay to my order the sum of &ye(vv) hundred 
 
 the bill for , , . , * J J V ) 
 
 a larger pounds value received. 
 
 sum. " C. Taylor." 
 
 " To the Rev. C. H. Jenner, 
 
 No. 1, Chesterfield-street, May Fair." 
 
 It appeared that in consequence of an advertisement offering to lend 
 money, Mr. Jenner wrote a letter, stating that he was anxious to borrow 
 500?., and afterwards saw the prisoner. Mr. Jenner told him he wanted 
 money; the prisoner asked what sum; Mr. Jenner said 200?. for one 
 twelvemonth, and some discussion arose as to Mr. Jenner's means of 
 repaying it. The prisoner said he had the money, and appointed to 
 meet Mr. Jenner the next day in London. Mr. Jenner on the next day 
 saw the prisoner, who took from his pocket-book a stamped piece of 
 paper, and wrote something on the upper corner of it on the left hand, 
 which Mr. Jenner could not then distinguish, and which he handed to 
 Mr. Jenner, and recpuested him to write on it " accepted" and his name; 
 which Mr. Jenner did, and also wrote on it " at the Bank of England," 
 at the prisoner's desire. The prisoner said he should leave Mr. Jenner 
 for some purpose; Mr. Jenner said "then of course you will leave the 
 check with me." The prisoner said that was unnecessary, and said 
 " to show you there can be nothing wrong there are the figures denoting 
 200?. written in the corner." Mr. Jenner then looked at the corner 
 and observed written in the corner 200?. ; which figures Mr. Jenner 
 stated must have been written before he wrote his acceptance. The 
 prisoner then took the check away, and the parties were to meet at the 
 bank coffee-house in half-an-hour. Mr. Jenner went there but the 
 prisoner did not come. Mr. Jenner stated he mentioned 500?. in 
 the letter as a nominal sum, wishing to know what the expense of that 
 might be, not having exactly made up his mind when he wrote what 
 sum he wanted; but it did not appear that he gave that explanation to 
 the prisoner. Mr. Jenner stated that he never gave the prisoner any 
 authority to fill up that paper for a greater sum than 200?., but it did 
 not appear that he made any such distinct declaration to the prisoner. 
 Early in August the prisoner told one Edwards he had an acceptance 
 of Mr. Jenner's for 500?. which he wished him to buy, and at a subse- 
 cpuent time Edwards agreed to buy the bill for five shillings in the 
 pound. He then saw it, and it was perfectly blank, with the exception 
 of the acceptance : there was a stamp on it, and he noticed a stain in the 
 left hand upper corner. The prisoner afterwards produced the blank 
 acceptance with the name C. Taylor as drawer, and C. Taylor as indor- 
 
 O) Rex v. Birket and Brady, Russ. & Ry. 251. 
 
 (w) It is " two," by mistake, in the report in R. & M. C. C. R.
 
 CHAP. XXXII. § I.] MAKING, ALTERATION, ETC. 321 
 
 ser; nothing else was then written : Edwards then desired the prisoner 
 to draw the body of the bill, which he did. Edwards made some ob- 
 servations on the bill being for 500?. The prisoner produced the letter 
 from *Mr. Jenner in corroboration that the bill was for 500?. It was *322 
 proved that an acid had been used on that part of the paper where the 
 stain was, and that an acid applied there would have the effect of dis- 
 charging ink. The jury found the prisoner guilty, and said that they 
 were of opinion that the figures denoting 200?. were in the corner of the 
 paper when it was taken away by the prisoner from Mr. Jenner, and 
 also that the authority to fill up the bill was confined to 200?. Upon a 
 case reserved it was contended that the facts amounted only to a fraud, 
 and did not constitute the crime of forgery. The prisoner had authority 
 to draw a bill, and a mere excess of authority was a fraud only, and not 
 forgery. That the 200?. in the margin were no part of the bill, and 
 did not limit the acceptance ; but the judges were unanimously of opin- 
 ion that filling up the bill for 500?., the prisoner having no authority 
 beyond 200?., was a false making of a bill for 500?., and that the con- 
 viction was therefore right, (w) 
 
 Filling in the body of a blank check to which a signature is attached, Filling up 
 without any authority, is a forgery. The prisoners were indicted for ebeJlfto 
 uttering a forged check, and it appeared that one Townsend was in the which there 
 habit of signing blank checks, and leaving them with his clerk when I s a s . lg *? a ~ 
 business called him away from home ; one of these checks fell into the ge ry. 
 hands of the prisoners, who filled up the blank with the words « one 
 hundred pounds," and dated it; it was objected that the signature being 
 genuine, it could not be said that the prisoner had uttered a forged in- 
 strument; but Bayley, J., held that it was a forgery of the check. By 
 filling in the body and dating it, it was made a perfect instrument, 
 which it previously was not, and although it was not in point of fact 
 made entirely by the prisoners, yet it had been held that the doing that 
 which is necessary to make an imperfect instrument a perfect one, is a 
 forgery of the whole. (a?) 
 
 But where the instrument is imperfect as a bill, when the name of A hill of 
 another is written upon it, it is not a forgery of the acceptance. Upon exchange 
 an indictment for forging and uttering a forged acceptance of a bill of complete at 
 exchange, an accomplice proved that the prisoner produced a blank the t imo a " 
 
 . .. acceptance 
 
 stamp from his pocket, and wrote the names " Stiff and Sims" across is w ^ tten 
 it, and then gave it to the witness, who two days after in the absence of on it, or it 
 the prisoner drew the bill for 1000?. on the stamp, Patteson, J., doubted fo r g° er y f 
 whether the charge of forgery could be supported ; because at the time the accept- 
 when the names » Stiff and Sims" were written on the stamp by the ance- 
 prisoner it was a blank paper.(?/) And where the prisoner was indicted 
 fo* forging an acceptance of a bill of exchange, and it appeared that at 
 the time when the prisoner caused a lad to write the name of "John 
 Chapman" across the bill, as the acceptor thereof, (which the lad inno- 
 cently did,) a blank was left in the bill for the drawer's name ; Parke, 
 
 (w) Rex v. Hart, a R. & M. C. C. R. 486, S. C. 7 C. & P. 652. 
 
 (z Wright's case, 1 Lew. 135. The learned judge was also of opinion, that if the banker- 
 had paid the check, they might have recovered the amount from the prosecutor, as he was 
 in the habit of leaving blank checks out with his name written at the bottom. 
 
 (y) Reg. v. Cooke," 8 C. & P. 583. His lordship did not think the point material, because 
 the prisoner had uttered the bill afterwards, and, as he wrote the names on it, he must have 
 known the acceptance to be a forgery. 
 
 » Eng. Com. Law Reps, xxxii. 672. b lb. xxxiv. 535.
 
 322 OF FORGERY. — OF THE NECESSARY [BOOK IV. 
 
 B., held that the indictment was not supported, as the instrument, to 
 *323 which the forged *acceptance was affixed, was not, at the time of such 
 supposed forgery, a bill of exchange, there being no drawer's name. 
 His lordship referred to the terms of the 1 Wm. 4, c. 66, s. 4, which 
 does not make it forgery merely to counterfeit an acceptance, but an 
 acceptance of a bill of exchange. (z) 
 Expung- The expunging, by means of lemon juice (laid in the indictment to be 
 
 ing an in- cer t a i n liquor unknown to the iurvO an indorsement on a bank note, 
 dorsement » jj'/ _ > 
 
 on a bank was holden to be a raising of the indorsement within the 8 & 9 Wm. 3, 
 note. c 20, s. 36, (now repealed) which related to the altering or raising any 
 
 indorsement on any bank bill, &c.(or) 
 Forgery In a case where the prisoner procured a deed to be forged, as from 
 
 and subse- one j^ ^ an( j Q - g son ^ conve yi n g a certain estate for life to M. K. ; and, 
 teration of after the death of one of the supposed grantors, had procured the forged 
 the deed, ^eed to be altered by enlarging the grantee's estate to a fee ; and was 
 convicted of forgery and uttering it in the state to which it was so al- 
 tered; this was holden to be well by all the judges; as being no less a 
 forgery after than before such alteration. (6) 
 As to for- It seems that a man cannot be guilty of forgery by a bare non fea- 
 gery by S ance ; as if in drawing a will he should omit a legacy which he was 
 
 1'ro.u'lulcnt 
 
 omission in directed to insert : but it appears to have been holden that if the omis- 
 written in- s i oa f a bequest to one, cause a material alteration in the limitation of 
 a bequest to another, as where the omission of a devise of an estate for 
 life to one man causes a devise of the same lands to another to pass a 
 present estate, which otherwise would have passed a remainder only, 
 the person making such an omission is guilty of forgery. (c) 
 Making a A man may be guilty of forgery by making a false deed in his own 
 a false name. Thus it has been holden to be a forgery for a person to make a 
 man's own feoffment of certain lands to I. S., and afterwards to make a deed of 
 name. feoffment of the same lands to I. D. of a date prior to that of the feoff- 
 ment to I. S. ; for herein he falsifies the date in order to defraud his 
 own feoffee, by making a second conveyance, which at the time he had 
 no power to rnake.(c?) And it is also said that his crime would have 
 been the same if, by his conveyance, he had passed only an equitable 
 interest for good consideration, and had afterwards by such a subsequent 
 antedated conveyance endeavoured to avoid it.(e) 
 Indorsing If a bill of exchange, payable to A. B. or order, get into the hands 
 a bill of ex- f an other person of the same name with the payee, and such person, 
 a person of knowing that he is not the real payee, in whose favour it was drawn, 
 
 the same indorse it, for the purpose of fraudulently possessing himself of the 
 name as i • -i, n n , j.\ 
 
 the payee, money, he is guilty of forgery. (/) 
 
 Uttering a The uttering of a note, as the note of another person, has been holden 
 
 ■ 1 ° th<Tsame *° ^ e a f° r g erv > though such note was made in the same name as that 
 
 name as of the prisoner. 
 
 *324 *The point arose in the following case: two prisoners named Parkes 
 
 (z) Reg. v. Butterwick, 2 M. & Rob. 196. Rose. Cr. Ev. 474. The bill when produced 
 had upon it the names " Elstob & Butterwick," as the drawers. There seems to have been 
 no count for uttering in this case. C. S. G. 
 
 (a) Rex v. Bigg, 3 P. Wms. 219. 
 
 (b) Kinder's case, 1800. 2 East, P. C. c. 19, s. 4, p. 855. 
 
 (r) Moor. 760, Noy. 101. 1 Hawk. P. C. c. 70, s. 6. Bac. Ab. Forgery. 2 East, P. C. C 
 19, s. 4, p. 856. 
 
 (d) 3 Inst. 169. Pult. 46, I. 1 Hawk. P. C. c. 70, s. 2. Bac. Ab. Forgery (A). 
 
 (e) 1 Hawk. P. C. c. 70, s. 2. Bac. Ab. Forgery (A), in the notes. Moor. 655. 
 (/) Mead v. Young, 4 T. R. 28.
 
 CHAP. XXXII. § I.] MAKING, ALTERATION, ETC. 324 
 
 and Brown, were indicted for forging a promissory note, of which the that of the 
 
 following is a Copy : — prisoner. 
 
 Ringhton, Salop, April 20, 1796. f n " kes 
 
 No. B. 248. Brown's 
 
 I promise to pay to bearer, on demand, at Messrs. Down, Thornton, HoWen to 
 and Co.'s hankers, London, the sum of Five Guineas, for value received, be forgery 
 For Self and Co. Thomas Brown. (a) to t utter t { 
 
 _, ~ V/ note as the 
 
 Five Guineas. note f 
 
 Entered, T. B. another, 
 
 though 
 made in the 
 
 There was a second count for uttering the same, knowing it to he prisoner's 
 forged. The following facts appeared in evidence : the prisoner, Brown, ° wn name * 
 uttered the note to one Hulls, a shoemaker, in part payment for a 
 quantity of boots and shoes which he had bought, under a pretence that 
 he was a Captain Brown of the 17th regiment, and going immediately 
 to the West Indies. At the time when he bargained for the articles at 
 Hulls' shop, he told Hulls that if he would send his boy with him he 
 would send back the money : but Hulls declined this, and went himself 
 with the prisoner. While on their way, Brown said that his brother was 
 agent to the 17th regiment, and would buy all the shoes Hulls had : and 
 upon their coming to a public house, he invited Hulls to go in, saying, 
 he should see his brother presently. They then sat down together, on 
 a bench in the garden of the public house ; and Brown proceeded to 
 speak further of his brother, who, he said, had just married a lady with 
 a fortune of 15,000?., and had deposited it in the hands of Down and 
 Thornton. After some time, the brother not appearing, Brown went 
 into the house, and returned again, using expressions of disappointment 
 at the absence of his brother, and added : "lam sorry I cannot pay you 
 in gold ; but I can give you what is just as good, one of my brother's 
 drafts, for which I have been in the house to get cash, but the landlord 
 has not enough by him." He then produced the note in question, and 
 gave it to Hulls, who asked if it was on the money lodged with Down 
 and Co.'s, Brown said that it was ; and added that his brother and he 
 always paid in that manner on demand, for they wanted no credit. He 
 then appointed Hulls to meet him in the afternoon, at another place, 
 where he would pay him the balance. The note was soon discovered 
 to be a forgery, and Hulls could hear nothing more of Brown. It further 
 appeared that Parkes and Brown were connected together ; and that 
 when Parkes was taken up, more than forty of these five-guinea notes, 
 in blank, were found upon him, dated Ringhton, Salop ; and a few of 
 the same sort of notes were also found concealed under a board in a 
 shop where the prisoner Brown was arrested, and which it was probable 
 he had thrust there. The note in question was proved to be filled up 
 in the handwriting of Parkes ; and the name Thomas Brown was also 
 in the handwriting of Parkes. In Parkes's pocket-book was found a 
 receipt under a cover, addressed to Thomas Brown at the Compter, 
 *(thc prison to which Brown had been committed,) for 21?., for four five- *325 
 guinea bills. It was also proved that Down and Co. had no such custo- 
 mer as Thomas Brown, of Ringhton, in Shropshire ; and there was no 
 evidence that the prisoner Brown had any residence or connection at 
 that place. Upon this evidence the jury found both the prisoners guilty; 
 
 (ff) The words " I promise to pay the bearer on demand," and also the words " the sum 
 of five guineas, for value received for Self & Co." were printed in the note.
 
 325 OF FORGERY. — OF THE NECESSARY [BOOK IV. 
 
 and stated that they thought Parkes signed the note in question with 
 Brown's assent, and that Brown uttered it under a representation that 
 it was his brother's, knowing that it was not so, with intent to defraud 
 Hulls. The following objections to the conviction were then taken by 
 the counsel for the prisoner : first, that the name Thomas Broun was 
 the real name of one of the prisoners ; secondly, that it was no forgery 
 in Parkes to sign the name of Thomas Brown, with his consent ; thirdly, 
 that if Parkes were not guilty of forgery, Brown could not be guilty of 
 uttering the note knowing it to be forged ; and, fourthly, that the sub- 
 sequent misrepresentation of Brown ought not to affect Parkes, as there 
 was no evidence that he was aware of the fraudulent circumstances 
 under which Brown would utter the note : the principle being, that mis- 
 representations do not amount to forgery, or make that a forgery which 
 was not so at the time of the original making. These points were sub- 
 mitted to the consideration of the twelve judges, who held the convic- 
 tion wrong as to Parkes, on a ground irrelevant to the subject now 
 under consideration ; but all of them held the conviction right as to 
 Brown ; and Grose, J., afterwards delivered their opinion. He observed, 
 " as to the first objection, that the definition of forgery was, <the false 
 making a note, or other instrument, with intent to defraud ;'(A) which 
 might be done either by using the name of one who did not exist, or of 
 one who did exist, without his consent. That this was of the former 
 description ; being uttered by the prisoner as the note of his brother, 
 no such person as his brother of that name appearing to exist : and that 
 the circumstance of its being made in the same name as his own could 
 not make any difference ; being uttered as the note of another, and not 
 his own. The same answer applied to the second objection. As no 
 such person existed to whom the name of Thomas Brown, as the signer 
 of the note, applied, there could be no consent given to sign the name. 
 It was signed by the authority of a Thomas Brown, but not of the Tho- 
 mas Brown, for whose note it purported to be given. For the person in 
 whose name the note was made, was, according to the description of 
 him in the note, then a resident at Ringhton, in Salop, and it imported 
 that he was a correspondent of Down, Thornton and Co., and had money 
 in their hands ; and he was also represented to be the brother of the 
 prisoner ; but no such person of that name and description appeared to 
 exist. And all this was proved and found to be done for the purpose 
 of fraud. Thirdly, that the indictment did not charge that Brown 
 uttered the note knowing it to have been forged by Parkes, but only 
 knowing it to have been forged ; and, therefore, let it have been 
 forged by whomsoever it might, it was equally an offence in Brown to 
 utter it "(*) 
 *326 *The foregoing case has been observed upon by a learned writer, 
 
 Doubt who says, that, though supported by the highest authority, it has always 
 suggested appeared to him to rest upon very questionable principles.^') And he 
 preceding Clies a case > where upon the facts that a bill made by the prisoner, D. 
 case. "Walker, (who was a pauper at Manchester) was dated Liverpool, signed 
 
 I). Walker and Co., and drawn on Devaynes and Co., London ; and that 
 similar bills had been before drawn in the same manner, and being pro- 
 
 (A) Ante, p. 318. 
 
 (t) Rex v. Parkes and Brown, 1796, 1797. 2 Leach, 775. 2 East, P. C. c. 19, s. 49. p. 
 963. Brown accordingly received sentence of death but was not executed. 2 Leach. 
 (/) 6 Ev. Col. Stat. Pt. V. CI. xii.. p. 580.
 
 CHAP. XXXII. § I.] MAKING, ALTERATION, ETC. 320 
 
 vided for before due, had been regularly paid, although the drawer was 
 unknown to the house ; the case in question was cited as an authority ; 
 but the learned judge ruled that the evidence was not sufficient to go to 
 the jury.(/^) And, in discussing the effect of a false representation, he 
 refers to the following case, where the prisoner assumed to be the real 
 indorser of a bill : yet, as there was no false making, it was holden not 
 to be forgery; though the act was done in concert with the real indorser, 
 and for the purpose of fraud. (l\ 
 
 The prisoner, John Hevey, was indicted for forging an indorsement Hevey's 
 on the back of a bill of exchange, in the name of Bernard M'Carty, ca ? e ' The 
 with intent to defraud Wm. Masters and Edward Beauchamp, &c. ; and assumed to 
 the indictment contained a second count for uttering and publishing: a! 36 , 1116 rea ! 
 
 o indorser oi' 
 
 forged indorsement in the name of Bernard M'Carty, with the like a bill,- but 
 
 intention. The bill of exchange in question was in the following form : — as there 
 
 was no false 
 
 making, it 
 
 " No. 59. £30. was holden 
 
 « Bath Bank, Nov. 19, 1781. ? ° r ^ e 
 " Thirty-one days after sight, pay Mr. Bernard M'Carty or order, though the 
 thirty pounds value received, for Smith, Moore and Co. doneTn 
 
 " JER. CONNELL. concert 
 
 "To Rich. Beatty and Co. with the 
 
 xt i rv /-i o tt i » t i ) i rea * lr >dor- 
 
 " JNo. 19, Great bt. Helen s, London. ser an d f or 
 
 the purpose 
 
 It appeared in evidence, that the prisoner came to the shop of Beau- 
 champ and Masters, who were pawnbrokers, to buy a watch, and offered 
 them the bill in question, with the indorsement then written on it; that 
 they hesitated about taking it, upon which he told them it was a good 
 bill, that his name was Bernard M'Carty, that he had indorsed it, and 
 that Beatty and Co., by whom the bill purported to be accepted, were 
 agents to the Bath Bank. The pawnbrokers were not satisfied, and sent 
 their servant to St. Helen's, to inquire about the acceptance; but upon 
 his returning and saying that he had seen a person at St. Helen's, who 
 said the acceptance was good, they let the prisoner have the watch, and 
 gave him the difference of the bill. It was then proved that the prisoner 
 had procured the plate to be engraved some time before, containing the 
 form of the bill in question, and had printed several hundred copies ; 
 that he had always been known by the name of John Hevey; and that 
 no such person as Smith, Moore and Co. could be found in Bath, though 
 there were such names put on the door of *a house from whence the *327 
 person who had been there had run away. It was proved also, that the 
 names of Beatty and Co. were on a counting-house door in Great St. 
 Helen's, where a man by the name of Beatty, who said he was a clerk, 
 had lived; but was since taken up and lodged in prison. And it further 
 appeared, that there was such a man as Bernard M'Carty, and that the 
 indorsement was in fact of his handwriting. Upon this evidence, the 
 jury, under the direction of the learned judge who tried the prisoner 
 found a verdict of guilty, and found specially that there was such a per- 
 son existing as Bernard M'Carty, and that the indorsement was of hifl 
 handwriting; that the prisoner was not that person, but had passed him- 
 lelf upon the prosecutors as such at the time he tendered the bill in pay- 
 
 (k) Walker's case, cor. Chambre, J., Lancaster, about the year 1807. Id. ibid. 
 (I) This appears to have been a false pretence within the statute JO Geo. 2, c. 24. And 
 see now 1 & 8 Geo. 4, c. 29, s. 53. Ante, p. 28G. 
 
 Vol. ii.— 22
 
 327 OF FORGERY. — OF THE MAKING, ETC. [BOOK IV. 
 
 ment. The case was afterwards submitted to the consideration of the 
 twelve judges, who were all of opinion that it did not amount to forgery, 
 for there was no false indorsement, the jury having found that the in- 
 dorsement was truly made by a real person whose name it purported 
 to be.(m) 
 "Webb's And in a more recent case, it was holden by a majority of the judges, 
 
 False de- u P on a case reserved, that the adopting a false description and addition, 
 scription of where a false name was not assumed, and where there was no person 
 ;he accept- answer i n g the description or addition, was not a forgery. The bill of 
 a false exchange upon which the indictment proceeded, was addressed to Mr. 
 
 name, held Thomas Bowden, baize manufacturer, Romford, Essex; and drawn bv 
 
 not to be 
 
 forgery. the prisoner in his own name. It was proved that the prisoner uttered 
 
 this bill with an acceptance thereon in the handwriting of Thomas 
 Bowden, whom the prisoner had known for many years, but who never 
 had carried on the business of a baize manufacturer at Romford, nor 
 ever resided there. The bill was accepted by Bowden, payable at No. 40, 
 Castle-street, Holborn ; and the person who lived at that house, and who 
 knew Bowden, and was well acquainted with his handwriting, stated 
 that he was surprised at Bowden's accepting the bill, payable at his 
 house, as he did not reside there, and had no authority from the witness 
 to make any bills payable at that house. The learned judge left it to 
 the jury in the first place to consider whether there was any such person 
 as Thomas Bowden ; and, if there was, whether the acceptance was his, 
 and that if there was no such person, or the acceptance was not his, and 
 the prisoner at the time he offered the bill to the prosecutors knew either 
 that there was no such person, or if there was, that he had not accepted 
 it, they should find him guilty. He also gave them other directions, but 
 the jury found that there was no such person as Thomas Bowden, and 
 the prisoner was convicted. The learned judge, however, being of 
 opinion, from the evidence, that there was such a person, and that the 
 acceptance was his handwriting, reserved the case for the opinion of 
 the judges, on the point whether, assuming that the acceptance was the 
 handwriting of Bowden, the prisoner, by the giving on the face of the 
 bill a false description of Bowden, and uttering the bill after it was 
 accepted by Bowden, with this false description, with intent to defraud, 
 brought himself within any of the counts of the indictment, which 
 *328 charged a forgery of the bill, and on uttering and publishing the *forged 
 bill, and also a forging of the acceptance, and the uttering and publish- 
 ing such forged acceptance. And a majority of the judges held the 
 conviction wrong.(n) 
 "Watts's A bill was addressed to Messrs. Williams and Co., bankers, Birchin- 
 
 lane, London; and it appeared that possibly the figure 3, on the lower 
 left-hand corner of the bill, might have been inserted originally as part 
 of the address, but the evidence left that matter in doubt. The prisoner 
 was asked at the time when he was drawing the bill, whether the ac- 
 ceptors were Williams, Birch and Co., and his answers imported that 
 they were. Williams, Birch and Co. lived at No. 20, Birchin-lane ; 
 and it was proved not to have been their acceptance. There were no 
 known bankers in London using the style of Williams and Co., except 
 Williams, Birch and Co.; but at No. 3, Birchin-lane, the name "Wil- 
 
 <m) Hevey's case, cor. Ashnrst, J., 0. B. 1782, and considered bv the judges in Hil. T. 
 , 782. 1 Leach, 229. 2 East, P. C. c. 19, s. 5, p. 
 ) Rex r. Webb, Russ. & Ry. 405.
 
 CHAP. XXXII. § I.] AND OF THE NAME USED 328 
 
 liams and Co." was on the door; aud some bills addressed to Messrs. 
 Williams aud Co., bankers, Swansea, had been accepted, payable at No. 
 3, and had been paid there. There was no evidence as to the person 
 who lived at No. 3 ; but another bill, of the same tenor as that in ques- 
 tion, drawn by the prisoner, had been accepted there. It was holden 
 upon these facts, that the prisoner was improperly convicted of uttering 
 a forged acceptance, knowing it to be forged. (o\ 
 
 The cases in which a party committing forgery has used a name dif- Cases in 
 ferent from his own, consist either of those in which the name used has which a 
 been of a real existing person, or those in which the name used has been niittfng " 1 
 of a person non-existing and fictitious. forgery has 
 
 It is said to be clearly settled, that in the case of forgery committed uame'diffe- 
 in the name of a person really existing, it matters not, whether the ™ nt fr °m 
 
 his own 
 Assumiu^ 
 
 receive credit from them as such, the credit in such case not being given the name 
 
 offender pass himself off upon the parties at the time for such person, and Assum 
 
 
 & & 1 
 to the impostor personally without any relation to another, but to that a P ersou 
 
 other person whom he represents himself to be.(p\ isting. 
 
 The prisoner, Elizabeth Dunn, was indicted for forging the following Dunn's 
 
 promissory note, with intent to defraud Edward Hooper. case - 
 
 note 
 
 « London, 27th July, 1765. charged to 
 " I promise to pay to Mr. Edward Hooper, the sum of three (the though 6 
 word pounds being omitted) thirteen shillings and sixpence, or order, made by 
 seven days after date, value received by me, the P ns °- 
 
 J ; j ' D er in an 
 
 "her assumed 
 
 « Mary b<j Wallace. name and 
 
 ttt-. t i Tin , i )> i character, 
 
 " Witness John Whattal. "mark. washer 
 
 own note 
 
 The facts were, that in June, 1765, the prisoner applied to Hooper, offered as 
 at his office for receiving seamen's wages, calling herself Mary Wallace, her own 
 and desired him to advance her money to pay the fees for the probate ^ ^oto^f 
 of her husband's will, which was in the hands of a proctor. She returned another in 
 soon after with the probate of the will of John Wallace, therein de- c . ontr .adis- 
 
 r ' . Unction to 
 
 scribed to be a seaman on board the Epreuve ; when Hooper required herself, the 
 her to produce a certificate to *show that she was the Mary Wallace off I n Qon as 
 named in the will. A few days afterwards she brought a certificate, 
 and pressed Hooper to lend her money on the credit of the wages due be forgery. 
 to J. Wallace, when he let her have three guineas and a half, and wrote 
 the body of the promissory note in question, to which she subscribed 
 her mark, after which his clerk attested it. She was then asked what 
 name he was to put to her mark, to which she answered, » You know 
 my name, you may write Mary Wallace," which he did. It was proved 
 clearly that her name was Elizabeth Dunn, and that the whole account 
 was a fabrication. Upon this evidence the jury were directed to find 
 the prisoner guilty, if they believed that she subscribed the note pro- 
 duced in a false name, either by a mark intended by her to express such 
 false name, or by words at length, with intent to defraud Hooper, and 
 the jury accordingly found her guilty. Judgment was then respited 
 upon a doubt, whether as the note, though made by the prisoner in an 
 assumed name and character, was her own note, made and offered as 
 her own, and not as the note of another in contradistinction to herself, 
 the offence amounted to forgery. But upon the case being submitted 
 
 (o) Rex v. Watts, Russ. & Ry. 436. O) 2 East, P. C. c. 19, s. 49, p. 962.
 
 329 OF FORGERY. — OF THE MAKING, ETC., [BOOK IV. 
 
 to the consideration of the judges, nine of them were of opinion that 
 
 the prisoner was properly convicted. (<?) 
 If a note be This case appears to have proceeded upon the ground of the prisoner 
 given m e having assumed the character of executrix of Wallace, a real person 
 
 name ota * # • • i 1 1 • i i • 
 
 person ex- actually entitled to wages. Amongst the principles there laid down, it 
 istmg or appears to have been holden, that if a note be given in the name of 
 
 represented 
 
 so to be, another person who is either really existing, or represented so to be, and 
 
 and in that [ n f^at light it obtain a superior credit, or induce a trust which would 
 
 tain snpe- no* have been given to the party himself, it is then a false instrument, 
 
 rior credit, and punishable as forgery ; and that the law would be the same, though 
 
 gerv* ° r tne n0 * e or security were thus falsely subscribed in the presence of him 
 
 who lent his money upon it, if the impostor and the party whose name 
 
 is made use of were both strangers to him, for then he could not know 
 
 that such impostor was not really the person whose name he assumed, 
 
 and therefore the other would be equally deceived. (r) But this case 
 
 occurred before any decision had established the principle, which will 
 
 be presently noticed, of the use of a mere fictitious name being of itself 
 
 sufficient to constitute a forgery. (s) And it is observed, that after the 
 
 authorities by which it was settled, that such a case was within the acts 
 
 respecting forgery, it would have been quite sufficient to have shown, 
 
 that the prisoner, with a fraudulent intent, signed a promissory note in 
 
 *330 the name of Mary Wallace, and it *would have been unnecessary to 
 
 resort to the additional circumstance of the fraudulent object being to 
 
 obtain credit in respect of money actually due to the deceased John 
 
 Wallace, of whom Mary was falsely alleged to be the representative. (ss) 
 
 If a person Writing the acceptance of an existing person to a bill of exchange 
 
 write an without authority, or the name of a firm or person non-existing in 
 
 acceptance «J' ... , . „ .„ c 
 
 in his own acceptance of a bill, with intent to defraud, is forgery; and if a person 
 
 name to write an acceptance in his own name to represent a fictitious firm, with 
 
 fictitious intent to defraud, it is a forged acceptance ; for, if an acceptance repre- 
 
 firm, with sen t a fictitious firm, it is the same as if it represented a fictitious per- 
 
 defrand it son - ^ ne prisoner was indicted for uttering a forged acceptance of a 
 
 is a forged bill of exchange, and it appeared that the prosecutor in consequence of 
 
 ance- forif an advertisement in a paper, went to No. 8, Jewin-court, Jewin-street, 
 
 an accept- and there saw the prisoner, and said he called in reference to an adver- 
 
 ance repre- j.j gemen f stating that money was to be obtained on freehold property, 
 sentaflcti- . ; ° , J . . - » * 
 
 tious firm it life interest, &c. : the prisoner inquired the nature of the property, 
 
 is the same which the prosecutor described, and told the prisoner he wanted 150/. ; 
 
 resented a t ne prisoner said he had clients at Ipswich, who would purchase the 
 
 fictitious propert}', and desired the prosecutor to call again in a few days, which 
 
 person. j^ ^ . aQ( j ^ e prisoner said he had seen his clients, and he would 
 
 (q) Dunn's case, 0. B. 1765, and Mich. T. 1765. ] Leach, 57. 2 East, P. C. c. 19, s. 49, 
 p. 962. Two of the judges were absent, and Aston, J., did not concur in the opinion. 
 
 (r) 2 East, P. C. c. 19, s. 48, p. 961. 
 
 (s) Indeed the contrary proposition appears to have been taken for <. .-anted, in one report 
 of this case, where, in the opinion of the nine judges who thought the case amounted to a 
 capital forgery, the following passage occurs. " In this respect the case is very different 
 from that of a person borrowing money upon his own note, and merely assuming a fictitious 
 name, without any relation to a different person ; for there the whole credit is given to the 
 party himself; the lender accepts the security, as the security of that person only: he has 
 no other remedy in view but merely against the man he is dealing with ; and the security 
 itself is really and truly the instrument of the party whose act it purports to be, however 
 subscribed by a fictitious name; he has, therefore, a remedy upon it against the person on 
 whose credit he took it, and consequently is not substantially defrauded. Dunn's case, i 
 Leach. 60. 
 
 (««) 6 Ev. Col. Stat. Pt. V. 01. xii.. p. 579.
 
 CHAP. XXXII. § I.] AND OF THE NAME USED. 330 
 
 give the prosecutor 1001., which the prosecutor agreed to, and the pro- 
 secutor ultimately agreed to take two bOl. bills in payment. On the 
 second visit to Jewin-street, the prisoner said he had received the bills 
 from his clients at Ipswich, and he produced them ready prepared, with 
 the exception of the signature of the prosecutor as drawer ; the prose- 
 cutor inquired who "Nicholson and Co.," the acceptors were, and what 
 they were, the prisoner said they were general merchants, and that 
 they resided at Ipswich, and were highly respectable men, and the bills 
 would be paid on the day they were due. There was no address on 
 the bill but "3, Jewin-court, Jewin-street," as their address. The 
 prosecutor inquired how it was that the address was Jewin-court, when 
 the prisoner had just informed him that they lived at Ipswich ; he said 
 they lived at Ipswich, and they would be in town, and the bills would be 
 paid at Praed and Co.'s, Fleet-street, where they were made payable j 
 the prosecutor then, at the desire of the prisoner, put his name on the 
 bill as drawer ; and signed a deed and memorial. When the bills 
 became due they were presented at Praed and Co.'s, but not paid. A 
 clerk from Praed's banking-house proved that no firm of the name of 
 Nicholson and Co. banked there, nor any person of the name of Nichol- 
 son. A witness from Ipswich proved that he was well acquainted with 
 the town and neighbourhood of Ipswich, and knew nothing of any firm 
 of Nicholson and Co., general merchants there, and that he had made 
 inquiry of the tax collectors and at the post-office, and had not been 
 able to find any such firm or any general merchant of the name of 
 Nicholson. It was further proved that the whole of the bills except 
 the acceptance was in the handwriting of the prisoner, and that he had 
 deposited the deed and memorial as a collateral security for a joint note 
 of hand. For the defence, it was stated, that the acceptance would be 
 proved to be in the handwriting of one T. Nicholson, and it was sub- 
 mitted, upon the *authority of Rex v. Webb,(^) that the acceptance *331 
 could not then be deemed to be forged, as in that case it was held that 
 the adopting a false description or addition was not forgery. A witness 
 for the prisoner proved that he had seen a Thomas Nicholson at the 
 prisoner's office many times, but was not positive whether he had been 
 there when the prosecutor was, nor had he seen him write. In reply, 
 the application of Rex v. Webb was denied, as the addition of " and Co." 
 even if the jury should be of opinion that the acceptance was written 
 by a T. Nicholson, rendered the acceptance that of a fictitious firm, and 
 the false making of a note or acceptance in the name of a non-existing 
 firm was a forgery ; and Rex v. Parkes(w) was relied on as an autho- 
 rity. Bosanquet, J., told the jury, "The first question is, whether this 
 acceptance is a forgery. Upon that point, if you think that it was not 
 written by T. Nicholson, the case is relieved from doubt or difficulty. 
 But it is said, on Ae part of the prisoner, that if it was written by T. 
 Nicholson it is n._ orgery. I have no doubt, however, that the writing 
 of an acceptance ~f an existing person without authority, or of the 
 name of a firm or person non-existing, in acceptance of a bill of ex- 
 change, with intent to defraud, is a forgery; and my opinion is, that if 
 this acceptance was written by Nicholson to represent a fictitious firm, 
 and with intent to defraud, it would amount to a forged acceptance. If 
 you think that the acceptance represents a fictitious firm, it is the same 
 thing as if it represented a fictitious person, and I should recommend 
 
 (t) Ante, p. 327. (u) Ante, p. 325.
 
 331 OF FORGERY. — OF THE MAKING, ETC., [BOOK IV. 
 
 you to find the prisoner guilty of having uttered a forged acceptance, if 
 
 the evidence satisfies you that he knew it was forged, and that he uttered 
 
 it with intent to defraud the prosecutor.'Vv) 
 
 Hadfield's In a case where the prisoner was convicted and executed, for forging 
 
 case. As- a ^jjj Q f escnan2 . e the facts were, that he had appeared in the neigh- 
 
 S U 111 1 D °" t II G C7/ * jr t o 
 
 name and bourhood of the lakes in Cumberland, pretending to be the Hon. Alex- 
 character an( j er Augustus Hope, brother of the Earl of Hopetoun, and in that 
 
 ot «in exist- "ii i • i* i i 
 
 ing person, name induced a young woman to marry him, and imposed upon several 
 and draw- persons in the neighbourhood ; and that, during such residence, he drew 
 exchange tne bill * n question upon a gentleman to whom he was known by that 
 holden to name, and who probably would have paid the bill, if the grand decep- 
 e orgery. ^ 0Q j^ nQ ^ j n ^ e mean time been discovered. It is observed, as a 
 material ingredient in this case, that the prisoner assumed the name and 
 character of a really existing person. (w) 
 Assuming With respect to the cases in which the name used has been that of a 
 the name non-existing and fictitious person, it is laid down, as a clear proposition, 
 existing that the makiog of any false instrument which is the subject of forgery, 
 fictitious with a fraudulent intent, although in the name of a non-existing per- 
 son, is as much a forgery, as if it had been made in the name of one 
 who was known to exist, and to whom credit was due. (a:) 
 1 ' *332 I n a case where the prisoner was indicted on the statute 2 Geo. 2, c. 
 
 Lewis's 25, (now repealed,) for uttering a forged deed, purporting to be a power 
 Utterino- a °^ attorne y> ^ rom Elizabeth Tingle, administratrix of her father *Richard 
 forged deed Tingle, deceased, late a marine belonging to his majesty's ship the Hec- 
 purportmg t or? to j 1 Predham, of Bernard's inn, &c, impowering the said Pred- 
 power of ham to receive all prize-money due to her, &c, the facts were clearly 
 attorney proved, and the prisoner was convicted. But a doubt was entertained, 
 existing whether as Richard Tingle had died childless, and as there were no such 
 person. person as Elizabeth Tingle, the case amounted to forgery ; and the point 
 was referred to the consideration of the twelve judges. Eleven of them 
 were very clearly of opinion, that the case was within the letter and 
 meaning of the act.(y) 
 Indorsing A person indorsing a fictitious name on a bill of exchange to give it 
 a fictitious eurrencVj w j}] De guilty of forgery ; and in a case which was stated to 
 bill of ex- the judges, they were all of opinion, that a bill of exchange drawn in 
 change fictitious names, when there are no such persons existing as the bill im- 
 gery. ports, was a forged bill within the 2 Geo. 2, c. 25, now repealed. (2) 
 
 Bolland's In the following case, the general proposition, that the use of a mere 
 case. Tne fictitious name is in itself sufficient to constitute forgery, was first esta- 
 mere ficti- blished.(a) The prisoner, James Bolland, was indicted for forging an 
 tious name indorsement in the name of James Banks, on the back of a promissory 
 to consti- n °t e f° r 100?. drawn by Thomas Bradshaw, and indorsed by Samuel 
 
 (v) Reg. v. Rogers,* 8 C. & P. 629, cor. Bosanquet, Coleridge, and Coltman, Js. The jury 
 found the prisoner guilty of uttering the acceptance, knowing it to be forged, and that it 
 was not written by T. Nicholson. 
 
 (w) Hadfield's case, Carlisle, 1803. 6 Ev. Col. Stat. Pt. V. CI. xii. p. 580. 
 
 (x) 2 East, P. C. C. 19, s. 46, p. 957. 
 
 (y) Lewis's (Anne) case, O. B. 1754. Fost. 116 It is stated that the doubt arose from 
 the passage in 3 Inst. 169, where Lord Coke, speaking of forgery, says, "this is properly 
 taken when the act is done in the name of another person." But it was thought that Lord 
 (Joke's description of the offence, on which the doubt was grounded, was apparently too 
 narrow. Fost. 116, 117. 
 
 (2) Wilks's case, Bodmin, 1767. In consequence of this opinion, the prisoner was tried, 
 tor. Yates, J., but the jury acquitted him. 2 East, P. C. c. 19, s. 46. p. 957. 
 
 («) See Dunn's case, ante, p. 329, note (q). 
 
 a Eng. Com. Law Reps, xxxiv. 567.
 
 CHAP. XXXII. § I.] AND OF THE NAME USED. 332 
 
 Pritchard, with intent to defraud F. L. Cardeneaux. Another count tute for- 
 charged him with uttering the same, knowing, &c. It appeared that gery * 
 the drawer and payee of the note in question were real persons ; and 
 that when the note came into the hands of Bolland, he indorsed it in 
 the first instance with his own name, and attempted to negotiate it to 
 one Jesson, with whom he had had money transactions ; but that upon 
 Jesson saying that he should not be able to negotiate the note with 
 Bolland's indorsement on it, he said he could take his name off. Im- 
 mediately another person in company began to erase the name. After 
 he had scratched off all but the initial letter B., Bolland said, " Don't 
 scratch it all out ; it may disfigure or cancel the note ; I will think of 
 some other name that begins with a B. ;" and immediately made the 
 name Banks. Jesson then took the note ; and saying that he should 
 be asked who James Banks was, Bolland said, he was a publican of 
 Rathbone-place. Jesson soon afterwards applied to Cardeneaux to dis- 
 count the note, and obtained from him some money on the credit of it; 
 and being pressed by Bolland shortly after for the amount of the note, he 
 took him to Cardeneaux, and introduced him as the owner of the note. 
 Cardeneaux inquired who Banks was; to which Bolland answered that 
 he was a man of property, who dealt largely in wines and spirits, and 
 lived in Rathbone-place. Cardeneaux then gave him the amount of 
 the note, in notes and cash ; and did not ask him to indorse the note, 
 Jesson having before told him that it was better that Bolland's name 
 should not appear on it, as he had been a sheriff's officer, and the note 
 would not pass properly with his name upon it. It further appeared, 
 that Bradshaw and Pritchard having become bankrupts before the note 
 *was payable, Cardeneaux applied to Bolland, when Bolland denied *333 
 having discounted any note with him, and said that his name was James 
 Bolland, that he had never seen Cardeneaux before in his life, and that 
 he had no note with his indorsement on it ; and when Cardeneaux in- 
 sinuated that he was acquainted with his having altered his name, he 
 disregarded it. After the prisoner was taken up, some person paid the 
 100£. to Cardeneaux, in the name of James Banks ; but no such person 
 as James Banks of Bathbone-place appeared to exist. The jury found 
 the prisoner guilty. After conviction and judgment of death, the case 
 was referred to the judges : and the prisoner was afterwards ordered for 
 execution, and suffered accordingly. (b\ 
 
 Very shortly afterwards a case occurred in which it was holden that Lockett'f 
 a forged order on a banker, for the payment of money, purpoting to be case - A - 
 made by one who kept cash with him, was within the 7 Geo. 2, c. 22, ori f eT on a 
 (now repealed) though made in a fictitious name, or in the name of one ban . k ; in a 
 who had no authority to draw on him.(c) name° Uf 
 
 It is agreed to be immaterial whether any additional credit be gained amounts Jo 
 by using the false name. forgery. 
 
 The prisoner, Edward Taft, was tried for forging an indorsement on Taft's case. 
 a bill of exchange for fifty pounds, in the name of John Williams : and Itisforgery 
 having been found guilty, the following case was submitted to the con- bin in afic- 
 sideration of the twelve judges : The bill of exchange was drawn pay- tkious 
 able to the order of Messrs. Ilenwicke and Mee, by whom it was in- though the 
 dorsed generally, and it afterwards became the property of one William money 
 
 (b) Bolland's case, 0. B. 1112, 1 Leach, 83. 2 East, P. C. c. 19, s. 40, p. 958. 
 
 (c) Lockett's case, 1772, 1 Leach, 94. 2 East, P. C. c. 19. s. 38. p. 940 ; and S. P. in Abra- 
 ham's case, 1774. 2 East, P. C. ibid. 941.
 
 333 OF FORGERY. — OF THE MAKING, ETC., [BOOK IV. 
 
 might have Wheewall, out of whose pocket it had been picked or lost, with other 
 weUob- things, at Leicester races, on the 16th September, 1776. The prisoner 
 tained by had, on the same night, endeavoured to negotiate it at Leicester ; but, 
 U iiTtbo 3 heing disappointed, he proceeded to Market Harborough, where he bought 
 real name a horse of the landlord of the inn, and offered him the bill to change. 
 of the per- rp^g landlord, not having cash sufficient in the house, carried it to a 
 
 son who 
 
 uttered it. banker's in the town, where the clerk told him that it was very good 
 It is imma- paper, for that he knew the payee who had indorsed it, and that if he, 
 therefore, (the landlord,) would put his name on the back of it, it should be im- 
 whether mediately discounted. The landlord, however, not knowing the person 
 tionai ~ fr° m whom he had received it, refused to indorse it ; but told the clerk 
 credit he that the gentleman was then at his house, and he would go and fetch 
 
 rt Jvtr . . . . . 
 
 8a ™ the hi m - He accordingly went to the prisoner, who accompanied him to 
 tube name, the banker's, where the clerk told the prisoner that it was the rule of 
 their house never to take a discount bill unless the person offering such 
 bill indorsed it : but that if he would indorse the bill in question, it 
 should be discounted. The prisoner immediately indorsed it by the 
 name of " John Williams ;" and the banker's clerk, after deducting the 
 discount, gave him the cash for it. The prisoner's name was not John 
 Williams. The judges were unanimously of opinion that this was a 
 forgery within the statute on which the indictment was framed ; for 
 *334 although the fictitious *signature was not necessary for the prisoner's ob- 
 taining the money, and his intent in writing a false name was probably 
 only to conceal the hands through which the bill had passed, yet it was 
 a fraud both on the owner of the bill, and on the person who discounted 
 it j as the one lost the chance of tracing his property, and the other lost 
 the benefit of a real indorser, if by accident the prior indorsements 
 should have failed. (d) 
 Taylor's In a case which occurred shortly afterwards, it was holden that a re- 
 
 forgery to" cei V*> indorsed on a bill of exchange in a fictitious name, is a forgery, 
 give to the although it did not purport to be the name of any particular person. 
 dr *y i e ® f of The prisoner, Taylor, was indicted for that he having in his possession 
 exchange a a bill of exchange, in the words and figures following — 
 
 receipt in a 
 false name, 
 
 as for the « Sir, " Tamworth, 2d August, 1779. 
 
 own name, " Qe month after date please to pay to my order, the sum of twenty 
 forthecon-p 0U nd S) value received, as per advice from 
 «£££* « Thomas Harper." 
 
 bill heing " To Mr. JOSEPH CUFF, 
 
 biaZint No.l25,Whitechapal, 
 
 be done London." 
 
 fraudulent- 
 ly and to 
 escape de- feloniously did make, forge, and counterfeit a receipt and acquittance. 
 
 thon°h nl for the said sum of twent y pounds, as followeth, " Reed., W. Wilson ;" 
 additional with intention to defraud the said Joseph Cuff. A second count stated 
 credit be an u ttering with the like intention ; and the third and fourth counts 
 gained to were for forging and uttering it with intent to defraud John Briggs and 
 the priso- Henry Sutton. The facts were, that the bill was indorsed in blank, and 
 delivered to Sutton, out of whose possession the prisoner obtained it by 
 
 ner, 
 
 (d) Taft's case, 1TT7, 1 Leach. 1T2. 2 East, P. C. c. 19, s. 47, p. 959. The judges also 
 referred to the case of Rex v. Lockctt, [ante, p. 333,) as having decided that the forging a 
 name either of a real or of a fictitious person, with intent to defraud, was forgery.
 
 CHAP. XXXII. § I.] AND OF THE NAME USED. 334 
 
 some undue means, (which did not appear,) and presented it for pay- 
 ment when it wanted two or three days of becoming due; that he 
 offered to give a trifle to adjust the difference, and accordingly gave the 
 drawee, Cuff, a shilling for the discount ; that Cuff then desired him to 
 write a receipt on the back of the bill, which he did, by writing the 
 receipt in question, in the fictitious name of Wilson. Upon this evi- 
 dence, it was submitted to the court that this was not a receipt for 
 money within the meaning of the statute, for that it was essential to the 
 commission of forgery that the act should be done in the name of an- 
 other; but that, in the present case, for anything that had appeared to 
 the contrary, there never was such a person existing as the « William 
 Wilson," whose name was supposed to have been forged. It was also 
 submitted, that the name "William Wilson" could not have been used 
 with an intention to defraud, because no receipt at all was necessary, 
 nor was the prisoner compellable to give a receipt, and he might as 
 well have procured payment of the bill by writing the receipt in the 
 name of "John Taylor," as in the name of "William Wilson;" the 
 possession of the bill being a sufficient discharge to the drawee. That, 
 therefore, as the discharge to the drawee was not in any way strength- 
 ened *by the receipt the prisoner had given, the use of the fictitious *335 
 name, which was not necessary to the accomplishment of any fraud, was 
 of no effect. And it was further urged, that the prisoner gained no 
 additional credit by the name he assumed ; and that what he had writ- 
 ten was a mere memorandum, and did not operate as an acquittance 
 against any person but the man himself who received the money, and 
 who would be equally estopped by it as if he had written his own name. 
 But the objections were overruled by the court, upon the ground that, 
 as this was a false receipt, the case was clearly within the statute on 
 which the indictment proceeded. And, after observing that the pri- 
 soner knew he had obtained the bill fraudulently; that the better to 
 elude inquiry after him it was necessary to conceal his name ; and that 
 his object was to defraud the real owner of the bill of its value; they 
 held that if he intended to defraud anybody by the fictitious signature, 
 it was sufficient to constitute forgery. The jury having found the pri- 
 soner guilty, the judgment was respited, and the case referred to the 
 consideration of the twelve judges; eleven of whom were of opinion that, 
 though the prisoner did not gain any additional credit by signing the 
 name "W. Wilson" to the receipt, as the bill was not by the indorse- 
 ment made payable to the person whose name was used, yet still it was 
 a forgery ; for it was done with intent to defraud the true owner of the 
 bill, and to prevent the person receiving the money from being so readily 
 traced, (e) 
 
 The following proposition is stated as having been the subject of 
 much difference of opinion : — " That if a person give a note or other se- 
 curity, as his own note or security, and the credit thereupon be personal 
 to himself, without any relation to another, his signing such a note with 
 a fictitious name may be a cheat, but will not amount to forgery ; for, 
 in such a case, it is really the instrument of the party whose act it pur- 
 ports to be, and the creditor had no other security in view."(/) 
 
 (e) Taylor's case, 0. B. October, 1779, and M. T. 1779. 1 Leach, 214. 2 East, P. C. c. 
 19, s. 46, p. 960. Buller, J., doubted. 
 
 (/) One of the principles laid down in Dunn's case, 1765. 2 East, P. C. c. 19, s. 48, p. 
 961. Ante, p, 329, et seq.
 
 335 OF FORGERY. — OF THE MAKING, ETC., [BOOK IV. 
 
 Bheppard's In one case, where the credit was without doubt given personally to 
 en^tobefor- tne prisoner, the security tendered being considered as his alone, the 
 gery to judges agreed unanimously that the offence amounted to a forgery, 
 ihawa rpj ie p r j soner was indicted for uttering the following order for payment 
 n banker in of money, knowing it to be forged, with intention to defraud James 
 h fictitious Elliot.M 
 
 name, as- V / 
 
 sumed by 
 
 ihc party "Green-street, 31st July, 1781. 
 
 for the pur- " Sirs, — Pray pay to Mr. John Atkins, or bearer, Six Pounds, Six 
 pose of Shillings ; value received. 
 
 fraud, and \r » p T „ 
 
 to avoid lours, &c. 
 
 detection, "H. TURNER." 
 
 though the uT Messrs. Brown, Collinson, and Co., Lombard Street." 
 
 credit were 
 given to the 
 
 person of rj ne f l] ow i n o- facts appeared in evidence. The prosecutor was a 
 
 such "pjirtv- 
 
 *336 ' silversmith ; and the prisoner, having looked out several goods at *his 
 shop, to the amount of six guineas, pulled out his purse, as if going to 
 pay for them, saying, " I believe I have not cash enough about me, but 
 here is a draft on a banker, which is the same thing as money, for it 
 will be paid when presented." He accordingly laid the draft on the 
 counter, and desired to see some silver spurs ; but the prosecutor not 
 having any of the kind which he described, the prisoner said that he 
 must send him a pair. Mr. Elliot looked at the draft as it lay on the 
 counter ; and seing it was upon a house he knew, he took it, the sum 
 being a small one, and the prisoner having a genteel appearance : and 
 he then took his order-book, for the purpose of making a memorandum 
 of the prisoner's direction; and supposing his name to be the same as 
 that in which the draft, which he conceived to be the prisoner's, was 
 signed, he wrote, "H. Turner, Esq." The prisoner looked over him, 
 and desired him to add " Junior, Noah's Row, Hampton Court," and 
 then went away. Mr. Elliot further stated, that he gave credit to the 
 prisoner, and not to the draft. It appeared that no person of the name 
 of H. Turner, kept cash at Brown and Collinson's, or lived in Green- 
 street; nor could such a place as Noah's Bow, or such a person as H. 
 Turner, jun., be found at Hampton Court. Upon these facts the jury 
 found the prisoner guilty, and he received judgment of death; but the 
 execution of the sentence was respited on a doubt, whether, as Mr. 
 Elliot had sworn that he gave credit to the prisoner, and not to the 
 draft, it could amount to the crime of forgery. The twelve judges 
 were unanimously of opinion that the conviction was right; for it was 
 a false instrument, not drawn by any such person as it purported to be, 
 and the using the fictitious name was only for the purpose of deceiv- 
 ing.^ 
 
 But the following case which occurred only a few years afterwards, 
 
 (g) In the report of the case in 2 East, P. C. c. 19, s. 50, p. 967, it is stated that the pri- 
 soner was indicted for forging the order. Probably there were counts for forging, and for 
 uttering the order, knowing it to be so forged. 
 
 (h) Sheppard's case, 0. B. Sept. 1781, Mich. T. 1781. 1 Leach, 226. 2 East, P. C. c. 19, 
 s. 50, p. 967, where it is said that Taylor's case, (ante, 335,) Lockett's case, (ante, 333,) and 
 Dunn's case, (ante, 329,) were relied on. 
 
 f {Coal consigned to G. P. of New York, arrived, and was claimed by another of the 
 name of G. P., who resided there, and he, knowing this, obtained an advance of money, on 
 indorsing the permit for the delivery of the coal, with his own proper name. This was 
 held to be forgery. 6 Cowen, 72. People v. Peacock.}
 
 CHAP. XXXII. § I.] AND OF THE NAME. 336 
 
 is mentioned as one in which the judges were much divided in opinion, 
 
 though not easily to be distinguished in principle from that which has 
 
 been just cited. 
 
 The prisoner, J. H. Aickles, was indicted for forging a promissory Aickles's 
 
 note, in the following form with intent to defraud one K. H. Gedge. case * ** 
 
 ' ° , , . . , .., appears to 
 
 A second count charged him with uttering such note, knowing it to be have been 
 
 forced doubted 
 
 & ' whether it 
 
 was forge- 
 " London, Dec. 18, 1786. ry where 
 "Three months after date 1 promise to pay to H. Byron, Esq., orj^ P^" 
 order, 25?. 10s. Od. value received." name was 
 
 "25/. 10s. Od. "John Mason, £lf 1 ™' 
 
 "No. 4, Argyle-street, Oxford-road." month be- 
 fore taken 
 
 t i-ii • • irvij>T * ne house 
 
 It appeared that the note in question was, on the yth ot J anuary, i n w hich 
 
 1787, tendered by Byron to Gedge's shopman, in payment for some he lived in 
 linens that were shown by him to Byron. Upon being asked who John jyi ason an( i 
 Mason was, Byron described him as a gentleman of fortune, with whom passed off a 
 he was concerned in a coal mine, living at No. 4, Argyle-street. The not^ that 
 shopman declined leaving the goods with him : but promised to send name, 
 them, if, upon inquiry, the note was good. He immediately went to w ^g d h t 
 No. 4, Argyle-street, and inquired for Mr. *Mason : the prisoner ap- *33f 
 peared and said his name was John Mason, and that the note was drawn be his, 
 by him, and should be paid when due. It was proved that, before the dated some 
 9th of January, the prisoner had taken the house, No. 4, Argyle-street, f orej t, u t 
 in the name of John Mason, Esq., and that the person who had let thenotpaya- 
 house had inquired concerning him, by this description, at the British th g time of 
 Coffee-house, and received a favourable account of his character. It his trial; 
 was then proved that he had always passed by the name of John Henry ^y S found 
 Aickles, and had been tried several times at the Old Bailey, and was that he as- 
 known bv that name since the year 1780, until the present time. Upon sumed the 
 this evidence, Grose, J., who tried the prisoner, entertained some doubt, Mason, by 
 and directed the jury that they could only convict the prisoner in case which he 
 they believed that this note was drawn by him in consequence of a con- j inown be- 
 certed scheme between him and Byron to defraud Gedge, that the pri- fore, for 
 soner had never gone by the name of John Mason before, and had po s<Fof~ t he 
 assumed it for the purpose of this fraud. And he said, that if they were fraud, 
 satisfied on these points, they might find the facts, and he would state 
 them to the judges. Thereupon the jury found specially, that the pri- 
 soner intended to defraud Gedge, and assumed the name of Mason for 
 the purpose of this fraud; that he had never gone by that name before; 
 and that they disbelieved a witness on the part of the prisoner, who had 
 deposed that two years before he was inquired for and known by that 
 name at the British Coffee-house. On this a verdict of guilty was taken 
 by consent, subject to the opinion of the judges on the case. 
 
 The opinion of the judges was pronounced upon the case by Ashurst, 
 J., to the effect that it did not amount to forgery. But the judgment 
 appears to have been given under a misconception that the judges had 
 so decided ; when, in fact, the case had been adjourned for further con- 
 sideration.^') It afterwards underwent further discussion, when many 
 of the judges seemed to entertain an opinion that it was forgery; but 
 
 (0 2 East. P. C. c. 19, s. 50. p. 0G0. 1 Leach, 440.
 
 337 OF FORGERY. — OF THE MAKING, ETC., [BOOK IV. 
 
 several thought otherwise ; and they never came to any final resolution 
 on the matter, (y) 
 Reasons The following reasons are given as those upon which Gould, J., and 
 
 upon which theother judges who coincided with him, thought that the cases amounted 
 thought to forgery. There was an apparent design for fraud in general ; and the 
 that the jury were satisfied that the prisoner had assumed the name of Mason, 
 case S ° mS which was not his name, nor had ever been used by him before, but 
 amounted always Aickles, with intent to defraud Gredge. He, therefore, made the 
 to forgery. note j Q ^ e narue of another, as if his own, and clearly with an intent to 
 defraud. Whether there existed a person of that name or not was im- 
 material ; the felony consisted in the intent to defraud under the falsity. 
 One might assume a feigned name, and make a draft in it, and yet in- 
 nocently ; as if he concealed himself to avoid arrest, and had appointed 
 his friend on whom he drew to pay his bills ; or, giving notes, took care 
 to pay them when due. But the prisoner having no such intention, but, 
 on the contrary, to defraud the party, by making the note under such 
 disguised name, by which, after he left the place of concealment, he 
 *338 could not be traced; the case amounted to forgery. *There was no 
 ground, he thought, to distinguish this from the common case where the 
 draft is made in the name of a person who does not exist. It was in 
 reality a deeper fraud, because the entity of such drawer would at once 
 be disavowed at the place of his supposed residence; whereas, in the 
 present case of a note, there would be circumstances to find out the 
 maker when he quitted the place where he made the note. 
 Reasons The judges who inclined against the conviction, went on the doubt 
 
 c g nv° S t whether, to constitute forgery, it was not necessary that the instrument 
 should be made as the act of another,^-) according to the definition of 
 Lord Coke, whether that other existed or not. Whereas, here the note 
 was made as the prisoner's own, and avowed by him to be so. The 
 credit was given to the person, and not to the name ; and the person, 
 and not the name, was the material thing to be considered. (I) 
 
 Sir E. H. East enters at some length into the discussion of this point; 
 and endeavours to ascertain the grounds upon which the judges, who 
 inclined against the conviction, might possibly have proceeded. But he 
 again repeats, that it seems very difficult to distinguish the case from 
 that of Sheppard : and he says that he cannot help suspecting that much 
 of the difficulty in these cases arises from mistaking matters of fact for 
 matters of law, and confounding the two together.(m) A learned writer, 
 who has been several times referred to in the latter part of this work, 
 observes, that it may be difficult to admit that the case involved any 
 real ground of doubt when the specific fraudulent intention was expressly 
 found, and the taking the house was only a part of the machinery of the 
 fraud; and, with respect to Sir E. H. East's suggestion that the diffi- 
 culty may have arisen from mistaking matters of fact for matters of law, 
 he further observes that this seems to be the true view of the case ; for, 
 if the use of the assumed name is intended to commit a fraud in the 
 particular instance, there is no reason for not treating it as a forgery, 
 
 (,;) Aickles's case, 1787, 1 Leach, 438. 2 East, P. C. c. 19, s. 50, p. 968. The prisoner 
 was remanded upon a former sentence; having, previously to the present charge, been tried 
 for returning from transportation, and acquitted. 
 
 See Lewis's case, ante, p. 332, note (y). (1) 2 East, P. C. c. 19, s. 50, p. 970. 
 
 (m) 2 East, P. C. c. 19, s. 50, p. 970.
 
 CHAP. XXXII. § I.] AND OF THE NAME. 338 
 
 although that may only be part of a more general system of fraud, 
 which such assumption is intended to carry into effect. M 
 
 In a more modern case, where the indictment charged the prisoner, Whiley *s 
 Samuel Whiley, with forging a bill of exchange for 60?., dated Bath, ^ctio^of" 
 Jan. 5th, 1805, drawn in the name of Samuel Milward, payable to his forgery 
 own order on Messrs. Stephenson & Co., bankers, in London, with in- h . cld t0 , be 
 
 i p i tt mi i /• i \ • V . rightwhere 
 
 tention to defraud H. Ihurston ; and (m a second count) with uttering the name 
 such bill knowing it to be forged; the following facts appeared in evi- madeuse ? f 
 dence. The prosecutor was an upholsterer in Bath ; and on the 27th S o Ue riu the 
 Dec. 1804, the prisoner, being at that time a stranger to him, came to foi *g ed in - 
 his house, and applied to take a coach-house and stable, which the ^asal^u m- 
 prosecutor let him for three months. The prisoner then bespoke some edbyhim 
 goods of the prosecutor to the amount of 16?. 2s., which he directed to ^h* 61 ?" 
 be sent to him, writing his direction in the prosecutor's book, << Samuel defrauding 
 Milward, No. 12, Kensington-place, Bath." In the course of three the P rose - 
 days the goods were sent, and the prisoner came shortly afterwards and though the 
 ordered more goods: and before all the goods were delivered, he told prisoner's 
 the prosecutor to get his *bill ready by four o'clock, on Old Christmas wou u ua >-e 
 eve, at which time he would call for it. He called at the time appointed; carried 
 and the bill, amounting to 49?. 10s., was given to him. He said the bill ^^ M 
 was very right; that it was his rule to discharge all bills on Old Christ- credit as 
 mas eve; and that he would return again in ten minutes; which he did, theassum - 
 
 cctnn in c • 
 
 bringing with him the bill of exchange in question; and saying that he *339 
 would give the prosecutor a draft on his banker in London for 60?. The 
 prosecutor looked at the bill of exchange, which was indorsed with the 
 name " Samuel Milward," and, upon the prisoner saying it was a good 
 one, gave him the balance of ten guineas. The prisoner then told the 
 prosecutor that he should want more goods, and that he should be a 
 very good customer to him. The bill of exchange having been sent to 
 the bankers, in London, was returned to the prosecutor on the 25th 
 Jan., dishonoured, and the prosecutor went immediately to the prisoner's 
 house, in Bath, but he found it shut up, and saw nothing more of the 
 prisoner till about three weeks afterwards, when he was in custody. A 
 clerk from the London bankers, Messrs. Stephenson & Co., proved that 
 they knew no such person as Samuel Milward. And it was satisfactorily 
 proved that the prisoner's real name was Samuel Whiley ; that he was 
 baptized as the son of persons of that name, was married by that name, 
 had gone by the same name at Bath, when he lodged there for about a 
 week in the July preceding this transaction ; and at Bristol in the fol- 
 lowing October; as also at Bath again on the 4th of December; and 
 further, that on the 20th December (which was about a week before he 
 first came to the prosecutor) he had taken a house in Worcestershire, 
 under the same name. But on the 28th of December (the day after 
 his first application to the prosecutor) he ordered a brass plate to be 
 engraved with the name of "Milward," which was fixed on the door of 
 his house on the following day. The prisoner stated in his defence that 
 he had understood from his father that he was christened by the name 
 of Samuel Milward ; and that, being under difficulties, and afraid of 
 arrests, he had omitted the name of Whiley. In answer to questions put 
 by the learned judge who tried the prisoner, the prosecutor stated that 
 he took the draft on the credit of the prisoner, whom he did not know; 
 that he presumed the prisoner's name was that which he had written, 
 
 (n) G Ev. Col. Stat. Part V. CI. xii., p. 580 ; and Hadfield's case is cited. See ante, p. 331.
 
 339 
 
 OF FORGERY. — OF THE MAKING, ETC. 
 
 [BOOK IV 
 
 and had no reason to suspect the contrary; but that if the prisoner had 
 come to him under the name of Samuel Whiley, he should have given 
 him equal credit for the goods, and have taken the draft from him and 
 paid him the balance as he had done when he came under the name of 
 Milward. The learned judge left it to the jury to say whether the pri- 
 soner had assumed the name of " Milward" in the purchase of the goods, 
 and given the draft, with intention to defraud the prosecutor. And the 
 jury saying, that they were satisfied of that fact, found the prisoner 
 guilty. The case was afterwards submitted to the consideration of the 
 twelve judges; who were of opinion that the question of fraud being 
 so left to the jury, and found by them, the conviction was right, (o) 
 
 In a case which occurred a few years afterwards, the prisoner was 
 indicted for forging an order for the payment of money, in which, *by 
 the name of James Cooke, junior, he requested Messrs. Praed & Co., 
 bankers in London, to pay Mrs. Ware, or bearer, fifteen pounds. It 
 appeared in evidence that on the 15th August, 1808, the prisoner took 
 lodgings at the house of Mrs. Ware, by the week, and continued there 
 till the 9th of September following, on which day he gave Mrs. Ware 
 the order in question for a bank note of fifteen pounds, which she ad- 
 vanced to him upon his applying to her for change. Mrs. Ware paid 
 the order away to a neighbour, who took it to the banker's ; and, upon 
 payment being refused, brought it back to Mrs. Ware, who immediately 
 informed the prisoner of its being returned. The prisoner, first reading 
 over the order, said that he saw he had made a mistake, and had for- 
 gotten to put the word "junior," which word he then added, and said 
 that Mrs. Ware would find it would be right. Shortly afterwards the 
 prisoner left the house, saying he should return to tea ; but he never 
 did return. The order, with the addition, was presented at Messrs. 
 Praed & Co.'s the next morning, and payment refused, the drawer 
 not being known at that house, and no person of that name keeping 
 cash there. It was satisfactorily proved that the prisoner's real name 
 was John Francis, though he had occasionally gone by other assumed 
 names. The case was left by the learned judge to the jury, with a 
 direction that they should consider whether the prisoner had assumed 
 the name of James Cooke, junior, with a fraudulent purpose : and 
 they found a verdict of guilty : but upon some doubts occurring 
 whether the facts in evidence went to establish a forgery, or only a 
 fraud, the case was referred to the consideration of the twelve judges. 
 Mansfield, C. J., the Chief Baron, Grose, J., and Lawrence, J., were 
 absent when the case was debated; but the judges who were present 
 held the conviction right ; and were of opinion that if the name were 
 assumed for the purpose of the fraud, and avoiding detection, it was as 
 much a forgery as if the name assumed were that of any other person 
 of known credit; though the case would have been different if the party 
 had habitually used and become known by another name than his 
 own.(j)) But it seems that it must satisfactorily appear that the ficti- 
 tious name was assumed for the purpose of fraud, in the particular in- 
 stance of the forgery in question, and that it will not be sufficient to show 
 that the fictitious name had been assumed for general purposes of con- 
 
 *340 
 
 Francis's 
 case. If 
 the name 
 used by the 
 prisoner be 
 assumed 
 for the 
 purpose 
 of fraud, 
 and to 
 avoid de- 
 tection, it 
 will be as 
 much a for- 
 gery as if 
 the assum- 
 ed name 
 were the 
 name of a 
 person of 
 known 
 credit. 
 
 The ficti- 
 tious name 
 must be 
 assumed 
 
 for the 
 
 (o) Whiley's case, cor. Thompson, B., Somersetshire Spr. Ass. 1805 : and before the judges, 
 Trin. T. 1805, MS., and Russ. & Ry. 90. S. P. Rex v. Marshall, Russ. & Ry. 75 : and Rex v. 
 Francis, id. 209, and infra. 
 
 (p) Francis's case. Old Bailey. July. 1811, and before the judges, December. 1811, ^F■ v; • 
 and Russ. & Ry. 209.
 
 CHAP. XXXII. § I.] AND OF THE NAME. 340 
 
 cealruent aud fraud : as in a subsequent case, in which the prisoner was purpose of 
 charged with forging an acceptance upon a bill of exchange in the theparti- 
 nanie of Scott, the majority of the judges being of opinion that it did cular in- 
 not sufficiently appear upon the evidence that the prisoner had not gone stance - 
 by the name of Scott before the time of accepting the bill in that name, 
 or that he had assumed the name for that purpose, held that a convic- 
 tion for such forgery was wrong. (5) 
 
 But forging in a false name assumed for concealment, with a view to 
 a fraud, of which the forgery is part, is sufficient to constitute the of- 
 fence. And if there be proof of the prisoner's real name, it is for him 
 to prove that he used the assumed name before the *time he had the *341 
 fraud in view, even in the absence of proof as to what name he had 
 used for several years before the fraud in question. (r) 
 
 If a person put the name of another on a bill of exchange as acceptor If a party 
 without that person's authority, expecting to be able to meet it when autl^ritv^' 
 due, or expecting that such other person will overlook it, this is forgery, to use the 
 But if the prisoner either had authority from such other person, or nam ? of 
 
 r . * *■ ' another, or 
 
 from the course of their dealings bond fide considered that he had such bona fide 
 authority, it is not forgery. The prisoner was charged in some counts c ° nsi ders 
 with forging, and in others with uttering a forged acceptance to the fol- suc hautho- 
 lowing bill of exchange : rit y> lt is 
 
 not forgery 
 to use such 
 
 "£25. "Cheltenham, July 16th, 1834. name. 
 
 " Three months after date pay to my order twenty-five pounds, for 
 value received. "John Forbes." 
 
 "William Prosser, jun., Esq., Cheltenham." 
 Accepted, payable at Messrs. Esdaile & Co., bankers, London. 
 
 William Prosser, jun." 
 
 The prisoner had paid away this bill, with the acceptance upon it, to 
 a butcher to whom he owed about 41., and taken the difference. Mr. 
 Prosser proved that the acceptance was not in his handwriting, and that 
 he had never given the prisoner authority to put his name on any bill 
 or security of any kind. The prisoner was an architect at Cheltenham, 
 and was engaged in building houses for Mr. Prosser, who had recom- 
 mended the prisoner to raise money, which, when raised, the prisoner 
 was to draw upon, under the superintendence of Mr. Prosser, and it 
 was sought on the part of the prisoner to raise an inference that he con- 
 sidered he had a right to use Mr. Prosser's name. Coleridge, J., "If 
 the prisoner drew the bill mentioned in the indictment, and which he 
 knew could not become due for some months after he did so, and then 
 put Mr. Prosser's name on it without his authority, either intending to 
 meet it, or trusting that he should have money to do so, or trusting that 
 Mr. Prosser would overlook it, the prisoner is guilty of forgery; but if 
 you think that the state of affairs between the prisoner and Mr. Prosser 
 was such that he had Mr. Prosser's authority to accept this bill, then it 
 is not a forgery. If a person gives another leave to use his name on 
 bills, and the person thus permitted writes the name of such person on 
 a bill, this is as it were a signing by the person who gave the authority, 
 although he had given no authority for the putting his name on that 
 particular bill. The question which I shall leave to you is this, whether 
 the name of Mr. Prosser was put on the bill mentioned in the inclict- 
 
 (q) Rex v. Bouticn, 1813. Russ. & Ry. 260. (>•) Rex v. Peacock, Russ. & Ry. 278.
 
 341 
 
 OF FORGERY. — OF THE MAKING, ETC., 
 
 [BOOK IV. 
 
 *342 
 
 But noth- 
 ing short of 
 such belief, 
 and a fair 
 ground for 
 that belief, 
 from the 
 acts of the 
 party 
 whose 
 name is 
 used is 
 sufficient. 
 
 ment without the authority of Mr. Prosser ; or was it written on the bill 
 by the prisoner, under such circumstances that he might bond fide con- 
 sider that he had Mr. Prosser's authority for so doing, as in the latter 
 case you ought to acquit him. "(s) 
 
 So where upon an indictment for forging and uttering an acceptance 
 on a bill of exchange in the name of John Woodman, Woodman was 
 called, and proved that the acceptance was not in his handwriting, and 
 that he did not authorize any person to accept *the bill, but he admitted 
 that he had known the prisoner eight years, and had had money trans- 
 actions with the prisoner, and in 1X29 had been connected with him in 
 trade, as a partner in a hat manufactory, and had many bill trans- 
 actions with him, and they had trusted each other largely; mutual 
 accommodation existed between them; none of those bills were accepted 
 by procuration; the prosecutor had accepted for his accommodation since 
 1836, to take up former acceptances; the prosecutor did not always 
 know what the acceptances were for, as he depended on the prisoner's 
 honour ; and he might have drawn on the prosecutor five or six years 
 before without apprising him of it; but the prosecutor had never before 
 paid any bill on which the prisoner had used his name, and he always 
 signed J. Woodman, which the prisoner must have known. Coleridge, 
 J., in the course of summing up the case to the jury said, " We now 
 come to the statement Mr. Woodman makes, and upon which it is sup-, 
 posed that the prisoner may rely for an acquittal, because he says that 
 he has been for the last eight years in habits of great intimacy and in 
 partnership with him. Now I put the question whether, though he had 
 not authorized the signing of his name on that particular bill, he had 
 ever given the prisoner a general authority. If he had said to the pri- 
 soner, 'You may use my name whenever you like,' it would be idle to 
 say that the acceptance was a forgery. It is not merely writing another 
 man's name, but writing it without authority and with intent to defraud. 
 But I go further, because I think that if a person had reasonable ground 
 for believing, from the acts of the party, that he had authority to ac- 
 cept, and did in point of fact act upon that, it would not be forgery. 
 Put the case that upon a former occasion the prisoner had done what he 
 is supposed to have done here, and on the bill being presented, Mr. 
 Woodman had paid it without remark or remonstrance. If he had done 
 that on three or four occasions, he might fairly say, I infer that he 
 authorized me to do it, and after that he could not be said to come 
 within the description of a person who forged. But I cannot go the 
 length which has been suggested. Let me suppose one or two cases : — 
 Suppose the prisoner to have meant to raise 200?. for two or three 
 months, and trusted that at the end of the time he should receive 1000?., 
 and would be able to repay it if he used another person's name without 
 authority, and not believing that he had authority, that would be a dis- 
 tinct forgery. No man has a right to use another's name, trusting that 
 he may be able to take up the bill. So, if a person having no authority 
 were to say, I want to raise a sum of money, and I am sure my father 
 is so fond of me that he will not proceed against me criminally, and 
 were to write his father's name to an acceptance, that would be for- 
 gery. Xo man has a right to trust to the kindness of another man. If 
 you are of opinion that the prisoner acted in either of those ways. 
 
 (s) Rex v. Forbes,* T C. & P. 224. 
 a Eng. Com. Law Reps, xxxii. 22-1.
 
 CHAP. XXXII. § I.] AND OF THE NAME. 342 
 
 knowing that he had no authority, but meaning to repay the bill or 
 trusting that Mr. Woodman would not prosecute, in either of those 
 eases this would be forgery. There can be nothing short of the person 
 believing that he had authority, and having a fair ground for that belief 
 from the other party. The authority need not be express, it may be 
 implied from acts. I put the question to see whether the prisoner had 
 any reason for thinking that he had authority to use Mr. Woodman's 
 name. Now you are to judge whether you have any reason to believe, 
 looking at the circumstances fairly between the crown and *the prisoner, *343 
 not stretching on one side or on the other, that the prisoner believed 
 that he had authority, and from circumstances had reasonable grounds 
 for so believing. There was great intimacy between these parties : 
 there had been great dealings between them. All which is to be taken 
 into account. You certainly find that the moment Mr. Woodman is 
 called upon he does not pay the bill, and he does not in the least adopt 
 the act that was done by the prisoner : that is really the only point in 
 the case."(£) 
 
 So where upon a similar indictment for forging and uttering an ac- If from the 
 ceptance of a bill of exchange in the name of John Tyler, Tyler proved deaiin g s 
 that the acceptance was not his, and that he never authorized any one the parties 
 to accept any bill for him, but on cross-examination said, " The prisoner tlje priso- 
 on the same day accepted a bill for 111. 4s. for me. I had accepted a fair ground 
 bill for 171. As. and got this bill as a renewal of the former bill, which I to believe 
 had accepted for the prisoner's accommodation. I have many times had t toritv tT" 
 money transactions with the prisoner for his accommodation, but never use tho 
 for my own. I had accepted more than one bill for him, as what he nam 5» ll 13 
 could not pay on the first advance I accepted another bill for. The first gery. 
 bill I accepted was for 50?. The prisoner had taken the liberty to use 
 my name for 151., and I paid it. He then used my name without 
 authority. It was an acceptance ; I paid it, and the prisoner repaid me 
 in the course of a week. I had no difference with the prisoner about 
 it, and we have been on friendly terms ever since ; the prisoner was a 
 particular friend of mine, and I never had any quarrel with him." Lord 
 Abinger, C. B., "If the prisoner had the authority of Mr. Tyler for 
 writing the acceptance, it is no forgery ; neither is it if he had no such 
 authority, provided that from the facts that have been proved, it is 
 made out that he had fair ground for considering that he had such au- 
 thority. These two parties were on very intimate terms; Mr. Tyler 
 had more than once accepted bills for the prisoner's accommodation, 
 and on a former occasion, when the prisoner had used his name, he paid 
 the amount and found no fault, and the prisoner repaid him in the 
 course of a week. You will consider whether the prisoner having to 
 (leal with the name of a person with whom he was so very intimate, 
 fairly considered, from what had before occurred, that he had authority 
 to do as he did, and make use of the name of Mr. Tyler upon the face 
 of this bill. If you think so, and that the prisoner acted bona fide, and 
 did not mean to defraud or injure any one, you ought to acquit him.'Yw,) 
 
 If a person having authority in conjunction with two others to draw if one of 
 out money from a bank, draws out such money by means of a check in three l"' 1 '- 
 the presence of two other persons, who personate the two persons, in | n ' g s au ^J. 
 
 (<) Reg. v. Beard," 8 C. & P. 143. (w) Reg. v. Parish/' 8 C. & P. 04. 
 
 a Eng. Com. Law Reps, xxxiv. 329. b lb. 307. 
 
 Vol. ii.— 23
 
 343 OF FORGERY. — OF THE MAKING, ETC., [BOOK IV. 
 
 "' conjunction with whom he had authority to draw out the money, this is 
 
 money a forgery of the check, and the intent may be laid to defraud the bank- 
 
 from a ers. The prisoner was indicted for forging a check on the prosecutors, 
 
 .' i ' i p lraw Jones, Lloyd & Co., with intent to defraud them. The prisoner and 
 
 money by a Dawson and Davis were members of the Hydraulic Packers' Society, 
 
 check which was established for maintaining the members of the society, who 
 
 signed, hy 
 
 himself should by depression in trade or other circumstances, be thrown out of 
 and two employ. The funds of the society were provided by weekly contribu- 
 who perso- tions, and a sum of 400/. was deposited in the bank of Jones, *Lloyd & 
 nate the Co., in the names of the prisoner and Dawson and Davis, and it was 
 authority S uot to ^ e P a ^ ou * un ^ ess a ^ three attended to receive it. The bankers 
 it is for-* were not acquainted with the signatures of any of the three. The pri- 
 S< *q 4 a soner having procured two persons to personate Dawson and Davis 
 went with them to the bank, and drew out the money. The clerk who 
 paid the money asked their names, and the names of the three members 
 were given ; and the clerk after referring to the ledger and to the pass- 
 book, which was brought by the prisoner, and finding the names to 
 accord, paid the money. It was objected that the bankers would not 
 be liable over to the society, the money having been drawn out by fraud 
 by one of the depositors. Patteson, J., " The bankers being authorized 
 to pay the money to three persons in particular, and to them only, pays 
 it to one of those persons, and to two who are strangers to the transac- 
 tion, and that without any authority, genuine or colourable, from the 
 real parties. I am therefore of opinion that this was a forgery with 
 intent to defraud Jones, Lloyd & Co.'YzA 
 
 Having thus treated of the name in which a forgery may be commit- 
 ted, we may proceed to consider how far the validity in law of the thing 
 forged, supposing it were true, is essential to forgery."}" 
 As to the Though it is said to be in no way material, whether a forged instru- 
 i'u Si* y ment be made in such a manner as that, if it were in truth such as it is 
 
 the thins; . „ . . . 
 
 forged if counterfeited for, it would be of validity or not;(w) yet it seems to be 
 .rename, material, that the false instrument should carry on the face of it the 
 semblance of that for which it is counterfeited, and should not be ille- 
 gal in its very frame. (x) One of the definitions of forgery is given, as 
 "the false making an instrument, which purports on the face of it to 
 be good and valid for the purposes for which it was created, with a 
 design to defraud, "(y) 
 
 Upon the ground that it is not material whether a forged instrument 
 
 '•» Dixon's case, 2 Lew. 178. Wright's case, 1 Lew. 135, ante,-p. 322, was cited to show 
 the bankers were not liable over to the society. 
 (w) 1 Hawk. P. C. c, 70, s. 7. 2 East, P. C. c. 19, s. 43, p. 948. 
 (x) 2 East. P. C. c. 19, s. 43. p. 948. 
 (y) By Eyre, B., in Jones and Palmer's case, 1 Leach, 367. 
 
 t [To constitute the offence of forgery ; in counterfeiting the notes of a bank, it is not 
 necessary that such bank, as the notes purport to have been issued by, should have a legal 
 • j x'istence; it is enough that the notes purport to have been issued by a corporation or com- 
 pany duly authorized to issue notes. The People v. Peabody, 25 Wend. 472. Where, how- 
 ever, the intent is charged to have been to defraud the bank purporting to have issued the 
 notes, the bank must be shown to be a real body, capable of being defrauded. Ibid. 
 
 To constitute forgery the instrument must be such when forged that it does or may tend to 
 prejudice the right of another. The intent to defraud some one must be averred, and it 
 must be proved as laid. Evidence which tends to prove that the forged instrument could 
 not, under any state of circumstances, prejudice the rights of any one, is competent to go to 
 the jury. Barnum v. The State, 15 Ohio, 717. A written instrument to be the subject of in- 
 dictment for forgery must be valid, if genuine, for the purpose intended; if void or invalid 
 on its face, and it cannot be made good by averment, the crime of forgery cannot be pre- 
 dicated of it. The People v. Harrison, 8 Barbour, S. C. 560.]
 
 CHAP. XXXII. § I.] AXD OP THE NAME. 344 
 
 be so made that, if it were in truth such as it is counterfeited for, it 
 would be of validity or not, it has been adjudged that the forgery of a 
 protection in the name of A. B., as being a member of parliament, who 
 in truth at the time was not a member, is as much an offence at com- 
 mon law, as if he were so. (2) 
 
 In a case where the defendant was convicted upon an indictment on 
 the 5 Eliz. c. 14, (now repealed) which stated that one Garbut and his 
 wife were seised in fee of certain messuages, lands, and tenements, 
 called Jawick, in the parish of Clacton, in Essex, and that the defend- 
 ant intending to molest them, and their interest in the premises, forged 
 a lease and release as from Garbut and his wife, whereby they were 
 supposed for a valuable consideration to convey to him " all that park 
 called Jawick, in the parish of Clacton, in Essex, containing eight 
 acres in circumference, with all the deer, wood, &c, thereto belonging," 
 it was moved in arrest of judgment, that the premises supposed to be 
 conveyed were so materially different from those which were really the 
 estate of Garbut and his wife, that it was impossible this conveyance 
 could ever molest or disturb them. But the court held that it was not 
 necessary, there *should be a charge, or a possibility of a charge, and *345 
 that it was sufficient if it were done with such intent, and that the 
 jnry had found that it was done with intent to molest Garbut and his 
 wife in the possession of their land. (a) 
 
 So where an indictment was for forgery at common law of a surren- 
 der of the lands of J. S., and it was not shown in the indictment that 
 J. S. had any lands, it was holden upon motion in arrest of judgment 
 that the indictment was good, upon the principle that it was not neces- 
 sary to show that the party was prejudiced. (b) 
 
 Upon the same principle, the doctrine is established by several cases, Forgery 
 that forgery may be committed by the false making of an instrument, may b .® 
 purporting to be the will of a person who is still living ; notwithstand- by the false 
 ing the objection, that during the life of a party his will is ambulatory, making of 
 and can have no validity as a will until his death. Thus, a prisoner a ii v i D g 
 was convicted for forging a seaman's will, who it appeared was still person ; 
 alive, and had returned to England two years after the prize money had w ^"f g * m _ 
 been received by the prisoner, under a forged will.(c) In a subsequent bulatory 
 case, where the prisoner was indicted for forging the last will and testa- j:" riD f g 
 ment of a woman who was still living, and was a witness on the trial, party, ami 
 and convicted, the judgment was respited upon a doubt, whether as the cau b '?. v , e .. 
 supposed testatrix was living, the prisoner was legally convicted of hav- as ft w m 
 inp; forged her last will and testament; there being no such instrument until uis 
 
 . . . . death 
 
 as a last will and testament in contemplation of law, until after the 
 death of the person making it : but the judges are said to have been 
 unanimously of opinion, that an instrument may be the subject of for- 
 gery, although in fact it should appear impossible for such an instru- 
 ment as the instrument forged to exist, provided the instrument purports 
 on the face of it to be good and valid, as to the purposes for which it 
 Mas intended to be rnade.(<Z) The point was again referred to the con- 
 
 (z) Dcakin's case, 1 Sid. 142. 1 Hawk. P. C. c. 70, s. 7. 2 East, P. C. c. 19, s. 43, p. 948. 
 
 (a) Crooke's case, B. K. East. T. 4 Geo. 2, 3 Str. 001. 2 East, P. C. c. 19, s. 33, p. 921. 
 
 (b) Goate's case, 1 Ld. Raym. 737. But it seems clearly to be necessary, that there 
 should be a possibility of prejudice to the party. See the definitions, ante, p. 318, and Ward's 
 case, 2 East, P. C. c. 19, s. 7, p. 862, post, p. 359. 
 
 (c) Murphy's case, O.B. 1753. 10 St.Tri. 183. (Flargr. ed.) 2 East, P. C. c. 19, s. 43, p. 949. 
 
 (d) Sterling's case, 0. B. 1773. 1 Leach, 99, where it is said, that the case was decided 
 upon the authority of Anne Lewis's case. Fost. 116. Ante, p. 332.
 
 345 OF FORGERY. — OF THE MAKING, ETC., [BOOK IV. 
 
 sideration of the judges, in a case where the prisoner was indicted and 
 convicted for knowingly uttering and publishing as true, a certain false 
 and forged will and testament of one J. G., late a seaman belonging to 
 a merchant vessel, &c, and it appeared, that the said J. G. was living. 
 All the judges held that the conviction was right. It was observed by 
 the learned judge, who delivered their opinion, that every will must be 
 made in the lifetime of the party, whose will it was ; that it existed as 
 a will in his lifetime, though not to take effect till his death ; and that 
 the making a false instrument importing on the face of it to be a will, 
 was equally forgery, whether the person whose will it purported to be 
 were dead or alive at the time of making it. That a contrary doctrine 
 would operate as a repeal of the law ; for if the act of making the will 
 were not forgery at the time, a publication afterwards would not make 
 it so. Buller, J., thought the very definition of forgery decided the 
 doubt, for it was the making a false instrument with intent to deceive; 
 *346 *and that here the intention to deceive had been established by the 
 jury, and the instrument purporting to be a will was clearly false. (e) 
 On an indictment for forging a will, the probate of that will unrevoked 
 is not conclusive evidence of its validity so as to be a bar to the prose- 
 tion.(/) 
 Forging A case has occurred where the prisoner was convicted of forging a 
 
 thewi H ofa will of a non-existing person. The prisoner was indicted under the 1 
 ing person. Wm. 4, c. 66, s. 3, for forging the will of Jane Warner, and it appeared 
 that there was no such person; on which it was objected that the forgery 
 of the will of a non-existing person was not a forgery within that sta- 
 tute. Patteson, J., " There is nothing to limit the offence to the 
 forgery only of the wills of persons that have existed, and it has been 
 expressly held that forgery may be committed by the false making of 
 the will of a living person. "(<j) 
 IVrgery of Forging a deed was holden within the 2 Geo. 2, c. 25, s. 1, (now 
 instru- repealed) though subsequent statutes contain directory provisions as to 
 
 ments not l ) ~ 1 . • i i 
 
 conferma- instruments for the purposes for which such forged deed was intended, 
 ble to the being in a particular form, or complying with certain requisites, and 
 provisions tne forged deed had not been made in pursuance of such provisions ; 
 of a statute for the directory provisions have not the effect of making a deed, not 
 in the form prescribed, and without the requisites, altogether void. (A) 
 Forg«ry Upon the same principle also, of its not being necessary that the in- 
 
 oommitt-ed s ^ rumeat charged to be forged, should be such as would be effectual if 
 of an in- it were a true and genuine instrument, it has been holden that forgery 
 struuient ma y j^g committed of an instrument on unstamped paper, 
 stamped The prisoner, Hawkeswood, being indicted for forging a bill of ex- 
 
 paper, change, an objection was taken on his behalf, that the bill in question 
 wood's was not stamped pursuant to the statutes 22 Geo. 3, c. 33, 23 Geo. 3, 
 
 (e) Coogan's case, 0. B. 1787, and Mich. T. 1787. 1 Leach, 449. 2 East, P. C. c. 19, s. 
 43. p. 048. The indictment appears to have been framed on the statute 2 Geo. 2, c. 25, and 
 not on the statute 31 Geo. 2, c. 10, s. 2, which is confined to seamen on board the king's 
 ships. The last statute had the words " last will," the other the word " will" only. 
 
 (f) Rex v. Buttery and Macnamara, Russ. & Ry. 3 42. 
 
 {g) Reg. v. Avery," 6 C. & P. 590. Reg. v. Lewis, ante, p. 332, was cited for the crown. 
 There was another indictment against the prisoner, charging the transaction as a false pre- 
 tence, the prisoner having raised money by means of the will, and the prisoner pleaded 
 guilty to this indictment, and was sentenced upon it, and no sentence passed upon him on 
 the conviction for forging the will. 
 
 (h) Rex v. T. R. Lyon, Russ. & Ry. 255, and see Rex v. Froud, Russ. & Ry. 3989, post. 
 a Eng. Com. Law Reps, xxxiv. 542.
 
 CHAP. XXXII. § I.] AND OF THE NAME. 346 
 
 c. 49, s. 14, and 28 Geo. 8, c. 58, s. 11, (i) and that it was not, there- ca se. 
 fore, a lawful bill of exchange but a piece of waste paper incapable of abm^f ex- 
 becoming the subject of either fraud or felony; that the party who took change on 
 it must at the time have known that it was not a Wal bill of exchange, unstam P ed 
 
 ~ f ' paper. 
 
 or he must have been grossly negligent, the defect being visible on the 
 face of it. But Buller, J., who tried the prisoner, overruled the objec- 
 tion, on the ground that the stamp acts were merely revenue laws, and 
 did not purport in any way to alter the crime of forgery ; and that the 
 false instrument had the semblance of a bill of exchange, and was ne- 
 gotiated by the prisoner *as such. But he saved the point for the con- *347 
 sideration of the twelve judges, who were all of opinion, that the pri- 
 soner was properly convicted ; that the stamp acts, in saying that a bill 
 without a stamp shall not be pleaded, or given in evidence, or be avail- 
 able, in law or equity, signified only that it should not be made use of 
 to recover the debt; and further, that the holder might get the bill 
 stamped after it was made.(y) 
 
 This authority was acted upon in a case which occurred very shortly 
 afterwards, where the prisoner being indicted for forging a bill of ex- 
 change, an objection which was taken to the bill being produced in evi- 
 dence because it was not stamped, was overruled, and the prisoner was 
 convicted and executed. (&) 
 
 The point underwent further discussion in a case which occurred after Morton's 
 the 31 Geo. 3, c. 25, s. 19, had prohibited the stamping of a bill or note jjoTden 
 after the time of their being made. The prisoner, Morton, was indicted that for- 
 for knowingly uttering a forged promissory note, which, on being pro- gery ^ 
 duced in evidence, appeared to have been drawn on unstamped paper ; ofapromis- 
 and the case was saved for the opinion of the judges, as well on the sorv note 
 principal point, as on the 31 Geo. 3, c. 25, s. 19, which passed after stamped 
 ITawkeswood' s case, and prohibited the stamp to be afterwards affixed, paper 
 The question underwent much consideration, and was debated by the 3i°(^ . 3 e 
 judges in the course of several terms. Two or three of the judges c. 25, s. 19, 
 doubted at first the propriety of llaickeswood' s case, if the matter were j£° ". ' m e 
 res intcyra, yet they all agreed that they must be governed by that case, from being 
 as it was an authority in point; and that the 31 Geo. 3, c. 25, s. 19, a ^ xed 
 made no difference in the question. And most of the judges maintained 
 the principle in ITawkeswood' s case to be well founded ; for they held 
 that the acts of Parliament which had been referred to and relied on, 
 being mere revenue laws meant to make no alteration in the crime of 
 forgery, but only to provide that the instrument should not be available 
 for the purpose of recovering on it in a court of justice ; but it might 
 be received in evidence for collateral purposes ; and they instanced the 
 Gth and 10th sections of the act which made the party, drawing such a 
 bill, liable to the statute duties, and to a penalty of 20/. ; in both which 
 cases the bill must be used in evidence. And they considered that in 
 order to constitute forgery it was not necessary that the instrument 
 should be available ; that though a compulsory payment, by course of 
 law, could not have been enforced for want of the proper stamp, yet a 
 man might equally be defrauded by a voluntary payment being lost to 
 
 (i) The provisions of the acts are to the effect that no bill of exchange, &c, not stamped 
 as these acts direct, shall be pleaded, or given in evidence in any court, or admitted in any 
 court to be good or available in law or equity. 
 
 (j) Hawkeswood's case, Worcester Spr. Ass. and East. T. 1T83. 1 Leach, 257. 2 East, 
 P. 0. c. 19, s. 45, p. 955. 
 
 (k) Lee's case, 0. B. 1784. 1 Leach, 258, note (a).
 
 347 OF FORGERY. — OF THE MAKING, ETC. [BOOK IV. 
 
 him ; that if this were a sufficient defence, forged securities might he 
 published on improper stamps with impunity, which would carry the 
 mischief to an alarming extent; that the stamp itself might be forged; 
 and it would be a strange defence to admit in a court of justice, that 
 because a man had forged the stamp, he ought to be excused for having 
 forged the note itself, which would be setting up one fraud in order to 
 protect him from the punishment due to another. (?) 
 *348 So where it appeared that the forgery charged against the *prisoner, 
 was the alteration of a 10?. bill of exchange into one for 50?., it was 
 holden to be not less a forgery from the circumstance of the bill having 
 been re-issued three times as a 10/. bill without being re-stamped, and 
 being, therefore, not available in a civil action at the time of the alteration 
 in it of 10?. into 50?. was effected. The judges, on a conference, said 
 that it had been decided that the stamp acts had no relation to the ques- 
 tion of forgery; and that supposing the instrument forged to be such 
 on the face of it as would be valid, provided it had a proper stamp, the 
 offence was complete. (m) 
 The same The same doctrine was acted upon in several other cases.(n) And it 
 acteduDo * s We ^ 0Dserve d that if the matter be duly considered, the words of the 
 in other stamp acts before mentioned can only be applicable to a true instrument ; 
 cases. f or a f or g ec i instrument, when discovered to be such, never can be made 
 available, though stamped : and that the acts, therefore, can only be 
 understood as requiring stamps on such instruments as were available 
 without a stamp before those acts passed, and which would be available 
 afterwards with a stamp. (o\ 
 The false It has been spoken of as a material circumstance, that the false instru- 
 should™ 611 * men t should carry on the face of it the semblance of that for which it is 
 carry on counterfeited, (p) But it is not necessary that the resemblance to the 
 the face of ]j nowu instrument should be exact : it seems to be sufficient if the instru- 
 
 lttheserub- . ,.,... . 
 
 lance of ments be so tar alike that persons in general using their ordinary obser- 
 thatfor yation upon the subject may be imposed upon by the deception, though 
 counter- it would not impose upon persons having particular experience in such 
 feited;so matters, (q) 
 
 ceive per- Thus where the prisoner was indicted for the forgery of bank-notes, 
 sons using and a witness for the prosecution, who came from the Bank of England, 
 observa? stated that he could not have been imposed upon by the forged notes, 
 tion. the difference between them and the true notes being to him very appa- 
 
 rent in several particulars, but it appeared that others had been deceived 
 at first by them, though they were very ill executed, Le Blanc, J., pro- 
 ceeded upon the foregoing principles. (r\f 
 Elliot's The doctrine had previously been sanctioned by the opinion of the 
 
 case. A judges in the following case. The prisoner, James Elliot, was indicted 
 is good for f° r forging a bank-note of the following tenor : 
 
 (?) Morton's case, York Sum Ass. 1795, Mich. T. 1795, and Hil. and East. T. 1796. 2 East, 
 P. C. c. 19, s. 45, p. 955. 
 
 (m) Teague's case, cor. Le Blanc, J., Hereford Sum. Ass. 1802, and Mich. T. 1S02. 2 
 East. P. C. c. 19. s. 55, p. 979. Reg. v. Pike, 2 Moo. C. C. R. 70. 
 
 («) Reculisfs case, O. B. 1796. 2 Leach, 703. Davies's case, cor. Grose, J., Surrey Spr. 
 A SB'. 1796. 2 Leach, 707, note (b). 2 East, P. C. 19, s. 45, p. 956. 
 
 (o) 2 East, P. C. c. 19, s. 45, p. 956. (p) Ante, p. 344. 
 
 (q) 2 East, P. C. c. 19, s. 6, p. 858, and s. 34, p. 950. 
 
 (r) Boost's case, cor. Le Blanc, J., Exeter Spr. Ass. 1802. 2 East, P. C. c. 19, s. 44, p. 950. 
 
 f [Sec 7 Pick. 137, Commonwealth v. Smith, that a counterfeit may be " in the simili- 
 tude of the bills issued by a bank," though the bank may never have issued bills of the 
 same amount. |
 
 CHAP. XXXII. § I.] VALIDITY OF THE THING FORGED, IF GENUINE. 818 
 " No. 17.73. forging a 
 
 " I promise to pay to Mr. Jos. Crook or bearer, on demand, the sum thought 
 
 of fifty. such forged 
 
 London, 20 June, 1775. note the 
 
 ' ' word 
 
 £Fifty. For the Govr. and Company of the "pounds" 
 
 Bank of England. be omitted. 
 
 " Entd. C. Blewert. Thos. Thompson." there bTno 
 
 water- 
 , ■ 
 
 *Some of the counts of the indictment stated the instrument to be a th/paper. 
 bank-note, and others to be a note in the form of a bank-note ; but the *349 
 fifth count, which was that on which the question turned, and on which 
 the counsel for the crown relied, charged "that the said James Elliot, on 
 the 14th June, 1777, feloniously did make, forge, and counterfeit, and 
 cause and procure to be falsely made, forged, and counterfeit, &c, a 
 certain promissory note for the payment of money, with the name of 
 Thomas Thompson, thereunto subscribed, purporting to bear date, &c, 
 and to have been signed by one Thomas Thompson, for the Governor 
 and Company of the Bank of England, for the payment of fifty pounds 
 to Mr. Joseph Crook or bearer, on demand, the tenor of which, &c, with 
 intention to defraud the Governor and Company of the Bank of 
 England." It appeared that the note had never been published, being 
 found in the prisoner's possession at the time he was apprehended ; but 
 the forgery was brought home to him, and he was convicted. The 
 doubt concerning this case arose upon the following facts, which ap- 
 peared in evidence. The officers of the Bank of England proved that 
 the note was in every respect, both in paper and print, similar to a 
 bank-note, both in the written and printed parts of it, except, first, that 
 the number was not filled up; secondly, that the word "pounds" was 
 omitted in the body of the note; thirdly, that the texture of the paper 
 was rather thicker than that used by the bank; and, fourthly, that, in 
 the fabric of it, the water mark, viz., the words " Bank of England," 
 were not inserted : but they said that a bank-note, with the like omis- 
 sion of the word "pounds" in the body of it, being regular in other 
 respects, would be paid, by the usage of the bank, after it had passed 
 the examiner's office. And a real bank-note of the same date and tenor, 
 except as above excepted, was produced in evidence. Upon these facts 
 it was contended that this was not a note resembling a bank-note for 
 want of the water mark ; and also that it was not a note for fifty 
 pounds, the word "pounds" being omitted : and judgment was respited 
 in order to take the opinion of the twelve judges. The case was con- 
 sidered by them, and they were all (except De Grey, C. J., and Smythe, 
 C. B., who were absent,) of opinion that the conviction was right ; as 
 in forgery there need not be an exact resemblance ; and it is sufficient 
 if the instrument is prima facie fitted to pass for a true instrument. 
 The majority of the judges inclined to think that the omission of the 
 word "pounds" in the body of the note, had nothing else appeared, 
 would not have exculpated the prisoner ; and that it was matter to be 
 left to the jury, as it was done, whether it purported to be a note for 
 fifty pounds, or any other sum: and all the judges agreed that the 
 " fifty" in the margin of it removed every doubt, and showed that the 
 fifty in the body of the note was intended for fifty pounds.(s\ 
 
 (s) Elliot's case, Maidstone Sum. Ass. 1777. Mich. T. 18 Geo. 3. 1 Leach, 175. 2 
 East, P. C. c. 19, s. 44, p. 951. 2 New, R. 93, note (a).
 
 349 OF FORGERY. — OF THE MAKING, ETC. [BOOK IV. 
 
 Collicott'a Upon the same principles, in a case where the prisoner engraved a 
 eravinj! & counterfeit medicine stamp, so as to be like to a genuine stamp, except 
 counterfeit only that the centre part, which in a genuine stamp specifies and de- 
 stamp hke notes t h e (j u ty was blank in the first instance, but cut out before the 
 
 in some J 7 . 1 ' , . _ t> • 1 >> 
 
 *350 counterfeit stamp was used, a paper with the words *" Jones, .Bristol, 
 part to a on it being pasted over the vacancy, and then uttered such counterfeit 
 genuine stamp, it was holden that he was guilty of a forgery and uttering, 
 unlike in Grose, J., in delivering the opinion of the twelve judges on this case, 
 Others, and a ft er stating that it was proved that those parts of the counterfeit stamp 
 tingoutthe which remained were a perfect resemblance of the same parts on a 
 unlike genuine stamp, and that the whole was a fabrication so artfully con- 
 ronceaW irlxe & as to ke likely to deceive the eye of every common observer, 
 tbepart cut further said, "An exact resemblance or fac simile is not required to 
 out, and constitute the crime of forgery ; for if there be a sufficient resemblance 
 ing it, is a to show that a false making was intended, and that the false stamp is 
 iorgeryand so ma( j e as to have an aptitude to deceive, that is sufficient."^) It has 
 uttering, been determined on the statute 25 Edw. 3, (now repealed) that splitting 
 the great seal, and closing it again to a false patent, is a counterfeiting 
 of the seal :(u\ and that where the seal is substantially counterfeited, 
 the adding or omitting of a crown, the leaving out words in the style, 
 or adding others, or making any other minute variation in the counter- 
 feit, which is often done purposely, and by way of eluding the law, will 
 not alter the case.(t>) 
 A mere And it seems that a mere literal mistake in the framing of the instru- 
 
 takewiU 3 " ment itself, well laid in the indictment, will not make any difference. 
 not make And it is observed, that in a case where the prisoner, in forging an 
 any differ- orc | er f or the delivery of goods, blundered in spelling the name, using 
 Desemoclcez for Desormeaux, no stress was laid on such circumstance, 
 though on other grounds the indictment was holden bad.(w) 
 Fitzgerald The prisoners Fitzgerald and Lee were indicted for forging the last 
 and Lee s w jjj ^ testament of Peter Perrv, late a seaman on board his majesty's 
 
 case. For- . , J ' . . 
 
 gery may ship the Lancaster, with intent to defraud the king. The will began — "In 
 
 be com- Jjja 
 
 will, ' the name of God, Amen, I, Peter Perry, &c, and ended John X Perry." 
 though it mark 
 
 in the ^ appeared that the prisoner, Fitzgerald, carried the will to the office 
 
 wrong of the deputy register, who, on observing the difference of the Christian 
 
 name of n names > told him he must produce the person who had written the will, 
 
 the person or the person who was present when it was executed, in order to ac- 
 
 whose will coun t f ur this error before the probate could be granted. Fitzgerald ac- 
 
 it puruorts *■ 
 
 to be. cordingly produced the other prisoner Lee, who, in the name of Welsh, 
 swore that he was one of the subscribing witnesses ; that the name of 
 the deceased was Peter Perry ; that the said Peter Perry did make his 
 mark to, and deliver the said will ; and that he (Welsh) by mistake had 
 written the name John Perry instead of Peter Perry. Upon this a pro- 
 
 (t) Collicott's case, 1812. 2 Leach, 1048. 4 Taunt. 300. Russ. & By. 212, 229. 
 
 in) 1 Hale, 178, 184. 
 
 (v) Robinson's case, 2 Roll. R. 50. 1 East, P. C. c. 2, s. 25. p. 86. This was an indict- 
 ment under the statute 1 Mary, c. 6, for counterfeiting the privy signet. In 1 East, t/bi supra. 
 it is said, " The disparity, however, may be so great between the true and false seal that it 
 would not amount to a counterfeiting within the statute, as if it be evident to the view of 
 ■very man's eye." 
 
 (w) 2 East, P. C. 19, s. 45, p. 952. 953. The case referred to is Clinch's case, 1 Leach. 
 540. 2 East, P. C. C. 19, s. 37, p. 938.
 
 CnAP. XXXII. § I.] RESEMBLANCE TO GENUINE INSTRUMENT. 350 
 
 bate of the -will was granted. The prisoners having been found guilty, 
 the question was reserved for the consideration of the judges, whether 
 this was in law a forging of the will of Peter *Perry, as laid in the in- *351 
 dictment? And, though no opinion was ever publicly delivered, the 
 prisoners were afterwards executed pursuant to their sentence. (x\ 
 
 In a case where it was proved that the prisoner took a bill of ex- Wick's 
 change, which he was indicted for forging and utttering, knowing, &c., case - For- 
 to a banker's, in order to get it discounted, and upon receiving the dis- fxchange 
 count, indorsed it there, but not in his own name ; and it appeared also, though no 
 that though there was the indorsement of another name upon the bill menTfth 
 besides that which the prisoner indorsed, yet there was no indorsement names of 
 upon it of the names or firm of the drawers who were also the payees ; t , he 
 
 clrtiwcrs 
 
 it was objected on behalf of the prisoner that, as there was nothing upon 
 the bill purporting to be an indorsement of the drawers, it could not 
 pass as a bill of exchange, nor was capable of defrauding the persons 
 whose names were forged. (#) But the learned judge who tried the 
 prisoner overruled the objection, and the prisoner was convicted: and, 
 upon the point being afterwards submitted to the consideration of the 
 judges, they were of opinion that the conviction was right. (2) 
 
 Upon an indictment for forging the following instrument, which was An instru- 
 described as a bill of exchange : drawn b 
 
 A. upon 
 Ci Flinstshire District Banking Company. ?•' re .<l uir - 
 "Iwenty-one days after date pay (without acceptance) to the order p av to the 
 of Mr. James Henderson, £70. order °. f c - 
 
 -r, , . ■, a certain 
 
 For value received, gum at a 
 
 For the Company, certain 
 
 J. Watkins, Manager." ^ thout 
 "To the London and Westminster Bank, accept- 
 
 Throgmorton-street, London." f°f " is ( 
 
 o > bill of ex 
 
 ance is a 
 bill of ej 
 change. 
 
 It was objected that the instrument was not a bill of exchange; to con- 
 stitute a bill of exchange there must be a person drawing, a person on 
 whom it is drawn and who is to accept, and a person to whom payment 
 is to be made, and here the drawer expressly prohibited acceptance. 
 Patteson, J., "This instrument certainly differs from all others that I 
 have seen as bills of exchange, by reason of the words 'without accept- 
 ance.' I do not, however, consider that the insertion of those words 
 alters the character of the instrument, so as to prevent its being a bill 
 of exchange. All that is necessary to constitute a bill is, that the party 
 making the instrument should direct it to some other party, requiring 
 that other party to pay the money therein mentioned to some third per- 
 son or his order, or to the order of the party so making the instrument. 
 
 (x) Rex v. Fitzgerald and Lee, 0. B. 1741, and Mich. T. 15 Geo. 2. 1 Leach, 20. 2 East, 
 P. C. c. 19, s. 45, p. 953. 
 
 (y) Amongst other cases, Moffatt's case, post, p. 35G, and Wall's case, post, p. 357, were 
 cited. 
 
 (2) Rex v. Wicks, cor. Wood, B., Gloucester Spr. Ass. 1809, and East. T. 1809, MS. and 
 Russ. & Ry. 149, Bayley, J., was not at the meeting of the judges, but he thought the con- 
 viction wrong, on the ground that for want of an indorsement the bill was not negotiable, 
 and therefore, if genuine, would not have been of value to the taker of it. And sec Rex v. 
 Cartwright, Russ. & Ry. 106, where an indictment was held bad, on the ground that the in- 
 strument given in evidence was not, as stated, an order for money : and a rjucstion by Le 
 Blanc, J., there mentioned in the note (b), whether this paper, though not directed to any 
 person as drawer, might not, under the circumstances, have been treated as a bill or order.
 
 *352 OF FORGERY. — OF THE MAKING, ETC. [BOOK IV. 
 
 The drawer may in each case prescribe the terms upon which the *pay- 
 ment is to he made. Here he has chosen to prescribe that the drawee 
 is to make the payment 'without acceptance:' the meaning of which I 
 take to be that the holder is not to be put to the trouble of presenting 
 it to the drawee before it becomes due; but still if he should choose to 
 present it, there is nothing to prevent the drawee from accepting it; 
 actual acceptance, of course, is not necessary to make the instrument a 
 bill of exchange. Bills are daily noted and protested as bills for non- 
 acceptance : they must, therefore, be bills before acceptance. Bills at 
 sight are not, in fact, commonly accepted. I think, therefore, that the 
 instrument is properly described as a bill of exchange. "(a) 
 Omission Where the prisoner drew a bill upon the treasurer of the navy, paya- 
 of the Dame kle to blank or order, and signed it in the name of a navy surgeon, it 
 payee. was holden, that to constitute an order for payment of money, there 
 must be some payee; and that a direction to pay to blank or order was 
 not sufficient. (b\ So where the prisoner was indicted for forging and 
 uttering a navy pay bill, which was made payable to blank or order, it 
 was holden that there must be some payee, and the conviction was held 
 wrong, (c) 
 Omission of It has been holden that an instrument in the form of a bill of ex- 
 the name c l ian g e w ith an acceptance on it is a bill of exchange, although there 
 drawee. ^ e no person named as drawee in the bill. The indictment charged 
 that the prisoner having in his possession a bill of exchange as fol- 
 lows : 
 
 "£20. 
 
 "Birmingham, 9th August, 1837. 
 "Two months after date pay to my order the sum of twenty 
 pounds for value received, 
 
 Edward Hawkes." 
 "General Provision Warehouse, Baker, &c, 
 Unett-street, Well-street, Hockley." 
 
 on which was written a forged acceptance, as follows : 
 
 "Accepted, payable at Messrs. Grillett and Tawney's, Bankers, Ban- 
 bury. William Sellers." 
 
 uttered the same knowing the acceptance to be forged. Bosanquet, J., 
 thought that the writing upon the instrument purported to be an accept- 
 ance by Sellers as drawee of the bill, and if not, that it was an accept- 
 ance for the honour of the drawer ; and, upon a case reserved, upon the 
 question whether the instrument upon which the forged acceptance was 
 written, was properly described as a bill of exchange, not being ad- 
 dressed to any person as drawee, the judges were of opinion that the 
 conviction was right, except Parke, B., Patteson, J., and Coleridge, J., 
 who thought otherwise. (<7) 
 *qcq It is also laid down as clear, that it is no objection to the charge of 
 It may be forgery that the instrument is not available, by reason of some *collate- 
 
 (a) Reg. v. Kinnear, 2 M. & Rob. 117. (b) Rex v. Richards. Russ. & Rv. 103. 
 
 (c) Rex v. Randall, Russ. k Rv. 195. 
 
 (d) Reg. v. Hawkes, 2 Moo. C." C. R. GO. Littledalc. J., Parke. J. A. J., and Bolland, B., 
 were absent.
 
 CHAP. XXXII. § I.] RESEMBLANCE TO GENUINE INSTRUMENT. 353 
 
 ral objection not appearing upon the face of it.(e) So that, where a forgery 
 
 prisoner was indicted for forging an order for the payment of prize- instrument 
 
 money, and it appeared that the party whose name was forged was a dis- is not 
 
 charged seaman, and was, at the time the order bore date, within seven available 
 ., P i 1 1 • by reason 
 
 miles oi the port where his wages were payable ; under which circum- of some 
 
 stances his genuine order would not have been valid by the provisions col . late . ral 
 of the 32 Geo. 3, c. 34, s. 2, unless made in the manner therein pre- if "the in- 
 scribed ; the offence was holden to be a forgery, the order itself pur- strument 
 porting, on the face of it, to be made at another place beyond the Hrn- fo e rm °° n ^ 
 ited distance. (/) face of it, it 
 
 So it is no defence to an indictment for forging and uttering an order " su t ffi " 
 of a board of guardians of a poor law union, to show that the person 
 who signed the order as presiding chairman was not in fact chairman 
 on the day he signed the order. The indictment against the prisoner 
 was for forging and uttering the following order : 
 
 "No. 
 
 » Aylsham Union, the 14th day of Nov. 1837. 
 
 " To John Ringher, Esq., Treasurer. 
 
 " Pay to B. P. Drouet, or bearer, the sum of £149 10s. 10c?. 
 
 " John Warnes, Presiding Chairman. 
 
 "John Hump, 1 ~ ,. 
 „ T , „ I ; V Guardians. 
 "John Cross, J 
 
 " Henry Pike, 
 
 " Clerk to the Board of Guardians of the said Union." 
 
 The signatures of Warnes and Rump were proved to have been writ- 
 ten by them at a meeting of the guardians of the Union, but it was not 
 proved that Warnes was the presiding chairman, when he signed the 
 order. The signature of John Cross was proved to be forged. Upon 
 a case reserved, it was contended that though the instrument purported 
 to be signed by the presiding chairman, and so was on the face of it 
 valid, yet it might be shown on the part of the prisoner that in fact the 
 person signing and describing himself as presiding chairman did not fill 
 that character, and that the instrument would then be ecpially invalid, ^ u }^ Y 111 
 as if the deficiency had been on the face of the instrument ; but the gery whore 
 
 iudges were unanimously of opinion that there was nothing in the ob- tliefalse 
 . ! ? , . J f o instrument 
 
 jection.(f/) has no 
 
 But the offence will not be forgery where the false instrument does semblance 
 not carry on the face of it the semblance of that for which it is coun- ° ne or \ 3 
 terfeited, or where it is illegal in its very frame. (A) illegal in 
 
 In a case where the instrument charged to be forged was an order in f r a m o ry 
 the name of a creditor to a gaoler, for the discharge of a debtor who 
 was in prison under an attachment for a contempt, it was objected that 
 such instrument was a mere nullity in itself, even if genuine ; but it 
 became unnecessary to decide upon the objection. (i\ 
 
 (e) 2 East, P. C. c. 19. s. 45, p. 956. 
 
 If) M'Intosh's case, cor. Le Blanc, J., 0. B. 1800, and afterwards considered by the judges, 
 2 East, P. 0. c. 19, s. 39, p. 942. 2 Leach, 883. 
 
 (g) Reg. v. Pike, 2 Moo. C. C. R. 70. Per Lord Abinger, C. B., " It does not lie in the 
 prisoner's mouth to set up that Warnes was not in fact chairman. By uttering the bill he 
 represents the whole as true." 
 
 (/>) Ante, p. 344. 
 
 (i) Fawcett's case, York Spr. Ass. 1793. 2 East, P. C. c. 19, s. 7, p. 8G2, and s. 45, p. 952,
 
 *354 
 
 OF FORGERY. — OF THE MAKING, ETC. 
 
 [BOOK IV. 
 
 Jones's 
 ease. In- 
 strument 
 defective 
 as a bank 
 note. 
 
 Reading's 
 case. 
 
 Pateman's 
 case. Note 
 incomplete 
 for want of 
 a signa- 
 ture. 
 
 * Where the false instrument was in the following form without any 
 signature, 
 
 "No. F. 946. 
 
 " I promise to pay John Wilson, Esq., or bearer, Ten Pounds. 
 " London, March 4, 1776. 
 £Ten. " For Self and Company, of my 
 
 " Bank in England." 
 "Entered, John Jones." 
 
 and it was laid in one set of counts as a paper writing, purporting to be 
 a bank note ; and in another as purporting to be a promissory note, for 
 the payment of money ; it was holden that the prisoner was entitled to 
 an acquittal, though it was specially found by the jury that the prisoner 
 averred that the instrument was a good bank-note, and uttered and pub- 
 lished it as a good bank note. The court said that the representation of 
 the prisoner could not alter the purport of the instrument, which was 
 what appeared upon the face of the instrument itself; and that, although 
 such false representations might make the party guilty of a fraud or 
 cheat, they could not make him guilty of a felony. (A 
 
 In a case where a bill of exchange was directed to " John Ring," 
 and the acceptance was by "John King;" and the indictment stated 
 that the bill purported to be directed to John King by the name of 
 John Ring, and that the prisoner forged the acceptance in the name of 
 John King ; judgment was arrested, because Ring could not purport to 
 be King.Uc) 
 
 Forging or uttering a note which for want of a signature is incomplete, 
 was holden not to be an offence within the statute, by which forgery of 
 notes was subjected to capital punishment. The prisoner was convicted 
 of the offence of uttering and publishing as true a forged promissory 
 note for the payment of 40?., with intent, ifce. It appeared in evidence 
 that the note in question had been originally issued by the Bedford bank 
 as a one pound note, and was then as follows : 
 
 « No. 16209. « Bedford Bank, £1. 
 
 " I promise to pay the bearer One Pound on demand here or at 
 Sir Charles Price, Bart., & Co., London. 
 
 "Value received. 
 "Bedford, the 17th day of October, 1817. 
 
 " For Barnard, Barnard and Green, 
 
 " Thomas Barnard." 
 
 and the note was afterwards altered by cutting out or obliterating the 
 word one and pasting in or inserting in the place of it the word forty, 
 
 where the learned writer says, that it does not appear whether the judges decided the case 
 on that ground, as, at any rate, the indictment was holden good as a cheat. And see Gibb's 
 case, 1 East, R. 173. 2 East, P. C. c. 19, s. 7, p. 864. 
 
 (j) Jones's case, cor. Lord Mansfield, Chelmsford Sum. Ass. 1779, and R. R. Mich. T., 30 
 Geo. Doug. 300. 1 Leach, 204. 2 East, P. C. c. 19, s. 11, p. 883, and s. 45, p. 952. Upon 
 this case, Mansfield, C. J., in the case of Rex v. Collicott, 4 Taunt. 303, observed, "Jones's 
 crime was that of telling a falsehood." 
 
 (k) Reading's case, O. B. 1793, and 1794. 2 Leach, 590. 2 East. P. C. c. 19, s. 45, p. 
 952. and s. 56, p. 981.
 
 CHAP. XXXII. § I.] RESEMBLANCE TO GENUINE INSTRUMENT. 
 
 =355 
 
 and by cutting off the last line which contained the signature, *and by 
 some other smaller alterations. The note then was as follows: 
 
 "No. 16209. 
 
 " Bedford Bank. 
 "I promise to pay the bearer Forty Pounds on demand here or 
 at Sir Charles Price, Bart., and Co., Bankers, London. 
 
 "Value received. 
 Bedford, the 17th day of October, 1817. 
 
 " For Barnard, Barnard, and Green." 
 
 And in this form it was uttered by the prisoner as a note for forty 
 pounds, and the prosecutor gave him forty pounds in change for it. Ob- 
 jection was taken on behalf of the prisoner, that this note as uttered by 
 him was incomplete, and was not, nor did it purport to be, a promissory 
 note, for want of the signature ; and that, therefore, it was not the sub- 
 ject of forgery within the statute; and the point being reserved for the 
 consideration of the judges, they were unanimously of opinion that the 
 objection was fatal, and the conviction wrong.(?) 
 
 In a case in which the prisoner had been convicted of a misdemeanor, 
 as for an offence at common law, for disposing of, &c, an instrument in 
 the form of a promissory note, the count upon which the prisoner was 
 found guilty charged in substance as follows : namely, that the prisoner 
 on, &c, with force and arms, at, &c, unlawfully and fraudulently did 
 dispose of and put away to one J. H. a certain false, forged, and coun- 
 terfeited promissory note, which said false, forged, and counterfeited 
 promissory note was as follows, that is to say, 
 
 No. 6414. 
 
 Blackburn 
 Bank. 
 
 30 shillings. 
 
 Burke's 
 case. In- 
 strument 
 averred to 
 be a pro- 
 missory 
 note, but 
 defective 
 and held 
 not to be 
 the subject 
 of indict- 
 ment for 
 forgery at 
 common 
 law. 
 
 I promise to take this as thirty shillings on demand, in part for a two 
 pound note value received. 
 Entd. J. C. 
 
 Blackburn, Sept. 18, 1821. No. 6414. 
 For Cunliffe, Brooks, & Co. 
 
 30 shillings. 
 
 R. Cunliffe. 
 
 With intention to defraud R. C, J. C, &c, the said prisoner at the 
 said time he so disposed of, &c, well knowing the same to be false, 
 forged, and counterfeited to the great damage of the said R. C., &c. 
 It was objected by the counsel for the prisoner, that this instrument 
 could not in any legal sense be denominated a promissory note, as charged 
 in the indictment; and the learned judge reserved the point for the con- 
 sideration of the judges, it appearing also to him that there was great 
 doubt whether the genuine instrument or writing, supposed to be forged 
 and uttered, had any legal validity; *and whether it was not a mere 
 nullity, for the forgery of which no indictment could be sustained. The 
 
 (I) Reg. v. Batcman, Russ. & Ry. 455. 
 
 *35G
 
 356 OF FORGERY. — OF THE MAKING, ETC. [BOOK IV. 
 
 case being submitted to the consideration of the judges, they decided 
 that judgment should be arrested. (m) 
 '' >fective g where the prisoner was indicted for forging and uttering a bill of 
 change! " exchange in the following form : 
 
 "Nov. 10, 1840. 
 " Please to pay to your order the sum of forty-seven pounds for value 
 received. 
 
 "To Mr. G. Peckford, "J. Bishop." 
 
 "Yeovil." 
 
 "Accepted G. Peckford," and indorsed "J. Bishop;" it was objected 
 that this was not a bill of exchange; it was nothing more than a request 
 to a man to pay himself, and the acceptance of such a document laid 
 the acceptor under no obligation to a third party; Erskine, J., said, he 
 would reserve the point, and the prisoner was convicted; but the learned 
 judge afterwards thought the objection so clearly good, that he recom- 
 mended a pardon for the offence. (n) 
 Moffat's Where the indictment was for knowingly uttering, as true, a forged 
 
 vn'f A acceptance of a bill of exchange, and it appeared that the bill in ques- 
 change tion was absolutely void by the provisions of a statute at that time in 
 drawn for f orce . it wa s holden that a conviction could not be supported. The bill 
 the sum, of exchange was of the following tenor : 
 
 and not in 
 
 requTredhy " Sir, Navy Office, 21st December, 1786. 
 
 the 17 Geo. " Seven days after date, please to pay to Mr. John Moffatt, or his 
 holden not or( ^ er > tne sum 0I * three pounds three shillings, and place the same to 
 to be the the account of 
 f b J ectof "Walter Sterling." 
 
 forgery. 
 
 "To George Peters, Esq., 
 "Bank of England." 
 
 "Accepted, G. Peters." 
 
 And the question was, whether, supposing this bill of exchange to be 
 void, by the provisions of the 17 Geo. 3, c. 30, s. 1, (o\ not being drawn 
 according to the form therein prescribed, (as it neither specified the place 
 of the abode of the payee, nor was attested by any subscribing witness, 
 though for less than bl.,\ the forging of it could not be considered as 
 a capital offence within the 2 Geo. 2, c. 25, and 7 Geo. 2, c. 22, on 
 which the indictment proceeded. All the judges were of opinion that 
 the conviction was wrong; on the ground that, if the bill in question 
 had been a genuine instrument, it would have been absolutely void, and 
 nothing could have made it good : and that by the 17 Geo. 3, c. 30, 
 such an instrument was no bill, and had not the appearance or semblance 
 of one.(^) 
 
 (m) Rex v. Burke, Russ. & Ry. 496. It may be observed of the instrument stated in the 
 indictment that it was not payable to the bearer on demand; that it was not payable in 
 money ; that the maker only promised to take it in payment; and that the requisitions of 
 the statute 17 Geo. 3, c. 30, were not complied with. 
 
 (n) Reg. v. Bartlett, 2 M. & Rob. 362. 
 
 (o) This statute continued in force till the end of the session of parliament, during which 
 the forgery was committed. It was afterwards made perpetual by the 27 Geo. 3, c. 16, but 
 suspended' by the 37 Geo. 3, c. 32, and other statutes, until six months after the ratification 
 of a treaty of peace. See 1 Leach, 434, note (a). 
 
 (p) Moffatfs case, O. B. 1787, and Hil. T. 1787. 1 Leach. 431. 2 East, P. C. c. 19, s. 
 45, p. 954.
 
 CHAP. XXXII. § II.] OF THE INSTRUMENTS, ETC. *357 
 
 *The prisoner, Thomas Wall, was convicted upon an indictment for Wall's 
 forging and knowingly uttering a will of land of one John Skidmore, conviction 
 deceased, attested by only two witnesses ; and, as it did not appear in for forging 
 evidence what estate the supposed testator had in the land so devised, , a w ! 11 " t . 
 
 iiuiu ;tl test 
 
 or of what nature it was, so that it might be presumed to be freehold, ed by only 
 and, therefore, the will void and of none effect, by the express enact- two wit_ 
 ment of the statute of frauds, (j) for want of the attestation of three holclen to 
 witnesses, the judges held the conviction wrong ; on the ground that, be wrong, 
 as it was not shown to be a chattel interest it was to be presumed to be 
 freehold, (r) 
 
 So it has been held, upon a case reserved, that an order for relief of 
 discharged prisoners from a county gaol under the 5 Geo. 4, c. 85, being 
 in many instances ungrammatical and at variance with the act, will not 
 support an indictment for forgery. (s) 
 
 SECT. II. 
 
 Of the Written Instruments in respect of ivJvich Forgery may he 
 
 committed. 
 
 "We may now proceed to consider of the written instruments in re- 0f . tne . 
 spect of which forgery may be committed. struments 
 
 It is clearly agreed that, at common law, the counterfeiting of a mat- in respect 
 ter of record is forgery ; for, since the law gives the highest credit to all fo^ery 
 records, it cannot but be of the utmost ill consequence to the public to may be 
 have them either forged or falsified.^) Also, it is agreed to be forgery commltted ' 
 to counterfeit any authentic matter of a public nature ; as a privy 
 seal,(?<) or a license from the barons of the exchequer to compound a 
 debt,(v) or a certificate of holy orders,(?«) or a protection from a parlia- 
 ment man.(a') It is also unquestionable that a man may be, in like 
 manner, guilty of forgery at common law, for forging a deed;(y) and, 
 therefore, it seems that one may be equally guilty by forging a will, 
 which cannot be thought to be of less consequence than a deed. (2) 
 There seems to be some strong opinions in the books that the counter- 
 feiting of any writings of an inferior nature to those above-mentioned 
 is not forgery at the common law.(«) And it has been holden, that the 
 forging of another's hand, and thereby receiving rent due to him from 
 his tenants, is not punishable at all.(i) But Hawkins remarks, that 
 it cannot *surely be proved by any good authorities, that such base *358 * 
 
 (q) 29 Car. 2, c. 3, s. 5, 
 
 (r) Wall's case, cor. Thomson, B., Worcester Spr. Ass. 1800 ; and East. T. 1800. 2 East, 
 P. C. 19, s. 45, p. 953, 954. 
 
 (s) Rex v. Donnelly, R. & M. C. C. R. 438. 
 
 (t) 1 Rol. Ab. G5, 76. Yelv. 146. Cro. Eliz. 178. 8 Mod. 66. 
 
 (u) 1 Roll. Ab. 68, pi. 33, Cro. Car. 326. 1 Jones, 325. 
 
 (v) 1 Roll. Ab. 65, pi. 5. 2 Buls. 137. 
 
 (w) 1 Lev. 138. Xx) 1 Sid. 442. 
 
 ly) 1 Roll. Ab. 66. Raym. 81. Ow. 47. 1 Sid. 278. 8 Leon. 170. 
 
 (z) Moor. 760. Noy. 101. Dy. 302. 1 Hawk. P. C. c. 70, s. 10. 
 
 (a) 1 Roll. 431. 1 Sid. 16, 155, 451. 1 Rol. Ab. 66. Winch, 40, 90. 1 Leon, 101, 3 
 Leon, 231. Cro. Eliz. 296, 853. 3 Buls. 205. 
 
 (b) Cro. Eliz. 166. Yelv. 146. 3 Buls. 265.
 
 358 OF THE INSTRUMENTS, ETC., OF WHICH [BOOK IV. 
 
 crimes are wholly disregarded by the common law, as not deserving a 
 public prosecution ; and that the opinion of their being punishable by 
 no law seems not to be maintainable, since many of them are most cer- 
 tainly punishable by force of the 38 Hen. 8, c. 1 ; and that it cannot 
 be a convincing argument that they are not punishable by the common 
 law, because they are of a private nature, as much as other writings con- 
 cerning other matters ; no one being ready to affirm that the making of 
 a false deed concerning a private matter is not punishable at common 
 law. He further says that, perhaps it may be reasonable to make this 
 distinction between the counterfeiting of such writings, the forgery 
 whereof, as in the above cases, is properly punishable as forgery, and 
 the counterfeiting of other writings of an inferior nature : that the for- 
 mer is in itself criminal, whether any third person be actually injured 
 thereby or not; but that the latter is no crime, unless some one receive 
 a prejudice from it.(c) 
 
 It is observed as no matter of surprise to find so able a writer as 
 Hawkins treading with so much caution in a path, now indeed too well 
 beaten ; but which, previous to the time of the Kevolution, when paper 
 securities became much more common, had been but little explored. (d\ 
 But with respect to the foregoing distinction which he takes between 
 the counterfeiting of such writings, the forging whereof is properly 
 punishable as forgery, and the counterfeiting of other writings of an 
 inferior nature, it is said that, however plausible this may be, it is by 
 no means a solution of the difficulty but a mere conjecture, which leaves 
 the crime of forgery as indistinct in principle as before, and tends to 
 confound it with the general class of cheats ;{e\ and that it does not 
 appear upon full consideration of the books to which he refers, that it 
 is anywhere adjudged, or is even generally laid down, that the counter- 
 feitings of writings of any sort, whereby any person may receive a pre- 
 judice, if done lucri causa or malo animo, is not punishable as for- 
 gery. (/) It is also observed, that those books which seem at first sight 
 most strongly to warrant the notion that writings of an inferior nature, 
 such as letters, are not the subject of forgery at common law, if fairly 
 considered and compared, amount to no more than this, that the impu- 
 tation of counterfeiting letters or writings frivolous or of no moment ; 
 or from ichence no damage could ensue, or of uncertain signification, 
 is not actionable; and that such letters or writings are incapable, 
 from their substance, not from their form, of supporting a charge of 
 forgery, the chief ingredients of which offence are fraud and intention 
 Rule now to deceive. (</) 
 
 settled that The points to which this discussion relates were fully considered in 
 t h f < hin 1 <' tne f°ll° w i n g important case, in which it was holden that the counter- 
 ed any " feiting of a release, or acquittance for a sum of money, though without 
 w "h in f sea b was forgery; and that it would be a most injurious notion, and 
 dulent in- even a reflection on the common law, to suppose it so defective as not 
 tent where- 1 provide a remedy against offences of this nature. (h) And this case 
 inaybepre-i s considered as having now settled the rule, that the counterfeiting of 
 
 (c) 1 Hawk. a P. C. c. 70, s. 11. (d) 2 East, P. C. c. 19, s. 7. p. 859. 
 
 (e) 2 East, P. C. c. 19, s. 7, p. 859. And as to tbe distinction between forgery and cheats, 
 see ante, 280, note (r). 
 
 (f) 2 East, P. C. c. 18, s. 7, p. 860. (g) Id. ibid. 
 (?i) Bac. Ab. Forgery (B).
 
 CHAP. XXXII. § II.] FORGERY MAY BE COMMITTED. 358 
 
 any writing with a fraudulent intent, whereby another may be preju- judiced is 
 
 diced, is forae.ru at common law.(i)f forgery at 
 
 ' J if u i common 
 
 *The attorney-general, by order of the House of Lords, filed an infor- law. 
 raation against the defendant John Ward, which charged that he being *359 
 bound to deliver 315 tons and a quarter of alum, of the value of 10007. Ward ' s 
 to the Duke of Buckingham, at a certain day then past, wickedly con- Forgery of 
 triving and intending the said duke of the said alum to deceive and an order '" 
 defraud, and with a wicked and fraudulent intent to avoid the delivery certain 
 of the said alum on &c, at &c, with force and arms, upon the back of goods to 
 a certain certificate in writing, signed by one A. N., falsely forged and and°to ap- 
 counterfeited, and caused to be forged and counterfeited, a certain propriate 
 writing in the words and figures following; : . P art of the 
 
 ° ° proceeds to 
 
 Ions C. ) thedefend- 
 
 660 5 " Mr. John Ward. I do hereby order ant ' s °. w " 
 ''Schedule 315 5 ryou to charge the quantity of 660 tons intent to 
 
 and 1 quarter of alum, to my account, defraud. 
 
 975 10 J part of the quantity here mentioned in f r a U d was 
 this certificate ; and out of the money arising by the sale of the alum effected ; 
 in your hands to pay Mr. W. Ward and yourself 10?. for every ton holdenthat 
 according to agreement ; and for your so doing this shall be your dis- this was 
 charge — Buckingham. — April 30th, 1706;" to the evil example, &c, for & er - y - 
 to the great damage of the said duke, and against the peace, &c. And 
 it charged in a second count, that he published the same forged writing, 
 knowing it to be forged, &c. The defendant having been convicted, it 
 was moved in arrest of judgment, that the instrument set forth was not 
 the subject of forgery at common law, and the offence was not, there- 
 fore, punishable in this form ; but at most punishable only as a cheat ; 
 being merely a thing of a private nature, and in effect nothing more 
 than a letter. And it was argued that if the counterfeiting of a letter 
 had been punishable as a forgery at common law, then the making of 
 the 33 Hen. 8, c. 1, to punish those who got the money or goods of 
 others under colour of false tokens or counterfeit letters, was nugatory. 
 It was also urged, that it no where appeared that the Duke of Bucking- 
 ham had been prejudiced by this; which might have been indictable as 
 a cheat, if he had been so prejudiced ; though not as for forgery at 
 common law. But all the court held that this was indictable as a for- 
 gery at common law. That none of the books confine the offence to 
 the particular kinds mentioned in 3 Inst. 169 ; and that as forging a 
 writing not sealed came within all the mischief of forging a deed, the 
 
 (?) 2 East, P. C. c. 19, s. 1, p. 861. 
 
 f {In the case of Ames and others, 2 Greenleaf, 365, it was said, that at common law, for- 
 gery may be committed of any writing which, if genuine, would operate as the foundation 
 of another's liability. 
 
 Forging any instrument, which, on the face of the indictment, appears to be void, if it 
 were genuine, is not an indictable offence — as a writing purporting to contain a mere naked 
 promise to pay a sum of money in labour, expressing no consideration, and being connected 
 with no consideration by averment in the indictment. 9 Cowen, 778, People v. Shall. Sec 
 12 Serg. & Rawle, 237, Butler v. Commonwealth. 
 
 Where an order for the delivery of goods is accepted and paid, and returned to the draw cr, 
 and the date of it subsequently altered by him : this alteration is not forgery at common 
 law, though done with a fraudulent intent. To constitute a forgery in such case, the act 
 must have a tendency to effectuate the fraud. 1 Wend. 298, People v. Fitch.} 
 
 [The fraudulent alteration of a settlement of a book account with intent to defraud A., 
 by including thus, falsely, within the terms of the settlement, a claim of A. against B., which 
 accrued after the settlement was in fact made, is forgerv. Barnum v. The Stale, 15 Ohio, 7 17. 
 
 Vol. ii.— 24
 
 359 OF THE INSTRUMENTS, ETC., OP WHICH [BOOK IV. 
 
 maxim applied, ubi eadem est ratio eadem est lex. That this was re- 
 cognized in the preamble of the 5 Eliz. c. 14, which recites that the 
 forging of writings, as well as deeds, was punishable by law before 
 that statute, but that offenders had been encouraged by the too great 
 mildness of the punishments; and that the 33 Hen. 8, c. 1, did not 
 create new offences, but only enhanced the penalty where the fraud 
 was executed. (j\ 
 
 In the argument upon this case, the following instances of indict- 
 ment at common law, for forging instruments not under seal, were 
 referred to by the counsel for the crown, and relied upon by the court; 
 an indictment for forging letters of credit to raise money,(/c) for forging 
 *360 a bill of exchange or a promissory note,(£) a bill of *lading,(m) an 
 acquittance/?*) a warrant of attorney,(o) a marriage register,^) a pro- 
 tection from a member of parliament,^) with several other cases. (r) 
 And the offence of forgery was distinguished from cheats at common 
 law upon the 33 Hen. 8, c. 1, where the party received an actual pre- 
 judice, which was considered not to be necessary to constitute forgery, 
 in which it was sufficient if the party might be thereby prejudiced. (s) 
 Fawcett's In a subsequent case, Leander Fawcett, who had been committed to 
 Tf 6 \ ^\ e ^ ie S ao ^ a * York, under an attachment, sued out of the Court of King's 
 having Bench, for a contempt in a civil suit, was indicted for forging a certain 
 been com- writing, purporting to be signed in the name of A. Dawson, (the party 
 gaol under who had prosecuted the writ of attachment against him) and to contain 
 an attach- the authority of Dawson to the sheriff for his discharge in the following 
 contempt form : — " To the high sheriff of the county of York, his deputy, &c, 
 in a civil and gaoler. — As to any writ, attachment, or any other process or cause 
 counter- whatsover, at the suit, instance, or promotion of me, A. Dawson, by 
 feited a reason whereof Leander Fawcett is now detained a prisoner in your 
 pretended cus tody, you may forthwith discharge and set at liberty him, the said 
 as from°his Leander Fawcett, unless detained at the suit of some other person; and 
 
 (j) Ward's case, Hil. 13 Geo. 1. 2 Str. 747. 2 Lord Raym. 1461. 2 East, P. C. c. 19, 
 s. 7, p. 861. 
 
 (k) Savage, Styles, 12. 
 
 (I) Sheldon's case, Hil. 34 Car. 2, Rot. 35. Rex v. Ward, (a brother to the present defen- 
 dant,) Mich. 6 Geo. 1. 
 
 (m) Stocker's case, 5 Mod. 137. 1 Salk. 342. The court held the indictment ill for un- 
 certainty ; but not because the offence was not forgery at common law. 
 
 (n) Rex v. Farrers, 1 Sid. 278, and the Record is in Trem. Entr. 129. 
 
 (o) Farr's case, T. Raym. 81. (p) Dudley's case, 2 Sid. 71. 3 Leon, 170. 
 
 (q) Deakin's case, 1 Sid. 142, ante, p. 338. 
 
 (r) See 2 East, P. C. c. 19, s. 7, p. 862, note (g), where Rex v. Hales and Kinnerly, 9 St. 
 Tr. 77, ibid. 93. Rex v. Gibson, 1 Sess, Cas. 428, and ibid. 432, are referred to, as relating 
 to promissory notes and indorsements; and a reference is made upon the subject in general 
 to 13 Vin. Ab. 460. Trem. P. C. 100. 2 Show. 20. O'Brian's case. 7 Mod. 378. 2 Sess. 
 Cas. 366. 2 Str. 1144. 
 
 (s) 2 East, P. C. c. 19, s. 7, p. 862. And see Wilcox's case, Russ. & Ry. 50, where a doubt 
 was entertained whether the offence came under the denomination of a forgery at common 
 law. 
 
 Falsely putting a witness's name to a bond which is not required to have a subscribing 
 witness, does not vitiate the bond, and is not forgery. State v. Gherkin, 7 Iredell. N. C. 206. 
 
 Falsely, wittingly and corruptly rubbing out, erasing or obliterating a release or acquit- 
 tance, on the back of a note or bond, or elsewhere, does not, according to the law of North 
 Carolina, amount to the crime of forgery. State v. Thomburg, 6 Iredell, N. C. 79. 
 
 The forged making of an acceptance of a conditional order for the delivery of goods, is 
 forgery at common law. The Commonwealth v. Ayer, 3 Cushing, 150. 
 
 A. gave a receipt to B. acknowledging the receipt of money in part payment, and such 
 receipt was subsequently altered so as to read in full up to date: held that such alteration 
 was a forgery, as forgery consists in altering the paper in a material part to the injury of 
 another as well in whole as in part. The Slate v. Floyd, 5 Strobhart. 58.]
 
 CHAP. XXXII. § II.] FORGERY MAY BE COMMITTED. 360 
 
 for so doing this shall be your warrant and indemnity. (Dated) 2Gth creditor to 
 Feb. 1793. (Signed) A. Dawson, and witnessed by one R. W." The l^aolfr, 
 defendant having been convicted, several questions were submitted to under 
 the consideration of the judges ; and, amongst others, whether the order ^ bta vj^ £ 
 were a matter of such a public nature, that the counterfeiting of it his dis- 
 would be a forgery at common law; and also, whether, as the attach- £ har S e 
 ment was not for non-payment of money, the order, if genuine, would and it was 
 not have been a mere nullity, and the sheriff not authorized to discharge holden to 
 the prisoner under it. Lord Kenyon, C. J., and Eyre, C. J., said, that demeanor 
 there was an injury to a third person, and that it was an interruption at common 
 to public justice ; but the latter thought it was not a forgery but a aw * 
 cheat. The matter was adjourned to a subsequent term, when Eyre, C. 
 J., was still not satisfied as to the forgery; though he thought the in- 
 dictment good as for a cheat. But all the judges concurred in holding 
 that the offence was indictable as for a misdemeanor at common law ; 
 and a great majority also thought it was a forgery at common law. (A 
 
 So forging an order from a magistrate to a gaoler to discharge a *361 
 prisoner, as upon bail having been given, is forgery at common law. Forging an 
 *The prisoner was indicted for a misdemeanor for forging the follow- a mag i s . 
 
 ing instrument. trate to a 
 
 gaoler to 
 discharge a 
 
 l< SlR, prisoner. 
 
 " I do hereby authorize you to discharge R. Harris from your county 
 gaol, Oxford, as J. Mace and J. Anker are become sureties, and bound 
 in a bond of 40Z. each for his appearance at the next General Quarter 
 Sessions, Oxford, before me J. W. Jones, one of his majesty's justices 
 of the peace for the said county of Oxford. 
 
 " I am, your's respectfully, 
 
 "J. W. Jones. 
 " To the Governor of the County Gaol, Oxford." 
 
 It appeared that Harris, being a prisoner in the county gaol for want 
 of sureties for his appearance at the said sessions, caused the said letter 
 to be written and conveyed to the governor of the gaol. The governor 
 stated the usual course to be that where a man was in custody merely 
 for want of sureties, and the governor received a letter from a magis- 
 trate of the county, certifying that sureties had been entered into before 
 him, the governor discharged such prisoner upon entering into his own 
 recognizances before a magistrate in the neighbourhood : but he stated 
 that he certainly should not have discharged the prisoner, as he did not 
 believe the letter was in the handwriting of Mr. Jones. Tindal, C. J., 
 felt some doubt whether the counterfeiting the letter amounted to for- 
 gery at common law, and reserved the point for the consideration of the 
 judges, who held the conviction right. (m) 
 
 Where the defendant was indicted for forging a county court sum- Forging a 
 mons, and the paper in question was a printed form of a distringas, county 
 
 (t) Fawcett's case, York Spr. Ass. 1793, and East. T. 1793. 2 East. P. C. c. 19, s. 7, p. 
 862. And see the note (a), in which the learned writer says, that Mr. Justice Buller's MS. 
 only made a qucere as to the opinion of Eyre, C. J., but that it appeared from the MSS. as 
 well as Mr. Justice Buller's, that the judges all concurred to sustain the conviction on the 
 general ground only before mentioned. 
 
 (w) Rex v. Harris," R. & M. C. C. R. 393. 5 C. & P. 129. 
 
 8 Eng. Com. Law Reps. xxv. 315.
 
 361 
 
 OF FORGERY. — OF THE FRAUD AND DECEIT, ETC. [BOOK IV. 
 
 ;ourt 
 summons. 
 
 which had had the words respecting the distraining struck out with a 
 pen, and the word " summon" inserted instead, and it appeared that 
 when the county court clerk was absent, the clerks in the office, if they 
 were busy, sometimes gave out blank summonses to the attorneys, who 
 filled them up themselves : Patteson, J., said, " It is highly irregular ; 
 but I know that these summonses are sometimes given out in blank. I 
 am not prepared to say, that after the notice that this trial will give 
 parties, as to the impropriety of the practice, I should not hold that this 
 mode of filling up a summons, or altering a distringas into a summons, 
 was not forgery."(v) 
 
 SECT. III. 
 
 Of the Fraud and Deceit to the Prejudice of Another' s Right. 
 
 Of the 
 fraud and 
 deceit to 
 the preju- 
 dice of 
 another's 
 right. 
 
 ♦362 
 
 iDtent to 
 deceive. 
 
 With respect to the fraud and deceit, to the prejudice of another's 
 right, it should always be kept in mind, that though in cases of forgery, 
 properly so called it is, as we have seen,(n') immaterial whether any 
 person be actually injured or not, provided he may be *thereby preju- 
 diced, yet the fraud and intention to deceive constitute the chief in- 
 gredients of the offence. f Thus Buller, J., speaks of it as the making a 
 false instrument " with intent to deceive ;"(ww s ) and Eyre, B., as a false 
 signature made, » with intent to deceive. "(x) And it is observed, that 
 in the word " deceive" must doubtless be intended to be included an 
 intent to defraud ;(y) and that the offence was accordingly defined by 
 Grose, J., as the false making a note or other instrdment " with intent 
 to defraud. "(.?) Eyre, B., also in another case defined the offence to be 
 the false making an instrument which purports on the face of it to be 
 good and valid, for the purposes for which it was created " with a de- 
 sign to defraud. "(a) And it has been argued, that it is no answer to a 
 charge of forgery to say that there was no special intent to defraud any 
 particular person, because a general intent to defraud is sufficient to 
 constitute the crime ; for if a person do an act the probable consequence 
 of which is to defraud, it will, in contemplation of law, constitute a 
 fraudulent intent.(&) And it has been holden, that in an indictment for 
 forgery, it is sufficient to aver a general intent to defraud a certain per- 
 son, which intention may be made out by the facts in evidence at the 
 trial, (c) 
 
 w) Rex v. Collier," 5 C. & P. 160. (w) "Ward's case, ante, p. 359. 
 
 iww) Coogan's case, 1787. 2 East, P. C. c. 19, s. 1, p. 853, and s. 43, p. 948. Ante, p. 346. 
 (x) Taylor's case, 1779. 2 East, P. 
 (y) 2 East, P. C. c. 19, s. 1, p. 853. 
 {?.) Rex v. Parkes and Brown, 1797. 
 Leach, 775. 
 
 (a) Rex v. Jones and Palmer, 1785. 1 Leach, 366. 
 
 (b) Bv Shepherd arguendo in Tatlack v. Harris, 3 T. R. 176, and it is observed in 1 Leach, 
 216, note (a), that this doctrine was seemingly adopted by the court. 
 
 (c) Powell's case, 1 Leach, 77. It is observed, however, that in Rex v. Bigg, 3 P. Wins. 
 
 f [It is not now held to be essential to the offence of forgery in any case that some one 
 must have been injured. It is sufficient if the instrument forged, supposing it to be forged, 
 might have been prejudicial. Arnold v. Cost, 3 Gill & Johns. 220. See I'. States v. Mos«9, 
 4- Wash. C. C. Rep. 726.] 
 
 a Eng. Com. Law Reps. xxv. 255. 
 
 C. c. 19, s. 1, p. 853, and s. 47, p. 960. 
 2 East, P. C. c. 10, s. 1, p. 853, and s. 49, p. 963.
 
 CHAP. XXXII. § III.] FRAUD AND DECEIT, ETC. 362 
 
 Forging a bill of exchange payable to the prisoner's own order, and 
 uttering it without indorsement as a sceurity for a debt was holden to 
 be a complete offence. (<i) 
 
 The offence of disposing of and putting away forged bank-notes was 
 holden to be complete, though the person to whom they were disposed 
 of was an agent for the bank to detect utterers, and applied to the 
 prisoner to purchase forged notes, and had them delivered to him as 
 forged notes for the purpose of disposing of them. The judges held 
 that if the prisoner put the notes off with intent to defraud, the intent 
 existing in the mind was the essence of the crime, although from cir- 
 cumstances of which he was not apprised, he could not in fact defraud 
 the prosecutor. (e\ 
 
 Uttering a forged stock receipt to the person who employed the pri- 
 soner to buy stock to the amount therein specified, and had advanced 
 the money, was held to be sufficient evidence of an intent to defraud 
 that person; and it was also holden that the oath of the person to whom 
 the receipt was uttered, that he believed the prisoner had no such in- 
 tent, did not repel the presumption of an intent to defraud. (/) 
 
 If a person gives his employer a forged receipt for money, with intent *363 
 to make the employer believe that money already obtained *has been Giving an 
 applied in a certain way, he is guilty of uttering with intent to defraud f^^/re-* 
 his employer. Upon an indictment for forging and uttering the follow- ceipt with 
 »g receipt: L^nt 
 
 believe that 
 
 " May 4. Mr. Martin Bought of Laing and Son. ™ one y be " 
 
 fore rccGiv- 
 
 "Wholesale Druggists, Bristol. * e d has been 
 " Six quarts of Settledated Striking Acid. expended!* 
 
 " Settled, £4. Sam. Hughes." sufficient 
 
 It appeared that the prisoner was intrusted by Miss Welsh to carry on 
 a tanning business, and that on the 3d of May, he told her, that if she 
 would let him have 4?., he could procure a liquid which would save a 
 great deal of money in bark ; that there was a person going to Bristol, 
 and it could only be procured there or in London. She let him have 
 the 4:1. On the 5th of May, the prisoner gave her the document in 
 question, and said it was the receipt for the essence he had purchased 
 in Bristol. No such firm as Laing and Son existed, nor any such per- 
 son as Hughes, connected with any druggist at Bristol, nor any such 
 article as settledated striking acid ; and the document was proved to 
 have been printed at Gloucester, the manuscript having been taken to 
 the printer by the prisoner's daughter. The counsel for the prisoner 
 objected that there was no evidence of an intent to defraud Miss Welsh; 
 she had already parted with her money under a false representation, 
 and the offence, if any, was that of obtaining money under false pre- 
 tences. They distinguished Ilex v. Sheppard,(</) because there the 
 
 419, it was holden not to be an objection to a special verdict that the forgery was not found 
 to have been committed for the sake of the lucre, or to defraud the party. 2 East, P. C. c 
 10, s. 3, p. 854. 
 
 (d) Rex v. Birkett, Russ. & Ry. 8G, post. 
 
 («) Rex v. Holden, Russ. & Ry. 154, and it was holden that the indictment need not state 
 to whom the note was disposed of, it being sufficient to state that the prisoner disposed o! 
 the note with intent to defraud the bank, he knowing it at the time to be forged. 
 
 (/) Rex v. Sheppard, Russ. & Ry. 109. 
 
 (g) Supra, p. 362.
 
 363 
 
 OF FORGERY. — OF THE FRAUD AND DECEIT, ETC. [BOOK IV. 
 
 money was given at the same time that the receipt was produced; here, 
 nothing was ever said about a receipt at the time of obtaining the 
 money; and the giving it afterwards was the mere voluntary act of the 
 prisoner, and could not in any way defraud Miss Welsh. It was an- 
 swered, that the prisoner was accountable to Miss Welsh for the appli- 
 cation of the 41. to the purpose for which he had obtained it, and, 
 therefore, that the forged receipt was part of the fraud. Patteson, J., 
 was of this opinion, and told the jury that if they believed the prisoner 
 to have uttered the forged receipt for the purpose of deceiving Miss 
 Welsh into a belief that he had applied the 41. to the purpose for which 
 he had obtained it, such purpose being a mere pretence and fraud, they 
 might find him guilty of uttering it with intent to defraud her. The 
 jury found the prisoner guilty, and upon a case reserved, upon the 
 question whether the learned judge was right in directing the jury as 
 above stated, the judges were unanimously of opinion that the direction 
 was right. (/i) 
 
 So where on an indictment for forging the following receipt : 
 
 
 Overseer 
 uttering a 
 forged re- 
 ceipt for 
 county rate 
 with intent 
 to defraud 
 the high 
 .-onstable. 
 
 =364 
 
 "£16 15s. 6(7. 
 
 6th January, 1830. 
 " For the High Constable, 
 " James Hughes." 
 
 with intent to defraud E. Grundy, it appeared that the prisoner, in 1830, 
 and for many successive years down to 1837, had been assistant over- 
 seer of Kivington, and that he was in the habit of receiving warrants 
 from Mr. Grundy, the high constable of the ^hundred, ordering him to 
 levy on the inhabitants of Kivington their quota of the county rate. In 
 1830, having levied to the amount of 11/. 5s. 6(7., he paid that sum into 
 a bank at Manchester, to the credit of the high constable, and the clerk 
 of the bank gave him a receipt for 11?. 5s. 6(7. In 1838, the prisoner 
 was removed from his office, and handed over to his successor a great 
 bundle of papers, amongst which the receipt in question was found, 
 but the figures had been altered from 117. 5s. 6(7. to 167. 15s. 6(7. The 
 prisoner's accounts had been passed and allowed from time to time. It 
 was contended that there was no felonious uttering of the receipt; it 
 was not delivered over by him with any intention that it should be used 
 as a voucher. His own accounts had been settled, and the time for audit- 
 ing them had passed. There was no evidence of any intent to defraud 
 the high constable, or that the utterance of the instrument in its altered 
 form would have that effect. Alderson, B., "I am of opinion, that if 
 the prisoner handed the receipt over to his succossor as one of his 
 vouchers, knowing that the figures had been fraudulently altered, he was 
 thereby guilty of a felonious uttering, aud that the intention is correctly 
 described to be that of defrauding Grundy the high constable; for what 
 is the necessary effect of so handing over the altered receipt ? The 
 parish would discover from that receipt that the high constable had been 
 paid 16/. 15s. 6<r7. instead of 11/. 5s. 6(7. (to which latter sum only he 
 was entitled;) and the effect would be that the high constable becomes 
 liable to refund to the parish the sum which the receipt showed that he 
 received in excess. That being the necessary consequence of the pri- 
 soner's act, it must be presumed that he intended it, and no proof of 
 such actual intention is necessary. That has been ruled by all the 
 
 (h) Rex v. Martin, R. & M. C. C. R. 483. S. C. 7 C. & P. 549.
 
 CHAP. XXXII. § III.] OF THE FRAUD AND DECEIT, ETC. 364 
 
 judges, in a case reserved, (/t/t) in consequence of a supposed opinion of 
 Lord Abinger to a different effect. The lapse of time can make no 
 substantial difference. Supposing a party forges a receipt for the pay- 
 ment of a debt of more than six years' standing, it is true the debtor 
 might be already protected by the statute of limitations, but still the 
 forged receipt would alter the position in which the creditor would 
 stand, and it would clearly be a felonious forgery."(i) 
 
 The fact that the prisoner has given guaranties to his bankers, to Guaranties 
 whom he paid a forged note, to a larger amount than the note, does not ?£ ve F io , . 
 
 1 ... „ ° . ' the bank at 
 
 completely negative the intent to defraud the bankers. Upon an indict- which a 
 ment for forging and uttering a forged promissory note for 50/. with f or S e(1 bl11 
 intent to defraud the Gloucestershire Banking Company, it appeared do not 
 that the prisoner had deposited with them three guaranties for 100/. negative an 
 each, signed by his brothers, by which they undertook to be answera- defraud? 
 ble, if he overdrew his account, and it was admitted that at the time of 
 the trial he did not owe the bankers anything. It was submitted that 
 there could be no intent to defraud the bankers, as they held guaranties 
 to a much larger amount than the note. Patteson, J., "It is impossi- 
 ble for me to say that at the time this note was given to the bankers, 
 the prisoner because he had given guaranties, had no intent to defraud ; 
 that is a question for the jury."(y) 
 
 *Knowingly uttering a bill of exchange, all the names of which are *365 
 fictitious, is within the forgery statutes, though the party uttering in- Knowingly 
 tended to provide for the payment of the bill, the fact of the parties not » * tw ™ £ * 
 being real not being known to the person taking the bill. The prisoner to a person 
 was tried for uttering a forged bill of exchange with intent to defraud weaning 
 S. Minor, and it appeared that the parties to the bill were all fictitious should be- 
 persons, and that circumstance was fully known to the prisoner at the Ueve itto 
 time he uttered it to S. Minor, and no doubt existed, therefore, that the ; s f„ffi" me ' 
 names were forged, and the bill was uttered by the prisoner with the eient, al- 
 full knowledge of that fact. There was, however, reason to contend utterer in ° 
 that the prisoner, who had filled a respectable station in life as a farmer, tend to 
 and who had indorsed the bill to Minor, intended at the time he so P™ yide for 
 uttered it to take up and pay the bill when it arrived at maturity. No mc ntof the 
 such intention, however, if it existed, was ever communicated to Minor. bilL 
 For the prisoner it was urged to the jury, that the existence of such an 
 intention, if they believed it, was ground upon which they might pro- 
 perly negative the intention to defraud Minor as charged in the indict- 
 ment ; and a case was cited in which Lord Abinger, at the previous 
 assizes for Shrewsbury, had so decided. In summing up the case, 
 Alderson, B., told the jury, (after consulting Gurney, B.,) that if they 
 were satisfied that the prisoner uttered the bill in payment of a debt 
 due to Minor, knowing at the time he so uttered it that it was a forgery, 
 and meaning that Minor should believe it to be genuine, they were 
 bound to infer that he intended to defraud Minor. The prisoner was 
 found guilty ; but Alderson, B., thought it proper, from respect to the 
 opinion of Lord Abinger, to state a case for the opinion of the judges, 
 in order to know if the rule laid down by him in his summoning up to 
 
 (hh) Reg. v. Will, post, p. 3G5. 
 
 h) Reg. v. Boardman, 2 M. & Rob. 14V. 2 Lew. 187. 
 
 (j) Rex v. James, a 7 C. & P. 553. 
 
 a Eng. Com. Law Reps, xxxii. C28.
 
 •365 OF FORGERY. OF THE FRAUD AND DECEIT, ETC. [BOOK IV. 
 
 the jury was correct, and the judges having considered the case, were 
 unanimously of opinion that the conviction was right.(/c) 
 
 So where the prisoner was indicted for forging and uttering a bill of 
 exchange, which he had given to the National Provincial Bank at Here- 
 ford, as a security for the debt he owed them ; Patteson, J., told the 
 jury, "If the prisoner at the time he uttered this bill, knew that the 
 acceptance was forged, and meant the bill to be taken as a bill with a 
 genuine acceptance upon it, the inevitable conclusion is that he meant 
 to defraud. That was the opinion of the judges in a late case reserved 
 for their consideration.^) There was an earlier case of Rex v. James,(ll\ 
 tried before me at Gloucester, in which I did not lay down this propo- 
 sition strongly enough ; but the law on the point is as I have now 
 stated. "(m) And upon a similar indictment against the same prisoner 
 the same very learned judge said, " If a person knowingly pays a for- 
 gery away as a good bill, it is a consequence, and almost a consequence 
 of law, that he must intend to defraud the person to whom he pays the 
 bill, and also the person whose name is used ; as everything which is 
 the natural consequence of the act must be taken to be the intention of 
 the prisoner.'Yn) 
 *366 *So in a still later case where the prisoner was also tried for forging 
 Intent to and uttering a forged acceptance of a bill of exchange, which had been 
 forcedXn P a ^ ^y tne P r i soner before any proceedings were instituted against him, 
 immate- Parke, B., in addressing the jury, said, " With respect to the intent to 
 
 rial, so also (j e f raU( j \ have no doubt that you will take the law from me, which is 
 payment. . •* . ' 
 
 this, that a person is guilty of forgery, notwithstanding he may himself 
 
 intend ultimately to take up the bill, and may suppose that the party 
 whose name is forged will be no loser. If in the present case you are 
 satisfied that the prisoner knew this acceptance to be forged, and uttered 
 it as true, and believed that the bankers would advance money on it, 
 which they would not otherwise do, that is ample evidence of an intent 
 to defraud, and evidence upon which a jury ought to act. It appears 
 that this bill has since been paid by the prisoner, but that will make no 
 difference if the offence has been once completed at the time of the 
 uttering."(o) 
 
 It has been holden that the jury ought to infer an intent to defraud 
 the person who would have to pay the instrument if it were genuine, 
 although from the manner of executing the forgery, or from that per- 
 son's ordinary caution it would not be likely to impose upon him, and 
 although the object was general to defraud whoever might take the in- 
 strument, and the intention of defrauding, in particular, the person who 
 would have to pay the instrument, if genuine, did not enter into the 
 prisoner's contemplation. (p\ 
 Uttering a Where a forged request for the delivery of goods was addressed in 
 
 (k) Reg. v. Hill," 2 Moo. C. C. R. 30. S. C. 8 C. & P. 274. 
 
 (1) Reg. v. Hill, supra. (II) Ante, p. 364. (m) Reg. v. Cooke, b 8 C. & P. 582. 
 
 (n) Reg. ». Cooke, 8 C. & P. 586. See alse Reg. v. Beard, d 8 C. & P. 143. where Cole- 
 ridge, J., said, "As to the intent, I must tell you that every man is taken to intend the natu- 
 ral consequences of his own act. If I present to you a bill with the name of one of my 
 friends upon it, knowing it to be forged, it would be idle to say that I had no intent to in- 
 jure him." 
 
 (o) Reg. v. Greach, e 9 C. & P. 499. 
 
 (p) Rex v. Mazagora, Russ. & Ry. 291. 
 
 a Eng. Com. Law Reps, xxxiv. 388. b lb. xxxiv. 535. « lb. xxxiv. 538. 
 d lb. xxxiv. 329. e lb. xxxvii. 195.
 
 CIIAP. XXXII. § III.] OF THE FRAUD AND DECEIT, ETC. 366 
 
 her maiden name to a female, who prior to the date of it had married, request 
 it was held that the intent might be laid to be to defraud the husband. Juried* 
 Upon an indictment for uttering the following forged request for the woman in 
 delivery of goods— her maiden 
 
 name. 
 
 " Miss Inwood, 
 "Please to let my carpenter have 281bs. of white lead, and a mop, 
 for the ship Hunter. 
 
 "11th November, 1834." 
 
 William Pescod, Master." 
 
 It appeared that the prisoner presented the order on the day of the date 
 at a shop which had been kept by Miss Inwood for several years, and 
 at which Captain Pescod had been in the habit of purchasing goods for 
 his ship; but in the month of January previous Miss Inwood had mar- 
 ried J. Barrow, and the goods were delivered to the prisoner by him. 
 The Recorder doubted if the indictment was sustained, there not being 
 any averment of an intent to defraud Miss Inwood; but the prisoner 
 being found guilty, he consulted Lord Denman, C. J., Park, J. A. J., 
 and Bolland, B , and they were of opinion that the conviction was 
 right.(g) 
 
 Upon an indictment for forging and uttering an order for the pay- Offering a 
 ment of money, signed John Phillips, with intent to defraud F. Rufford, ^ b k 
 and others, it appeared that the order was presented at Messrs. Ruf- where it is 
 ford's bank ; but they would not pay the amount ; and no person ?" re n ?* t0 
 named John Phillips kept cash with them; it was objected that there 
 could be no intent to defraud Messrs. RufFord, as there was *not the *367 
 most remote chance of their paying the money ; but it was held that 
 the prisoner's going to Messrs. Rufford's and presenting the paper 
 for payment, was quite sufficient evidence of an intent to defraud 
 theni.(r) 
 
 Where on an indictment against an attorney for forging a county 
 court summons, it appeared that a distringas had been altered by strik- 
 ing out the words respecting the distraining and inserting the word 
 "summon" instead, and this paper had been served on the prosecutor, 
 who paid the costs, as if it had been a genuine summons, and the debt 
 claimed of him; Patteson, J., held that there was no evidence of any 
 intent to defraud the prosecutor, as he would have had just the same 
 costs to pay if the summons had been sued out in the most regular 
 manner.(s) 
 
 It is said by Hawkins that the notion of forgery does not seem so Forgery 
 much to consist in the counterfeiting: of a man's hand and seal, which consists in 
 
 p i i ii.i i • • tne endea- 
 
 may olten be done innocently; but in the endeavouring to give an ap- vouring to 
 pearance of truth to a mere deceit and falsity, and either to impose that s lve an 
 upon the world as the solemn act of another, which he is no way privy f truth to 
 to, or at least to make a man's own act appear to have been done at a a mere de- 
 time when it was not done, and by force of such a falsity to give it an falsity, 
 operation which in truth and justice it ought not to have.(^) 
 
 (q) Rex v. Carter," V C. & P. 134. 
 
 (r) Rex v. Crowther, b 5 C. & P. 316, Bosanquet, J. 
 
 (*) Rex v. Collier, 5 C. & P. 1G0. 
 
 (!) 1 Hawk. P. C. c. 70, s. 2. 
 
 a Kng. Com. Law Reps, xxxii. 467. b lb. xxiv. 337. c lb. xxiv. 255.
 
 367 
 
 OF FORGERY. 
 
 [BOOK IV. 
 
 But as the fraud and intention to deceive, by imposing upon the 
 world that as the act of another, which he never consented to, are the 
 chief ingredients which constitute this offence, so it hath been holden, 
 that he who writes a deed in another's name, and seals it in his pre- 
 sence, and by his command, is not guilty of forgery, because the law 
 looks upon this as the other's hand and sealing, being done by his ap- 
 probation and command. (u) 
 
 So, if a man writes a will for another without any directions from 
 him, and he for whom it is written becomes non compos before it is 
 brought to him, it is not forgery; for it is not the bare writing of an 
 instrument in another's name, without his privity, but the giving it a 
 false appearance of having been executed by him, which makes a man 
 guilty of forgery.(x) Also he cannot be punished as guilty of forgery 
 who raises the word libris out of a bond made to himself, and substi- 
 tutes march, because here is no appearance of a fraudulent design to 
 cheat another, and the alteration is prejudicial to none but to him who 
 makes it, whose security for his money is wholly avoided by it; yet 
 this it seems would be forgery if by the circumstances of the case it 
 should in any way appear to have been done with any view of gaining 
 an advantage to the party himself, or of prejudicing a third person : and 
 it is holden, that such an alteration, even without these circumstances, 
 is a misdemeanor; though it do not amount to forgery.^) So that it 
 is well observed, that at any rate it is very dangerous to tamper in these 
 matters. (z) 
 
 *368 
 
 Of princi- 
 pals and 
 accesso- 
 ries. 
 
 Soares, 
 Atkinson, 
 and Brigh 
 ton's case. 
 Where it 
 appeared 
 
 *SECT. IV. 
 
 Of Principals and Accessories. 
 
 It has been stated in a former part of this work, that it is laid down 
 generally in the books, that all are ^>?-inc(p«?s in forgery ; and that 
 whatever would make a man accessory before the fact in felony, would 
 make him a principal in forgery : but that it is conceived, this must be 
 understood of forgery at common law, and where it is considered only 
 as a misdemeanor. (a) And with respect to a ease(&) upon the 5 Eliz. 
 c. 14, which would seem to lead to a contrary conclusion, it is else- 
 where observed that, from its circumstances there seems no reason for 
 taking that case out of the general rule, that when a statute makes a 
 new felony, it incidentally and necessarily draws after it all the con- 
 comitants of felony, namely, accessories before and after. (c) And this 
 doctrine is confirmed by several cases. 
 
 Three prisoners, Soares, Atkinson, and Brighton, were charged by 
 the indictment with feloniously uttering and publishing as true a certain 
 false, forged and counterfeit bank note for 51. knowing it to be forged, 
 &c, with intent to defraud the governor and company of the Bank of 
 
 
 (u) 1 Hawk. P. C. c. TO, s. 2, and Bac. Ab. Forgery (A), 
 (z) Moor. 760. 1 Hawk. P. C. c. 70, s. 5. Back. Ab. Forgery (A). 
 
 (y) 1 Hawk. P. C. c. 70, s. 4. Bac. Ab. Forgery (A). As to the rasir : of deeds, see Shep. 
 Touch. 68, 69. 
 
 (z) 2 East, P. C. c. 19, s. 3, p. 854. (a) Ante. vol. 1, p. 33. 
 
 (b) Bothe's case, Moor. 666. Ante, vol. 1, p. 33, note (»). 
 
 (c) 2 East, P. C. c. 19, s. 52. p. 973, 974. And sec ante, vol. 1. p. 4, etseq.
 
 CHAP. XXXII. § IV.] OF PRINCIPALS AND ACCESSORIES. 368 
 
 England. And the indictment also contained the other usual counts, that two of 
 for forging, and for disposing of and putting away the note, with the er g w " r s e ° n " 
 like intent; together with counts stating the intent to be, to defraud the privy to the 
 person to whom it was offered in payment. It was proved that the u " erin g of 
 prisoner, Brighton, offered the note in question in payment for a pair of note by 
 gaiters at a shop in Gosport, and that the other two prisoners, Soares P revious 
 and Atkinson, were not with Brighton at the time he so offered the with the 
 note, but were waiting at Portsmouth till he should return to them, it other P ri - 
 having been previously concerted between the three prisoners that actually 
 Brighton should go over the water from Portsmouth to Gosport, for the uttered it; 
 purpose of passing the note, and when he had passed it, should return tb u e t ^ 
 to join the other two prisoners at Portsmouth; they all three knowing not present 
 that it was a forged note, and having been concerned together in a ^ * he fact 
 
 " 01 I lie llt~ 
 
 putting off another note of the same sort, and in sharing the produce tering, it 
 among them. Upon this evidence, the counsel for the prisoners Soares ^ as nolden 
 and Atkinson objected, on their behalf, that they were not guilty of the wer e acces- 
 charge made against them in this indictment, not having been present sories be- 
 at the time the other prisoner uttered the note, nor so near as to be able j^ a nd 
 to aid and assist him; and that they could be charged only as acces- were there- 
 sories before the fact. The jury found that the forged note was uttered [^ j^~ 
 by the prisoner Brighton, in concert with the other two prisoners, and acquittal 
 found them all three guilty. The prisoner Brighton was left for execu- ° n f n in " 
 
 . ° J . r , dictrnent 
 
 tion; but judgment was respited as to the other two, whose case was charging 
 referred to the consideration of the judges, who had no doubt that they them as 
 
 ... . . principals. 
 
 were entitled to an acquittal on this indictment charging them *as prin- *QftQ 
 cipals, they not being present at the time of the uttering, or so near as 
 to be able to afford any assistance to the accomplice who actually 
 uttered the note. The prosecutor was, therefore, required to state on 
 what grounds the contrary was meant to be argued; and no suggestion 
 of the kind being made, the two prisoners were recommended for a 
 pardon. (tZ) 
 
 So in a late case at the Old Bailey, Graham, B., is reported to have Construc- 
 said, " It has frequently been held that what would amount to a con- gen^/ 6 " 
 structive presence at common law will not be sufficient upon an indict- 
 ment under a statute. A case under this statute occurred before me at 
 Derby. Two persons went in concert to utter a forged note ; one went 
 into a shop to utter it, whilst the other remained at some little distance 
 in the street; it was objected that the latter was not liable as a princi- 
 pal. I saved the point; and the judges were of opinion that the utterer 
 only was liable. "(e) 
 
 The case referred to by the learned judge was probably that of Bex 
 v. Davis and Hall, tried not at Derby, but at the Lent Assizes for Not- 
 tingham, in the year 1806, and in which it was holden not to be suffi- 
 cient to make a person a principal in uttering a forged note, to prove 
 that such person came with the utterer to the town in which it was 
 uttered, went out with him from the inn at which they had put up a 
 little before the time when it was uttered, joined him again in the street 
 
 (d) Rex v. Soares, Ukinson, and Brighton, East. T. 1802, 2 East, P. C. c. 19, s. 52, p. 974. 
 Russ. & Ry. 25. An ;ee Rex v. Badcock and others, Trin. T. 1813, Russ. & Ry. 249, and 
 Rext). Stewart and \h ' ens, East. T. 1818, Russ. & Ry. 363. 
 
 (e) By Graham, IS., i the case of Brady and others, for forging and uttering a check, 0. 
 B. June, 1813. 1 Stan Crim. Plead. 84, in the note. But see upon this subject, ante, vol. 
 1, p. 26, et seq.
 
 369 
 
 OF FORGERY. 
 
 [BOOK IV. 
 
 tivc pre- 
 sence in the 
 actual 
 forgery. 
 
 *370 
 
 a little after the uttering, and at some little distance from the place of 
 the uttering, and ran away when the utterer was apprehended. (/) 
 Construe- But it has been holden that where several persons were in combina- 
 tion, and jointly co-operated in making forged Bank of England notes, 
 they were all guilty as principals, though each of them executed by 
 himself a distinct part of the forgery, and though one of them was not 
 present when the notes were completed by the signature. (#) 
 
 So also if several make distinct parts of a forged instrument, each 
 is a principal, though he does not know by whom the other parts are exe- 
 cuted, and though it is finished by one alone, in the absence of the 
 others. (A) So also the makers of the paper and plate respectively for 
 the purpose of forging a note, afterwards filled up by a third person, 
 are principals in the forgery with that person, though each executed his 
 part in the absence of the others, and without knowing by whom the 
 other parts were executed, (i) 
 
 But where three persons were jointly indicted under the 1 Wm. 4, c. 
 60, s. 19, for feloniously using plates containing impressions of forged 
 foreign notes, it was held that the jury must select some one particular 
 time after all three had become connected, and must be satisfied, in or- 
 der to convict them, that at such time they were all *either present 
 together at one act of using, or assisted in one such act, as by two using 
 and one watching at the door to prevent the others being disturbed, or 
 the like; and that it was not sufficient to show that the parties were 
 general dealers in forged notes, and that at different times they had 
 singly used the plates, and were individually in possession of forged 
 notes taken from them. (j\ 
 
 And where three persons were indicted under the same section, for 
 feloniously engraving a promissory note of the Emperor of Russia, and 
 it appeared that the plates were engraved by an Englishman, who was 
 an innocent agent, and two of the prisoners only were present at the 
 time when the order was given for engraving the plates, but they said 
 they were employed to get it done by a third person, and there was 
 some evidence to connect the third prisoner with the other two in sub- 
 sequent parts of the transaction; it was held that in order to find all 
 three guilty, the jury must be satisfied that they jointly employed the 
 engraver, but that it was not necessary that they should all be present 
 when the order was given, as it would be sufficient if one first commu- 
 nicated with the other two, and all three concurred in the employment 
 of the engraver. (7c) 
 
 In the following case a wife was indicted as a principal in a forgery 
 on the 49 Geo. 3, c. 123, s. 13, and her husband as an accessory before 
 
 Morris's 
 case. 
 Where a 
 
 wife by the the fact at common law. The indictment charged Sarah Morris with 
 i ndictment forging an order and certificate for receiving prize-money, which had 
 band but in become due to one Henry Taylor, a petty officer in the naval service, 
 his ab- with intent to defraud the commissioners of Greenwich Hospital; and 
 knowingly John Morris with inciting, counselling, aiding, procuring, &c, the said 
 
 (/) Rex v. Davis and Hall, cor. Graham, B., Nottingham Lent Ass. 1806, and East. T. 1806, 
 Russ. & Ry. 113. 
 
 (g) Rex v. Bingley and others, Russ. & Ry. 446. 
 (h) Rex v. Kirkwood, R. & M. C. C. R. 304, ante, vol. 1, p. 33, 34. 
 (i) Rex v. Dale, R. & M. C. C. R. 307, ante, vol. 1, p. 33, 34. 
 (J) Rex v. Harris, a 7 C. & P. 416, Littledale and Gaselee, Js. 
 (k) Reg. v. Mazeau, b 9 C. & P. 676, Patteson, J. 
 
 a Eng. Com. Law Reps, xxxii. 564. b lb. xxxviii. 286.
 
 CHAP. XXXII. § IV.] OF PRINCIPALS AND ACCESSORIES. 370 
 
 Sarah Morris to commit the said felony. The second count charged uttered a 
 Sarah Morris with having knowingly uttered the order and the certifi- demand""" 
 cate by the incitement of John Morris. And there were many other certificate 
 counts in which the offence was charged with some variations. It ap- cg'vinVof 
 peared that H. Taylor, whose name purported to be subscribed to the prize-mo- 
 order, was, in the year 1811, a petty officer on board his majesty's n< Y'. lt 7 a * 
 frigate the Frederickstein ; and in such capacity became entitled to a they might 
 share of certain prize-money arising from the capture of a rich vessel. be ind icted 
 In November, 1813, the prisoner, Sarah Morris, who was the wife of tn f wife 'as 
 the other prisoner, John Morris, and real or pretended daughter of H. a principal 
 Taylor, applied to a clerk in the check office, in Greenwich Hospital, q° 3 c 
 for the payment of the prize-money due to H. Taylor : and produced at 123, and 
 
 the same time the order stated in the indictment. She was desired to £ , " 
 
 band as an 
 
 call again in about ten days, and went away leaving the order with the accessory 
 clerk. But in about four or five days she came again, and expressed j? etore the 
 great anxiety to be immediately paid the money, when she was told common 
 that the money had not yet come in : and the order was given back to law - 
 her with a request that she would not apply again until she was duly 
 informed that the money had been remitted to the office. Almost im- 
 mediately after the second visit, the other prisoner, John Morris, wrote 
 a letter to the clerk of the check on the subject. On the 8th Decem- 
 ber, notice was given *to Sarah Morris that the prize-money was come *371 
 in, and that she might receive the share of it, to which H. Taylor Tvas 
 entitled : upon which she went to the office with the same order and 
 certificate, which she produced ; and had nearly obtained the warrant 
 for the payment of the money, when circumstances occurred which 
 caused suspicion, and she and her husband were shortly afterwards ap- 
 prehended. It was also proved that H. Taylor, whose name purported 
 to be signed to the order, could not write, and was obliged always to 
 make a mark whenever his signature was required ; and that the name 
 of the officer, by whom the certificate purported to be subscribed, was 
 not in his handwriting. The landlord of the house in which the pri- 
 soners lodged, stated that the prisoner, John Morris, had, in two or 
 three instances, ordered his wife, Sarah Morris, to go to Greenwich Hos- 
 pital respecting about 30/. of prize-money due to H. Taylor, his wife's 
 father ; that he was constantly talking of having been H. Taylor's ship- 
 mate ; that, at one time, Sarah Morris told her husband that she had 
 been to Greenwich ; that the prize-money was not then ready ; that the 
 office had not yet received it ; and that he, the witness, had lent the 
 prisoner, John Morris, money upon a belief that he had prize-money to 
 receive. He also swore that he really believed that Sarah Morris went 
 to receive it in obedience to her husband's orders. And, as to this fact, 
 it was proved that the prisoner, John Morris, had signed a paper, stat- 
 ing that his wife had acted in this business entirely under his orders 
 and directions. It was also proved by a witness who had formerly been 
 a captain's clerk in the navy, that in November, 1813, the prisoner, 
 John Morris, represented to him that there was about 30/. prize-money 
 due to his father-in-law, H. Taylor, as a caulker in the Frederickstein 
 frigate; that he did not like to go to a Jew upon the subject; and that 
 he would be obliged to him if he would fill up the blanks in certain 
 papers which he produced ; that the witness accordingly filled up the 
 blanks, excepting the signatures ; and that, on observing there was a 
 spare half sheet to the papers he so filled up, he advised the prisoner,
 
 371 OF FORGERY. [BOOK IV. 
 
 John Morris, to send it by the post to his father-in-law; but that he re- 
 plied that his wife was going to Portsmouth, on board the Gladiator, 
 and that she would get it done. This witness further stated, that he 
 afterwards met the prisoner, John Morris, who then told him that he 
 had got the papers regularly signed by H. Taylor and the captain ; and 
 that he was going to send his wife to Greenwich Hospital for the money. 
 Upon this evidence it was submitted by the counsel for the prisoners, 
 that Sarah Morris, in the part she took in this transaction, had clearly 
 acted under the directions and coercion of her husband, she could not 
 be found guilty ;^fj and that if she was innocent as a principal, the 
 other prisoner could not be guilty as an accessory. And the jury hav- 
 ing found both the prisoners guilty, the case was reserved for the con- 
 sideration of the twelve judges ; who were unanimously of opinion that 
 the prisoner, Sarah Morris, was guilty of uttering the forged instru- 
 ment, knowing it to be forged ; and that the prisoner, John Morris, 
 her husband, was guilty of the offence with which he was charged in 
 the indictment, namely, that of an accessory before the fact at common 
 law.(m) 
 *372 *lt is said by Lord Coke, that to cause is to procure or counsel one 
 Of causing, to forge ; to assent is to give his assent or agreement afterwards to the 
 andconf' P rocurement or counsel of another; to consent is to agree at the time 
 seating. of the procurement or counsel, and he in law is a procurer/?*) But it 
 is observed, that the assent here mentioned must be understood of an 
 assent to the design of forging, before the fact of the forgery commit- 
 ted ;(o) since according to Lord Hale, an assent after the fact committed 
 makes not the party assenting guilty or principal in the forging; but it 
 must be a precedent or concomitant assent. (p) 
 Trial of ac- By the general provisions of the 7 Geo. 4, c. 64, ss. 9, 10, accessories 
 before the fact may be tried as such, or for a substantive felony ; and 
 all accessories may be tried by any court which has jurisdiction to try 
 the principal felon, although the offence may have been committed on 
 the seas or abroad ; and if the offences have been committed in different 
 counties, the accessories may be tried in either, fa) 
 
 cessones. 
 
 SECT. V. 
 
 Of the Indictment, Trial, Evidence, and Punishment. 
 
 Of the in- It now remains, in conclusion of this chapter, to mention some of 
 tr\l\ i '&c' ^ e P omts °f g enera l application concerning the indictment, trial, evi- 
 dence, and punishment in cases of forgery. 
 Of the in- It is usual to charge in the indictment that the party falsely forged 
 Word ent " an( * counter f e i te d> & c - > b^ it is said to be enough to allege only that 
 "falsely." he forged and counterfeited without adding falsely, which is sufficiently 
 
 (I) Ante, vol. 1, p. 17, 212. 
 
 (m) Rex v. Morris, East. T. 1814. 2 Leach, 1096. Ru?s. & Ry. 270. And see Rex v. 
 Martha Hughes, ante, vol. 1, p. 22. 
 
 (n) 3 Inst. 169. And in a strict sense he that causes a forgery to be done is a forger him- 
 self: but then it ought to be so laid in the indictment. Per Cur. in Rex v. Stocker, 5 Mod. 
 138. 
 
 (o) 2 East, P. C. c. 19, s. 52, p. 937. (p) 1 Hale. 684. 
 
 (9) See the 1 Wm. 4, c. 66, s. 24, post, p. 410.
 
 CHAP. XXXII. § V.] OF THE INDICTMENT, ETC. 372 
 
 implied in either of those terms, particularly in the word to forge, 
 which is always taken in an evil sense in our law.(r) It has been 
 holden that an indictment is good, and not repugnant, although it state 
 that the party falsely forged a false writing. (s\ 
 
 It was essentially necessary formerly to an indictment for forgery, Statement 
 that the instrument alleged to be forged, should be set forth in words ^ A . 
 and figures ;(<)f though, in general, figures must not be used in an strument. 
 indictment. («) 
 
 But "in order to prevent justice from being defeated by clerical or 2 & 3 Win. 
 verbal inaccuracies," it is enacted by the 2 & 3 Wm. 4, c. 123, s. 3. t' C 'J 2 2' s ' 
 
 ! . 11 . /» . • T l> o • *• kum- 
 
 "that in all informations or indictments tor torging or in any manner cient to de- 
 uttering any instrument or writing, it shall not be necessary to set forth scnbe tne 
 any copy or fac-simile thereof, but it shall be sufficient *to describe the *373 
 same in such manner as would sustain an indictment for stealing the instrument 
 
 ,, as in lar- 
 
 same. ceny _ 
 
 (r) 2 East, P. C. c. 19, s. 57, p. 985. Savage's case, Styles, 12. The Latin words were 
 fabricavit et contrafecit. Mariot's case, 2 Lev. 221. Dawson's case, 1 Str. 19. 
 
 (s) Rex v. Goate, 1 Lord Raym. 737. 
 
 (t) 2 East, P. C. c. 19, s. 53, p. 975. Mason's case, Northumberland Sum. Ass. 1792. 
 Mich. T. 1792. East. T. 1793. Trin. T. 1793. 2 East, P. C. ibid. 
 
 (u) 1 Chit. Crim. L. 176. 
 
 f {See 1 Chipman's R. 298, State v. Parker. 2 Mason, 468, U. States v. Britton. 2 
 Cowen, 522, People v. Kiugsley. 2 Southard, 744, State v. Gustin. 4 Halsted, 62, State 
 v. Potts, Ace. 
 
 But there are cases which form an exception to this rule : " As where the forged instru- 
 ment has been destroyed by the prisoner, or has remained in his possession; and perhaps 
 in other cases where the instrument cannot be produced, and there is no laches on the part 
 of the government or prosecutor. But in every such instance, that the exception may be 
 admitted, it must appear in the indictment what is the cause of the non-description of the 
 instrument." Per Sedgwick, J., 8 Mass. Rep. 110. \_Peddleton v. The Commonwealth, 4 
 Leigh, 694.] 
 
 These exceptions to the rule are admitted in the cases above cited. See Ante, 317, note 
 (A). 
 
 So, though generally the instrument, alleged to be found, ought to be produced before the 
 grand jury, — yet, in cases like those above mentioned, they may receive other evidence, and 
 find a bill of indictment thereon. 3 Car. and Payne, 591, [Eng. Com. L. Rep. xiv. 469,] 
 Rex v. Hunter. 
 
 If a forged deed be in the possession of a prisoner, who is indicted for forging it, the 
 prosecutor is not entitled to give secondary evidence of its contents, unless he has a reason- 
 able time before the commencement of the Assizes, given the prisoner notice to produce it. 
 But if the prisoner has said that he has destroyed the deed, no notice to produce it will be 
 necessary. 4 Car. and Payne, 254, [Eng. Com. L. Rep. xix. 370,] Rex v. Haworth. See 
 also, 4 Car. and Payne, [14 Eng. Com. L. Rep. 306,] 128, Rex v. Hunter. 
 
 If, as secondary evidence of the contents of a deed, the draft be given in evidence, and 
 in the draft words be abbreviated, which in the setting out of the deed in the indictment, 
 are put in words at length; it will be for the jury to say, whether they think that the words 
 abbreviated in the draft were inserted at length in the deed itself. Rex v. Hunter, 4 Car. 
 anil Payne, 128.} 
 
 [A check on a bank, charged in an indictment for forgery to be addressed to the cashier 
 thereof is correctly described where the check is in form of a letter addressed on the back 
 thereof to the cashier, although in the inside of the letter there be no direction whatever. 
 People v. Gumaev, 9 Wend. 272. 
 
 Every indictment for forgery must set forth the instrument charged as fictitious in words 
 and figures, so that the court may be able to judge from the record whether it is an instru- 
 ment in respect of which forgery can be committed. State v. Jones, 1 M'Mullen, 236. 
 
 It is not necessary that the characters and figures in the margin of an order for the pay- 
 ment of money, should be set out in an indictment for counterfeiting and forging the same. 
 State v. Flye, 26 Maine, 312. 
 
 When an indictment for forging an order set it out as it was when altered, and the 
 proof was that it was originally drawn for nine dollars and had been altered to nineteen 
 dollars, it was held that the indictment was sufficient. State v. Flye, 26 Maine, 312. 
 
 An indictment for uttering as true a forged promissory note, purporting to be made by A. 
 payable to U., or order, is pioved by evidence of the uttering of such note, with the indorse- 
 ment of B.'s name on the back thereof. Commonwealth v. Adams, 7 Metcalf, 50.]
 
 373 OF FORGERY. [BOOK IV. 
 
 Descrip- This section applies to all forged documents, whether the subject of 
 
 forged in- larceny or not; and in the latter case, the judges thought the words 
 strument of the statute must be read in this way, that "it shall be sufficient to 
 " D ! c '|i 10 describe the instrument in such manner as would sustain an indictment 
 4, c. 123, for stealing the same, supposing it to be the subject of larceny.'Vx) 
 s - 3> It is sufficient therefore to aver that the prisoner uttered "a certain 
 
 false and forged writing, as and for a copy of an entry, in a certain 
 register of marriages, kept by the vicar of the parish of Seighford, in 
 the county of Stafford, of a matter relating to a marriage between T. 
 Vaul and A. Poultney.'Yy) So it is sufficient to describe a receipt as 
 "a certain receipt for money, that is to say, a receipt for the sum of SI. 
 15s. 9d."(z\ So a request for the delivery of goods is well described as 
 "a certain request for the delivery of goods to one J. Robinson. "(a) 
 So it is sufficient to describe a deed as "a certain deed, purporting to be 
 made on the 1st day of March, 1837, between R. Williams of the one 
 part, and D. Griffiths on the other part, and purporting to be an under- 
 lease by the said R. Williams to the said D. Griffiths, of certain lands, 
 tenements and premises therein mentioned, subject to the payment of 
 the yearly rent of SI., payable on the 1st day of March, in every year, 
 and purporting to contain a covenant by the said D. Griffiths with the 
 said R. Williams for the payment by the said D. Griffiths to the said 
 R. Williams of the yearly rent of eight pounds. "(ZA So an order for 
 the payment of money is sufficiently described as "a certain order for 
 the payment of money, to wit, for the payment of 60/."(c) So a warrant 
 for the payment of money may be stated to be "a certain warrant for 
 the payment of money, to wit, for the payment of the sum of 47. 
 10s." (rf) So after verdict, a count has been held good, which stated 
 that the prisoner had in his possession two plates, upon which was en- 
 graved, in the Polish language, " a certain promissory note for payment 
 of five florins, purporting to be a promissory note for payment of money 
 of a certain foreign prince, that is to say, of Nicolas, then being king of 
 a certain foreign country called Poland. "(<?) So, it is enough to de- 
 *374 scribe a promissory note as " a certain promissory note for the *pay- 
 ment of 29/." without adding the date, or giving any further descrip- 
 
 (x) Per Patteson, J., in Reg. v. Sharpe, 8 8 C. & P. 436, stating what the opinion of the 
 judges was in Reg. v. Martin, R. & M. C. C. R. 483. 
 
 (y) Reg. v. Sharpe, supra. Park, J. A. J., and Patteson, J. 
 
 (z) Reg. v. Vaughan, b 8 C. & P. 276. According to the report of Rex v. Martin, R. & M. 
 C. C. R. 483, this point was decided in that case in the same way ; but that is inaccurate, 
 and the report in 7 C. & P. 549,° is correct. " There were two questions in that case, one 
 on the second and one on the fourth count ; and the second count being held good, it be- 
 came unnecessary to decide the question on the fourth count. The judges, therefore, did 
 not decide it, but they did consider it, and the strong inclination of their opinion was that 
 the count was good, though it did not set out the instrument,'' per Patteson, J., in Reg. v. 
 Sharpe, supra. C. S. G. 
 
 (a) Reg. v. Robson, d 9 C. & P. 423, decided by all the judges upon a case reserved. 
 
 (b) Reg. v. Davies, e 9 C. & P. 427, decided bv all the judges upon a case reserved. 
 
 (c) Reg. v. Raake ; 2 Moo. C. C. R. 66. S. C. 8 C. & P. 626, and see 9 C. & P. 429. 
 note (a). See Reg. v. Atkinson/ 1 Carr. & M. 325, post. 
 
 (d) Reg. v. Rogers,« 9 C. & P. 41, Parke, B., and Bosanquet, J. 
 
 \e) Rex v. Warshaner, R. & M. C. C. R. 466. There was at first a difference of opinion 
 among the learned judges, whether the count ought not to have shown what money florins 
 were and their value; but at a subsequent meeting the defect was considered to be cured by 
 the 7 Geo. 4, c. 64, s. 21, the offence being described in the words of the statute. 
 
 a Eng. Com. Law. Reps, xxxiv. 468. b lb. xxxiv. 390. c lb. xxxii. 626. 
 
 d lb. xxxviii. 174. e lb. xxxviii. 175 f lb. xli. 181. « lb. xxxviii. 28.
 
 CHAP. XXXII. § V.] OF THE INDICTMENT, ETC. 374 
 
 tion.(/") So a count charging the uttering of "a certain promissory 
 note, purporting to be a promissory note of A. B., for the payment of 
 money, to wit, for the payment of 5Z." has been holden good.(#) 
 
 As, however, indictments frequently contain counts, in which the Cases 
 instruments are set out, the following decisions will still be useful in ^gtrument 
 such cases. is set out. 
 
 In a case where, upon an indictment for forging a receipt for money, 
 it was objected that in the receipt, as set forth, some of the sums were 
 in figures, it was holden that the receipt must be pursued exactly, or it 
 would be a variance. UCj The reason for setting out the instrument is, 
 that the court may see that it is one of those instruments, the falsely 
 making or knowingly uttering of which the law has said shall be con- 
 sidered forgery. {i\ And in a case of forgery at common law, the in- 
 strument was holden to be bad in form, as it did not state what the in- 
 strument was in respect of which the forgery was committed, nor how 
 the party signing it had authority to sign it.(j ) 
 
 As the object of setting out the instrument, is, that the court maylfitbeina 
 see, and be able to form an opinion whether it be that which it is al- [ orei S n 
 
 , ... , . language 
 
 leged to be, and whether it falls within the act or law on which the prose- there must 
 cution is founded, judgment was arrested upon an indictment for forg-j! e an En £- 
 ing a Prussian treasury note, on the ground that the indictment did not lation. 
 contain any English translation of the note, which was in a foreign lan- 
 guage.^) 
 
 When an indictment charged the prisoner with having in his posses- The whole 
 sion plates upon which there was engraved a promissory note in the inst r ument 
 Polish language, which was set out, and which said note being trans- correctly 
 lated into the English language, is as follows : translated. 
 
 " Cash note of the Kingdom of Poland. 
 " To the bearer of which the Exchange Office will, in compliance 
 with the royal decree of the 15th of April, 1823, pay the sum of five 
 gilders^ ) in the established currency. 
 
 » This note will be received in all the government establishments. 
 " Royal Commissary, " Royal Commissary, 
 
 "Teofil Szymanowski. " L. Plater." 
 
 In the rim and margin of the plate of the note, in the Polish lan- 
 guage, were certain words, which in English denoted "year," " 1824," 
 and "five florins," and none of these words were stated in the transla- 
 tion. The decree of 1823, mentioned in the note, ordered that the notes 
 were to be marked of the year 1824, and directed that the year 1824 
 should be put upon them; and that "five florins" should be put upon 
 them; and the words "year" *" 1824" and "five florins" were part of *375 
 
 (/) Rex v. Burg!ss, a 7 C. & P. 490, Littledale, J. S. P. Rex v. James, 11 7 C. & P. 553, 
 Patteson, J. And in Sanderson's case, 2 Lew. 187, where a count charged the uttering a 
 promissory note for 51., setting it out, Taunton, J., intimated an opinion that the count was 
 good. 
 
 (g) Sanderson's case, 2 Lew. 187, Taunton, J. 
 
 (h) Powell's case, 2 East, P. C. c. 16, s. 53, p. 976. 
 
 (i) Lyon's case, 2 Leach, 597, 608. (/) Rex v. Wilcox, Russ. & Ry. 50. 
 
 (k) Rex v. Goldstein, Russ. & Ry. 473. 
 
 (I) It is "guldens" in the report in 7 C. & P. 424,° and see 7 C. & P. 418, 419, d which 
 seem to show that the word was " guldens," as it was objected that that was not an English 
 word. C. S. G. 
 
 a Eng. Com. Law Reps xxxii. 597. b lb. xxxii. 628. c lb. xxxii. 569. a lb. xxxii. 566. 
 
 Vol. ii.— 25
 
 375 OF FORGERY. [BOOK IV. 
 
 a genuine Polish note, and a note, without these words, would not be 
 received at the government offices. It was objected, t hat this transla- 
 tion was inaccurate and insufficient, and the point was reserved for the 
 consideration of the judges, who expressed no opinion upon it, as they 
 held the conviction right upon another count, but it is said that they 
 were unanimously of opinion that the translation was imperfect.(M-) It 
 is said to have been the opinion of the majority of the judges in the 
 same case, that describing a foreign note wholly in the English lan- 
 guage is not sufficient in an indictment for forgery, notwithstanding the 
 2 & 3 Wm. 4, c. 123, s. 3 M\ but this objection, provided the descrip- 
 tion is in the words of the statute creating the offence, can only be 
 taken advantage of by demurrer, and is cured, after verdict, by the 7 
 Geo. 4, c. 64, s. 21. (m) 
 
 Where an indictment charged the uttering of a bill of exchange, 
 which was as follows : 
 
 "No. 6811. $ Due 7th December. 
 
 " St'. Petersburgh, le 4 Aout, 1834. B. P. £500 stg. A quatre 
 mois de date par cette lettre de change a. l'ordre de nous-memes la 
 somme de cinq cent livres sterling, value en moi-meme, qui passerez 
 suivant l'avi de 
 
 » No. 7800. Streight & Co." 
 
 497. 
 " Messrs. Brown, Dan, Hamming, Dublin. 
 " Payable, Londres." 
 
 And which in English is as follows : 
 
 "No. 6811. $ Due 7th December. 
 
 « St. Petersburgh, the 4th August, 1843. Good for £500 sterling. 
 At four months' date by this bill of exchange, to the order of ourselves, 
 the sum of five hundred pounds sterling, value in myself, which you 
 will pass according to the advice of 
 
 « No. 7800. Stieglitz & Co." 
 
 497. 
 "Messrs. Brown, Dan, Hamming, Dublin. 
 " Payable, London." 
 
 It was objected that this was not a bill of exchange, for that it con- 
 tained no order to pay, and that the word " livres" did not mean 
 pounds; but, upon a case reserved after a verdict of guilty, the convic- 
 tion was held right. (n) 
 
 The recital of the instrument is usually prefaced by the words, " to 
 
 *376 the tenor following, that is to say," &c, or " in the words *and figures 
 
 following," which imports an exact copy. But where the indictment 
 
 (kk) Rex v. Harris; Rex v. Moses; Rex v. Balls,* 7 C. & P. 429, note (a). Rex v. War- 
 shaner, alias Moses, R. & M. C. C. R. 466. 
 
 (II) Rex v. Harris, b 7 C. & P. 429, and note (a). 
 
 (m) Ibid., and R. & M. C. C. R. 466, and see Rex v. Warshaner, ante, p. 373, where the 
 description of the note is given; the objections taken were, that the note ought to be stated 
 to be a note in the foreign language, and then the meaning of it in English ; that it ought 
 to be stated to be for the payment of foreign money, and that the value in English money 
 should be stated, and that the 2 & 3 Wm. 4, c. 123, s. 3, does not extend to such notes. See 
 note (a), 7 C. & P. 431." C. S. G. 
 
 (n) Rex v. Szudurskie, R. & M. C. C. R. 429. 
 
 8 Eng. Com. Law Reps, xxxii. 572. b lb. xxxii. 571. ° lb. xxxii. 572.
 
 CHAP. XXXII. § V.] OF THE INDICTMENT, ETC. 376 
 
 was for forging a certain receipt for money, « as follows," and then set 
 forth the receipt in words and figures, all the judges held that the words, 
 "as follows," were to be taken as the same as, « according to the tenor 
 following," or " in the words and figures following;" and that if -the 
 prosecutor had failed in evidence in proving the receipt verbatim as 
 laid, it would have been a fatal variance. (o)f Therefore, though there 
 be no technical form of words for expressing that the instrument is set 
 forth in words and figures, it is clear that the prosecutor cannot, by 
 varying the terms in which he introduces the instrument, relieve him- 
 self from any accuracy which is otherwise requisite. (p\ 
 
 But in setting forth the tenor of the instrument, a mere literal vari- a literal 
 ance will not vitiate the indictment. Thus where, upon an indictment v » rianc e 
 which charged the prisoner with forging a bill of exchange, and con- vitiate! 
 tained, in the bill set forth, the words " value received," and the bill 
 produced in evidence, though otherwise corresponding with that set forth, 
 was written, « value received," it was holden that the variance was not 
 material as it did not change the word.fa) So where the prisoner was 
 indicted for uttering a bill of exchange, directed to Messrs. Masterman, 
 Peters & Co., with a forged indorsement thereon ; and it was objected 
 that there was a variance in the indictment, which imported to set out 
 the bill according to its tenor inasmuch as the letter r in Messrs. was 
 omitted, and the abbreviation Mess 3 , might stand for words which 
 Messrs. could not; the objection was overruled ; and the judges, upon 
 the point being referred to them, held that the indictment was insuf- 
 ficient, (r) But, if by addition, omission, or alteration, the word is so 
 changed as to become another word, the variance will be fatal. (s) 
 
 In a case where the note charged to be forged set forth the attesta- 
 tion of the witness, and the words " Mary Wallace, her mark :" and it 
 appeared that when the prisoner subscribed the note those parts of it 
 were not written, it was doubted whether the prisoner had not in fact 
 forged a note differing in the tenor of it from that set forth in the in- 
 dictment. But it was holden upon consultation that the indictment 
 was in this respect well proved. (t) 
 
 *It is sufficient (except in the cases which will be presently mentioned) *377 
 
 (o) Powell's case, 2 Black. R. 787. 1 Leach, 77. 2 East, P. C. c. 19, s. 53, p. 976, in 
 ■which last book the learned writer says, that he cannot but question Smith's case, Salk. 
 342, where it is said in the report that where a deed with the mark of I. S. was forged, the 
 indictment need not set out the mark. 
 
 (p) 3 Chit. Crim. L. 1040. 
 
 (q) Hart's case, Worcester Lent Ass. 1776; and before the judges, June 7th, 1776, 1 
 Leach, 145. 2 East, P. C. c. 19, s. 54, p. 977. 
 
 (r) Oldfield's case, cor. Bayley, J., Durham Sum. Ass. 1811, MS. 
 
 (a) Rex v. Bear, Carth. 407. Reg. v. Drake, Salk. 661. 1 Stark. Crim. Plead, p. 255. 
 1 Chit. Crim. L. p. 294. And in Rex v. Beach, Cowp. 229, where it was holden that in an 
 indictment for forgery, a variance in writing the word undertood instead of understood, was 
 not material, Lord Mansfield said, " The true distinction seems to be taken in Reg. v.jDrake, 
 which is this, that where the omission or addition of a letter does not change the word so 
 as to make it another word, the variance is not material." In Reg. v. Robson, 9 C. & P. 
 423, the first count had the words "guard curbs," but the instrument " guards curbs," and 
 the question whether this was a variance was reserved, but not decided by the judges, the 
 conviction being held right on another count. 
 
 (/) Dunn's case, 0. B. 1765. 3 East, P. C. c. 19, s. 53, p. 976. It appears that the Recorder 
 at first entertained the doubt, which was removed on consultation with Perrott, B., and 
 Aston, J. 
 
 f {On trial of an indictment for forging the promissory note of "the purport and effect 
 following, to wit, I promise, &c," the note was proved to be written, " I promised, &c." 
 Held to be an immaterial variance, as the indictment did not profess to set out the note ac- 
 cording to its tenor. 5 Pick. 279, Commonwealth r. Parmenter.}
 
 377 OF FORGERY. [BOOK IV. 
 
 Oflayingitto charge that the defendant forged such an instrument, naming it, and 
 ! ,.' 'l' r A setting forth the tenor ; but the laying it to be a paper writing, &c, 
 writing, purporting to be such an instrument (as the statute on which the indict- 
 purporting ment j g f rame d describes 1 ) is good ; and it is said that in strictness of 
 
 to be such / « / ... . 
 
 an instru- language there may be more propriety in so laying it, considering that 
 mont. <fcc. the purpose f the indictment is to disaffirm the reality of the instru- 
 ment, (m) In a case where the prisoners had been convicted upon an 
 indictment, charging them with publishing " as a true will, a certain 
 false, forged, and conterfeited paper writing, ■purporting to be the last 
 will of Sir A. C, &c; and setting out the tenor of the will, it was ob- 
 jected that it ought to have been laid that they forged a certain will, 
 and not a paper writing, purporting to he the last will, &c, as the 
 words of the statute are « shall forge a will." But, after a variety of 
 precedents being produced, all the judges held it to be good either way. 
 And it was also holden, that as the will was set forth in ho3c verba, and 
 three names appeared as witnesses, it was sufficient, without stating 
 that it purported to be attested by three witnesses. (w) 
 Carter's In a case where the prisoner was indicted for forging, and knowingly 
 
 ^ e - , uttering a bill of exchange, which was described in the indictment to be 
 signature " a certain bill of exchange requiring certain persons by the name and 
 to a bill of description of Messrs. Down, &c, twenty days after date to pay to the 
 was a^or- order of R. Thomson, the sum of 315?. value received, and signed by 
 gery, it was Henry Hutchinson, for T. G., T. and H. Hutchinson, which bill of ex- 
 an indict^* CDan o e so falsely made and counterfeited, is as follows (setting out the 
 ment aver- bill,) &c, with intent to defraud GL Hutchinson, &c. ;" and it appeared 
 ring it to be on ^q evidence that the signature to the bill, "Henry Hutchinson," 
 
 signed by ~ . J 
 
 H? H. in- was a forgery ; it was objected that the indictment averring it to have 
 stead of k ee n signed by him, (and not merely that it purported to have been 
 it purport- signed by him) which was a substantial allegation, was disproved, 
 ed to Lave And the judges were of that opinion, upon the case being referred to 
 ecfby Mm their consideration after the conviction of the prisoner.(w) 
 was bad. if But the setting out the very subject-matter which has been forged, 
 the instru- jjj x j n a j| cages L e sufficient. For if the instrument do not pur- 
 
 mentdonot ' , r 
 
 purport on port, on the face of it, and without reference to some other subject-mat- 
 the face of ^ QY ^ ^ ^ e ^ e tiling prohibited to be forged, the purport and meaning of 
 thing pro- the forgery with relation to such other subject-matter, must be express- 
 hibited to ]y aV erred to be the thing so prohibited. So that where the indictment 
 the purport charged the prisoner with forging a receipt to an assignment of a certain 
 must be ex- gum in a navy bill, and the tenor of the receipt as set forth merely con- 
 averred sisted of the signature of the party, it was holden to be defective ; on 
 the ground that the mere signing of such name, unless connected with 
 the previous matter, did not purport on the face of it to be a receipt, 
 and that it ought to have been averred that such navy bill, &c, toge- 
 ther with such signature, did purport to be, and was a receipt, &c, and 
 *378 that the prisoner feloniously forged the same.(x) *But where a forged 
 
 I'm) 2 East, P. C. c. 19, s. 56, p. 980. 
 
 iy) Rex v. Birch and Martin, 1771. 2 Black. R. 700. 1 Leach, 79. 2 East, P. C. c. 
 19 s. 56, p. 980. There was a third objection also that the indictment only averred " Un- 
 knowing it to be forged, &c," whereas it should have been that " they and each of them, 
 knowing," but it was overruled. The prisoners were executed. 
 
 (w) Carter's case, 1800. 2 East, P. C. c. 19. s. 56. p. 985. 
 
 (x) Hunter's case. O. B. 1794, East. T. 1796. 2 Leach, 624. 2 East, P. C. c. 19, s. 36, 
 p. 928. 929, and s. 53, p. 977. See Rex v. Barton, R. & M. C. C. R. 141, post. Rex v, Mar- 
 tin, R. & M C. C. R. 483, post. 

 
 CHAP. XXXII. § V.] OF THE INDICTMENT, ETC. 378 
 
 receipt, as set forth in the indictment, was in this form, " 18th March, 
 1773, received the contents above by me Stephen Withers," and it ap- 
 peared in evidence that such receipt was forged at the bottom of a cer- 
 tain account; upon objection taken that the account itself should have 
 been set forth in order to make it appear that the receipt, as stated, was 
 a receipt for money, all the judges held that the indictment was suffi- 
 cient, and that the account was only evidence to make out the charge 
 as stated in the indictment. (y\ It is observed upon this case that by 
 the very terms of the writing itself, it purported to be a receipt for 
 something, though not specifically for money, as it was averred to be, 
 in order to bring it within the 2 Geo. 2, c. 25. (2) 
 
 But since the 2 & 3 Wm. 4, c. 123, s. 3, if the instrument be described Where the 
 in the indictment instead of being set out, averments to show what the j n strument 
 instrument is, are not necessary, but it is a matter of evidence whether under the 2 
 the instrument comes within the description given of it by the indictment. & 3 Wm. 3, 
 The prisoner was indicted for forging and uttering "a certain warrant ^ show 1 * 
 for the payment of money, to wit, for the payment of the sum of W. wn:i t the 
 10s.," and there were no prefatory allegations of innuendos. The pri- j° s ^™ ™*?' 
 soner was a chimney sweeper, and had on several occasions been em- necessary. 
 ployed to sweep the funnels of the steam vessel, Princess Victoria, and 
 the course of business was for the prisoner, when he had swept the fun- 
 nels, to bring in his bill to J. Nicholson, the engineer of the vessel, 
 who, upon that, gave him a certificate that the work had been done, 
 and, on his presenting that certificate at the counting-house of Messrs. 
 Lightly and Simmons, he was paid the amount. The prisoner presented 
 the following forged document at their counting-house. 
 
 "Oct. 11, 1839. 
 "This is to satisfy that R. Rodgers has swept the flues and cleaned 
 the bilges, and repaired four bridges of the Princess Victoria." 
 
 " J. Nicholson." 
 "4/. 10s." 
 
 Parke, B., "I think that the written evidence and the parol testi- 
 mony taken together, show that the paper, if genuine, would have 
 authorized the payment of the sum mentioned in it. Under the old 
 law, averments would have been necessary, to show that this was a 
 warrant for the payment of money; but as the law is at present, no 
 such averments are necessary, if the indictment is framed on the 3d 
 section of the statute, 2d & 3d Wm. 4, c. 123. In the present case 
 it appears by the evidence which has been given, that this *(if genuine) *379 
 was a voucher for the payment of this money. If you describe the 
 instrument in the indictment instead of setting it out, averments are, 
 since the 2 & 3 Wm. 4, c. 123, not necessary, as they were before that 
 act; and if the instrument be described under that statute, it is matter 
 
 (//) Testick's case, 1774, 2 East, P. C. c. 19, s. 36, p. 925. 1 East, R. 181, note (a). 
 
 (2) 2 East, P. C. c. 19, s. 53, p. 977. And the learned writer refers to Taylor's case, 1 
 Leach, 215. 2 East, P. C c. 19, s. 47, p. 960, ante, p. 330, where the prisoner was indicted 
 for forging a receipt for 20/. due upon a bill of exchange in these words, " Received, W. 
 Wilson;" and the indictment set forth the bill for 20/., and averred the forging of a receipt 
 for the said sum of 20/., but contained 110 averment that the writing forged, together with 
 the bill, purported to be, or was a receipt ; and he observes that here also the forged writ- 
 ing in itself purported to be a receipt for something.
 
 379 OF FORGERY. [BOOK IV. 
 
 of evidence whether the instrument comes within the description given 
 
 of it by the indictment."(«) 
 
 A hank post bill cannot, in an indictment for forging or uttering, be 
 
 described as a bill of exchange generally, but it may be described as "a 
 
 bank bill of exchange. "(i) 
 Instrument Where the prisoner had been convicted of uttering and publishing 
 yuproperiy as true, a forged promissory note, with intent to defraud one B. H., 
 as a pro- knowing, &c, against the statute, the indictment stated the instrument 
 missory as follows, without any innuendo, explanation, or allegation respecting 
 
 it or its contents, further than denominating and describing it as "a 
 
 promissory note for the payment of money, which is as follows:" 
 
 Newport, Nov. 20,1821. 
 £28 15s. Od. 
 
 Two months after date pay Mr. B n . Hobday, or order, the sum 
 of twenty- eight pounds fifteen shillings, 
 
 Value rec d . 
 
 John Jones. 
 At Messrs. Spoon & Co. ; 
 Bankers, London. 
 
 And an objection having been taken that the instrument so described 
 was not in law a promissory note, the case was submitted to the judges, 
 who held that the instrument was a bill of exchange, and not a promis- 
 sory note.(c) 
 But the But with respect to the word "purport," it should be well observed 
 
 word '.'pur- that, it imports what appears on the face of the instrument, as a want 
 ports what °f attention to this meaning of the word has been fatal to many indict- 
 
 appears on ments. 
 
 the instra- ^ n a case "wh^ 6 the instrument was laid in some counts of the indict- 
 ment, ment to be a paper writing purporting to be a bank-note, it was holden 
 Jones's that as it did not purport on the face of it to be a bank-note, the counts 
 
 could not be supported. ((7) 
 Reading's In another case the bill of exchange upon which the indictment 
 Wlf" the P rocee ded, was in the following form : 
 
 indictment 
 
 charged Bristol, Feb. 21st, 1792. 
 
 defendant Forty days after date pay to Mr. Jeremiah Reading, or order, the 
 being pos- sum f 80^ for value received, and place it to the account of 
 
 sessed of a T t^ 
 
 bill of ex - John White. 
 
 change To JOHN RlNG, Esq. 
 
 ["^ ^ ng Berkley-street, Portman-square, London. 
 
 *380 *And the indictment charged that the prisoner, having such bill in his 
 
 (a) Rep. v. Rogers," 9 C. & P. 41, cor. Parke, B., and Bosanquet, J. See Rex v. Rice, b 6 
 C. & P. 634, post. 
 
 (b) Rex v. Birkett and Brady, Russ. & Ry. 251. The form of the instrument -was, " At 
 seven days sight I promise to pay this my sola bill of exchange," which is properly only a 
 promissory note ; but the 15 Geo. 2, c. 13, mentioning "bank-notes, bank bills of exchange.'' 
 &c. seems to give these bank post bills that denomination of bank bills of exchange, as there 
 are no other bank bills answering that description. In Moor's case. 1 Lewin, 90, Hullock, 
 B.. held that a bank post bill could not be described in an indictment for embezzlement as 
 a bill of exchange. 
 
 (c) Rex v. Hunter, Russ. & Ry. 511. (a") Jone's case, ante, p. 354. 
 
 » Eng. Com. Law Reps, xxviii. 28. b lb. xxv. 570.
 
 CHAP. XXXII. § V.] OF THE INDICTMENT, ETC. 380 
 
 possession, purporting to be signed by one John White, and to be di- rected to 
 reefed to one John King, by the name and description of one John _£-• b 
 Ring, Berkley -street, &c., forged au acceptance in writing purporting to the name 
 be the acceptance of the said John King. The bill, when produced, * ". ti e J n of 
 appeared to be accepted on the back of it by John King ; and it was one John 
 proved that when the prisoner negotiated the bill, he stated that Mr. R in 9> 
 King was a gentleman living in Berkley-street, Portman-square, and a acceptance 
 man of opulence; but in fact there was no person of that name living of the said 
 there. The prisoner having been found guilty, the case was submitted it was hold- 
 to the consideration of the twelve judges, who determined that judg-en to be 
 ment ought to be arrested on the ground that the bill did not in fact J^ ^2 ° 
 purport to be directed to one John King, as stated in the indictment, that liing 
 Buller, J., in delivering the opinion of the judges, said, "It is clear cannot P ur - 
 that where an instrument is to be set forth, the description that it pur- King. 
 ports a particular fact, necessarily means that what is stated as the pur- 
 port of the instrument appears on the face of the instrument itself. On 
 the face of the bill of exchange in the present case (and the face of the 
 bill is the only thing to be considered) nothing more appears, when we 
 examine the averment, than that it is a bill of exchange drawn by 
 John White on John Ring ; therefore, when the indictment says that 
 it was drawn on John King, by the name and description of John Ring, 
 it is absurd and repugnant to itself, for the name and description of one 
 thing cannot purport to be another thing. The drawer of the indict- 
 ment was led into this blunder by not considering what was the origi- 
 nal state of the bill, and what was the appearance of it after the accept- 
 ance was put on it; it seems as if he did not recollect under what 
 terms, or by whom a bill of exchange may be accepted. Though the 
 bill was drawn on John Ring, it might have been accepted by John 
 King, for a bill may be accepted by other persons than those to whom 
 it is directed, as when it is accepted for the honour of the drawer, or of 
 any of the indorsers.'YeH 
 
 In a case which occurred shortly afterwards, the prisoner was in- Gilchrist's 
 dieted for forging "a paper writing purporting to be an order for P a ^?' 
 payment of money, dated 11th September, 1794, with the name of for forging 
 Thomas Exon thereunto described, purporting to have been signed by aDlllof, <jx- 
 Thos. Exon, clerk, and to be directed to George Lord Kinnaird, Win. rected to 
 Moreland, and Thos. Hammersley, of, &c, bankers and partners, by Ransom, 
 the name and description of Messrs. Ransom, Moreland, and -£fawi- and Ham- 
 mers^, for the payment of the sum of 10^., &c.;" the tenor of which mersley, 
 said false writing, &c, is as follows, viz : — Stated that 
 
 such bill 
 
 "Messrs. Ransom, Moreland, and Hammersley, please to pay to Mr. Jjj^ ^ 
 
 Brooks, or bearer, the sum of Ten Pounds, for rected to 
 
 " THOS. EXON." George 
 <-, i -. i -,-^.. ,. Lord Rin- 
 
 " Sept. 11th, 1794." 
 
 (e) Reading's case, 0. B. 1793, Hil. T. 1794. 2 Leach, 590. 2 East, P. C. c. 19, s. 56, p. 
 981. Buller, J., also said, that as the opinion of the judges proceeded merely on the infor- 
 mality of the record, the prisoner might be again indicted for this offence. But no other 
 indictment was preferred ; and after remaining in custody till March, 1794, he received a 
 free pardon, and was discharged. 2 Leach, 593. 
 
 f {Where an indictment alleged that a forged certificate purported to be signed by Bow- 
 ling Starke, and the signature was B. Starke, and the true name was Boiling Starke ; the 
 variance was held to be fatal. 1 Virginia Cases, 109. Commonwealth v. Kearns. See also 
 2 Stark. Ev. 578. [new ed. 33G] (note l).j
 
 *381 OF FORGERY. [BOOK IV. 
 
 naird, *with intent to defraud the said Geo. Ld. K., &c. There was a second 
 Wilham C0U nt, f or uttering it; and other counts, charging an intent to defraud 
 and Tho- other persons. An objection was made in arrest of judgment, that the 
 mas Ham- (l i rec ti n f the bill was improperly described in the indictment ; and 
 
 iiiorslov*by * * * 
 
 the name ten of the judges, who met to consider the case, were unanimously of 
 
 and de- opinion that the judgment should be arrested, on the ground that the 
 
 Ransom, ■ word purport imports what appears on the face of the instrument, the 
 
 Moreland, apparent and not the legal import; and that the bill in question could 
 
 mersley? not purport to be directed to Lord Kinnaird, because his name did not 
 was holden appear upon the face of it. Buller, J., in delivering their opinion, said, 
 
 to be bad, u qjj cageg have given rise to much learning and argument on the words 
 
 on the ~ ... 
 
 principle 'purport' and 'tenor,' and the books are full of distinctions as to the 
 that the meaning of these words, and the necessity of using the one or the other 
 
 word ''pur- • 
 
 ports," of them in indictments where written instruments are to be stated ; but 
 signifies among the many cases upon this subject, I can find no judicial determi- 
 Ippears'on nation that the purport and the tenor should both be stated in any case 
 the face of whatever. Purport means the substance of an instrument, as it appears 
 the mstru- 0Q t k e f ace f it to every eye that reads it : tenor means an exact copy 
 Meaning of of it; and, therefore, where an instrument is stated according to its 
 the words^ i enor ^ the purport of it must necessarily appear. The forms of indict- 
 and"te- ments for forgery have varied, and been different from each other at 
 nor." different periods on time: and of late years they have been much more 
 
 complicated than they were formerly; and, in my opinion, they have 
 been, for that reason, much worse. I have seen the precedent of an 
 indictment for forgery, stating, 'the prisoner to have forged a certain 
 false paper-writing, in the name of J. S. and others, bearing the form 
 of a warrant of attorney, which said writing follows in these words; 
 that is to say, &c.' setting it out verbatim; and if indictments for for- 
 gery were now merely to state that the prisoner < forged a paper-writing 
 to the tenor and effect following,' &c. ; and the instrument set out ap- 
 peared on the face of it to be a bond or bill of exchange, or any other 
 of the instruments described in the statute, I should, as at present ad- 
 vised, see no objection to such a form. If, in the present, the indict- 
 ment had stated that the prisoner had forged a certain paper-writing, 
 in the name of T. Exon,(/j purporting to be a bill of exchange, and 
 then set out the bill to the tenor and effect following, it would, I think, 
 have been quite enough ; for the words ' purporting to be a bill of ex- 
 change,' are only necessary to show that the instrument supposed to be 
 forged is one of the instruments mentioned in the statute ; and, in order 
 to show that it is one of those instruments, it cannot be necessary 
 under the word 'purporting,' to recite all the contents of the instru- 
 ments; for an exact copy of the instrument itself being set forth, all 
 its contents thereby appear; and the law requires an exact copy of the 
 instrument to be inserted in the indictment, in order that the court may 
 see that the instrument is the subject of forgery within the meaning of 
 the statute. The blunder in the present indictment seems to have 
 *382 arisen from the circumstance *of Lord Kinnaird, and Messrs. Mem land 
 and Hammersley, carrying on the banking business under the firm of 
 Messrs. Ransom, Moreland and Hammersley. The pleader who drew 
 it, forgetting that it was wholly immaterial whether such a firm as Ran- 
 
 ( f) But it would not have been good to have averred that the paper-writing teas signed 
 by T. Exon, such signature being a forgery, and the paper, therefore, not in fact so signed. 
 See Carter's case, ante, 377. 

 
 CHAP. XXXII. § V.] OF THE INDICTMENT, ETC. 382 
 
 som, Moreland and Hammersley, ever existed, or who were the persons 
 who constituted that firm, and, conceiving it to be material that the 
 names of the real partners interested in the business should be men- 
 tioned, has taken great pains to show that a bill drawn on < Ransom, 
 Moreland and Hammersley ,' was drawn on ' Lord Kinnaird, Moreland 
 and Hammer slcy ; and, in order to do that, he has averred in the indict- 
 ment that the bill purports to be drawn on < Lord Kinnaird, Moreland 
 and Hammersley.' But the purport of an instrument as I have already 
 observed, is that alone which appears on the face of it; and on the face 
 of this bill, Lord Kinnaird's name does not appear, and, therefore, the 
 averment is not true."(^) 
 
 This doctrine was again acted upon in a case where the indictment Edsall's 
 charged the prisoner with forging a certain paper writing, purporting casei The 
 to be an inland bill of exchange, and to be drawn by one C. W. Wright, trine was 
 bearing date Winchester, 14t/i Nov. 1796, and to be directed to Richard again acted 
 Down, Henry Thornton, John Freer, and John Cornwall the younger, case> 
 bankers, London, by the name and description of Messrs. Down, 
 Thornton & Co., bankers, London, requiring them, ten days after 
 date, to pay to Mr. Wm. Simmons, or order, 81. 10s., &c, and then 
 setting out the tenor, by which the bill appeared, as the fact really 
 was, to be directed, » Messrs. Down, Thornton & Co.," bankers, 
 London. (A) 
 
 In a case which occurred about the same time, the indictment, which Reeves's 
 
 was for forging a scrip receipt, charged that the prisoner forged it "with f as ? - An 
 
 the name C. Olier thereunto subscribed, purporting to have been signed for forging 
 
 by one Christopher Olier;" and it was objected that this must neces- a fcrip re- 
 
 sarily be bad, as C. Olier "did not, on the face of it, purport to be ed " c. lgn " 
 
 Christopher Olier, but might be Charles, &c. ;" but the court thought Olier :" 
 
 that this case differed in some degree from the two cases cited in sup- the priso- 
 
 port of the objection, namely, Jones's case,(i) and Gilchrist's case ; {k\ ner forged 
 
 inasmuch as the note in Jones's case did not purport to be a bank-note, << he -*w n pt 
 
 and, therefore, the indictment, charging that it did so purport, was bad; name C. 
 
 and in Gilchrist's case, as the name of Lord Kinnaird did not appear 01ier ' 
 
 on the face of the bill, it could not purport to be directed to him : but subscribed, 
 
 that, in the present case, the scrip receipt being subscribed with the purporting 
 
 name C. Olier, and the indictment charging that it purported to be beensign- 
 
 signed in the name of Christopher Olier, a cashier of the Bank ofedbyone 
 
 England, it was not, upon the face of it, repugnant to the bill, or in- p^oiier " 
 
 consistent with itself.(A Qu. if this 
 
 *We have already considered the purpose of fraud and deceit, to the d , lffe " from 
 
 the EorccfO- 
 prejudice of another's right, which makes a part of the definition of ing cases? 
 
 forgery. (m) Such purpose or intent to defraud must be stated in the *383 
 
 (g) Gilchrist's case, 0. B. 1795, East. T. 1795. 2 Leach, 657. 2 East, P. C. c. 19, s. 56, p. 
 982. 
 
 (A) Edsall's case, 1798, 2 East, P. C. c. 19, s. 56, p. 984. 2 Leach, 662, note (a). In East, 
 P. C. ibid., it is said that the judges held the indictment bad, upon the authority of Gil- 
 christ's case, though Buller, J., disapproved much of that determination, which, however, 
 he admitted could not be distinguished from the present case. 
 
 (?) Ante, p. 354. (k) Ante, note (g). 
 
 (1) Reeve's case, cor. Heath and Lawrence, J., and Thompson, B., 0. B., 1798, 2 Leach. 
 808, 814. 2 East, P. C. c. 19, s. 56, p. 984. The pointwas saved for the consideration of the 
 twelve judges ; but it does not appear what their opinion was, there being other objections 
 to the conviction of the prisoner, who was afterwards tried and capitally convicted on 
 another indictment ponding for the same offence. 
 
 (m) Ante, p. 1318, 361, et seq.
 
 383 OF FORGERY. [BOOK IV. 
 
 indictment, and pointed at the particular person or persons against 
 
 whom it is meditated. (?*) 
 Of the In stating this intent to defraud, it will be sufficient to describe the 
 
 statement party intended to be defrauded with reasonable certainty, 
 tent to de- Accordingly, where after a conviction a motion was made in arrest of 
 fraud. judgment that the indictment charged the forged order as being drawn 
 Lovell's on Messrs. Drummond and Company, Charing Cross, by the name of 
 indictment Mr. Drummond, Charing Cross,(o\ instead of mentioning the names of 
 which the respective partners, which ought to have been inserted in the place 
 a forged or- °f ^ e SU0I *t description Drummond and Company, all the judges held, 
 der was upon a conference, that the indictment was good. They were of opin- 
 Messra ° * on that, ^ the words, u Messrs. Drummond and Company, Charing 
 Drummond Cross," when taken together, had been so senseless and unintelligible 
 and Com- ag nQ ^ ^ i m p 0r t a certain description of persons, the indictment would 
 
 panybythe iii • i i ■, 1- 1 t 
 
 name of have been bad; but they said that, understanding those words as every 
 Mr. r>. Ac, body else did, namely, as meaning the partners in the partnership of 
 to be "ood • the banking-house, they considered them as a sensible and certain 
 and that it pointing out of the persons intended by the draft, and as conveying 
 necessary w ith legal certainty a notification of the party intended to be defrauded, 
 to state the That it was not necessary in this part of the indictment to describe the 
 names of ^Sirtj meant with more particularity ; for, if any person could be in- 
 tive part- tended from the words, who that person was, and whether he was the 
 ners. meditated object of the fraud, were matters for the consideration of the 
 
 w-Cp) 
 
 *384 It has been holden not to be necessary to state in the indictment the 
 It is not manner iu which the party was to have been defrauded, 
 necessary Thus, where it was objected, on a motion in arrest of judgment, *that 
 ttaindicT ** was no ^ averre d that T. Barrow, whose name appeared to be signed 
 nient the to the forged receipt, meant Taylor Barrow, (with intent to defraud 
 manner m wnom t ne forgery was laid in one of the counts.) that the manner in 
 
 which the . ' . . 
 
 party was which the forged receipt of stock was to operate in prejudice of Mr. 
 
 (n) 2 East, P. C. c. 19, s. 58, p. 988. 
 
 (o) The order was in the following form : — 
 
 " Mr, Drummond, Charing Cross, 25 August, 1782. 
 
 Please to pay the bearer, or order, on demand, £10. 10s., and place it to account, per me. 
 
 H. H. Aston." 
 
 (p) Lovell's case, 0. B. 1782, and 6th November, 1782, 1 Leach, 248. 2 East, P. C. c. 19, s. 
 GO, p. 990. It should be observed that those counts of the indictment which stated the intent 
 to defraud Messrs. Drummond & Co., laid such intent in the concluding parts of the counts 
 to be to defraud Robert Drummond, and the other partners in the house, by name. But that 
 which Gould, J., is reported to have said, (2 East, P. C. ibid.) would seem to lead to the 
 conclusion that it is not necessary to specify the names of the partners in any part of the 
 count : viz., " That to require the particularising of all the partners would be of dangerous 
 consequence to such prosecutions; some of them might not be known." A learned writer, 
 (after stating that there are always several counts in the indictment, charging an intent to 
 defraud all such persons, or bodies corporate, as could be affected by the success of the for- 
 gery,) suggests that, as the intention to commit a fraud at the time of the forgery is usually 
 general, and intended to impose rather upon the person to whom the forged instrument may 
 be accidentally offered, (particularly in the case of bank-notes, and negotiable instruments.) 
 it would be desirable to pass an act rendering it unnecessary to state the name of any per- 
 son or corporation, intended to be defrauded; 6 Ev. Col. Stat. Pt. V. CI. xii., p. 581, 582. 
 With respect to the statement iu that part of the indictment which came in question in Lov- 
 ell's case, it appears to have been the opinion of Buller, J., and the other judges, that if the 
 words " Messrs. Drummond and Company, Charing Cross" had been omitted, and the indict- 
 ment had only stated, according to the fact, that the bill was directed to "Mr. Drummond, 
 Charing Cross," ante, note (o), it would have been sufficient. 2 East, P. C. c. 19, s. 60, p. 991. 
 And see now 7 Geo. 4, c. 64, s. 14, and the 1 "Win. 4, c. 66. s. 28. post. p. 210, as to the de- 
 scription of partners. *
 
 CHAP. XXXII. § V.] OF THE INDICTMENT, ETC. 384 
 
 Barrow ouoht to have been averred in the indictment, by a statement* bave 
 of Taylor Barrow being a proprietor of so much stock, and being per- f rau( i C( j. 
 sonated by the prisoner, who transferred it, &c. ; and that it was not 
 sufficient merely to state that the forgery was committed with intent to 
 defraud T. B. generally; the judges held that it was sufficient if the 
 offence was described in the words of the act ; and that, whether it were 
 or were not meant to defraud Taylor Barrow, was matter of evidence, 
 which the jury had found. (q) 
 
 And in another case, where Buller, J., upon a conference with the It need not 
 rest of the iudges, stated, as an objection to an indictment, that it was b , e ave r red 
 
 J a ' . ' J tit i that a forg- 
 
 not alleged that the bill was uttered or tendered to the persons, whom e d bill of 
 it was laid the prisoner meant to defraud ; and, therefore, that it did exchange 
 not appear to the court, on the face of the indictment, that those per- deredtothe 
 sons could be defrauded by the transaction, which always appeared P art 7 in - 
 where the name of drawer, acceptor, or indorser, was forged; all the bTdefraud- 
 other iudses held that the indictment was srood in this respect, as it was ed nor in 
 sufficient to pursue the words of the act, which constitute the offence ; ° .? r 
 
 r . . , manner the 
 
 and it was matter of evidence, whether the prisoner intended to defraud party could 
 the persons named by tendering the bill in payment to them, or how b( j defraud - 
 otherwise.(r) 
 
 The following case relates to the property of the party against whom As to the 
 the intent to defraud is aimed, in the moneys, &c, sought to be obtained ^g^rf ° f 
 by the forgery, f intended to 
 
 Two prisoners, Mary Jones and Henry Palmer, were indicted for the b< j defraud - 
 forgery of an indenture of appenticeship, and also of a receipt for moneys> 
 money with intent to defraud A. B., C. D., &c, the stewards of the &c -> sought 
 feast of the sons of the clergy. It appeared that the charitable fund of tained- " 
 the sons of the clergy was raised by voluntary contributions, and allotted Joneg and 
 by the secretary equally among all the stewards, to be disposed of by Palmer's 
 them to the widows and children of deceased clergymen, according to case * 
 their discretion ; that the prisoner Jones was a clergyman's widow, and 
 that, pretending, by means of the indentures in question, and the re- 
 ceipt indorsed thereon, that she had placed her son as an apprentice, 
 she obtained, in concert with the other prisoner, an order from one of 
 the stewards, on the treasurer of the society, for 201., as an apprentice- 
 fee. The prisoners, having been found guilty, it was submitted that the 
 offence amounted only to a misdemeanor at common law, and that this 
 was not such a species of property as fell within any of the acts relating 
 to forgery. But Eyre, B., said, that the several stewards were the ab- 
 solute owners of their respective shares *of the fund : that it was their *385 
 money, put into their hands upon a trust ; and if they had sunk it im- 
 properly, or paid it wrongfully, they would perhaps be answerable ; and 
 that unquestionably it was their money, as against all the world, except 
 the subscribers. (s\ 
 
 (g) Powell's case, 1771, 2 East, P. C. c. 19, s. 59, p. 989. 1 Leach, 77. In East, a further 
 ground for the opinion of the judges is thus stated: "Besides there was a second count, 
 wherein the offence was laid with intent to defraud one Sykes. If, therefore, there were no 
 such person as Taylor Barrow, or if he had no stock ; yet, as the receipt had in form the 
 constituent parts of a receipt for the transfer of East India stock, that was sufficient." 
 
 (r) Elsworth's case, 1780, 2 East, P. C. c. 19, s. 59, p. 989, and s. 58, p. 98G. 
 
 (s) Rex v. Jones and Palmer, cor. Eyre, B., 0. B. 1785. 1 Leach, 366. 2 East, P. 0. c. 19, 
 s. 60, p. 991. 
 
 f [An indictment for forging a deed, need not set forth the interest of the person alleged 
 to be defrauded in the land conveyed ; it is sufficient if it appear that by possibility the party 
 may be defrauded. West v. The Stale, 2 New Jersey, 212.]
 
 385 OF FORGERY. [BOOK IV. 
 
 Where the "Where there is an incorporation, the money becomes the property of 
 
 frauded arc tne whole body, and not of the individual members who compose it. 
 
 a corpora- And the 31 Geo. 2, c. 22, s. 78, and 18 Geo. 3, c. 18, (now repealed,) 
 
 tIon " were passed to obviate the objection that the word " person" in the 
 
 2 Geo. 2, c. 55, and 7 Geo. 2, c. 22, (relating to the forgery of deeds, 
 
 wills, bonds, bills, &c ; ) did not extend to the aggregate members of a 
 
 corporation.^) 
 
 Statement The 7 Geo. 4, c. 64, s. 14, in order to remove the difficulty of stating 
 
 of partners, ^ e names f a n ^he owners of property in the case of partners and other 
 
 trustees 
 
 &c, joint owners, enacts, " that in any indictment or information for any 
 
 felony or misdemeanor, wherein it shall be requisite to state the owner- 
 ship of any property whatsoever, whether real or personal, which shall 
 belong to or be in the possession of more than one person, whether such 
 persons be partners in trade, joint-tenants, parceners, or tenants in com- 
 mon, it shall be sufficient to name one of such persons, and to state 
 such property to belong to the person so named, and another or others, 
 as the case may be ; and whenever, in any indictment or information 
 for any felony or misdemeanor, it shall be necessary to mention for any 
 purpose whatsoever, any partners, joint-tenants, parceners, or tenants 
 in common, it shall be sufficient to describe them in the manner afore- 
 said; and this provision shall be construed to extend to all joint-stock 
 companies and trustees. "(w) 
 
 Where the prisoner was indicted for forging a receipt for county rate ; 
 which had been paid out of the poor rate of a parish, it was held that a 
 count laying the intent to be to defraud one of the parishioners, by name, 
 "and others," was good.(r) 
 Joint stock We have seen that certain provisions are made as to the mode of 
 banks. framing indictments in cases of certain stock banks by the 7 Geo. 4, 
 c. 46, he) and that it is not imperative upon the banking companies 
 formed under the act to prosecute in the name of one of their public 
 officers, (x) 
 
 Where one count of an indictment alleged the intent to be to defraud 
 "Robert Bell and others," who were shareholders in a joint-stock' bank, 
 in which the prisoner was also a shareholder; Patteson, J., was inclined 
 to think that it would not be safe to convict upon that count. («) The 
 1 & 2 Vict. c. 96, seems, however, to do away with any doubt in such 
 a case during its continuance in force, (y) 
 "Where the If the indictment proceeds upon a statute, the charge must, in gen- 
 indictment eral^ h e set forth (according to the established rule applicable as well to 
 statute the other cases as to forgery) in the very words of the statute describing the 
 offence offence, (z) 
 
 described -^ u ^ an indictment for forging a stamp on foreign muslins, which 
 as in the *stated the duty to be chargeable for, on, and in respect of, foreign 
 words of mus ]i n was holden good; though the words of the statute in the clause 
 
 the statute ^ 
 
 *386 imposing the duty were,yb>-, and upon; in other clauses,/or; in others, 
 on; and in others, upon.faa) 
 
 (t) Harrison's case, 1777, 1 Leach, 180. 2 East, P. C. c. 19, s. 59, p. 98S. The statutes 
 referred to are repealed by the 1 Wrn. 4, c. 66, s. 31. 
 
 (u) See the 1 Wm. 4, c. 66, s. 28, post, p. 410. 
 
 M Reg. v. Vaughan, a 8 C. & P. 276, Gurney, B. 
 
 (w) Ante, p. 103. (x) Ante, p. 104. (a) Reg. v. Cooke* 8 C. & P. 586. 
 
 (v) Ante, p. 105. (z) 2 East, P. C. c. 19, s. 58, p. 985. 
 
 (aa) Rex v. Hall and Crutchfield, 1795. 2 East, P. C. c. 19, s. 19. p. 895. and s. 58. p. 988, 
 post, Chap. Of Forging, §c, Stamps; and an indictment at common law was holden bad 
 a Eng. Com. Law Reps, xxxiv. 390. b Ib. xxxiv. 538.
 
 CHAP. XXXII. § V.] OF THE INDICTMENT, ETC. 386 
 
 It is said that a superfluous description does not appear to be objec- As t0 a 
 tionable.(i) And a case is cited where upon an indictment on the 2 descrip"° US 
 Geo. 2, c. 25, (now repealed) for forging "a bond and writing obliga- tion. 
 tory," it was objected that, as the statute uses the term bond as well as 
 the term writing obligatory, the indictment ought to have described the 
 offence more particularly, either as a forgery of the one or the other ; 
 that it should have described the instrument in this case as a writing 
 obligatory, as it had neither a defeasance nor penalty annexed to it ; and 
 that although a bond were a writing obligatory, yet the converse did 
 not hold ; but by the opinion of the judges the indictment was holden 
 good.(c) With respect to the inference from this case, that a super- 
 fluous description does not appear to be objectionable, a learned writer 
 says that he is by no means satisfied that the term bond is not properly 
 applicable to an obligation without a condition although for the sake 
 of distinction, it is more usually called a single bill. (cZ) 
 
 Where an indictment charged the prisoner with having forged "a Warrant 
 certain warrant and order for the payment of money," which was as f"/ t i? rder 
 
 follows : ment of 
 
 money. 
 
 "Worcester Old Bank, 
 
 " Handbury Hall, Nov. 28, 1828. 
 " Messrs. Berwick, Wall, Isaac, and Lechmere, pay to Mr. John 
 Perkins or bearer, twenty-five pounds ten shillings. 
 " £25 10.s. 0(7. 
 
 "John Phillips." 
 
 It was held that the indictment was good, for the instrument was both 
 a warrant and order; a warrant, authorizing the banker to pay, and an 
 order upon him to do so.(e) 
 
 The insertion of superfluous words, which are not contained in the The inser- 
 1 Wm. 4, c. 66, does not vitiate the indictment. The first count charged tl ° n a of su ~ 
 
 ; . ; " . pernuous 
 
 that the prisoner did " falsely make, forge, and counterfeit, and did words does 
 cause and procure to be falsely made, forged, and counterfeited, and did nofc yi^ate 
 willingly act and assist in the false making, forging, and counterfeit- men t. 
 ing," a certain bill of exchange, &c. The second count charged that the 
 prisoner did " utter and publish as true," &c. The third that he did 
 "offer, dispose of and put away," <fcc. It was objected, that the in- 
 dictment ought not to contain the words " counterfeit and act and 
 assist in the false making," &c, as those words were not in the 1 Wm. 
 4, c. 66, though they were in the former forgery acts : and the same 
 objection applied to the second and *third counts, as that statute does *387 
 not contain either of the phrases " publish as true," or "put away." Park, 
 J. A. J., " I am of opinion that this indictment is good. The first count 
 charges the prisoner with forging, the second with uttering, and the 
 third with offering and disposing of, which is correct ; and that is not 
 
 for uncertainty, which stated that the defendant forged, or caused to be forged, a bill of 
 lading, Rex v. Stocker, 5 Mod. 137. 1 Salk. 342, 371 ; and see Walcot's case, Holt's R. 345. 
 
 (b) 2 East, P. C. c. 19, s. 58, p. 985. 
 
 (c) Dunnett's case, 0. B. 1792, East. T. 1793. 2 East, P. C. c. 19, s. 58, p. 985. 
 
 (d) 6 Ev. Col. Stat. Pt. V., CI. xii., p. 581. And he refers to 2 Phi. Com. 340. 
 
 (e) Rex v. Crowther, a 5 C. & P. 316, MS. C. S. G. Bosanquet, J. And see Reg. v. Gilchrist, 1 ' 
 1 Carr. k Marsh, 224, post. 
 
 a Eng. Com. Law Reps. xxiv. 357. b Ib. xli. 120.
 
 387 OF FORGERY. [BOOK IY. 
 
 rendered bad by a great deal more being stated, which is not applica- 
 ble to the enactment now in force. "(/) 
 Sewing Sewing to the parchment, on which the indictment is written, im- 
 
 fac similes passions f forced notes taken from engraved plates, is not a sufficient 
 
 of notes on r r> -i . , . ,. o 
 
 an indict- setting out of the notes in the indictment, borne counts of an mdiet- 
 
 ment. ment for having in possession plates, on which were engraved foreign 
 
 promissory notes, had not the fac similes of the notes engrossed on the 
 
 parchment, but fac similes of the forged notes on blue paper such as 
 
 either were, or resembled copies of the forged notes, were sewed with 
 
 thread to the parchment on which the indictment was engrossed ;(</) and 
 
 upon a case reserved all the counts, in which the fac similes of the 
 
 notes were not engraved, were held bad. (A) 
 
 A foreign An indictment for uttering a foreign promissory note need not alledge 
 
 note need j^. ^ De p a y aD l e ou t of England. An indictment under the 1 Wm. 4, 
 
 leged to be c - 66, s. 30, charged the prisoner with uttering the following note : — 
 
 payable 
 abroad. 
 
 « No. 10101. 
 " The North River Bank will pay to C Trinder or bearer the sum of 
 twenty dollars on demand. 
 
 « A. B. Kays, Cashr. " L. Kip, Prest." 
 
 The note had been originally a genuine two dollar note issued by the 
 North River Bank of New York, and the forgery consisted in " twenty" 
 being substituted for " two," and the figures 20 for 2. It was contended 
 that as the note was a foreign note, the indictment ought to have stated 
 that the note was payable out of England ; it was answered that the 
 offence of uttering forged foreign notes in England being put by the 
 statute exactly on the same footing as the utterance of forged English 
 notes, there was no distinction between them, and therefore no averment 
 was necessary as to the place where the note was payable ; and Cole- 
 ridge, J., overruled the objection. (i) 
 *388 *Where a prisoner is tried under the 1 Wm. 4, c. 66, s. 24,(&) for 
 Where a forgery in the county where he is in custody, the forgery may be al- 
 trieT huhe ^ e E e & to have been committed in that county, and there need not be an 
 county averment that the prisoner is in custody there. The indictment con- 
 where he is Gained several counts in the usual form for forp-iner and uttering a pro- 
 
 in custody, /? i_ • 
 
 that fact missory note, but there was no evidence of anything done by the pri- 
 
 (/) Rex v. Brewer, 8 6 C. & P. 363. 
 
 (g) The statement in 7 C. & P. 423, b is that "the note was set out in the Polish language, 
 by sewing an impression of the plate to the parchment on which the indictment was 
 written." 
 
 (A) Rex v. Warshaner, R. & M. C. C. R. 466. S. C. 7 C. & P. 423, and 429. In note (b), 
 ibid., p. 430, it is said that "a considerable majority of the judges were of opinion that the 
 sewing the papers to the indictment was of itself sufficient to vitiate those counts, but some 
 did not seem so clearly of that opinion ; and as the special counts were bad upon the other 
 grounds, (see ante, p. 374,) it was not necessary to come to a decision as to the papers being 
 sewed to the indictment." As every indictment, being a record, must be upon parchment, 
 Co. Litt. 260, a, it is difficult to see how an indictment, part of which is on paper, can be 
 good. C. S. G. 
 
 (i) Reg. v. Lee, 2 Moo. & Rob. 281. (k) Post, p. 440. 
 
 "Eng. Com. Law Reps. xxv. 438. Mb. xxxii. 568.
 
 CHAP. XXXII. § V.] OP THE INDICTMENT, ETC. 388 
 
 sonor in the county of the city of Gloucester, in which the indictment need not be 
 was preferred; but the prisoner was in custody in the city of Glouces- alleged ' 
 ter at the time the bill was found, and at the time of the trial; it was 
 contended that there ought to have been an averment in the indictment 
 that the prisoner was in custody in the city. Patteson, J., in Rex v. 
 Fraser,(£) the averment was held necessary, "However in that case the 
 indictment stated the bigamy to be out of the jurisdiction, and there it 
 was necessary to have the averment; but by the 1 Wm. 4, c. 66, s. 24, 
 the offences may be laid in the county where it did not arise. I think, 
 therefore, that proving the party in custody here is sufficient.'Vm) 
 
 An indictment on the 2 Geo. 2, c. 25, (now repealed) which charged The word 
 that the prisoner "did feloniously alter and cause to be altered a certain " al * er " 
 bill of exchange, falsely making, forging, and adding, a cypher to indict- 
 the letter and figure £8 &c," was holden good, though the words of the ment > 
 statute are, "if any person shall falsely make, forge, or counterfeit," i n thl sta- 
 and the word alter is not used in the statute. (n) tute. 
 
 In this case the judges held that there was no difference in substance If any part 
 or in the nature of the charge, whether the indictment were for feloni- ? f a true 
 ously altering, by falsely making and forging, or for feloniously making be altered, 
 and forging by falsely altering, &c. (o) We have already seen that if a for gery 
 any part of a true instrument be altered the offence may be treated as whole in- 
 a forgery of the whole instrument, and be so laid in the indictment. (p) strument 
 But it appears to have been more usual to lay forgeries of this kind by ™ a &ehi- 
 stating the particular alteration, at least in one count. (q) dictment. 
 
 An indictmeut for uttering a forged acceptance must expressly state An indict- 
 that the prisoner uttered the acceptance. The fourth count of an in- m i ? nt . for 
 
 v niii i • ' • i • • • uttering a 
 
 dictment alleged that the prisoner having in his possession a certain forged ac- 
 bill of exchange, which was set out, with a certain forged acceptance on ee P tance 
 the said bill, which was also set out, afterwards did utter, &c, (then and the utter- 
 there knowing the said acceptance to be forged) the said bill of exchange in S of tne 
 with intent, &c. It was objected, that the count was bad for not aver- an"^ " 
 ring that the prisoner uttered the forged acceptance; and, upon a case 
 reserved, the judges upon full and mature consideration, held that the 
 count was bad, as it was possible the acceptance might have been taken 
 off the bill before the prisoner uttered it. (qq) 
 
 In a case where the prisoner was indicted for uttering a forged will, Plea of 
 on his arraignment he pleaded autrefois acquit; upon which *the plea autre f 018 
 was taken ore tenus, and recorded by the clerk of the arraigns, who *389 
 replied to it on the part of the crown, nul iiel record. In order to 
 prove the plea, the record of a former acquittal of the prisoner was 
 produced; but, on comparing it with the present indictment, it ap- 
 peared that the prisoner had been acquitted of uttering a forged 
 will, beginning, "7, James Gibson, do hereby," &c, but that he 
 was now indicted for uttering a forged will, beginning "James Gibson 
 
 (I) R. & M. C. C. R. 407, ante, vol. 1, p. 189. 
 
 (to) Rex v. James," 7 C. & P. 553. See the section, post, p. 410. 
 
 (n) Elsworth's case, York Lent Ass. 1780, and before all the judges, 12th April, 1780, 2 
 East, P. C. c. 19, s. 58, p. 980, 988. 
 
 (o) Id. ibid. (p) Ante, p. 319, et seq. 
 
 (q) 2 East, P. C. c. 19, s. 55, p. 980. 
 
 (qq) Rex v. IIorwell, b R. & M. C. C. R. 405. S. C. 6 C. & P. 148, and MSS. C. S. G. The 
 ground of the decision was stated as in the text by Patteson, J., in delivering the opinion 
 of the judges at Stafford Lent Assizes, 1834, MSS. O. S. G. 
 
 a Eng. Com. Law Reps, xxxii. G28. b lb. xxv. 325.
 
 389 OF FORGERY. [BOOK IV. 
 
 do hereby," &c. The question, therefore, was, whether this record was 
 legal evidence of the prisoner having been acquitted of the same offence? 
 And, after argument by the prisoner's counsel, the court rejected the 
 proof as insufficient; the prisoner pleaded the general issue to the 
 felony, and the jury found him guilty of the offence. (r) 
 Trial of The offence of forgery at common law cannot be tried at the quarter 
 
 forgery, sessions, that court having no jurisdiction over it ; nor can they take 
 
 Ine quar- _ . , . , 
 
 ter sessions cognizance of it as a cheat. (s) And it has been holden in several cases 
 have no ju- t |j at t k e q uar t er sessions have no jurisdiction in cases of forgery upon 
 the 5 Eliz. c. 14. (t\ Lord Kenyon, C. J., in speaking of the general 
 jurisdiction of the quarter sessions, after deciding that the offence of 
 soliciting a servant to steal his master's goods is cognizable by that ju- 
 risdiction, as falling within that class of offences, which being violations 
 of the law of the land, have a tendency, as it is said, to a breach of the 
 peace; proceeded thus: — "To this general rule there are indeed two 
 exceptions, namely, forgery and perjury; why excepted I know not; 
 but having been expressly so adjudged, I will not break through the 
 rules of law."(tt) 
 Trial where The trial of forgery must formerly have been in the county where the 
 the offence offence was committed, as the indictment could only be preferred in that 
 ted ™™ 1 " county. And as it seldom happened that direct proof could be given 
 prisoner of the very act of forgery, difficulties sometimes occurred in cases where 
 appre- ^ ere had been no offence of uttering by the prisoner, as to what was 
 in custody, sufficient evidence of the fact of forging within the county laid. 
 
 But these difficulties seem now to be obviated by the 1 Win. 4, c. 66, 
 
 s. 24, which makes the offender triable "in any county or place in which 
 
 he shall be apprehended or be in custody."(a;) 
 
 *390 Two prisoners were indicted, the one, Parkes, for forging, the other, 
 
 Parkes Brown, for uttering a forged promissory note for five guineas. It ap- 
 
 Brown's peered clearly that Parkes had forged the note; but the only evidence 
 
 case. The offered to show that the forgery was committed in Middlesex, where the 
 
 bare fact Yenue was i a i<j was t na t Brown, between whom *and Parkes there was 
 
 of a forged .. ' . ••■»«■• i n i i c t> i 
 
 note being a great intimacy, had uttered it in Middlesex, in the absence ot .rarkes, 
 uttered m a w h was no ^ p r0 ved to have been cognizant of the fact, and that above 
 county by forty of the same sort of five guinea notes in blank, without any sig- 
 one pri- nature, were found upon Parkes, in the same county, together with a 
 evHence n o f rece ip t '> under cover, addressed to Brown, for 21?., for four five guinea 
 the forgery bills. All the notes found upon Parkes, as well as that upon which 
 having ^ e lllc ji c tnient proceeded, were dated « Ringhton, Salop." Both the 
 mitted in prisoners having been convicted, the case was referred to the considera- 
 
 (r) Coogan's case, 0. B. 1787, 1 Leach, 448. So in Reading's case, ante, p. 380, note («), 
 Buller, J., said that the judgment being arrested for the informality of the record, the pri- 
 soner might be again indicted for the offence. And in Gilchrist's case, ante, p. 380, as the 
 objection taken went only to the form of the indictment, and to the merits of the case, the 
 prisoner was remanded to prison till the end of the sessions that the prosecutor might be at 
 liberty to prefer a better indictment against him if he thought fit. In the above case of 
 Coogan, the prisoner's counsel chiefly relied upon Lord Hale's construction of Vaux's case, 
 (2 Hale, 246,) as reported by Lord Coke, 4 Co. 44. 3 Inst. 214. 
 
 («) Yarrington's case, 1 Salk. 406. Rex v. Gibbs, 1 East. R. 173. 2 East, P. C. c. 19, s. 
 7, p. 864. 2 Hawk. P. C. c. 8, s. 64. 
 
 (/) Smith's case, Cro. Eliz. 87. Wilson's case, Id. 601. Hunt's case, Id. 697. 
 
 (u) Rex v. Higgins, 2 East, R. 18. If, therefore, an indictment for forgery be found at the 
 Sessions, and transmitted to the Assizes, the judge will order it to be quashed. Reg. v. 
 Rigby," 8 C. & P. 770. Erskine, J. 
 
 (z) See the section, post, p. 410. 
 
 a Eng. Com. Law Reps, xxxviii. 629.
 
 CHAP. XXXII. § V.] OF THE TRIAL, COUNTY, ETC. 3D0 
 
 tion of the twelve judges. Some of the judges were of opinion, that tnat county 
 the fact of finding the forged instrument in the county, in which also it p fj g™* r et 
 appeared that the forger himself was, was evidence, in the absence of though an 
 other proof, of the fact of the forgery having been there committed. a <; c "o m phc<: 
 But the majority of them, though they agreed that it was a question ofutterer. 
 evidence for the jury, were of opinion that there was no proof to war- 
 rant the conclusion that the forgery was committed by Parks in Middle- 
 sex, where it was laid : for they thought that the bare fact of the note 
 being uttered in Middlesex by the other prisoner, taking him even to 
 be an accomplice, was no evidence of the forgery itself having been 
 committed in that county, (y) 
 
 In a more recent case it is reported, as the opinion of a majority of Crocker's 
 the judges, that the finding a forged instrument in the custody of a per- cas ®; Tll< 
 son is no evidence that it was forged in the county where it was found. no te in the 
 The prisoner was indicted at Salisbury, in the county of Wilts, for the custody of 
 forgery of the note in question. It appeared that the prisoner had nJt e ey°_ n 
 formerly lived at Winsham, in the county of Somerset, where he fol- dence that 
 lowed the employment of a farmer for many years. About the month ecUrfthe^ 
 of June, 1804, he quitted his farm, and all his concerns at Winsham; county 
 at which place one William Tucker, in whose name the forged note pur- where Jt 
 
 it • i -t 11 • ip- i • was found : 
 
 ported to be signed, resided, and also carried on the farming business especially 
 there at the time of the trial. In November, 1804, the prisoner, having in a case 
 changed his name from Crocker to Collins, went with his wife to Salis- thecircum- 
 bury, where he took lodgings, and continued to live until about the stances 
 middle of the month of May, 1805, when he left his wife at her apart- rr esump- 
 ments in Salisbury, and went to London. During his stay in London, tion that it 
 he was apprehended there on another charge : in consequence of which ^another 
 his lodgings at Salisbury were searched in the presence of his wife : he county. 
 being still in London ; and in a bureau belonging to the prisoner was 
 found a pocket-book, in the inside of which was written his name, B. 
 Crocker, in his own hand- writing; and in one of the pockets of this 
 pocket-book was found the note, set forth in the indictment, which was 
 dated on the 7th March, 1803, and on which was an indorsement that 
 a year's interest had been paid. It was objected upon this evidence, 
 that there was nothing to show that any offence had been committed in 
 the county of Wilts, the prisoner not having been in that county, but 
 in Somersetshire at the time when the note appeared to bear date ; and 
 the point was submitted to the consideration of the judges. No opinion 
 of the judges upon this case was ever publicly delivered ; but the pri- 
 soner received a pardon, and was discharged ; and it was said to have 
 been understood, *that a majority of the judges thought there was *391 
 not sufficient evidence that the offence was committed in the county of 
 Wilts. (*)f 
 
 (y) Rex v. Parkes and Brown, 1796. 2 Leach, 775. 2 East, P. C. c. 10, 8. 40, p. 963, 
 and s. 61, p. 992. Although these cases may, perhaps, no longer be material, 1 have thought 
 it safer to let them remain, as they may possibly be found useful. C. S. G. 
 
 (z) Crocker's ease, 1805. 2 Leach, 087. 2 New Rep. 87. But qu. if the only point actu- 
 ally decided by the judges in this case was not "that an incompetent witness had been ad- 
 mitted?" 
 
 f {In Commonwealth v. Parmenter, 5 Pick. 279, it was decided that the fact of forging a 
 note within a county cannot be inferred merely from its having been there uttered. In Uni- 
 ted States v. Britton, 2 Mason, 464, where a check was drawn in Philadelphia on Boston, 
 in favour of the prisoner, who was then in Philadelphia, and who produced in Boston the 
 check altered ; it was held, in the absence of all evidence that it was altered elsewhere, to 
 
 Vol. il— 26
 
 :>01 OF FORGERY. [BOOK IV. 
 
 It was observed by tbe counsel who argued the last mentioned case, 
 that in Elliott's case(a\ the forged instrument was found upon the pri- 
 soner in Kent, where the indictment was laid ; but that no evidence was 
 given to prove the actual fabrication of the instrument in that county ; 
 and, on the contrary, the circumstances of the case afforded some infer- 
 ence that the forgery was not committed there. It appeared, that one 
 Ryland, having struck off a quantity of notes, delivered them, together 
 with the plates, to the prisoner, at a public house in Fleet Ditch. The 
 note in question was found upon the prisoner at Dover, and the plate at 
 a lodging upon Tower-hill; yet the objection that the evidence did not 
 afford proof of the offence being committed in Kent, was either over- 
 looked or thought of no weight. (b) 
 offence? Where an indictment stated the forgery to have been committed in 
 
 mThe * ne count y °f Nottingham, and it was proved to have been committed 
 county of a in the county of the town of Nottingham, it was holden that, although 
 town. under the 38 Geo. 3, c. 52, it was triable in the county at large, the 
 
 offence should have been laid in the county of the town.(c) 
 
 In a later case where the prisoner had been convicted at the assizes 
 for the borough of Leicester, of forging a bill of exchange, a question 
 was raised whether the evidence of forgery in Leicester was sufficient 
 to sustain the verdict. The bill was dated at Leicester, June 1st, 1827, 
 and purported to be drawn and indorsed by E. Addison, to his own 
 order, on W. Rawson for 401. at two months after date, and to be in- 
 dorsed by Addison. Addison and Rawson both lived at Leicester, and 
 Addison kept cash with Clarke and Co., at that place. The bill was taken 
 on the 5th June by one Porter to the bank of Clark and Co., with a 
 request that they would discount it ; but, the forgery being discovered, 
 Porter was detained, and tried, and convicted at the same assizes for 
 uttering the bill. It was proved that the whole of the bill — the date, 
 body, signature, and indorsement were in the handwriting of the pri- 
 soner. It was proved by one witness, that the father of the prisoner 
 lived in Leicester, and that he believed the prisoner lived with him, 
 having seen him there. Another witness proved that he saw the pri- 
 soner and Porter walking and talking together in a street in Leicester, 
 *392 about a week before the 5th of June. * Another witness proved that 
 she saw them pass her house together in another street in Leicester, in 
 the course of a fortnight before the 5th of June. And it was proved 
 by another witness that he saw them walking and talking together in 
 another street in Leicester, a very short time before the same 5th of 
 
 I a) Ante, p. 348. 
 
 { b) In 'J Ev. Col. Stat. Pt. V. CI. xii., the learned writer says: '-'I remember a case at 
 Lancaster, in the year 1798, where a clerk of a mercantile house at Liverpool had stolen 
 several bills, and was afterwards apprehended on board a sloop in the Downs, with a forged 
 indorsement of the drawee on one of the bills; and Rooke, J., without any evidence to show 
 a greater probability of the forgery being committed in Lancashire than in any intermediate 
 county, thought there was enough to go to the jury, who, however, acquitted the prisoner." 
 There certainly does not appear in this statement anything which could have warranted the 
 jury in coming to a different conclusion. 
 
 (c) Rex v. Mellor and another, Russ. & Ry. 144. Where the indictment is preferred in the 
 next adjoining county, under the statute of the 38 Geo. 3, for an offence in an inferior 
 county, though the indictment must state the offence to have been committed in the inferior 
 county, it need not aver that the county in which the indictment is preferred is the next 
 adjoining county. But it mav be stated in the caption, when the record is regularly drawn 
 up. Rex v. Goff. Russ. & Ry. 179. 
 
 be prima facie evidence that it was altered in Massachusetts, where it was first known that 
 it was altered.}
 
 CHAP. XXXII. § V.] OP TIIE EVIDENCE. 392 
 
 June. But none of the witnesses could fix the precise day to which 
 they spoke. Lord Tenterden doubted whether there was such evidence 
 of the forgery in Leicester as would justify him in leaving that point to 
 the jury ; but he left it to them, and the prisoner being found guilty, 
 his lordship respited the judgment, in order that the point might be sub- 
 mitted to the consideration of the judges, who held the conviction right.(<i) 
 
 The evidence in forgery must support the material facts stated in the Of the evi- 
 indictment : and it is essentially necessary, that the proof should tally dence - 
 with the averment of the intent to defraud. (e) And we have seen, that 
 the manner in which the fraud was carried or intended to be carried 
 into effect is peculiarly matter of evidence. (/) 
 
 In respect of the persons who might formerly be witnesses in cases of Ofthecom- 
 forgery, it was an established point, that a party by whom the instru- Potency of 
 ment purported to be made was not admitted to prove it forged, if, in by wliom 
 case of its being genuine, he would have been liable to be sued upon it, the instru- 
 or be deprived by it of a legal claim against another. This exception ™ e r ° s ^ T ^ e 
 to the general rules, by which testimony in criminal cases is regulated, made to 
 and which has often been spoken of as an anomaly in the law of evi- fj"^ 1 
 dence, was at length removed by the 9 Geo. 4, c. 32, s. 1, which enacts, 9 Geo. 4, c. 
 "that on any prosecution by indictment or information, either at com- ' s- ' 
 mon law or by virtue of any statute, against any person for forging any 
 deed, writing, instrument, or other matter whatsoever, or for uttering 
 or disposing of any deed, writing, instrument, or other matter whatso- 
 ever, knowing the same to be forged ; or for being accessory before or 
 after the fact, to any such offence, if the same be a felony ; or for aid- 
 ing, abetting, or counselling the commission of any such offence, if the 
 same be a misdemeanor, no person shall be deemed to be an incompe- 
 tent witness in support of any such prosecution, by reason of any in- 
 terest which such person may have or be supposed to have in respect of 
 such deed, writing, instrument, or other matter."")" 
 
 It seems to have been considered in some cases, that the party whose As to whe- 
 handwriting is forged, being the best, is the only witness, if living, to ther the 
 prove the forgery : but it is observed, that this is not confirmed by the whose 
 current of authorities to such an extent, though the testimony of such hamlwrit- 
 witness, when disinterested, must doubtless be the most satisfactory of ec i"is the 
 any on the question of his own handwriting.^) only wit- 
 
 The prisoner, Captain Smith, was tried for uttering a forged receipt pr Jy e " ne 
 of one George Maughan, a butcher, at the island of Granada, upon a forgery. 
 bill for butcher's meat, ^supplied to the ship of which the prisoner was ^ Jo 
 captain ; and the crime was effected by altering the figures in the quan- ^^ ' s The 
 tity of meat, and in the sum they amounted to, with intent to charge person 
 one Trinder, the owner of the ship, with larger disbursements than the wnose . 
 
 ° voucher 1? 
 
 captain had really laid out. To prove that these alterations were forge- forged for 
 nes, and not the handwriting of Maugham one Greenwood, his partner, the purpose 
 
 i • pi ofiiuposiDtr 
 
 was produced, as one who was acquainted with Maughan's hand : but on a tn j rc i 
 
 (d) Rex v. Corah, Leicester Sum. Ass. 1827. M. T. 1827, MS. 
 
 (e) Ante, p. 383. (/) Ante, p. 383, et seq. 
 (g) 2 East, P. C. c. 19, s. 66, p. 999. 
 
 f [On the trial of an indictment for forgery, the party whose signature is alleged to be 
 forged, is a competent witness to prove the forgery, and also the destruction of the instru- 
 ment alleged to be forged, although civil actions are pending against him to which his only 
 defence may be the forgery of said instrument. Commonwealth v. Peek, 1 Metcalf, 425, S. 
 P. State v. Phelps, 11 Vermont, 116. State v. Sharlliff, 18 Maine, 3G8. Simmons v. The 
 State, 6 & 7 Ohio, 288. Contra. State v. Stanton, 1 Iredell, 124.]
 
 393 OF FORGERY. [BOOK IV. 
 
 person, as it did not appear that Maughan was dead, it was holden, that as he 
 he had nT cou ld & ye tne best and most satisfactory evidence whether the altera- 
 dealing is tions of the bill were or were not forged, no evidence but his could be 
 •* p ™ p t er admitted of the forgery, he having no degree of interest in the question, 
 prove the and being a competent witness to that fact.(/t) 
 
 forgery of j$ u {. j n a subsequent case of a prosecution for the forgery of a bank- 
 handwrit- note, it was ruled, that the handwriting of the cashier of the bank might 
 in S- be disproved by any other person who was acquainted with his hand- 
 
 Hughes's writing. (A And in a case which was referred to the consideration 
 HoTden °f *' ae J u dg es > a conviction for forging a bank-note was holden good, 
 that the though there had been no testimony of the cashier at the trial to disprove 
 handwnt- -^[ s handwriting, aud the forgery of the note had been proved by other 
 cashier of evidence, which showed that the instrument was false in all its parts, 
 the bank - m fa e texture of the paper, the water mark, the engraving, the ink, and 
 disproved the written date of the year, which was 1798, though, the printed date 
 by any under the Britannia was 1799 ; being altogether proved to be such as 
 son^ r " tne bank never made or issued. (&)f 
 
 (h) Smith's (Captain) case, cor. Gould, J., and Yates, J., 0. B. 1768. 2 East, P. C. c. 19, 
 s. 67, p. 1000. 
 
 (i) Hughes's case, cor. Le Blanc, J., Exeter Spr. Ass. 1802. 2 East, P. C. c. 18, s. 68, p. 
 1002. And See Downes's case, post, p. 400, where a father was admitted to disprove the 
 handwriting of his son, who was at Jamaica. And as to the Bank of England cases, it was 
 holden more recently, in a case reserved, that it is not necessary that the signing clerk 
 should be produced, if witnesses acquainted with his handwriting state that the signature 
 to the note is not his handwriting. Russ. & Ry. 378. 
 
 (A-) M'Guire's case, 1801. 2 East, P. C. c. 19, s. 68, p. 1002. 
 
 f {In Massachusetts, by st. 1818, c. 110, in all prosecutions for forgery or counterfeiting 
 of bank bills, or for uttering, &c, forged or counterfeited bank bills, the testimony of the 
 president or cashier of the bank may be dispensed with, if his place of residence exceeds 
 the distance of forty miles from the place of trial ; and in all such cases the testimony may 
 be admitted of any witness acquainted with the signature of the officers of the bank, or who 
 may have knowledge of the difference between the true and counterfeit bills of any bank, 
 to prove that such bills are counterfeit. 
 
 The testimony of witnesses who had knowledge of the signature of officers of a bank 
 only from seeing and passing many of the bills, (viz., brokers, cashiers of other banks, &c.,) 
 was admitted by the court in Massachusetts, before this enactment — in cases where those 
 officers were not within the process of the court. 2 Pick. 50, Commonwealth v. Carey. 6 
 Serg. & Rawle, 568, Commonwealth v. Smith. 2 N. Hamp. R. 480, Furbur v. Hifliard. 
 Ace. See also 2 Stark. Ev. 583, note (b), [New ed. 339, note (Z).] But see 1 Harper's 
 (S. C.) Rep. 61, State v. Petty, semb. Contra.} 
 
 [On the trial of an indictment for counterfeiting bank notes, the prosecution is not com- 
 pelled to establish the falsity of the signature by the officers of the bank whose names are 
 forged : nor by persons who have seen those officers wrife. The testimony of ex parte per- 
 sons, well acquainted with the genuine notes of the bank and with the signatures of the 
 officers, is sufficient to cast the burden of proof on the accused. Sasser v. The State, 13 
 Ohio, 453. May v. The State, 14 Ohio, 461. 
 
 On an indictment for passing a forged bank-note, a witness is competent to prove that the 
 note was counterfeit, who had for ten years been employed as cashier of a bank, who in 
 that capacity had received and passed away a great number of the notes of this bank, 
 without ever having had one returned as a counterfeit, and who swore that he believed that 
 he could readily distinguish between a genuine and a counterfeit note, not only from the 
 handwriting of the signatures, but also from the paper, engraving, and genera] appearance 
 of the note. State v. Harris, 5 Iredell, N. C. 287. 
 
 A witness who was a clerk in Chancery, and who testified that he had been accustomed 
 to examine signatures as to their being genuine, is not entitled to give an opinion in detect- 
 ing forgeries, whether a signature is genuine or imitated. The People v. Spooncr, 1 Denio, 
 343. 
 
 The general rule upon the subject of proof of handwriting is, that proof is not to be 
 made by the comparison of hands, but by the production of witnesses who have acquired a 
 knowledge of the general character of the handwriting of the party. The modes of acquir- 
 ing such knowledge are either by having seen the party write, or by having seen letters or 
 other documents which he has in the course of business recognized or admitted to be his 
 own. The witness may examine the writing in question and declare his belief founded on
 
 CHAP. XXXII. § V.] OF THE EVIDENCE. 893 
 
 Upon this subject an able writer upon the law of evidence observes, quainted 
 that the evidence of persons well acquainted with the character of the ™ 1 ' '. 
 supposed writer of an instrument, for the purpose of proving or dis- dence of 
 proving the handwriting, is not in its nature inferior or secondary. He persons 
 says, "though it may generally be true that a writer is best acquainted with The 6 ' 
 with his own handwriting, yet his knowledge is acquired precisely by handwrit- 
 the same means as the knowledge of other persons, who have been in erf/noT'to 
 the habit of seeing him write, and differs not so much in kind as in be inferior 
 degree. The testimony of such persons, therefore, is not of an inferior or second - 
 or secondary species; nor does it give any reason to suspect, as in the 
 case where primary evidence is withheld, that the fact to which they 
 speak is not true. It is the common practice to receive such testimony 
 in ordinary cases ; and in prosecutions for capital offences, it must be 
 equally admissible. '7A 
 
 It is stated as an established rule of evidence, that handwriting can- Handwrit- 
 not be proved by comparing the paper in dispute with any other papers I ng cannot 
 acknowledged to be genuine. (m) But in a case where the point was, by compa- 
 whether a will had been forged, and a paper purporting to be instruc- nson Wlth 
 
 /■ i mi • i i i • • n i . • i • i a genuine 
 
 tions tor the will, in the handwriting ot the testatrix, became material, paper. 
 a question was put to a clerk of the post-office, who had been used to And 1 U - as 
 inspect franks and detect forgeries. If he could judge whether the am i na ti n 
 instructions were written by the same person who was admitted to have of persons 
 written a certain memorandum at the bottom of the instructions, and £ o ^ as 
 who was suspected of having been the contriver of the will ; and the handwrit- 
 question, though objected to, is said to have been allowed by the lng b . ein S 
 
 T . , I , , . • i . genuine, or 
 
 court. (nj It is, however, observed, upon this evidence, that it was aanimita- 
 mere comparison of handwriting ; and a sort of comparison the least J 10 "' from 
 of all to be trusted, as it was an attempt to trace a resemblance between ance _ 
 two papers which the writer would ^endeavour to make as unlike as *394 
 possible. (o) In the foregoing case, the clerk of the post-office was 
 also allowed to speak to the general appearance of the handwriting 
 of the instructions, and to say whether, from his general knowledge 
 of writing, the instructions were a natural, or an imitated hand ; this 
 matter being considered as a question of art, which might be answered 
 by a witness of skill and experience. (p) The subject underwent very 
 considerable discussion in a subsequent case;(<?) from which, it is said, 
 
 (I) Phil, on Evid. 223, 7th edit. 
 
 (to) Id. ibid. 697, 8th edit. 
 
 (n) Goodtitle dem. Revett v. Braham, (trial at bar in K. B.) 4 T. R. 497. 
 
 (o) Phil, on Evid. 430. In Cary v. Pitt, Peake on Evid. lxxxv. upon a question being put 
 by the counsel to a witness, whether, having been used to detect forgeries, he could say if 
 the handwriting in question was a genuine handwriting or otherwise, Lord Kenyon, C. J., 
 said he could not receive such evidence; and observed that though it was received in Good- 
 title v. Braham, he had not, in his charge to the jury, laid any stress upon it. 
 
 (p) Goodtitle v. Braham. supra, note (n). This witness and another clerk of the post- 
 office, who was also examined, admitted on their cross-examination, that they had never 
 detected an imitation of the hand of a very old person who wrote with difficulty, and might 
 be supposed frequently to stop. And they said that their principal means of knowledge 
 was by 'seeing whether the letters were painted, that is, gone over a second time with the 
 pen : which, however, they admitted might happen to any person from a failure of ink. 
 
 (q) Rex v. Cator, cor. Hotham, B., Maidstone Spr. Ass. 1802. 4 Esq. 117. 
 
 his previous knowledge concerning its genuineness. Where a witness stated that he had 
 seen the prisoner write, but had never seen him write before the difficulty in question arose, 
 it was held, that the witness did not come within the rule laid down. Fate v. The People, 
 3 Oilman, 644. 
 
 Proof by comparison of hands is inadmissible. The Peojilev. Spooncr, 1 Denio, 343. See 
 post, p. 924, note.]
 
 394 OF FORGERY. [BOOK IV. 
 
 this distinction may properly be made, namely, that persons of skill 
 may be called to ascertain, whether handwriting is genuine, or whether 
 it was written at interrupted strokes, like the writing of a person 
 attempting to imitate the hand of another : but that they cannot be 
 asked whether the same hand which wrote another paper wrote also 
 the feigned paper.(r) The admissibility, however, of evidence of this 
 kind, was denied by a very learned judge in a late case, where, upon 
 a feigned issue to try a question of forgery, the evidence of an inspec- 
 tor of franks at the post-office was tendered in support of the alleged 
 forgery. The question put to the witness (who had stated that he was 
 unacquainted with the handwriting of the party, whose handwriting 
 was the subject of inquiry) was, whether from his knowledge of hand- 
 writing he believed the handwriting in question to be a genuine signa- 
 ture or an imitation ; and an objection being taken to the question, 
 the learned judge allowed the objection, and stated several strong 
 reasons in his report to the Court of King's Bench against the admis- 
 sibility of evidence of this kind, which he termed loose general evi- 
 dence. The judges of the Court of King's Bench expressed doubts as 
 to the evidence being admissible, and refused to disturb the verdict, on 
 the ground of its having been rejected ; for even if it were admissible, 
 it was in their opinions entitled to very little weight. (s) 
 
 Where a prisoner was indicted for forging a deed, when the case was 
 
 *395 closed, Bayley, J., called the person whose name was *alleged to have 
 
 been forged by the prisoner, and desired him to write his name on a 
 
 sheet of paper, which he did, and Bayley, J., then handed it to the 
 
 jury, together with the imputed forgery. (A 
 
 Where the question is, whether a seal has been forged, seal engravers 
 
 may be called to show a difference between a genuine impression and 
 
 that supposed to be false. (w) 
 
 Of the ad- With respect to the admission of his own handwriting by a party 
 
 mission of accused, a case j s reported, where upon an indictment against Richard 
 
 Disown 
 
 handwrit- Beatty and two others, for a conspiracy to defraud, by means of a 
 mg by a fraudulent acceptance of a bill of exchange, the indictment averred 
 
 T>a,rtv ic- 
 
 cused." * ua * Beatty, in pursuance of the conspiracy, did fraudulently, &c n 
 write his acceptance to the bill; and no other evidence was given either 
 of the fact of writing the acceptance, or of the handwriting of Beatty, 
 than that of a witness, who proved that the bill, with the acceptance 
 written upon it, was shown to Beatty, who, being asked whether it was 
 a good bill, answered that it was very good. The defendants were 
 convicted, and a question reserved for the consideration of the judges, 
 whether this evidence supported the allegation that Beatty wrote the 
 acceptance; and all the judges were of opinion that it was evidence to 
 be left to the jury upon which they might found their verdict that 
 Beatty wrote the acceptance. (zA 
 
 (r) Phil. onEvid. 430. Peake on Evid. 112. In this case of Rex. v. Cator, Motham, B., said, 
 " I perfectly agree with the counsel for the prosecution that there is no difference in point of 
 evidence, whether the case be a criminal or a civil case ; the same rules must apply to both." 
 
 (*) Gurney v. Langlands, a 5 B. & A. 330. See the chapter on Evidence, for other cases on 
 this subject. C. S. G. 
 
 (t) Williams's case, 1 Lew. 137. This seems to have been a dangerous experiment, and 
 giving far too much facility to the prosecutor to write his name in such a manner as to suit 
 the occasion. C. S. G. 
 
 (u) By Lord Mansfield, C. J., in Folkes v. Chad, 1783, MS. cited in Phil, on Evid. 227. 
 
 (v) Rex v. Hevey, Beatty, and M'Carty, 0. B. 1782, East. T. 22 Geo. 3. 2 East, P. C. c. 10, 
 s. 5, p. 858, note (a). 1 Leach, 232. 
 
 a Eng. Coin. Law Reps. vii. 118.
 
 CHAP. XXXII. § V.] OF THE EVIDENCE. 395 
 
 The prisoner was indicted for uttering a forged will, and it was stated ° n an in - 
 in the opening, that the supposed will, together with ten different pieces for forging 
 of paper used for the purpose of setting it up, had writing which was a will said 
 apparently written over pencil marks, which had been rubbed out. An t ° n ^^' 
 engraver, called as a witness, stated that he was in the habit of looking pencil 
 at minute lines on paper, and had examined the papers to see if there m f!' k , s > , 
 
 - . , . i • liiT winch had 
 
 were marks of pencil, with a mirror, and had traced marks on the been rub- 
 paper both of letters and words, and he had no doubt that the pencil bed out ' 
 had been rubbed out. Upon being asked what he had observed, the dence of 
 counsel for the prisoner objected that the rule had been rather to narrow an engra- 
 this sort of evidence than to extend it ; the rule now acted on was, that had^exam- 
 witnesses shall not be called to state to the jury that which they, as ined the 
 intelligent persons, are capable of deciding for themselves ; it would be P a Pp r Wlth 
 dangerous to suffer a witness to be called to prove that he can see admissible. 
 what the jury are unable to discover. It was answered, that this was 
 not a question of opinion ; it was a matter of fact. The paper required 
 minute inspection, a habit and practice to discover the marks upon it. 
 The witness had examined the paper out of court, and could pledge 
 his oath to the fact that the marks did exist ; and if the words were 
 pointed out to the jury, they could see them, and the question was then 
 decided by the jury. This was evidence of a fact, and the question 
 was, whether they were to be assisted in forming a conclusion as to 
 that fact ? Parke, B., after consulting Tindal, C. J., said, that they 
 were both of opinion that *the evidence was admissible, but the *39G 
 weight of it would depend upon the way in which it would be con- 
 firmed, (w) 
 
 The prisoner was indicted for that he, having in his possession a cer- What suffi- 
 tain bill of exchange, forged the following acceptance on it : deuce of" 
 
 forging a 
 
 "Accepted, payable at Sir John Lubbock, Bart. & Co.'s, bankers, ^ u ° f e ei * 
 London." 
 
 The bill was drawn by the prisoner, indorsed by him, and accepted 
 by him. On being taken into custody, he did not deny or attempt to 
 disguise the fact ; neither did he personate, or in any manner show an 
 intention to personate any other person. The bill was paid away to 
 one of the parties named in the indictment, as intended to be defrauded 
 by it ; but it was never presented for payment, and consequently not 
 refused. No person was called to negative the authority of Sir John 
 Lubbock to the prisoner, to accept the bill for him or on his behalf ; 
 neither was there any other evidence given of an intent to defraud Sir 
 John Lubbock, or any of the persons named in the other counts of the 
 indictment. Littledale, J., thought the counsel for the prosecution had 
 left the case short, in not proving an attempt to defraud Sir John Lub- 
 bock, or some one specifically mentioned in the indictment, and was 
 further of opinion, that the acceptance, being proved to be in the hand- 
 writing of the prisoner, was not in itself prima facie evidence of a 
 forgery, sufficient to put him on his defence. But after some discus- 
 sion, he allowed the case to go to the jury, intimating that he should 
 reserve the point in the event of a conviction. He then told the jury, 
 that if they thought the prisoner, when he paid away the bill, intended 
 
 (u>) Reg. v. William, 3 - 8 C. & P. 434. 
 
 a Eng. Com. Law Reps, xxxiv. 4GG.
 
 396 OF FORGERY. [BOOK IY. 
 
 that the party to whom he paid it should add his name, it was an in- 
 complete acceptance. But that if they considered that he uttered it 
 with a fraudulent intent, meaning that it should pass as the acceptance 
 of the drawee, they would then find him guilty; and he would take 
 the opinion of the judges, as to whether it was an acceptance within 
 the terms of the act of parliament.(a:\ 
 Swing a Giving a forged note to an innocent agent or an accomplice, in order 
 to an inno- tnat he ma J P ass **? ^ s a disposing of and putting it away. The first 
 cent agent count charged the prisoner with disposing of and putting away a forged 
 cotoplfce ^ bank-note. The second with offering to one Abraham Newton a 
 that he may forged hi. bank-note. It appeared from the confession of the prisoner 
 ? assit .' 1S a that he had on different occasions prior to the transaction in question, 
 of and put- purchased hi. and 10/. forged bank-notes of a person of the name of 
 ting it Trundell, which he had disposed of by an agent employed by him for 
 that purpose. That on the 27th of January, he met Trundell by ap- 
 pointment at the New Inn in the Old Bailey, and purchased of him six 
 hi. forged bank-notes. It appeared further, that shortly after receiving 
 the same, the prisoner delivered one of them to Burr, who, at the pri- 
 soner's desire, disposed of it in a part payment of a horse purchased by 
 the prisoner in Smithfield market. The prisoner and Burr, before they 
 parted, agreed to meet at Harlington on the following day, and to pro- 
 ceed from thence in company to Windsor. They met accordingly, and 
 *397 went together in the prisoner's one-horse chaise to Windsor, where *the 
 prisoner delivered into the hands of Burr one other of the 5/. forged 
 bank notes, which he had received on the preceding day from Trun- 
 dell, directing Burr to purchase for him some tea and sugar at a grocer's 
 at Eton. Burr accordingly purchased the tea and sugar, for which he 
 gave the hi. note given to him by the prisoner, and received the change 
 in small notes, and silver which, together with the tea and sugar, Burr 
 delivered to the prisoner. The prisoner and Burr then returned from 
 Eton to Windsor, when the prisoner delivered to Burr another hi. bank- 
 note, which it appeared from the prisoner's confession, was one of the 
 six 5?. bank-notes purchased by the prisoner from Trundell. The last 
 mentioned 5/. note was the subject of the present indictment, which 
 Burr, by the prisoner's desire, attempted to dispose of at three several 
 shops in Windsor, but without success, the prisoner waiting at a short 
 distance in the street, and communicating with Burr after leaving each 
 shop successively. The prisoner then directed Burr to endeavour to 
 get the note changed at a butcher's, whose name was Newton, telling 
 him that he must get change before he went home. Burr accordingly 
 went into the shop of Newton, leaving the prisoner waiting near the 
 top of the street. Burr purchased some meat, and offered in payment 
 the said hi. forged bank note, so delivered to him by the prisoner. New- 
 ton took the note, and gave Burr the change, deducting the price of the 
 meat, which he delivered to Burr. When Burr offered the note to New- 
 ton, the latter asked him what name he should put upon the note, to 
 which Burr answered, Giles, of Heston, not far from Cranford Bridge, 
 near Hatton. After receiving the change and the meat, and before Burr 
 had quitted the shop, one Hewitt came in, and made some communica- 
 tion privately to Newton, upon which he insisted on having the meat 
 and the change returned to him, and which Burr complied with. Burr 
 was then detainted by Newton and Hewitt, on suspicion of having paid 
 
 (z) Musgrave's cas"5, 1 Lew. 138. The prisoner was acquitted.
 
 CHAP. XXXII. § V.] OF THE EVIDENCE. 397 
 
 to the former the forged 51. bank-note, knowing it to be forged, when 
 Burr stated that Giles, from whom he had received it, was in the street, 
 and desired to be taken to him. Giles had, in the meantime, absented 
 himself, and was afterwards apprehended in New Windsor. The coun- 
 sel for the prosecution insisted that the offer of a hi. forged note by Burr 
 to Newton, as the agent of the prisoner, was the act and offer of the 
 prisoner. For the prisoner, it was contended that he, not having been 
 present, ought to have been indicted as an accessory before the fact, 
 and could not legally be convicted as a principal. Vaughan, B., told 
 the jury that if they should be of opinion that Burr knew when he 
 offered the note to Newton that it was a forged note, the prisoner could 
 not be considered as a principal : but that if Burr was employed by the 
 prisoner as an innocent instrument, being ignorant that the note was a 
 forged one, it would then be the act of the prisoner, and he might pro- 
 perly be convicted. The learned judge added also, that he thought the 
 delivery by the prisoner to Burr of the note in question, if delivered with 
 a knowledge of its being forged, and for the purpose of being uttered 
 by Burr, was in itself a disposing of and putting away of the note in 
 question, within the 15 Geo. 2, c. 13, s. 11. The jury found the pri- 
 soner guilty, and added that Burr did not know that the note given to 
 him by the prisoner, and by him offered in payment to Newton, was a 
 forged note. And, upon a case reserved, the judges *thought that Burr *398 
 knew it was forged, but were of opinion that the giving the note to 
 Burr that he might pass it, was a disposing thereof to him, and that the 
 conviction was right, (j/) 
 
 The prisoner was indicted for forging and uttering an indorsement on what is a 
 an instrument, which was in the form of a bill of exchange, in which sufficient 
 one Aickman was the payee ; the indorsement was u received R. Aik- 
 man ;" it appeared that the prisoner took the instrument to the banking 
 house where it was payable and presented it for payment ; but the clerk 
 perceiving that the name of the payee in the instrument was spelt Aick- 
 man, with a c, but in the indorsement was spelt without any c, objected 
 to pay it; upon which the prisoner altered the indorsement so as to 
 make it stand, " Received for R. Aickman, G. Arscott ;" and it was 
 objected that this did not constitute an uttering of the original indorse- 
 ment as the whole that took place, viz,, the presentment of the bill, the 
 objection by the clerk, and the alteration by the prisoner, formed but 
 one transaction, but the court seemed to be of opinion that the present- 
 ing of the bill to the clerk, previous to his objection, was a sufficient 
 uttering. (2) 
 
 A conditional uttering of a forged instrument is a sufficient uttering. Condition- 
 Upon an indictment for forging and uttering a forged acceptance of a g U ffi c ient. S 
 bill of exchange, it appeared that the prisoner gave the bill to the 
 manager of a bank to which he was indebted, saying he hoped the bill 
 would satisfy the bank as a security for the debt he owed, and the 
 manager replied that that would depend on the result of his inquiries 
 respecting the acceptors of the bill ; and it was submitted that there 
 was no sufficient uttering as it was at most conditional ; and was like 
 
 (y) Rex v. Giles, R. & M. C. C. R. 166. See Rex v. Palmer and Hudson, post. 
 
 (z) Rex v. Arscott, 11 fi C. & P. 408, Littledale, J., Vaughan, B., and Bolland, B. The pri- 
 soner was acquitted on the ground that forging an indorsement on a warrant for the pay- 
 ment of money is not within the 1 Wm. 4, c. 66. 
 
 Eng. Com. Law Reps. xxv. 461.
 
 398 OF FORGERY, [BOOK IV. 
 
 the delivery of a deed as an escrow, as the bill was to be placed to the 
 prisoner's credit or not, according to circumstances ; but it was held that 
 the uttering was sufficient, for a conditional uttering of a forged instru- 
 ment is as much a crime as any other uttering. (a) 
 Giving a Giving a party a forged instrument as a specimen of skill, is not an 
 l' art - Vil " in ~ uttering. The prisoner was indicted for uttering a Polish note. One 
 
 striiinciit Q>S 
 
 a specimen Flaum stated that the prisoner showed him a Polish note on one occa- 
 ia not an s i n, and told him that two thousand and a half of those notes had been 
 1U °' lately made, and proposed to him to purchase some of them ; that the 
 witness said he could not use them, and wished to have Austrian notes; 
 that the prisoner said nothing more then, but afterwards, when they 
 became more acquainted, he gave him a Polish note (the one mentioned 
 in the indictment), and said that they were good, and that they were 
 well made ; that he had a quantity of them, and wished the witness to 
 buy some. It was submitted that the giving of the note under these 
 circumstances, was not a putting in circulation with intent to defraud 
 Nicolas, king of Poland. Littledale, J., said it was a question for the 
 jury; and, in his summing up, said, " If the prisoner meant it as a spe- 
 cimen, or that the witness might see whether the others were made 
 according to the pattern, then, in my opinion, it would not be an utter- 
 *399 ing *within the meaning of the act. If you are satisfied that it was not 
 uttered with intent to put it into circulation, but was to be kept as a 
 pattern, and afterwards thrown away or put in the fire, then you may 
 acquit the prisoner."(6) 
 Showing a In a case upon the 13 Geo. 3, c. 79, s. 2, (now repealed,) it was held, 
 strument * na * showing to a person an instrument with an intent to raise a false 
 idea of the party's substance, did not amount to an uttering ; and also 
 that the leaving it afterwards sealed up with the person to whom it was 
 shown, under cover, that he might take charge of it, as being too valu- 
 able to be carried about, was not an uttering or publishing. (c) 
 Uttering or A count for uttering a bill of exchange is not supported by proof of 
 acceptance ottering the forged acceptance of the bill. A count alleged that the 
 does not prisoner uttered a forged bill of exchange, setting it out with the 
 count for 1 acce pt ance upon it ; the evidence was that the acceptance alone was 
 o r forged, and known to be so by the prisoner; and it was objected that, 
 by the 1 Wm. 4, c. 66, s. 3, the forging or uttering of an accep- 
 tance is made a distinct offence from the forging or uttering a bill 
 of exchange, and, consequently, that the evidence did not support 
 the count for uttering the bill, and it was held, upon a case reserved, 
 that the objection was fatal. (cZ) So where the prisoner was a partner 
 in a firm, and was indicted for forging a bill of exchange, and it ap- 
 peared that the acceptance only was forged, he having authority to 
 draw bills in the name of the firm ; Parke, B., held that the indict- 
 ment could not be sustained. (A 
 All facts On an indictment for forging and uttering a forged bill of exchange, 
 
 which are the i U( jo- e w jH admit evidence of all the facts which form parts of one 
 of a con- . . . , . . . » .i_ i_"ii j -11 * 
 
 tinued continued transaction, relating to the uttering oi the bill, and will not 
 
 transaction p U t the prosecutor to elect what particular fact he means to rely upon 
 
 (a) Reg. v. Cooke, a 8 C. & P. 582, Patteson, J. (bj Rex v. Harris," G C. & P. 428. 
 
 (c) Rex v. Shukard, Russ. & Ry. 200, post. 
 
 (d) Rex v. Horwell," R. & M. C. C. R. 405. 6 C. & P. 148. S. C. 
 
 (e) Dutterwick's case, Rose. Cr. Ev. 4G5. 
 
 " Eng. Com. Law Reps, xxviii. 535. b lb. xxxii. 570. c lb. xxv. 325.
 
 
 CHAP. XXXII. § V.] AND OF THE NAME. 399 
 
 as the uttering, till the case for the prosecution is closed. Upon anareadmis- 
 iudictment for forging and uttering a forged bill of exchange, it ap- indictment 
 pearcd that the prisoner had procured the prosecutor to write his name for forging 
 and the word " accepted" on a blank stamp, and afterwards produced!™ u 
 the bill to one Edwards, when perfectly blank, with the exception of 
 the acceptance ; and it was submitted that, as the showing the paper 
 to Edwards might be considered as an uttering, the prosecutor should 
 elect whether he would press this as the uttering, or state what utter- 
 ing he intended to go upon, as every uttering was a distinct felony. 
 For the prosecution, it was stated, that there were charges in the in- 
 dictment for forging and uttering, and it was proposed to prove them 
 by showing a series of circumstances. Littledale, J., "It is not as if 
 they proposed to give evidence of acts quite distinct from each other. 
 I think we must hear all the facts, which form parts of one continued 
 transaction, and we cannot put the prosecutor to any election till his 
 case is concluded. (/) 
 
 Questions have frequently arisen as to the necessary proof of the iden- *400 
 tity or non-existence of the person whose name is charged to be forged. f Questions 
 
 *In a case in which it was holden that the payee of a bill of ex- proof of 
 change was a competent witness, under the circumstances, to prove that the identity 
 his name indorsed thereon was a forgery, it further became necessary 1^°^^" 
 to show that such payee, whose name was Win. Pearce, was the iden- the person 
 tical Wm. Pearce to whom the bill was made payable. The drawer whose . 
 
 ii • name is 
 
 of the bill, whose testimony was considered as the best evidence of charged to 
 the fact, was not produced ; and the question was then raised, whether be forged. 
 a letter of advice which Pearce had received from the drawer, with j^. ^^ 
 whom he was intimate, signifying that such a bill had been remitted As to the 
 to him ; and desiring him, as an act of friendship, to pay the produce to P d r °°[j° f ^ 
 one Coles, in discharge of a debt which the drawer owed to Coles, was a payee f 
 sufficient evidence. And Adair, Serjt. Recorder, before whom the a , biU of ex - 
 
 • change 
 
 prisoner was tried, held that it was not sufficient ; and the testimony " ' 
 of Pearce, to show the handwriting to be forged, was ultimately re- 
 jected, on the ground that though he might show it not to be in his 
 own handwriting, yet it might be the handwriting of another Wm. 
 Pearce, to whom the bill might be payable. (A) But upon this case a 
 doubt is suggested, whether the fact of Wm. Pearce being an intimate 
 acquaintance and correspondent of the drawer, no evidence being 
 given of the existence of any other Wm. Pearce to whom it might be 
 supposed that the bill was made payable, was not sufficient evidence 
 of the identity of the payee : and it is observed, that under the cir- 
 cumstances of the case, he had no interest in proving himself to be the 
 real payee. (A 
 
 A case has been already mentioned, where, upon an indictment for Parry's 
 personating a proprietor of stock, such proprietor was examined as a ca f e - Pr °" 
 witness, to show the amount of the stock he had at the bank ; and that stoc k e x- 
 
 (/) Rex v. IIart, a 7 C. & P. 652, cor. Littledale, J., and Bolland, B. See this case more 
 fully stated, ante, p. 322. 
 
 (h) Sponsonby's case, cor. Adair, Serjt. Recorder, 0. B. 1784. 1 Leach, 332. 2 East, P. C. 
 c. 19, s. 65, p. 996, 997. (i) 2 East, P. C. c. 19, s. 65, p. 997. 
 
 f [Evidence that the prisoner uttered as genuine, what purported on its face to be a bank- 
 note, is competent proof that it was a bank-note, though it is not otherwise shown that 
 such a bank existed. United Slates v. Foye, 1 Curtis, C. C. 364.] 
 
 a Eng. Com. Law Reps. xxv. 325. b lb. xxxii. 673.
 
 400 
 
 OF FORGERY. 
 
 [BOOK IV. 
 
 amincd to 
 prove his 
 identity. 
 
 Downes's 
 case. 
 
 Where the 
 name of the 
 drawer and 
 also that of 
 the indor- 
 ser were 
 forged on a 
 bill, it was 
 holden not 
 to be an 
 objection 
 that the 
 drawer was 
 not called 
 to prove 
 upon whom 
 the bill was 
 drawn, 
 there being 
 two of the 
 name at the 
 place ; and 
 that it 
 might be 
 shown by 
 other evi- 
 dence who 
 the prison- 
 er meant 
 by the per- 
 son whose 
 name he 
 forged, as 
 the payee 
 and in- 
 dorser. 
 
 *401 
 
 the sum for which fA.e prisoner had obtained the dividend warrant, was 
 the exact sum due to him at the time; evidence which would have the 
 effect of proving his identity. (j\ 
 
 The prisoner, James Downes, was indicted for forging a bill of ex- 
 change purporting o have been drawn by one Andrew Holme, payable 
 to the order of John Sowerby. From some letters, written by the pri- 
 soner after his apprehension, it clearly appeared that the name of the 
 supposed drawer, Andrew Holme, who was the prisoner's uncle, was 
 forged ; and it also appeared from the same letters that the John Sow- 
 erby, whose indorsement was intended to be counterfeited by the pri- 
 soner, was the son of another person of the same name at Liverpool. 
 A witness to whom the prisoner paid away the bill stated that he 
 questioned the prisoner at the time, and that the account he gave was 
 that the drawer of the bill, Andrew Holme, was a gentleman of credit 
 at Liverpool, and the indorser a cheesemonger there, who had received 
 the bill in payment for cheeses ; and the prisoner further said, that he 
 might depend on it, it was a good bill. Neither Andrew Holme, nor 
 John Sowerby, the son, were called as witnesses ; but John Sowerby, 
 the father, was produced, and he swore that the indorsement was not 
 in his handwriting ; that he had lived thirty-six years in Liverpool, and 
 knew no other person of the same name there, either a cheesemonger or 
 *otherwise, except his son, who had left him about four months before, 
 and afterwards carried on the same business of a cheesemonger in Dean- 
 street. That his son had failed, and was lately gone to Jamaica. That 
 the indorsement was not at all like his son's handwriting ; and he did 
 not believe it to be his. That the prisoner and his son were acquainted, 
 and the prisoner had bought corks of him. Another witness also proved 
 that the indorsement was not like the handwriting of the son, and that 
 he did not believe it to be his. An objection was taken on behalf of 
 the prisoner, that Andrew Plolme, the drawer of the bill, ought to have 
 been called to prove what John Sowerby it was, in whose favour it was 
 drawn ; but the evidence was left by the learned judge, who tried the 
 prisoner, to the jury, and the prisoner was found guilty. And the point 
 being afterwards submitted to the consideration of the twelve judges, 
 they were all of opinion that the conviction was proper. Buller, J., 
 who afterwards passed sentence upon the prisoner, in adverting to the 
 reasons upon which the opinion of the judges proceeded, said that the 
 objection supposed that there was a genuine drawer of the bill; where- 
 as it was apparent, from the prisoner's own acknowledgments in his 
 letters, that the name of the drawer, as well as that of the indorser, was 
 forged by the prisoner; and if no real drawer existed, and the objec- 
 tion were allowed, it would be to excuse one forgery because another 
 had been committed. He observed, in the second place, that the pri- 
 soner himself had ascertained who was intended by the John Sowerby 
 whose indorsement was forged ; for, when he negotiated the bill, he 
 represented him to be a cheesemonger at Liverpool ; and by another 
 letter of the prisoner it was clear that he meant Sower v y the son ; for 
 thereby he requested his uncle to go to Sowerby's mother, and desire 
 her to say nothing about it, whether he had any conc«)'u or not, or whe- 
 ther he indorsed it or not. And he concluded by s; ng that, it being 
 proved that the indorsement was not the handwrit ~ of Sowerby the 
 
 (/) Parrs case. 1 Leach. 434. 
 
 '•"•v. 325.
 
 CHAP. XXXII. § V.] OF THE EVIDENCE. 401 
 
 son, the evidence of the forgery was full and compete, and the convic- 
 tion right. (&)f 
 
 Where a prisoner was indicted for forging and uttering a check pur- 
 porting to be drawn by G. Andrewes on Messrs. Jones, Lloyd & Co., 
 proof by a clerk of their house that no person of t a initial of G. An- 
 drewes kept any account there or had any right to draw checks on their 
 house was held sufficient prima facie evidence to go to the jury that 
 G. Andrewes was a fictitious person. (?) So where a prisoner was in- 
 dicted for forging a bill purporting to have been accepted by " Samuel 
 Knight, Market-place, Birmingham," and the prosecutor stated that he 
 had been twice there to inquire after Knight, and had, on the second 
 occasion, inquired at the bank there, and at a place where the overseers 
 of the poor met, and he had made inquiries at Nottingham, at which 
 place the bill purported to be drawn for T. Webb the drawer, but was 
 not able to hear any thing of him; and he admitted that he was a 
 stranger to both these places. It was submitted that the evidence was 
 not sufficient, and that witnesses should have been called, who were 
 acquainted with ^Birmingham and Nottingham respectively; but it was *402 
 held that it was evidence to go to the jury. It was not certainly the 
 most satisfactory evidence ; nor was it the evidence that was usually 
 given in such cases; but it was evidence, and it was for the jury to say 
 whether it was sufficient, in the absence of any evidence on the part of 
 the prisoner, who best knew the state of the matter. (ll\ So where the 
 prisoner was indicted for forging and uttering a check for 10?. drawn 
 in the name of John Weston, on Messrs. Cos & Greenwood, and a clerk 
 from their establishment stated that they were bankers and army agents, 
 and that there was not any person of the name of John Weston having 
 any account there, and that the check was presented to him and pay- 
 ment refused on that ground, and added that he was a clerk in the army 
 agent department; and that he could not swear he knew the names of 
 all the customers in the house, but he did not know any one of the name 
 of Weston in his department, and that he had inquired of the other 
 clerks, and was informed by them that there was no such person in the 
 banking department; it was objected that the evidence was not suffi- 
 cient, as it was partly hearsay : but it was held that it was prima facie 
 evidence, and was sufficient to call upon the prisoner to show that in 
 fact there was a J. Weston having an account at Messrs. Cox & Green- 
 wood, (m) 
 
 Proof that the prisoner, on uttering a note, represented the maker as Proof that 
 living at a particular place and in a particular line of business, with evi- the P rison - 
 dence that it is not that person's note, is sufficient to prove it a forgery, sented the 
 if the prisoner be the payee of the note ; and proof that there is another maker of a 
 person of that name in a different line of business, will not make itj n g a ta 
 
 (k) Downes's case, Lancaster Sura. Ass. 1789, Mich. T. 1789. 2 East, P. C. c. 19, s. 65, p. 997. 
 
 (I) Rex v. Backler, a 5 C. & P. 118, Parke, J., and Gaselee, J. 
 
 (U) Rex v. King, b 5 C. & P. 123. Park, J. A. J., Parke, J., and Bollanrl B. The prisoner 
 was acquitted. 
 
 (m) Rex v Bra 'nan, 6 C. & P. 326, Park, J. A. J., Patteson, J., and Gurney, B. 
 > 
 
 f {Proof that tb prisoner, on uttering a note, represented the maker as living at a par- 
 ticular place and in ' -'articular line of business, with evidence that it is not that person's 
 note, is sufficient to , ove it a forgery; especially if the prisoner be the payee of the note. 
 And proof that the r f ' another person of that name, in a different line of business, will not 
 make it ne>;f K ^\r; t he prosecutor to show it was not that person's note. Ry. & Mood. C. 
 
 a F 
 
 • Reps. xxiv. 236. b lb. xxiv. 239. c lb. xxv. 422.
 
 402 OF FORGERY. [BOOK IV. 
 
 particular necessary to prove that it was not that person's note. The prisoner 
 place, and wftg } nc iicted for forging and uttering a promissory note purporting to 
 oular line be drawn by W. Holland, payable to the prisoner or his order. The 
 of business, p r } soner t ld the person, to whom he uttered the note, that it was drawn 
 denee that by W. Holland, who kept the Bull's Head at Tipton, who was a respect- 
 it is not a j)i e man The note was dishonoured ; and the prisoner, on being in- 
 son's P note. formed by the prosecutor that Holland said he knew nothing of the 
 note, said, " Hoes not he ? I will let him see that." Holland proved 
 that he kept the Bull's Head at Tipton; that the note was not made by 
 him, or by his order, or with his knowledge, and there was no other 
 publican of his name at Tipton ; but there was a gentleman of the same 
 name living there on his means, who for distinction was called gentle- 
 man Holland. Upon this evidence, it was objected, 1st, that there was 
 no evidence of the note being forged ; the description of the maker 
 applied as exactly to the second as to the first W. Holland. 2d. No 
 evidence that at the time of the uttering the prisoner knew Holland of 
 the Bull's Head not to be the maker of the note. 3. Supposing him 
 to have had such knowledge, verbal misrepresentation did not amount 
 to forgery. 4th. Supposing such misrepresentation could amount to 
 forgery, that was not the offence of which he was convicted, (rc) but of 
 uttering the note knowing it to be forged, which implied a previous act 
 *403 of forgery. If, therefore, the forgery was not consummated until *the 
 representation was made, the offence of uttering, which must be subse- 
 quent, was never committed. The jury found the prisoner guilty of 
 uttering the note knowing it to be forged, and said they were satisfied 
 that when the prisoner represented it to be the note of Holland of the 
 Bull's Head, he knew it was not his note. And, upon a case reserved, 
 the judges held that, as the prisoner had stated that W. Holland of the 
 Bull's Head was the maker, and from being payee of the note he must 
 have known the particulars, it was sufficient for the prosecutor to show 
 it was not the note of that "W. Holland ; and it lay on the prisoner to 
 prove it the genuine note of another W. Holland, if it were so.(o) 
 Of the It has been already observed that the publication of the forged in- 
 
 k" l do- strument, with knowledge of the fact, is made a substantive offence, by 
 where the most of the statutes which relate to forgery ;(p) and in cases of this 
 publication j.j Q( j t j ie k now l e do;e of the fact, or as it is frequently termed the quiltii 
 
 with know- , , , . b . ,' „ . /, i mi i-i 
 
 ledgeof the knowledge, becomes a material part ot the evidence. y Ine subject has 
 fact is made come under consideration in several modern cases. 
 tiveoffenTe. Two prisoners were indicted for disposing of and putting away a 
 AVylie's forged bank-note for one pound, knowing the same to be forged. It was 
 case. Upon p r0 ved that they put off the forged note stated in the indictment at the 
 
 (n) This seems a mistake, the objection being taken before verdict. 
 
 (o) Rex v. Hampton, R. & M. C. 0. R. 255. (p) Ante. p. 319. 
 
 f [Upon the trial of an indictment for passing counterfeit bank-notes, proof that prisoner 
 had, about the same time, passed another note of the same kind, which was thought to be a 
 counterfeit, and which he took back, though this note be not produced at the trial, is 
 admissible evidence to prove the scienter. Martin v. The Commonwealth, 2 Leigh, 745. 
 
 The passing of other counterfeits show guilty knowledge. The State v. Mix, 15 Mis- 
 souri, 153. 
 
 When it is necessary to prove a guilty knowledge on the part of the accused, it is some- 
 times allowable to give evidence of other offences committed by him, though not charged 
 in the indictment, as in the case of forgery and uttering counterfeit coin. Tharp v. The 
 State, 15 Alabama, 749. 
 
 Upon an indictment for forgery, it is competent to prove that the writing was actually 
 passed, in order to establish the fraudulenl intent with which it was made. HosMn* v. The 
 State, il Georgia, 92.]
 
 CHAP. XXXII. § V.] OF THE EVIDENCE. 403 
 
 shop of one John Hind ; and then in order to show that they knew the an indict- 
 note to be forged, evidence was offered to prove that they had before Serine 1 " a 
 passed other forged notes to other persons. This evidence was objected forged 
 to by the counsel for the prisoners, who urged that no evidence could be J 33 * 111 *-. 11016 ; 
 
 • p . i • ii • t . knowing it 
 
 given of any transaction not stated in the indictment, since the prisoners to be forg- 
 could not be prepared to defend themselves against a charge of which ed > evi ~ 
 they had no notice. But the learned judges, before whom the prisoners be^erfof 
 were tried, overruled the objection. Lord Ellenborough, C. J., said, otner for g- 
 " Certainly no different rule of law can prevail with respect to prosecu- nav n in tes 
 tions by the bank from those conducted by any other person. This point been utter- 
 however, is not new; it was reserved in the case of The Kinec v. Tat- ed . by the . 
 
 o prisoner in 
 
 tersall, which was tried at Lancaster, in 1801, by Mr. J. Chambre, and order to' 
 received the collective voices of the judges. The question was, whether snow nis 
 in giving evidence to prove an allegation that the party uttered a bank- f the for- 
 note, knowing it to be forged, the prosecutor might give the conduct of scy- 
 the prisoner in evidence, to show his knowledge of the forgery? The 
 learned judge reserved the question, whether the prisoner had not fur- 
 nished pregnant evidence, and whether the jury, from his conduct on 
 one occasion, might not infer his knowledge on another ? The opinion 
 of the judges was, that the jury were at liberty to make such inference. 
 The prisoner does not come unprepared ; it is alleged that he uttered a 
 note knowing it to be forged. Are we then to exclude all evidence, but 
 what is furnished by this particular transaction, since without other evi- 
 dence it is impossible to ascertain whether the party uttered the note 
 with knowledge, or under circumstances which showed the uttering to 
 be venial ? I remember a case in which a person came to Manchester 
 with a large parcel of forged notes ; his whole demeanor afforded preg- 
 nant evidence of the mind and purpose for which he came ; and *a *404 
 question was made, whether that evidence should be received, for it was 
 said that it would be trying the prisoner for other utterings. But if 
 crimes do so intermix, the court must go through the detail. I remember 
 a case where a man committed three burglaries in one night ; he took a 
 shirt at one place, and left it at another, and they were all so connected 
 that the court went through the history of the three different burglaries. 
 The more detached in point of time the previous utterings are, the less 
 relation they will bear to that stated in the indictment. But in such case 
 the only question would be, whether the evidence would be sufficient to 
 warrant the inference of knowledge from such particular transactions ? 
 It would not make the evidence inadmissible. Such evidence may come 
 out from these circumstances as to leave no doubt that the prisoners 
 must have known what sort of paper they were passing."^) 
 
 So in a case where a prisoner was indicted for forging and for utter- Other for- 
 ing with a guilty knowledge a bill of exchange, purporting to be drawn juries on 
 upon a certain banking house, it was holden that other forged bills upon bank. 
 the same house, which were found upon the prisoner at the time of* his 
 apprehension, were admissible as evidence of guilty knowledgc.(r)"f" 
 
 (q) Rex r. Wylie and another, cor. Lord Ellenborough, C. J., Heath, J., and Thomson, I;.. 
 0. B. 1804. 1 New R. 92. S. C. by the name of Whiley and Haines, 2 Leach, 9S3. And sec 
 ante, vol. 1, p. 80, 81. as to the guilty knowledge in uttering counterfeit money; and Phil, 
 on Evid. (3d edit.) 142, 143. (r) Rex v. Hough, 1806, Russ. & Ry. 120. 
 
 f [Spencer v. The Commonwealth, 2 Leigh, 751. State v. Houston, 1 Bailey, 300 ; nor does 
 it render such evidence inadmissible, that the defendant had been formerly acquitted 
 upon an indictment for uttering the last mentioned note, knowing it to Ik- forged, but the 
 objection only goes to weaken its effect with the jury. Ibid. Vide State v. Petty, Harper. 
 59.]
 
 404 OF FORGERY. [BOOK IV. 
 
 Ball's case. In a subsequent case the prisoner was also indicted for disposing of 
 similar in- and putting away a forged bank-note, which purported to be a promis- 
 dietment, sory note of the governor and company of the Bank of England, know- 
 evidence is • ( j ie same f j e f or qet7. Clear proof was adduced, that the note in 
 
 admissible " j j r 1 i • 
 
 of the pri- question was forged, and that it had been uttered by the prisoner at East 
 soner hav- B ourn? on the 17th of June, 1807, so that the only remaining question 
 time" before was, as to his guilty knotdedge of the forgery. To establish this, evi- 
 uttered dence was admitted, that on the 20th of March preceding, he had passed 
 forced note °^ a 10Z. Bank of England note likewise forged, and of the same rnanu- 
 of the same facture, and that there had been paid into the Bank of England various 
 ture Uf and for g ed notes > dated bet ween Dec. 1806, and March 1807, all of the same 
 also of a manufacture and having different indorsements upon them, in the hand- 
 B " mbe . r writing of the prisoner. It likewise appeared, that when he was appre- 
 ing been in hended he had in his possession paper and implements fit for making 
 circulation n otes of the same kind with those produced. The prisoner was found 
 
 which. WGTG • 
 
 of the same guilty, but sentence was respited for the purpose of taking the opinion 
 manufac- f the twelve judges, as to the admissibility of this evidence. They were 
 the^riso- °^ op 101011 that it was admissible, to prove the knowledge of the prisoner 
 ner's hand- that the note was forged, and that everything which he said or did was 
 tn rit D ng k°of P ro P er ^ be admitted to show his knowledge of the forgery.(s) 
 them. In another case where the prisoner was indicted for forging a promis- 
 
 *405 sory note, (not a note of the Bank of England) and also for uttering it, 
 Crockers ev idence was given that, in the same pocket-book belonging to the 
 dence of prisoner in which the forged note was found, on which the indictment 
 another proceeded, there was also found another promissory note for 100/. 
 mifsory payable to the prisoner or order, appearing to be signed by one Wm. 
 note in the Gapper, which Wm. Gapper proved not to be his handwriting, and that 
 pocket ^ e never owed the prisoner 100/. This evidence of Gapper's note 
 book where was objected to by the prisoner's counsel, but the judge received the 
 the note ev idence.(Af 
 
 was tound \ ./ > 
 
 on which Where in order to show guilty knowledge the prosecutor wished to 
 the indict- p r0 y e the uttering of another forged note five iceeks after the uttering 
 
 ment pro- ,., , ,. n . . P. ,. ,. ,, , 
 
 ceeded. which was the subject or the indictment, and it was objected that only 
 previous acts could show quo anirao the thing was done, it was held that 
 terings " ^ e evidence was not admissible, unless the latter uttering was in some 
 after the way connected with the principal case, or it could be shown that the 
 one c arg- no f es were f (k e same manufactured u\ And in a recent case of utter- 
 ing a forged acceptance, where for the purpose of proving guilty know- 
 ledge it was proposed to give in evidence other forged bills, precisely 
 similar, with the same drawers' and acceptors' names, &c, passed a 
 month after the uttering in question : Mr. J. Gaselee, after consulting 
 the Lord C. B. Alexander, was disposed to allow the evidence to be 
 
 (s) Rex v. Ball, Lewes Sum. Ass. 1808. 1 Campb. 324. Russ. & Ry. 132. In this ease the 
 judges were of opinion that although it should appear upon a case reserved, that evidence 
 had been admitted at the trial which ought not to have been received, yet if there were 
 ample evidence to support the indictment, after rejecting such improper evidence, the con- 
 viction ought not to be set aside. 
 
 (t) Rex v. Crocker, cor. Le Blanc, J., Salisbury Sum. Ass. 1805. 2 New R. 8T, 88, ante, p. 
 390. The prisoner was convicted, and the case was submitted to the consideration of the 
 twelve judges; but their opinion upon this point does not appear. The prisoner was in fact 
 pardoned, and discharged ; but there were several objections to the conviction. It is, how- 
 ever, understood that the judges were of opinion that the witness was incompetent. See 
 ante, 391, note (z), and Russ. & Ry. 97. 
 
 (u) Rex v. Taverner, a Carr. Supp. 195. 4 C. & P. 413, note (<t). 
 
 f {1 Harper's (S. C.) Rep. 59. Slate v. retty.] 
 a Eng. Com. Law Reps. xix. 449.
 
 CHAP. XXXII. § V.] OF THE EVIDENCE. 405 
 
 received and reserved the point, when the counsel for the prosecution 
 declined to press the evidence. (v) 
 
 Upon indictments for uttering forged notes, other forged notes of Other forg- 
 other and different banks, either found upon the prisoner or uttered by ^ e n °*j? 8 ' 
 him, have been held admissible to prove guilty knowledge. Thus on other 
 an indictment for uttering a forged Rochdale bank-note, two forged 51. ha - n ^s are 
 Bank of England notes have been admitted. (?e) So on an indictment 
 for uttering a forged bl. note of the Bank of Ireland, two forged notes 
 of Messrs. Ball and Co., bankers, Dublin, have been held admissible. (.r) 
 
 So on an indictment for engraving and uttering notes of a foreign Engraving 
 prince, evidence of a recent engraving or uttering notes of another otaernotes> 
 foreign prince, is admissible to prove guilty knowledge. The prisoner 
 was indicted for forging and uttering a Polish note. In support of the 
 scienter as to this note, the prosecutor gave in evidence what took place 
 at a meeting on 24th August, 1835, between the prisoner Balls, Harris, 
 and a person called Turner, at which Balls agreed with Flauru to make 
 him one thousand Austrian notes for fifty florins each, at the price of 
 three shillings for each note : 30/. was paid by Flaum to Balls in ad- 
 vance, and the 30/. was to be reckoned in account. Harris told Flaum 
 that the notes should be ready in six weeks; Flaum was to have secu- 
 rity for the money, and a bill of exchange was drawn by Balls upon 
 Turner, which Turner accepted, *and Balls signed and indorsed the *406 
 bill, and Harris also indorsed it; this evidence was objected to by the 
 counsel for the prisoner, as it was a transaction relative to Austrian 
 notes, which were of quite a different description from Polish notes, 
 and besides which no Austrian notes were in fact made, and the trans- 
 action took place a week before the 1st of September. The learned 
 judge admitted the evidence. The prosecutor had begun his case by 
 proving that in September, 1834, the prisoner had brought to an en- 
 graver a front plate already engraved, and a back plate; the back plate 
 was not found to answer, and the engraver got another back plate, 
 which the prisoner directed the engraver to engrave; the prisoner, who 
 as well as the engraver, was ignorant of the Polish language, said it 
 was for a mining ticket; the engraver completed the back plate, and 
 took off 500 impressions from the front plate, and 500 impressions 
 from the back plate, and for which Balls paid him; and the engraver 
 stated that the plates had been a great deal used since the engraver 
 used them. This evidence was objected to, but the learned judge 
 admitted it, as there were counts for forging the note in the indictment, 
 as well as for uttering: and the learned judge did not then know 
 whether the note in the indictment might or might not turn out to be 
 taken from those plates; at the close of the case, however, it appeared 
 that those plates were calculated to make impressions of Polish cash 
 notes, and that they could not have produced the note in the indict- 
 ment. That put an end to the counts for forging the notes, and the 
 learned judge thought there might be a question, as the note was not 
 
 (v) Rex v. Smith, a 4 C. & P. 411. The date of the bill on which the indictment was 
 founded was the 1st March, 1830, and it had been uttered on the 15th of May, 1830; the 
 Other bills were passed in June, 1830, but their dates are not mentioned. 
 
 (w) Sunderland's case, 1 Lew. 102. 
 
 (x) Kirkwood's case, 1 Lew. 103, Littledale, J. See also Martin's case. 1 Lew. 104, where 
 the same point was ruled by the same learned judge, but it is not stated of what bank the 
 notes were. 
 
 a Eng. Com. Law Reps. xix. 448. 
 
 Vol. ii.— 27
 
 406 OF FORGERY. [BOOK IV. 
 
 taken from those plates, whether the evidence ought to have been 
 retained as admissible, so as to submit it to the jury in support of the 
 scienter on the remaining counts. The prisoner was found guilty, and 
 upon a case reserved, the judges determined that the evidence was 
 admissible, and the conviction was affirmed. (y) 
 As to the In one case(z) where the prisoners were indicted for uttering forged 
 a.lmissibi- notes of the Edinburgh bank, it was doubted whether the uttering 
 ed notes "forged notes of the Paisley Bank, which formed the subject-matter of 
 the subjects another indictment, was admissible. In another case it was held, that 
 difltments 1 " on an indictment for uttering a forged one pound Bank of England 
 note, the uttering another forged one pound note, the subject of an- 
 other indictment, could not be given in evidence. (a) But in a subse- 
 quent case where the prisoner was indicted for uttering a forged hi. note 
 of the Bank of Ireland, and two forged notes of the bank of Messrs. 
 Ball and Co., bankers, Dublin, were tendered in evidence, and it was 
 objected that these notes being the subject-matter of another indictment, 
 were inadmissible; Littledale, J., without hesitation, overruled the 
 objection. (b\ And in another case the same learned judge held that 
 forged notes, the subject of other indictments, were admissible, although 
 the names of the witnesses who were called to prove them forged, and 
 to connect the prisoners with them, were not upon the back of the 
 bill.(c) So on an indictment for uttering a forged Bank of England 
 *407 note, Alderson, B., *admitted another forged Bank of England note in 
 evidence, although the subject of another indictment. (d\ And in a late 
 case Lord Deninan, C. J., said, that "he could not conceive how the 
 relevancy of the fact to the charge could be affected by its being the 
 subject of another charge;" and offered to admit the evidence. (e) 
 Other notes But if the possession of other forged instruments is offered in evi- 
 provecHo dence to prove a guilty knowledge, there must be a regular evidence 
 be forged, that such instruments are forged, and proof that the prisoner returned 
 the money on any such instrument, and received the instrument back 
 again, is not sufficient without producing the instrument, or duly ac- 
 counting for its non-production. (/) 
 A former Upon an indictment for uttering a hi. note, it appeared that on a for- 
 uttermg of mer occas i on the prisoner had paid awav a 11. note, that the woman to 
 
 a supposed . r .,111 ■, r, • i i i 
 
 forged note whom ne paid it, on finding it to be bad, sent word of it to the barracks, 
 
 which has whereupon the prisoner, accompanied by one of the Serjeants of the 
 
 troyed and regiment, came to the woman's house to ask for the note, and to give 
 
 is not good money in exchange for it. They found, however, that the woman 
 
 b'avTbeen nac ^ gi yen tne note to tne constable, whom they immediately sent for : 
 
 forged. the constable, however, did not come to them, and the serjeant and the 
 
 prisoner were obliged to return to the barracks without seeing him. But 
 
 before they went away, they left two half sovereigns to make good the 
 
 debt. Soon after they were gone, the constable came in, and finding 
 
 that the woman was satisfied as to her money, he put the note into the 
 
 (y) Rex v. Balls,* R. & M. C. C. R. 470. S. C. 7 C. & P. 426, 429. 
 (z) Hodgson's case, 1 Lew. 103. Hullock, B., 1827. 
 
 (a) Rex v. Smith, b 2 C. & P. 633. Vaughan, B., 1827. 
 
 (b) Kirkwood's case, 1 Lew. 103, 1830. 
 
 (r\ Martin's case, 1 Lew. 104. Littledale. J. 
 
 (</) Reg. v. Josiah Aston. Worcester Spr. Ass. 1838. MS. C. S. G. 
 
 (e) Reg. v. Lewis, Arch. Cr. P. 365. 8th edit. 
 
 (/) Rex v. Millard, Russ. & Ry. 245. 
 
 a Eng. Com. Law Reps, xxxii. 571. b lb. xii. 295.
 
 CHAP. XXXII. § V.] OF THE EVIDENCE. 407 
 
 fire. When the facts relating to the uttering the 51. note had been 
 gone through, the counsel for the prosecution was about to prove these 
 facts respecting the 11. note. But Bayley, J., interposed, and expressed 
 a strong doubt whether they were admissible, no evidence having been 
 given of the note being a forged note, and the note itself not being 
 produced ; he however consented to receive the evidence, stating, that 
 if the prisoner should be convicted, he would reserve the point for the 
 opinion of the judges. (#) 
 
 It has been held on the trial of an indictment for forging a bill of Statements 
 exchange, that evidence of what the prisoner said respecting other bills ^ ectin^ 
 of exchange which are not in evidence, is not admissible. (Ji\ And al- bills which 
 though a letter written by the prisoner to a third person, stating that arenotpro- 
 that person's name is on another bill, and desiring him not to say that proved to 
 that bill is a forgery, is receivable in evidence, yet the jury ought not be for g ed - 
 to consider it as evidence that the other bill is forged, unless such bill 
 is produced, and the forgery of it proved in the regular way. Upon an 
 indictment for forging and uttering an Acceptance of W. Prosser to a *408 
 bill of exchange, a letter written by the prisoner to one Lawrence, in 
 which he stated that a 20?. bill was the last one of Prosser's with Law- 
 rence's name upon it, and requested Lawrence on no account to say it 
 was a forged bill, and to be careful of speaking to Prosser, was tendered 
 in evidence, and objected to, as it related to another bill, and, at all 
 events, that the bill to which it referred ought to be put in ; Coleridge, 
 J., held the letter receivable, and in summing up, said, "With respect 
 to the letter that has been read, I think that you ought not to take it as 
 proof that the bill mentioned in it is forged. Bills which are not the 
 subject of indictment, are often given in evidence to show guilty know- 
 ledge, but there is in such cases strict proof that those bills are forged. 
 No such evidence is given here, nor is the bill even produced. It there- 
 fore may be, that the bill alluded to in the letter is in some respects 
 irregular, but still it may not be a forgery."(?) 
 
 The punishment of forgery at common law is, as for a misdemeanor, Punish- 
 by fine, imprisonment, and such other corporal punishment as the court ment * 
 in their discretion, shall award (ii\ The punishment ordained for the 
 offence by the statute law will be mentioned, with the other enactments 
 of the different statutes, in the succeeding chapters. 
 
 A consequence of the judgment for forgery was an incapacity to beincompe- 
 a witness until restored to competency by the king's pardon. (y) tency to be 
 
 (g) Phillip's case, 1 Lew. 105. The result of the case is not stated, but it is said that the 
 learned judge subsequently expressed the following opinion : " That the prosecutor could 
 not give in evidence anything that was said by the prisoner at a time collateral to a former 
 uttering, in order to show that what he said at the time of such former uttering was false, 
 because the prisoner could not be prepared to answer or explain evidence of that descrip- 
 tion. That the prisoner is called upon to answer all the circumstances of a case under con- 
 sideration, but not the circumstances of a case which is not under consideration : that the 
 prosecutor is at liberty to show other cases of the prisoner having uttered forged notes, and 
 likewise his conduct at the time of uttering them. But that what he said or did at another 
 time collateral to such other utterings, could not be given in evidence, as it was impossible 
 that the prisoner could not be prepared to combat it." 
 
 (A) Reg. v. Cooke, a 8 C. & P. 586, Patteson, J. 
 
 (i) Rex v. Forbes, b 7 C. & P. 224. See this case, ante, p. 341. 
 
 {it) 1 Hawk. P. C. c. 70, s. 1. 4 Bla. Com. 247. Bac. Ab. Forgery. 2 East, P. C. c. 19, 
 s - 69, p. 1003. The corporal punfshment of the pillory may not now be inflicted for this of- 
 fence ; 56 Geo. 3, c. 138. 1 Vict. c. 23. 
 
 U) Co. Lit. 6 6. 2 Hawk. P. C. c. 46, s. 101. Com. Dig. Tcstmoign, A. 3. But see now 
 the 9 Geo. 4, c. 32, s. 3, in the Chapter on Evidence. C. S. G. 
 
 a Eng. Com. Law Reps, xxxiv. 538. b lb. xxxii. 497.
 
 408 OF FORGERY. [BOOK IV. 
 
 a witness And the 12 Geo. 1, c. 29, provides, that in case persons convicted of 
 
 mcnV" B " f° r ? cr y shall afterwards practise as attorneys, solicitors or law agents, 
 
 the court where the suit or action is brought shall, on complaint, ex- 
 
 Attorneys . . . o > r > 
 
 convicted amine the matter in a summary way, in open court, and cause the 
 of forgery offender to he transported for seven vears. 
 
 *in 'I utter- 
 
 waT ds The principal statutes relating to the crime of forgery having heen 
 
 practising, consolidated by the 1 Wm. 4, c. 66, which contains general provisions 
 applicable to all the offences affected by that act, it is thought expe- 
 dient to introduce those provisions in this place, in order that they may 
 be more readily referred to in the subsequent chapters. 
 1 Wm. 4, e. The 1 Wm. 4, c. 66, s. 1, reciting that ''several offences relating to 
 66. forged writings, and to other forged and counterfeit matters, and to false 
 
 personation, false oaths, false entries, and other false matters, are now 
 by virtue of several statutes, punishable with death; and that it is ex- 
 pedient that none of these offences shall hereafter be punishable with 
 death, unless the same shall be made punishable with death by this act; 
 and also that the statutes concerning such of these offences, whether 
 punishable with death or otherwise, as may more frequently or seriously 
 affect the interests of his majesty or his subjects, should be amended, 
 No forge- and consolidated into this act," enacts, "that where by any acts now 
 nes or j n f orce an y person falsely making, forging, counterfeiting, erasing, 
 <hed of- or altering any matter whatsoever, or uttering, publishing, offering, 
 fetees, disposing of, putting away, or making use of any matter whatsoever, 
 now C cani- knowing the same to be falsely made, forged, counterfeited, erased, or 
 tal, shall altered, or any person demanding or endeavouring to receive or have 
 urde«s Ue S ° an y tn ^ n S' or to d° or cause to be done any act, upon or by virtue of 
 expressly any matter whatsoever, knowing such matter to be falsely made, forged 
 made capi- counterfeited, erased, or altered, would, according to the provisions con- 
 act, tained in any of the said acts, be guilty of felony, and liable to suffer 
 *409 death as a felon ; or where by any acts now in force any person falsely 
 personating another, or falsely acknowledging any thing in the name of 
 another, or falsely representing any other person than the real party to 
 be such real party, or wilfully making a false entry in any book, account, 
 or document, or in any manner wilfully falsifying any part of any book, 
 account, or document, or wilfully making a transfer of any stock, an- 
 nuity, or fund, in the name of any person not being the owner thereof, 
 or knowingly taking a false oath, or knowingly making a false affidavit 
 or false affirmation, or demanding or receiving any money or other 
 thing by virtue of any probate or letters of administration, knowing 
 the will on which such probate shall have been obtained to have been 
 false or forged, or knowing such probate or letters of administration 
 to have been obtained by means of any false oath or false affirmation, 
 would, according to the provisions contained in any of the said acts, 
 be guilty of feluny, and liable to suffer death as a felon; or where by 
 any acts now in force any person making or using, or knowingly having 
 in his custody or possession, any frame, mould or instrument for the 
 making of paper, with certain words visible in the substance thereof, 
 or any person making such paper, or causing certain words to appear 
 visible in the substance of any paper, would, according to the provi- 
 sions contained in any of the said acts, be guilty of felony, and liable 
 to suffer death as a felon ; then, and in each of the several cases as 
 aforesaid, if any person shall, after the commencement of this act be 
 convicted of any such felony as is hereinbefore mentioned, or of aiding.
 
 CHAP. XXXII. § V.] OF THE PUNISHMENT. 409 
 
 abetting, counselling, or procuring the commission thereof, such per- 
 son shall not suffer death for the same, unless the same shall be made 
 punishable with death by this act, and if the same shall not be made All forge- 
 punishable with death by this act, in such case every person who shall, ^ ^ r " t "' 
 after the commencement of this act, be convicted of any such felony, tal, and not 
 or of aiding, abetting, counselling or procuring the commission thereof, jj 601 ! 11 ^ 1 so 
 shall be liable, at the discretion of the court, to be transported beyond shall be 
 the seas for life, or for any term not less than seven years, or to be im- punished 
 prisoned for any term not exceeding four years nor less than two years ; portation. ~ 
 provided always, that nothing herein contained shall affect or alter any Saving of 
 
 acts relating; to the coin of this realm, or to any coin of any other realm ? c \ re a *" 
 ° ' J J ing to coin. 
 
 lawfully current within this realm." 
 
 Sec. 23, reciting the 5 Eliz. c. 14, and that there are certain acts by Punish- 
 which persons convicted of certain offences mentioned in those acts are™!^* ^* 16 
 subjected to the same pains and penalties as are imposed by the said act 14, adopted 
 of Queen Elizabeth for the offences first enumerated in that act, and b y othei * 
 that the said act is thereinafter repealed and that it is expedient to sub- e |j ^nd*" 1 " 
 stitute other punishments in lieu of the punishments of that act, enacts, others sub- 
 that "every person who shall, after the commencement of this act, be stl 
 convicted of any offence which is now subjected, by any act or acts, to 
 the same pains and penalties as are imposed by the said act of Queen 
 Elizabeth for any of the offences first enumerated in that act, shall be 
 guilty of felony, and shall, in lieu of such pains and penalties, be liable, 
 at the discretion of the *court, to be transported beyond the seas for *410 
 any term not exceeding fourteen years, nor less than seven years, or to 
 be imprisoned for any term not exceeding three years nor less than one 
 year." 
 
 By sec. 24, « If any person shall commit any offence against this act, All forgers 
 or shall commit any offence of forging or altering any matter whatso-j^ ^ e '^ e 
 ever, or of offering, uttering, disposing of, or putting off any matter tried in the 
 whatsoever, knowing the same to be forged or altered, whether the co " ut y 
 
 rr ■ i liii-Tii 1 • where they 
 
 offence in any such case shall be indictable at common law or by virtue are appre- 
 of any statute or statutes, made or to be made, the offence of every such bended or 
 offender may be dealt with, indicted, tried, and punished, and laid and toc i y# 
 charged to have been committed, in any county or place in which he 
 shall be apprehended or be in custody, as if his offence had been actually 
 committed in that county or place; and every accessory before or after 
 the fact to any such offence, if the same be a felony, and every person 
 aiding, abetting, or counselling the commission of any such offence, if 
 the same be a misdemeanor, may be dealt with, indicted, tried, and 
 punished, and his offence laid and charged to have been committed in 
 any county or place in which the principal offender may be tried." 
 
 By sec. 25, " In the case of every felony punishable under this act, As to the 
 every principal in the second degree, and every accessory before the fact, P rin °iP ala 
 shall be punishable with death, or otherwise in the same manner as the C ond de- 
 principal in the first degree is by this act punishable ; and every acccs- £ rec and 
 sory after the fact to any felony punishable under this act shall, on r i es . 
 conviction, be liable to be imprisoned for any term not exceeding two 
 years." 
 
 By sec. 26, » Where any person shall be convicted of any offence Tho court 
 punishable under this act, for which imprisonment may be awarded, it ™ ar diabortr 
 shall be lawful for the court to sentence the offender to be imprisoned, or solitary 
 with or without hard labour, in the common gaol or house of correction, eonfine :
 
 410 OF FORGERY. [BOOK IV. 
 
 ment for and also to direct that the offender shall be kept in solitary confinement 
 azainst ^ or ^ ne whole or an V portion or portions of such imprisonment, as to the 
 this act. court in its discretion shall seem meet. "(j) 
 
 As to of- By sec. 27, " Where any offence punishable under this act shall be 
 fc " t tBj°. ™" committed within the jurisdiction of the Admiralty, the same shall be 
 sea. dealt with, inquired of, tried, and determined in the same manner as any 
 
 other offence committed within that jurisdiction." 
 Rule of in- By sec. 28, " Where the having any matter in the custody or posses- 
 t ^ r ^ s a t " sion of any person is in this act expressed to be an offence, if any per- 
 eriminal son shall have any such matter in his personal custody or possession, (k\ 
 po ^ s sl t ° n ' or shall knowingly and wilfully have any such matter in any dwelling- 
 parties in- house or other building, lodging, apartment, field, or other place, open 
 tended to or indoge^ whether belonging to or occupied by himself or not, and 
 e(I . whether such matter shall be so had for his own use or for the use or 
 
 benefit of another, every such person shall be deemed and taken to have 
 such matter in his custody or possession within the meaning of this act ; 
 and where the committing of any offence with intent to defraud any per- 
 son whatsoever is made punishable by this act, in every such case the 
 word " person" shall throughout this act be deemed to include his 
 majesty or any foreign prince or state, or any body corporate, or any 
 *411 company or society of persons *not incorporated, or any person or num- 
 ber of persons whatsoever who may be intended to be defrauded by such 
 offence, whether such body corporate, company, society, person, or 
 number of persons shall reside or carry on business in England or else- 
 where, in any place or country, whether under the dominion of his ma- 
 jesty or not; and it shall be sufficient in any indictment to name one 
 person only of such company, society, or number of persons, and to 
 allege the offence to have been committed with intent to defraud the 
 person so named, and another or others, as the case may be." 
 This act By sec. 29, " This act shall not extend to any offence committed in 
 
 te°ndto eX " Scotland or Ireland." 
 
 Scotland or By sec. 30, "where the forging or altering any writing or matter 
 buttoan whatsoever, or the offering, uttering, disposing of, or putting off any 
 ply to the writing or matter whatsoever, knowing the same to be forged or altered, 
 forging or j s i n ^j s act expressed to be an offence, if any person shall, in that 
 
 uttering in _ r -Tv* i i » 1 <v 
 
 England P ar t of the United Kingdom called England, forge or alter, or offer, 
 documents utter, dispose of, or put off, knowing the same to be forged or altered, 
 to be made an y sucn writing or matter, in whatsoever place or county out of Eng- 
 or actually land, whether under the dominion of his majesty or not, such writing 
 Enlrhin'd -° or mat ter may purport to be made or may have been made, and in 
 and to forg- whatever language or languages the same or any part thereof may be 
 lng or ut- expressed, every such person, and every person aiding, abetting, or 
 England counselling such person, shall be deemed to be an offender within the 
 bills of ex- meaning of this act, and shall be punishable thereby in the same manner 
 promissory as if the writing or matter had purported to be made or had been made 
 notes, i n England; and if any person shall in England forge or alter, or offer, 
 purporting utter, dispose of, or put off, knowing the same to be forged or altered, 
 to be pay- any bill of exchange or any promissory note for the payment of money, 
 Ensrland or an ^ indorsement on or assignment of any bill of exchange or promis- 
 sory note for the payment of money, or any acceptance of any bill of 
 exchange, or any undertaking, warrant, or order for the payment of 
 
 (/) See the 1 Vict. c. 90, s. 5, post, p. 413. 
 
 (k) See vol. 1, p. 83, as to the construction of these words in the 2 Wm. 4, c. 34. s. 8.
 
 CHAP. XXXII. § V.] OF THE PUNISHMENT. 411 
 
 money, or any deed, bond, or writing obligatory for the payment of 
 money, (whether such deed, bond, or writing obligatory shall be made 
 only for the payment of money, or for the payment of money together 
 with some other purpose,) in whatever place or country out of England, 
 whether under the dominion of his majesty or not, the money payable 
 or secured by such bill, note, undertaking, warrant, order, deed, bond, 
 or writing obligatory may be or may purport to be payable, and in 
 whatever language or languages the same respectively or any part 
 thereof may be expressed, and whether such bill, note, undertaking, 
 warrant, or order be or be not under seal, every such person, and every 
 person aiding, abetting, or counselling such person, shall be deemed to 
 be an offender within the meaning of this act, and shall be punishable 
 thereby in the same manner as if the money had been payable or had 
 purported to be payable in England." 
 
 The 2 & 3 Wm. 4, c. 123, b. 1, reciting that by the 1 Win. 4, c. 66, 2 & 3 Wm. 
 "it was provided, that if any person should after the commencement of p e ^.' gon s 
 that act be convicted of any forgery, or other offences therein named or hereafter 
 described, for which he would at the time of the passing of that act c ° nv . Icted 
 
 or criDics 
 
 have been liable to the punishment of death, he should not suffer death punishable 
 for the same, unless the same should be made punishable with death by wit j 1 deata 
 that act ; and whereas by the law *and practice now prevailing in Scot- c i tec i act 
 land and in Ireland the penalty of death may be awarded, in certain shall not 
 cases, for forgery, for uttering counterfeit instruments, and for false per- ^ eatn ^ u t 
 sonation ; and whereas it is expedient to abolish the punishment of shall be 
 death for offences of that nature, except so far as relates to wills and ^| l " ^;'[ fe " 
 certain powers of attorney, as hereinafter mentioned," enacts, " that *412 
 where any person shall after the passing of this act be convicted of any 
 offence whatsoever for which the said act enjoins or authorizes the in- 
 fliction of the punishment of death, or where any person shall after the 
 passing of this act be convicted in Scotland or Ireland of any offence 
 now punishable with death, which offence shall consist wholly or in part 
 of forging or altering any writing, instrument, matter, or thing what- 
 soever, or of offering, uttering, or disposing of any writing, instrument, 
 matter, or thing whatsoever, knowing the same to be forged or altered, 
 or of falsely personating another, then and in each of the cases afore- 
 said the person so convicted of any such offence as aforesaid, or of pro- 
 curing or aiding or assisting in the commission thereof, shall not suffer 
 death, or have sentence of death awarded against him, but shall be 
 transported beyond the seas for the term of such offender's life. "(a) 
 
 By sec. 2, " Notwithstanding anything hereinbefore contained this This act 
 act shall not be construed to affect or alter the said recited act, or any * ot }° t ex " 
 other act or law now in force, so far as the same may authorize the punish- 
 punishment of death to be inflicted upon any person convicted, either mente for 
 in England, Scotland, or Ireland, of forging or altering, or of offering, altering 
 uttering, or disposing of, knowing the same to be forged or altered, any wills and 
 will, testament, codicil, or testamentary writing, with intent to defraud I)()Wers f 
 any body corporate or person whatsoever, or of forging or altering, or attorney. 
 of uttering, knowing the same to be forged or altered, any power of 
 attorney or other authority to transfer any share or interest of or in any 
 
 (a) By the 3 & 4 Wm. 4, c. 44, s. 3, all persons punishable under this section were made 
 liable, previously to their being transported, to be imprisoned with or without hard labour 
 in the common gaol or house of correction for any term not exceeding four years nor less 
 than one year.
 
 412 
 
 OF FORGERY. 
 
 [BOOK IV. 
 
 stock, annuity, or other public fund which now is or hereafter may be 
 transferable at the Bank of England or South Sea House, or at the 
 Bank of Ireland, or to receive any dividend payable in respect of any 
 such share or interest, with intent to defraud any body corporate or 
 person whatsoever, or of procuring, aiding, or assisting in the commis- 
 sion of any of the said offences, but that the punishment for each and 
 every of the said offences, and for procuring, aiding, or assisting in the 
 commission thereof, shall continue to be the same as if this act had not 
 been passed." 
 1 Vict. c. The 1 Vict. c. 84, entitled, " An act to abolish the punishment of 
 ries hereto " c ^ eatn m cases of forgery," in sec. 1, recites so much of the 1 Win. 4, 
 
 fore pun- 
 ishable 
 with death, 
 by the re- 
 cited acts, 
 how pun- 
 ishable 
 hereafter. 
 
 <413 
 
 c. 66, as enacts that every person guilty of certain offences therein men- 
 tioned, viz. } the offences, which are mentioned in the second section of 
 2 & 3 Win. 4, c. 123, shall suffer death as a felon, and as enacts that 
 " every principal in the second degree, and every accessory before the 
 fact, shall be punishable with death or otherwise in the same manner 
 as the principal in the first degree was by that act punishable ;" and 
 also recites the 2 & 3 Wm. 4, c. 59, s. 19, the 2 & 3 Wm. 4, c. 123, s. 
 2, the 2 & 3 Wm. 4, c. 125, s. 64, the 5 & 6 Wm. 4, *c. 45, s. 12, and 
 the 5 & 6 Wm. 4, c. 51, s. 5, and that it is expedient that none of the 
 hereinbefore mentioned offences should be punishable with death, and 
 enacts, "that if any person shall after the commencement of this act 
 (1st of October, 1837) be convicted of auy of the offences hereinbefore 
 mentioned, such person shall not suffer death, or have sentence of death 
 awarded against him or her for the same, but shall be liable, at the dis- 
 cretion of the court, to be transported beyond the seas for life, or for 
 any term not less than seven years, or to be imprisoned(A for any term 
 not exceeding four years, nor less than two years." 
 Persons Sec. 2, recites the 2 & 3 Wm. 4, c. 123, s. l,(m) the 3 & 4 Wm. 4, 
 
 punishable 51 2 7, and the 3 & 4 Wm. 4, c. 44, s. 3, and enacts, that « so 
 
 with trans- ' ' ... 
 
 portation much of the three lastly hereinbefore in part recited acts as relates to 
 4or llfe > the punishment of persons convicted of offences for which they are 
 recited liable under the said act of the second and third years, or the said act 
 acts, how f the third and fourth years respectively of his late majesty's reign, to 
 be transported for life, shall from and after the commencement of this 
 act be and the same is hereby repealed ; and that from and after the 
 passing of this act, every person convicted of any of such offences shall 
 be liable, at the discretion of the court, to be transported beyond the 
 seas for the term of the natural life of such person, or for any term not 
 less than seven years, or to be imprisoned(?i\ for any term not exceed- 
 ing four years nor less than two years." 
 
 By sec. 3, "when any person shall be convicted of any offence pun- 
 ishable under this act, for which imprisonment may be awarded, it shall 
 be lawful for the court to sentence the offender to be imprisoned, with 
 or without hard labour, in the common gaol or house of correction ; and 
 also to direct that the offender shall be kept in solitary confinement for 
 any portion or portions of such imprisonment, not exceeding one mouth 
 at any one time, and not exceeding three months in any one year, as to 
 the court in its discretion shall seem meet." 
 
 The 1 Vict. c. 90, s. 4, reciting that " by the laws now in force it is 
 lawful for the court before whom any person shall be convicted of cer- 
 
 {!) With or without hard labor. See sec. 3, infra. (m) Ante, p. 411. 
 
 (n) With or without hard labour. See the next section. 
 
 punish 
 
 able. 
 
 Hard la- 
 bour with 
 imprison- 
 ment. 
 Solitary 
 confine- 
 ment.
 
 CHAP. XXXIII.] OF FORGING RECORDS AND JUDICIAL PROCESS. 413 
 
 tain offences for which imprisonment or imprisonment with hard labour 
 may be awarded, to direct that the offender shall be kept in solitary 
 confinement for the whole or any portion or portions of such imprison- 
 ment, or of such imprisonment with hard labour," enacts, " that after 
 the commencement of this act (1 Oct. 1837) it shall not be lawful for 
 any court to direct that any offender shall be kept in solitary confine- 
 ment for any longer periods than one month at a time, or than three 
 months in the space of one year." 
 
 ♦CHAPTER THE THIRTY-THIRD. *414 
 
 OF THE FORGING, ALTERING, &C, OF RECORDS AND JUDICIAL PROCESS. 
 
 It is clear that, by the common law, a person may be guilty of for- 
 gery by falsely and fraudulently making or altering any matter of re- 
 cord ; for, since the law gives the highest credit to all records, it cannot 
 be but of the utmost ill consequence to. the public to have them either 
 forged or falsified. (a) If, therefore, a man should insert in an indict- 
 ment the names of those against whom in truth it was not found, it 
 would be forgery. (&)f 
 
 Even if the offence should not constitute a forgery ; yet in no in- 
 stance can the counterfeiting or alteration of any judicial process or 
 matter be less than a very high misdemeanor, as tending to stop or im- 
 pede the course of justice, or to encroach upon the judicial power. (c) 
 The defacing or razure of any record, without due authority, is an 
 offence at common law, highly punishable by fine and imprisonment. (d) 
 And it has been holden that any person making or knowingly using a 
 false affidavit, taken abroad, (though a forging could not be assignable 
 on it here,) in order to mislead our own courts, and to prevent public 
 justice, is punishable by indictment for a misdemeanor. (e) 
 
 Judges are highly punishable at common law for offences of this 
 kind.(/) And the statute 8 Rich. 2, c. 4, applies expressly to judges 
 as well as to clerks. 
 
 The 8 Rich. 2, c. 4, enacts, that "if any judge or clerk" offend by 8 Rich. 2, c. 
 
 (a) 1 Hawk. P. C. c. 70, s. 1, 8. Bac. Ab. Forgery (B.) Roll. Ab. 65, 76. Yelv. 146. Cro. 
 Eliz. 178. 
 
 (b) Rex v. Marsh and others, 3 Mod. 66. 1 Hawk. P. C. c. 70, s 2. 
 
 (c) 2 East, P. C. c. 19, s. 9, p. 866. 
 
 (d) 3 Inst. 71, 72. 1 Hale, 646. 1 Hawk. P. C. c. 47, s. 1. 
 
 (e) Omealy v. Newell, 8 East, 364. And see Fawcett's case, 2 East, P. C. c. 19, s. 7, p. 
 8G2. Ante, p. 360. 
 
 (/) 3 Inst. 72. 1 Hale, 646. In 3 Inst. 72, the case of Justice Ingham, (or Hengham, or 
 as Hawkins says, Ingram) who was a judge in the reign of Edward I., is mentioned thus : 
 He paid " eight hundred marks for a fine, for that a poore man being fined in an action of 
 debt at thirteen shillings four-pence, the said justice, moved with pity, caused the roll to be 
 rased, and made it six shillings eight-pence. This case Justice Southcot remembered, when 
 Catlyn, Chiefe Justice of the King's Bench, in the reign of Queen Elizabeth, would have 
 ordered a rasure of a roll in the like case, which Southcot, one of the judges of that court, 
 utterly denied to assent unto, and said openly, that he meant not to build a clock-house; 
 for (said he) with the fine that Ingham paid for the like matter, the clock-house at West- 
 minster was builded, and furnished with a clock, which continueth to this day." 
 
 f [Where a person puts his name on a blank piece of paper and agrees that the officer 
 may fill up a delivery bond above his signature, the officer commits no forgery, so long as 
 he acts within the scope of his authority. Griffith v. The Commonwealth, 5 J. J. Marsh. 
 320.]
 
 414 OF FORGING RECORDS AND JUDICIAL PROCESS. [BOOK IV. 
 
 4. As to the false entering of pleas, raising of rolls, or changing of verdicts, to 
 Ac* falsely tne dispersion of any one, he shall be punished by paying a fine to the 
 entering king, and making satisfaction to the party. 
 
 Pl *!i1 < fT *The 1 Win. 4, c. 66, s. 11, enacts, "that if any person shall forge 
 , ,, r , or counterfeit, or shall utter knowing the same to be forged or counter- 
 66, s. 11. feited, the great seal of the United Kingdom, his majesty s privy seal, 
 Forgingthe an( j privy signet of his majesty, his majesty's royal sign manual, any 
 privy seal', of his majesty's seals appointed by the twenty-fourth article of the 
 privy sig- un i n to be kept, used, and continued in Scotland, the great seal of Ire- 
 sign man- land, or the privy seal of Ireland, every such offender shall be guilty of 
 ual, Ac, high treason, and shall suffer death accordingly :(g^j provided always, 
 treason. ^^ nothing contained in an act passed in the seventh year of the reign 
 of King William the Third, entitled ' an act for regulating the trials 
 in cases of treason and misprision of treason/ or any act passed in the 
 seventh year of the reign of Queen Anne, intituled < an act for improv- 
 ing the union of the two kingdoms,' shall extend to any indictment, or 
 to any proceedings thereupon, for any of the treasons hereinbefore men- 
 tioned." 
 52 Geo. 3, The 52 Geo. 3, c. 143, enacts, " that if any person shall make, forge, 
 c. 143, s. 5. or counterfeit, or cause or procure to be made, forged, or counterfeited, 
 forging, the mark or hand of the receiver of the prefines at the alienation office, 
 Ac, the upon any writ of covenant whereby such receiver or any other person 
 receiver o/ sna ^ or ma y be defrauded, or suffer any loss thereby ; every person so 
 the prefines offending, and being thereof convicted, shall be adjudged guilty of 
 at ^ al of f e l° ny > an d sna ^ su ff er death as a felon, without benefit of clergy."(7i) 
 fice. By the 1 & 2 Vict. c. 94, s. 1, the records in the Tower of London, 
 
 1 & 2 Vict. Chapter House of Westminister, Boll's Chapel, Petty Bag Office, offices 
 e " in the custody of the Queen's Bemembrancer of the Exchequer, or of 
 
 any other officer of the Exchequer, Augumentation Office, First Fruits 
 and Tenths' Office, office of the Land Bevenue and Enrolments, of the 
 late auditor of the land revenues of England and Wales, and the re- 
 cords, lately deposited in the office of the Bolls of the Exchequer, and 
 now in the custody of her majesty's Comptroller of the Exchequer, the 
 records belonging to the Courts of Chancery, Exchequer, and Admi- 
 ralty, Queen's Bench, Common Pleas, and Marshalsea, the records of 
 the lately abolished Courts of Wales and of Chester, Durham, and of 
 
 (g) The present punishment is transportation for life, or for any term not less than seven 
 years, or imprisonment for any term not exceeding four nor less than two years, "with or 
 without hard labour, in the common gaol or house of correction; and the offender may be 
 directed to be kept in solitary confinement for any portion or portions of such imprisonment, 
 not exceeding one month at any one time, and not exceeding three months in any one year, 
 as to the court in its discretion shall seem meet. See the 1 Vict. c. 84, ss. 2 and 3, ante, p. 
 413. The 2 & 3 Wm. 4, c. 123, ante, p. 411, took away the punishment of death in all cases 
 of forgery, except the forging of wills and powers of attorney, and substituted transporta- 
 tion for life in its place. In treason there are no accessories, but all are principals. Fost. 
 341. C. S. G.. 
 
 (h) The 52 Geo. 3, c. 143, not being expressly repealed by the 1 Wm. 4, c. 66, and the for- 
 geries mentioned in the 52 Geo. 3, c. 143, not being made capital by the 1 Wm. 4, c. 66, 
 they are now punishable (under the 1 Wm. 4, c. 66, s. 1 and 26, ante, p. 408 and 410, and the 
 1 Vict. c. 90, s. 5, ante, p. 413,) with transportation for life, or for any term not less than 
 seven years, or imprisonment for any term not exceeding four nor less than two years, with 
 or without hard labour, in the common gaol or house of correction, and the offender may be 
 directed to be kept in solitary confinement for any portion or portions of such imprisonment 
 not exceeding one month at anyone time, and not exceeding three months in any one year, 
 as to the court in its discretion shall seem meet. As to the punishment of principals in the 
 second degree and accessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410, and 1 Vict. c. 00, 
 s. 5, ante, p. 413. C. S. G.
 
 CHAP. XXXIV.] FORGERIES RELATING TO PUBLIC FUNDS, ETC. 415 
 
 the Isle of Ely, are placed under the charge of the Master of the 
 Rolls. (A And by sec. 8, *a public record office is to be established, *416 
 and by sec. 12, the Master of the Rolls may allow a copy to be made 
 of any of the said records, which is to be " certified as a true and 
 authentic copy by the deputy keeper of the records, or one of the as- 
 sistant record keepers," and to » be sealed and stamped with the seal of 
 the record office;" and by sec. 13, such copies are made evidence. 
 
 By sec. 19, " every person belonging to or employed in the said pub- Certifying 
 lie record office, who shall certify any writing as a true and authentic astrue any 
 copy of a record in the custody of the Master of the Rolls, knowing the f records, 
 same to be false in any material part, and every person who shall coun- a felony, 
 terfeit the signature of an assistant record keeper for the purpose of 
 counterfeiting a certified copy of a record, or shall forge or counterfeit 
 the seal of the public record office, shall be guilty of felony, and being 
 duly convicted thereof, shall be liable at the discretion of the court to 
 be transported beyond the seas for life, or for any term not less than 
 seven years, or to be imprisoned for any term not exceeding four 
 years." 
 
 By sec. 20, the word "records" means " all rolls, records, writs, books, 
 proceedings, decrees, bills, warrants, accounts, papers, and documents 
 whatsoever of a public nature belonging to her majesty, or now de- 
 posited in any of the offices or places of custody before mentioned. '\j) 
 
 *CHAPTER THE THIRTY-FOURTH. *417 
 
 OF FORGERIES RELATING TO THE PUBLIC FUNDS, AND THE STOCKS OF 
 PUBLIC COMPANIES. 
 
 The 1 Wm. 4, c. 66, s. 5, enacts, "That if any person shall wilfully l Wm. 4, c. 
 make any false entry in, or wilfully alter any word or figure in, any of ®°'^: 5 * 
 the books of account kept by the governor and company of the Bank false en- 
 of England, or by the governor and company of Merchants of Great f ne f J ° the 
 Britain trading to the South Seas and other parts of America ; and for w hi c h the 
 encouraging the fishery, commonly called the South Sea Company, in accounts of 
 which books the accounts of the owners of any stock, annuities, or^ cl | c are 
 other public funds which now are or hereafter may be transferable at kept ,- or 
 the Bank of England or at the South Sea House, shall be entered and j^^ ° 
 kept, or shall in any manner wilfully falsify the accounts of such owners stock in 
 in any of the said books, with intent in any of the cases aforesaid to anv ot J? er 
 
 i •/> >ir» i name than 
 
 defraud any person whatsoever ; or if any person shall wilfully make the true 
 any transfer of any share or interest of or in any stock, annuity, or owners, 
 other public fund which now is or hereafter may be transferable at the 
 Bank of England, or at the South Sea House, in the name of any per- 
 son not being the true and lawful owner of such share Qr interest, with 
 intent to defraud any person whatsoever ; every such offender shall be 
 
 (i) By sec. 2, the queen in council may order records in other offices to be included in 
 the act. 
 
 (j) The act contains no provision as to principals in the second degree or accessories. 
 But the principals in the second degree are punishable as principals in the first degree, ac- 
 cording to the general rule, 4 Bla. Com. 39, and the accessories, as for a felony not specially 
 provided for, under the 7 & 8 Geo. 4, c. 28, s. 8 and 9, and 1 Vict. c. 90, s. 5. See note (6), 
 ante, p. 135.
 
 417 OF FORGERIES RELATING TO THE [BOOK IV. 
 
 guilty of felony, and, being convicted thereof, shall suffer death as a 
 
 felon."(a) 
 Sec. 6. By sec. 6, " if any person shall forge or alter, or shall utter, know- 
 
 Forging a j n g the same to be forged or altered, any transfer of any share or interest 
 any public of or in any stock, annuity, or other public fund which now is or here- 
 stock or of after may be transferable at the Bank of England or at the South Sea 
 other* 11 House, or of or in the capital stock of any body corporate, company, or 
 stock; society which now is or hereafter may be established by charter or act 
 aUorne°yto °^ Parliament, or shall forge or alter, or shall utter, knowing the same 
 transferee to be forged or altered, any power of attorney(Z>) or other authority to 
 same or re- transfer anv s h are or interest of or in any such stock, annuity, public 
 
 CC1VG clivi- 
 
 dends fund, or capital stock, as is ^hereinbefore mentioned, or to receive any 
 thereon ; dividend payable in respect of any such share or interest, or shall de- 
 stock orre- m and or endeavour to have any such share or interest transferred, or to 
 ceipt of receive any dividend payable in respect thereof, by virtue of any such 
 by V faise S forged or altered power of attorney, or other authority, knowing the 
 persona- same to be forged or altered, with intent in any of the several cases 
 tl0 *Al 8 aforesaid to defraud any person whatsoever; or if any person shall 
 falsely and deceitfully personate any owner of any such share, interest 
 or dividend as aforesaid, and thereby transfer any share or interest be- 
 longing to such owner, or thereby receive any money due to such owner 
 as if such person were the true and lawful owner ; every such offender 
 shall be guilty of felony, and being convicted thereof, shall suffer death 
 as a felon."(c) 
 Sec. 7. By sec. 7, " if any person shall falsely and deceitfully personate any 
 
 Personat- owner f an y s ;h a re or interest of or in any stock, annuity, or other pub- 
 owner of lie fund which now is or hereafter may be transferable at the Bank of 
 any public England, or at the South Sea House, or any owner of any share or in- 
 certain terest of or in the capital stock of any body corporate, company, or 
 otherstock, society, which now is or hereafter may be established by charter or act 
 vouring to ~ 0I> Parliament, or any owner of any dividend payable in respect of any 
 transfer or such share or interest as aforesaid, and shall thereby endeavour to trans- 
 thedivi^ 6 *" er an ^ snare or interest belonging to any such owner, or thereby en- 
 dends. deavour to receive any money due to any such owner, as if such of- 
 fender were the true and lawful owner ; every such offender shall be 
 guilty of felony, and, being convicted thereof, shall be liable, at the 
 discretion of the court, to be transported beyond the seas for life, or for 
 any term not less than seven years, or to be imprisoned for any term not 
 exceeding four years nor less than two years." (d\ 
 Sec. 8. By sec. 8, "if any person shall forge the name or handwriting of any 
 
 Forging person as or purporting to be a witness attesting the execution of any 
 
 («) The 2 & 3 Wm. 4, c. 123, ante, p. 411, took away the punishment of death from these 
 offences, and the present punishment under the 1 Vict. c. 84, ss. 2 and 3 is that mentioned 
 in note (<?), ante, p. 415. For the general provisions of the 1 Wm. 4, c. 66, see ante, p. 408, 
 et seq. ; and for the punishment of principals in the second degree and accessories, see ante. 
 p. 410. C. S. G. 
 
 (b) The 2 & 3 Wm. 4, c. 123, abolished the punishment of death for all the offences men- 
 tioned in this section, except forging powers of attorney to transfer any share of any stock, 
 annuity, or public fund, transferable at the Bank of England, or South Sea House, or at the 
 Bank of Ireland ; but the punishment of death for forging such powers of attorney is done 
 away by the 1 Vict c. 84, s. 1, ante, p. 412, and the present punishment is that mentioned 
 in note {g), ante, p. 415, under the 1 Vict. c. 84, ss. 1 and 3. 
 
 (c) See note (g), ante, p. 415, as to the present punishment, and see ante, p. 410, as to the 
 punishment of principals in the second degree and accessories. 
 
 (d) See sec. 26, ante, p. 410, as to hard labour and solitary confinement, and the 1 Vict. 
 C. DO, s. 5, ante, p. 413.
 
 CHAP. XXXIV.] PUBLIC FUNDS, STOCKS, ETC. 418 
 
 power of attorney or other authority to transfer any share or interest of th e attesta- 
 or in any such stock, annuity, public fund, or capital stock as is herein- p 1 °° e *°* i ? y 
 before mentioned, or to receive any dividend payable in respect of any attorney 
 such share or interest, or shall utter any such power of attorney or ^stock^ 17 
 other authority, with the name or handwriting of any person forged &c. 
 thereon as an attesting witness, knowing the same to be forged, every 
 such offender shall be guilty of felony, and, being convicted thereof, 
 shall be liable, at the discretion of the court, to be transported beyond 
 the seas for the term of seven years, or to be imprisoned for any term 
 not exceeding two years nor less than one year."//) 
 
 By sec. 9, "if any clerk, officer, or servant of, or other person em- Sec. 9. 
 ployed or intrusted by, the governor and company of the Bank of Eng- Clerks of 
 land, or the governor and company of merchants commonly called the wilfully 
 South Sea Company, shall knowingly make out or deliver any dividend making out 
 warrant for a greater or less amount than the person or persons on warrants 
 whose behalf such dividend warrant shall be made out is or are entitled f °r a great- 
 to, with intent to defraud any person whatsoever, every such offender g Um r t han 
 shall be guilty of felony, and, being convicted ^thereof, shall be liable what is re- 
 at the discretion of the court, to be transported beyond the seas for the all J ^ e ' 
 term of seven years, or to be imprisoned for any term not exceeding 
 two years nor less than one year.'V^) 
 
 Besides the statute above set forth, there may be briefly noticed the 9 Geo. 1, c. 
 9 Geo. 1, c. 12, s. 4, (Jij which made it a capital felony to forge orders, V 2 ' 3 L Geo ' 
 receipts, &c, relating to the payment of annuities payable at the Ex-and'other 
 chequer, as mentioned in the act; and the 35 Geo. 3, c. 66, with the statutes - 
 37 Geo. 3, c. 46, which contain regulations for transferring the pay- 
 ment of certain annuities and dividends from Ireland to the Bank of 
 England, made the forging or altering receipts for subscriptions to loan 
 or debentures, under these acts, a capital offence, re-enacted the provi- 
 sions of the 8 Geo. 1, c. 22, s. 1,(A and the 32 Geo. 3, c. 30, (i\ and made 
 the forging or uttering any dividend warrant, or warrant for the payment 
 of any annuity, &c, payable in pursuance thereof, capital offences. 
 The 52 Geo. 3, c. 129, also, which is entitled an act for amending the 
 48 Geo. 3, c. 142, and the 49 Geo. 3, c. 64, in enabling the commis- 
 sioners for the reduction of the national debt to grant life annuities, 
 recites those acts, specifies the terms on which the life annuities shall 
 be granted, declares before whom the necessary affidavits or affirmations 
 and certificates shall be taken; and enacts, that if any person shall 
 forge, &c, any such affidavit, affirmation or certificate, or produce to any 
 person acting under the authority of the acts, or utter the same, knowing 
 the same to be forged, &c, such person shall be guilty of felony, with- 
 out benefit of clergy. (j\ And the 10 Geo. 4, c. 50, which was passed 
 for the further improvement of the land revenue of the crown, makes 
 it a felony (by sec. 124) to forge any power of attorney for the sale or 
 transfer of any stock, or any draft, instrument or writing, for the re- 
 
 (/) See last note. (g) See note (d), supra. 
 
 (li) The present punishment is that mentioned in note (A), ante, p. 415, by virtue of the 1 
 Wm. 4, c. 66, s. 1 and 26, ante, p. 408, 410, and 1 Vict. c. 90, s. 5, ante, p. 413. 
 
 (i) Repealed by the 1 Wm. 4, c. 66, s. 31. 
 
 \j) The 9 Geo. 4, c, 16, repeals "all such powers and authorities as are by the 48 
 Geo. 3, c. 142, 49 Geo. 3, c. 64, and the 52 Geo. 3, c. 129, or any or either of them given 
 to the commissioners for the reduction of the national debt, for or in relation to the 
 granting of any life annuities, or the accepting the transfers of any stock for any life an- 
 nuities."
 
 419 OF FORGERIES RELATING TO THE [BOOK IV. 
 
 ceiving any money in the Bank of England or Ireland, &c, or any 
 draft, instrument, or writing in the form of a draft of the Commis- 
 sioners of the Woods and Forests. 
 
 In the acts by which the different loans have been raised, common 
 clauses have usually been inserted in substance nearly the same, by 
 which it is made a capital offence to forge certificates, debentures, re- 
 ceipts, &c, mentioned in the acts.(/.;) 
 
 Some enactments respecting the forgery of dividend warrants have 
 occurred in the statutes already mentioned. But there is a general 
 provision as to the forgery of these instruments contained in the 1 Win. 
 4, c. 66, which will be stated at large in the next chapter, as it relates 
 not only to dividend warrants, but to the forgery of bank-notes and 
 other securities of the Bank of England. 
 Forgery of The forgery or counterfeiting any exchequer bill is made a felony by 
 exchequer th e several acts passed, usually every year, authorizing *the issue of 
 *4.90 suc ^ securities. Latterly it has been enacted, that the clauses of the 48 
 Geo. 3, c. 1, entitled, "An act for regulating the issuing and paying off 
 of Exchequer bills," shall be extended to the acts subsequently passed,(Z) 
 41 Geo. 3, and one of those clauses (s. 9) enacts, " that if any person or persons 
 c. 2, s. 9. ghaU forge or counterfeit any exchequer bill or any indorsement or writ- 
 forging ex- ing thereupon or therein, or tender in payment any such forged or coun- 
 chequer terfeited bill, or any exchequer bill with such counterfeit indorsement 
 m'andin * to or writing thereon, or shall demand to have such counterfeit bill, or any 
 have them exchequer bill with such counterfeit indorsement or writing thereupon, 
 knowing^ ' or therein, exchanged for ready money or for another exchequer bill, by 
 them, <&c, any person or persons, body or bodies politic or corporate, who shall be 
 guilty of obliged or required to exchange the same, or by any other person or 
 without persons whatsoever, knowing the bill so tendered in payment or de- 
 clergy, manded to be exchanged, or the indorsement or writing thereupon or 
 therein to be forged or counterfeited, and with intent to defraud his 
 majesty, his heirs and successors, or the persons to be appointed to pay 
 off the same, or any of them, or to pay any interest thereupon, or the 
 person or persons, body or bodies politic or corporate, who shall contract 
 to circulate or exchange the same or any of them, or any other person 
 or persons, body or bodies politic or corporate ; then every such person 
 or persons so offending, being thereof lawfully convicted, shall be ad- 
 judged a felon, and shall suffer as in cases of felony without benefit of 
 clergy." 
 5 Vict. c. 8. The 5 Vict. c. 8, entitled "An Act for Funding Exchequer Bills," 
 by sec. 26 enacts, that "if any person or persons shall forge or coun- 
 terfeit, or cause or procure to be forged or counterfeited, or shall will- 
 ingly act or assist in the forging or counterfeiting any receipt or receipts 
 for the whole or any part or parts of the said subscription towards the 
 said sum of five millions, either with or without the name or names of 
 
 (k) As in the 37 Geo. 3, c. 46, s. 3. 41 Geo. 3, c. 3, s. 4. 42 Geo 3, c. 8, s. 26. 42 Geo. 
 3, c. 58, s. 20. 44 Geo. 3, c. 47, s. 25. 44 Geo. 3, c. 48, s. 20. 45 Geo. 3, c. 12, s. 25. 46 Geo. 
 3, c. 33, s. 25. 58 Geo. 3, c. 23, s. 38. 5 Geo. 4, c. 53, s. 22. 
 
 (/) The last act on this subject, the 5 Vict. c. 8, recites the 48 Geo. 3, c. 1, and sec. 3 
 enacts that every the clauses, &c, in that act, shall be extended to the Exchequer Bills, to 
 be made in pursuance of the act as fully as if the clauses were repeated in the act. The 
 48 Geo. 3, c. 1, is repealed by the 1 Wm. 4, c. 66, s. 31, as far " as relates to any forgery or 
 other capital felony therein mentioned." "Nevertheless," says Mr. Lonsdale, Cr. St. 100, 
 " the annual appropriation acts still continue to have inserted in them the before mentioned 
 clause. The forging of Exchequer Bills under these acts, would therefore appear to b« 
 capita]."
 
 CHAP. XXXIV.] PUBLIC FUNDS, STOCKS, ETC. 420 
 
 any person or persons being inserted therein as the subscriber or sub- 
 scribers thereto, or payer or payers thereof, or of any part or parts 
 thereof, or shall alter any number, figure, or word therein, or utter or 
 publish as true any such false, forged, counterfeited, or altered re- 
 ceipt or receipts, with intent to defraud the governor and company of 
 the Bank of England, or any body politic or corporate, or any person 
 or persons whatsoever, every such person or persons so forging or coun- 
 terfeiting, or causing or procuring to be forged or counterfeited, or will- 
 ingly acting or assisting in the forging or counterfeiting, or altering, 
 uttering, or publishing as aforesaid, being thereof convicted in due form 
 of law, shall be adjudged guilty of felony, and liable to be transported 
 beyond the seas for life or for any term not less than seven years, or to 
 be imprisoned for any term not exceeding four years, nor less than two 
 years, under the provisions of the 1 Vict. c. 84/Ym) 
 
 The 5 Geo. 4, c. 53, entitled " An Act to permit the Mutual *Trans- *421 
 fer of Capital in certain Public Stocks or Funds transferable at the 5 Geo. 4, c. 
 Banks of England and Ireland respectively, " by sec. 22, enacts that 53- Per " 
 
 in /» „• sons coun- 
 
 " if any person or persons shall torge or counterfeit, or cause or pro- terfeiting 
 cure to be forged or counterfeited, or shall willingly act or assist in the certificates 
 forging or counterfeiting any certificate or duplicate certificate required q COi ^ c< 
 by this act, or shall alter any number, figure, or word therein, or shall alter 53 - 
 or publish as true any such false, forged, counterfeited, or altered certi- 
 ficate, with intent to defraud the governor and company of the Bank of 
 England, or the governor and company of the Bank of Ireland, or any 
 body politic or corporate, or any person or persons whomsoever, every 
 such persons or persons so forging or counterfeiting, or causing or pro- 
 curing to be forged or counterfeited, or willingly acting or assisting in 
 the forging or counterfeiting, or altering, uttering, or publishing as 
 aforesaid, being thereof convicted in due form of law shall be adjudged 
 guilty of felony, and shall suffer death as a felon without benefit of 
 clergy." (n) 
 
 In conclusion of this chapter a case may be mentioned in which the 
 forgery of a transfer of stock and the construction of the 33 Geo. 3, c. 
 30, s. 3 (now repealed), came under consideration. 
 
 The indictment charged that one "W. Harrison was possessed of and Gade's 
 entitled to 50?. interest or share in the consolidated three per cent, annui- ca f e " The 
 
 prisoner 
 
 ities ; that whilst W. H. was so possessed of and entitled to the said 50?., being 
 &c, the prisoner falsely made, forged, and counterfeited a transfer of the foi ! nd 
 said 50?. interest or share, with the name of the said W. H. thereto sub- an'indict- 
 scribed, purporting to have been signed by the said W. H. and to be a ment . 
 transfer of the said 50/., &c, from the said W. H. unto one W. W., the Mmwith 
 tenor of which was, &c, (setting it out) ; with intent to defraud the forging a 
 governor and company of the Bank of England contrary to the form gtock^ob^ 
 of the statute, &c. In other counts the intent was laid to be to defraud jections 
 W. H. and W. W. and in others the prisoner was charged with publish- H iat , H 1C , 
 
 . „ . .. i/.-i.-i, . ,m stock had 
 
 ing the transfer, knowing it to be forged, with the same intent. There never been 
 were also further counts, charging the prisoner generally with forging accepted 
 a certain transfer, to wit, a transfer of an interest and share, viz., 50?. B J n ^ 1>C1 
 
 (m) Ante, p. 412. 
 
 (n) This provision is not expressly repealed by the 1 Wm. 4, c. GG, but the punishment of 
 death is abolished by the first section of that statute, and the present punishment by virtue 
 of the 1 Wm. 4, c. GO, s. 1 and 26, ante, p. 408, 410, and the 1 Vict. c. 90, s. 5, ante, p. 413, 
 is that mentioned in note (A), ante, p. 415. As to the punishment of principals in the second 
 degree and accessories, see the 1 Wm. 4, c. GG, s. 25, ante, p. 410.
 
 421 FORGERIES RELATING TO PUBLIC FUNDS, ETC. [BOOK IV. 
 
 whose interest and share of and certain annuities transferable at the Bank 
 stood "and °f England, commonly called consolidated three per cent, annuities, 
 that the -without stating to whom the stock belonged, or reciting the statutes 
 wasnot relating thereto, in fraud of the said several persons. It appeared in 
 witnessed evidence that the prisoner and one H. Harland, were executors of a 
 according p erson rj ame( J J. Howard, who had by his will given the 50?. in the 
 and direc- three per cent, consols to his grandson, W. Harrison, and that on the 
 tions of the llth January, 1796, they transferred the same into the name of W. 
 overruled. Harrison : but the transfer never was accepted by W. Harrison. 
 Afterwards on the 14th January, the prisoner brought his own son with 
 him to the bank, and represented him to be W. Harrison ; and, by the 
 intervention of a broker, it was agreed that the stock should be sold to 
 *422 W. West. The prisoner's son *in his presence signed the transfer, 
 which was properly filled up ; but from the circumstance of his writing 
 the name with a double ss (Harrisson), he was required to bring an 
 affidavit that he was the person described in the books of the Bank, by 
 the name of Harrison with a single s; and, in consequence, the broker 
 did not pay over the money he had received from West for the stock, 
 and the transfer was not witnessed. It appeared that according to the 
 printed form of transfers used at the Bank they ought to be witnessed ; 
 and also, that there were positive orders at the Bank not to transfer any 
 stock till it had been accepted. But the last rule was frequently departed 
 from in transfers made with the stockjobbers ; and it was allowed by 
 the rules that dividends should be received on stock before it was ac- 
 cepted. On behalf of the prisoner the 33 Geo. 3, c. 28, was cited, which 
 required that books should be kept at the Bank for the entering of all 
 transfers, which should be conceived in proper words for that purpose, 
 and signed by the parties making such transfers, and that the several 
 persons to whom such transfers should be made should underwrite their 
 acceptance thereof; and that no other method of transferring or assign- 
 ing the said annuities should be good or available in law.(o) And it was 
 objected that the evidence did not support the indictment; first, for want 
 of Harrison's acceptance of the transfer made to him by the executors 
 of Howard; which it was contended was necessary to make the transfer 
 complete, and give Harrison possession of the 501. stock ; secondly, 
 because no transfer at all could be made until the stock was accepted ; 
 and, thirdly, that the transfer in the name of W. Harrison was not wit- 
 nessed, and therefore not available in law, and in fact no transfer ; the 
 witnessing being part of the words in which transfers were conceived. Q>) 
 The jury having found the prisoner guilty, the case was argued before 
 the judges at some length, the counsel for the prosecution relying in sup- 
 port of the indictment upon the second section of the 33 Geo. 3, c. 30, 
 (now repealed); and ultimately the objections were all overruled, and 
 the offence was holden to be complete. It is stated that Buller, J., in 
 delivering the opinion of the judges, observed as to the two first objec- 
 tions, that two answers had been given, first, that the stock vested in 
 W. H. by the mere act of transferring it into his name, and that if he 
 had died before he had accepted it, yet it would have gone to his exe- 
 cutors as part of his personal estate ; and, secondly, that the nature of the 
 
 (o) A clause similar in substance was enacted by the 35 Geo. 3, c. 14. s. 16, the 30 Geo. 
 3, c. 12, s. 1G, and other statutes. 
 
 (p) The want of witnessing was compared to the omissions in the bill of exchange in 
 Moffatt's case, ante, p. 356.
 
 CHAP. XXXV.] OF FORGING THE SECURITIES, ETC. 422 
 
 offence would not have been altered, if W. H. had not had any stock 
 standing in his name; for the transfer forged by the prisoner was com- 
 plete on the face of it, and imported that there was such a description 
 of stock capable of being transferred; that neither the forgery nor the 
 fraud would have been less complete if Harrison had really had no 
 stock. And as to the third objection, he said that the judges were all of 
 opinion that the entry and signatures, as stated in the indictment, were 
 a complete transfer without the attestation of witnesses, which was no 
 part of the instrument, but only required by the Bank for their own 
 protection ex abundanti cautela.^q) 
 
 *A case has also occurred in which the endeavouring to receive, dr. *423 
 the money of a proprietor of stock, within the statute 31 Geo. 2, c. 22, Pan's case, 
 s. 37 (now repealed,) came under consideration. The prisoner, Francis in^and^n- 
 Parr, applied to the clerk whose business it was to issue the dividend dorsing a 
 warrants upon the 3 per cent, consols stock, in the name of Isaac Hart, ^^ant at 
 for a warrant for half-a-year's dividend; using the words " Isaac Hart, the bank in 
 3900Z." He also signed the book "Isaac Hart;" and, being asked of the t nanie of 
 
 sl stock— 
 
 what place ? he said Windsor ; which agreeing with the description in bolder, 
 the book, a warrant was made out for 58/. 10s., to which he again signed h° lden t0 
 "Isaac Hart." The warrant was then delivered to him. A few minutes na tino- f a 
 afterwards he was apprehended; and it did not appear that in the mean- r ir °P riet or, 
 time he had made any application at the pay-office, or had even gone by e ndeav- 
 towards it, or taken any other step towards obtaining the actual pay- ouring to 
 ment of the money. It was objected by his counsel that some such^^"^. 6 
 proceeding was necessary to the completion of the offence; but after though no 
 his conviction, the point being submitted to the consideration of the attem Pt 
 
 "WJiS mjiclc 
 
 twelve judges, they all held the conviction right; and Gould, J., in de- to receive 
 livering their opinion, said, that the facts showed that the prisoner, by the money 
 personating the proprietor, and by obtaining and indorsing the warrant ffi ce . 
 as such, thereby made an endeavour, as far as it went, towards receiv- 
 ing the dividend. (r) 
 
 It was held that a power of attorney to transfer government stock 
 signed, sealed, and delivered, was a deed within the 2 Geo. 2, c. 25, s. 1, 
 (now repealed). (s) 
 
 *CHAPTER THE THIRTY-FIFTH. *424 
 
 OF FORGING THE SECURITIES OF THE BANK OF ENGLAND. 
 
 Soon after the establishment of the bank of England, it was thought 
 necessary to make especial provision against the offence of forging its 
 securities. The former statutes relating to this subject were the 8 & 9 
 
 (q) Gade's case, 0. B. Feb. 1796. East. T. 1796, and O.B.June. 1796. 2 East, P. C. c. 19. 
 s. 9, p. 874. Leach, 732. 
 
 (r) Parr's case, 0. B. 1787. Hil. T. 1787. 1 Leach, 434. 2 East, P. C. c. 20, s. 2, p. 1005. 
 In this case, J. Hart, the proprietor of the stock, was examined as a witness to prove the 
 identity of the person intended to be defrauded. 
 
 («) Rex v. Fauntleroy, a R. & M. C. C. R. 52. S. C. 2 Bing. R. 413. See this case more 
 fully stated, post. As the forging such a power of attorney is made an offence expressly by 
 the 1 Vvm. 4, c. 66, s. 6, a?ite, p. 417, it would now be the proper course to proceed upon that 
 section. 
 
 1 Eng. Com. Law Reps. ix. 454. 
 
 Vol. ii.— 28
 
 42-4 OF FORGING THE SECURITIES OF THE [BOOK IV. 
 
 Win. 3, c. 20, s. 36, the 15 Geo. 2, c. 13, s. 11, the 45 Geo. 3, c. 89, 
 
 the 13 Geo. 3, c. 79, and the 52 Geo. 3, c. 138, and they were repealed 
 
 by the 1 Wm. 4, c. 66, s. 31. f 
 
 l Wm. 4, e. But that statute, by sec. 3, enacts, "that if any person shall forge or 
 
 66, s. 3. alter, or shall offer, utter, dispose of, or put off, knowing the same to be 
 
 Forcing an ' r . r ° 
 
 exchequer forged or altered, any exchequer bill or exchequer debenture, or any 
 bill, exche- indorsement or assignment of any exchequer bill or exchequer de- 
 benture, benture, or any bond under the common seal of the united company of 
 East India merchants of England trading to the East Indies, commonly called an 
 note Tvil" ^ as * India bond, or any indorsement on or assignment of any East India 
 bill of ex- bond, or any note or bill of exchange of the governor and company of 
 change, ^ j^k f England, commonly called a bank-note, a bank bill of 
 
 promissory . . . „ 
 
 note, or exchange, or a bank post bill, or any indorsement on or assignment of 
 warrant or an y bank-note, bank bill of exchange, or bank post bill, or any will, 
 payment of testament, codicil, or testamentary writing, or any bill of exchange on 
 money, an y promissory note for the payment of money, or any indorsement on 
 a ' or assignment of any bill of exchange or promissory note for the pay- 
 ment of money, or any acceptance of any bill of exchange, or any under- 
 taking, warrant, or order for the payment of money, with interest, in 
 any of the cases aforesaid, to defraud any person whatsoever, every such 
 offender shall be guilty of felony, and, being convicted thereof, shall 
 suffer death as a felon. "(a) 
 *425 By sec. 12, "if any person shall, without lawful excuse, the proof 
 Sec 12. whereof shall lie upon the party accused, purchase or receive from any 
 Iv'nurchas- °^ er person, or have in his custody or possession, (&) any forged *bank- 
 ing or re- note, bank bill of exchange, or bank post bill, or blank bank-note, blank 
 ceivmg or bank bill of exchange, or blank bank post bill, knowing the same 
 
 having in , ° ' . 
 
 possession respectively to be forged, every such offender shall be guilty of felony, 
 forged an( j^ being convicted thereof, shall be transported beyond the seas for 
 notes. the term of fourteen years. "(c\ 
 
 Sec. 13. By sec. 13, "if any person shall, without the authority of the governor 
 
 Making or anc j com pany of the Bank of England, to be proved by the party accused, 
 without make or use, or shall, without lawful excuse, to be proved by the party 
 authority accused, knowingly have in his custody or possession, (&) any frame, 
 for ma ki n „. mould, or instrument for the making of paper with the words "Bank of 
 paper with England" visible in the substance of the paper, or for the making of paper 
 
 (a) The 2 & 3 Wm. 4, c. 23, ante, p. 411, and the 1 Viet. c. 84, s. 1, have done away with ' 
 the punishment of death for all the offences mentioned in this section, and the present pun- 
 ishment under the 1 Vict. c. 84, s. 1, 2, and 3, ante, p. 412, is transportation for life, or for 
 any term not less than seven years, or imprisonment, for any term not exceeding four, nor 
 less than two years, with or without hard labour, in the common gaol or house of correc- 
 tion, and the offender may be directed to be kept in solitary confinement for any portion or 
 portions of such imprisonment, not exceeding one month at any one time, and not exceed- 
 ing three months in the space of one year, as to the court in its discretion shall seem meet. 
 See ante, p. 409, et seq. for the general provisions of the 1 W r m. 4, c. 66, and ante, p. 410. 
 for the punishment of principals in the second degree and accessories. 
 
 (b) See sec. 28, a«te, p. 410, and Rex v. Rowley, Russ. & Ry. 110, post, p. 429. 
 
 (c) As to principals in the second degree and accessories, see sec. 25, ante, p. 410. 
 
 ■j- {See Statute of U. States for the punishment of forging, &c, the notes, &c, of the 
 bank of the United States. 3 U. S. Laws, (Story's ed.) 1557, 1558, stat. of 1816, c. 44, s. 
 18. 
 
 Counterfeiting an indorsement on a post note of that bank is not an offence under that 
 statute. 4 Wash. C. C. Rep. 226, U. States v. Stewart.} 
 
 [Nor is the forgery of a draft by a branch upon the mother bank indictable within the 
 act. U. States v. Brewster, 1 Peters's Rep. 164. 
 
 It is forgery though the name of the president and cashier be fictitious or of a different 
 branch from that whose note it purports to be. U. States v. Turner, Id. 132.]
 
 CHAP. XXXV.] BANK OF ENGLAND. 425 
 
 with curved or waving bar lines, or with the laying wire lines thereof tlie words 
 in a waving or curved shape, or with any number, sum, or amount, ex- England" 
 pressed in a word or words in Roman letters, visible in the substance of visible in 
 the paper ; or if any person shall, without such authority, to be proved ^ e SU,J " 
 as aforesaid, manufacture, use, sell, expose to sale, utter, or dispose of, for making 
 or shall, without lawful excuse, to be proved as aforesaid, knowingly paper with 
 have in his custody or possession, (&) any paper whatsoever with the ii nes> &<>., 
 words " Bank of England" visible in the substance of the paper, or any or selling 
 paper with curved or waving bar lines, or with the laying wire lines suc parer * 
 thereof in a waving or curved shape, or with any number, sum, or 
 amount expressed in a word or words in Roman letters, appearing 
 visible in the substance of the paper ; or if any person, with such 
 authority, to be proved as aforesaid, shall, by any art or contrivance, 
 cause the words " Bank of England" to appear visible in the substance 
 of any paper, or cause the numerical sum or amount of any bank-note, 
 bank bill of exchange, or bank post bill, blank bank-note, blank bank 
 bill of exchange, or blank post bill, in a word or words in Roman letters, 
 to appear visible in the substance of the paper whereon the same shall 
 be written or printed ; every such offender shall be guilty of felony, 
 and, being convicted thereof, shall be transported beyond the seas for 
 the term of fourteen years. "(c) 
 
 By sec. 14, " nothing herein contained shall prevent any person from Sec. 14. 
 issuing any bill of exchange or promissory note having the amount ^p^per^ 
 thereof expressed in guineas, or in a numerical figure or figures denoting used for 
 the amount thereof in pounds sterling appearing visible in the substance b * lls of ex " 
 of the paper upon which the same shall be written or printed, nor shall & c . 
 prevent any person from making, using, or selling any paper having 
 waving or curved lines, or any other devices in the nature of water- 
 marks, visible in the substance of the paper, not being bar lines or laying- 
 wire lines, provided the same are not so contrived as to form the ground- 
 work or texture of the paper, or to resemble the waving or curved laying 
 wire lines or bar lines or the watermarks of the paper used by the 
 governor and company of the Bank of England." 
 
 By sec. 15, " if any person shall engrave or anywise make upon any *426 
 plate whatever, or upon any wood, stone, or other material, any promis- Sec. 15. 
 sory note or bill of exchange, or blank promissory note or blank bill of on ° ' ° 
 • exchange, or part of a promissory note or bill of *exchange purporting plate, &c, 
 to be a bank-note, bank bill of exchange, or bank post bill, or blank ^ank'-note 
 bank-note, blank bank bill of exchange, or blank bank post bill, or part &c, or 
 of a bank-note, bank bill of exchange, or bank post bill, without the " sin S or 
 authority of the governor and company of the. Bank of England, to be suc h plate 
 proved by the party accused ; or if any person shall use such plate, without 
 wood, stone, or other material, or any other instrument or device, for &c ; or ut '_ 
 the making or printing any bank-note, bank bill of exchange, or bank tering or 
 post bill, or blank bank-note, blank bank bill of exchange, or blank pa p er upon 
 bank post bill, or part of a bank-note, bank bill of exchange, or bank which a 
 po*t bill, without such authority, to be proved as aforesaid; or if any * c s hall ' 
 person shall, without lawful excuse, the proof whereof shall lie on the be printed, 
 party accused, knowingly have in his custody or possession^/) any such 
 plate, wood, stone, or other material, or any such instrument or device, 
 
 (b) As to principals in the second degree and accessories, see sec. 25, ante, p. 410. 
 
 (c) See sec. 28, ante, p. 410, and Llex v. Rowley, Russ. & Ry. 110, post, p. 429. 
 
 (d) See sec. 28, ante, p. 410.
 
 426 OF FORGING THE SECURITIES OF THE [BOOK IV. 
 
 or if any person shall, without such authority, to be proved as aforesaid, 
 
 knowingly offer, utter, dispose of, or put off any paper upon which any 
 
 blank bank-note, blank bank bill of exchange, or blank bank post bill, 
 
 or part of a bank note, bank bill of exchange, or bank post bill, shall 
 
 be made or printed ; or if any person shall, without lawful excuse, to 
 
 be proved as aforesaid, knowingly have in his custody or possession (c?) 
 
 any such paper, every such offender shall be guilty of felony, and being 
 
 convicted thereof, shall be transported beyond the seas for the term of 
 
 fourteen years." (e) 
 
 Sec. 16. By sec. 16, " if any person shall engrave, or in any wise make upon 
 
 Engraving aQ y p] a |- e whatever, or upon any wood, stone, or other material, any 
 
 plate," Ac., word, number, figure, character, or ornament, the impression taken 
 
 any word, f rom w hich shall resemble, or apparently be intended to resemble, any 
 
 number or • 
 
 ornament P ar t of a bank-note, bank bill of exchange, or bank post bill, without 
 resembling th.e authority of the governor or company of the Bank of England, to be 
 ^bank- "* proved by the party accused ; or if any person shall use any such plate, 
 note. &c, wood, stone, or other material, or any other instrument or device, for 
 or havine* * ne ma king upon any paper or other material the impression of any 
 any paper word, number, figure, character, or ornament which shall resemble, or 
 on wh kk apparently be intended to resemble, any part of a bank-note, bank bill 
 be an im- of exchange, or bank post bill, without such authority, to be proved as 
 pression of aforesaid ; or if any person shall, without lawful excuse, the proof 
 number. ' whereof shall lie on the party accused, knowingly have in his custody 
 Ac- or possession (c?) any such plate, wood, stone, or other material, or any 
 
 such instrument or device ; or if any person shall, without such autho- 
 rity, to be proved as aforesaid, knowingly offer, utter, dispose of, put off 
 any paper or other material upon which there shall be an impression of 
 any such matter as aforesaid; or if any person shall, without lawful ex- 
 cuse, to be proved as aforesaid, knowingly have in his custody or pos- 
 session^/) any paper or other material upon which there shall be an 
 impression of any such matter as aforesaid ; every such offender shall 
 be guilty of felony, and, being convicted thereof, shall be transported 
 beyond the seas for the term of fourteen years. (e) 
 *427 The 1 Geo. 4, c. 92, after reciting the increase of the forgery of the 
 1 Geo. 4, c. notes of the governor and company of the Bank of England, and the 
 Enerav difficulty of detection, and a new plan for printing such notes, *enacts 
 ing?<tc.,on (by sec. 1,) "that if any person or persons (other than the officers, 
 
 any plates WO rkmen, servants, and agents for the time being of the said governor 
 
 for produc- , ' ° . ° ° 
 
 ing an im- and company, to be authorized and appointed for that purpose by the 
 
 pression of sa id governor and company, and for the use of the said governor and 
 
 part of a company only,) shall engrave, cut, etch, scrape, or by any other art, 
 
 bank-note means, or device, make, or shall cause or procure to be engraved, cut, 
 
 of England etcne d, scraped, or by any other art, means, or device, made, or shall 
 
 ivithoutau- knowingly aid or assist in the engraving, cutting, etching, scraping, or 
 
 thonty : jjy an y t ner ar ^ means, or device, making in or upon any plate of 
 
 copper, brass, steel, iron, pewter, or of any other metal or mixture? of 
 
 metal, or upon wood or other materials, or any plate whatsoever, for 
 
 the purpose of producing a print or impression of all or any part or 
 
 parts of a bank-note, or of a blank bank-note, of the said governor and 
 
 or using company, of the description aforesaid, without any authority in writing 
 
 such plate; f r om the said governor and company, or shall use any such plate so eu- 
 
 (d) See sec. 28, ante, p. 410. 
 
 (e) See sec. 25, ante, p. 410, as to the principals in the second degree and accessories.
 
 CHAP. XXXV.] BANK OF ENGLAND. 427 
 
 graved, cut, etched, scraped, or by any other art, means, or device, 
 made, or shall use any other instrument or contrivance for the making 
 or printing any such bank-note or blank bank-note, or part of a bank- 
 note of the description aforesaid ; or if any person or persons shall, or having 
 from and after the passing of this act, without such authority as afore- ? uch pla | e 
 said, knowingly and without lawful excuse have in his, her or their or uttering 
 custody, any such plate or instrument, or without such authority as au y 5 . m ~ 
 aforesaid, shall knowingly or wilfully utter, publish, dispose of, or put from it. 
 away any such blank bank-note, or part of such bank-note, of the de- 
 scription aforesaid, every person so offending in any of the cases afore- 
 said, and being thereof convicted according to law, shall be adjudged a 
 felon, and shall be transported for the term of fourteen years." 
 
 The second section, after reciting that divers frauds had been prac- Sec. 2. 
 tised by making and publishing papers with certain words and charac- Punlsh " 
 ters so nearly resembling the notes of the governor and company of the persons en- 
 Bank of England, as to appear, to ignorant and unwary persons, to be g ravlu g> 
 the notes of the said governor and company : and that it was necessary reS em- 
 for the security of the public that such practices as applied to the notes blanee of 
 of the said governor and company of the aforesaid description should ^^k in- 
 be prevented, enacts, " that if any person or persons from and after the tended to 
 passing of the act, shall engrave, cut, etch, srcape, or by any other art, ™ sem e 
 means, or device make, or shall cause or procure to be engraved, cut, ground- 
 etched, scraped, or by any other art, means or contrivance made, or^ or k° fa 
 shall knowingly aid or assist in the engraving, cutting, etching, scraping, England 
 or by any other art, means, or contrivance making, in or upon any note > with- 
 plate of copper, brass, steel, iron, pewter, or of any other metal or mix- thority f 
 ture of metals, or upon wood or any other materials, or upon any plate the bank : 
 whatsoever, any line work, as for the ground work of a promissory 
 note or bill of exchange, the impression taken from which line work 
 shall be intended to resemble the ground work of a bank-note of the 
 said governor and company of the description aforesaid, or any device, 
 the impression taken from which shall contain the words " Bank of 
 England," in white letters, upon a black, sable, or dark ground, either 
 with or without white or other lines therein, or shall contain in any 
 part thereof the numerical sum or amount of any promissory note or 
 bill of exchange in black and red register work, or *shall show the re- *428 
 versed contents of a promissory note or bill of exchange, or shall con- 
 tain any word or words, figure or figures, character or characters, pat- 
 tern or patterns, which shall be intended to resemble the whole or any 
 part of the matter or ornaments of any bank-note of the description 
 aforesaid, or shall contain any word, number, figure, or character in 
 white, on a black, sable, or dark ground, either with or without white 
 or other lines therein, which shall be intended to resemble the numerical 
 sum or amount in the margin, or any other part of the bank-note of the 
 said governor and company, without an authority in writing for that 
 purpose from the said governor and company, to be produced and 
 proved by the party accused ; or if any person or persons shall, from 
 and after the passing of this act, (without such authority as aforesaid,) 
 use any such plate, wood, or other materials, so engraved, cut, etched, or U8 i n g 
 scraped, or by any other art, means, or contrivance made, or shall use such plate, 
 any other instrument or contrivance for the making or printing upon '* 
 any paper or other material, any word or words, figure or figures, cha- 
 racter or characters, pattern or patterns, which shall be intended to re-
 
 428 OF FORGING THE SECURITIES OF THE [BOOK IV. 
 
 seinble the whole or any part of the matter or ornaments of any such 
 note of the said governor and company, of the description aforesaid, 
 or any word, figure or character, in white, on a black, sable, or dark 
 ground, either with or without white or other lines therein, which shall 
 be apparently intended to resemble the numerical sum or amount in the 
 margin, or any other part of the bank-note of the said governor and 
 or having company ; or if any person or persons shall, from and after the passing 
 such plate f tQ } s ac t ? w itbout such authority as aforesaid, knowingly have in his, 
 sion, or ut- her, or their custody or possession, any such plate or instrument, or 
 tering any shall knowingly and wilfully utter, publish or dispose of, or put away 
 fromTt 10 an y P a P er or other material containing any such word or words, figure 
 transporta- or figures, character or characters, pattern or patterns as aforesaid, or 
 fourteen sna ^ knowingly or willingly have in his, her, or their custody or pos- 
 years. session any paper or other material containing any such word or words, 
 figure or figures, character or characters, pattern or patterns as afore- 
 said, (without lawful excuse, the proof whereof shall lie upon the per- 
 son accused,) every person so offending in any of the cases aforesaid, 
 and being convicted thereof according to law, shall be adjudged a felon, 
 and shall be transported for the term of fourteen years." 
 Sec. 3, pro- The third section, after reciting that it was expedient that the name 
 rides that or names f the person or persons intrusted and authorized by the said 
 may cause governor and company to sign bank-notes on behalf of the said gover- 
 an impres- nor au( j company, should be impressed by machinery upon bank-notes 
 made upon 0I> tne description aforesaid, in such form as might from time to time 
 the note by be adopted by the said governor and company, instead of being sub- 
 inHeiTof 7 scr ibed in the handwriting of such person or persons respectively, and 
 signature that doubts might arise respecting the validity of such notes, enacts, 
 b y **. and " a that all bank-notes of the said governor and company of the descrip- 
 tion aforesaid, whereon the name or names of any person or persons 
 intrusted or authorized to sign such notes on behalf of the said gover- 
 nor and company shall or may be impressed by machinery provided for 
 that purpose by the said governor and company, and with the authority 
 of the said governor and company, shall be and be taken to be good and 
 *429 valid to all intents and ^purposes, as if such notes had been subscribed 
 in the proper handwriting of the person or persons intrusted or author- 
 ized by the said governor and company to sign the same respectively, 
 and shall be deemed and taken to be bank-notes within the meaning of 
 all laws and statutes whatsoever, and shall and may be described as 
 bank notes in all indictments and other criminal and civil proceedings 
 whatsoever : any law, statute, or usage to the contrary notwithstand- 
 
 fag." 
 
 Cases upon A case has been already noticed in which it was holden upon one of 
 ed^tatutes" * ne scutes relating to forgeries upon the Bank of England, namely, 
 the 8 & 9 Wm. 3, c. 20, s. 36, (now repealed,) that the expunging by 
 means of lemon-juice an indorsement on a bank-note, was a rasing of 
 the indorsement. (e) And in the inquiry in a former chapter as to the 
 resemblance which the forged instrument must bear to one that is 
 genuine, a case upon the 15 Geo. 2, c. 13, s. 11, (now repealed) was 
 mentioned, where it was holden that the resemblance to a bank note 
 must appear on the face of the instrument; and that a signature " for 
 Self and Co." of "my bank in England," did not support an allega- 
 tion that the paper purported to be a bank note : and further that the 
 
 (e) Rex v. Bigg, 3 P. Wms. 419. ante, p. 323.
 
 CHAP. XXXV.] BANK OF ENGLAND. 4£9 
 
 representation of the prisoner could not alter the purport of the instru- 
 ment^/) 
 
 The 45 Geo. 3, c. 89, s. 6, made it felony if any person should Possession 
 knowingly have "in his, her, or their possession or custody," &c, of afor 8 ed 
 any forged bank note, &c, and in a case upon this section, in which 
 the circumstances necessary to constitute "the having in possession" 
 of forged notes came under the consideration of the judges, they 
 seemed to be of opinion, that every uttering included having in cus- 
 tody and possession within the statute : and some of them thought, 
 that without actual possession, if the notes had been put in any place 
 under the prisoner's control, and by his direction, the result would 
 have been the saine.(g-)f 
 
 In a case upon the 13 Geo. 3, c. 79, s. 2, (now repealed,) which in order to 
 subjected to imprisonment anv person who should "knowingly and wil- constitute 
 
 . . . an utterinsr 
 
 fully publish or utter any promissory note" of the description therein t h e instru- 
 
 mentioned, it was holdcn that showing to a person an instrument with ment 
 
 an intent to raise a false idea of the party's substance, did not comep a ™ e(lw ? tll 
 
 within its provisions : and also that the leaving it afterwards, sealed up, or offered 
 
 with the person to whom it was shown, under cover, that he might take ° T d ^^1"^ 
 
 charge of it, as being too valuable to be carried about, was not an utter- in some 
 
 ing or publishing. The defendant was indicted for uttering and pub- way to S et 
 t ? • . • • • • i -i o mone y ° r 
 
 lishing a certain promissory note answering the description in the lo credit upon 
 
 Geo. 3, c. 79, s. 2. The defendant had introduced himself to an inn- it- 
 keeper at Brighton upon a fabricated story, and in order to persuade 
 him that he was a man of substance, one day after dinner, he pulled 
 out a pocket-book, and showed the innkeeper a 500^. and a 501. note of 
 the above description, of which, at the time, he only saw the sums and 
 general form : the defendant said that he did not like to carry so much 
 property about him, and desired the innkeeper to take care of them for 
 him : the innkeeper took charge of them accordingly; they were put 
 into *a cover, and sealed up by the defendant himself; and the inn- *430 
 keeper received them from him in an envelope, which, after some time, 
 upon some suspicions created by the defendant's conduct, he broke open, 
 and found them to contain the notes above mentioned. The prisoner 
 was convicted, but upon a case reserved on the question, whether there 
 was a sufficient uttering and publishing, the judges held the conviction 
 wrong, being of opinion that this did not amount to an uttering. That 
 in order to make it an uttering, they seemed to be of opinion that it 
 should be parted with, or tendered, or offered, or used in some way to 
 get money or credit upon it.(/i) 
 
 Amongst the few reported decisions upon the particular construction Palmerand 
 of the repealed statutes, it appears to have been holden that a person ea g e _ S01 
 knowingly delivering a forged bank-note to another, for the purpose of Where one 
 its being knowingly uttered by such person, might, in case the note were ^J^ 1 '"" 
 uttered accordingly, be convicted of having " disposed of and put away" knowingly 
 such note within the statute 15 Geo. 2, c. 13, s. 11, (now repealed.) The delivered a 
 indictment charged the two prisoners, Palmer and Hudson, in one of bank-note 
 
 (/) Jones's case, ante, p. 354. 
 
 ((/) Rex v. Rowley, Russ. & Ry. 110, and see the 1 Wm. 4, c. 66, s. 28, ante, p. 410. 
 
 \h) Rex v. Shukard, Russ. & Ry. 200. 
 
 f {The having in one's possession several forged bank-notes of different banks at one 
 time with intent to pass them, &c , constitutes but one offence. 7 Connect. li. 414, State v. 
 Bcnham.l
 
 430 OF FORGING THE SECURITIES OF THE [ROOK IV. 
 
 to the other several counts, with feloniously disposing of and putting away a forged 
 tifcufpurpose bank-note, knowing it to be forged. It appeared that Palmer had been 
 of its being in the habit of putting off forged bank-notes, and had been employed 
 uttered bV * n P u tti n g them off; that on a certain day being at a public house, he 
 her and she sent out Hudson with the forged note in question, for the purpose of 
 uttered it p ass i n g it • that she went to a neighbouring shop, purchased some hand- 
 ly, it was kerchiefs for six shillings, and tendered the note in payment, which was 
 holden that suspected and stopped, and, upon examination, appeared to be forged ; 
 er who de- that on the evening of the same day, Palmer went with her to the shop, 
 livered and when he got there, said, " This woman has been here to-day, and 
 mtehtbe ' on?ere( i a two pound note which you have stopped ; it is my note, and I 
 convicted niust have either the note or the change." Upon these facts it was 
 ofhaTing objected by the counsel for the prisoners, that the evidence related to 
 of and put two distinct and separate offences, and not to one joint offence ; and the 
 away" the l ear ned iud^e directed the iurv to consider whether the woman was 
 
 s im 6 on 
 
 the 15 Geo. guilty of uttering the note at the shop, or the man of disposing of it to 
 2, c. 13, s. her; but told them that they could not convict both; that the man could 
 not be convicted, unless they were satisfied that he gave the very note 
 stated in the indictment to the woman for a fraudulent purpose, know- 
 ing it to be a bad one ; nor the woman, unless they were satisfied that 
 she put the note away knowing it to be forged ; and that they must 
 consider which they would convict, if either appeared to be guilty. The 
 jury acquitted the woman, and found Palmer guilty; but judgment was 
 respited in order that the opinion of the judges might be taken upon the 
 question, whether the evidence given would support the conviction 
 Their opinion was afterwards delivered by Rooke, J., who first stated 
 with respect to one of the counts in the indictment which charged the 
 prisoners with uttering and publishing the note as true, knowing it to 
 be forged, that it seems to be the general opinion of the judges, that 
 if the woman had not known the note to be forged, Palmer might have 
 been rightly convicted on that count ; according to the doctrine, that 
 where an innocent person is employed for a criminal purpose, the em- 
 *431 ployer must be answerable ;(i) but as it appeared that she knew *the 
 note to be forged, the judges had formed no opinion upon the evidence 
 as applying to that count, thinking it sufficient to consider the case upon 
 the count which charged the prisoners with disposing of and putting 
 away the note in question. He then proceeded to state, that upon the 
 point whether the facts amounted to a disposing of, or putting away, 
 within the meaning of the 15 Geo. 2, c. 13, s. 11, there had been a con- 
 siderable difference of opinion amongst the judges. That some of them 
 had holden, that this was not an offence within the statute, because till 
 the woman had uttered the note it ought to be considered as in the pos- 
 session of the man ; and when she did utter it, the man was only an 
 accessory before the fact, and should have been so indicted. But that 
 the majority of the judges were of opinion that the conviction was 
 right. And as to the constructive possession, he observed, that it is by 
 fiction of law only that when the actual possession is in one person the 
 constructive possession shall be considered in another ; and that these 
 fictions are adopted for the sake of promoting justice, but ought not to 
 be adopted when they tend to defeat that purpose, "(j) 
 
 (i) Fost. 349. Ante, vol. 1, p. 484. 
 
 (j) Rex v. Palmer and Hudson, 1804. 1 New R. 96. 2 Leaeh. 978. Russ. tt Ry. 72.
 
 CHAP. XXXV.] BANK OF ENGLAND. 431 
 
 And we have seen that it has since been held that giving a forged 
 note to an innocent agent, or an accomplice, that he may pass it, was a 
 disposing of and putting it away, within the 15 Geo. 2, c. 13.(/c)f 
 
 In a case upon the 45 Geo. 3, c. 89, s. 2, (now repealed) an objection Holden's 
 was taken to the indictment, that it did not point out the name of the f^ndict 
 person to whom the forged note was disposed ; but, upon argument in nient for 
 the Exchequer Chamber before the twelve judges, Lord Ellenboroufh, P uttin S 
 C. J., observed, that the indictment contained every word which the e d bank- 
 statute uses for constituting the offence; and that the statute did not notes ltis 
 contain the words, "to any person or persons ;" but to put off with in- sarytoaver 
 tent to defraud the governor and company of the Bank of England; and t0 whom 
 the judges held the indictment to be sufficient. (1)1 ?ere put 
 
 Another point arose in the same case, upon the evidence, from which away. 
 it appeared that the notes, which the prisoners were charged with hav- And this 
 ing disposed of and put away, were furnished by the prisoners in conse- ma y j^ 
 quence of an application made to them by agents employed for that completed, 
 purpose by the bank, and that they were delivered to such agents as j^ ^ ^ 
 forged notes, for the purpose of being disposed of by them. The facts the notes 
 were, that in consequence of a great number of forged notes having been w . e ™ ^*" 
 circulated in the neighbourhood, two persons, named Shaw and White- the pri- 
 head, were employed by the magistrates, with the approbation of the soners to 
 agents for the bank, to detect those who were suspected to be the utter- pfoy e d by" 
 ers. The prisoners did not pay the notes to Shaw and Whitehead as the bank to 
 *genuine; but those persons, for the purpose of detection, applied to *432 
 the prisoners, as supposed dealers in forged bank-notes, to purchase procure 
 them, and the prisoners accordingly procured them, and sold them as tbe prison- 
 forged notes, so that Shaw and Whitehead were not deceived or de- ers > an <l 
 frauded in any of the instances, nor were any of the prisoners the first no j es w e ere 
 movers in the transaction they had with them; nor did it appear, by any delivered 
 direct evidence, that either of the prisoners, when he was first applied a ° c f" t c s as 
 to, had any of the notes in his actual possession ; but they respectively forged 
 
 produced them at meetings which took place subsequent to such first notes > for 
 
 ,. TT i . . , . , . i i i in a i • the purpose 
 
 application. Upon this evidence it was objected, on behalt of the pn- f being 
 
 soners, that there was no sufficient disposing of the notes, inasmuch as disposed of 
 the prisoners were solicited to commit the act proved against them, by y 
 the bank themselves, by means of their agents. The objection was 
 overruled by the learned judges who tried the prisoners; but he thought 
 proper to respite their sentence, in order that the point might be con- 
 sidered by the twelve judges, who held the conviction right.(m) 
 
 Thompson, B., Lawrence, J., Le Blanc, J., and Chambre, J., were of opinion that the con- 
 viction was wrong. 
 
 (ft) Rex v. Giles, R. & M. C. C. R. 1G6, ante, p. 398. 
 
 (I) Rex v. Holden and others, cor. Chambre, J., Lancaster Sum. Ass. 1809, and argued be- 
 fore the judges, Mich. T. 1809. 2 Taunt. 334. 2 Leach, 1019. Russ. & Ry. 154. The count 
 in question in the indictment charged that the prisoner " on, &c, with force and arms of, 
 &c, feloniously did dispose of, and put away a certain false, forged, and counterfeit bank- 
 note, the tenor of which was as followeth, (an exact copy set out,) with intent to defraud the 
 governor and company of the bank of England, he (the prisoner) at the time of his so dis- 
 posing of and putting away the same forged and counterfeit bank-note, then and there well 
 knowing such last mentioned note to be forged and counterfeited: against the form of the 
 statute, &c." 
 
 (m) Rex v. Holden and others, ante,]}. 431, note (I). The ground on which this decision 
 
 ■f- {11 Mass. Rep. 136, Commonwealth v. Hill.} 
 
 % jThe words of the statute of S. Carolina, are, that if any person shall " utter and pub- 
 lish," &c. An indictment charged that the prisoner " did dispose of and put away," &c. 
 Judgment was arrested. 1 Harper's Rep. 59, State v. Petty.}
 
 432 FORGING ON OTHER PUBLIC COMPANIES. [BOOK IV. 
 
 Evidence We have seen that the offering, disposing of, receiving, or having pos- 
 knawlwize sess i° n °f forged bank-notes, &c, knowing the same to he forged, are 
 where the made substantive offences by the statutable enactments, which have been 
 P™*y IS , cited ;(») and the knowledge of the forgery, or, as it is commonly termed 
 with'utter- the guilty knowledge, will of course, in prosecutions for such offences, 
 j. 11 ?'*, '' *° rm a most mater i a l part of the inquiry. The principal cases upon 
 notes, &c, this subject are mentioned in a former chapter, treating generally of the 
 knowing crime of forgery. (o) 
 
 be C for^ed!° ^ n a case where the Bank of England had preferred a bill of indict- 
 Bank pro- ment for the capital offence of disposing of and putting away forged 
 secutions. Bank of England notes : and also another bill against the same pri- 
 r-ao ice. gonerg f QT ^ e transportable offence of having the same notes in their 
 Election to , r , , , . . , , . , , 
 
 proceed for possession, knowing them to be forged, and had elected to proceed on 
 
 minor the latter indictment, it was holden, that although facts sufficient to 
 support the capital charge were made out in evidence, an acquittal for 
 such minor offence ought not to be directed, because the whole of the 
 minor offence was proved, and it did not merge in the capital offence. 
 And that the bank might elect to proceed on indictments for the lesser 
 offence, although indictments had been found for the capital charge.(^») 
 igning It was also holden in the same case, that it is not necessary that the 
 
 signing clerk at the bank should be produced, if witnesses acquainted 
 with his handwriting stated that the signature to the note was not his 
 
 clerk not a 
 necessary 
 
 handwriting.(g') 
 
 *433 ^CHAPTER THE THIRTY-SIXTH. 
 
 OF FORGING THE SECURITIES OF OTHER PUBLIC COMPANIES. 
 
 Forging The 9 Anne, c. 21, s. 57, relates to forgeries upon the South Sea 
 
 bond" Ac Company, and enacts, "That if any person or persons shall forge or 
 
 of the counterfeit the common seal of the said company, or shall forge, coun- 
 
 South Sea terfeit, or alter auv bond or obligation under the common seal of the 
 
 Company ; ' » ° 
 
 or demand- said company; or shall offer to dispose of or pay away any such forged, 
 ing pay- counterfeited, or altered bond, (knowing the same to be such,) or shall 
 forged demand the money therein contained or pretended to be due thereon, or 
 bond, <fcc. any part thereof, of the said company, or any of their officers, (knowing 
 21 s^ ' sucn bond or obligation to be forged, counterfeited, or altered,) with in- 
 tent to defraud the said company or their successors, or any other per- 
 son or persons whatsoever," every such offender shall be guilty of felony, 
 without benefit of clergy. And the 6 Geo. 1, c. 4, s. 56, contains sim- 
 ilar provisions, (a) 
 Forgingre- The 6 G-eo. 1, c. 11, s. 50, recites that the South Sea Company might 
 
 proceeded, was that the intent is the essence of the crime which exists in the mind, although 
 from circumstances of which the prisoner is not apprised the prosecutor cannot be de- 
 frauded. 
 
 (n) Ante, 424, et seq. (o) Ante, Chap, xxxii. p. 403. 
 
 (p) Case of Bank Prosecutions, Russ. & Ry. 378. Both the offences were felonies. 
 
 (?) Id. Ibid. 
 
 (a) The 9 Anne. c. 21, s. 57, and the 6 Geo. 1, c. 4, s. 56, not being expressly repealed by 
 the 1 Win. 4, c. 66, or the offences contained in them made capital by that statute, the 
 present punishment for such offences is regulated by the 1 Win. 4, c. 66, ss. 1 and 26, and 
 the 1 Vict. c. 90, s. 5, and is that stated in note (h), ante, p. 415. As to the punishment of 
 principals in the second degree and accessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410.
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 433 
 
 issue out receipts under the hand or hands of one or more of their ceipts or 
 officers, from time to time, upon or for subscriptions to be taken by the the^outh^ 
 said company for increasing their capital, pursuant to the 6 Geo. 1, c. Sea Com- 
 4, and might also issue out warrants under the hand or hands of one or 5, any \ 6 
 more of their officers, for the dividends from time to time to be made 11, s. 50.' 
 to the proprietors of the stock of the said company; and then enacts, 
 "that if any person or persons shall forge, counterfeit, or alter any such 
 receipt or receipts, warrant or warrants, or an indorsement or writing, 
 indorsements or writings thereupon or therein, or shall tender any such 
 forged, counterfeited, or altered receipt or receipts, warrant or warrants, 
 or any such receipt or receipts, warrant or warrants, with such counter- 
 feit indorsement or writing thereon or therein, knowing the same to be 
 so forged, counterfeited, or altered, to the said company, or any of their 
 officers, or shall offer to alienate or dispose of the same, knowing the 
 same to be forged, counterfeited, or altered, and with intent to defraud 
 the said company, or any other person or persons, bodies politic or cor- 
 porate," every such person so offending shall be adjudged a felon, with- 
 out benefit of clergy.(6) 
 
 *The 1 Wm, 4, c. 66, s. 3, enacts, that "if any person shall forge or *434 
 alter (inter alia} any bond under the common seal of the united com- 1 01 ? 1 ^,. 
 pany of merchants trading to the East Indies, commonly called an East bonds. 
 India bond, or any indorsement on or assignment of any East India 
 bond, with intent, in any of the cases aforesaid, to defraud any person 
 whatsoever, every such offender shall be guilty of felony, and being 
 convicted thereof, shall suffer death as a felon. (c) 
 
 Especial provisions have also been made respecting forgeries affecting Forgeries 
 some of the insurance companies;^?) the English linen company,^) the upon in " 
 British society for extending the fisheries, &c.,(/) and the governor companies, 
 and company of the British cast plate glass manufactory. (g} And the &c - 
 statute books probably contain provisions of a similar kind relating to 
 other public companies, not requiring particular notice in this work ; 
 and which indeed may be considered as having been rendered of less 
 importance by the general statute applying to forgeries committed with 
 the intention of defrauding any corporation whatsoever. (h\ 
 
 *CHAPTER THE THIRTY-SEVENTH. *435 
 
 OF FORGING AND TRANSPOSING STAMPS. 
 
 The various statutes by which stamps, marks, &c, have been re- The for £- 
 quired to be affixed to written instruments, plate, or other articles, in p sing,&c., 
 
 (b) The 6 Geo. 1, c. 11, s. 50, is not repealed expressly by the 1 Wm. 4, c. 66, or the of- 
 fences contained in it made capital by the act ; see therefore the last note as to the present 
 punishment. 
 
 (c) See the section in full, ante, p. 424, and note (a), ante, p. 424, for the present punish- 
 ment. 
 
 (d) By the 6 Geo. 1, c. 18, s. 13, as to forging the securities of the London and Royal ex- 
 change Assurance Companies; and by the 39 Geo. 3, c. 83, s. 22, (public, local, and personal 
 act,) as to forging those of the Globe Insurance Company. 
 
 (e) 4 Geo. 3, c. 37, s. 15. (/) 26 Geo. 3, c. 106, s. 56. 
 
 (g) 13 Geo. 3, c. 38, s. 28, revived by 38 Geo. 3, c. 17, s. 23, (public, local, and personal 
 act.) 
 
 (/() Post, Chap, of the Forgery of Private Pajjers, Sfc.
 
 435 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 of stamps order to denote the payment of the duties imposed thereon by the legis- 
 werc oapi- l ature > have made the forging or counterfeiting such stamps, marks, &c, 
 tal offences, offences of a very high degree : and, in general, punishable •with death. 
 suiuitLs52 ^ nc * m some °^ tQe statutes are included the offences of transposing 
 Geo. 3, c. stamps, and knowingly uttering and selling articles with the impression 
 143, s. 1, Q f a f 01 .g e( j or counterfeited stamp, &c, upon them ; and the privately 
 breach of, or secretly using any genuine stamps, &c, for the purpose of defrauding 
 or in resist- th e crown. The 52 Geo. 3, c. 143, (a) embraces offences of this descrip- 
 
 nncG to tuG ■ * ' 
 
 revenue tion; having first enacted, in the following words, "that in all cases 
 
 laws, felo- where any act to be done or committed in breach of or in resistance to 
 
 any part of the laws for collecting his majesty's revenue in Great Britain 
 
 would by the laws now in force subject the offender to suffer death, as 
 
 guilty of felony, without benefit of clergy, by virtue of the said laws, 
 
 or any of them, such act, so be done or committed, shall be deemed and 
 
 taken to be felony with benefit of clergy, and punishable only as such, 
 
 unless the same shall also be declared to be felony without benefit of 
 
 clergy by this act."(6) 
 
 52 Geo. 3. This statute then enacts, " that if any person shall forge, or counter- 
 
 For 'm' ^ e ^> or cause or procure to be forged or counterfeited, any mark, stamp, 
 
 <fcc, marks, die or plate, which, in pursuance of any act or acts of parliament shall 
 
 stamps, &c. have been provided, made or used by or under the direction of the 
 
 commis- commissioners^) appointed to manage the duties on stamped vellum, 
 
 sioners of parchment and paper, or by or under the direction of any other person 
 
 on vellum or persons legally authorized in that behalf, for expressing or denoting 
 
 paper, Ac, any duty or duties, or any part thereof, which shall be under the care 
 
 in» the°du- anc * mana gement of the said commissioners, or for denoting or testifying 
 
 ties; or for the payment of any such duty or duties, or any part thereof, or for 
 
 denoting d er ,oting any device appointed by the said commissioners for the Ace of 
 
 jinv (1CV1C6 
 
 for the Ace Spades, to be used with any playing cards ; or shall forge or counter- 
 of Spades f e [^ or cauge or procure to be forged or counterfeited, the impression, or 
 playing an y resemblance of the impression, of any such mark, stamp, die or 
 cards : is plate as aforesaid, upon any vellum, parchment, paper, card, ivory, gold 
 *436 or silver plate, or other metal, or shall stamp or mark, or *cause or 
 forging, procure to be stamped or marked, any vellum, parchment, paper, card, 
 semblance lvor y> 8°^ or silver plate, or other material, with any such forged or 
 of such counferfeited mark, stamp, die or plate as aforesaid, with intent to de- 
 marks, fraud his majesty, his heirs, &c, of any of the duties, or any part of 
 &c, upon the duties under the care and management of the said commissioners ; 
 vellum, pa- or if any person shall utter or sell, or expose to sale any vellum, parch- 
 ivory, gold m ent, paper, card, ivory, gold or silver plate, or other material, having 
 or silver, thereupon the impression of any such forged or counterfeited mark, 
 p a e, c. s t ani p^ jig or plate, or any such forged or counterfeited impression as 
 aforesaid, knowing the same respectively to be forged or counterfeited; 
 or if any person shall privately or secretly use any such mark, stamp, die 
 or plate, which shall have been so provided, made or used, by or under 
 such direction as aforesaid, with intent to defraud his majesty, his 
 heirs, &c, of any of the duties, or any part of the duties under the 
 
 (a) So much of this act "as relates to offences committed in breach of any law relating 
 to his majesty's customs, or for the preventing of smuggling," is repealed by the 6 Geo. 4, 
 c. 105, s. 297. 
 
 (b) As no punishment is specially appointed for these offences they seem to be punishable 
 under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and 1 Vict. c. 90, s. 5. See note (6), ante, p. 
 135. 
 
 (lb) Now '•' the commissioners of stamps and taxes," by the 4 & 5 Win, 4, c. 60, s. 3.
 
 CITAP. XXXVII.] OP FORGING AND TRANSPOSING STAMPS. 436 
 
 care and management of the said commissioners; every person so 
 offending, shall be adjudged guilty of felony, without benefit of clergy. (e) 
 
 By section 8, "If any person shall transpose or remove, or cause or 52 Geo. 3. 
 procure to be transposed or removed, from one piece of wrought plate Tranapoe- 
 of gold or silver to another, or to any vessel or ware of base metal, any ing from 
 impression made with any mark, stamp, or die, provided, made or used one P 1 « ceof 
 by or under the direction of the said commissioners of stamps, or by or plate to 
 under the direction of any other person or persons legally authorized in another > or 
 that behalf, for denoting any duty or duties, or the payment of any duty metal^any 
 or duties granted to his majesty, on gold or silver plate, or shall stamp mark, 
 or mark, or cause or procure to be stamped or marked, any vessel or o^markin'^ 
 ware of base metal with any mark, stamp or die, which shall have been base metaf 
 forged or counterfeited in imitation of or to resemble any mark, stamp Wlth for S e(1 
 or die so provided, made or used as aforesaid : or shall sell, exchange stamp, &c. 
 or expose to sale, or export out of Great Britain, any wrought plate of 
 gold or silver, or any vessel or ware of base metal, having thereupon 
 the impression of any forged or counterfeit mark, stamp, or die, for 
 denoting any such duty or duties, or the payment of any such duty or 
 duties, or any forged or counterfeited impression of any mark, stamp, 
 or die so provided, made or used as aforesaid, or any impression of any 
 such mark, stamp, or die, which shall have been transposed or removed 
 from any other piece of plate as aforesaid, knowing the same respect- 
 ively to be forged or counterfeited, or transposed or removed as afore- 
 said; or shall wilfully and without lawful excuse (the proof whereof 
 shall lie on the person accused) have or be possessed of any such forged 
 or counterfeit mark, stamp, or die, for denoting any such "fluty or 
 duties, or the payment thereof; every *person so offending shall be ad- *437 
 judged guilty of felony, without benefit of clergy. (d) 
 
 By the ninth section it is enacted, " that if any person (not being 52 Geo. 3, 
 lawfully appointed or authorized so to do) shall make, or cause, or pro- ^kin S «■' 
 cure to be made, or shall knowingly aid or assist in the making or, having in 
 without bein£ go appointed or authorized as aforesaid, shall knowingly posse . sslon 
 have in his, her or their custody or possession, without lawful excuse & ., for pa'- 
 (the proof whereof shall lie on the person accused,) any frame, mould, P er > . &c -' or 
 or instrument, for the making of paper, with the words < Excise Office' per, &c.f a 
 visible in the substance of such paper, or shall make or cause, or pro- witn tne 
 cure to be made, or knowingly aid or assist in the making any paper, in "Excise 
 the substance of which the words 'Excise Office' shall be visible; or if Office," 
 any person (except as before excepted) shall by any art, mystery or con- y, isible , in 
 trivance, cause or procure the said words < Excise Office' to appear visi- stance ,• or 
 ble in the substance of any paper whatever; or if any person (not being engraving, 
 so appointed or authorized as aforesaid) shall engrave, cast, cut, or make, & c>> any' 
 
 (c) Mr. Lonsdale, Cr. St. Law, p. 78, observes : "The whole of this enactment is either su- 
 perseded or repealed by the 55 Geo. 3, c. 184, s. 7, [post, p. 437,) c. 185, s. 7, (post, p. 439,) 
 and the 9 Geo. 4, c. 18, s. 35, (post, p. 441,) except so far as the offences thereby made pun- 
 ishable relate to other than the materials specified in such enactment. With respect to which 
 offences (the 1 Win. 4, c. 66, not having made the same punishable with death, although so 
 punishable at the time of the passing of that act, and not having repealed the 55.Geo. 3, c. 
 147, s. 7,) persons convicted thereof are liable under the 1 Wm. 4, c. 66, ss. 1 and 26, and the 
 1 Vict. c. 90, s. 5, to the punishment at the head of this class of offences," i. e. the punish- 
 ment mentioned in note (h), ante, p. 415. In such cases principals in the second degree and 
 accessories are punishable under the 1 Wm. 4, c. 66, s. 25, and the 1 Vict. c. 90, s. 5. See 
 ante, p. 410. C. S. G. 
 
 (d) See 5 Geo. 4, c. 52, (local and personal,) s. 22, as to plate wrought or made within 
 the town of Birmingham, and within thirty miles thereof.
 
 437 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 marks, r shall cause or procure to be engraven, cast, cut, or made, any mark, 
 ^"iufitif stamp, or device, in imitation of or to resemble any mark, stamp, or 
 tion of the device, made or used by the direction of the commissioners of excise in 
 mark, England or Scotland, or the major part of them respectively, for the 
 used by the purpose of printing, stamping, or marking of any paper to be used as or 
 commis- f or a p erm it or permits to accompany any excisable commodity or corn- 
 excise for modities removing or removed from one part of Great Britain to any 
 paper used other part thereof, in pursuance of the directions of any of the several 
 felony?"* 8 ' statutes requiring such permit, every person so offending shall be ad- 
 judged guilty of felony without benefit of clergy."(e) 
 55 Geo. 3, The stamp act, 55 Geo. 3, 184, s. 7, includes the cutting or getting 
 c. 184, s. 7, g- tue i m p ress i on f any stamp from paper, &c, with intent to use the 
 the cutting same upon any other paper, &c, chargeable with the duties thereby 
 or getting granted; and makes this also a capital offence. This section (without 
 pressloToff referring to to the former general act of the 55 Geo. 3, c. 143,) enacts, 
 any stamp a that if any person shall forge or counterfeit or cause or procure to be 
 iTwifh"' forged or counterfeited, any stamp or die, or any part of any stamp or 
 inte'nt to die, which shall have been provided, made or used, in pursuance of this 
 use the . j n p U1 . SU ance of anv former act or acts, relating to any stamp 
 
 same upon ' ^ •> 11 
 
 any other duty or duties, or shall forge, counterfeit or resemble, or cause or pro- 
 paper, &.Q., cure to k e forged, counterfeited or resembled the impression or any part 
 with the 6 of the impression of any such stamp or die as aforesaid, upon any 
 duties, and yelluni, parchment or paper, or shall stamp or mark, or cause or procure 
 cutting, 110 t0 be stamped or marked any vellum, parchment or paper, with any 
 getting off such forged or counterfeited stamp or die, or part of any stacnp or die 
 <fcc, felony. ag aforesaid, w ith intent to defraud his majesty, his heirs, &c, of any of 
 the duties hereby granted, or any part thereof; or if any person shall 
 *438 utter, or sell, or expose to sell any vellum, parchment or paper *having 
 thereupon the impression of any such forged or counterfeited stamp or 
 die, or part of any stamp or die, or any such forged, counterfeited or 
 resembled impression or part of impression as aforesaid, knowing th( 
 same respectively to be forged, counterfeited, or resembled; or [if any 
 person shall privately and secretly use any stamp or die which shall hav( 
 been so provided, made or used as aforesaid, with intent to defrauc 
 his majesty, his heirs, &c, of any of the said duties, or any part then 
 of; or if any person shall frudulently cut, tear, or get off, or cause oi 
 procure to be cut, torn or got off, the impression of any stamp or dh 
 which shall have been provided, made or used in pursuance of this oi 
 any former act, for expressing or denoting any duty or duties under th( 
 care and management of the commissioners of stamps,^/) or any part 
 of such duty or duties, from any vellum, parchment, or paper whatso- 
 ever, with intent to use the same for or upon any other vellum, parch- 
 ment, or paper, or any instrument or writing, charged or chargeable 
 with any of the duties hereby granted ; then and in every such case 
 every person so offending, and every person knowingly and wilfully 
 aiding, abetting, or assisting any person or persons in committing any 
 such offence as aforesaid]," shall be adjudged "guilty of felony without 
 
 (e) As the 55 Geo. 3, c. 143, ss. 8 and 9, is neither expressly repealed, nor the offences in 
 those sections made capital by that act, such offences are punishable as stated in note (h), 
 ante, p. 41", under the 1 Win. 4. c, 66, ss. 1 and 26, and 1 Vict. c. 90, s. 5. As to the pun- 
 ishment of principals in the second degree and accessories, see the 1 Wm. 4, c. 66, ?. 25, and 
 1 Vict. c. 90, s. 5, ante, p. 410. 
 
 (/i Now ' ; the commissioners of stamps and taxes." See the 4 & 5 Wm. 4, c. 60, s. 8. 

 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 438 
 
 benefit of clergy." (#) The eighth section enacts, that all the powers, Sec 8. 
 &c, pains and penalties contained in and imposed by the several acts former 8 acts 
 relating to the duties by this act repealed, and the several acts relating extended. 
 to any prior duties of the same kind or description, shall be of full 
 force and effect with respect to the duties by this act granted, as far as 
 the same shall be applicable, &c. 
 
 The 55 G-eo. 3, c. 185, entitled " an act for repealing the stamp ofiice *439 
 duties on advertisements,^) almanacks, newspaper, gold and *silver 55 Geo - 3 > 
 plate, stage-coaches, and licenses for keeping stage-coaches, now pay- grants new- 
 able in Great Britian ; and for granting new duties in lieu thereof," duties on 
 declares that the duties thereby granted shall be under the care and advertlse - 
 management of the commissioners of stamps(i) in Great Britain, and manac'ks, 
 requires the commissioners to provide and use proper and sufficient news P a - 
 
 ■ • T3CTS ftl&t© 
 
 plates, stamps or dies, for denoting the duties thereby granted ;(j\ and coaches, ' 
 enacts, that the powers, &c, pains and penalties contained in and im- 'de- 
 posed by the acts relating to the duties by this act, repealed, and to any 
 prior duties of the same kind or description, shall be of full force and 
 effect, with respect to the duties by this act granted as far as the same 
 shall be applicable, &c.(&) The sixth section then enacts, " that if any Sec. 6. 
 person shall forge or counterfeit, or cause or procure to be forged or Persons 
 counterfeited, any plate, stamp, or die, or any part of any plate, stamp, Ae.f any 
 or die, which shall have been provided, made or used, in pursuance of plate, 
 this or any former act, for expressing and denoting any of the duties die'used^o 
 granted by this or any former acts on almanacks, newspapers, and denote the 
 licenses to keep stage-coaches ; or shall forge, counterfeit, or resemble, d . utles on 
 
 , n i • l ii • almanacks, 
 
 or cause or procure to be forged, counterfeited or resembled, the impres- &c, for 
 sion, or any part of the impression of any such plate, stamp, or die, for s in S the 
 
 (g) The 55 Geo. 3, c. 184, s. 7, is neither expressly repealed by the 1 Wm. 4, c. 66, nor 
 are the offences mentioned in it made capital by that act ; such of the offences in it, there- 
 fore, which fall within the 1 Wm. 4, c. 66, s. 1, ante, p. 408,) are now punishable under the 
 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 Vict. c. 90, s. 5, in the manner stated in note (h), 
 ante, p. 445 ; and the principals in the second degree and accessories are punishable under 
 the 1 Wm. 4, c. 66, s. 25, ante, p. 410, and 1 Vict. c. 90, s. 5, ante, p. 413. The 4 & 5 Vict. 
 c. 50, s. 1, recites so much of the 55 Geo. 3, c. 187, s. 7, as is included within the brackets, 
 and enacts, that after the 1st of October, 1841, " if any person shall be convicted of any of 
 the offences herein before specified, such person shall not be subject to any sentence, judg- 
 ment, or punishment of death, - ' but shall "be liable, at the discretion of the court, to be 
 transported beyond the seas for the term of the natural life of such person, or for any term 
 not less than seven years, or to be imprisoned for any term not exceeding three years ;" and 
 by sec. 4, such imprisonment may be with or without solitary confinement and hard labour; 
 see the section, ante, p. 200. Mr. Lonsdale (St. Cr. L. 81,) observes, that "the forging of 
 stamps on newspapers, directed to be used by the 6 & 7 Wm. 4, c. 66, (an act to reduce the 
 duties on newspapers, and to amend the laws relating to the duties on newspapers and ad- 
 vertisements,) appears to be punishable under the 55 Geo. 3, c. 134. See the 6 & 7 Wm. 4, 
 c. 66, s. 1, which enacts, that all the powers, provisions, clauses, regulations, and directions, 
 fines, forfeitures, pains and penalties contained in and imposed by the several acts of par- 
 liament relating to the stamp duties, and not repealed by this act, shall be of full force and 
 effect with respect to the duties hereby granted as far as the same are or shall be applicable 
 in all cases not hereby expressly provided for." There is no express provision in that act re- 
 specting the forgery of stamps thereby directed to be used. 
 
 (A) The 3 & 4 Wm. 4, c. 23, enacts that the duties granted by this act "upon or in re- 
 spect of pamphlets, or books or papers commonly so called, and upon or in respect of any 
 advertisement," shall cease, and grants new duties in respect thereof, and by sec. 4, enacts, 
 that all the powers, provisions, clauses, regulations, and directions, fines, forfeitures, pains, 
 and penalties contained in or imposed by the several acts relating to the duties on adver- 
 tisements and sea insurances respectively, and the several acts relating to any prior duties 
 of the same kind and description, shall lie in full force and effect with respect to the duties 
 by this act granted, and to the vellum, parchment, and paper articles, matters, and things 
 charged or chargeable therewith, and to the persons liable to the payment of the said duties. 
 
 (i) Now " the commissioners of stamps and taxes," by sec, 8 of the 4 & 5 Wm. 4, c. 60. 
 
 (/) Sec. 3. (k) Sec. 4
 
 439 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 impression upon any paper whatsoever, or shall stamp or mark, or cause or procure 
 stomping to ^ e damped or marked any paper whatsoever, with any such forged 
 any paper or counterfeited plate, stamp, or die as aforesaid, with intent to defraud 
 f^raed ^* s ma J est y> n ^ s heirs, &c, of any of the duties hereby granted on alma- 
 plate, nacks, newspapers, (/) and licenses to keep stage-coaches,(m) or any 
 stamp or p art thereof; or if any person shall utter, or sell, or expose to sale any 
 teri'ng such paper, having thereupon the impression of any such forged or counter- 
 paper, feited plate, stamp, or die, or part of any plate, stamp, or die, or any 
 &c. or sucn forged, counterfeited, or resembled impression, or part of impres- 
 secretiy sion as aforesaid, knowing the same respectively to be forged, counter- 
 plate any feited or resembled ; or if any person shall privately and secretely use 
 stamp or any plate, stamp, or die, which shall have been so provided, made or 
 th" d usec ^ as a f° resa id, with intent to defraud his majesty, his heirs, &c, then 
 ers, &c, every person so offending, and every person knowingly and wilfully 
 shall be aiding, abetting, or assisting any person or persons in committing any 
 felony. such offence as aforesaid," shall be adjudged guilty of felony without 
 benefit of clergy, (ri\ 
 *440 By sec. 7, " If any person shall forge or counterfeit, or cause or pro- 
 55 Geo. 3, cure to be forged or counterfeited any mark, stamp, or die, which shall 
 Any per- nave been provided, made, or used in pursuance of this or any former 
 sons forg- act relating to any duties on gold or silver plate made or wrought in 
 1 ° g ' *^ k Great Britain, for the purpose of marking or stamping any such gold or 
 stamp, or' silver plate, in the manner directed by *any such act, or shall forge, 
 die used for counterfeit, or resemble, or cause or procure to be forged, counterfeited, 
 forging, or resembled, the impression of any such mark, stamp or die, upon any 
 Ac, the such gold or silver plate, with intent to defraud his majesty, his heirs, 
 of such & c -j or ^ an y person shall mark or stamp, or cause or procure to be 
 mark, &c, marked or stamped, any such gold or silver plate, or any vessel or ware 
 or stamp- 6 ' °^ ^ase meta l, w ^ n any such forged or counterfeited mark, stamp, or die 
 ing plate as aforesaid, or [shall transpose or remove, or cause or procure to be 
 metal* with trans posed or removed, from one piece of gold or silver plate to another, 
 a forged or to any vessel or ware of base metal, any impression made with any 
 mark, mark,, stamp, or die, which shall have been provided, made or used in 
 die, or pursuance of this or any former act, for the purpose of marking or 
 transpos- stamping of any such gold or silver plate as aforesaid; or if any person 
 one piece of sna ^ se ^> exchange, or expose to sale, or export out of Great Britain, 
 plate to any such gold or silver plate, or any vessel or ware of base metal, having 
 or to base taere upon] the impression of any such forged or counterfeited mark, 
 metal, any stamp, or die, as aforesaid, or any forged, counterfeited or resembled 
 of ^mark 11 * m P ress i° n °f an y mark, stamp, or die so provided, made, or used as 
 stamp or ' aforesaid or [any impression of any such mark, stamp, or die, which 
 die, &c, shall have been transposed or removed from any other piece of plate as 
 felony. aforesaid, knowing the same respectively to be] forged or counterfeited, 
 or [transposed or removed as aforesaid ;] or if any person shall wilfully, 
 and without lawful excuse (the proof whereof shall lie on the person 
 accused) have or be possessed of any such forged or counterfeited mark, 
 
 (I) Repealed by the 6 & 1 Wm. 4, c. 76, as " relates to newspapers, or the duties thereon, 
 or to any discount or allowance in respect of the said duties." 
 
 (m) See the 2 & 3 Wm. 4, c. 120, post, p. 440. 
 
 (n) This section not being repealed by the 1 Wm. 4, c. 66, nor the offences therein con- 
 tained, which still are subsisting, made capital by that act, such offences are liable under 
 the 1 Wm. 4, c. 66, ss. 1 and 26, and 1 Vict. c. 90, s. 5, to the punishments stated in 
 note (h), ante, p. 415. See Rex v. Hope. R. & M. C. C. R. 396.
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 440 
 
 stamp, or die as aforesaid, or shall privately and secretly use any mark, 
 stamp, or die so provided, made, or used as aforesaid, with intent to de- 
 fraud his majesty, &c.,' ; every person so offending, and every person 
 knowingly and wilfully aiding, abetting, or assisting any person or per- 
 sons committing any such offence as aforesaid,(o) shall be adjudged guilty 
 of felony without benefit of clergy. (_p) 
 
 The 2 & 3 Wm. 4, c. 120, entitled "an act to repeal the duties under 2and3 
 the management of the commissioners of stamps on stage-carriages, and }^ m ' \%' 
 on horses let for hire in Great Britain, and to grant other duties in lieu Forging 
 thereof," repeals so much of the 55 Geo. 3, c. 185, as relates to the s ! ;a s e car " 
 duties on coaches, and on licenses for keeping stage-coaches, and as re- " misdea- 
 lates to the offences in the said act mentioned respecting such duties and nieanor. 
 licenses ; and by sec. 32, enacts, " that if any person shall forge or 
 counterfeit, or shall cause or procure to be forged or counterfeited, or 
 resembled, any numbered plate directed to be provided, or which shall 
 have been provided, made, or used, in pursuance of this act, or of any 
 former act relating to the duties payable in respect of stage-carriages, 
 or shall wilfully fix or place, or shall cause or permit, or suffer to be 
 fixed or placed, upon any stage-carriage or other carriage, any such 
 forged or counterfeited plate, or if any person shall sell or exchange, or 
 expose to *sale or utter, any such forged or counterfeited plate, or if any *441 
 person shall knowingly, and without lawful excuse, the proof whereof 
 shall lie on the person accused, have or be possessed of any such forged 
 or counterfeited plate, knowing such plate to be forged or counterfeited, 
 every person so offending, and every person knowingly and wilfully 
 aiding, abetting, or assisting any person in committing any such offence 
 as aforesaid, shall be adjudged guilty of a misdemeanor, and being 
 thereof convicted, shall be liable to be punished by fine or imprisonment, 
 or by both, such imprisonment to be in the common gaol or house of 
 correction, and either with or without hard labour, as the court shall 
 think fit ; and in Scotland, whenever any person shall so offend, he shall 
 be liable to be punished in like manner." 
 
 The 3 & 4 Wm. 4, c. 97, entitled " an act to prevent the selling and 3 & 4 Wm. 
 uttering of forged stamps," &c, enacts, by sec. 11, that whenever any** c- ®T' s- 
 vellum, parchment, or paper shall be found in the possession of any censedven- 
 person licensed to vend or deal in stamps, or who shall have been so <lers of 
 licensed at any time within six calendar months then next preceding, having 
 such vellum, parchment, or paper having thereon any false, forged or counterfeit 
 counterfeit stamp, mark, or impression resembling or representing, or their'pos" 
 intended or liable to pass or be mistaken for any stamp, mark, or im- session 
 pression of any die, plate, or other instrument which at any time what- tat mm 
 ever hath been or shall or may be provided, made, or used, by or under ishments. 
 the direction of the commissioners of stamps,(_/>p) for the purpose of ex- 
 pressing or denoting any stamp duty whatever, then and in every such 
 case the person in whose possession such vellum, parchment, or paper, 
 shall be so found, shall be deemed and taken to have so had the same in 
 his possession, with intent to vend, use, or utter the same with such 
 
 (o) The 4 & 5 Vict. c. 56, s. 1, recites so much of this section as is included within the 
 brackets, and enacts as stated in note (g), ante, p. 438. With regard to the other offences 
 Contained in this section, as they are neither expressly repealed nor made capita] by the 1 
 Wm. 4, c. 66, they are liable to the punishments stated in note (A), ante, p. 415. 
 
 (p) See 5 Geo. 4, c. 52, (local and personal,) s. 22, as to plate wrought or made within 
 the town of Birmingham, and within thirty miles thereof. 
 
 (pp) Now "the commissioners of stamps and taxes," by the 4 & 5 Wm. 4, c. GO, s. 8. 
 
 Vol. ii.— 29
 
 441 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 false, forged, or counterfeit stamp, mark, or impression thereon, unless 
 the contrary shall be satisfactorily proved ; and such person shall also 
 be deemed and taken to have such vellum, parchment, or paper so in 
 his possession, knowing the stamp, mark, or impression thereon to be 
 false, forged and counterfeit, and such person shall be liable to all penal- 
 ties and punishments by law imposed or inflicted upon persons vending, 
 using, uttering, or having in his possession false, forged, or counterfeit 
 stamps, knowing the same to be false, forged, or counterfeit, unless such 
 person shall in every such case satisfactorily prove that such stamp or 
 stamps was or were procured by or for such person from some distribu- 
 tor of stamps appointed by the said commissioners or from some person 
 licensed to deal in stamps under the authority of this act." 
 Sec. 12. By sec. 12, "If any person shall knowingly and without lawful ex- 
 
 Persons cuse m^Q proof whereof shall lie on the person accused) have in his pos- 
 liaving° session any false, forged, or counterfeit die, plate, or other instrument, 
 forged dies r part of any such die, plate, or instrument resembling, or intended 
 in their PS *° resemble, either wholly or in part, any die, plate, or other instru- 
 possession, ment, which at any time whatever hath been, or shall or may be pro- 
 vided, made, or used, by or under the direction of the commissioners 
 of stamps,(<?) for the purpose of expressing or denoting any stamp duty 
 *442 whatever; or if any person shall, *knowingly, and without lawful 
 excuse (the proof whereof shall lie on the person accused) have in his 
 possession any vellum, parchment, or paper having thereon the impres- 
 sion of any such false, forged, or counterfeit die, plate, or other instru- 
 ment, or part of any such die, plate, or other instrument as aforesaid, 
 or having thereon any false, forged, or counterfeit stamp, mark, or 
 impression resembling or representing, either wholly or in part, or 
 intended or liable to pass, or be mistaken for the stamp, mark, or 
 impression of any such die, plate, or other instrument which hath been, 
 or shall or may be so provided, made, or used as aforesaid, knowing 
 such false, forged, or counterfeit stamp, mark, or impression to be false, 
 - fraudu- forged, or counterfeit ; or if any person shall fraudulently use, join, fix, 
 1,J f J. ltl 7 or place for, with, or upon any vellum, parchment, or paper, any stamp, 
 • tamps,&o. mark, or impression which shall have been cut, torn, or gotten off, or 
 Erasing removed from any other vellum, parchment, or paper; or if any person 
 ' ' shall fraudulently erase, cut, scrape, discharge, or get out of or from any 
 stamped vellum, parchment, or paper, any name, sum, date, or other 
 matter or thing thereon written, printed, or expressed, with intent to use 
 any stamp or mark then impressed or being upon such vellum, parch- 
 ment, or paper, or that the same may be used for any deed, instrument, 
 matter, or thing in respect whereof any stamp duty is, or shall, or may 
 r^ing he, or become payable ; or if any person shall knowingly use, utter, sell, 
 stamped or expose to sale, or shall knowingly and without lawful excuse, (the 
 lYomivhich proof whereof shall lie on the person accused) have in his possession 
 irtmes, Ac. any stamped vellum, parchment, or paper, from or off, or out of which 
 have been an ^ guc j 1 QamQ} sum> ^ate, or ot ] ier ma tter or thing as aforesaid, shall 
 have been fraudulently erased, cut, scraped, discharged, or gotten as 
 aforesaid ; then and in every such case every person so offending, and 
 every person knowingly and wilfully aiding, abetting, or assisting any 
 person in committing any such offence, and being thereof lawfully con- 
 victed, shall be adjudged guilty of felony, and shall be liable, at the 
 discretion of the court, to be transported beyond the seas for life, or for 
 (q) See last note.
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 442 
 
 any term not less than seven years, or to be imprisoned for any term 
 not exceeding four years, nor less than two years." 
 
 The 9 Geo. 4, c. 18, entitled " An act to repeal the stamp duties on 9 Geo. 4, c. 
 cards and dice," &c, enacts, by sec. 35, that " if any person shall forge I 8 ' s - 35 - 
 or counterfeit, or shall cause or procure to be forged or counterfeited any stamps re- 
 type, die, seal, stamp, mark, plate or device, or any part of any type, lating to 
 die, seal, stamp, mark, plate or device, which shall be at any time pro- dice or ut _ 
 vided, made, or used by or under the authority of the commissioners of teringthem 
 stamps in pursuance of this act, or shall counterfeit, or shall cause or ^g^ 00 " 11 " 
 procure to be counterfeited or resembled the impression of any such stamps, 
 type, die, seal, stamp, mark, plate, or device, or any part thereof, upon 
 any playing card or dice, or upon any label, thread, or paper ; or shall 
 forge or counterfeit the name, handwriting, or signature of any sealing 
 officer or other officer of stamps, to or upon any wrapper, paper, or 
 material in which any dice shall be actually enclosed : or shall forge or 
 counterfeit, or shall cause or procure to be forged or counterfeited any 
 mark or name, or any part of any mark or name, directed to be used by 
 the commissioners of stamps(r) in pursuance of this act, in order to *dis- *443 
 tinguish the maker of any such cards or dice respectively, and printed 
 or marked on, or affixed to, or making a part of the wrapper, label, or 
 paper in which any playing cards or dice shall be actually enclosed, with 
 intent to defraud his majesty, his heirs or successors, of any of the duties 
 at any time by law payable upon cards or dice ; or shall utter, sell, or 
 expose to sale, or part with for use in play, any card, dice, ace of spades, 
 label, wrapper, or jew whatsoever, with such counterfeit, seal, stamp, 
 mark, device, impression, name, or signature, knowing the same to be 
 counterfeit, or shall privately, or fraudulently use any seal, stamp, mark, 
 plate, device, or label at any time provided, made or used by or under 
 the authority of the commissioners of stamps in pursuance of this act, 
 with intent to defraud his majesty, his heirs and successors, of any of 
 the duties at any time by law payable upon cards or dice ; every person 
 convicted of any such offence, in due form of law, shall be adjudged a 
 felon, and shall suffer death. "(s) 
 
 The Irish stamp act, 36 Geo. 3, c. 56, s. 37, (t) enacts, " that if any per- 56 Geo. 3, 
 son in any part of the United Kingdom of Great Britain and Ireland, or c - ^ 6 > s - 37 > 
 of any of the dominions thereto belonging, shall counterfeit or forge, or Forging 
 cause or procure to be counterfeited or forged, any type, die, mark, or an y typ e > 
 stamp, to resemble or represent, or be mistaken for any type, die, mark, the stamp 
 or stamp at any time heretofore kept or used, or hereafter to be kept or office in 
 used at the stamp office in Dublin, for denoting the charging or marking bovine' ° r 
 on vellum, parchment or paper, or other matter directed to be stamped, possession 
 any of the stamp duties payable under or by virtue of any act or acts f f -?° t unte g r ~ 
 which has been or shall be any time in force in Ireland, although such dies, <fec., 
 
 act or acts may not be in force, or such type, die, mark or stamp may or marking 
 * ' * jc / 1 l t %/ any paper, 
 
 not be kept or used at the said stamp office at the time of such forging & Cii w ith 
 or counterfeiting ; or if any person or persons (save and except such any coun- 
 
 (r) See note (p), ante, p. 441. 
 
 («) This section being neither expressly repealed by the 1 Win. 4, c. 06, nor the offences 
 contained in it rendered capital by that statute, such offences are now punishable (under 
 the 1 Wm. 4, c. 66, ss. 1 and 20, and the 1 Vict. c. 90, s. 5,) in the manner pointed out in 
 note (h), ante, p. 415. 
 
 (t) Repealed by the & 7 Wm. 4, c. 1G, s. 32, "as relates to newspapers or the duties 
 thereon, or to any discount or allowance in respect of the said duties.''' The 5 & Vict. c. 
 81 and 82, contain new regulatious as to the stamp duties in Ireland.
 
 443 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 terfeitde- person or persons as shall be lawfully entitled and authorized to have 
 AcT'or" ' anc ^ to use tne same f° r the purpose of stamping vellum, parchment, or 
 using, lit- paper, or other matter directed to be stamped by or under the authority 
 tenng or f ^ Q ga ' ( j cornm issioners of stamps for the time beina;,) shall have in his, 
 
 having in . . * e V 
 
 possession her, or their possession, any type, die, or mark or stamp made to resem- 
 with intent ^i e or represent, or be mistaken for any type, die, mark, or stamp, here- 
 paper, &c, tofore kept or used, or hereafter to be kept or used at the said stamp 
 with eoun- office, for denoting the charging or marking on vellum, parchment, or 
 vice mark paper, or other matter directed to be stamped, any of the said stamp 
 Ac, and duties so payable as aforesaid, although such type, die, mark, or stamp 
 
 fraudulent sna ^ not ^ e tnen kept or use< ^ at tn e sa *^ stamp-office, or the duty 
 using of denoted thereby shall not be then payable in Ireland ; or if any person 
 any or persons shall mark or impress, or cause or procure to be marked or 
 
 marks/ Ac impressed on any vellum, parchment, or paper, or other matter which 
 by any of- heretofore was or hereafter shall be directed to be stamped, any ^device, 
 eommis- mark, or impression to resemble or represent, or be mistaken for any 
 sioners of device, mark, or impression which has been or shall be used, kept, or 
 the^baving ma( le, marked or impressed at the stamp-office in Dublin, for denoting 
 possession the charging or marking on vellum, parchment, or paper, or other matter 
 an J pa ~ or thing so directed to be stamped, any of the said stamp duties so pay- 
 fraudulent- able under or by virtue of any act of parliament which shall be or shall 
 ly stamped, have been in force in Ireland at or before the time when such mark, 
 *444. device, or impression shall have been so used, kept or made, marked or 
 impressed, at the said office, although such act or acts may not be in force, 
 or such device, mark, or impression may not be used or kept, marked or 
 impressed at the said office, at the time of such offence committed : or if 
 any person or persons shall use, utter, vend, or sell, or cause to be used, 
 uttered, vended, or sold, or shall have in his or her possession with intent 
 to use, utter, vend or sell the same, any vellum, parchment, or paper, 
 or other matter, with any counterfeit device, mark, or impression thereon, 
 to resemble or represent, or be mistaken for any device, mark, or im- 
 pression which has been or shall be used, kept or made at the stamp- 
 office aforesaid for the purposes aforesaid, or any of them, although not 
 then used or kept for the said purposes, or any of them, or although the 
 duty denoted thereby shall not be then payable in Ireland, knowing such 
 device, mark, or impression, to be counterfeited, or if any officer or offi- 
 cers in the employment of the commissioners of Stamps, or any other 
 person or persons whatever, shall with intent to defraud his majesty, 
 his heirs, &c, mark or impress, or cause or procure to be marked or im- 
 pressed, or be aiding, abetting, or assisting in marking or impressing, or 
 in causing or procuring to be marked or impressed any stamp, mark, or 
 impression, denoting any of the said stamp duties, on any vellum, parch- 
 ment, or paper, or other matter directed to be stamped, not delivered to 
 him or them by or by the authority of the said commissioners of stamps 
 for the purpose of being stamped with any type, die, mark, or stamp, 
 which has been or shall be used, kept or made at the stamp-office afore- 
 said, for denoting the charging or marking on vellum, parchment. 01 
 paper, any of the said stamp duties so payable under or by virtue of any 
 act of parliament, although such type, die, mark, or stamp shall not be 
 then kept at the said stamp-office, or the duty denoted thereby shall not 
 be then payable in Ireland ; or if any person or persons shall, with in- 
 tent to defraud his majesty, his heirs, &.C., knowingly have in his, her, 
 or their possession any vellum, parchment or paper, or other matter
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 444 
 
 required to be stamped, so fraudulently stamped or marked with any 
 mark or stamp to denote any of the aforesaid duties," then and in every 
 of the said cases, every such person so offending shall be adjudged a 
 felon, and shall be transported for life. 
 
 The thirty-eighth section enacts, that whenever any vellum, parch- 56 Geo. 3, 
 ment, or paper shall be found in the possession of any person licensed c ' 66 ' s * 3S " 
 to deal in and retail stamps in Ireland, or who shall have been so possession 
 licensed within six calendar months then next preceding, having ini- b / persons 
 pressed thereon any counterfeit device, mark or impression to resemble deaHiT 
 or liable to be mistaken for any device, &c, used, kept, or made at the stamps in 
 said stamp-office, although such device, &c, shall not then be so used or vellum 1 ' ' 
 kept; or although the duty denoted thereby shall not be then payable paper, &c 
 in Ireland; in every such case the person in whose possession such vel- J vlt f h . coun " 
 lum, &c, shall be *so found, shall be deemed to have had the same in vices, 
 possession with intent to use, utter, or vend the same with such coun- ma rks,&c. 
 terfeit device, &c, thereon, unless the contrary shall be satisfactorily 
 proved ; and shall also be deemed to have had such vellum, &c, in pos- 
 session, knowing the stamps, devices, &c, thereon to be forged and 
 counterfeited, and be liable to all punishments, &c, inflicted upon per- 
 sons using, uttering or vending false, forged or counterfeit stamps, or 
 having such false, forged, or counterfeit stamps in their possession, 
 knowing the same to be forged, unless such person shall in all cases 
 satisfactorily prove that such vellum, &c, and the stamps thereon, were 
 procured at the stamp-office in Dublin, or from some distributor of 
 stamps in Ireland. 
 
 By sec. 52, "if any person not being an officer, workman, servant, 56 Geo. 3. 
 or agent for the time being of the said commissioners of stamps, and c - b . 6 > s - 52 > 
 authorized and appointed by them for that purpose and for their use Making 
 only, shall make or use, or cause or procure to be made or used, or &c ->. or 
 knowingly aid or assist in making or using, or, without being autho- possession 
 rized and appointed as aforesaid, shall knowingly have in his, her, or of without 
 their custody or possession, without lawful excuse, (the proof whereof f r xcuse ? ny 
 shall be on the person accused) any frame, mould, or instrument for the for paper ' 
 making of paper in the substance whereof the words 'stamp-office,' or wlth . the 
 the greater part of such words would be visible, or in the substance "stamp- 
 whereof any device or distinction would be visible, peculiar to and ap- omce >". or 
 pearing in the substance of the paper which shall from time to time be & c or 
 used by the commissioners of stamps as aforesaid; or shall make, or having 
 cause or procure to be made, or knowingly aid or assist in making any ^any p™ 
 paper in the substance whereof there shall be visible the said words per with 
 'stamp-office/ or the greater part of such words, or any of such device s ? 
 or distinction peculiar to and appearing in the substance of the paper with any 
 which shall be so used by the said commissioners of stamps; or if an y devi cf,&c., 
 
 . , . i • t • t o • 1 i i, i l peculiar to 
 
 person, not being authorized or appointed as aforesaid, shall knowingly the paper 
 have in his or her custody or possession, without lawful excuse, (the USC(1 b , v lhv 
 proof whereof shall be on the person accused,) any paper whatsoever, doners of 
 in the substance whereof there shall be visible the words 'stamp-office/ stamps. 
 or the greater part of such words, or any device or distinction peculiar 
 to and appearing in the substance of paper so from time to time used by 
 the said commissioners; or if any person not being authorized or ap- 
 pointed as aforesaid, shall by any art, device, mystery, or contrivance, 
 cause or procure, or knowingly aid or assist in causing or procuring to 
 appear in the substance of any paper whatsoever the words 'stamp-office/
 
 445 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 or the greater part of such words, or any such device or distinction 
 peculiar to and appearing in the substance, of the paper which shall be 
 so used by the said commissioners of stamps;" every person so offend- 
 ing in any of the said cases shall be adjudged a felon, and shall be trans- 
 ported for the term of his or her life. 
 56 Geo. 3, By sec. 58, a pecuniary penalty of forty pounds is imposed upon any 
 c. 56, s. 58, p erson w h 0j f or the purpose of evading any of the stamp duties paya- 
 penalty of ble in Ireland, shall execute any stamped instrument without a date, 
 ■Ml. for or b ear i n g (} a t e prior to the execution, or shall fraudulently erase, &c, 
 frauds in the name of any person or any date, &c, engrossed or written in such 
 evasion of instrument, or shall fraudulently cut, tear, or take off any mark or 
 duties in stamp from any piece of vellum, &c, with intent to *use them for any 
 Ireland. other writing, &c, in respect whereof any stamp duty shall then be 
 
 payable. 
 56 Geo. 3, The 56 Geo. 3, c. 78, entitled "An act for the better regulating and 
 c 78, im- secur i n o- the collection of the duties on paper in Ireland, and to prevent 
 
 poses pe- /,',,.„. .,. f • 
 
 nalties on frauds therein, imposes large pecuniary penalties on persons forging 
 persons stamps, &c, on any pasteboard, paper, &c, or having in possession or 
 stamps, using such forged stamps; and, generally, upon persons counterfeiting 
 Ac, on any stamps, &c, provided in pursuance of that act, having them in pos- 
 boardj pa- sess i° n knowing them to be counterfeited, selling any paper with coun- 
 per, <fcc. terfeited stamps, &c, thereon, or committing other offences of a like 
 
 nature, (w) 
 6 & 7 Wm. The 6 & 7 Win. 4, c. 69, entitled "An act to fix the standard quali- 
 4, c. 69, s. £} eg f g Q j^ auc j g jj ver plate in Scotland, and to provide for the assaying 
 ing or imi- and marking thereof," by sec. 19, enacts, that "if any person shall forge 
 tating dies, or counterfeit, or shall cause or procure to be forged or counterfeited, 
 
 or marks, ,. . ... _ ,. 
 
 stamping an y °-ie, punch, or other marking instrument, or any part of any die, 
 with forged punch, or marking instrument, used or provided, or to be used or pro- 
 fraudulent- v ided for striking or impressing any mark or impression by this act 
 ly using directed to be used, or which in pursuance of this act hath been, or shall 
 aw u ies. or ma y k e use( j^ j^ or un der the direction of the said incorporation or 
 company respectively, or by any maker or worker in gold or silver plate, 
 or by or under the direction of any other person or persons legally 
 authorized in that behalf, for the purpose of stamping or marking gold 
 or silver plate ; or if any person shall forge, counterfeit, or imitate, or 
 shall cause or procure to be forged, counterfeited, or imitated, upon any 
 gold or silver plate, or upon any ware or manufacture of base metal or 
 mixture of metals, the stamp, mark or impression, or any part of the 
 stamp, mark, or impression of any such die, punch, or other marking 
 instrument as aforesaid; or if any person shall stamp or mark, or shall 
 cause or procure to be stamped or marked any gold or silver plate, or 
 any ware or manufacture of base metal, with any such forged or coun- 
 terfeit die, punch, or marking instrument as aforesaid; or if any person 
 shall transpose or remove, or shall cause or procure to be transposed or 
 removed, from any piece of gold or silver plate to any other piece of 
 plate, either of gold or silver, or to any ware or manufacture of base 
 metal, any mark or impression directed to be used, or which hath been, 
 or shall or may be used as aforesaid ; or if any person shall sell, ex- 
 change, or expose for sale, or shall export, or attempt to export, out of 
 any part of Scotland, or shall knowingly and without lawful excuse, 
 (the proof whereof shall lie on the person accused,) have in his posses- 
 
 (it) Sees. 43, 64, Go.
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 440 
 
 sion any gold or silver plate, or any ware or manufacture of base metal, 
 having thereupon the mark or impression of or from any such forged or 
 counterfeit die, punch, or marking instrument as aforesaid, or having 
 thereupon any such forged or counterfeit mark or impression as afore- 
 said, or any mark or impression which shall have been so transposed or 
 removed as aforesaid, knowing the same respectively to be forged, coun- 
 terfeit, transposed, or removed, or if any person shall knowingly and 
 without lawful excuse, (the proof whereof shall lie on the person ac- 
 cused,) have in his possession any such forged or counterfeit die, punch, 
 or marking instrument, or part of a die, punch or marking instrument 
 as aforesaid ; *or if any person shall cut out of or sever from any piece *447 
 of plate of gold or silver any mark or impression, or any part of any 
 mark or impression, made with any such die, punch, or marking instru- 
 ment as aforesaid, with intent that such mark or impression, or part of 
 a mark or impression, shall or may be placed upon or joined or affixed 
 to any other piece of plate, either of gold or silver, or to any ware or 
 manufacture of base metal, or if any person shall place upon or join or 
 affix to any piece of plate either of gold or silver, or any ware or manu- 
 facture of base metal, any such mark or impression, or any part of any 
 such mark or impression which hath been or shall have been cut out of 
 or severed from any piece of plate of gold or silver ; or if any person 
 shall privately or secretly employ or use, or cause or procure to be em- 
 ployed or used, any genuine or lawful die, punch or marking instru- 
 ment so used or provided or to be used or provided as aforesaid ; then, 
 and in every such case, every such offender, and every person counsel- 
 ling, aiding or abetting such offender, shall be guilty of felony, and, 
 being convicted thereof, shall be liable, at the discretion of the court, 
 to be transported beyond the seas for life, or for any term not less than 
 seven years, or to be imprisoned for any term not exceeding four years, 
 nor less than two years, as the court shall award." 
 
 Besides the statutes which relate to the forging, &c, the stamps and Forging 
 marks on plate, by which the duty payable to the crown is denoted, &c -> tne 
 there are others which relate to the offences of forging, &c, the assay m arks or 
 marks, or stamps required to be affixed to gold and silver manufactures stamps on 
 
 in order to denote their standard value. Offences of this kind were first g ., am 
 
 silver man- 
 made punishable by the 12 Geo. 2, c. 26, s. 8, by pecuniary forfeiture, ufactures. 
 
 and imprisonment in default of payment. But that provision was re- 
 pealed by the 31 Geo. 2, c. 32, s. 14, which by sec. 15, made the forging 
 or counterfeiting the stamp, &c, used for marking plate in pursuance of 
 the 12 Geo. 2, c. 26, s. 8, by the Goldsmiths' Company, &c, the mark- 
 ing plate, &c, with a forged or counterfeited stamp, the transposing the 
 stamp, &c, impressed from one vessel to another, the selling or export- 
 ing plate with a forged, counterfeit, or transposed mark, and the having 
 such stamp, &c, in possession, felony without benefit of clergy. This 
 section of the 31 Geo. 2, c. 32, after having been amended by the 32 
 Geo. 2, c. 24, was repealed by 13 Geo. 3, c. 59, s. 1. 
 
 The 13 Geo. 3, c. 59, s. 2, enacts, " That if any person whatsoever 13 Geo. 3, 
 shall cast, forge, or counterfeit, or cause or procure to be cast, forged, p or Jin~ ' 
 or counterfeited, any mark or stamp used, or to be used, for the marking Ac, any 
 or stamping gold or silver plate, in pursuance of any act or acts of par- ^'■'■ rk °* 
 liament now in force by the Company of Goldsmiths in London, or by for gold or 
 the wardens, or assayer or assayers, at York, Exeter, Bristol, Chester, silver plate 
 Norwich, or Newcastle-upon-Tyne, or by any maker or worker of gold Uo ij.
 
 447 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 smiths' or silver plate, or any or either of theni, or shall cast, forge, or counter- 
 orbvthe' ^ e ^» or cause or procure to be cast, forged, or counterfeited, any mark, 
 assayer or stamp, or impression, in imitation of or to resemble any mark, stamp, 
 workers of or i m p re ssion made, or to be made, with any mark or stamp used, or to 
 forging, be used, as aforesaid, by the said Company of Goldsmiths in London, or 
 &c., m inn- D y £j ae gg^ war dens, r assayer or assayers, or by any maker or "workers 
 such mark, of gold or silver plate, or any or either of them; or shall mark or stamp, 
 stamp, &c, or cause or procure to be marked or stamped, any wrought plate of gold 
 ' *448 or * s ^ ver > or an y wares of brass or other base metal silvered or gilt over, 
 j &e. ana - resembling plate of gold or silver, with any mark or stamp which 
 any hath been or shall be forged or counterfeited at any time, in imitation 
 
 W late^>r of, or to resemble any mark or stamp used, or to be used, as aforesaid, 
 base metal by the said Company of Goldsmiths in London, or by the said wardens, 
 withaforg- or assayer or assayers, or by any maker or worker of gold or silver plate, 
 stamp, or or any or either of them j or shall transpose or remove, or cause or pro- 
 nanspos- eure to be transposed or removed, from one piece of wrought plate to 
 marks Ac another, or to any vessel of such base metal as aforesaid, any mark, 
 made pun- stamp, or impression, made or to be made, by or with any mark or 
 transport!- stam P used, or to be used, as aforesaid, by the said Company of Gold- 
 tion for 14 smiths in London, or by the said wardens, or assayer or assayers, or by 
 years. an y ma k er or wor k er of gold or silver plate, or any or either of them ; 
 or shall sell, exchange, or expose to sale, or export out of this kingdom, 
 any wrought plate of gold or silver, or any vessel of such base metal as 
 aforesaid, with any such forged or counterfeit mark, stamp, or impres- 
 sion thereon, or any mark, stamp, or impression which hath been, or 
 shall be transposed or removed from any other piece of plate at any 
 time, knowing such mark, stamp, or impression to be forged or coun- 
 terfeited, or transposed or removed as aforesaid; or shall wilfully or 
 knowingly have or be possessed of any mark or stamp which hath been, 
 or shall be, forged or counterfeited at any time in imitation of, or to 
 resemble any mark or stamp used, or to be used, as aforesaid, by the 
 said Company of Goldsmiths in London, or by the said wardens, or 
 assayer or assayers, or by any maker or worker of gold or silver plate, 
 or any or either of them ; every person offending in any, each, or either 
 of the eases aforesaid, and being thereof lawfully convicted, shall, by 
 order of the court before whom such offender shall be convicted, be trans- 
 ported to some of his majesty's colonies or plantations in America, for 
 the term of fourteen years."(«) 
 24 Geo. 3, The 24 Geo. 3, sess. 2, c. 53, which required the mark of the king's 
 ™ ss * 2 \ « Q bead to be added both to gold and silver manufactures to denote the 
 
 hi, and 08 i> i 7 i » • 
 
 Geo. 3, e. payment ot the duty thereby imposed, contains similar provisions, not 
 69, eon- on \j w it, Q re speet to such duty mark, but with respect to the assay 
 provisions marks, and applies to such marks when used by the Company of Gold- 
 
 (u) This act contains no express provisions for the punishment of principals in the second 
 degree and accessories ; the principals in the second degree, therefore, are punishable in the 
 same manner as the principals in the first degree, and the accessories before and after the 
 fact are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5, 
 ante, p. 135, note (b), as for a felony for which no punishment has been expressly provided,) 
 with transportation beyond the seas for the term of seven years, or imprisonment for any 
 term not exceeding two years, with or without hard labour, in the common gaol or house of 
 correction, and the offender may be kept in solitary confinement for any portion or portions 
 of such imprisonment, or of such imprisonment with hard labour, not exceeding one month 
 .■;t a time, or three months in the space of one year, as to the court in its discretion shall 
 seem meet; and the offender, if a male, may be once, twice, or thrice publicly or privately 
 whipped (if the court shall so think fit), in addition to such imprisonment.
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 448 
 
 smiths in Edingburgh, and by the Birmingham and Sheffield Company, nearly in a 
 as well as by the Company of Goldsmiths in London, and by the war-f^ 8 ^ the 
 dens or assayers at York, Exeter, Bristol, &c. ; and it makes the 13 Geo. 3, 
 offenders guilty of felony without benefit of clergy. (v\ After this came c * 59 ' 
 the 38 Geo. 3, c. 69, (which allowed *gold wares to be manufactured *449 
 at a lower standard than before) and contains provisions nearly in a 
 similar form to those of the 13 Geo. 3, c. 59, s. 2, as to the forging, 
 &c, any mark or stamped used, " in pursuance of this act," for the mak- 
 ing or stamping gold plate by the Company of Goldsmiths in London 
 or Edingburgh, or the Birmingham or Sheffield Company, or by the war- 
 dens or assayers at York, Exeter, Bristol, &c. : but does not extend to 
 marks, &c, used by any maker or worker of gold plate ; and the de- 
 scription of articles, the marking or stamping of which with a forged 
 or counterfeited mark or stamp is made one of the offences therein enu- 
 merated, is, " any wrought plate of gold, or any wares of silver, brass, 
 or other metal gilt over, and resembling plate of gold." And the 
 offences therein enumerated are not made capital, but felonies punishable 
 by transportation for seven years. (w\ It was observed as singular that 
 when the subject was under the review of the legislature, and the pun- 
 ishment for the offences under this act limited to transportation, offend- 
 ers ejusdem generis under a former act (24 Geo. 3, sess. 2, c. 16,) should 
 be left subjected to capital punishment.(cc) 
 
 It has been held that a person may be convicted under the 16 Geo. A fraudu- 
 3, c. 59, s. 14, and the 38 Geo. 3, c. 69, s. 7, if he be proved to have ^Vt^* 
 transposed the mark of the Goldsmiths' Company from one gold ring cessary to 
 to another, although both be genuine rings, and although the jury find brin & * 
 that he did it without any fraudulent intent. The prisoner was indicted the 13 Geo. 
 under the 13 Geo. 3, c. 59, s. 14, and the 38 Geo. 3, c. 69, s. 7, for 3, c. 59, and 
 unlawfully transposing the lion passant from one gold ring to another; c _ 69# ' ' 
 and it was clearly proved that he had transposed the mark, but there 
 was no proof that the ring, to which it was transposed, was not genuine 
 gold; and the jury found the prisoner guilty of transposing the hall 
 mark from one genuine ring to another genuine ring, but without any 
 fraudulent intent; it was held, however, that, as there were no words 
 in the statutes referring to any fraudulent intent, that finding amounted 
 to a verdict of guilty. (y) The prisoner was, however, afterwards par- 
 doned. 
 
 We have seen that the stamp act, 55 Geo. 3, c. 184, s. 7, makes the Cutt . mg ' _. 
 
 „,, . . r ~, n t, ., getting off, 
 
 fraudulent cutting or getting off any stamp from any paper, &c, with & c ., stamps 
 intent to use the same upon any other paper, &c, chargeable with the from P a P er 
 
 with intent 
 
 duties thereby granted, a capital offence. (z) A former statute, 12 Geo. to uso 
 3, c. 48, contains more general provisions ; but makes the offences them. 
 therein mentioned felony, punishable only by transportation. It enacts, 12 ,^ eo * A 3 ' 
 " that if any person or persons shall write or engross, or cause to be person 
 
 (v) Sec. 16. And it refers to the 1st December, 1784, instead of the 5th July, 1758. This 
 section is neither expressly repealed by the 1 Wm. 4, c. 66, nor arc the offences contained 
 in it made capital by that act ; consequently they are punishable in the manner pointed out 
 in note (A), ante, p. 415. 
 
 (w) 38 Geo. 3, 69, s. 7. This statute contains no provisions for the punishment of prin- 
 cipals in the second degree and accessories; they are, therefore, punishable in the manner 
 Stated in note (w), ante, p. 448. 
 
 (x) 2 East, P. C. c. 19, s. 18, p. 892. 
 
 (y) Rex v. Ogden, a 6 C. & P. 621. See Reg. v. Allday, post, p. 451. (?) Ante, p. 440. 
 B Eng. Com. Law Reps. xxv. 570.
 
 449 OF FORGING OR TRANSPOSING STAMPS. [BOOK IV. 
 
 writing written or engrossed, either the whole or any part of any writ, mandate, 
 
 lnsuidate' bond, affidavit, or other writing, matter or thing whatsoever, in respect 
 
 Ac, on pa- whereof any duty is or shall be payable by any act or acts made, or to 
 
 per, Ac., jjg ma( j e [ n i\ ia i behalf, on the whole or anv part of any piece of vellum, 
 
 whereon ' , . 
 
 there shall parchment, or paper, whereon there shall have been before written any 
 
 have been other bond, mandate, affidavit, or other matter or thing, in respect 
 
 ten any whereof any duty was or shall be payable as aforesaid, before such vel- 
 
 other writ, ] um> parchment, or paper, shall have been again marked or stamped 
 
 i'-l^O according to the said acts; or shall fraudulently erase or *scrape out, 
 to duty be- or cause *° be erased or scraped out, the name or names of any person 
 fore such or persons, or any sum, date, or other thing written in such writ, nian- 
 shalThave' date, affidavit, bond, or other writing, matter or thing, as aforesaid, or 
 been again fraudulently cut, tear, or get off any mark or stamp, in respect whereof 
 stamped; or w h e reby any duties are or shall be payable, or denoted to be paid or 
 lently payable as aforesaid, from any piece of vellum, parchment, paper, play- 
 erasing m g cards outside any parcel or pack of playing cards, or any part there- 
 sums Ac. °f> with intent to use such stamp or mark for any other writing, matter 
 or getting or thing in respect whereof any such duty is or shall be payable, or de- 
 stampfrom note( l to be paid or payable as aforesaid j" every person so offending, 
 any paper, and every person aiding, abetting, &c, to commit any such offence, 
 
 to 7*to sua ^ ^ e deemed to be guilty of felony, and be transported to some of 
 use it, is his majesty's plantations beyond the seas for a term not exceeding seven 
 guilty of years. And it further enacts that if any such person so convicted or 
 An ff d transported shall voluntarily escape or break prison, or return from 
 escaping or transportation before the expiration of the time, such person being there- 
 returning f lawfully convicted shall suffer death as a felon without benefit of 
 portation, clergy, and shall be tried for such felony in the county where he shall 
 is to suffer be apprehended. 
 
 , ' It has been held that to constitute a felony within this section by 
 
 Id order to 
 
 bring a writing some matter liable to stamp duty on paper, on which had before 
 ease within been written some other matter liable to stamp duty, before the paper 
 3 c. 48 the had been again stamped, it is essential that the party writing should 
 actmust be do so with some fraudulent intention. An indictment stated that the 
 fraudulent 1 defendant did feloniously write the word "six," being a certain part of a 
 intent. license to let horses on hire, in respect whereof a certain duty was then 
 payable, on a certain piece of paper whereon had been before written 
 a license to let horses for hire, 'which said paper had before been duly 
 stamped, and it appeared that the defendant was the father of the farmer 
 of the post horse duty of the district, and was in the habit of acting for 
 his son in the duties of this situation, and that in 1833 one Hinckley took 
 out a license to let post horses, which was granted by the defendant and 
 bore a 7s. 6d. stamp. This license was renewed in 1834, and in 1835, 
 on an application for a further renewal, the defendant instead of grant- 
 ing a new license, as he ought to have done, altered the date of the old 
 license from 1833 to 1835, and the time of its expiration from 1834 to 
 1836, and received 7s. Qd. from Hinckley. Lord Abinger, C. B. — "I 
 consider that no fraud is proved. To come within the mere words of 
 the act, it is not necessary that it should be done fraudulently ; still I am 
 of opinion that if a person innocently, and without any intent to defraud, 
 wrote any thing on this paper, it would not be an offence. Whether 
 fraud was intended, is a question for the jury." " Suppose a person had 
 made a perfect deed, which was executed, and afterwards it was found 
 necessary to alter the date and some of the terms, and the parties altered
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 450 
 
 the original deed, intending to send it to the stamp Office to have new 
 stamps put upon it, would they be liable to be transported ? The enact- 
 ment on which this case is founded is general, and makes it a felony to 
 write upon any stamped document any thing which makes it liable to a 
 new stamp before such new stamp is put upon it." For the crown it 
 was submitted, that by the terms of the act, any person thus writing 
 upon a stamped document was within its *provisions, even if he had no *451 
 intent to defraud. Lord Abinger, C. B., (in summing up) — "The act of 
 parliament does not say that an intent to deceive or defraud is essential 
 to constitute this offence, but it is a serious question whether a person 
 doing this thing innocently, and intending to pay the stamp duty, is 
 liable to be transported. I am of opinion, and I hope I shall not be 
 wrong, that to constitute this offence there must be a guilty mind. It is 
 a maxim, older than the law of England, that a man is not guilty unless 
 his mind be guilty. If a person through mistake thought he could alter 
 his license, and send the 7s. Qd. to Somerset House, that would be no 
 felony in law, any more than it would be in reason, justice, and common 
 sense. If the defendant mean to defraud the government of 7s. Qd., he 
 is guilty : but as it could not have been easily proved, if the duty had 
 not been paid on Mr. Hinkley's license, and no such evidence has been 
 given, I think you should presume in favour of innocence. You will say 
 whether you think that the defendant intended to commit any fraud.' 
 You may find that he made the alterations in the license, but that he 
 did so without any fraudulent intent, and I can put the matter in a train 
 of investigation; or you may (and you have a right, if you think proper 
 to do so) find a verdict of not guilty. "(a) 
 
 The statutes 47 Geo. 3, sess. 2, c. 80, s. 13, and 49 Geo. 3, c. 81, s. 1, As to 
 by which the counterfeiting stamps, &c, upon paper, &c, upon which stamps ° n 
 any excise duty was imposed, was published, were repealed by the 1 in respect ' 
 Geo. 4, c. 58, which was also repealed by the 2 & 3 Vict. c. 23 : by sec. ^ n her d e u t f 
 42 of which, the counterfeiting such stamps, &c, having counterfeit excise is 
 stamps, or paper with such counterfeit stamps, &c, in possession, know- imposed, 
 ing, &c, with other offences of a similar kind, are subjected to severe 
 pecuniary penalties. 
 
 The 10 Anne, c. 19, s. 97, directs the commissioners of the customs to 10 Ann. c. 
 provide certain seals or stamps for imported linens: and the commis- \ 9, s ^ ^ 
 sioners for managing the duties on silks, calicoes, linens, and stuffs, to forging of 
 provide proper seals or stamps, of another kind for marking such silks, seals or . 
 &c. ; and it enacted, that if any person should counterfeit or forge any linens, 
 stamp or seal provided or made in pursuance of that act, or counterfeit calicoes, 
 the impression of the same upon any of the commodities chargeable 
 upon that act, thereby to defraud the crown of the duties thereby 
 granted, the offender shall be guilty of felony without benefit of clergy; 
 and further, that if any person should during the continuance of the 
 act, sell any printed, painted, stained or dyed silks, calicoes, linens, or 
 
 («) Reg. v. Allday, a 8 C. & P. 136. The jury found a general verdict of " not guilty." It 
 was objected in this case that the indictment was bad ; first, because the writing the word 
 should have been charged to have been fraudulently done; second, that the instrument 
 ought to have been set out; third, that these alterations were not within the meaning of 
 the statute, which referred to some independent writing of some new instrument, and not 
 to the mere altering of a word or figure in an old one ; but no opinion was expressed on 
 any of these objections. Reg. v. Page, b 8 C. & P. 122, ante, vol. 1, p. T:>, was cited for the 
 prisoner. 
 
 a Eng. Com. Law Reps, xxxiv. 327. b lb. xxxiv. 322.
 
 451 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 otter stuffs, with a counterfeit stamp, knowing the same to be counter- 
 feited, with intent to defraud the crown, such offender shall forfeit 1007. 
 and stand in the pillory for two hours. (b) 
 *452 *The 13 Geo. 3, c. 56, s. 5, reciting the 10 Anne, c. 19 ; 12 Anne, stat. 
 13 Geo. 3, 2, c. 9 ; 3 Geo. 1, c. 7. s. 1, and 6 Geo. 1, c. 4, s. 1, and also reciting that 
 ree°ites S eer- doubts had arisen whether persons counterfeiting or forging any stamp 
 tain doubts or seal to resemble any stamp or seal renewed or altered by the com- 
 me^sta,-" m i ss i° ners of excise, in pursuance of the authority of the said act of the 
 tutes. twelfth year of Queen Anne, or counterfeiting or resembling the im- 
 
 pression of such renewed or altered stamp or seal, were subject to the 
 penalties and pain of death in the said acts enacted and declared ; and 
 evil-minded persons had thereby been encouraged to counterfeit such 
 renewed and altered stamps and seals ; for obviating all such doubts, 
 And enacts enacts, "that if any person or persons whatsoever shall, at any time or 
 that any times hereafter, counterfeit or forge any stamp or seal, already provided 
 forgingany by the said commissioners, or which shall hereafter be by them pro 
 stamp, &c, vided, renewed, or altered, or shall counterfeit or resemble the impre: 
 bythecom- s ^ on °f the same, upon any of the said commodities chargeable by tl 
 missioners, said acts, thereby to defraud his majesty, his heirs or successors, of ai 
 euiltvof °f tne sa ^ duties thereby granted;" then every such person so offen 
 felony. ing shall be adjudged a felon, and shall suffer death as in cases of felor 
 
 without benefit of clergy.(c) 
 Construe- Subsequent statutes relating to the duties of the customs and exc 
 turn of the haye contained similar provisions, either by re-enactment, as in 27 G 
 ' 3, c. 31, s. 13, 14, or by express reference, as in 43 Geo. 3, c. 69, s 
 The books afford but few cases on the construction of the sta. 
 acts. 
 Field's A question was made upon that part of the 12th Geo. 3, c. 48, w- 
 
 Que'ti relates to the offence of fraudulently getting off a stamp from parchi 
 upon the or paper, with intent to use the same for any other writing, &c.,((Z) Vi 
 words m- ther a person taking a stamp from a writ, fixing it to another wr 
 
 tent to use, r , . - ,,f . ' .° . 
 
 on the 12 the same kind, and then selling it to a law stationer to be dispose 
 
 (b) The 2 & 3 Vict. c. 23, s. 67, repealed so much of this act "as relates to the c 
 allowances, or drawbacks on paper, buttonboard, millboard, pasteboard, or scaleboa 
 the collecting or securing the same." The 6 & 7 Wm. 4, c. 76, s. 32, repealed so m 
 the 10 Anne, c. 19, "as relates in any manner to the stamp duties on newspapers* 
 duties on advertisements, or as imposes any penalty with relation to the said dp 
 either of them." The 3 & 4 Vict. c. 49, s. 69, also repeals the 10 Anne, c. 19, " so faj 
 same relates to the duties and drawbacks of excise on soap, or contains any regulatL ot 
 collecting, managing, or securing, or paying the duties and drawbacks on soap, ' 
 further." The pillory is abolished by the 1 Vict. c. 23. ,. 
 
 (c) Mr. Lonsdale (St. Cr. L. 189,) observes, that this enactment is incidentally repe 
 the 1 "Wm. 4, c. 17, s. 1, as far as relates to calicoes, linens, and stuffs. With respect 
 stamps or seals on silks, however, the forging thereof having been made felony v 
 benefit of clergy by the 13 Geo. 3, c. 56, s. 5, but not declared to be so by the 52 G' 
 143, persons committing that offence were, until the passing of the 7 & 8 Geo. 4, c. - 
 titled to their clergy, and not having been made punishable with death by anj 
 passed since are now liable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and 1 Vict, c 
 
 5,) to the punishment at the head of this class of offences (*. e. the punishment stated in 
 note (m), ante, p. 448), as being guilty of a felony for which no punishment is otherwise 
 specially provided. Offenders against the above enactment were not within the 1 V" 
 66, s. 1, as they were not liable to suffer death at the time of the passing of that 
 consequently are not now punishable under the 1st and 26th sections thereof, and t 
 c. 90, s. 5. The act contains no express provisions for the punishment of princij 
 second degree and accessories ; they are, however, punishable in the same way as 
 cipals in the first degree in this instance — that is, the principals in the second de< -d 
 
 same way as the principals in the first degree according to the common law nil 
 accessories under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and 1 Vict. c. 90, s. 5, as .tuny 
 
 for which no punishment has been expressly provided. [d) Ante, p. 149.
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 452 
 
 in his business, and used by any person who might purchase it of him, Geo. 3, c. 
 was a sufficient using of it within the words of the statute. It was ' 
 contended on behalf of the prisoner, *that as the statute was silent as *453 
 to uttering, vending, or exposing to sale, it would violate the known 
 rules of construction to say, in so penal a case, that the sale to the law 
 stationer was made with an intent to use the stamp in the manner de- 
 scribed by the act. No opinion of the judges upon this point appears 
 to have been delivered ; but the prisoner, after lying a long time in 
 gaol, was ultimately discharged. (e) 
 
 One who innocently cuts off the stamp and part of the parchment, A party 
 
 &c, from an instrument, is guilty of an offence under the 55 Geo. 3, c. cuttf if 
 
 184, s. 7, if he afterwards gets off such stamp from such part of the a stamp 
 
 parchment with intent to use it again. And it is equally an offence, ancl ?"* of 
 
 whether the impression was made before or after the 55 Geo. 3, c. 184. and after-' 
 
 ^he 5th count of the indictment charged that the prisoner did feloni- wardsfrau - 
 
 ; usly and fraudulently cut, tear, and get off, from a certain piece of getting^off 
 
 'archment, a certain impression of a certain die, which had been there- tne stamp 
 
 fore provided, made, and used, in pursuance of the statute in such bit'of 6 
 
 •se made and provided, for denoting a certain duty, being one of the parchment 
 
 •.ties under the care and management of the commissioners of stamps, 7 lth m . t i ent 
 
 or 7 • to use xt > 1S 
 
 it is to say, a stamp duty of 25?., with an intent to use the same for within the 
 
 1 upon a certain other piece of parchment, against the statute. The 55 1 ^ 0- 3 ' 
 th count was the same as the fifth, with the exception of alleging 
 offence to be that he did cut, tear, and get off the impression from 
 •ertain piece of vellum. The prisoner was a junior clerk in the 
 mp office, and in consequence of the illness of another clerk, attended 
 he 9th of April, 1831, before one of the commissioners in the office 
 making allowances upon spoiled stamps, upon which occasion it was 
 duty to cut off from each of the instruments on which allowances 
 "• to be made, a piece upon which the stamp was impressed, and to 
 -w into the fire the piece so cut off. Upon the 9th of April, two 
 ps only of the amount of 25Z. were brought before the commis- 
 irs for allowance, and it was satisfactorily proved that the prisoner 
 .. t - i that occasion cut off the parts of two instruments upon which those 
 s were impressed, but instead of putting them into the fire, he re- 
 thein, and afterwards contrived to detach the impressions from 
 le paper upon which the stamps were impressed, and affixed them 
 * "> other skins of parchment, which he procured from a law stationer, 
 he words "This Indenture" engrossed thereon, and offered the 
 with the impressions so annexed for sale. It was proved that 
 ,is impressed on blue paper are used for vellum and parchment 
 .hat stamps of this description of the value of 2bl. were in use 
 ;2 the passing of 55 Geo. 3, but the officers of the stamp-office 
 uot undertake to say that the impression in question had not been 
 .. and issued before the passing of that act. It was objected on 
 behalf of the prisoner, first, that the allegations in the indictment which 
 J he impressions to have been made from a die used in pursuance 
 eo. 3, were not sustained; secondly, that the act did not apply 
 ,ase of impressions lawfully cut off, by order of the commis- 
 to from the instruments to which they were affixed, and after- 
 
 air 'tached from the pieces of vellum or parchment which had been 
 
 I-., ; ut off; and, thirdly, that the act was only applicable to cases 
 
 (e) Field's case, 0. B. 1785. 1 Leach, 383.
 
 *454 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 where the impressions were *detached, with intent to use them upon 
 some vellum, parchment, or paper chargeable with a duty; and that the 
 parchment to which the impressions were affixed by the prisoner, were 
 not in a state to be chargeable with a duty. The jury found the pri- 
 soner guilty; and in answer to questions suggested to them by the 
 court, stated, first, that they could not say whether the impression in 
 question were issued before or after the 55 Geo. 3 ; secondly, that they 
 acquitted the prisoner of any fraudulent intent at the time when he cut 
 from the spoiled instruments the pieces to which the impressions were 
 affixed ; thirdly, that when he detached the blue paper bearing the im- 
 pression from the pieces so cut off, he did so with a fraudulent intent 
 to use them upon parchment; fourthly, that he intended to use them 
 upon parchment destined to be employed as an indenture. A verdict 
 of guilty was then entered upon the fifth and sixth counts. And upon 
 a case reserved as to the propriety of the conviction upon the fifth and 
 six counts, the judges were unanimously of opinion that upon this 
 finding the conviction was good.(/) 
 Palmer's The following case arose upon the 23 Geo. 3, c. 49, s. 20, by which 
 case. Con- u was enacted that if any person should forge, &c, any stamp or mark 
 the words directed or allowed to be used by the act for the purpose of denoting 
 " ar >y P a - the duties therein mentioned, or should fraudulently use any of the said 
 to 6 the said stamps or marks, or should "utter, vend, sell, or expose to sale any 
 duties" in paper liable to the said duties, with any counterfeit mark or impression 
 3 c 49 s°* thereon," knowing the same to be counterfeited, such person should be 
 20. guilty of felony. The indictment against the prisoner contained two 
 
 counts. The first, after stating that a certain stamp was provided by 
 the statute for stamping every piece of paper upon which any receipt, 
 &c, upon the payment of money amounting to 21., &c, was written with 
 a stamp duty of 2c?., &c, stated, that the prisoner, intending to defraud 
 the king of the duty on, &c, " unlawfully, fraudulently, and feloniously 
 did utter and expose for sale to one Hannah Gabriel, 1000 pieces of pa- 
 per liable to the said duty oj 'twopence, with a counterfeit impression upon 
 each and every one of the said pieces of paper resembling the impression 
 of the said stamp then and there used, according to the form of the sta- 
 tute, &c, he the defendant at the said time of uttering, &c, well knowing 
 the said impression on the said pieces of paper so by him uttered, &c, to 
 be counterfeited ; against the form of the statute, &c. The second count 
 was the same as the first, except in this respect, that the words " liable 
 of the said duty of twopence" were omitted. An objection was taker 
 on behalf of the prisoner, on the ground that the words "papers liabL 
 to the said duties" were entirely void of the precise sense and definition 
 to which they were applied ; and also that the indictment had not suffi- 
 ciently stated the offence according to the words of the statute. The 
 prisoner having been found guilty, the question was reserved for the 
 consideration of the judges, ten of whom (Lord C. B. Skinner anc 
 Hotham, B., being absent from indisposition) were unanimous that the 
 conviction was right ; and their opinion was afterwards delivered by 
 Gould, J., to the following effect: "The objection arises upon a sup- 
 *455 posed inaccuracy of the words in the ^statute, " paper liable to the said 
 duties," in the plural number ; which words the present indictment has 
 properly pursued and necessarily applied to the particular duty in ques- 
 (/) Rex v. Smith,* R. & M. C. C. R. 314. 5 C. & P. 107. S. C. 
 a Eng. Com. Law Reps. xxiv. 235.
 
 CHAP. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 455 
 
 tion, viz. the duty of twopence on receipts ; and the judges are of opinion 
 that the indictment is properly drawn, although a duty of one descrip- 
 tion only is mentioned. The material question is, what the legislature 
 meant by the words " paper liable to the said duties ?" And it was said 
 that as one particular piece of paper cannot be liable to any of the duties 
 moi'e than another, it would follow that all the writing paper in the 
 world might be considered as "paper liable to duties," and every utterer 
 or seller of paper of any description, might be indicted for a capital 
 offence in having exposed to sale "paper liable to the said duties." 
 But the judges are of opinion that, upon a due attention to the present 
 statute and the subsequent statute, 24 Geo. 3, c. 7, upon the same sub- 
 ject, it will appear that the words " paper liable to the said duties," 
 are capable of a clear and unequivocal meaning. The rules by which 
 the expressions of the legislature are to be interpreted are, first, that if 
 any part of a statute is penned obscurely, and other passages in the 
 same statute will elucidate that obscurity, recourse ought to be had to 
 such context for that purpose ; and secondly, that if there are several 
 statutes upon the same subject, they are to be taken together as form- 
 ing one system, and as interpreting and enforcing each other. By 
 adopting these rules in the present case, it will appear that the words 
 " paper liable to the said duties," are not to be taken in the large and 
 absurd sense which was attempted to be imposed upon them, namely, 
 as applying to every species of paper on which receipts might probably 
 be written, but are to be taken as applying to such pieces of paper only 
 as are destined or prepared for the uses mentioned in the statute. The 
 paper which is destined and prepared for the use of writing receipts 
 thereon is the paper meant by the words " paper liable to the duties ;" 
 and therefore all paper upon the face of which a mark appears resem- 
 bling the mark which the act requires, is evidently " paper liable to 
 the duties," because the preparation of thus marking it discovers the 
 purpose for which it is designed. Upon the papers mentioned in the 
 indictment, there appears a false stamp or impression resembling the 
 true stamp which the law requires for receipts : this discovers the use 
 for which they were destined and prepared, and brings them within the 
 general words of the act, "paper liable to the said duties." The judges 
 are, therefore, unanimously of opinion that the prisoner was properly 
 convicted; and that the words "paper liable to the said duties" are to 
 be applied, according to the subject-matter, to such paper, which, from 
 the counterfeit mark upon it, appears to be prepared to be used, as if 
 the mark was genuine, for a receipt. "(<7) 
 
 It appears also that some of the judges were of opinion, that the 
 second count which omits the words " liable to the said duties," was 
 sufficient; for it was a charge of fraudulently uttering, &c, paper, with 
 a counterfeit impression, resembling the said stamps used in pursuance 
 of the said statute, knowing, &c; and this in substance was a charge of 
 its being paper denoted by the said impression to be destined for writing 
 receipts, and, as such, being paper liable to that duty.(7t) 
 
 *A question was made in the following case, as to a distinction be- *456 
 tween the words " duties of excise," and " duties under the mauace- * Ia11 ! , uul 
 
 Cru ten- 
 
 nient of the commissioners of excise." The prisoners were indicted for f ie ia' s case. 
 
 {g) Halmer's case, 0. B. 1784, Hil. T. 1*785. 1 Leach, 552. 2 East, P. C. c. 19, s. 19, p. 
 893. 
 
 (A) 2 East, P. C. c. 19, s. 19, p. 895.
 
 456 OF FORGING AND TRANSPOSING STAMPS. [BOOK IV. 
 
 Tho words forging a stamp on foreign muslins, printed, &c, here, with intent to 
 
 "duties of (j e f raU (j the ki n o; of the duty : and one of them having been convicted, 
 excise, d J '. i m 
 
 and"du- an objection was taken by his counsel on these grounds. That the 
 ties under ff ence was originally created by the 25 Geo. 3, c. 72, s. 17, by which 
 agemeut of the duties, for securing of which the stamps were provided, were irn- 
 the com- p 0Se( i. That by 27 Geo. 3, c. 13, s. 35, all the former duties are re- 
 f excise," pealed, except duties due, and penalties and forfeitures incurred at the 
 held to be time of passing that act ; and therefore it was argued that all penalties 
 mous! y " were annihilated unless re-enacted. That this, as well as all preceding 
 statutes, took a distinction between duties of excise, and duties under 
 the management of the commissioners of excise; according to what was 
 .observed by Mr. Justice Ashurst, in Hex v. the Justice of Surrey, 2 
 Term Hep. 504. That sec. 38 of the latter statute states that "all 
 pains, penalties, fines and forfeitures of any nature or kind whatsoever, 
 as well pains of death as others, for any offence in force before the tenth 
 of May, 1787, made for securing the revenue of excise, or other duties 
 under the management of the commissioners of excise, &c, shall extend 
 to and be applied for, and in respect of the several duties of excise, and 
 allowances, bounties, and drawbacks of duties of excise thereby charged 
 and allowed," &c. That, therefore, those penalties and pains of death, 
 being re-enacted only so far as they relate to duties of excise, and not 
 to duties or sums under the management of commissioners of excise, 
 (which was the case with respect to the duty in question) they could 
 not be revived by construction ; but being so highly penal, must be 
 specially re-enacted. Another objection was also taken, that the in- 
 dictment did not pursue the words of the statute; inasmuch as it stated 
 the duty to be chargeable for, on, and in respect of foreign muslin, &c, 
 whereas the words of the statutes imposing the duty were " for and 
 upon" in some of the clauses, "on" in others, "upon" in others, and 
 "for" in the schedule; but this objection was afterwards thought not 
 worth urging. Upon the principal objection ten of the judges, (all who 
 were present at the conference) held that the conviction was right. 
 Eyre, C. J., thought that the meaning of duties of excise and duties tin- 
 der the management of the commissioners of excise was tautology. But 
 all held it clear that the expressions were used as synonymous in this 
 act; adverting to schedule F., in which the duties on muslin are de- 
 nominated " duties of excise." (z) 
 Lee's case. On an indictment on the statutes 12 Geo. 3, c. 26, s. 8; 31 Geo. 2, 
 Variance c . 32, s. 14, and 24 Geo. 3, c. 53, s. 16, for removing from one silver 
 Uon'pas- kneebuckle to another silver kneebuckle certain stamps, marks, and 
 sant and a impressions ; to wit, the king's head, and the lion rampant, with 
 honram- j n ^ent to defraud the kino-, against the statute, &c, on producing 
 
 pant. ... i 
 
 the silver kneebuckle in evidence, it appeared that the mark was a 
 
 lion passant, instead of a lion rampant; and the court held the variance 
 
 fatal.(i) 
 
 *457 *In a modern case it was holden, that the engraving a counterfeit 
 
 Collicott's stamp similar in some parts, though dissimilar in others, to the legal 
 
 euOTavin"- stamp, cutting out the dissimilar parts, concealing the space from whence 
 
 a counter- the dissimilar parts were cut out, and then uttering the similar parts as 
 
 simiLar^n' a genuine stamp, amounted to a forgery and guilty uttering. And it was 
 
 (i) Rex v. Hall and Cruchfield, 0. B. 1795. East. T. 1705. 2 East. P. C. c. 19, s. 19, p. 
 895. 
 
 (/) Lee's case, 0. B. 1786. 1 Leach, 416.
 
 CIIAr. XXXVII.] OF FORGING AND TRANSPOSING STAMPS. 457 
 
 also holden in the same case, that it is riot necessary in an indictment some parts 
 for forging a stamp to set out the impression or inscription upon it, or sj 1 ,^"^ i™~ 
 to name the amount of the duty thereby denoted : but that it is sufficient others to 
 to describe it as a stamp provided and used in pursuance of a certain act^ 6 legal 
 of parliament. The indictment was framed on the 44 Geo. 3, c. 98, for ting outtho 
 forging and uttering medicine stamps, and consisted of seven counts. dlssimilar 
 
 Dirts COD- 
 
 The first count charged that the prisoner on the 1st of November, 1811, cealing the 
 feloniously did forge and counterfeit, &c, a certain mark provided and space from 
 used in pursuance of a certain act of Parliament, intitled, &c. The dissimilar 
 second count charged that he did feloniously utter a certain paper with parts were 
 a forced and counterfeit mark, which mark was forged and counter- cut ""^ 
 
 ~ ' < ° and tnen 
 
 feited to resemble a certain mark provided and used in pursuance of the uttering 
 said act, he well knowing the said mark to be forged. The third count the , similar 
 was for knowingly vending and selling a certain paper with a forged genuine 
 mark, &c. The four remaining counts were the same as the former, ® ta . mp ' 
 except that they described it as a stamp instead of mark; and all the aior g er y 
 counts laid the intention to be to defraud his majesty of the duties and guilty 
 charged and imposed by the said act. It appeared upon the evidence, " s sufficient 
 that the prisouer was a vendor of patent medicines, and sold certain in an in- 
 fixes of Dr. Jebb's pills with the counterfeit label on them. Many of Jj^^™^ 
 these counterfeit labels were found in his possession entire. They were a stamp as 
 of an oblong form, coloured with red ink, similarly to the stamps for asta ™P 
 
 t • • 1 i -i t '•• r, provided 
 
 patent medicines issued by government; and having like them, at one and used in 
 end, the word "stamp," and at the other end the word "office," printed pursuance 
 transversely, and on a blank on the first-mentioned end, printed longi- ac t f par- 
 tudinally, the words "value above Is.," and on a blank on the other liament. 
 end, also printed longitudinally, the words "not exceeding 2s. Go 7 .," as 
 the legal stamps also have; and having in the centre a white circle, 
 which, in the counterfeit was all blank, except that it bore the words 
 "Jones, Bristol," printed thereon; whereas in the legal stamp that 
 circular space was circumscribed with a red ring, and inscribed with 
 another smaller red ring, and in the circular space between the two 
 rings were printed the words, "duty three-pence;" and on the space 
 within the inner red ring on the legal stamp was impressed in red ink 
 the figure of a crown. When the prisoner used these stamps, he cut 
 out the circular space bearing the words "Jones, Bristol," and pasted 
 on the packets of medicine the two ends of the label without the middle 
 part, and concealed the deficiency of that part by a waxen seal extend- 
 ing over it. Stamps were uttered in this state by the prisoner affixed 
 to the pills which he sold. Upon these facts the jury found the pri- 
 soner guilty; but two objections were taken in his behalf; first, that 
 the forged stamp was not a sufficiently near resemblance of the genuine 
 stamp to constitute forgery; secondly, that the indictment was deficient 
 for not setting out or describing what the stamp was that was forged. 
 The objections were referred to the consideration of the twelve judges; 
 ten of whom (Lawrence, J., and Bayley, J., being absent) were of 
 opinion *that the objections were unfounded, and the conviction right. *458 
 Grose, J., in delivering their opinion, said: — "As to the first point, it 
 was proved, that this stamp had, in every respect, and in all its parts, 
 a perfect resemblance to a genuine stamp, excepting only that the centre 
 part in a genuine stamp, which specifies and denotes the duty, was in 
 the forged stamp cut out; and a paper with the words, 'Jones, Bristol,' 
 on it, pasted over the vacancy. It was also proved, that those parts 
 Vol. ii.— 30
 
 458 OF THE FORGERY OF OFFICIAL PAPERS, ETC. [BOOK IV. 
 
 which still remained were a perfect resemblance of the same parts on 
 the genuine stamp, and that the whole was a fabrication so artfully 
 contrived as to be likely to deceive the eye of every common observer. 
 An exact resemblance, or fac simile, is not required to constitute the 
 crime of forgery; for if there be a sufficient resemblance to show that 
 a false making was intended, and that the false stamp is so made as to 
 have an aptitude to deceive, that is sufficient. In this case the jury, by 
 their verdict, have found that this stamp had a sufficient likeness to 
 give it an aptitude to deceive, which is all the law requires. As to 
 the second point, the indictment charges the prisoner with having forged 
 a certain mark, and with having uttered a certain paper with a forged 
 and counterfeited mark, resembling a mark provided and used in pur- 
 suance of the act : and the other counts describe it to be a stamp. The 
 statute makes the forging and uttering of such a mark or stamp, as is 
 thereby directed to be affixed to these articles, a capital offence. The 
 indictment contains all the words that the act requires to constitute the 
 offence. "(&) 
 rthe With respect to the trial of offences against the stamp acts, the 53 
 wherFtbe & e0 - 3, c - 103, s. 25, enacted, "that from and after the passing of this 
 offences act, all criminal offences committed against or in breach of any act or 
 mUted°53 acts °^ P ar li ament now i Q force, for granting or securing any of the 
 Geo. 3,' c. duties under the management of the commissioners of stamps, shall and 
 103, s. 25.^ may k e inquired of, tried, and determined, either in the county or city, 
 or town and county where the offence shall be committed, or where the 
 party or parties accused, or any of them, shall be apprehended." 
 
 *459 *CHAPTER THE THIRTY-EIGHTH. 
 
 OF THE FORGERY OF OFFICIAL PAPERS, SECURITIES, AND DOCUMENTS. 
 
 Forgeries of official papers, securities, and documents have been 
 made in many instances the subject of especial legislative enactments. 
 Forging By the 32 Geo. 2, c. 14, the receiver of the prefines at the alienation 
 
 &e 'ofthe omce was directed to receive the post fine at the same time on every 
 receiver of writ of covenant sued out for the passing of fines in the Common Pleas, 
 prefines at an( j ^ i n( j orge tbe receipt of the same thereon, with his name and mark 
 tion office, of office. The ninth section then enacted, that if any person should 
 32 Geo. 2, m ake, forge, or counterfeit, or cause or procure, &c, the mark or hand 
 53 Geo. 3 °f such receiver, whereby such receiver or any other person or persons 
 e. 143, s. 5. should or might be defrauded, or suffer any loss thereby, every person 
 convicted of such offence should be deemed guilty of felony, and suffer 
 death without benefit of clergy.(a) The more recent statute, 53 Geo. 
 3, c. 143, s. 5, enacts, "that if any person shall make, forge, or coun- 
 terfeit, or cause or procure to be made, forged, or counterfeited, the 
 mark or hand of the receiver of the prefines at the alienation office, upon 
 
 (k) Collicott's case, 0. B. 1811, argued before the judges, 25 April, 1812. 2 Leach, 1048. 
 4 Taunt. 300. Russ. & Ry. 212, 229. 
 
 (a) These offences appear to have had the benefit of clergy extended to them by the 52 
 Geo. 3, c. 143, s. 1, see note (b), and not having had any punishment expressly provided for 
 them, and the benefit of clergy being abolished by the 7 & 8 Geo. 4, c. 28, seem now to be 
 punishable in the manner pointed out in note (u), ante,p. 448, under the 7 & 8 Geo. 4. c. 28, 
 ss. 8 and 9, and the 1 Vict. c. 90, s. 5.
 
 CHAP. XXXVIII.] OF THE FORGERY OF OFFICIAL PAPERS, ETC. 459 
 
 any writ of covenant, whereby such receiver or other person shall or 
 
 may be defrauded, or suffer any loss thereby; every person so offending 
 
 shall be adjudged guilty of felony, and suffer death as a felon without 
 
 benefit of clergy. "(6) 
 
 The 7 & 8 Geo. 4, c. 28, s. 11, after reciting the expediency of pro- Uttering a 
 
 viding for the more exemplary punishment of offenders who commit l als f ce J tl_ 
 
 , « • • • n ni t • ficateofa 
 
 felony after a previous conviction tor felony, and enacting such punish- conviction 
 
 ment, regulates the form of indictment for the subsequent felony, and f ° r a P re_ 
 then enacts, that « a certificate containing the substance *and effect ny . 
 only, (omitting the formal part) of the indictment and conviction for the *460 
 previous felony, purporting to be signed by the clerk of the court, or 
 other officer having the custody of the records where the offender was 
 first convicted, or by the deputy of such clerk or officer, (for which cer- 
 tificate a fee of six shillings and eight-pence, and no more shall be de- 
 manded or taken,) shall, upon proof of the identity of the person of the 
 offender, be sufficient evidence of the first conviction without proof of 
 the signature or official character of the person appearing to have signed 
 the same ; and if any such clerk, officer, or deputy, shall utter a false 
 certificate of any indictment and conviction for a previous felony, or if 
 any person, other than such clerk, officer, or deputy, shall sign any such 
 certificate as such clerk, officer, or deputy, or shall utter any such certi- 
 ficate with a false or counterfeit signature thereto, every such offender 
 shall be guilty of felony, and, being lawfully convicted thereof, shall 
 be liable, at the discretion of the court, to be transported beyond the 
 seas for the term of seven years, or to be imprisoned for any term not 
 exceeding two years ; and if a male, to be once, twice, or thrice publicly 
 or privately whipped, (if the court shall so think fit,) in addition to such 
 iniprisonment."(c) 
 
 The 42 Geo. 3, c. 116, consolidated the former acts for the redemp- Forgery of 
 tion and sale of the land tax; and it enacted (by sec. 194,) "that if certificates 
 any person shall forge, counterfeit, or alter, or cause or procure to be &c, for the 
 
 forged, counterfeited, or altered, or knowingly or wilfully act or assist rede ™P tl0D 
 . , \> . n . . , . n or sale of 
 
 in the forging, counterfeiting, or altering any contract or contracts for the hunt 
 
 the redemption or sale of any land tax, or any assignment or assign- '" x > 42 
 rnents of any such land tax, or of any such contract or contracts, or of c- hVs, 
 any portion of land tax therein comprised, or any certificate or certifi- lo- 
 cates of the commissioners of land tax or of supply, or of any chief 
 magistrate authorized by this act to make out such certificate or certifi- 
 cates, or of the surveyor-general of the land revenue of the crown, or 
 of the deputy of Cornwall, or any certificate or certificates, receipt or 
 
 (b) The first section of this statute enacts " that in all cases where any act to be done or 
 committed after the passing of this act, in breach of, or resistance to, any part of the laws for 
 collecting his majesty's revenue in Great Britain, would by the laws now in force subject 
 the offender to suffer death, as guilty of felony, without benefit of clergy, by virtue of the 
 said laws, or any of them, such act, so to be done or committed, shall be deemed and taken 
 to be felony with benefit of clergy, and punishable only as such, unless the same shall also 
 be declared to be felony without benefit of clergy by this act." The 1 Win. 4, c. 66, having 
 neither expressly repealed the 52 Geo. 3, c. 143, s. 5, nor made the offences contained in 
 that section capital, they are now punishable in the manner pointed out in note (h) t ante, p. 
 415, under the 1 Win. 4, c. 66, ss. 1 and 26, and 1 Vict. c. 90, s. 5. As to principals in the 
 second degree and accessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410. 
 
 (c) As to hard labour and solitary confinement see the 7 & 8 Geo. 4, c. 28, s. 8, and the 
 1 Vict. c. 90, s. 5, ante, p. 135, note (b). The 7 & 8 Geo. 4, c. 28, contains no provisions 
 for the punishment of principals in the second degree and accessories ; the principals in the 
 second degree are therefore punishable in the same way as the principals in the first degree, 
 and the accessories in the manner pointed out in note (m), ante, p. 448.
 
 460 OF THE FORGERY OF OFFICIAL PAPERS, ETC. [BOOK IV. 
 
 receipts, of the cashier or cashiers of the governor and company of the 
 Bank of England, or of any certificate or certificates, or attested copy of 
 any certificate or certificates, directed by this act to be made out by 
 the proper officer, or shall wilfully deliver or produce to any person or 
 persons acting under the authority of this act, or shall utter any such 
 forged, counterfeited, or altered contract or contracts, assignment or 
 assignments, certificate or certificates, receipt or receipts, knowing the 
 same to be forged, counterfeited, or altered, with intent to defraud his 
 majesty, his heirs, &c, or any body or bodies politic or corporate, or 
 company or other person or persons whomsoever," then and in every 
 such case, all and every person or persons so offending shall be adjudged 
 *461 guilty of felony, without benefit of clergy.(tf) The 52 *Geo. 3, c. 
 143, s. 6, enacts, " that if any person shall forge, counterfeit, or alter, 
 or cause or procure to be forged, counterfeited, or altered, or knowingly 
 or wilfully act or assist in the forging, counterfeiting, or altering any 
 contract, assignment, certificate, receipt, or attested copy of any certi- 
 ficate made out or purporting to be made out by any person or persons 
 authorized to make out the same by any act of parliament touching the 
 redemption or sale of the land tax, or of any part thereof; or if any 
 person shall wilfully utter any such forged, counterfeited, or altered 
 contract, assignment, certificate, receipt, or attested copy of certificate, 
 knowing the same to be forged, counterfeited, or altered, with intent to 
 defraud his majesty, his heirs or successors, or any body or bodies 
 politic or corporate, or other person or persons;" every person so offend- 
 ing shall be adjudged guilty of felony without benefit of clergy.((W) 
 Fongery of The 23 Geo. 3, c. 70, s. 9, made the forgery of excise permits, &c, a 
 ■ ex .ciseper- ca pJtal felony :(e) and a clause nearly similar was contained in the 52 
 2 Wm. 4,'c. Geo. 3, c. 143, s. 9 ; and the 2 Wm. 4, c. 16, which was passed to con- 
 16, s. 3. solidate the laws regulating the granting of permits under the excise laws, 
 
 Unauthor- , _ f ° ° b , r , „ , 
 
 ized per- by sec. 3, enacts, that "every person who shall make, or cause or pro- 
 sons ruak- cure t k e m ade, or shall aid or assist in the making, or shall knowingly 
 in imita- have in his, her, or their custody or possession, not being authorized by 
 tionofex- the said commissioners, and without lawful excuse, the proof whereof 
 or S forgfng sua ^ ^ e on ^ ie P erson accused, any mould or frame, or other instrument 
 plates or having therein the words ' excise office/ or any other words, figures, 
 types, &c. jnajjjg or devices peculiar to and appearing in the substance of the paper 
 used by the said commissioners for permits, or with any or part of such 
 words, figures, marks, or devices, or any of them intended to imitate or 
 pass for the same ; and every person, except as before excepted, who 
 shall make, or cause or procure to be made, or aid or assist in the mak- 
 ing, any paper in the substance of which the words l excise office,' or 
 any other words, figures, marks, or devices peculiar to or appearing in 
 
 {<£) These offences appear to have had the benefit of clergy extended to them by the 52 
 'Geo. 3, c. 143, s. 1, ante, note (b), and not having had any punishment expressly provided 
 for them, and the benefit of clergy being abolished by the 7 & 8 Geo. 4, c. 28, seem now to 
 be punishable in the manner pointed out in note (u) ante, p. 448. 
 
 (dd) Mr. Lonsdale observes (St. Cr. L. 76,) that the 52 Geo. 3, c. 143, s. 6, appears to be 
 superseded by the 1 Wm. 4, c. 66, s. 10, (post, next chapter), as far as relates to the forging 
 of any receipt. With respect to other instruments above mentioned, the forgerj r of them 
 not having been made punishable with death by the 1 Wm. 4, c. 66, although previously a 
 capital crime, and that act not having repealed the 52 Geo. 3, c. 143, s. 6, persons convicted 
 of such offences are liable [under the 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 Vict. c. 90, s. 
 5,] to the punishment pointed out in note (A), ante, p. 415. As to the punishment of prin- 
 cipals in the second degree and accessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410. 
 
 (e) See ante, p. 459, note (b).
 
 CHAP. XXXVIII.] OF THE FORGERY OF OFFICIAL PAPERS, ETC. 461 
 
 the substance of the paper used by the commissioners of excise for per- 
 mits, or any part of such words, figures, marks, or devices, or any of 
 them, intended to imitate and pass for the same, shall be visible ; and 
 every person, except as before excepted, who shall knowingly have in his, 
 her, or their custody or possession, without lawful excuse (the proof 
 whereof shall lie on the person accused,) any paper whatever in the sub- 
 stance of which the words < excise office,' or any other words, figures, 
 marks, or devices peculiar to and appearing in the substance of paper used 
 by the commissioners of excise for permits, or any part of such words, 
 figures, marks, or devices, or of any of them intended to imitate and pass 
 for the same shall be visible; and every person except as before excepted, 
 who shall by any art, mystery, or ^contrivance, cause or procure, or aid *462 
 or assist in causing or procuring the words ' excise office,' or any other 
 words, figures, marks, or devices peculiar to and appearing in the sub- 
 stance of the paper used by the commissioners of excise for permits, or 
 any or part of such words, figures, marks, or devices, or any of them in- 
 tended to imitate and pass for the same, to appear visible in the substance 
 of any paper whatever ; and every person not authorized or appointed as 
 aforesaid, who shall engrave, cast, cut or make, or cause or procure to 
 be engraved, cast, cut, or made, or aid or assist in engraving, casting, 
 cutting, or making any plate, type, or other thing in imitation of or to 
 resemble any plate or type, made or used by the direction of the com- 
 missioners of excise, for the purpose of marking or printing the paper to 
 be used for permits ; and every person, except as before excepted who 
 shall knowingly have in his or her custody or possession, without law- 
 ful excuse, proof whereof, shall lie on the person accused, any such plate 
 or type ; shall for every such offence be adjudged a felon, and shall be 
 transported for the term of seven years, or shall be imprisoned, at the 
 discretion of the court before whom such person shall be tried, for any 
 period not less than two years. "(e) 
 
 By sec. 4, » every person who shall counterfeit or forge, or cause or 2 Wm. 4, e. 
 procure to be counterfeited or forged, or assist in counterfeiting or 16 ' 8 - 4 - 
 
 i -i , c .. 1 11 /. • Forging or 
 
 forging any permit, or any part of any permit, or shall counterfeit any counter- 
 impression, stamp, or mark, figure or device provided or appointed, or feiting ex- 
 to be provided or appointed by the commissioners of excise to be put on mits^&c. 
 such permit, or shall utter, give, or make use of any counterfeited or 
 forged permit, knowing the same or any part thereof to be counterfeited 
 or forged, or shall utter, give, or make use of any permit with any such 
 counterfeited impression, stamp or mark, figure or device, knowing the 
 same to be counterfeited ; or if any person or persons shall knowingly 
 or wilfully accept or receive any counterfeited or forged permit, or any 
 permit with any such counterfeited impression, stamp, or mark, figure, 
 or device thereon, knowing the same to be counterfeited, shall for every 
 such offence be adjudged guilty of a misdemeanor, and shall be trans- 
 ported for the term of seven years, or fined and imprisoned at the dis- 
 cretion of the court." 
 
 By sec. 15, "every officer of excise who shall deliver out, or suffer ficersdeliv- 
 to be be delivered out, any paper prepared or provided, or appointed by ° rin S out 
 the commissioners of excise to be used for permits in blank, or before m i tSi 
 
 («) This statute contains no provisions as to principals in the second degree, or acces- 
 sories ; the principals in the second degree, therefore, are punishable according to the 1 om- 
 mon law rule, in the same manner as principals in the first degree, and the accessories are 
 punishable in the manner stated in note (?<), ante, p. 448, as for a felony for which no pun- 
 ishment has been expressly provided.
 
 462 OF THE FORGERY OF OFFICIAL PAPERS, ETC. [BOOK IV. 
 
 such permit shall he filled up and issued agreeahle to and in conformity 
 with a request note ; and every officer who shall knowingly give or 
 grant any permit to any person not entitled to receive the same, or shall 
 knowingly give or grant any false or untrue permit, or shall make any 
 false or untrue entry in the counterpart of any permit given or granted 
 by him, or shall knowingly or willingly receive or take any goods or 
 commodities into the stock of any person or persons brought in with 
 any false or untrue or fraudulent permit, or shall knowingly or willingly 
 *463 grant *any permit for the removal of any goods or commodities out of 
 or from the stock of any person or persons who shall have received or 
 retained such goods or commodities, or any of them, under or by virtue 
 or pretext of any false, untrue, forged or fraudulent permit, or shall 
 knowingly or willingly give any false credit in the stock of any person 
 or persons beyond the credit to which such stock is justly and truly 
 entitled, so as to enable such person or persons falsely and fraudulently 
 to obtain a permit or permits : or if any such officer shall knowingly or 
 willingly suffer the same to be done directly or indirectly ; every officer 
 so offending in any of the cases aforesaid, shall be guilty of a mis- 
 demeanor, and on conviction shall suffer such punishment by fine and 
 imprisonment, or fine or imprisonment as the court shall award ; and 
 every officer so convicted shall from thenceforth be incapable of holding 
 any office or place in or relating to any of the revenues of the United 
 Kingdom." 
 Forging The 52 Geo. 3, c. 143, s. 10, enacts, " that if any person shall, with 
 
 bentures or i Q tent to defraud his majesty, falsely make, forge, counterfeit, or alter, or 
 certificates cause or procure to be falsely made, forged, counterfeited, or altered, or 
 tor the re- vyillingly assist in falsely making, forging, counterfeiting or altering any 
 ney from debenture, or any certificate for the payment or return of any money, 
 duties of or an y p ar fc f arj y such debenture or certificate, or any signature thereon, 
 excise, 52 1Q an y case in which such debenture or certificate is by any act or acts 
 Geo. 3, c. f parliament relating to the duties of custorns(e) or excise required or 
 directed to be given or granted ; or shall wilfully, with such intent as 
 aforesaid, utter, publish, or make use of any such debenture or certi- 
 ficate, or part thereof, so being wholly or in part falsely made, forged, 
 counterfeited or altered ;" every person so offending shall be adjudged 
 guilty of felony, without benefit of clergy.^) 
 Forging The 46 Geo. 3, c. 75, s. 8, enacts, " that if any person or persons shall 
 
 knowingly and wilfully forge or counterfeit, or cause or procure to be 
 
 name or 
 
 (e) Repealed as to the customs by the 3 & 4 Wm. 4, c. 50, s. 3. 
 
 (/) Mr. Lonsdale (St. Cr. L. T9,) observes that the certificates mentioned in the above 
 enactment so far as relates to the payment of money, appear to be warrants or orders for 
 the payment of money within the meaning of the 4th sec. of 1 Wm, 4, c. 66, and as such, 
 the forgery thereof (the same having been a capital offence at the time of the passing of the 
 last mentioned act) is now punishable under the 1 Vict. c. 84, ss. 2, 3, (ante, p. 413). Would 
 not the certificates for the return of money intended by the same enactment be also con- 
 strued to be warrants or orders for the payment of money? In which case the forgery there- 
 of is punishable under the 1 Vict. c. 84, ss. 2, 3. As regards the party beneficially interested 
 under such a certificate, it would be a warrant for the return of money; but as regards 
 the person to whom it was directed, and who had to make the return, it would be an order 
 for the payment of the money. At all events the forgery of such certificates, as well as the 
 debenture mentioned above, is punishable under the 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 
 Vict. c. 90, s. 5, as having been an offence punishable with death at the time of the passing 
 of the 1 Wm. 4, c. 66, and not made so punishable by that act. It is nowise material, how- 
 ever, as regards the punishment of forging such last mentioned certificate, whether that of- 
 fence be punishable under the former or the latter- of the above statutes, the penalty being 
 the same in both cases. As to the punishment of principals in the second degree and ac- 
 cessories, see the 1 Wm. 4, c. 66, s. 25, ante, p. 410.
 
 CHAP. XXXVIII.] OF TIIE FORGERY OF OFFICIAL PAPERS. 463 
 
 forged or counterfeited, or knowingly and wilfully act or assist in forg- handwrit- 
 ing or counterfeiting the narne or handwriting of the receiver-qeneral of] n ° ■' ' e 
 the excise for the time being, or of the comptroller of the cash of the ex- general, 
 cise, or the person or persons duly authorized as aforesaid, to any draft, < j 0> " p l! ol ' ri • 
 instrument, or writing whatsoever, for or in order to the receiving ox the excise, 
 obtaining any of the money in the hands *or custody of the governor 46 Oeo. 3. 
 and company of the Bank of England, on account of the receiver-gene- ' *ara' 
 ral of the excise, or shall forge or counterfeit, or cause or procure to be 
 forged or counterfeited, or knowingly and wilfully act or assist in the 
 forging or counterfeiting any draft, instrument, or writing in form of a 
 draft, made by such receiver-general, or the person or persons authorized 
 as aforesaid, or shall utter or publish any such, knowing the same to be 
 forged or counterfeited, with an intention to defraud any person whom- 
 soever;" every person so offending, shall be guilty of felony, without 
 benefit of clergy. (#) 
 
 By the 48 Geo. 3, c. 82, which relates to Ireland only, it was enacted, Granting,; 
 "that if any person whatever shall fraudulently, or without being duly" J^j^° g ' 
 authorized thereto, issue or give out, or cause to be issued or given out, false per- 
 or be aiding or assisting in issuing or giving out any blank permit, or ffl,f,I ° Ire " 
 any permit not duly authorized by a preceding request-note; or shall Geo.' 3, c 
 fill up any blank permit, not duly authorized by a preceding request- 82 > s - 4 - 
 note; or if any person shall fill up or issue any permit not corresponding 
 to or answering with the duplicate thereof in the possession of the 
 officer; or if any person shall obtain or make use of any permit so un- 
 duly or fraudulently issued;" such person so offending in any of the 
 cases aforesaid, shall be adjudged a felon, and be transported for the 
 term of his life, or for seven years, or be sentenced to such other less 
 punishment as the court who shall try such person shall direct. 
 
 The 46 Geo. 3, c. 76, s. 9, enacts, "that if any person or persons Forging 
 shall knowingly and wilfully forge or counterfeit, or cause or procure insh , u ~. 
 to be forged or counterfeited, or knowingly and wilfully act or assist in the name 
 forging or counterfeiting the name or handwriting of the receiver-gene* of . the re ' 
 ral{h} of the stamp duties for the time being, or of his clerk, or of either era l of the 
 of the commissioners of stamps,(A to any draft, instrument, or writing "tamp du- 
 whatsoever, for or in order to the receiving or obtaining any of the 46 4eo.°3 
 money in the hands or custody of the governor and company of the c. 76, s. 9. 
 Bank of England, on account of the receiver-general of the stamp 
 duties; or shall forge or counterfeit, or cause or procure to be forged or 
 counterfeited, or knowingly and wilfully act or assist in the forging or 
 counterfeiting any draft, instrument, or writing in form of a draft, made 
 by such receiver-general or his clerk ; or shall utter or publish any such, 
 knowing the same to be forged or counterfeited, with an intention to 
 defraud any person whomsoever;" every person so offending shall be 
 guilty of felony, without benefit of clergy.^') 
 
 The 3 & 4 Wm. 4, c. 51, entitled "An act for the management of Forgery on 
 
 (g) The instruments mentioned in this section seem to be warrants for the payment of 
 money within the meaning of the 1 Wm. 4, c. 66, s. 4, and the forgery of them having been 
 made capital by that section, is now punishable under the 1 Vict. c. 84, ss. 2 and 3, ante, p. 
 413. As to principals in the second degree and accessories, see the 1 Wm. 4, c. 66, s. 25, 
 inti\ p. 410. 
 
 Now by 5 & 6 Wm. 4, c. 20, "the receiver-general of stamps and taxei 
 
 (i) Now by 4 & 5 Wm. 4, c. 60, s. 8, which consolidates the boards of stamps and taxes, 
 : ' the commissioners of stamps and taxes." 
 
 (J) The observations in note (ff), apply to this section also.
 
 464 OP THE FORGERY OF OFFICIAL PAPERS, [BOOK IT. 
 
 the receiv- the customs/' by sec. 27 enacts, "that if any person or persons shall 
 of Thee™- knowingly and wilfully forge or counterfeit, or cause or procure to be 
 toms. forged or counterfeited, or knowingly and wilfully act or assist in forg- 
 
 *465 ing or counterfeiting the name or handwriting of any *receiver-general 
 of the customs, or of any comptroller-general of the customs, or of any 
 person acting for them respectively as aforesaid, to any draft, instru- 
 ment, or writing whatsoever, for or in order to the receiving or obtain- 
 ing any of the money in the hands or custody of the governor and com- 
 pany of the Bank of England, on account of the receiver-general of the 
 customs; or shall forge or counterfeit, or cause or procure to be forged 
 or counterfeited, or knowingly or wilfully act or assist in the forging 
 or counterfeiting, any draft, instrument, or writing in form of a draft, 
 made by such receiver-general or person aforesaid; or shall utter or 
 publish any such, knowing the same to be forged or counterfeited, with 
 an intention to defraud any person whomsoever, every such person or 
 persons so offending, being thereof lawfully convicted, shall be and is 
 and are hereby declared and adjudged to be guilty of felony, and shall 
 be transported beyond the seas for life."(Z;) 
 US Oeo. The 7 & 8 Geo. 3, c. 53, s. 56, enacts, "that if any person shall 
 4, c. 53, s. f or g e or counterfeit, or shall cause or procure to be forged or counter- 
 Forging feited, or shall knowingly and wilfully aid or assist in forging or coun- 
 any mstru- terfeiting, the name or handwriting of any receiver-general of excise, or 
 tain money °f an y excise comptroller of the cash as aforesaid, or of any of the per- 
 f:-om the sons d u ]y authorized as aforesaid to any draft, instrument, or writing 
 count of the whatsoever, ^ or or m order to the receiving or obtaining any of the 
 receiver- money, bills, notes, drafts, checks, or orders, for the payment of money, 
 general. j Q ^ j ian( j s or cus tody of the governor and company of the Bank of 
 England, on account of such receiver-general as aforesaid; or if any 
 person shall forge or counterfeit, or shall cause or procure to be forged 
 or counterfeited, or shall knowingly and wilfully aid or assist in the 
 forging or counterfeiting, of any draft, instrument, or writing in the 
 form of a draft, instrument, or writing made by any receiver-general of 
 excise, or by any excise comptroller of the cash as aforesaid, or by any 
 person or persons authorized as aforesaid, or shall utter or publish any 
 draft, instrument, or writing so forged or counterfeited, knowing the 
 same to be forged or counterfeited, with an intention to defraud his ma- 
 jesty or any person whomsoever; every person so offending, and being 
 thereof lawfully convicted, shall be and is hereby declared and adjudged 
 to be guilty of felony, and shall suffer death as in cases of felony, with- 
 out benefit of clergy."(m) 
 l Wm. 4, e. The 1 Wm. 4, c. 66, s. 31, repealed the 48 Geo. 3, c. 1, s. 9, and 
 
 (k) The 1 Vict. c. 84, s. 2, recites this section, and the present punishment is regulated 
 by ss. 2 & 3 ante, p. 413 ; neither the 3 & 4 Wm. 4, c. 51, nor the 1 Vict. c. 84, contain any 
 provisions as to principals in the second degree or accessories. See therefor, note (u).an(e, 
 p. 448. 
 
 (m) Mr. Lonsdale (St. Cr. L. 90,) observes that this action appears to be superseded by 
 the 1 TYm. 4, c. 66, s. 10, so far as relates to the forging of any draft, instrument, or writ- 
 ing, for or in order to the receiving or obtaining any of the bills, notes, drafts, checks, or 
 orders for the payment of money in the hands or custody of the governor and company of 
 the Bank of England, on account of the receiver-general of excise. With respect to the 
 other instruments above mentioned, viz., those for or in order to the reeeiving or obtaining 
 any of the money in the Bank of England on account of such receiver-general, they appear 
 to be warrants for the payment of money within the 1 Wm. 4, c. 66, s. 4, and as such, tht 
 forgery thereof having been a capital offence at the time of the passing of that act. is now 
 punishable under the 1 Vict. c. 84, ss. 2 and 3, ante, p. 413. As to principals and aa - 
 sorics. see ante, p. 410.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 465 
 
 by sec. 3, enacts, "that if any person shall forge or alter, or shall offer, 66 > s -. 3. 
 utter, dispose of, or put off, knowing the same to be forged or altered, Exchequer 
 any Exchequer bill, or Exchequer debenture, or any indorsement *on bills, de- 
 or assignment of any Exchequer bill or Exchequer debenture, with in- ^ ntures > 
 tent, in any of the cases aforesaid, to defraud any person whatsoever, *4(Jg 
 every such offender shall be guilty of felony, and being convicted 
 thereof, shall suffer death as a felon. "(?i) 
 
 The 5 & 6 Vict. c. 66, entitled, "An act for the further regulatings & 6 Vict. 
 the preparation and issue of Exchequer bills," by sec. 9 enacts, " that "v 66, f ' 9 ' 
 
 ii i i Manufac- 
 
 every person who shall make, or cause or procure to be made, or shall turing or 
 aid or assist in making, or shall knowingly have in his possession, not u - sin SP a P er 
 being legally authorized by the commissioners of excise or commission- di es ; n _ 
 ers of her majesty's treasury, and without lawful excuse, (the proof tended to 
 whereof shall lie on the person accused,) any instrument having therein J.™^ ° sed 
 any words, letters, figures, marks, lines, or devices, peculiar to and for Exche- 
 appearing in the substance of any paper provided, or to be provided or quer s " 
 used for Exchequer bills, or any machinery for working any threads 
 into the substance of any paper, or any such thread, and intended to 
 imitate such words, letters, figures, marks, lines, threads, or devices, or 
 any plate peculiarly employed for printing Exchequer bills, or any die 
 peculiarly used for preparing any such plate, or for sealing such Exche- 
 quer bills, or any plate or die intended to imitate such plates or dies 
 respectively ; and also every person, except as before excepted, who 
 shall make, or cause or procure to be made, or aid or assist in making 
 any paper, in the substance of which shall appear any words, letters, 
 figures, marks, lines, threads or other devices peculiar to and appearing 
 in the substance of any paper provided, or to be provided, or used for 
 Exchequer bills, or any part of such words, letters, figures, marks, lines, 
 threads, or other devices, and intended to imitate the same; and also 
 every person, except as before excepted, who shall knowingly have in 
 his possession without lawful excuse (the proof whereof shall lie on the 
 person accused) any paper whatever, in the substance whereof shall ap- 
 pear any such words, letters, figures, marks, lines, threads, or devices 
 as aforesaid, or any part of such words, letters, figures, marks, lines, 
 threads, or devices, and intended to imitate the same ; and also every 
 person, except as before excepted, who shall cause, or assist in causing, 
 any such words, letters, figures, marks, lines, threads, or devices as 
 aforesaid, or any part of such words, letters, figures, marks, lines, threads, 
 or other devices, and intended to imitate the same, to appear in the 
 substance of any paper whatever, or who shall take or assist in taking 
 any impression of any such plate or die as aforesaid, shall be guilty of 
 felony."(o) 
 
 By sec. 10, "every person not lawfully authorized, and without law- Sec 10. 
 ful excuse, (the proof whereof shall lie on the person accused,) who Pe [ so "y 1 i v 
 shall purchase, or receive, or take, and have in his custody, any paper having in 
 
 manufactured and provided bv or under the directions of the commis- P ossossion 
 n- •• c i . . , i-xi P a P er t0 be 
 
 sioners of excise, or commissioners of her majesty s treasury, for the uset i as 
 
 (n) See the whole section, supra, p. 424. The present punishment is regulated by the 1 
 Vict. c. 84, ss. 2 and 3, ante, p. 413. As to principals in the second degree and accessories, 
 see sec. 25 of 1 Wm. 4, c. G6, ante, p. 410. 
 
 (o) As this is a felony for which no punishment is expressly provided, it is punishable 
 (under the 1 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) in the manner pointed 
 out in note (w), ante, p. 448. The principals in the second degree and accessories, are in 
 this instance punishable in the same manner as the principals in the first degree.
 
 466 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 Exchequer purpose of being used as Exchequer bills, before such paper shall have 
 been duly stamped, signed, and issued for public use, or any such plate 
 *467 or die as aforesaid, shall for every such offence be *guilty of a misde- 
 meanor, and being convicted thereof shall, at the discretion of the court 
 before whom he shall be tried, be imprisoned for any period not more 
 than three years, nor less than six calendar months." 
 Forging The statutes authorizing issues of Exchequer bills frequently contain 
 
 and re - '* a c ^ ause relating to the forging, &c, of the certificates or receipts therein 
 ce?><«relat- mentioned. Thus by the 51 Geo. 3, c. 15, s. 71, "If any person or 
 *" g *° persons shall forge, counterfeit or alter, or cause or procure to be forged, 
 
 Exchequer r ° ' ' r . ° 7 
 
 bills, 51 counterfeited or altered, or knowingly or willingly act or assist in the 
 Geo. 3, c. forging, counterfeiting, or altering, any certificate or certificates of the 
 said commissioners by this act appointed as aforesaid, or any of thein, 
 or any receipt or receipts to be given by the cashier or cashiers of the 
 Bank of England, in pursuance of this act; or shall wilfully deliver to 
 the auditor of the receipt of his majesty's exchequer for the time being, 
 or any officer for the time being, or to any officer appointed by him, or 
 to the said commissioners by this act appointed, or any of them, or to 
 any officer or officers appointed by them, or any of them, in the execu- 
 tion of the powers of this act, or shall utter any such forged, counter- 
 feited, or altered certificate or certificates, receipt or receipts, knowing 
 the same to be forged, counterfeited, or altered, with intent to defraud 
 his majesty, his heirs, &c, or any body or bodies politic or corporate, or 
 any person whomsoever;" in every such case, every person so offending 
 shall be adjudged guilty of felony, without benefit of clergy. A clause 
 nearly similar is contained in the 3 Geo. 4, c. 86, s. 54, (^) the 2 & 3 
 Vict. c. 97, and the 5 Vict. c. $.(q) 
 Forging The statutes also occasionally passed in order to grant annuities for 
 
 Ac^relat S ' ^ e discharge of certain Exchequer bills, made the forging of the certi- 
 ing to the ficates, &c, therein mentioned, capital offences: as the 50 Geo. 3, c. 23, 
 discharge g> n 53 Geo 3 c 41 g> 2 {y and the 58 Geo.-3, c. 23, s. 38. 
 
 of Jbxche- 99? / 
 
 quer bills. The 1 Vict. c. 36, s. 34, " in order to prevent the imitation and for- 
 1 Vict. c. gery of lawful franks," enacts, "That every person who shall forge or 
 36, s. 34. counterfeit the handwriting of another person in the superscription of a 
 altering post letter, or who shall alter or change upon a post letter the super- 
 franks, scription thereof, or who shall write or send by the post, or cause to be 
 written or sent by the post, a letter the superscription whereof in whole 
 or in part shall be forged or counterfeited, or altered, knowing the same 
 to be forged, counterfeited, or altered, with intent in either of those cases 
 to avoid the payment of the duty of postage, shall in England and Ire- 
 land, be guilty of felony, and in Scotland of a high crime and offence, 
 and being convicted thereof shall be transported beyond the seas for the 
 term of seven years." (r) 
 
 (p) Mr. Lonsdale (St. Cr. L. 87,) observes that the 3 Geo. 4, c. 86, appears to be superseded 
 by the 1 Wm. 4, c. 66, s. 10, so far as relates to the forging the receipts therein mentioned. 
 With respect to the other offences therein described, the 1 Wm. 4, c. 66, not having made them 
 punishable with death, although previously so punishable, and the 3 Geo. 4, c. 86, not hav- 
 ing been repealed by that act, persons convicted thereof are liable, under the 1 Wm. 4. c. 
 66, ss. 1 and 26, and the 1 Vict. c. 90, s. 5, to the punishment stated in note {/>), ante, p. 415. 
 
 (q) Ante, p. 420. 
 
 (r) See ante, p. 205, et seq., for the general provisions of this act. By the 2 & 3 Vict. c. 
 52, s. 3, the Lords of the Treasury were empowered to suspend wholly or in part any parlia- 
 mentary or official privilege of sending and receiving letters by the post free of postage, or 
 any other franking privilege of any description whatsoever ; and the 3 & 4 Vict. c. 96, recit- 
 ing this act, provides that all letters shall be subject to the regulations and rales in thai act 
 contained.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. *4G8 
 
 *The forging the name or handwriting of the receiver-general of the 
 post-office, or persons employed by him, to any draft, instrument, &c, 
 has been made the subject of special legislative enactment. 
 
 The 1 Vict. c. 36, s. 33, enacts, « that every person who shall know- 1 vict. c. 
 ingly and wilfully forge or counterfeit, or cause or procure to be forged 36 > s -. 33 « 
 or counterfeited, the name or handwriting of the receiver-general for the the" h'aml- 
 time being of the general post-office in England or Ireland, or of any writing of 
 person employed by or under him, to any draft, instrument, or writing receiv - 
 whatsoever, for or in order to the receiving or obtaining of any money of the post- 
 in the hands or custody of the governor or company of the Bank of ° ffic< ? m . 
 England or Ireland, on account of the receiver-general of the post-office, or Ireland, 
 or shall forge or alter, or shall offer, utter, dispose of, or put off, know- felon y- 
 ing the same to be forged or altered, any draft, warrant, or order of such 
 receiver-general, or of any person employed by or under him, for money 
 or for payment of money, with intent to defraud any person whomso- 
 ever, shall be guilty of felony, and being convicted thereof shall be 
 transported beyond the seas for life."(s) 
 
 The 3 & 4 Vict. c. 96, " An act for the regulation of the duties of 3 & 4 Vict, 
 postage/' by sec. 22 enacts, " that if any person shall forge or counter- E; 96 '. s- 22- 
 feit, or cause or procure to be forged or counterfeited, any die, plate, or fraudulent- 
 other instrument, or any part of any die, plate, or other instrument, J y usin g 
 which hath been, or shall, or may be provided, made, or used by or c ii es use a 
 under the direction of the commissioners of stamps and taxes, or by or f 01 " mark- 
 under the direction of any other person or persons legally authorized in agf # pos 
 that behalf, for the purpose of expressing or denoting any of the rates 
 or duties which are or shall be directed to be charged under or by virtue 
 of the authority contained in the said recited act of the last session of 
 parliament,^) or under or by virtue of this act; or if any person shall 
 forge, counterfeit, or imitate, or cause or procure to be forged, counter- 
 feited, or imitated, the stamp, mark, or impression, or any part of the 
 stamp, mark, or impression, of any such die, plate, or other instrument, 
 which hath been or shall or may be so provided, made, or used as afore- 
 said, upon any paper, or other substance or material whatever ; or if 
 any person shall knowingly and without lawful excuse, (the proof 
 whereof shall lie on the person accused) have in his possession any false, 
 forged, or counterfeit die, plate, or other instrument, or part of any such 
 die, plate, or other instrument, resembling or intended to resemble, 
 either wholly or in part, any die, plate, or other instrument, which hath 
 been, or shall, or may be so provided, made, or used as aforesaid, or if 
 any person shall stamp or mark, or cause or procure to be stamped er 
 marked, any paper, or other substance or material whatsoever, with 
 any such false, forged, or counterfeit die, plate, or other instrument, or 
 part of any such die, plate, or other instrument as aforesaid ; or if any 
 person shall use, utter, sell, or expose to sale, or shall cause or procure 
 to be used, uttered, sold, or exposed to sale, or shall knowingly and 
 without lawful excuse, (the proof whereof shall lie on the person ac- 
 cused,) have in his possession any paper, or other substance or material, 
 having thereon the impression or any part of the impression, *of any *469 
 such false, forged, or counterfeit die, plate, or other instrument, or part 
 of any such die, plate, or other instrument as aforesaid, or having 
 thereon any false, forged, or counterfeit stamp or impression, resembling 
 or representing, either wholly or in part, or intended or liable to pass 
 
 (.t) Sec last note. (1) 2 & 3 Vict. c. 52, s. 3.
 
 469 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 or be mistaken for the stamp, mark, or impression of any such die, 
 plate, or other instrument, which hath been or shall or may be so pro- 
 vided, made, or used as aforesaid, knowing such false, forged, or coun- 
 terfeit stamp, mark or impression to be false, forged, or counterfeit ; or 
 if any person shall, with intent to defraud her majesty, her heirs, or 
 successors, privately or fraudulently use, or cause or procure to be pri- 
 vately or fraudulently used, any die, plate, or other instrument, so pro- 
 vided, made, or used, or hereafter to be provided, made, or used as 
 aforesaid, or shall with such intent privately or fraudulently stamp or 
 mark, or cause or procure to be stamped or marked, any paper or other 
 substance or material whatsoever, with any such die, plate, or other in- 
 strument as last aforesaid ; or if any person shall knowingly and with- 
 out lawful excuse, (the proof whereof shall lie on the person accused) 
 have in his possession any paper or other substance or material so pri- 
 vately or fraudulently stamped or marked as aforesaid ; then and in 
 every such case every person so offending, and every person knowingly 
 and wilfully aiding, abetting, or assisting any person in committing any 
 such offence, and being thereof lawfully convicted, shall be adjudged 
 guilty of felony, and shall be liable, at the discretion of the court, to 
 be transported beyond the seas for life, or for any term not less than 
 seven years, or to be imprisoned for any term not exceeding four years, 
 nor less than two years, as the court shall award. "(t) 
 3 & 4 Vict. By sec. 29, " if any person shall make, or cause or procure to be 
 Manufae- ' ma & e > or sna ^ aid or assist in the making, or shall knowingly have in 
 turing or his custody or possession, not being legally authorized by the commis- 
 usmg pa- sioners of excise, or other person or persons appointed by the commis- 
 lar to that sioners of her majesty's treasury, and without lawful excuse, (the proof 
 used for whereof shall lie on the person accused,) any mould or frame, or other 
 covers. instrument, having therein any words, *letters, figures, marks, lines, 
 *470 threads, or devices peculiar to and appearing in the substance of any 
 paper heretofore or hereafter to be provided or used for postage covers, 
 envelopes, or stamps, or any machinery, or parts of machinery, for 
 working any threads into the substance of any paper or any such thread, 
 and intended to imitate or pass for such words, letters, figures, marks, 
 
 (l) By sec. 23, "if any person shall fraudulently get off or remove, or cause or procure 
 to be gotten off or removed from any letter or cover, or any paper or other substance or 
 material, the stamp or impression of any die, plate, or other instrument so provided, made, 
 or used, or hereafter to be provided, made, or used as aforesaid, with intent to use, join, fix, 
 or place such stamp or impression for, with, or upon any other letter, cover, paper, or other 
 substance or material : or if any person shall fraudulently use, join, fix, or place, for, with, 
 or upon any letter or cover, or any paper or other substance or material, any such stamp or 
 impression as aforesaid which shall have been gotten off or removed from any other letter, 
 cover, paper, or other substance or material; or if any person shall fraudulently erase, cut, 
 scrape, discharge, or get out of or from, or shall cause or procure to be so erased, cut, 
 scraped, discharged, or gotten out of or from any letter or cover, or any paper or other sub- 
 stance or material, any name, date, or other matter or thing thereon written, printed, or 
 expressed, with intent to use any stamp or mark, then impressed or being upon such letter 
 or cover, paper, or other substance or material, or that the same may be used for the pur- 
 pose of defrauding her majesty, her heirs or successors, of any of the rates or duties afore- 
 said ; or if any person shall make, do, or practice, or be concerned in any other fraudulent 
 act, contrivance, or device whatever, not specially provided for by this or some other act of 
 parliament, with intent or design to defraud her majesty, her heirs or successors, of any of 
 the rates or duties aforesaid; every person so offending in any of the several cases in this 
 clause mentioned shall forfeit and pay to her majesty, or her heirs and successors, the sum 
 of twenty pounds, to be recovered with full costs of suit, and all expenses attending the 
 same." The 3 & 4 Vict. c. 96, contains no provisions for the punishment of accessories 
 after the fact, they are therefore punishable (under the 7 & 8 Geo. 4. c. 28, ss. 8 and 9. and 
 the 1 Vict. c. 90, s. 3,) in the manner stated in note («), ante, p. 448.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 470 
 
 lines, threads, or devices : or if any person, except as before excepted, 
 shall make, or cause or procure to be made, or aid or asssist in the 
 making of any paper, in the substance of which shall be worked or shall 
 appear visible any words, letters, figures, marks, lines, threads, or other 
 devices peculiar to and worked into or appearing visible in the substance 
 of any paper heretofore or hereafter to be provided or used for postage 
 covers, envelopes, or stamps, or any part of such words, letters, figures, 
 marks, lines, threads, or other devices, and intended to imitate or pass 
 for the same; or if any person, except as before excepted, shall know- 
 ingly have in his custody or possession, without lawful excuse (the 
 proof whereof shall lie on the person accused) any paper whatever, in 
 the substance whereof shall be worked, or appear visible, any such words, 
 letters, figures, marks, lines, threads, or devices as aforesaid, or any part 
 of such words, letters, figures, marks, lines, threads, or devices, and in- 
 tended to imitate or pass for the same; or if any person, except as afore- 
 said, shall, by any art, mystery or contrivance, cause or procure, or aid 
 or assist in causing or procuring, any such words, letters, figures, marks, 
 lines, threads, or devices as aforesaid, or any part of such words, letters, 
 figures, marks, lines, threads, or other devices, and intended to imitate 
 or pass for the same, to appear worked into or visible in the substance 
 of any paper whatever, then and in every such case every person so 
 offending shall for every such offence be adjudged a felon, and shall be 
 transported for the term of seven years, or shall be imprisoned at the 
 discretion of the court before whom such person shall be tried, for any 
 period not less than two years. "(it) 
 
 By sec. 30, " if any person not lawfully authorized, and without law- 3 & 4 Vict. 
 ful excuse, (the proof whereof shall lie on the person accused) shall pur- ^ C eivi n 3 o°' 
 chase or receive, or take or have in his custody or possession, any paper paper for° 
 manufactured and provided by or under the directions of the commis- P 0Sta S e 
 
 covers 
 
 sioners of excise, or other person or persons appointed to provide the before it is 
 same by the commissioners of her majesty's treasury, for the purpose of stamped. 
 being used for postage covers, envelopes, or stamps, and for receiving 
 the impression of the dies, plates, or other instruments, provided, made, 
 or used under the directions of the commissioners of stamps and taxes, 
 or other person or persons legally authorized in that behalf, before such 
 paper shall have been duly stamped with such impression and issued 
 for public use, every such person shall for such offence be guilty of a 
 misdemeanor, and being convicted thereof shall, at the discretion of 
 the court before whom such person shall be tried, be imprisoned for 
 any period not more than three years, nor less than six calendar 
 months."(w) 
 
 *The making or giving a false certificate, &c, upon the sale or dis- *471 
 posal of naval stores, is subjected to a pecuniary fine of 2001. by the 
 39 & 40 Geo. 3, c. 89, s. 26. 
 
 (w) See last note, ad fi num. 
 
 (v) Sec. 66, "for the more effectual prosecution of offences committed against the post- 
 office," enacts, " that in any indictment or criminal letters for any offence committed upon 
 or in respect of any property which may be laid in or stated to belong to the postmaster 
 general, it shall be sufficient to state any such property to belong to and to lay it in " her 
 majesty's postmaster-general," and it shall not be necessary to specify the name or addition 
 of any such postmaster-general; and that whenever, in any indictment or criminal letters 
 for any offence committed against the post-office acts, it shall be necessary to mention for 
 any purpose whatever, " her majesty's postmaster-general," it shall be sufficient to describe 
 such postmaster general as " her majesty's postmaster-general," without any further or other 
 name, addition, or description whatsoever."
 
 471 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 Forging, The 53 Geo. 3, c. 151, s. 12, relates to the forging, &c., the name or 
 name or hand of the registrar of the court of admiralty, or of appeals for prizes, 
 hand of the or of the cashiers of the bank, &c, to any certificate or writing, for the 
 registrar of p ur p 0se f obtaining any of the money or effects of the suitors in those 
 admiralty, courts, and makes the offenders guilty of felony.(?c) 
 <tl - The 1 Geo. 4, c. 35, s. 27, enacts, that "if any person shall forge, 
 
 &° rS the' < ^ C# ' * ne name or handwriting of any accountant-general of the Court of 
 handwrit- Exchequer or any Lord Chief Baron, or any of the barons of the said 
 ing of the cour ^ or f the c l e rk of the reports, or of any of the cashiers of the 
 ant-gene- Bank of England, or of any officer of any other body politic, &c, to any 
 ral, &c, of certificate, report, entry, indorsement, transfer, declaration of trust, note, 
 exchequer direction, authority, receipt, instrument, or writing whatsoever, for or 
 to any cer- in order to the receiving or obtaining any money or effects of any of the 
 ic^tore- su it° rs of that court, or shall forge, &c, any certificate, &c, or shall 
 ceive utter, &c, or shall claim or demand payment of any sum or sums therein 
 
 s " ltors . mentioned with intent to defraud, &c, such offender shall be guilty of 
 the bank, felony without benefit of clergy."(>) 
 
 Forging The 4 & 5 Wm. 4, c. 15, entitled, " An act to regulate the office of 
 
 wa d 1 g i ant f' the receipt of his majesty's exchequer at Westminster," by sec. 28 
 made enacts, " that if any person shall forge, counterfeit, or alter, or cause or 
 
 Tl^w 6 procure to be forged, counterfeited, or altered, or knowingly and will- 
 4, c. 15, re- ingly act, aid, or assist in forging, counterfeiting, or altering, any war- 
 lating to rant, order for payment, or other document whatsoever, by this act 
 quer. " directed or authorized to be issued or made, or shall utter or publish 
 as true, or knowingly or willingly act, aid, or assist in uttering or pub- 
 lishing as true, knowing the same to be forged, counterfeited, or altered, 
 any such warrant, order for payment, or other document whatsoever 
 with intent to defraud his majesty, the governor and company of the 
 Bank of England, or any other person or persons, such person so offend- 
 ing shall be deemed guilty of felony, and shall upon conviction be 
 transported beyond the seas for the term of his natural life."(#) 
 *472 The 2 & 3 Wm. 4, c. 125, s. 64, entitled, « An act for enabling his 
 Counter- majesty to direct the issue of Exchequer bills to a limited *amount, for 
 tificates of" tQe purpose and in the manner therein mentioned, and for giving relief 
 commis- to Trinidad, British Guiana, and St. Lucie," enacts, " that if any per- 
 Ac^under son or P ersons shall forge, counterfeit, or alter, or cause or procure to 
 2 & 3 Wm. be forged, counterfeited, or altered, or knowingly or wilfully act or 
 4, c. 125, ass i s t i u the foro-incr counterfeiting;, or altering: any certificate or certi- 
 
 relatingto ? °' . . ? , • . ■, o • i 
 
 exchequer ficates of the said commissioners, by this act appointed as aforesaid, or 
 bills for anv f them, or any receipt or receipts to be given by the cashier or 
 Trinidad cashiers of the governor and company of the Bank of England in pur- 
 
 ((f) This statute provides no express punishment for this offence, consequently principals 
 in the first degree are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict, 
 c. 00, s. 5,) in the manner stated in note (u), ante, p. 448, and the principals in the second 
 degree and accessories are punishable in the same manner. 
 
 (x) Mr. Lonsdale, (St. Cr. L. p. 86,) observes that the language in which the instruments 
 mentioned in this enactment are described appears to be sufficiently comprehensive to include 
 warrants or orders for the payment of money within the 1 Wm. 4, c. 66, s. 4, and to that 
 extent the forgery of such instruments is punishable under the 1 Vict. c. 84, ss. 2 and 3, 
 (ante, p. 413). With respect to the forgery of the above mentioned instruments generally 
 the 1 Wm. 4, c. 66, not having made such offences punishable with death, although previ- 
 ously so punishable, and the 1 Geo. 4, c. 35, s. 37, not having been repealed by that act, 
 persons convicted thereof are liable [under the 1 Wm. 4. c. 66, ss. 1 and 26, and the 1 Vict. 
 c. 90, s. 5,] to the punishment mentioned in note (A), ante, p. 415. 
 
 (y) This act contains no provisions for the punishment of principals in the second degree 
 and accessories, they are, therefore, punishable in the manner stated iu note («), ante, p. 448.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 472 
 
 suance of this act, or shall wilfully deliver to the auditor of the receipt British 
 of his majesty's exchequer for the time being, or to any officer appointed m ^^ 
 by him, or to the said commissioners by this act appointed, or any of Lucie, 
 them, or to any officer or officers appointed by them or any of them, in 
 the execution of the powers of this act, or shall utter any such forged, 
 counterfeited, or altered certificate or certificates, receipt or receipts, 
 knowing the same to be forged, counterfeited, or altered, with intent 
 to defraud his majesty, his heirs or successors, or any body or bodies 
 politic or corporate, or any person whomsoever, then and in every such 
 case, all and every person or persons so offending, and being thereof 
 lawfully convicted, shall be adjudged guilty of felony, and shall suffer 
 death as in cases of felony." (s) 
 
 The 5 & 6 Wm. 4, c. 51, entitled "An act for granting relief to the 5 & 6 Win. 
 Island of Dominica," and to amend the 2 & 3 Wm. 4, c. 125, by sec. 5, Extending 
 enacts, that " all and every the several clauses, powers, provisions, en- the 2 & 3° 
 actments, penalties, and restrictions in the said act contained, so far as ToT'?' C ' 
 the same can be made applicable and are not varied by this act, shall Dominica, 
 be taken to extend to this act, and to every thing to be done in pur- 
 suance of this act, and as if all such clauses, powers, provisions, and 
 enactments were herein repeated and made applicable to the said island 
 of Dominica, and to the loans and grants to be made in pursuance of 
 this act, and to every matter and thing to be done in pursuance of this 
 act; and all and every the securities to be taken in pursuance of this 
 act shall be taken in such manner as by the said act is directed with 
 respect to the securities thereby authorized or directed to be taken ; 
 and all and every such securities shall have such force, priority, and 
 effect, in all respects as if they were taken in pursuance of and under 
 the authorities of the said in part recited act ; and all and every the 
 rules, orders, and directions made, or to be made by the said commis- 
 sioners shall apply to the said island of Dominica, and the loans to be 
 granted and the securities to be taken in pursuance of this act, in all 
 respects whatsoever, as if the loans hereby authorized to be made had 
 been authorized by the said act." 
 
 By the 46 Geo, 3, c. 45, s. 9, the forging the hand of the treasurer Forging, 
 of the ordnance, &c., to any draft or writing for obtaining money from *c, the 
 the Bank of England, and the uttering any such draft, &c, knowing treasurer of 
 the same to be forged, were made capital offences. (a") the ord '„ 
 
 ' 7KX71C6 46 
 
 *The 54 Geo. 3, c. 151, s. 16, makes the forging, &c, the name or hand Geo. 3, c. 
 of the agent-general for volunteers and local militia an offence liable 45 > s - 9 - 
 to capital punishment. It enacts, " that if any person or persons shall .'^ 
 knowingly add, wilfully forge or counterfeit, or cause or procure to be &°J, S ihe' 
 forged or counterfeited, or knowingly or wilfully act or assist in forging name or 
 or counterfeiting the name or hand of the agent-general for the time at^nt°aene- 
 being, or his deputy, or the person or persons duly authorized as afore- raifor m- 
 
 (z) The 1 Vict. c. 84, recites this section, and the present punishment for offences con- 
 tained in it is provided by sec. 1 and 3 of that act. See ante, p. 413. Neither the 2 & 3 
 Wm. 4, c. 125, nor the 1 Vict. c. 84, contain any provision for the punishment of principals 
 in the second degree and accessories. The principals in the second degree, therefore, are 
 punishable in the same manner as the principals in the first degree and the accessories 
 (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and 1 Vict. c. 90, s. 5,) in the manner stated in 
 note (w), ante, p. 448. 
 
 (a) The instruments enumerated in this enactment seem to be warrants for the payment 
 of money -within the 1 Wm. 4, c. G6, s. 4, and the forgery of them is now punishable under 
 the 1 Vict. c. 84. ss. 2 and 3, ante, p. 413.
 
 473 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 hnttcers, lo- said, to any bill of exchange, acceptance, draft, or instrument in writing 
 Sm *" whatsoever for or in order to the receiving or obtaining any of the 
 Geo. 3, o. money in the hands or the custody of the governor and company of 
 151, s. 16. ^g jjajjk f England, on account of the said agent-general ; and shall 
 forge or counterfeit, or cause or procure to be forged or counterfeited, 
 or knowingly and wilfully act or assist in the forging or counterfeiting 
 any bill of exchange, acceptance, draft, instrument, or writing in form 
 of a draft, made by such agent-general or his deputy, or the person or 
 persons authorized as aforesaid ; or shall utter or publish any such, 
 knowing the same to be forged or counterfeited, with an intention to 
 defraud any person whomsover:" every such person so offending shall 
 be adjudged guilty of felony, without benefit of clergy.(i) 
 Forgery Forgery and false personation, for the purpose of obtaining the ^en- 
 
 persona- 6 s ^ ons } & c -t 0I> invalid soldiers, were made punishable by the statute 46 
 tionforthe Geo. 3, c. 69, s. 8.(c) And forgery and false personation for the pur- 
 purpose of p 0ge f obtaining the prize-money or bounty-money of soldiers, has 
 the pay, been made the subject of severe punishment. (d) And forgery and false 
 prize mo- personation for the purpose of obtaining prize-money, pay, &c, of 
 sion's^ <fec. persons in the naval or marine services, were from time to time made 
 of soldiers punishable by a variety of statutes. (e) 
 
 sai ors. rpj 2 "Win. 4, c. 53, entitled " An act for consolidating; and amend- 
 
 2 Wm 4c. . • 
 
 53 s. 49. ' i n g tne l aws relating to the payment of army prize-money," by sec. 49, 
 Forging, enacts, amongst other things, that " if any person shall forge, or coun- 
 naiaes of terfefy or alter, or cause, or procure to be forged or counterfeited, or 
 officers, altered, or knowingly and willingly act or aid, or assist in forging or 
 <fec., enti- counterfeiting, or altering the name or handwriting of any officer, non- 
 prize mo- commissioned officer, soldier, or other person entitled or supposed to be 
 n ey,&c.,or entitled to any prize-money, grant, bounty-money, share or other allow- 
 of the hos- ance of money due or payable, or supposed to be due or payable for or 
 pital at n account of any service performed or supposed to have been per- 
 letters of formed by any officer, non-commissioned officer, soldier, or other person 
 attorney, who shall have really served, or be supposed to have served, in his 
 W1 s ' c ' majesty's army or other military service, or the name or handwriting 
 of any officer or under officer, clerk or servant of or in the employ of 
 the commissioners of the said Royal Hospital at Chelsea, or the name 
 *474 or handwriting of *any officer or person in any way concerned in the 
 paying or the ordering, directing, or causing the payment of any such 
 prize-money, grant, bounty-money, share, or other allowance or money 
 due or payable, or supposed to be due or payable, as aforesaid, or shall 
 falsely make, forge, counterfeit or alter, or willingly act, aid, or assist 
 in the false making, forging, counterfeiting, procuring, or altering any 
 letter of attorney, bill, ticket, order, certificate, voucher, receipt, will, or 
 any other power, instrument, warrant, authority, document, or writing 
 whatsoever, relating to or in any wise concerning the payment of or 
 the obtaining or claiming any such prize-money, grant, bounty-money, 
 share, or other allowance of money due or payable, or supposed 
 
 (6) The instruments enumerated in this enactment appear to be contained in the 1 Wm. 
 4, c. 6G, s. 4, and the forgery of them is now punishable under the 1 Vict. c. 84, ss. 2 and 3, 
 ante, p. 413. 
 
 (c) Repealed, 7 Geo. 4, c. 16. (d) 49 Geo. 3, c. 123, s. 28. 
 
 (e) Amongst others, the 31 Geo. 2, c. 10, s. 24. 9 Geo. 3, c. 30, s. 9. 32 Geo. 3. c 33, 
 s. 23. 32 Geo. 3, c. 34, s. 29. 32 Geo. 3, c. 67, s. 12." 35 Geo. 3, c. 94, s. 34. 35 Geo. 3, 
 c. 28, s. 30. 45 Geo. 3, c. 72, s. 121. 49 Geo. 3, c. 123, ss. 13, 28, 36. 49 Geo. 3, c. 108, 
 s. 10. 54 GeD. 3, c. 93, s. 89. 54 Geo. 3, c. 110, s. 6. 55 Geo. 3, c. 60, s. 32.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 474 
 
 to be due or payable as aforesaid, in order to receive, obtain, or claim, 
 any sucb prize-money, grant, bounty-money, share, or other allowance 
 of money, due or payable, or supposed to be due or payable as afore- 
 said, or shall utter or publish as true, or knowingly and willingly act 
 or aid, or assist in uttering or publishing as true, any falsely made, or 
 forged or counterfeited, or altered letter of attorney, bill, ticket, order, 
 certificate, voucher, receipt, will, or any other power, instrument, war- 
 rant, authority, document, or writing whatsoever, with intention to re- 
 ceive, obtain, or claim, or enable any other person to receive, obtain, or 
 claim from the said commissioners of the said Royal Hospital, or from 
 any officer, under officer, clerk, or servant of the said commissioners, or 
 from any person whatsoever authorized, or supposed to be authorized 
 to pay the same, the payment of such prize-money, grant, bounty- 
 money, share, or other allowance of money due or payable, or supposed 
 to be due or payable as aforesaid, with an intention to defraud any per- 
 son or persons whatsoever, or any body or bodies politic or corporate 
 whatsoever, or shall knowingly take a false oath in order to obtain let- 
 ters of administration, or the probate of any will, in order to receive, 
 obtain, or claim, or to enable any other person to receive, obtain, or 
 claim any prize-money, grant, bounty-money, share, or other allowance 
 of money due or payable, or supposed to be due or payable, for or on 
 account or in respect of the service of any officer, non-commissioned offi- 
 cer, soldier, or other person as aforesaid, who shall have really served, 
 or be supposed to have served, in his majesty's army or other military 
 service, or shall demand or receive any prize-money, grant, bounty- 
 money, share, or other allowance of money due or payable, or supposed 
 to be due or payable as aforesaid, upon letters of administration, or a 
 probate of a will, knowing the will on which such probate shall have 
 been obtained to be false, forged, or counterfeited, or knowing such 
 letters of administration, or the probate of such will as last aforesaid, 
 to have been obtained by means of any such false oath, with intention 
 to defraud any person or persons whatsoever, or any body or bodies 
 politic or corporate whatsoever, all and every person so offending be- 
 ing thereof lawfully convicted, shall be and are and is hereby de- 
 clared and adjudged to be guilty of felony, and shall be transported 
 beyond the seas for life, or for any term not less than seven years, as 
 the court before whom such person or persons shall be convicted shall 
 adjudge. (/) 
 
 *The 7 Geo. 4, c. 16, entitled "An act to consolidate and amend the *475 
 several acts relating to the Iloyal Hospitals for soldiers at Chelsea and 7 Geo. 4, c. 
 Kilmainham," by sec. 38 enacts, that "if any person shall willingly Fo'r^inV 
 and knowingly personate, or falsely assume the name or character, or Chelsea 
 procure any other to personate or falsely assume the name or character P ensicms > 
 of any officer, non-commissioned officer, soldier, or other person, entitled, 
 or supposed to be entitled to any pension, wages, pay, grant, or other 
 allowance of money, prize-money, or relief, due or payable, or supposed 
 to be due or payable, for or on account of any service done or supposed 
 to be done by any such officer, non-commissioned officer, soldier, or 
 other person as aforesaid, in his majesty's army, or other military ser- 
 vice, or shall personate or falsely assume the name or character of the 
 
 (/) The 2 Win. 4, c. 53, contains no express provision for the punishment of accessories 
 after the fact, consequently they are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, 
 and the 1 Vict. c. 00, s. 5,) in the manner stated in note (w), ante, p. 448. 
 
 Vol. ii.— 31
 
 475 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 executor or administrator, wife, relation, or creditor of any such officer, 
 non-commissioned officer, or soldier, or other person as aforesaid, in 
 order fraudulently to receive any pension, wages, pay, grant, or other 
 allowance of money, prize-money, or relief, due or payable, or supposed 
 to be due or payable, for or on account of any services done or supposed 
 to be done by any such officer, non-commissioned officer, soldier, or 
 other person as aforesaid : or if any person shall forge or counterfeit, or 
 alter, or cause or procure to be forged or counterfeited, or altered, or 
 knowingly and willingly act, aid, or assist in forging, counterfeiting, or 
 altering the name or handwriting of any officer, non-commissioned offi- 
 cer, soldier, or other person, entitled or supposed to be entitled, to any 
 pension, wages, pay, grant, allowance of money, prize-money, or relief, 
 due or payable, or supposed to be due or payable, for or on account of 
 any such service, or supposed service, as aforesaid, or the name or hand- 
 writing of any officer, under officer, clerk, or servant of the said com- 
 missioners of the said hospital at Chelsea, or of any officer or person 
 in any way concerned in the paying or ordering, directing or causing 
 the payment of the said pensions, wages, pay, money, allowance of 
 money, prize-money, or relief, or any of them ; or shall forge, counter- 
 feit or alter, or cause or procure to be forged, counterfeited or altered, 
 or knowingly and willingly act, aid, or assist in forging, counterfeiting, 
 or altering, any letter of attorney, bill, ticket, order, certificate, voucher, 
 receipt, will, or any other power, instrument, warrant, document, or 
 authority whatsoever, relating to or anywise concerning the payment or 
 obtaining, or claiming any pension, wages, pay, grant, allowance of 
 money, prize-money, or relief, for and in order to the receiving, obtain- 
 ing, or claiming any such pension, wages, pay, grant, allowance of 
 money, prize-money, or relief; or shall utter or publish as true, or 
 knowingly and willingly act, aid, or assist in uttering, or publishing as 
 true, knowing the same to be forged, counterfeited, or altered, any such 
 letter of attorney, bill, ticket, order, certificate, voucher, receipt, will, 
 or any other power, instrument, warrant, document, or authority what- 
 soever, with intent to obtain the payment of any such pension, wages, 
 pay, money, or allowance of money, prize-money, or relief, from the 
 said commissioners of the said hospital at Chelsea, or from any officer, 
 under officer, clerk, or servant of the said commissioners, or from the 
 person authorized, or supposed to be authorized, to pay the same, or 
 with intent to defraud any person whatsoever, or any corporation what- 
 *476 soever ; *every person so offending, being thereof lawfully convicted, 
 shall be and is hereby declared and adjudged to be guilty of felony, and 
 shall and may be transported for life, or for such term of years as the 
 court shall adjudge. "(g) 
 An indict- The first count of an indictment founded upon the 7 Geo. 4, c. 16, s. 
 mcntfor 3g^ charged that the prisoner feloniously forged "a certain receipt re- 
 letter of at- lating to and concerning the payment of a certain pension, viz., of -il. 
 torney,rc- \\g m 0$d., supposed to be payable to one Nicholas Morrill, as an out- 
 pensfon pensioner of Chelsea Hospital, for a certain time, viz., for ninety-two 
 
 [g) Mr. Lonsdale (St. Cr. L. 132,) observes, that the above enactment appears to be su- 
 perseded as far as relates to prize money, by the 2 Wm. 4, c. 53, s. 49, post, p. 473. The 7 
 Geo. 4, c. 16, contains no provision for the punishment of accessories after the fact ; they, 
 therefore, are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 
 5,) in the manner stated in note (m), ante, p. 448.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 47(3 
 
 days, from 1st July, 1888, to 30th September following, both days in* supposed to 
 eluded, which said forged receipt is as follows, viz : — nndw the7 
 
 Geo. 4, c. 
 " Assignment receipt, 426 16, s. 38, is 
 
 84th foot, Nicholas Morrill. Is. ^d. per diem, not neees- 
 
 « Sheffield." B » r y tha .t 
 
 the pension 
 to which 
 
 "We the undersigned churchwarden and overseer of the parish of the docu - 
 Brightside Brierlow, in the county of York, do hereby acknowledge to j^g 
 have received of T. C. Brookbank, Esquire, agent for the out pension- should ac- 
 ers of Chelsea Hospital, (by the hand of Mr. J. Thompson,) the sum of Jjjjjj, 1 * 
 41. lis. 0-lrf., being the amount due to the above-named out-pensioner 
 of the said hospital for ninety-two days, from 1st July, 1838, to 30th 
 September following, both days included, by virtue of an assignment 
 made by the aforesaid pensioner, conformably to an act of parliament 
 passed in the 59th year of the reign of his majesty King Geo. 3, en- 
 titled 'An act to amend the laws for the relief of the poor,' five per- 
 cent, being deducted pursuant to the act of parliament, 28 Geo. 2, c. 1. 
 
 " 4d. lis. ±d. " John Wilson, Churchwarden, 
 
 "Witness, J. Pringle." "Thomas Gray, Overseer of the Poor." 
 
 " We the undersigned churchwarden and overseer of the parish afore- 
 said, do hereby certify that the above-named out-pensioner is alive, 
 and entitled to his pension, being no otherwise provided for by gov- 
 ernment." 
 
 " Dated this 19th day of October, 1838. 
 
 " John Wilson, Churchwarden, 
 " 80." " Thomas Gray, Overseer of the Poor." 
 
 "For and in order to the receiving the said pension, with intent thereby 
 to obtain the payment of the said pension from the lords and others, 
 commissioners of Chelsea Hospital : against the form," &c. Of the 
 other counts, some charged the forging and others the uttering of the 
 receipt, omitting the certificate, others the forging, and the rest the 
 uttering of the certificate only, omitting the receipt, varying in each 
 class the statement of the intent, but all alleging in the language set 
 out from the first count, that the forged instrument ^related to, &c, *477 
 &c, "the payment of a certain pension, (specifying the amount,) sup- 
 posed to be payable to the said Nicholas Morrill as an out-pensioner of 
 the said hospital." And no count alleging such pension to be in fact 
 payable ; or that Nicholas Morrill was an out-pensioner. It was moved 
 in arrest of judgment, that in order to constitute an offence under the 
 latter branch of the thirty-eighth section, it was necessary that there 
 should be an actually existing pension at the time of the commission of 
 the act of forging or uttering, and that the indictment should allege the 
 actual existence of sucli pension, and that it was not sufficient under 
 that branch of the section to allege (as in this indictment) that the in- 
 strument forged related to a pension supposed to be payable. The 
 forged instrument in question was proved to have been made and uttered 
 by the prisoner for the purpose of procuring payment of a pension that 
 had ceased to exist by the death of the pensioner before the period for
 
 477 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 which the receipt was signed ; and therefore as the objection was one 
 that affected not only the form of this indictment, but involved the ques- 
 tion of the prisoner's guilt upon this and other similar charges, Erskine, 
 J., reserved the question for the opinion of the judges; before whom it 
 was contended that the offence as stated in this indictment, was not an 
 offence comprehended in the clause recited, there being no allegation of 
 an actual existing pension payable to some person, but only of a pen- 
 sion supposed to be payable. The latter part of the thirty-eighth sec- 
 tion of the act created no offence, except in respect of a pension actually 
 in existence, and there must be some person in existence to whom it 
 was payable. There were in this branch of the section no such words 
 as " supposed to be due and payable ;" those words were found in the 
 first part of the section, and they appeared to have been intentionally 
 omitted in the enactment respecting this offence. But even if the words 
 were in the clause, the allegation would be bad for uncertainty, inas- 
 much as it did not state by whom the pension was supposed to be pay- 
 able ; it might be a supposition in the mind of the prisoner only, and 
 that would not be enough. But the judges present were all of opinion 
 that the conviction was right, (except Littledale, J., and Coleridge, J., 
 who thought otherwise,) and the conviction was affirmed. (h\ 
 Falsely The personating or falsely assuming the name and character of a pen- 
 
 P ers °° at - sioner at Greenwich Hospital, and the forging of any documents for the 
 name, Ac purpose of obtaining the pensions paid at that establishment, have been 
 of a pen- f r0 m time to time subjected to severe punishments. (i) A general 
 
 .-ioner at , . i ' ' 
 
 Greenwich enactment as to the offence of falsely personating the name or character 
 Hospital, of either soldier or sailor, for the purpose of obtaining any pension, 
 °£ e orging ' prize-money, &c, has been already referred to, and will be mentioned 
 in a subsequent chapter, (y) 
 *478 The 11 Geo. 4, c. 20, entitled "An act to amend and consolidate the 
 11 Geo. 4, J aws relating to the pay of the royal navy," by sec. 83, enacts, "that 
 Forging ' ^ an y person shall forge, or offer, utter, dispose of, or put off, knowing 
 tickets, the same to be forged, any ticket, pay list, extract from *any ship's 
 Ac! inor- D0 °k s > or an y certificate whatever, authorized or required by this act, 
 iler to ob- or any inspector's or other check, or any letter of attorney, assignment, 
 tain pay or p 0wer or authority, in order to obtain or to enable any other person to 
 ney in the receive any wages, pay, half-pay, prize-money, bounty-money, or other 
 navy. allowance of money due or supposed to be due in respect of the services 
 
 of any commission, warrant or petty officer, or seamen, or any commis- 
 sion or non-commissioned officer of marines or marine, or any other 
 person, performed or supposed to be performed in the royal navy; or 
 if any person shall forge, or offer, utter, dispose of, or put off, any pur- 
 ser's or other certificate to a bill of exchange, or any approval of any 
 such bill, respectively required by this act; or if any person shall forge, 
 or utter, or put off, knowing the same to be forged, any receipt for 
 wages payable under allotment or otherwise in respect of the services 
 
 (ft) Reg. v. Pringle, a 2 Moo. C. C. R. 127. S. C. 9 C. & P. 408. 
 
 (t) See 3 Geo. 3, c. 16, s. 6. 43 Geo. 3, c. 119, s. IV. 54 Geo. 3, c. 110, s. 6. 58 Geo. 3, 
 c. 64. ss. 4, 6. 59 Geo. 3, c. 56, s. 12, 17 ; and 4 Geo. 4, c. 46, s. 1, which repeal? so much 
 of the 3 Geo. 3, c. 16, as excluded benefit of clergy from offenders personating any out-pen- 
 sioner of Greenwich Hospital, and makes the felony thereby created punishable at the dis- 
 cretion of the court, by transportation for life, or for any term not less than seven years, or 
 by imprisonment and hard labour, not exceeding seven years. 
 ' (.;') Post, chap. 40. 
 
 3 Eng. Com. Law. Reps, xxxviii. 171.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 478 
 
 of any person on board of any of his majesty's ships, or shall forge the 
 name or handwriting of any officer of the royal navy or royal marines 
 to any receipt for half-pay, or arrears of half-pay, or the name or hand- 
 writing of any widow to any receipt for any pension or arrears of pen- 
 sion, or the name or handwriting of any person to any receipt for an 
 allowance from the compassionate fund of the navy; or shall offer, 
 utter, dispose of, or put off any forged receipt for half-pay or arrears of 
 half-pay, or for any widow's pension or arrears of such pension, or for 
 any allowance from the compassionate fund, knowing any such receipt 
 to be forged, with intent in any of the said cases to defraud any person 
 whomsoever, every person so offending shall be deemed guilty of* felony, 
 and being convicted thereof, shall be liable, at the discretion of the 
 court, to be transported beyond the seas for life, or for any term not 
 less than seven years, or to be imprisoned for any term not exceeding 
 four years, nor less than two years.' '(&) 
 
 By sec. 86, "if any person shall subscribe any false petition or ap- Sec 86. 
 plication to the treasurer of his majesty's navy, or to the paymaster of Sub scrib- 
 royal marines, falsely and deceitfully representing herself or himself petitions to 
 therein to be the widow, executor, nearest or one of the nearest of kin- the trea - 
 dred of any deceased commission or warrant officer of the navy, or com- navy &Ci e 
 mission officer of marines, or of any petty officer or seaman, non-com- 
 missioned officer of marines or marine, or shall utter or publish any 
 such petition or application, knowing the same to be false, in order to 
 procure, or to enable any other person to procure, a certificate from the 
 said inspector of seamen's wills, or from the paymaster of royal marines 
 as hereinbefore respectively provided, thereby to obtain, or to enable 
 any other person to obtain, without probate or letters of administration, 
 payment of any wages, pay, half-pay, or pension, or any allowance from 
 the compassionate fund of the navy, or payment of any wages, prize- 
 money, or allowance payable in respect of the services of any officer, 
 seaman, or marine *in the royal navy, or thereby to obtain, or to enable *479 
 any other person to obtain, probate of the will or letters of administra- 
 tion of the effects of any deceased petty officer, seaman, non-commis- 
 sioned officer of marines or marine; or if any person shall receive or 
 demand any wages, pay, half-pay, prize-money, bounty-money, pension, 
 or arrears thereof, or any other allowance due or payable in respect of 
 the services of any commission or warrant officer of the navy, or com- 
 mission officer of royal marines, or of any petty officer, seaman, non- 
 commissioned officer of marines or marine, upon or by virtue of any 
 certificate of the inspector of seamen's wills, or paymaster of royal 
 marines respectively as aforesaid, knowing any such certificate to have 
 been obtained by any false representation or pretence; every such 
 offender shall be deemed guilty of felony, and being convicted thereof, 
 shall be liable, at the discretion of the court, to be transported beyond 
 
 (k) By sec. 88, in the case of every offence made felony by this act, every principal in the 
 second degree, and every accessory before the fact, shall be punishable in the same manner 
 as the principal in the first degree is by this act punishable: and every accessory after the 
 fact, to any such felony, shall, on conviction, be liable to be imprisoned for any term not ex- 
 ceeding two years; and where any person shall be convicted of any offence punishable un- 
 der this act, for which imprisonment shall or may be awarded, it shall be lawful for the 
 court to sentence the offender to be imprisoned, with or without hard labour, in the common 
 gaol or house of correction, and also to direct that the offender shall be kept in solitary con- 
 finement for the whole or any portion or portions of such imprisonment, as to the court in 
 its discretion shall seem meet. See the 1 Vict. c. 00, s. 5, limiting the duration of solitary 
 confinement, ante, p. 413.
 
 479 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 the seas for any term not exceeding fourteen years, and not less than 
 seven years, or to be imprisoned for any term not exceeding three years 
 nor less than one jear."(l) 
 11 Geo. 4, By sec. 87, "if any person shall forge or shall utter, offer, or exhibit, 
 y • knowing the same to be forged, any paper writing purporting to be an 
 extracts extract from any register of marriage, baptism, or burial, or any certifi- 
 from regis- ca te f marriage, baptism, or burial, in order to sustain any claim to 
 any wages, prize-money, or other moneys due or payable in respect of 
 the services of any officer, seaman, or marine, in his majesty's navy, or 
 to sustain any claim to any half-pay, payable to an officer of the royal 
 navy or marines, or to any pension as the widow of an officer, or to any 
 payment or allowance from the compassionate fund of the navy, or to any 
 gratuity or bounty of his majesty given to the relatives of persons slain 
 in fight with the enemy; or if any person shall make any false affidavit, 
 or utter or exhibit any false affidavit, certificate, or other voucher, or 
 document, in order fraudulently to procure any person to be admitted 
 a pensioner as the widow of an officer of the royal navy, or in order to 
 sustain any claim to any wages, prize-money or other moneys, or to any 
 half-pay or pension, or arrears thereof, or any allowance from the com- 
 passionate fund of the navy, or to any gratuity or bounty as aforesaid, 
 with intent to defraud any person whomsoever, every person in any of 
 the said cases offending shall be deemed guilty of felony, and being 
 convicted thereof shall be liable, at the discretion of the court, to be 
 transported beyond the seas for any term not exceeding fourteen years 
 and not less than seven years, or to be imprisoned for any term not 
 exceeding three years, nor less than one year." (II) 
 Forging The 2 Wm. 4, c. 40, entitled "An act to amend the laws relating to 
 
 Ac. under' tne C1Y ^ business of the navy, &c," by sec. 32, enacts, "that if any 
 the 2 Wm. person shall forge or falsely make any certificate to be given under the 
 Anact re- authority of this act by the commissioners for executing the office of lord 
 lating to high admiral, or any of them, or by any superintendent of the purchase 
 i eC1 e*s of or sa ^ e °^ an y nava i or victualling stores, or shall utter or publish any 
 the navy, false or altered certificate of any such purchase or sale, knowing the 
 same to be false ; or if any person shall take a false oath, or make a 
 false affirmation, or give false evidence before any commissioner or 
 commissioners for executing the office of lord high admiral aforesaid, or 
 before any superintendent or inspector of seamens' wills, touching any 
 *480 matter which the said commissioners or *any of them, or any super- 
 intendent or inspector, are or is authorized to inquire intoj every such 
 person, being duly convicted of any such offence or offences, shall be 
 liable to suffer such punishment, pains, and penalties, as persons guilty 
 of wilful and corrupt perjury, are by law subject to."(m\ 
 Sec. 33. By sec. 33, "the petition for probate of will or letters of administra- 
 
 . bll J ;)S ° nb " tion of the effects of any deceased petty-officer or seaman, or non-com- 
 fals'e peti- missioned officer of marines or marine, or for obtaining a check or certi- 
 tions tothefi ca t e j n li eu f probate or letters of administration, in cases of claims, 
 seamen's where the deceased's assets shall not exceed thirty-two pounds and 
 wills. twenty pounds respectively, shall be addressed to the inspector of sea- 
 
 men's wills, and shall be forwarded to the secretary of the Admiralty J 
 and if any person shall subscribe, transmit, utter or publish, any false 
 
 (I) See the last note. 
 
 (II) See ante, p. 478, note (k). 
 
 (m) For this punishment see the chapter on Perjury, post.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 480 
 
 petition or application to the said inspector, knowing the same to be 
 false, in order to obtain, or to enable any other person to obtain, any 
 check or certificate in lieu of probate or letters of administration as 
 aforesaid, every person so offending shall be deemed guilty of felony, 
 and being convicted thereof, shall be liable, at the discretion of the 
 court, to be transported beyond the seas for any term not exceeding 
 fourteen years, nor less than seven years, or to be imprisoned for any 
 term not exceeding three years, nor less than one year.(m) 
 
 The 2 & 3 Wm. 4, c. 106, an act to enable officers in the army, &c, Forging 
 to draw for and receive their half pay, enacts, by sec. 3, that " if any for half- eS 
 person or persons shall falsely make, forge, or counterfeit, or cause or pay, Ac, 
 procure to be falsely made, forged, or counterfeited, or willingly act or o"* 6 ;* wm 
 assist in the false making, forging, or counterfeiting of any such authority 4, c. 106. 
 or certificate, or bill of exchange, or shall utter as true any such false, 
 forged, or counterfeited authority or certificate, or bill of exchange, 
 knowing the same to be false, forged, or counterfeited, with intent to 
 defraud any person or persons, body or bodies politic or corporate, every 
 such person so offending shall be deemed guilty of felony, and being 
 thereof lawfully convicted shall be transported for seven years, or suffer 
 imprisonment for any term not exceeding four years, as the court shall 
 direct."(») 
 
 The 5 & 6 Wm. 4, c. 24, entitled " An act for the encouragement of 5 & 6 Win. 
 voluntary enlistment of seamen, and to make regulations for more 3 * c " ' s- 
 effectually manning his majesty's navy," by sec. 3, "in order to prevent, Forging 
 as far as may be, frauds and impositions with respect to protection," certificates 
 
 01 SGrVlCG 
 
 enacts, that " if any person shall forge or counterfeit any certificate of in the navy. 
 
 service in his majesty's navy, or any instrument purporting to be a pro-°. r protec- 
 
 tectiou from such service, or shall fraudulently utter or publish any sucn ger . 
 
 forged certificate of such service, or any forged instrument purporting vice. 
 
 to be a protection from such service, knowing the same to be forged, 
 
 or shall fraudulently alter any certificate or protection which shall have 
 
 been duly granted or issued; or if any *person shall forge or fraudulently *481 
 
 alter any extract from a baptismal register, or shall knowingly utter any 
 
 false or fraudulently altered extract from a baptismal register, or any 
 
 false affidavit, certificate, or other document, in order to obtain from 
 
 the Admiralty Office a protection from his majesty's naval service for 
 
 himself or any other person ; or if any person, being in the possession 
 
 of a protection, shall lend, sell, or dispose thereof to any other person, 
 
 in order fraudulently to enable such other person to make an unlawful 
 
 use of the same : or if any person shall produce, utter, or make use of 
 
 as a protection for himself any protection which shall have been made 
 
 out or issued for any other individual; every person in any such manner 
 
 offending shall be deemed guilty of a misdemeanor, and such protection 
 
 shall thenceforward be null and void." 
 
 The 2 & 3 Vic. c. 51, entitled, « An act to regulate the payment and 2 & 3 Vi °*- 
 assignment in certain cases of pensions granted for service in her Fraudulent 
 
 (to) The 2 Wm. 4, c. 40, contains no express provisions for the punishment of principals 
 in the second degree and accessories ; the principals, therefore, in the second degree are pun- 
 ishable in the same manner as the principals in the first degree, and the accessories are pun- 
 ishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) in the man- 
 ner pointed out in note (w), ante, p. 448. 
 
 (n) This act contains no provisions for the punishment of accessories after the fact, they 
 therefore are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 aud 9, and the 1 Vict. c. 90, s. 
 5,) in the manner stated in note (u), ante, p. 44S.
 
 481 
 
 OF THE FORGERY OF OFFICIAL PAPERS, 
 
 [book rv 
 
 assignment 
 of pensions 
 in the ar- 
 my, navy, 
 
 Sec. 9. 
 Forging 
 minutes, 
 copies, as- 
 signments 
 <>f pen- 
 sions, <te. 
 
 majesty's army, navy, royal marines and ordnance," by sec. 8, reciting 
 that "great frauds have been practised, and exorbitant and usurious in- 
 terest obtained from pensioners, upon assignments made under colour 
 of the said act of the fifty-ninth year of the reign of his said late 
 majesty King George 3, and according to the form set out in the said 
 act, although the money advanced thereon has not been advanced out of 
 parish funds, nor to reimburse a parish for relief given to the prisoner 
 by the churchwardens and overseers/' enacts, that " if any person en- 
 titled to pension or other allowance shall assign or aid or assist in making 
 an assignment thereof, or of any quarterly or other payment thereof, to 
 any person or persons whatsoever, except to the guardians of any union 
 or parish, or to the churchwardens and overseers of the poor of the 
 parish wherein such pensioner resides, or to the heritors and kirk session 
 of any place in Scotland where such pensioner resides, and except for 
 relief granted out of the funds of such union, parish or townland to 
 such pensioner, or his wife or family residing with him in such parish, 
 it shall be lawful for the lords and others, commissioners of Chelsea 
 Hospital, as far as relates to army or other pensions payable by ^uch 
 commissioners, and for the Lord High Admiral, or commissioners for 
 executing the office of Lord High Admiral, with respect to naval and 
 marine pensions or other allowance, immediately to take away the pen- 
 sion from the person so offending, or to suspend for any definite period 
 the future payments thereof; and if any person or persons shall procure 
 or induce a pensioner to make or aid, or assist him in making any as- 
 signment of pension, superannuation, or other allowance as aforesaid, 
 to any person or persons other than the guardians of any union or parish 
 as aforesaid, or the churchwardens and overseers of the parish wherein 
 such pensioner resides, or any heritors and kirk session in Scotland as 
 aforesaid, or shall make or aid or assist in making any assignment which 
 shall not be given by the said pensioner or person entitled to other 
 allowance as aforesaid, and received by the said guardians, parish offi- 
 cers, or heritors and kirk session, as a security for relief given or money 
 granted or advanced out of the funds of such union, parish, townland, 
 or place, and for reimbursing the guardians, churchwardens and over- 
 seers, or heritors and kirk session advancing the same, or shall receive 
 or accept as payment or security for money or for goods advanced or 
 agreed to be advanced to or lent or given to any such pensioner or 
 person *entitled as aforesaid, or shall demand or charge any interest 
 or pecuniary or other compensation, for advancing money upon any 
 pension or other allowance so assigned or taken, or pretended to be 
 assigned or taken, such person or persons shall for every such offence 
 be deemed guilty of a misdemeanor, and shall upon every conviction 
 thereof be punished by such fine or imprisonment, or both, as the 
 court before which such person or persons shall be convicted shall 
 adjudge." 
 
 By sec. 9, "if any persan shall forge, or counterfeit, or alter, or cause 
 or procure to be forged, counterfeited, or altered, or knowingly and wil- 
 lingly act, aid, or assist in forging, counterfeiting, or altering any 
 minute, copy of minute, assignment of pension, superannuation or other 
 allowance as aforesaid, order, certificate, receipt, document, or authority 
 whatsoever relating to or in anywise concerning the claiming or obtain- 
 ing payment of any pension-money or other allowance as aforesaid, or 
 shall utter or publish as true, or knowingly and willingly act, aid, or
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 482 
 
 assist in uttering or publishing as true, knowing the same to be forged, 
 counterfeited, or altered, any such minute, copy, assignment, order, cer- 
 tificate, receipt, document, or authority, relating to or anywise concern- 
 ing the claiming or obtaining payment of any pension-money or other 
 allowance as aforesaid, or the name of any pensioner, justice of the 
 peace, guardian, parish officer, or other officer, or any other person 
 authorized, or supposed, or purporting to be authorized to sign any such 
 minute, copy, assignment, order, certificate, receipt, document or autho- 
 rity, with intent or in order to obtain or to enable any other person to 
 obtain, the payment of any such pension or pension-money, or other 
 allowance as aforesaid from the commissioners of Chelsea Hospital 
 or her majesty's Paymaster-General respectively, or from any officer, 
 under officer, clerk, or servant of the said commissioners of Chelsea 
 Hospital, or of her majesty's Paymaster-General respectively, or from 
 any person authorized or supposed to be authorized to pay any pension 
 or pension-money or other allowance as aforesaid, every such person 
 so offending shall be guilty of felony, and shall and may be trans- 
 ported for such term of years, or suffer such other punishment as the 
 court before which such person or persons shall be convicted shall 
 adjudge, "(n) 
 
 A point may be here noticed, which arose upon the construction of Lyon's 
 the statutes by which powers of attorney to receive prize-money were Forging a 
 regulated. The prisoner had been convicted upon an indictment which power of 
 contained counts charging him with having forged a power of attorney attorne y t0 
 of one J. 0., a midshipman in his majesty's service, to receive certain prize-mo- 
 prize-monev then due, and also counts on the 2 Geo. 2. c. 25. charo-infr nejr ' holden 
 
 • ^ ^ to be a 
 
 him generally with the forgery of a deed. By the 44 Geo. 3, c. 72, s. capital of- 
 92, a form was prescribed for a negotiable order, by a petty officer on fence, 
 the agent or treasurer of Greenwich Hospital, with a certificate sub- i' n °hf fo^ 
 joined, &c, and the principal point made on behalf of the prisoner was, prescribed 
 whether this prescribed form of an order invalidated every power for the ^ ^ pai T 
 purpose of receiving prize-money couched in other terms and in a different tute, 45 
 form than were Contained in that statute. It is understood that the ? 2 eo " 3 ^ 2 C ' 
 point being submitted to the consideration of the twelve judges, all of *483 
 them (with the exception of Graham, B., who dissented) thought that 
 the forging a power of attorney, though not in the prescribed form, was 
 a capital offence, and that the conviction was right ; and that most of 
 the judges thought that the power of attorney in cpuestion was a deed 
 within the 2 Geo. 2, c. 25, (now repealed.) (o) 
 
 It has been holden that the muster books of the king's ships, docu- Muster 
 mented in the navy-office, to which returns are regularly made, by the navy-office 6 , 
 several commanders of the names, &c, of their respective crews, may evidence, 
 be admitted as evidence of the persons therein named, having served on 
 board the several ships in the capacities there mentioned. (p) 
 
 The 4 Geo. 2, c. 18, s. 1, having reference to the treaties between this ^ or S in £> 
 kingdom and the Barbary powers; by which, on producing a pass in a Mediterra- 
 certain form, those powers agreed to let British vessels go free, enacted, necmjpaM. 
 "that if any person or persons shall within Great Britain or Ireland, is s "i. ' 
 
 (n) This act contains no provisions for the punishment of accessories after the fact, they 
 therefore are punishable (under the 1 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 
 5,) in the manner stated in note (w), ante, p. 448. 
 
 (o) Rex v. Rickctts Lyon, 0. B. 1812. MS. 
 
 (p) Rhodes's case, 4 Leach, 24. Rex v. Fitzgerald and Lee, 1 Leach, 20. 2 East, P. C. c. 
 19, s. 25, p. 811. Tannet's case, cor. Wood, B., Kent Lent Ass. 1818. MS.
 
 483 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 or any other of his majesty's dominions, or without, falsely make, forge 
 or counterfeit, or cause or procure to be falsely made, forged, or counter- 
 feited, or wittingly or knowingly act or assist in the false making, forg- 
 ing, or counterfeiting, any pass or passes for any ship or ships whatso- 
 ever, commonly called a Mediterranean pass or Mediterranean passes, or 
 shall counterfeit the seal of the said office, or the hand or hands of the 
 Lord High Admiral of Great Britain and Ireland for the time being, or 
 of any commissioner or commissioners for executing the said office for 
 the time being, to any such pass or passes, or shall alter or erase any 
 true and authentic pass or passes issued or made out by the Lord High 
 Admiral of Great Britain and Ireland, or the commissioners for exe- 
 cuting the said office for the time being, or shall utter or publish as 
 true any such false, forged, counterfeited, altered, or erased pass or 
 passes, knowing the same to be false, forged, counterfeited, altered, or 
 erased, all and every such person or persons, being in due form of law 
 convicted of any of the offences aforesaid in any proper court of Great 
 Britain, Ireland, or any of his majesty's plantations beyond the seas, 
 where such offence shall be committed respectively, shall be adjudged 
 guilty of felony, and shall suffer death as in the cases of felony, without 
 benefit of clergy. (g) By the second section it is provided, that such 
 offences committed in any country or place out of Great Britain, either 
 within or without his majesty's dominions, may be inquired of, &c, in 
 any county of Great Britain, by virtue of the king's commission of oyer 
 and terminer and gaol delivery, or before any court or judiciary in Scot- 
 land, &c. 
 *484 The 5 Geo. 4, c. 113, entitled "An act to amend and consolidate the 
 5 Geo. 4, c. laws relating to the abolition of the slave trade," enacts, by sec. 10, 
 Forging, "^ at if an y person shall wilfully and fraudulently forge or Counter- 
 Ac, certifi- feit any certificate, certificate of valuation, sentence or decree of con- 
 relatin/t'o demnation or restitution, copy of sentence or decree of condemnation or 
 the slave restitution, or any receipt, (such receipt being required by this act,) or 
 trade. anv p ar ^ f gue ] 1 certificate, certificate of valuation, sentence or decree 
 of condemnation or restitution, copy of sentence or decree of condem- 
 nation or restitution, or receipt as aforesaid ; or shall knowingly and 
 wilfully utter or publish the same, knowing it to be forged or counter- 
 feited, with intent to defraud his majesty, his heirs or successors, or any 
 other person or persons whatsoever, or any body politic or corporate : 
 then and in every such case the person or persons so offending, and 
 their procurers, counsellors, aiders and abettors, shall be and are hereby 
 declared to be felons, and shall be transported beyond seas for a 
 term not exceeding fourteen years, or shall be confined and kept to hard 
 labour for a term not exceeding five years, nor less than three years, at 
 the discretion of the court before whom such offender or offenders shall 
 be tried and convicted.'Vr) 
 5 & 6 Wm. The 5 & 6 "Win. 4, c. 45, entitled, "An act to carry into further ex- 
 12.°' Fore- ecut i° n tne provisions of an act passed in the third and fourth years of 
 ingre- his present majesty, for compensation to owners of slaves upon the 
 
 (q) This section not being repealed by the 1 Wm. 4, c. 66, and the offences therein con- 
 tained not being made capital by that act, such offences are now punishable (under the 1 
 Wm. 4, c. 66, ss. 1 and 26, and the 1 Vict. c. 90, s. 5,) in the manner pointed out in note (A), 
 ante, p. 415. As to principals in the second degree and accessories, see the 1 Wm. 4, c. 60, 
 s. 25, and 1 Vict. c. 90, s. 5, ante, p. 410. 
 
 (r) This provision seems incidentally repealed by the 3 & -i Wm. 4. c. 73, which abolishes 
 slavery in the British colonies.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 484 
 
 abolition of slavery," by sec. 12, enacts, that " if any person or persons ceipts,cer- 
 shall forge or counterfeit, or cause or procure to be forged or counter- ^c^undej. 
 feited, or stall willingly act or assist in tbe forging or counterfeiting;, any the acts 
 receipt or receipts for tbe wbole of or any part or parts of tbe contribu- ;°™ boUstl - 
 tions towards the said sum of fifteen millions, either with or without tbe very. 
 name or names of any person or persons being inserted therein as the 
 contributor or contributors thereto, payer or payers thereof, or of any 
 part or parts thereof, or any certificate or other instrument to be issued 
 by the commissioners for the reduction of the national debt, or shall 
 alter any number, figure, or word therein, or utter or publish as true any 
 such false, forged, counterfeited, or altered receipt or receipts, certificate 
 or certificates, instrument or instruments, with intent to defraud the 
 governor and company of the Bank of England, or the commissioners 
 for the reduction of the national debt, or any body politic or corporate, 
 or any person or persons whatsoever, every such person or persons so 
 forging or counterfeiting, or causing or procuring to be forged or coun- 
 terfeited, or willingly acting or assisting in the forging or counterfeiting, 
 or altering, uttering, or publishing as aforesaid, being thereof convicted 
 in due form of law, shall be adjudged guilty of felony, and shall suffer 
 death as a felon without benefit of clergy.' Vs) 
 
 The 6 Geo. 4, c. 78, s. 25, enacts, "that if any person shall know- Forging, 
 ingly or wilfully forge or counterfeit, interline, erase or alter, or procure &c '> 9 ua " 
 to be forged or counterfeited, interlined, erased or altered, any certificate certificates. 
 directed or required to be granted by any order of his majesty, his heirs 6 Ge0 - 4 > c * 
 or successors, in council, now in force or hereafter to be made, touching 
 quarantine, or shall publish any such forged *or counterfeited, interlined, *485 
 erased, or altered certificate, knowing the same to be forged or counter- 
 feited, interlined, erased or altered, or shall knowingly and wilfully utter 
 and publish any such certificate, with intent to obtain tbe effect of a true 
 certificate to be given thereto, knowing the contents of such certificate 
 to be false, be or she shall be guilty of felony."(<) 
 
 The 12 Geo. 1, c. 32, which was passed for the better securing the Forging 
 moneys and effects of the suitors of the Court of Chancery, enacts by doc, jments 
 
 t\ n n ■ relating to 
 
 sec. 9, " that it any person or persons shall forge or counterfeit, or pro- the rno- 
 cure to be forged or counterfeited, or willingly act or assist in the forging m „ e y s .> &c -> 
 
 . ? . of suitors 
 
 or counterfeiting the name or hand of the said accountant-general, the in chance- 
 said registrar, tbe said clerk of the report-office, or any of the cashiers of r Y> 12 Ge0 - 
 the said governor and company of the Bank of England, to any certifi- ,c ' ' 
 cate, report, entry, indorsement, declaration of trust, note, direction, 
 authority, instrument, or writing whatsoever, for or in order to the 
 receiving or obtaining any the money or effects of any of the suitors of 
 the said Court of Chancery, or shall forge or counterfeit, or procure to 
 be forged or counterfeited, or wilfully act or assist in forging or coun- 
 terfeiting any certificate, report, entry, indorsement, declaration of trust, 
 note, direction, authority, instrument or writing in form of a certificate, 
 report, entry, indorsement, declaration of trust, note, direction, autho- 
 
 (*) The present punishment of these offences is regulated by the 1 Vict. c. 84, ss. 1 and 
 3, ante, p. 413 ; neither 5 & 6 Wm. 4, c. 45, nor the 1 Vict. c. 84, makes any provision for 
 the punishment of accessories after the fact ; they are therefore punishable (under the 7 & 
 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) in the manner stated in note (u), 
 ante, p. 448. 
 
 (t) As no punishment is expressly pointed out by the act either for principals or accesso- 
 ries, they are all punishable (under the 1 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. £0, 
 8. 5,) in the manner pointed out in note (w), ante, p. 448.
 
 485 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IY. 
 
 rity, instrument or writing, made by such accountant-general, registrar, 
 
 clerk of the report-office, or any of the cashiers of the said governor and 
 
 company of the Bank of England, or shall utter or publish any such, 
 
 knowing the same to be forged or countex-feited, with intent to defraud 
 
 any person whatsoever;" then every such person so offending shall be 
 
 adjudged to be guilty of felony without benefit of clergy."(M) 
 
 Gibson's In a case upon this statute the prisoner was indicted for forging a 
 
 case ^ writing purporting to be an office-copy of the report of the accomptant- 
 
 writingt general of money being paid into tbe bank pursuant to an order of 
 
 purporting Chancery, and also an office-copy of a certificate of one of the cashiers 
 
 office copy °f th e bank, of the payment of the money into the bank. The second 
 
 of a report count was for publishing the same, knowing them to be forged, with 
 
 Luntant- intent to defraud, &c. And the third and fourth counts were, the one for 
 
 general, of forging, the other for publishing a writing in form of a writing pur- 
 
 in^Daid G " P or t in g to be an office-copy of the certificate of the accomptant-general, 
 
 *48Q and an office-copy of the receipt of the cashier of the *bank. There 
 
 into the were other counts in the indictment, of which the defendant was ac- 
 
 bankjand quitted. The certificate and receipt were set out verbatim in all the 
 
 ulso (Ol of— 
 
 fee copy o/counts, and the offence was laid to be done with intent to defraud Wil- 
 
 a certificate ]j am Hunt. Upon the trial a special verdict was found, which was 
 
 he cashiers afterwards argued before Lord Mansfield and nine of the other judges. 
 
 of the bank, After the argument, Lord Mansfield observed, that the verdict left but 
 
 the 12 Geo one c l ues tion to consider, namely, whether the offence was within the 12 
 
 l, c. 32, s. Geo. 1, c. 32, s. 9, and said that if they had any doubts, the judges 
 
 would appoint it to be argued again the next term ; and therefore their 
 
 lordships deferred giving their opinion. But, in a subsequent term, 
 
 eleven of the judges met at Serjeants' Inn; and they were of opinion 
 
 that the indictment and special verdict was sufficient and needed no 
 
 amendment; and that the case was within the statute. (v} 
 
 l Wm. 4, c. The 1 Win. 4, c. 66, which partially repeals the 4 Geo. 4, c. 76,(?e) 
 
 (u) Mr. Lonsdale (St. Cr. L. 68.) observes that the language in which these instruments 
 are described appears to be sufficiently comprehensive to include "warrants or orders for 
 the payment of money" within the 1 Wm. 4, c. 66, s. 4, and to that extent the forgery of 
 those instruments (the same having been a capital offence at the time of the passing of the 
 last mentioned act,) is punishable under the 1 Yict. c. 84, ss. 2 & 3, (ante, p. 413). It is 
 nowise material, however, as regards the extent of the punishment, whether such forgery be 
 punishable under the last mentioned act, or under the 1 Wm. 4, c. 66, ss. 1 and 26, and the 
 1 Vict. c. 90, s. 5, (which is at all events, as having been an offence punishable with death 
 at the time of the passing of the 1 Wm. 4, c. 66, and not made so punishable by that act) 
 the punishment being the same in both cases. With respect to the forgery of the above 
 mentioned instruments generally, (that offence not having been made punishable with death 
 by the 1 Wm. 4, c. 66, although previously so punishable, and the 12 Geo. 1, c. 32, s. 9, not 
 having been repealed by the 1 Wm. 4, c. 66,) persons convicted thereof are liable under the 
 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 Yict. c. 90, s. 5, to the punishment pointed out in 
 note (A), ante,]?. 415. As to the punishment of principals in the second degree and accesso- 
 ries, see ante, p. 410. 
 
 (w) Gibson's case, 0. B. 1766, Hil. T. 1769, 1 Leach, 61. 2 East. P. C. c. 19, s. 22, p. 899, 
 in which last authority the special verdict is fully stated, and the arguments of counsel 
 given at considerable length, for the reason that the particular grounds on which the case 
 was decided are not declared in the note. The prisoner was executed, 1 Leach, 63. 
 
 (ic) The 1 Wm. 4, c. 66, repeals so much of the 4 Geo. 4, c. 76, " as relates to any person 
 who shall knowingly and wilfully insert in the register book any false entry of any matter 
 relating to any marriage, or shall falsely make, alter, forge, or counterfeit any such entry in 
 the register or any license of marriage, or shall utter or publish as true any false, altered, 
 forged [sic in the statute], or counterfeited register of marriage or a copy thereof, or any 
 false, altered, forged, or counterfeited license of marriage, knowing such register or license 
 of marriage respectively to be false, altered, forged, or counterfeited, or shall wilfully destroy 
 any register book of marriages or any part thereof, or shall cause or procure, or assist in 
 the commission of any of the said several offences."
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 48G 
 
 by sec. 20 enacts, " that if any person shall knowingly and wilfully in- 66, s. 20. 
 sert, or cause or permit to be inserted, in any register of baptisms, mar- a ny 6 f a igf 
 riages, or burials, which hath been or shall be made or kept by the rec- entry iu 
 tor, vicar, curate, or officiating minister of any parish, district-parish, ^. y f e ^ S " 
 or chapelry in England, any false entry of any matter relating to any tisms, mar- 
 baptism, marriage or burial ; or shall forge or alter in any such register "ages, 
 any entry of any matter relating to any baptism, marriage or burial ; or forging or 
 shall utter any writing as and for a copy of an entry in any such regis- altering 
 ter of any matter relating to any baptism, marriage, or burial, knowing entry U &c. 
 such writing to be false, forged, or altered; or if any person shall utter 
 any entry in any such register of any matter relating to any baptism, 
 marriage, or burial, knowing such entry to be false, forged, or altered, 
 or shall utter any copy of such entry, knowing such to be false, forged, 
 or altered, or shall wilfully destroy, deface, or injure, or cause or per- 
 mit to be destroyed, defaced or injured, any such register or any part 
 thereof; or shall forge, or utter, or shall utter, knowing the same to be 
 forged or altered, any license of marriage : every such offender shall be 
 guilty of felony, and being convicted thereof, shall be liable at the dis- 
 cretion of the court, to be transported beyond the seas for life or for any 
 term not less than seven years, or to be imprisoned for any term not ex- 
 ceeding four years, nor less than two years. "(x\ 
 
 Sec. 21 provides and enacts, " that no rector, vicar, curate, or *offi- *487 
 ciating minister of any parish, district-parish, or chapelry, who shall Sec - 21 - 
 discover any error in the form or substance of the entry in the register no tiiableti> 
 of any baptism, marriage, or burial respectively by him solemnized, any 
 shall be liable to any of the penalties herein mentioned if he shall, with- j^"^^^ 1 
 in one calendar month after the discovery of such error, in the presence in the mode 
 of the parent or parents of the child baptized, or of the parties married, P re ?° ri " ed > 
 or in the presence of two persons who shall have attended at any burial, errors in 
 or in the case of the death or absence of the respective parties afore- the re S ls - 
 said, then in the presence of the churchwardens or chapel wardens, cor- 
 rect the entry which shall have been found erroneous, according to the 
 truth of the case, by entry in the margin of the register wherein such 
 erroneous entry shall have been made, without any alteration or oblit- 
 eration of the original entry, and shall sign such entry in the margin, 
 and add to such signature the day of the month and the year when 
 such correction shall be made ; and such correction and signature shall 
 be attested by the parties in whose presence the same are directed to be 
 made as aforesaid ; provided also, that in the copy of the register which 
 shall be transmitted to the registrar of the diocese, the said rector, 
 vicar, curate, or officiating minister shall certify the corrections so made 
 by him as aforesaid." 
 
 Sec. 22, reciting that " copies of the registers of baptisms, marriages, Inserting 
 
 and burials, such copies being signed and verified bv the written decla- 1 ".a n . Vl .'°r i . v 
 , . ° ° ~. . . . . ofaregister 
 
 ration of the rector, vicar, curate, or officiating minister of every parish, of bap- 
 
 district-parish, and chapelry in England where the ceremonies of bap- tisms .> 
 
 . . , marriages 
 
 tism, marriage, and burial may lawfully be performed, are directed by or burials, 
 
 (x) As to the principals in the second degree and accessories, and hard labour and soli- 
 tary confinement, see ante, p. 410. Mr. Lonsdale (St. Cr.L. 105,) observes that the above en- 
 actment appears to be incidentally repealed by sec. 43 of the 6 & 7 Wm. 4, c. 8G, (post, p. 
 487.) so far as relates to the falsifying or destroying marriage register books. With respect 
 to registers of baptisms and burials it is still in force, sec. 49 of the 6 & 7 Wm. 4, c. 8G, pro- 
 viding that nothing therein contained shall affect the registration of baptisms or burials as 
 then by law established.
 
 487 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 transmit- law to be made and transmitted to the registrar of the diocese within 
 registrar which such parish, district-parish, or chapelry may be situated," enacts, 
 any false " that if any person shall knowingly and wilfully insert, or cause or 
 entry, j>r permit t foe inserted, in any copy of any register so directed to be trans- 
 verifiytng mitted as aforesaid, any false entry of any matter relating to any bap- 
 any copy ti sm , marriage, or burial, or shall forge or alter, or shall utter knowing 
 to be false, the same to be forged or altered, any copy of any register so directed 
 to be transmitted as aforesaid, or shall knowingly or wilfully sign or 
 verify any copy of any register so directed to be transmitted as afore- 
 said, which copy shall be false in any part thereof, knowing the same 
 to be false, every such offender shall be guilty of felony, and being 
 convicted thereof, shall be liable, at the discretion of the court, to be 
 transported beyond the seas for the term of seven years, or to be 
 imprisoned for any term not exceeding two years, nor less than one 
 year."(y) 
 Forging The 6 & 7 Wm, 4, c. 86, entitled » An act for registering births, 
 
 registers deaths, an( j marriages, in England," by sec. 43 enacts, 'that every 
 the 6 & 7 person who shall wilfully destroy or injure, or cause to be destroyed or 
 Wm. 4, c. i n j ur ed, any such register-book, or any part or certified copy of any 
 for regis- part thereof, or shall falsely make or counterfeit, or cause to be falsely 
 tering made or counterfeited, any part of any such register-book or certified 
 deaths' and eo VJ thereof, or shall wilfully insert or cause to be inserted in any 
 marriages, register-book or certified copy thereof any false entry of any birth, 
 *488 death, or marriage, or shall wilfully give any false certificate, *or 
 shall certify any writing to be a copy or extract of any register-book, 
 knowing the same register to be false in any part thereof, or shall 
 forge or counterfeit the seal of the register office, shall be guilty of 
 felony, "(z) 
 6 & 7 Wm. By sec. 44, " no person charged with the duty of registering any birth 
 4^ C Acci death, or niarriage, who shall discover any error to have been cornmit- 
 dental er- ted in the form or substance of any such entry, shall be therefore liable 
 
 rors may be to an „ f ^ e penalties aforesaid if within one calendar month next after 
 corrected. . . « 
 
 the discovery of such error, in the presence of the parent of the child 
 
 whose birth may have been so registered, or of the parties married, or 
 of two persons attending upon any person in his or her last illness 
 whose death may have been so registered, or in case of the death or 
 absence of the respective parties aforesaid, then in the presence of the 
 superintendent registrar, and of two other credible witnesses who shall 
 respectively attest the same, he shall correct the erroneous entry, accord- 
 ing to the truth of the case, by entry in the margin, without any altera- 
 tion of the original entry, and shall sign the marginal entry, and add 
 thereunto the day of the month and year when such correction shall be 
 made ; provided also, that in the case of a marriage register he shall 
 make the like marginal entry, attested in like manner in the duplicate 
 marriage register-book to be made by him as aforesaid, and in every 
 case shall make the like alteration in the certified copy of the register- 
 book to be made by him as aforesaid, or in case such certified copy 
 shall have been already made, provided he shall make and deliver in 
 
 (>/) Mr. Lonsdale (St. Cr. L. 184,) makes similar observations upon this section to those 
 mentioned in note (x), ante, p. 486. 
 
 (z) As no punishment is expressly specified for this offence, it is punishable (under the 
 & 8 Geo. 4, c. 28, ss. 8 & 9, and the 4 Vict. c. 90, s. 5.) in the manner stated in note 
 ante, p. 448, and the principals in the second degree and accessories arc in this instance pun- 
 ishable in the same manner as the principals in the first degree. 

 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 488 
 
 like manner a separate certified copy of the original erroneous entry, 
 and of the marginal correction therein made." 
 
 The 6 & 7 Wm. 4, c. 85, entitled, "An act for marriages in England," 6 & 1 Wm. 
 by sec. 38, enacts, that " every person who shall knowingly and wilfully 4 > c - |?> s - 
 make any false declaration or sign any false notice or certificate required i n g faJ| 
 by this act, for the purpose of procuring any marriage, and every person notices and 
 who shall forbid the issue of any superintendent registrar's certificate f" ^j. es 
 by falsely representing himself or herself to be a person whose consent riage. 
 to such marriage is required by law, knowing such representation to be 
 false, shall suffer the penalties of perjury. "(a) 
 
 The 3 &4 Vict. c. 92, entitled "An act for enabling courts of justice Forging 
 to admit non-parochial registers as evidence of births, or baptisms, jg g } lst ? t rS j 
 deaths, or burials, or marriages," by sec. 8 enacts, that "every person under the 
 who shall wilfully destroy or injure, or cause to be destroyed or injured, 3 q„ 4 Vict ' 
 any register or record of birth or baptism, naming, or dedication, death, 
 or burial, or marriage, which shall be deposited with the registrar- 
 general by virtue of this act, or any part thereof, or shall falsely make 
 or counterfeit, or cause to be falsely made or counterfeited, any part of 
 any such register or record, or shall wilfully insert or cause to be in- 
 serted in any of such registers or records any false entry of any birth or 
 baptism, naming, or dedication, death, or burial, or marriage, or shall 
 wilfully give any *false certificate, or shall certify any writing to be an *489 
 exact form of any register or record, knowing the same register or 
 record to be false in any part thereof, or shall forge or counterfeit the 
 seal of the said office, shall be guilty of felony." (6) 
 
 The statutes authorizing government to raise money by way of an- 
 nuities, as the 29 Geo. 3, c. 41, the 48 Geo. 3, c. 142, and the 49 Geo. 
 3, c. 64, usually contains clauses making it a capital offence to forge, 
 &c, any register, certificate, affidavit, &c, therein mentioned, or to 
 personate any true nominee. 
 
 The 10 Geo. 4, c. 24, entitled "An act to enable the commissioners 40 Geo. 4, 
 for the reduction of the national debt to errant life annuities, and an-£- 21,8.41. 
 
 . For^m * 
 
 nuities for terms of years," by sec. 41 enacts, that "if any person or registers, 
 persons shall forge, counterfeit or alter, or shall cause or procure to be certificates, 
 forged, counterfeited, or altered, or shall knowingly or wilfully act or o^annuT- 
 assist in the forging, counterfeiting, or altering any register or registers ties, &c, 
 of the birth, or baptism, or death, or burial of any person or persons to 8 ^"*^ y 
 be appointed a nominee or nominees under the provisions of this act, missioners 
 or any copy or certificate of any such register, or the name or names of ^ or J;! ie re " 
 any witness or witnesses to any such certificate, or any affidavit or affir- national 
 mation required to be taken for any of the purposes of this act, or any detlt - 
 certificate of any justice of the peace or magistrate, or of any officer 
 acting under the said commissioners for the reduction of the national 
 debt, of any such affidavit or affirmation having been taken before him, 
 or any certificate of any governor or person acting as such, or minister, 
 or consul, or chief magistrate of any province, town, or place, or other 
 person authorized by this act to grant any certificate of the life or death 
 of any nominee; or shall forge, counterfeit, or alter, or shall cause or 
 
 (a) For this punishment, see the Chapter on Perjury, post. 
 
 (b) As this is a felony for which the 3 & 4 Vict. c. 92, provides no express punishment, the 
 principals in the first degree are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and 
 the 1 Vict. c. 90, s. 5,) in the manner stated in note (u), ante, p. 448; and the principals in 
 the second degree and the accessories are in this instance punishable in the same manner as 
 the principals in the first degree.
 
 489 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 procure to be forged, counterfeited, or altered, or shall knowingly or 
 wilfully act or assist in the forging, counterfeiting or altering any cer- 
 tificate or certificates of any officer of the coinuiissioners for the reduc- 
 tion of the national debt, or of any cashier or clerk of the Bank of 
 England, or the name or names of any person or persons in or to any 
 transfer of any bank annuities or long annuities, or in or to any certifi- 
 cate or other instrument for the payment of money for the purchase of 
 any annuity under the provisions of this act, or in or to any transfer or 
 acceptance of any such annuity in the books of the governor and com- 
 pany of the Bank of England, or in or to any receipt or discharge for 
 any such annuity, or in or to any receipt or discharge for any payment 
 or payments due or to become due thereon, or in or to any letter of 
 attorney or other authority or instrument to authorize, or purporting to 
 authorize the transfer or acceptance of any bank annuities or long an- 
 nuities, or any life annuity, or any annuity for years of whatsoever kind, 
 under the provisions of this act, or authorizing or purporting to autho- 
 rize the receipt of any life annuity, or any annuity for years of whatso- 
 ever kind, granted under this act, or any payment or payments due or 
 to become due thereon ; or if any person or persons shall wilfully, falsely 
 and deceitfully personate any true and real nominee or nominees, or shall 
 *490 wilfully *utter or deliver or produce to any person or persons acting 
 under the authority of this act, any such forged register or copy of 
 register, or any such forged certificate, affidavit or affirmation, knowing 
 the same to be forged, counterfeited or altered, with intent to defraud 
 his majesty, his heirs and successors, or with intent to defraud any 
 person or persons whomsover, then and in every such case all and every 
 persons and person so offending, and being lawfully convicted thereof, 
 shall be adjudged guilty of felony, and shall suffer death. "(c) 
 2 & 3 Wm. The 2 & 3 Wni. 4, c. 59, entitled "An act to transfer the management 
 4, c. 59, s. £ cer t a } n annuities on lives from the receipt of his majesty's exchequer 
 ing decla- to the management of the commissioners for the reduction of the na- 
 rations, tional debt/' &c, by sec. 19 enacts, that "if any person or persons 
 transfers ' shall forge, counterfeit or alter, or shall cause or procure to be forged, 
 of annui- counterfeited or altered, or shall knowingly or wilfully act or assist in 
 the forging, counterfeiting, or altering any declaration, warrant, order, 
 or other instrument, or any affidavit or affirmation required to be made 
 by this act, or by the commissioners for the reduction of the national 
 debt, under any of the provisions of this act, or under any authority 
 given to them for that purpose ; or shall forge, counterfeit or alter, or 
 shall cause or procure to be forged, counterfeited or altered, or shall 
 knowingly or wilfully act or assist in the forging, counterfeiting or alter- 
 ing any certificate or order of any officer of the commissioners for the 
 reduction of the national debt, or the name or names of any person or 
 persons in or to any transfer of any annuity, or in or to any certificate, 
 order, warrant, or other instrument for the payment of money for the 
 purchase of any annuity under the provisions of this act, or in or to any 
 transfer or acceptance of any such annuity in the books of the commis- 
 
 (c) Mr. Lonsdale (St. Cr. L. 94,) observes that several branches of the above enactment ap- 
 pear to be superseded by the 1 Wm. 4, c. G6, ss. 6, 10, 20. With respect to the remaining 
 branches, the offences therein described not having been repealed by the 1 Wm. 4, c. 66, and 
 that act not having made them punishable with death, although previously so punishable, 
 persons convicted thereof are liable (under the 1 Wm. 4, c. 66, ss. 1 and 26, and the 1 Vict. 
 c. 90, s. 5,) to the punishment stated in note (h), ante, p. 415. As to the punishment of prin- 
 cipals in the second degree and accessories, see ante, p. 410.
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 490 
 
 sioners for the reduction of the national debt, or in or to any receipt or 
 discharge for any such annuity, or in or to any receipt or discharge for 
 any payment or payments due or to become due thereon, or in or to 
 any letter of attorney or other authority or instrument to authorize, or 
 purporting to authorize the transfer or acceptance of any annuities or 
 any life annuity of whatsoever kind, or authorizing, or purporting to 
 authorize the receipt of any life annuity of whatsoever kind, granted 
 under any of the said recited acts or this act, or any payment or pay- 
 ments due or to become due thereon ; or if any person or persons shall 
 wilfully, falsely or deceitfully personate any true and real nominee or 
 nominees, or shall wilfully utter or deliver, or produce to any person or 
 persons acting under the authority of this act any forged register or 
 copy of register of any birth, baptism, or marriage, or any forged de- 
 claration, affidavit, or affirmation, knowing the same to be forged, coun- 
 terfeited or altered, with intent to defraud his majesty, his heirs and 
 successors, or with intent to defraud any person or persons whomso- 
 ever ; then and in every such case all and every person and ^persons *491 
 so offending, and being lawfully convicted thereof, shall be adjudged 
 guilty of felony, and suffer death. "(d\ 
 
 By the 2 & 3 Anne, c. 4, which was passed for the public register- Forging 
 ing of all deeds, conveyances and wills of any honors, manors, lands, ^ me ™°~ 
 tenements or hereditaments, within the West Riding of the county of cate, &c, 
 York, it is directed that a memorial of such deeds, &c, be registered of deeds > 
 
 . T . wills &C 
 
 in a certain manner at Wakefield, and that the registrar shall indorse a f ^d, 
 certificate of such registry on every such deed, &c. ; and the nineteenth &0 -> regis- 
 section enacts, " that if any person or persons shall at any time forge West and ° 
 or counterfeit any such memorial or certificate as are hereinbefore men- North Rid- 
 tioned and directed, and be thereof lawfully convicted, such person or Y<frk°h - 
 persons shall incur and be liable to such pains and penalties, as in and or in Mid- 
 by the 5 Eliz., c. 14,(e) are imposed upon persons for forging or pub- dl <j sex ; 2& 
 lishing of false deeds, charters, or writings sealed, court rolls, or wills, 4. 5 & 6 
 whereby the freehold or inheritance of any person or persons of, in or Anne, c. 18. 
 to any lands, tenements, or hereditaments, shall or may be molested, 20. 8 Geo. 
 troubled, or charged." The 5 & 6 Anne, c. 18, after directing that all 2, c. 6. 
 bargains and sales of any manors, lands, &c, within the West Riding 
 of the county of York, shall be registered at Wakefield, and indorsed 
 by the registrar ; that the inrolment of every such deed shall be deemed 
 a memorial pursuant to the 2 & 3 Anne, c. 4 ; and that no judgment 
 statute, &c, shall bind any manors, lands, &c, but only from the time 
 a memorial thereof shall be registered in the office ; enacts, by section 
 8, " that if any person or persons shall at any time forge or counterfeit 
 any entry of the acknowledgment of any bargainer in any such bargain 
 and sale as aforesaid, or any such memorial, certificate, or indorsement, 
 as are herein mentioned or directed, and be thereof lawfully convicted," 
 such person or persons shall incur the pains and penalties of the same 
 statute, 5 Eliz., c. 14. "(e) The provisions of the 2 & 3 Anne, and 5 & 
 6 Anne, were extended by the 8 Geo. 2, c. 6, s. 31, to the North Riding 
 
 (d) The 1 Vict. c. 84, repeals the punishment of death imposed by this seel ion, and the 
 present punishment is provided by the 1 Vict. c. 84, ss. 1 and 3, ante, p. 413. Neither the 
 2 & 3 Win. 4, c. 59, nor the 1 Vict. c. 84, contains any provision for the punishment of acces- 
 sories ofter the fact, they are therefore punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and ',). 
 and the 1 Vict. c. 90, s. 5,) in the manner stated in note (w), ante, p. 448. 
 
 (c) See next note. 
 
 Vol. 11.— 32
 
 491 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 of the county of York. And the 7 Anne, c. 20, which was passed for 
 the public registering of deeds, conveyances, wills, and other incum- 
 brances affecting any honors, manors, lands, &c, within the county of 
 Middlesex, after directing as to the memorials, certificates, &c, enacts, 
 (s. 15,) " that if any person or persons shall at any time forge or coun- 
 terfeit any entry of the acknowledgment of any such memorial, certifi- 
 cate or indorsement, as is herein mentioned or directed, and be thereof 
 lawfully convicted," such person or persons shall incur the pains and 
 penalties of the same statute, 5 Eliz. c. 14. (e) 
 *492 *The 54 Geo. 3, c. 133, entitled " An act for better enabling the 
 
 Forging commissioners of stamps to make allowances for spoiled stamps on poli- 
 &c., dec j. a - cies of insurance in Great Britain, and for preventing frauds relating 
 return of thereto," enacts, by sec. 10, " that if any person shall forge or counter- 
 the premi- f e j^ r cause or procure to be forged or counterfeited, or willingly aid 
 policy of or assist in the forging or counterfeiting of the name or handwriting of 
 insurance, any underwriter on any policy of insurance, to any declaration of any 
 e. 133° s. ' re t urn °f tne premium on such policy, or any part thereof, or shall 
 10. fraudulently alter, or cause or procure to be altered, or aid or assist in 
 
 altering any such declaration, after the same shall have been signed by 
 any underwriter, or shall utter or make use of any such declaration, 
 knowing the same to have been fraudulently altered, or the name or 
 handwriting of any underwriter to have been forged or counterfeited 
 thereon, for the purpose of obtaining any such allowance as aforesaid, 
 and with intent to defraud his majesty, his heirs, &c, every person so 
 offending shall, for the first offence, forfeit the sum of five hundred 
 pounds, to be paid to his majesty, his heirs or successors, and to be re- 
 covered in the same manner as other penalties imposed by any of the 
 laws now in force relating to stamp duties ; and for the second and 
 every other offence shall be adjudged guilty of felony, and shall be 
 transported for seven years to parts beyond the seas."(/) All the 
 powers, provisions, pains, penalties, &c, of this act are extended by the 
 54 Geo. 3, c. 144, s. 11, to the contracts of insurance, and to the 
 allowance of stamp duty in the cases therein specified. 
 10 Geo. 4, The 10 Geo. 4, c. 50, entitled " An act to consolidate and amend the 
 124 For" ^ aws re ^ a ^i Q o to the management of his majesty's woods, forests, parks, 
 ing the ° and chases, &c," by sec. 124 enacts, that " if any person or perons shall 
 names of knowingly and wilfully forge or counterfeit, or knowingly and wilfully 
 missioners a °t or assist in forging or counterfeiting, the name or handwriting of the 
 "' Tf ° ds * or ^ high treasurer or of the commissioners of his majesty's treasury 
 for the time being, or of any or either of them, to any power of attorney 
 for the sale and transfer of any stock, or the name or handwriting of the 
 said commissioners for the time being of his majesty's woods, forests, 
 
 (e) The 1 Win. 4, c. 66, s. 23, recites and repeals the 5 Eliz. c. 14, and the punishment of 
 any offence subjected by any act to the same pains and penalties as are imposed by the said 
 act of Elizabeth (under the 1 fm. 4 c. 66, ss. 23 and 26, ante, p. 409, and the 1 Vict. c. 90, 
 3. 5, ante, p. 413, (is transportation for any term not exceeding fourteen nor less than seven 
 years, or imprisonment for any term not exceeding three nor less' than one year, with or 
 without hard labour, in the common gaol or house of correction, and the offender may be 
 ordered to be kept in solitary confinement for any portion or portions of such imprisonment 
 not exceeding one month at a time, o.r three months in the space of one year, as to the court 
 in its discretion shall seem meet. As to principals in the second degree and accessories, see 
 ante, p. 410. 
 
 (/) This act contains no provision for the punishment of accessories after the fact ; they 
 are therefore punishable (under the 1 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 
 5,) in the manner stated in note (u), ante, p. 448.
 
 
 CHAP. XXXVIII.] SECURITIES AND DOCUMENTS. 492 
 
 and land revenues, (#) or of any or either of them, to any draft, instru- 
 ment, or writing whatsoever, for or iu order to the receiving or obtaining 
 any of the money in the hands or custody of the governor and company 
 of the Bank of England, or of the Bank of Ireland, or of any private 
 banker, on account of the said commissioners, or shall forge or counter- 
 feit, or cause or procure to be forged or counterfeited, or knowingly and 
 wilfully act or assist in the forging or counterfeiting, any draft, instrument, 
 or writing in form of a draft, made by the said commissioners, or any 
 or either of them, or shall utter or publish any such, knowing the same 
 to be forged or counterfeited, with an intent to defraud the said gover- 
 nor and company of the Bank of England or of the Bank of Ireland, 
 or any private banker, or any body corporate, or any person or persons 
 whomsoever, every person or persons so offending, being thereof *law- *493 
 fully convicted, shall be and is and are hereby declared and adjudged to 
 be guilty of felony."(/«) 
 
 The 1 & 2 Wni. 4, c. 22, which was passed to amend the laws re- 1 & 2 Wm. 
 lating to hackney carriages, &c, in the metropolis, by section 33, enacts, ^„ 0, 2 p' s- 
 that " if any person applying for or procuring or attempting to procure curing li- 
 any license under any of the provisions of this act shall use or employ £ enses for 
 any false or fictitious name or place of abode, or other false or fictitious carriages 
 description of any person or supposed person, or shall wilfully or know- in London 
 ingly insert or cause to be inserted in any requisition for any such license, name g e 
 or in any such license, any false or fictitious name or place of abode, or 
 other false or fictitious description of any person or supposed person, or 
 shall willingly or knowingly insert or cause to be inserted in any such 
 requisition or in any such license as aforesaid, the name of any person as 
 being a proprietor or part proprietor of any hackney carriage, who shall not 
 at the time of the application for such license be in fact a proprietor or 
 part proprietor of such hackney carriage ; the person so offending shall 
 be guilty of a misdemeanor, and being convicted thereof, he shall be 
 liable to be punished by fine or imprisonment, or by both, as the court 
 shall award ; such imprisonment to be in the common gaol or house of 
 correction, and either with or without hard labour, as the court shall 
 think fit." 2&3Wm. 
 
 The 2 & 3 Wm. 4, c. 120, which consolidates the laws relating to %*£%£ 
 stage carriages and horses let for hire in Great Britain, by sec. 10, enacts, ing false 
 that " if any person applying for or procuring or attempting to procure nam ? s .i n 
 any license under this act for or in respect of any stage carriage, shall tions for 
 use or employ any false or fictitious name, or place of abode, or other licenses 
 false or fictitious description of any person or supposed person, or shall carr i a g'es. 
 
 (g) Now commissioner of her majesty's woods and forests, land revenues, works, and 
 buildings. 2 & 3 Wm. 4, c. 1. 
 
 (h) Mr. Lonsdale (St. C. L. 196,) observes, that the 10 Geo. 4, c. 50, s. 124, appears to be 
 incidentally repealed, or at all events to be superseded by the 1 Wm. 4. c. 66, s. 9, (ante, p. 
 417,) as to the forgery of any power of attorney ; and also observes that although the other 
 instruments above described appear to be warrants or orders for the payment of money within 
 the meaning of the 1 Wm. 4, c. 66, s. 4, (post, p. 495,) yet the forgery thereof not having 
 been a capital offence at the time of the passing of that act, is not now punishable under the 
 1 Vict. c. 84, ss. 2 and 3, ante, p. 413,) but persons committing the same are liable (under the 
 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,) to the punishment stated in note 
 («), ante, p. 448. The 10 Geo. 4, c. 50, contains no provision for the punishment of acces- 
 sories after the fact to any of the above offences, nor of accessories before the fact of the of- 
 fences of forging the hand-writing of the commissioners of woods, forests, &c, and uttering 
 the forged instruments above mentioned, nor the punishment of principals in the second de- 
 gree to the offence of uttering; all such offenders are therefore punishable in this instance 
 in the same manner as the principals in the first degree.
 
 493 OF THE FORGERY OF OFFICIAL PAPERS, [BOOK IV. 
 
 insert or cause to be inserted in any requisition for any such license, or 
 in any such license, any false or fictitious name or place of abode, or 
 other false or fictitious description of any person or supposed person as 
 being the proprietor or part proprietor of any stage carriage for or in 
 respect of which such license shall be applied for or procured, or shall 
 wilfully and knowingly insert or cause to be inserted in any such requi- 
 sition or in any such license as aforesaid, the name of any person as 
 being a proprietor or part proprietor of any such carriage who shall not 
 at the time of the application for such license be in fact a proprietor or 
 part proprietor of such carriage, the person so offending shall be guilty 
 of a misdemeanor, and being convicted thereof he shall be liable to 
 be punished by fine and imprisonment, or by both, as the court shall 
 *494 *award ; such imprisonment to be in the common gaol or house of cor- 
 rection, and either with or without hard labour, as the court shall think 
 fit ; and in Scotland whenever any person shall so offend he shall be 
 liable to be punished in like manner." 
 2 & 3 Wm. By sec. 32, " if any person shall forge or counterfeit, or shall cause 
 32 For S ' or P rocure to be forged, counterfeited, or resembled, any numbered plate, 
 ing stage- directed to be provided, or which shall have been provided, made, or 
 carnage nse <\^ [ n pursuance of this act or of any former act relating to the duties 
 payable in respect of stage carriages, or shall wilfully fix or place, or 
 shall cause or permit or suffer to be fixed or placed, upon any stage 
 carriage or other carriage, any such forged or counterfeited plate, or if 
 any person shall sell or exchange, or expose to sale, or utter any such 
 forged or counterfeited plate, or if any person shall knowingly and with- 
 out lawful excuse, (the proof whereof shall lie on the person accused,) 
 have or be possessed of any such forged or counterfeited plate, knowing 
 such plate to be forged or counterfeited, every person so offending, and 
 every person knowingly and wilfully aiding, abetting, or assisting any 
 person in committing any such offence as aforesaid, shall be adjudged 
 guilty of a misdemeanor, and being thereof convicted shall be liable 
 to be punished by fine or imprisonment, or by both, such imprison- 
 ment to be in the common gaol or house of correction, and either with 
 or without hard labour, as the court shall think fit, and in Scotland, when- 
 ever any person shall so offend, he shall be liable to be punished in 
 like manner; and it shall be lawful for any officer of stamp duties, or 
 for any constable or other peace officer, or any toll-gate keeper to seize 
 and take away any such plate, in order that the same may be produced 
 in evidence against such offender, or be disposed of as the commission- 
 ers of stamps shall think proper." 
 l & 2 Vict. The 1 & 2 Vict. c. 79, which was passed for the better regulation of 
 c. 79, s. 12. liackney carriages and of stage carriages, &c, in and near the metro- 
 licenses' for polis, by sec. 12 enacts, that « if any person shall forge or counterfeit, 
 hackney or shall cause or procure to be forged, counterfeited, or resembled, any 
 '^ na ° e? ' license or ticket by that act directed to be provided for the driver of a 
 hackney carriage, or for the driver or the conductor of a metropolitan 
 stage carriage, or for any waterman ; or if any person shall sell or ex- 
 change, or expose for sale, or utter any such forged or counterfeited 
 license or ticket; or if any person shall knowingly and without lawful 
 excuse, (the proof whereof shall lie on the person accused,) ha^e or be 
 possessed of such forged or counterfeited license or ticket, knowing such 
 license or ticket to be forged or counterfeited; every person so offend- 
 ing, and every person knowingly and wilfully aiding, abetting, or assist-
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 494 
 
 ing any person in committing any such offence as aforesaid, shall be 
 adjudged guilty of a misdemeanor, and being thereof convicted shall be 
 liable to be punished by fine or imprisonment, or by both, such impri- 
 sonment to be in the common goal or house of correction, and either 
 with or without hard labour, as the court shall think fit." 
 
 The offences of forging or counterfeiting any haicker's license, di- Forging, 
 rected to be granted by the 50 Geo. 3, c. 41, or the travelling with or^ 0- ',^. 
 producing or showing any such forged license for the purposes in the license, 50 
 act mentioned, are made punishable by the act (s. 18,) by a pecuniary Geo - 3> e - 
 forfeiture of 300^. ' 
 
 ♦CHAPTER THE THIRTY-NINTH. *495 
 
 OF THE FORGERY OF PRIVATE PAPERS, SECURITIES, AND DOCUMENTS. - } - 
 
 The 1 Wm. 4, c. 46, s. 3, (a) inter alia enacts, "that if any person i Wm.4, c. 
 shall forge or alter, or shall offer, utter, dispose of, or put off, knowing 6<3 > s : 3 - 
 the same to be forged or altered, any will, testament, codicil or testa- wmf^lfills, 
 mentary writing, or any bill of exchange, or any promissory note for notes, &c. 
 the payment of money, or any indorsement on or assignment of any 
 bill of exchange or promissory note for the payment of money or any 
 acceptance of any bill of exchange, or any undertaking, warrant, or 
 order for the payment of money, with intent in any of the cases afore- 
 said, to defraud any person whatsoever, every such offender shall be 
 guilty of felony, and being convicted thereof shall suffer death as a 
 felon."(6) 
 
 Sec. 4, declares and enacts, " that where by any act now in force Sec. 4. 
 any person is made liable to the punishment of death for forging; or If an y in " 
 
 o o strument 
 
 altering, or for offering, uttering, disposing of, or putting off, knowing however ' 
 the same to be forged or altered, any instrument or writing designated designated, 
 in such act by any special name or description, and such instrument km f ex- 
 or writing, however designated, is in law a will, testament, codicil, or uuaQ ge,&c. 
 testamentary writing, or a bill of exchange or a promissory note for oftuclfin- 
 the payment of money, or an indorsement on or assignment of a bill of strument, 
 exchange or promissory note for the payment of money, or an accept- ^ a -[ ^ "*" 
 ance of a bill of exchange, or an undertaking, warrant, or order for der this 
 the payment of money, within the true intent and meaning of this act, act - 
 in every such case the person forging or altering such instrument or 
 writing, or offering, uttering, disposing of, or putting off such instru- 
 
 (a) See the whole section, ante, p. 424. The words in italics were not in the former 
 acts. 
 
 (4) The present punishment (under the 1 Vict. c. 84, ss. 1, 2, 3, ante, p. 413,) is transpor- 
 tation for life or for any term not less than seven years, or imprisonment for any term not 
 exceeding four nor less than two years, with or without hard labour, in the common gaol or 
 house of correction, and the offender may be ordered to be kept in solitary confinement for 
 any portion or portions of such imprisonments, not exceeding one month at any one time, 
 and not exceeding three months in the space of any one year, as to the court in its discretion 
 shall seem meet. For the general provisions of the 1 Wm. 4, c. 66, see ante, p. 409, et seq., 
 and for the punishment of principals in the second degree and accessories, see the 1 Wm. 4, 
 c. 66, s. 25, ante, p. 410. 
 
 f {See 2 U. S. Laws, p. 1017, (Story's ed.) — "An act for the punishment of frauds com- 
 mitted on the government of the United States." Also pp. 2003, 2004, the 17th, 18th, and 
 19th sections of st. 1825, c. 2 7 G . J
 
 495 
 
 OF THE FORGERY OF PRIVATE PAPERS, 
 
 [BOOK IV. 
 
 *496 
 
 Sect. 10. 
 Forging a 
 deed, bond, 
 receipt for 
 money or 
 goods, or an 
 account- 
 able receipt 
 or an order 
 for delivery 
 of goods; 
 transporta- 
 tion for life, 
 &c. 
 
 ment or writing, knowing the same to be forged or altered, may be 
 indicted as an offender against this act, and punished with death accord- 
 ingly."^) 
 
 By sec. 10, "if any person shall forge or alter, or shall offer, utter, 
 dispose of, or put off, knowing the same to be forged or ^altered, any 
 deed, bond, or writing obligatory, or any court roll or copy of any court 
 roll relating to any copyhold or customary estate, or any acquittance or 
 receipt either for money or goods, or any accountable receipt either for 
 money or goods, or for any note, bill, or other security for payment of 
 money, or any warrant, order, or request for the delivery or transfer of 
 goods, or for the delivery of any note, bill, or other security for pay- 
 ment of money, with intent to defraud any person whatsoever, every 
 such offender shall be guilty of felony, and being convicted thereof, 
 shall be liable at the discretion of the court, to be transported beyond 
 the seas for life or for any term not less than seven years, or to be 
 imprisoned for any term not exceeding four years or less than two 
 years. "(d\ 
 
 It is to be observed, that although this act does not extend to Scot- 
 land or Ireland, yet it applies to the forging or uttering in England 
 documents purporting to be made, or actually made out of England, 
 and to the forging or uttering in England bills of exchange, promissory 
 notes, bonds, &c, purporting to be payable out of England. (e) 
 
 It was holden to be in the election of the party in the case of forging 
 deeds to lay the indictment either at common law, or upon the 5 Eliz. 
 c. 14.(/) And as this statute is repealed by the 1 Wm. 4, c. 66, and 
 had been considered, some years previously, as having nearly fallen into 
 disuse,((/) it may be deemed sufficient merely to refer in this place to 
 the books in which the cases upon the construction of it are to be found 
 collected. (/*) In one of the latest of those cases it was holden that the 
 statute did not mean that there should be a forged conveyance of the 
 very lands; but if it were any deed whereby the party might be mo- 
 lested, it was sufficient. (*') And a variance as to the description of the 
 lands was holden not to be material.^') 
 
 The more modern statutes in relation to the forgery of private papers, 
 securities, and documents, were the 2 Geo. 2, c. 25, (extended to for- 
 geries with intent to defraud any corporation by 31 Geo 2, c. 22, s. 78,) 
 the 7 Geo. 2, c. 22, (extended in like manner by 18 Geo. 3, c. 18,) the 
 43 Geo. 3, c. 130, (as to the forging of foreign bills of exchange, &c.,) 
 and the 45 Geo. 3, c. 89. But these statutes are repealed by the 1 Wm. 
 4, c. 66, s. 31. It was remarked with reference to these repealed sta- 
 tutes, that the same general rules of construction would apply equally 
 to the same instruments named in several statutes passed in pari mate- 
 
 
 Construc- 
 tion of 
 former 
 statutes. 
 
 More 
 
 modern 
 statutes. 
 
 (c) See the last note. 
 
 {(1) As to the punishment of principals in the second degree and accessories, see ante, p. 
 410. 
 
 (e) See sec. 29, and sec. 30, ante, p. 411. 
 
 (/) Obrian'S case, 2 Str. 1144. As, however, the forgery of a will is now made a felony 
 by statute, it is apprehended that it would not be competent to indict for forging a will as 
 a misdemeanor, as the misdemeanor is merged in the felony. See ante, vol. 1, p. 50, and 
 Rex v. Evans, 5 C. & P. 553, post. C. S. G. 
 
 (ff) 2 East, P. C. c, 19, s. 33, p. 919. 
 
 (k) 3 Inst. chap. 75, p. 168, et seq. 1 Hale, 682, it scq. 1 Hawk. P. C. c. 7 >, s. 12, et scq. 
 Bac. Abr. tit. Forgery, (C). 2 East, P. C. c. 19, s. 33, p. 919, et scq. 
 
 (?) Crooke's case, 2 Str. 901. 2 East, P. C. c. 19, s. 33, p. 921. Ante, p. 364. 
 
 (J) Id. ibid.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 496 
 
 rid ; and all must necessarily be governed by the same principles of the 
 common law. (A 1 ) 
 
 Upon an indictment for forging a will, the probate of that will unre- Will. 
 pealed, is not conclusive evidence of its validity, so as to be a bar to the 
 prosecution. (Z) 
 
 *Several questions have arisen as to the written instruments which *497 
 may be considered as deeds, bills of exchange, promissory notes, in- Questions 
 dorsements, &c. ; or as receipts ; or as warrants or orders for the pay- ^^^4 
 ment of money or delivery of goods. statutes. 
 
 A power of attorney has been holden to be a deed within the mean- Power of 
 ing of the 2 Geo. 2, c. 25, s. 1 (now repealed. )f And in the same case l^™ 67 1S 
 it was decided that forging a deed was within that statute, though the 
 directory provisions of subsequent statutes had directed that instruments 
 for the purpose for which the forged deed was intended should be in a 
 particular form, or should comply with certain requisites, and the forged 
 deed was not in that form, nor had been made in compliance with those 
 requisites ; for the directory provisions did not make the deed wholly 
 void in consequence of its not being in the form prescribed, and not 
 having requisites.(m) In a subsequent case it was also holden, after 
 very ingenious and learned argument, that a power of attorney to trans- 
 fer government stock, signed, sealed, and delivered, was a deed within 
 the repealed statute, 2 Geo. 2, c. 25. (?i) 
 
 It may be observed, that the question whether uttering in England a Uttering 
 promissory note of a Scotch bank, or chartered Scotch company, payable ^ i(ih -_ 
 in Scotland, is made felony by statnte,(o) appears to be set at rest by England. 
 the 1 Wm. 4, c. 66, s. 30.(p) 
 
 Upon an indictment for forging or uttering a note of the Royal Bank 
 of Scotland, it is not necessary to prove that any of the charters gave 
 the bank power to draw or issue notes, for that power is sufficiently re- 
 
 (k) 2 East, P. C. c. 19, s. 33, p. 920. 
 
 (Z) Rex v. Buttery and Macnamara, Russ. & Ry. 342. Ante, p. 346, and see ante, p. 345, 
 346, as to the cases which have been decided relative to the forgery of wills. 
 
 (m) Rex v. T. R. Lyon, Russ. k Ry. 255. 
 
 (n) Rex v. Fauntleroy, R. & M. C. C. R. 52. And see Rex v. Waite, Russ. & Ry. 505. 
 
 (0) This question was raised in Dick's case, 1 Leach, 68. 2 East, P. C. c. 19, s. 35, p. 
 925, where the prisoner was indicted for uttering a forged Scotch bank-note, and the judges 
 were divided in opinion whether such a note were within the meaning of the 2 Geo. 2, c. 
 25, and whether the uttering it in England were felony; the 2 Geo. 2, c. 25, s. 4, providing 
 that nothing in the act contained should extend to that part of Great Britain called Scot- 
 land. And also in M'Kay's case, 0. B. 1803, MS. and Russ. & Ry. 71, where the prisoner 
 was indicted for uttering a promissory note of the British linen company at Edinburgh ; and 
 the objection was taken on his behalf, that the instrument set out in the indictment, pur- 
 porting to be an undertaking for the payment of money by a chartered Scotch company, 
 only entitled the party to obtain payment in Scotland, and could not be put in suit in this 
 country, and was not within the 2 Geo. 2, c. 25, in consequence of the operation of the fourth 
 section. Dick's case, and the opinion of the court, concerning the legality of contracts, in 
 Robinson v. Bland, 2 Burr. 1078, was referred to; and, the point being submitted to the 
 consideration of the twelve judges, the prisoner was recommended for a pardon. But it has 
 been held that uttering in England a forged note, payable in Ireland only, was within the 
 forgery act prior to the 1 Wm. 4, c. 66. Rex v. Kirkwood, R. & M. C. C. R. 311. 
 
 (p) Ante, p. 411, and see Reg. v. Hannon, 2 Moo. 0. C. R. 11,j)ost, p. 534. 
 
 f {A contrary decision was made in Virginia, though the statute of that state is a tran- 
 script of st. 2 Geo. 2, c. 25. 1 Virginia Cases, 4, Commonwealth v. Proctor. 
 
 The statute of the United States, 1823, c. 166, (3 U. S. Laws, 1917, Story's ed.) " for the 
 punishment of frauds committed on the government of the U. States," includes a "power 
 of attorney," ia the enumeration of instruments which it is made penal to forge, alter or 
 counterfeit. j
 
 497 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV, 
 
 cognised by the 42 Geo. 3, c. 149, s. 16, and the 55 Geo. 3, c. 124, s. 
 
 23.(2) 
 Wilcox's In the following case it was holden that a promissory note for the 
 
 case. A payment f a guinea in cash or Bank of England note was not within 
 
 promissory * J & J J ^ 
 
 note for the the repealed statute, 2 Geo. 2, c. 25. The prisoner was tried on an m- 
 P a y me ° t of dictment charging him in the first count with forging, and in another 
 
 one guinea ° . . . . „ , o _ o> 
 
 in cash or count with uttering knowing it to be forged, a certain promissory note 
 Bank of f or ^he payment of money, the tenor of which was as follows, viz : — 
 
 note holden 
 
 not to be *Pontefract Bank, 1st April, 1807. 
 
 2 Goo. 2, c. " I promise to pay the bearer one guinea on demand here in cash or 
 25 - Bank of England note. 
 
 498 "No. O. 501. 
 
 "No. C e . 501. " For Perfect, Seaton, & Co. 
 
 Entd. J. U. " John Seaton.'* 
 
 » One Guinea." 
 
 with intent to defraud John Garside. There were two other similar 
 
 counts, charging the intent to be to defraud John Seaton, John Fox 
 
 Seaton, and Richard Seaton, the bankers. The jury found the prisoner 
 
 guilty of uttering the note, knowing it to be forged ; but the learned 
 
 judge respited the sentence, in order to take the opinion of the twelve 
 
 judges on the question, whether this was a note for the payment of 
 
 money within the repealed statute 2 Geo. 2, c. 25, the guinea being by 
 
 the terms of the note to be paid in cash or Bank of England note at the 
 
 option of the payer. And it is understood that the judges were of 
 
 the opinion that the conviction was wrong. (?•) 
 
 Chisholm's In the following case a point was made whether the instrument in 
 
 case. A question could be considered as a bill of exchange within the 2 Geo. 2, 
 
 upon the c. 25, (now repealed). The prisoner was convicted for forging a certain 
 
 commis- "bill of exchange in the following form : — 
 
 sioners of ° c 
 
 the navy 
 
 holden to « 3d Rate, Robert Gore. 
 
 5™^°' « Entered 13th day of May, 1814. 
 
 within the £ s. d. 
 
 2^Geo. 2, c. u FuI1 pay from the 13t]i day of Mayj lgl4) 
 
 to the 4th of August, 1814, V 
 
 H 
 
 " Amount of deductions, 2 17 3 
 
 "Net Pay £22 6 9 
 
 " Gentlemen, 8th day of August, 1814. 
 
 Ten days after sight, 
 " Please to pay to Mrs. Eliz th . Coall, or order, the sum of twenty-two 
 pounds six shillings and ninepence, being the net personal pay due to 
 
 (q) Rex v. M'Keay, R. & M. C. C. R. 130. 
 
 (r) Wilcock's case, cor. Le Blanc, J., Yorkshire Lent Ass. 1808, MS. And see Harrison's 
 case, 1 Leach, 180. 2 East, P. C. c. 19, s. 36, p. 926, post, p. 505, where an objection that 
 certain counts of the indictment were not within the 2 Geo. 2, c. 25, and 31 Geo. 2, c. 22. 
 s. 78, because those statutes were confined to the forgery of receipts for money or goods. 
 whereas the counts in question charged the forgery of a receipt for bank-notes, which were 
 neither money nor goods, was allowed.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 498 
 
 me, as act g . Lieutenant of his Majesty's ship Zealous, between thir- 
 teenth day of May, 1814, and fourth day of August, 1814, for value 
 received. 
 
 Robt. Gore." 
 "Approved, 
 
 «T. Boys, Captain of H. M. S. Zealous. 
 "To the Commissioners of his Majesty's Navy, 
 London." 
 
 with intent to defraud Elizabeth Coall, widow, against the statute, &c. 
 The second count of the indictment was for uttering, &c, with the like 
 intention : and the third and fourth counts were similar, *only laying *499 
 the intention to be to defraud his majesty. There were four other 
 counts framed upon the 35 Geo. c. 94, ss. 3 & 34, (s) but the counsel 
 for the prosecution had admitted that those counts could not be sup- 
 ported; and they contended that the instrument was a bill of exchange 
 within the 2 Geo. 2, c. 25. It was urged, on behalf of the prisoner, 
 that it appeared clearly that the instrument was intended to be a bill 
 under the 35 Geo. 3, c. 94, s. 3; that it was not drawn to be presented 
 for acceptance or payment by the commissioners of the navy as a bill 
 of exchange; but in order to procure an assignment of it according to 
 the fifteenth section of that statute; that it was not a bill of exchange, 
 because it was not drawn on any person bound to accept or pay it ; 
 and that the commissioners of the navy were removable at pleasure, and 
 might be changed between the drawing and presenting of the bill. On 
 the other hand it was contended that the intention with which this in- 
 strument was made was not material, and that it was not necessary to 
 constitute a bill of exchange for this purpose, that the parties on whom 
 it was drawn should be liable to accept, or even be existing persons ; 
 and that it was enough if the instrument purported to be drawn on a 
 person or persons to whom it might be presented. The learned judge 
 respited the sentence, in order that the question might be submitted to 
 the consideration of the judges, whether this instrument was properly 
 described as a bill of exchange. And the judges were of opinion that 
 the conviction was right; that the instrument set forth in the case was 
 in form a bill of exchange, and that the 35 Geo. 3, c. 94, did not pre- 
 vent its being so considered. (t) 
 
 One of the questions raised in a case which occurred about the same Maddock's 
 time appears to have been whether a false assertion in an indorsement case - As to 
 that the indorser has a procuration, without any other circumstance of ti n whe- 
 falsehood or misrepresentation would make such an indorsement a for- ther a false 
 gery within the statute. The indictment against the prisoner stated ^indorse" 
 in the first count that he had in his custody a bank bill of exchange ment, that 
 (the tenor of which was set out) dated 1st October, 1814, for payment * e h i° d ° rs * 
 of 36?. 19s. Qd. at seven days' sight to Messrs. S. Brown and Co., or procura- 
 order, accepted on said 1st October, the date of the bill. It also stated tl0 l l Wlth " 
 
 ii -i i • 1 ou ^ an y 
 
 that there were two indorsements upon the bill; the first by the said other cir- 
 Samuel Brown and Co. to Joseph Seymour or order, and the other by cumstancos 
 the said Joseph Seymour to Robert Falcon, or order; and charged that^a or ~ 
 
 (a) Repealed by the 1 1 Geo. 4, c. 20. 
 
 (t) Chisholm's case, cor. Dainpier, J., Exeter Spr. Ass. 1815, MS. and Russ. & Ry. 297.
 
 499 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 uiisrcpre- the prisoner, having this bill so indorsed in his custody, forged another 
 wilfilmke indorsement upon it as follows : — 
 
 such an in- 
 
 dorsement ,,p p^n For Robert Falcon, George Maddocks," 
 
 a forgery ; ; 
 
 within the 
 
 statute. .^k intent to defraud the bank, against the statute, &c. The second 
 count charged the prisoner with disposing of and putting away the 
 forged instrument; and there were many other counts all charging the 
 forgery to be of an indorsement. It appeared upon the evidence that 
 the prisoner was in the situation of a clerk and servant to the prosecu- 
 *500 tor, Mr. Robert Falcon, who was an attorney, having *chanibers in the 
 Temple, that he was left in charge of the chambers when the prosecutor 
 went out of town, with instructions to receive any money, and make 
 advances in the way of business, and to open any letters, and do what 
 was necessary in case a writ or any thing of that sort was wanted; but 
 that he had no authority from the prosecutor to indorse any bill for him 
 by procuration. During absence of the prosecutor, Mr. Seymour, 
 then the holder of the bill, indorsed it to the prosecutor, and sent it in 
 a letter to his chambers. The prisoner opened the letter, and a day or 
 two afterwards took the bill to the bank, and received the money, having 
 first made the indorsement charged by the indictment to be forged. At 
 the time he received the money he wrote a receipt immediately under 
 the forged indorsement in the words : " Received for Robert Falcon, 4, 
 Elm Court, Temple, 5 January, 1815, Geo. Maddocks." On the fol- 
 lowing day, the 6th of January, the prisoner wrote to the prosecutor a 
 sort of journal of the week's occurrences, and therein mentioned the bill 
 in question ; but only stated that he had taken it for acceptance, though 
 he had in fact received the money the day before. On the 9th January 
 the prosecutor returned to town, but did not find the prisoner at his 
 chambers, he having previously absconded. In his defence, the pri- 
 soner said that he had received the money for his master's use, and did 
 not intend to apply it otherwise; and he assigned as the cause of his 
 absenting himself some unexpected distress in his circumstances. The 
 case was left by the learned judge to the jury to consider, whether, un- 
 der the circumstances in evidence, it appeared to them that the prisoner 
 meant only to receive the money for his master's use, and acted under 
 a supposition that, in the situation of trust in which he was placed, he 
 had a right to describe himself as acting by procuration ; or whether he 
 had made the indorsement and received the money for the purpose of 
 defrauding his master or the bank. The jury were of opinion that it 
 was for the purpose of fraud, and referred to the prisoner's letter of the 
 6th January, wherein he only spoke of having taken the bill for accept- 
 ance, though he had actually received the money for it the day before, 
 and they accordingly found him guilty. But as it did not appear that 
 the prisoner had offered to make use of the indorsement to transfer the 
 bill to any other person, or to enable himself to receive the contents as 
 holder or bearer, having on the contrary given the receipt in his own 
 name for the use of his master, whose place of residence was truly de- 
 scribed in the receipt; a doubt arose whether the indorsement was such 
 an assignment of the bill as is meant by the word "indorsement," in 
 the statute. And upon this doubt the sentence was respited, in order to 
 take the opinion of the judges, whether the prisoner ought to have been
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 500 
 
 acquitted, either on the special circumstances of his conduct, or upon 
 the more general question, whether a false assertion in an indorsement, 
 that the indorser has a procuration, without any other circumstance of 
 falsehood or misrepresentation, makes such an indorsement a forgery 
 within the statute. The case was argued at great length before the 
 twelve judges, but no opinion was ever delivered, tbe prisoner dying 
 in Newgate previously to the subsequent sessions at the Old Bai- 
 ley. («) 
 
 *It was not necessary that a promissory note should be in itself ne- *501 
 gotiable, in order to make it such a note as might be the subject of an Box's ease, 
 iudictment for forgery within the repealed statute, 2 Geo. 2, c. 25. The f f* °™H~ 
 prisoner had been convicted on an indictment which charged him with might be a 
 having forged, &c, a certain promissory note for the payment of money ™j! f ! n °* e 
 which was as follows : — 2 Geo. 2, c. 
 
 25, and the 
 
 " On demand we promise to pay Mesdames Sarah Willis and Sarah forgery, 
 Doubtfire, stewardesses for the time being of the Provident Daughters' though not 
 Society, held at Mr. Pope's, the Hope, Smithfield, or their successors in nes ° 1 
 office, sixty-four pounds, with 5 per cent, interest for the same, value 
 received, this 7th day of February, 1815, 
 
 " For Felix Calvert and Co. 
 
 " £61" " John Forster." 
 
 It was moved, in arrest of judgment, that this was no promissory 
 note ; and the case was argued before the twelve judges. Their opinion 
 was afterwards delivered by Le Blanc, J., to the following effect : — " An 
 objection was taken in arrest of judgment, and argued before all the 
 judges, that the instrument in question, such as it is stated in the indict- 
 ment, was not a promissory note within the statute, so as to be the sub- 
 ject of an indictment for forging or uttering it, knowing it to be forged. 
 The objection to this instrument was founded on this circumstance, that 
 it appears to be made payable to two ladies, describing them as stew- 
 ardesses of a provident society, or their successors in office; and that 
 this society not being enrolled according to the statute, this note was 
 not capable to enure to their successors, and was not negotiable. The 
 judges are of opinion that this is, as stated on the indictment, a valid 
 promissory note within the statute of Geo. 2. It is not necessary that 
 such a note should be in itself negotiable ; it is sufficient that it should 
 be a note for the certain payment of a sum of money, whether negoti- 
 able or not. And though these ladies were not at the time legally 
 stewardesses, yet it was a description by which they were known at the 
 time ; and though they could not legally have successors in office, yet 
 in case of their decease, their executors and administrators might sue, 
 and they themselves, during their life, might recover on it. Therefore, 
 it is an instrument capable of being the subject of forgery, and there is 
 no ground to arrest the judgment; and the judges are all of opinion, 
 that the conviction is right."(-?A 
 
 Forging a bill payable to the prisoner's own order, and uttering it Birkett's 
 without indorsement, as a security for a debt, was holden to be a com- ? ase - ??„"£" 
 plete offence. The count in the indictment more peculiarly applicable p^blc to 
 
 (w) Maddock's case, 0. B. Oct. 1815, and argued before the judges in Mich. T. 1815, MS. 
 (i>) Rex v. Box,* 1815. 6 Taunt. 325. Russ. & Ry. 300. 
 
 a Eng. Com. Law Reps. i. 401.
 
 501 
 
 OF THE FORGERY OF PRIVATE PAPERS, 
 
 [BOOK IV. 
 
 the prison- 
 er's own 
 orders, and 
 uttering it 
 without in- 
 dorsement 
 as a secu- 
 rity for a 
 debt, held 
 to be a 
 complete 
 offence. 
 
 to the facts of the case charged that the prisoner having in his posses- 
 sion a paper whereon was written or printed to the following tenor : — 
 
 "No. 28. £ 
 
 « Preston Bank, 1804. 
 
 "Pay to the order of 
 value received. 
 
 " Atherton, Greaves, and Denison." 
 "To Joseph Denison, Esq., and Co., London." 
 Ent d . 
 
 *502 *did forge, &c, in and upon the said paper as follows ; — " 2310" — 35 : 
 3 : 5 :—" 16 August" — "Two months after date" — "Mr. John Birkett, 
 thirty -five pounds 3 : 5" — " R. N." — and by that means did forge, &c, 
 a bill of Exchange as follows : — 
 
 "No. 28. 
 
 £35: 3: 5 
 
 "2310 Preston Bank, 16 August, 1804. 
 
 " Two months after date pay to the order of Mr. John Birkett thirty - 
 five pounds 3 : 5, value received.: 
 
 "Atherton, Greaves, and Denison." 
 "To Joseph Denison, Esq. and Co., London. 
 "Ent d . R. N." 
 
 with intent to defraud Atherton, Greaves, &c. Other counts charged 
 an uttering, &c. ; and others an intent to defraud different persons, and 
 amongst others, one Matthew Yates. By the evidence of the wife of 
 Matthew Yates, the person mentioned in the indictment, it appeared 
 that her husband resided at Liverpool and kept an inn there, to which 
 the prisoner came on the 14th of the preceding August, with a horse, 
 and continued boarding and lodging there until the 27th of the same 
 month. Four or five days before the 27th a person came to the inn 
 and took away the horse, and the witness then directed the waiter to 
 carry the prisoner his bill ; after which the prisoner came to her and 
 gave her the bill of exchange, filled up as stated in the indictment, 
 saying he hoped that would satisfy her for what he had had ; to which 
 she answered, " I dare say it will;" and took it from him and kept it 
 until the 27th of August, when the prisoner was apprehended. Upon 
 cross-examination, the witness said that the prisoner did not give the 
 bill of exchange to her as payment ; and that she knew she could make 
 no use of the bill until the prisoner indorsed it ; that he told her he 
 did not wish to discount it, and would pay her in a few days without it. 
 She further stated, that she considered herself as keeping the bill for 
 the prisoner, and not for herself. It was further proved, that the pri- 
 soner had been a clerk in the house of Atherton and Co. from July, 
 1803, to July, 1804, and that it had been usual in that house to have 
 checks signed "Atherton, Greaves, and Denison" kept in a drawer 
 within the proper custody of two superior clerks, but accessible to the 
 prisoner, who was sometimes permitted to sign them. It was also 
 proved, that the whole of the written part of the bill of exchange stated 
 in the indictment, except the signature " Atherton, Greaves, and Deni- 
 son," was in the handwriting of the prisoner. The learned judge left
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 502 
 
 the case to the jury, telling them that the use made of the instrument 
 when filled up by the prisoner, though not indorsed, was conclusive evi- 
 dence of the fraudulent intention, and proved as well the counts charg- 
 ing the actual forgery, as those which charged the uttering, &c, know- 
 ing it to have been forged ; and the jury returned a verdict of guilty. 
 But the learned judge afterwards respited the sentence, doubting 
 whether he ought not to have left the question of fraudulent intention 
 more open to the jury; in which case they might have found that the 
 prisoner did not mean to defraud any person, but, by paying his reckon- 
 ing and taking back the bill, to make no further use of it. The case 
 was taken into consideration *at a meeting of all the judges in Easter *503 
 term, 11th May, 1805, when they were of opinion that the facts 
 stated amounted to forgery, and with a fraudulent intent; the bill 
 having been given to the landlady to obtain credit, though as a pledge 
 only.(«>) 
 
 We have seen that where a prisoner was indicted for forging an ac- Bills of ex- 
 ceptance of a bill of exchange, and it appeared that at the time when £ c ^ ge 
 the acceptance was written, a blank was left in the bill for the drawer's when ac- 
 name, it was held that the indictment was not supported, as the instru- ce P ta ? ces 
 
 were tor^cd 
 
 ment, to which the forged acceptance was afiixed, was not at the time upon them. 
 of the forgery a bill of exchange, there being no drawer's nameia;) 
 And where upon an indictment containing counts for forging and utter- 
 ing a bill of exchange, it was proved that the prisoner wrote the accept- 
 ance on a blank stamp, and the bill was drawn two days afterwards in 
 the absence of the prisoner : Patteson, J., doubted whether the charge 
 of forgery could be supported, because at the time when the acceptance 
 was written on the stamp, it was a blank paper, but said that it was not 
 very material if the prisoner uttered the bill afterwards, knowing the 
 acceptance to be a forgery.^) 
 
 We may now shortly consider the questions which have arisen as Cases as to 
 to the instruments which mav be considered as receipts within the " recei P ts -" 
 
 , J r Testick's 
 
 statutes.-f case . « Re . 
 
 In a case where the prisoner was indicted for uttering a forged ceived the 
 
 receipt for money," in the following words, "Received the contents abov^ by 
 
 above, by me, Stephen Withers;" it appeared in evidence that he was me, S. W., 
 
 employed by a person who kept a lottery-office, to carry out the prize- f u C ffi c i e nf 
 
 money, with an account of the deductions, and to pay it to the party, statement 
 
 and bring back his receipt ; and that the following account was delivered of . the . re ~ 
 
 - . . - ill CGlpL ID LOG 
 
 to him, with money to pay the balance — indictment, 
 
 without 
 
 "No. 38,811. Sfhe 
 
 Mr. WlTIIERS. £ s. d. bill of items 
 
 «One-16thofa20Z.prize - - - - 15 J^Sf 11 
 
 " Deduct for expenses, advances, and remitting money 
 to you ...... 
 
 1 4 0" 
 
 (w) Rex v. Birkett, Russ. & Ry. 86. 
 
 (x) Reg. v. Butterwick, 2 M. & Rob. 196, Parke, B., ante, p. 323. 
 
 (y) Reg. v. Cooke, a 9 G. & P. 582. See Reg. v. Hawkes, 2 Moo. C. C. R. 60, ante, p. 352. 
 Reg. v. Kinnear, 2 M. & Rob. 117, ante, p. 352. Reg. v. Bartlett, 2 M. & Rob. 362, ante, p. 356. 
 
 f [An indorsement on a note of partial payment, in the handwriting of the maker, witli- 
 ■ Eng. Com. Law Reps, xxxiv. 535. 
 
 £ 
 
 s. d. 
 
 1 
 
 5 
 
 
 
 1
 
 503 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 That upon producing this account again, when he settled his accounts 
 with his employer, the receipt stated in the indictment was at the bot- 
 tom of it; and that he had not paid the money to Mr. Withers, whose 
 handwriting had been forged. It was objected on behalf of the prisoner, 
 that this receipt did not correspond with the indictment ; for nothing 
 was set forth but the receipt as for the contents above ; and that together 
 with the bill of particulars was one entire thing; and it being set forth, 
 " which said false receipt, &c, is as follows," the whole ought to have 
 been set forth, and not part only, namely, "the contents above" which 
 *504 did not appear to be *the same, not to be a receipt for money. And 
 it was also urged after conviction, in arrest of judgment, that it did 
 not appear by the receipt set out in the indictment that it was a receipt 
 for money, or what it was for; and that being only for the contents 
 above, and nothing set forth to show what they were, or explain the 
 receipt, it was unintelligible. The judges were of opinion that the 
 indictment was sufficient, for it was, " Received the contents above," 
 which showed it to be a receipt for something, though the particulars 
 were not expressed; and it was held to be a forged receipt for money, 
 under the hand of Stephen Withers, for 11. 4s.; and the bill itself was 
 only evidence of the fact, and showed it to be a receipt for money as 
 charged, (z) 
 Harrison's It has been admitted that bank-notes are not considered as money or 
 A fo d goods, within the 2 Geo. 2, c. 25. J But it appears to have been holden, 
 receipt for in the same case, that an entry of the receipt of money or notes made 
 
 bank-notes ^„ a q^^Iqy f the Bank of England in the bank book of a creditor, 
 was not a J ° ..., 
 
 receipt for was an accountable receipt tor the payment of money within the re- 
 money or pealed statute 7 Geo. 2, c. 22. The indictment against the prisoner 
 within the contained a great number of counts ; one set framed on the 2 Geo. 2, 
 2 Geo. 2, c. c. 25, and 31 Geo. 2, c. 22, s. 77, charging the prisoner with forging 
 an entry an( ^ uttering a certain receipt for money, viz. "1777, June 16, Bank- 
 ofthere- notes, C. £3210," with intent respectively to defraud the Bank of 
 
 ceipt of England and the London Assurance Companv; the other set framed on 
 money or o > r j i 
 
 notes, the 7 Geo. 2, c. 22, charging the prisoner with altering and uttering a 
 
 made by certain accountable receipt for bank-notes for payment of money, 
 
 oftheBank (setting it out as before,) viz. "the said sum of 210?." by prefixing the 
 
 of England gg Ure 3 t tfi e SSi {^ figures and cypher 210/., whereby the words, &c, 
 
 bank-book " 1777, June 16, Bank-notes, C. £210," together with the figure 3 im- 
 
 of acredi- ported that J. O.j a clerk of the Bank of England, had received bank- 
 
 alwuntabie notes to ^ ie amount of 3210?. with the like intent. Upon the evidence, 
 
 receipt for it appeared that the London Assurance Company, to whom the prisoner 
 
 the pay- wag accom ptant, kept their cash with the Bank of England ; for which 
 
 money purpose the Bank furnished the London Assurance with a book, the 
 
 within the title of which was, "Debtor, the Bank of England with the London 
 
 7 Geo. 2, e. . . & 
 
 22. Assurance, Creditor." On the debtor side, the clerk of the bank, when 
 
 any money or bank note was sent to him, entered the date, and what 
 
 it was that was paid in ; then he signed his name, and afterwards wrote 
 
 Reg. v. Lee, 2 M. & Rob. 281, ante, p. 387, and other cases, ante, p. 351, et seq., as to the 
 sufficiency of bills of exchange, &c, in point of form. 
 (z) Testick's case, 1774. 2 East, P. C. c. 19, s. 36, p. 925. 
 
 out any signature, but made in the presence, with the concurrence and by the direction of 
 the payer, is a receipt, the alteration of which is forgery. Kegg v. The State of Ohio, 10 
 Ohio, 75.] 
 X {3 McCord, 442, State v. Foster, Ace.}
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 504 
 
 the sum, putting a bar or dash, before the figures in order to prevent 
 another figure being prefixed or subjoined; and when the London 
 Assurance sent for money, the cashier of the Bank wrote off so much 
 from their bank-book ; which bank-book was kept by the prisoner, as 
 accomptant to the company, and sent by him to the bank as occasion 
 required. On the 16th June, 1777, the company paid into the Bank 
 the sum of 210?. which was received by a clerk of the name of John 
 Clifford, who made an entry in the books as follows, "1777, June 16, 
 Bank notes C. £210," to which sum the prisoner prefixed the figure 3, 
 making thereby the sum received appear to have been 3210?. The fact 
 of prefixing the figure in the manner charged in the indictment, having 
 been brought home to the prisoner, it was first objected that the case 
 was not within the first *set of counts, which were framed on the 2 *505 
 Geo. 2, and 51 Geo. 2, those statutes being confined to receipts for 
 money or goods, and this being a receipt for bank-notes, which were 
 neither money nor goods ; and that the legislature had so thought, by 
 passing the 7 Geo. 2, in which bills, notes, &c, are particularly men- 
 tioned. And this objection was allowed. But the prisoner was con- 
 victed on the second set of counts, framed on the 7 Geo. 2, c. 22 : and 
 two points were reserved for the consideration of the judges; first, 
 whether the entry made by the cashier in the bank-book could be con- 
 sidered as an accountable receipt for the payment of money within that 
 statute ; and, secondly, that the intent to defraud a corporation, (the 
 Bank of England and the London Assurance Company being the cor- 
 porations stated in the indictment,) was not within the statute ; which 
 was confined to forgeries committed with intent to defraud any person. 
 It is said that the judges were clearly of opinion on the first point that 
 an entry in a bank-book was an accountable receipt within the mean- 
 ing of the act. But no opinion was publicly given ; and the matter 
 became unimportant in the particular case, as the judges decided the 
 second point in favour of the prisoner, and he was discharged. (a) 
 
 In the following case the point arose as to the necessary averments Hunter's 
 in the indictment of the instrument in question purporting to be and case - . Tlie 
 being a receipt, where it did not necessarily purport to be such on the i^g^ertaiii 
 face of it. The indictment charged that the prisoner had in his posses- names to an 
 sion a certain navy-bill, (which was set forth according to its tenor and fo^f"^ 611 * 
 effect,) under which navy-bill there was contained a certain order inmentofa 
 writing for payment, called an assignment, &c, and upon which there sum l ^~. 
 was contained a certain indorsement, partly printed and partly written, does not,' 
 by one Wm. Davis, chief-clerk to the comptroller of his majesty's navy, unless c ° u " 
 in his office for bills and accounts, to the following tenor and effect : — ther facts. 
 "The certificate within mentioned is indorsed by Edward Wilson, pay-P ur P ort on 
 able to Mr. William Thornton; T. Davis ;" and that the prisoner forged, t}l ° ^iti ng 
 &c, a certain receipt for money, to wit, for the sum of 25?. mentioned to be a re- 
 
 (a) Harrison's case, 1111. 1 Leach. 180. 2 East, P. C. c. 19, s. 36, p. 926. In the last 
 authority the point respecting the accountable receipt is not reported ; but it is referred to as 
 stated in 1 Leach, and it is observed that, in a subsequent case, (Lyon's case, 2 East, P. C. 
 c. 19, s. 36, p. 934,) Grose, J., alluded to the ground upon which this point was decided, 
 and said, " that in Rex v. Harrison, the book in which the entry was made imported to be 
 a book containing receipts for money received by the bank from their customers, and there- 
 fore showed that the money was received from the party to whom the book belonged." Mr. 
 East also observes, that it does not appear whether the opinion of the judges upon this 
 point was formed with reference to the manner in which the offence was laid in the indict- 
 ment. The defect upon which the judges decided in favour of the prisoner was removed 
 by the 18 Geo. 3, c. 18, now repealed. And see the 1 Wm. 4, c. 66, s. 28, ante, p. 410.
 
 505 OP THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 ceipt; and and contained in the said paper, &c, called a navy-bill, which forged 
 thOTefore receipt was as follows ; that is to say, " Win. Thornton," "Wm. Hun- 
 be averred ter :" with intention to defraud the king, against the form of the statute, 
 that ^n ^ c - A secon( i count stated the navy-bill, the order for payment and 
 <fcc, to- indorsement, as in the first count ; and then stated, that to the said last- 
 gether with mentioned navv-bill was annexed and written a certain false, forged, 
 tures^did &c, receipt for money, to wit, for the sum of 25?., in the said last-men- 
 purport to tioned paper, called a navy-bill; which said false, forged, &c, receipt for 
 a receipt, money was as follows; that is to say, " Wm. Thornton," «Wm, Hun- 
 *506 ter;" and that the prisoner knowingly uttered the said *last-mentioned 
 forged, &c, receipt for money, with intent to defraud the king. Other 
 counts, nearly similar, charged the instrument forged to be an acquit- 
 tance ; and some of the counts stated the intention to be to defraud 
 Wm. Thornton and other persons. Upon the evidence it appeared that 
 Edward Wilson, who had been pilot of the Lord Mulgrave, having 
 received from his captain a certificate of his services, sent it to AVm. 
 Thornton to receive his wages. That the prisoner was a clerk in the 
 comptroller's office ; and, being employed to forward the pilot's bill 
 through the office, got into his hands the bill stated in the indictment, 
 and carried it with the order of payment and indorsement upon it, 
 which were necessary for receiving the money, to the cashier of the 
 pay-office; having wafered to one side of the bill, on which was written 
 the sum 25?., under those figures, a fourpenny stamp used for receipts, 
 on which were written the names of " Wm. Thornton," "Wm. Hunter," 
 without any words importing that they had received the money. And 
 it was proved that the cashier was in the habit of paying navy-bills on 
 the owner's name being written under the sum without any other 
 receipt. It appeared, on producing the bill, that the name Major Wool- 
 head was written at the bottom of it; with respect to which it was 
 proved that it was usual to have his name to the bills, as without it 
 they did not regularly pass through the office ; but that a bill would 
 not be stopped if his name were not put to it. There also appeared on 
 one side of the bill the initials of Mr. Davis's name, T. D., which were 
 not stated in the indictment. The prisoner having been convicted, 
 judgment was respited to take the opinion of the twelve judges on the 
 case; and it was argued before them that the indictment was defective 
 upon several grounds : and amongst others, first, because it did not 
 appear by the tenor of the instrument as set forth therein, that it was a 
 receipt ; and secondly, because there was nothing stated in the indict- 
 ment to show that this could operate as an acquittance. And judgment 
 was arrested on the ground that it did not appear on the face of the 
 indictment, nor was it shown by averment that the instrument was a 
 receipt. Grose, J., in delivering the opinion of the judges, said, "that 
 it was not enough to call the signature of the two names, ' Wm. Thorn- 
 ton,' and ' Wm. Hunter,' a receipt, for they did not, standing by them- 
 selves, purport to be a receipt ; and therefore, the indictment should 
 have averred that the said names, ' Wm. Thornton/ and ' Wm. Hunter/ 
 written on the said papers, imported and signified that the said Wm. 
 Thornton and Wm. Hunter had received the sum of twenty-five 
 pounds mentioned in the said paper writing. This is undoubtedly the 
 law upon this subject; therefore, as the words < Win. Thornton, Wm. 
 Hunter/ do not import to be a receipt, and there being nothiug to ex- 
 plain the import of these words, or to show that they were in any way
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 506 
 
 intended to signify that those persons had received the money, this in- 
 dictment is clearly bad on the first count; and as the same objection 
 applies in substance to the second count, though it is different in point 
 of form, the majority of the judges are of opinion that the judgment 
 ought to be arrested. "(i) 
 
 *Upon the authority of the foregoing case, it was holden that an *507 
 indictment for forging the word "settled," at the bottom of a bill of Thonip- 
 parcels, must show by proper averments that it is a receipt. The in- An Tndlct- 
 dictment charged that the prisoner did forge, &c, a certain receipt for ment for 
 money, to wit, for the sum of one pound, one shilling, and sixpence ; forg ] n ?< th , e 
 which said false, forged, and counterfeited receipt for money is as fol- tied," attha 
 loweth, that is to say, " Settled, J. M." Other counts called it an acquit- j>? ttom of a 
 tance. It was objected on behalf of the prisoner, that the indictment show by 
 should have been shown, by proper averments, that this was a receipt proper 
 for money, according to the determination in Hunter's case.(hb\ On the ^at it is a 
 part of the prosecution, it was contended that it did purport to be a receipt. But 
 receipt made by a person who had a right to demand money ; that the overruled 
 evidence proved that the right arose from the sale and delivery of goods in the fol- 
 
 according to the bill; and that it was sufficient if the instrument ap- lowing 
 
 . . . case, 
 
 peared upon the evidence to be of the description stated in the indict- 
 ment: and Testick's case(c~j was cited. And it was further contended 
 that, as the stamp act, (25 Geo. 8. c. 55, s. 7,) had enacted that every 
 note, memorandum^, &c, signifying or denoting any debt, account, or 
 demand being paid, settled, &c, should be deemed and taken to be a 
 receipt within the meaning of the act, the necessity of averring such an 
 instrument as the present to be a receipt was taken away. But the 
 court held on the authority of Hunter's case,(l>\ that the indictment was 
 defective.^) 
 
 But this case has been since expressly overruled, and it has been held A count 
 that a count setting out as an acquittance an invoice of goods sold, with se ^ 1 1 f s ■?? 
 the word « settled" at the foot, and signed with a name in full, is good the word 
 without any averment of the meaning of the word "settled." A count "settled" 
 
 fit til 6 DOt- 
 
 charged the prisoner with uttering the following acquittance for money, torn and 
 
 viz : signed in 
 
 full is good 
 without 
 
 "May 4, Mr. Martin. any expla- 
 
 "Bought of Laing and Son, -Sent. 
 
 "Wholesale Druggists, Bristol. 
 " 6 Quarts of settledated striking acid. 
 
 "Sam. Hughes." 
 "Settled, £4:0:0." 
 
 and it was objected on the authority of the preceding case that this count 
 was bad, as there was no averment as to the meaning of the word "set- 
 tled." It was further urged, that if the word "settled" had any definite 
 
 (6) Hunter's case, 1794. 2 Leach, 624. 2 East, P. C. c. 19, s. 36, p. 928 ; and see ante, 
 p. 377. In 2 East, it is said that Buller, J., thought the second count might be supported, 
 considering this to be as much a receipt as the writing a name was an indorsement on a 
 bill of exchange ; but to this it was answered, that an indorsement was complete by writ- 
 ing the name on the bill without any thing more ; whereas the name itself, as stated in the 
 indictment, was no receipt, though the name coupled with the navy-bill, might together 
 form a receipt. But then it ought to be so stated. 
 
 (bb) Ante, p. 506. (c) Ante, p. 504. 
 
 (d) Thompson's case, cor. Thompson, B., and Graham, B., O. B. 1801. 2 Leach, 910. 
 
 Vol. il— 33
 
 507 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 meaning, it meant a receipt, as was held in Squawforth, q. t. v. Alex- 
 ander,^) and as the legislature must be taken to have meant different 
 things by the words " receipt" and " acquittance," the court could not 
 say that it was an acquittance. But upon a case reserved, the judges 
 were unanimously of opinion that the count was good.(/) 
 *508 *The indictment charged the prisoner with forging a certain receipt 
 An indict- f r the payment of money, in form following (that is to say) : — 
 
 ment for v ' 
 
 forging the 
 
 following «6th January, 1830. 
 
 SSfift.. s "£16: 15: 6 
 
 " £16. 15s. 
 
 6d, for the " For the High Constable, 
 
 h X h / on - "James Hughes." 
 
 stable, J. 
 Hughes," 
 
 does not witli intent to defraud J. Grundy. It was objected that the document 
 planatory set ou ^ was no * on * ne ^ ace or> ^ neccessarily " a receipt for the payment 
 averments, of money." The words were in themselves quite ambiguous, and might 
 as well be construed to import that Hughes had paid money for the 
 high constable as that he had received it for him ; neither was it to be 
 deemed a receipt, because the prosecutor had called it by that name in 
 the indictment. He should have gone further, and explained by refer- 
 ence to the other documents, or to the course of business, how the in- 
 strument, in itself ambiguous, came to have the effect of a receipt.(#) 
 Alderson, B., " The cases cited are clearly distinguishable from the 
 present. In Hunter's case, the forgery consisted in merely counter- 
 feiting the signature of the party, which of course, meant nothing 
 without reference to other documents. In Thompson' s case, the for- 
 gery consisted in writing the word "settled" on an account; that, also, 
 was an expression in itself entirely ambiguous : it might mean either 
 that the party was satisfied as to the correctness of the items, or that he 
 had received the amount. But indeed, that case has been expressly 
 overruled by Rex v. Martin. I think there is nothing in the objec- 
 tion."^) 
 The word So where on an indictment for forging and uttering an acquittance 
 th^bo't't at an< ^ re ceipt for money, it appeared that the prosecutrix gave the pri- 
 of a bill soner the bill of a Mr. Sadler, a cheesemonger, with money to pay that 
 imports a D ij] an( j a variety of others, and the prisoner brought the bill back again 
 acquit- to the prosecutrix, with the words, "Paid, sadler," at the bottom of the 
 tance for \,[\\ } with a little s, and no Christian name, and Sadler proved that he 
 ttoney ' never signed any bills in such manner, with a little s and no Christian 
 name, but all his bills had his initials, " S. Sadler" to them; it was con- 
 tended, that the words "Paid, sadler," did not necessarily import a re- 
 ceipt by Sadler; but they might be a memorandum of the prisoner of 
 her having paid the money to him. But Lord Denman, C. J., in sum- 
 ming up, said : " You must be satisfied that this was a receipt for money, 
 and I apprehend that that does not admit of any kind of doubt. The 
 prisoner clearly produced it as a receipt; but it is said that it might 
 
 (e) 2 Esp. R. 621. 
 
 (/) Rex v. Martin, a R. & M. C. C. R. 483. 7 C. & P. 549. See this case, ante, p. 373, 
 note (z), as to the description of a receipt under the 2 & 3 Wm. 4, c. 123, s. 3, and as to the 
 intent to defraud, ante, 363. 
 
 (</) Hunter's case, ante, note (b). Thompson's case, ante, note (</). and Rex v. Barton, 
 post, p. 509, note (I), were cited. 
 
 (k) Reg. v. Boardrnan, 2 M. & Rob. 147. 2 Lew. 181. 
 
 » Eng. Com. Law Reps. xxxi. 626.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 508 
 
 be merely a memorandum of her own, denoting that she had paid the 
 bill; but I apprehend that where a person writes under a bill the word 
 "paid," with the name of the tradesman, it will be difficult to say that 
 it does not purport to be a receipt for the money."(i\ 
 
 *Forging or uttering a receipt at the foot of an account was not *509 
 within the 2 Geo. 2, c. 25, if such receipt was signed with the initials An indict- 
 only, and there was nothing in the indictment to explain what those f^ina-'a 
 initials meant, though such receipt was described as being in the hand- receipt 
 writing of a person whose name agreed with those initials, and was signed with 
 stated to have been written by him as a receipt for other money, and only must 
 falsely affixed at the foot of another account. An indictment for forgina; s , ho ^ ^^ 
 
 J o o £|jg initials 
 
 or uttering a receipt in the name of T. S., should show that T. S. was a mean and" 
 person to whom the money might have been paid.(y) The indictment wha * con - 
 stated that a receipt had been issued by Christopher Hindle, one of the tnere is 
 high constables for the hundred of Blackburn, directed to the overseers between 
 of the poor of Clayton-le-dale, to collect, 21/. lis. 4c7. ; that a receipt ^hose^ni- 
 for money, viz. for the sum of 21?. lis. 4rf., had been forged, by falsely tials they 
 affixing and cementing to the said receipt, at the foot thereof, a certain are ^ tha 
 receipt in the handwriting of one Henry Hargreaves, of the tenor fol- 
 lowing, that is to say, "1825,Rec d ., H. H./' which had, before then, been 
 made and written by the said Henry Hargreaves, as a receipt for cer- 
 tain other money, and that the prisoner published the said forged receipt 
 as and for a true and genuine receipt for the said sum of 21/. lis. 4c?., 
 with intent to defraud the said Henry Hargreaves. A motion was made 
 in arrest of judgment, on the ground that there should have been some 
 averment or innuendo to have explained what was meant by the abbre- 
 viated word "RecV and what by the initials "H. H."(/fc) The indict- 
 ment appeared to Bayley, J., to be open also to another objection, viz. 
 that it was not shown what connection Henry Hargreaves had with 
 Hindle or with the receipt. And upon a case reserved, the judges held 
 the indictment bad, because there was nothing to show what the initials 
 "H. H." meant, or what connection Hargreaves had with Hindle or 
 with the receipt. (/) 
 
 The prisoner was convicted upon an indictment, which charged that A pay-ser- 
 he did feloniously forge a certain receipt for money, which was as fol- J e "?j!' , f the 
 
 lows : obtained 
 
 from the 
 
 "Received the 22d day of May, 1834, of Messrs. Cox and Co., Pay- a receipt 
 masters, Royal Regiment of Artillery, the sum of £13 sterling, being for a sum of 
 a part of subsistence for a detachment of Captain Bayley's company, mrfcofsub- 
 
 (i) Reg. v. Houseman, a 8 C. & P. 180. The report does not set out the bill. As the pro- 
 secutrix proved that she had had bills from Sadler, weekly; that his former bills were 
 receipted by himself, and she did not think they had a small s on them, and Sadler never 
 signed with a little s, and no Christian name ; it might perhaps, admit of some doubt 
 whether the false writing bore such a resemblance to the genuine receipts as to constitute 
 forgery; Clinch's case, 1 Leigh, 540, ante, p. 350, and Rex v. Fitzgerald, 1 Leigh, 20, ante, p. 
 351, seem, however, to favour the opinion that it would constitute forgery. C. S. (J. 
 
 (J) These positions are taken from the marginal note in R. & M. C. C. R., but, perhaps, 
 ftrej are hardly deducible from the case itself. C. S. G. 
 
 (/c) Hunter's case, ante, p. 506, note (b) ; Mestick's case, ante, p. 504, note (z) ; and Thomp- 
 son's case, ante, p. 507, note (d), were cited. 
 
 (I) Rex v. Barton, R. & M. C. C. R. 141. In order to avoid any such objections as were 
 raised in this case, the better course in similar cases would be to describe l lie instrument as 
 "a certain receipt for money, that is to say a receipt for the sum of 31.," which has been 
 held to be sufficient. See ante, p. 373, and note (z), ibid. C. S. G. 
 a Eng. Com. Law Reps, xxxiv. 344.
 
 509 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 sistenee of second battalion Eoyal Artillery at Woolwich, for the month of June, 
 
 a company -. noi 
 
 for the L °°*- 
 
 month of "R. M. Poulden, Lieutenant Royal Artillery." 
 
 May. He 
 
 and insert- with intent to defraud R. H. Cox and others. There was another count 
 *510 for feloniously uttering a like forged receipt for money, knowing *it to 
 ed June, be forged, and several other counts, upon which no question arose. It 
 the receipt appeared that in May, 1834, Lieutenant Poulden had the charge of a 
 to a trades- detachment of Captain Bayley's company of the second battalion royal 
 according artillery at Woolwich, of which he was also the paymaster; the prisoner 
 to the usual was acting under him as pay-serjeant. The following is the mode by 
 •i.Vv ance'd w hich the subsistence money is provided : — The pay-serjeant makes out 
 the sum to for the use of the paymaster, at the beginning of every month, an ab- 
 the r rison - s tract of the subsistence monev which will be wanted for the soldiers 
 
 or, and sent . . J ..„. 
 
 the receipt during the ensuing month, and the paymaster gives information to 
 to the agent Messrs. Cox and Greenwood, the agents of the regiment, accordingly. 
 
 oftheregi- mI . . , ' ? x ,. e , . ' ., 
 
 ment who The pay-serjeant, in order to receive this money, brings to the pay- 
 paid the master, about once a week, a receipt, partly printed and partly filled up 
 Anindict- ^y himself, in the form above set forth, and upon obtaining the pay- 
 ment for master's signature thereto, he gets cash for it from any of the neigh- 
 forgery de- } 30ur i no: tradesmen, who afterwards either pass it to others or send it up 
 scribing i • i r> ■< • 1 
 
 the instiu- through their bankers to Messrs. Cox and Greenwood, who ultimately 
 
 ment as a pa „ ^ e anioun t to the bearer. In the present case the prisoner brought 
 
 rccGiTJi wn.s 
 
 held good, the instrument in question to Lieutenant Poulden, on the 22d of May, 
 
 filled up as a receipt for subsistence money for the month of May, which 
 Lieut. Poulden signed, not being aware at the time that he had already 
 signed the receipts for all the subsistence money which had been pro- 
 vided for the month of May. The prisoner, after obtaining it, erased 
 the word May, and inserted instead thereof the word June, thereby 
 making it appear to be drawn for subsistence money for the ensuing 
 month. This had the effect of preventing an immediate discovery, as 
 Cox and Greenwood would have suspected the issuing of a receipt for a 
 sum beyond the subsistence money provided for the month of May, 
 supposing all the other receipts to have then come in. The prisoner 
 took the receipt to H. Failey, a grocer at Woolwich, from whom he ob- 
 tained thirteen sovereigns, and it was afterwards transmitted to Cox and 
 Greenwood, who paid the same. It was objected that the instrument 
 was not properly described in the indictment as a receipt, that it was in 
 its legal effect and operation, if any thing, an order for the payment of 
 money, and ought to have been so described, and this point was reserved 
 for the opinion of the judges, all of whom (except Lord Lyndhurst, C 
 B., Park, J. A. J., and Bolland, B.) having considered this case, were 
 unanimously of opinion that the conviction was good. (to) 
 Same point So where the prisoner was charged with forging a certain receipt for 
 as in the money, viz., a receipt for the sum of twenty pounds, and it appeared 
 case. 3 that the prisoner went to the house of a tradesman, and obtained 207. 
 by saying that he came from Quartermaster Serjeant Hunter for change 
 for an instrument in the following form : 
 
 "Received this 26th day of September, 1834, of Messrs. Cox and 
 (m) Rex v. Hope, R. & M. C. C. R. 414.
 
 CHAP. XXXIX."] SECURITIES AND DOCUMENTS. 510 
 
 — — * 
 
 Co., Paymasters Royal Regiment of Artillery, the sum of £20 on ac- 
 count of subsistence for my detachment for the present month. 
 u £20. " H. Pester, Capt. Adjt. R. H. A. 
 
 (Indorsed) » Sam. Rice, Gun. R. H. A." 
 
 It also appeared that these receipts were frequently cashed by the 
 *tradesmen in Woolwich, who afterwards received the money from the *511 
 army agents. Park, J. A. J., after mentioning the preceding case, and 
 stating that he was not aware whether the question had been considered 
 or not, was of opinion that this indictment was good.(n) 
 
 Altering the sum in the body of the high constable's precept for Altering 
 county rate after he has signed a receipt for that sum at the bottom of a h { rrh cou . 
 the precept, is a forgery of a receipt within the 1 Win. 4, c. 66, s. 10. stable's 
 The indictment charged that the prisoner did feloniously forge a certain ^j^he 
 receipt for money, that is to say, bad signed 
 
 a receipt 
 s-\ -n for it at the 
 
 " Herefordshire "I " To the Churchwardens and Overseers of the Poor of bottom of 
 To wit. J the Parish of Titley, in the County of Hereford, theprecept. 
 
 " By virtue of an order of her Majesty's Justices of the Peace in and 
 for the said county, at their general quarter sessions assembled, you are 
 hereby required, within thirty days from your receipt of this precept, or 
 otherwise having had due notice thereof, to pay me out of the money 
 by you collected, or to be collected for the relief of the poor of your 
 parish, the sum of SI. 15s. 9d., being the proportion of your said parish, 
 for and towards the general county rate, to be applied for the several 
 purposes mentioned and set forth in the several statutes in such case 
 made and provided, and herein fail not at your peril. 
 
 " Given under my hand at Mowley, in the said county, the 6th day 
 of December, 1837. 
 
 "Dec. 31. Reed, the above rate, J. Powell." 
 " John Powell, Chief Constable of the Hundred of ." 
 
 And it was proved that Powell, the high constable, had sent the pre- 
 cept for the county rate, which was set forth in the indictment, with 
 the sum of SI. 5s. 9d., stated in it as the amount, and that he after- 
 wards received that sum from the prisoner, and then wrote, " Dec. 31. 
 Received the above rate, J. Powell." The prisoner afterwards pre- 
 sented the document altered into SI. 19s. 9d., to the auditor of the 
 Union, and obtained that sum from him. It was objected that this was 
 not a forgery of a receipt, for that the whole receipt was contained in 
 the words, "Dec. 31. Reed, the above rate, J. Powell," which was 
 unaltered, and that altering the precept for the rate to which the re- 
 ceipt referred was not a forgery of the receipt. It was answered that 
 the alteration varied the amount for which the receipt was given, and 
 therefore it was a forgery of the receipt : and it was held that it was 
 clearly a forgery of the receipt, (o) 
 
 Where on an indictment for uttering a forged receipt for the sum of 
 
 M Rex v. Rice, a 6 C. & P. 634. 
 
 (o) Reg. v. Vaughan, b 8 C. & P. 2Y6, Gurney, B. It was also objected that there ought 
 to have been an innuendo that " Rec d ." meant "Received," but this objection was also over- 
 ruled. 
 
 a Eng. Cora. Law Reps. xxv. 570. b lb. xxxiv. 390.
 
 511 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 10/. it appeared that the prisoner pretended that he was authorized by 
 James Reese to settle the debt and costs in an action brought by Reese 
 against Pritchard, and thereby obtained from Pritchard the sum of 10/., 
 for which he produced the following receipt, which was stamped with a 
 2s. 6c?. stamp. 
 
 " Received of Mr. Wm. Pritchard by the hand of Mr. Wm. Griffiths 
 the sum of 10 pounds, being in full for debt and costs due to the said 
 Jas. Reese, having no further claim against the said Wm. Pritchard. 
 As witness my hand this 15 day of October, 1842. 
 
 i* The mark of M James Reese." 
 And it was clearly proved that Reese had not signed the receipt or au- 
 thorized it to be signed, or empowered the prisoner to settle the debt 
 and costs. It was objected that the receipt was not properly stamped; 
 that the instrument was not a receipt, but an agreement ; and that the 
 statute only applied to cases where a debt was actually due. But 
 Wightman, J., overruled the objections, and the prisoner was con- 
 victed. "(oo\ 
 Lyon's It has been holden that a script receipt, not filled up with the name 
 
 case. A f ^ e subscriber or person from whom the money was received, is not 
 
 script re- . r . . J . ' 
 
 receipt, not a receipt for money within the statutes. Ihe point came on for con- 
 filled up sideration upon demurrer ; and after argument, Grose, J., delivered the 
 subscri- opinion of the judges, and said that the instrument, the tenor of which 
 ber's name, was necessarily set forth in the indictment, was not a receipt for money 
 ceipt for m contemplation of law within the meaning of the 2 Geo. 2, c. 25, &c. 
 money That it was the duty of the cashier *appointed by the bank to receive 
 T tte * ° suc ^ SUDSCr iptions to fill up the receipts with the names of the subscri- 
 *512 bers, or persons from whom they originally received the money ; and, 
 until the blank left in the printed form was so filled up, the instrument 
 did not become an acknowledgment of payment; or, in other words, a 
 receipt for money. While in such a state it was no more a receipt than 
 if the sum professed to be received had been omitted. lp\ 
 Memoran- A memorandum importing that A. B. had paid a sum to C. D., but 
 dumim- no t; importing any acknowledgment from C. D. of his having; received 
 
 nortm" a . r ~ J ... 
 
 payment, it, was holden not to be a receipt within the statute. (cA 
 
 but not of Where a person who was employed by the executors of a contractor 
 
 tli g moncv * \ 
 
 Thomas's with the navy board to settle the account of the testator with govern- 
 case; hold- ment, produced certain forged acquittances and receipts for money, and 
 where a delivered them to the navy board, in order to exonerate the estate of 
 person who the testator from an extent, it was holden to be a forging and uttering 
 playeTby Wlt ^ n the 2 Geo. 2, c. 25. The indictment charged the prisoner with 
 the execu- forging and uttering, knowing, &c, a great many acquittances and re- 
 tors of a ceipts, (which were set forth,) with intent to defraud the king. It was 
 with the objected by his counsel that the case was not within the 2 Geo. 2, c. 25, 
 navy board as the receipts in question purported to be the receipts given to Collin- 
 account of **dge, the contractor, by persons employed by him, for money therein 
 the testator stated to have been paid to them for work and materials done and pro- 
 vernment y ided f° r the business in which he was employed under the navy board, 
 1 rodueed and were produced by the prisoner as vouchers, to accompany and verify 
 
 (oo ) Reg:, v. Griffiths, Monmouth Spr. Ass. 1843. MSS. C. S. G. 
 
 (p) Lyon's case, 0. B. 1793, 2 Leach, 597. 2 East, P. C. c, 19, s. 36, p. 933. And see 
 several points as to the forgery of scrip receipts, discussed in Reeves's case. 2 Leach, 808, 
 et seq. 
 
 (q) Rex v. Harvey, Russ. & Ry. 227.
 
 CHAP. XXXIX.] SECUKITIES AXD DOCUMENTS. 512 
 
 Collinridge's accounts, iu order to get thein passed by the navy board ; forged ac- 
 
 which accounts the prisoner had taken upon himself, after Collinridge's ^ dr g° cet 
 
 death, to get passed, in order to avoid an extent which had issued ceipts, 
 
 against Collinridge's estate and effects. And it was urged in support^ ^ ct ^ re 
 
 of the objection, that these workmen were solely employed by Collin- bricated 
 
 ridge, and not by the navy board; and that he, and not the navy vo " ch ® rs in 
 
 board, was answerable for them. That, therefore, the board had nothing exonerate 
 
 to do with these receipts ; and it was indifferent to the board whether tne estates 
 
 these sums had been paid to these several persons or not. The prisoner tor fron ^ au 
 
 having been convicted, the case was submitted to the consideration of extent; it 
 
 the twelve judges, who all, (with the exception of Lawrence, J., who j™f andirt- 
 
 was absent,) held that the conviction was right, and that the receipts, tering 
 
 as stated, were within the statutes. Grose, J., in delivering their r' 1 ^ hin * lie 
 ' . ' ' . ° 2 Geo. 2, c, 
 
 opinion, said, " The facts in the case prove that these receipts were 25. 
 forged ; and that they purport to have been given to Collinridge by 
 workmen for moneys paid by him to them for work done for the com- 
 missioners of the navy board. The persons, therefore, employed for 
 that purpose by him, were employed not solely on his account, but 
 on account of the king; and these receipts, if genuine, would have 
 been legal vouchers for his account, and would have entitled him to a 
 discharge from the navy board. It is clear, then, from the facts proved 
 at the trial, and from the verdict of the jury, that these receipts are 
 forged receipts, and that they were knowingly uttered by the prisoner 
 with intent to defraud the king.'Yr) 
 
 *In the foregoing case a point arose, as to the right of the prisoner 513 
 to put the prosecutor to his election, on an indictment stating various 4® *° ^f, 
 forgeries. The first count of the indictment charged that the prisoner prisoner to 
 uttered, &c, a certain forged acquittance and receipt for money (setting P ut the 
 it forth,) also a certain other forged acquittance and receipt for money, t0 ^is e i ec . 
 (also setting it forth) and stated in like manner above twenty other re- tion on an 
 ceipts of different dates, for different sums, and purporting to be signed ^ting 
 by different persons, with intent to defraud the king. And before any various 
 witnesses had been examined, the counsel for the prisoner submitted to forgenes - 
 the court, whether the prosecutor ought not, under the circumstances of 
 this case, to elect on which of the several receipts stated in the first 
 count of the indictment he intended to proceed, and be restrained from 
 proceeding on more than one of them ; as, amidst such a variety, it would 
 otherwise be almost impossible for the prisoner to conduct his defence. 
 But Le Blanc, J. ; referred to the indictment, by which it appeared that 
 all the receipts stated in the first count were charged to have been 
 uttered at one and the same time; and as this single act of uttering the 
 receipts would, if clearly proved, constitute only one offence of uttering, 
 he refused the application. The proof was, that the several receipts 
 stated in the indictment were uttered at the same time in one bundle, 
 given by the prisoner to the solicitor of the navy board. And when 
 the case was submitted to the consideration of the twelve judges, they 
 were all of opinion that the application to put the prosecutor to his 
 election was properly refused. (p) 
 
 It is not an offence within the 1 Win. 4, c. G6, if a party writes on Ifa P art y 
 
 • writes on, 
 
 the back of a bill of exchange, " received for R. A.," and signs his tuc back of 
 
 (r) Thomas's case, 1800. 2 Leach, 311. 2 East, P. C. c. 19, s. 36, p. 934. And see Jones 
 and Palmer's case, ante, p. 384. 
 (})) 2 Leach, 882.
 
 513 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 a bill of ex- own name. Nor is it an offence within that statute to forge an indorse- 
 "Received ment upon a warrant for the payment of money. The prisoner was 
 for R. A." indicted for forging and uttering, knowing it to be forged, an indorse- 
 bis own"* ment on an instrument which was in the form of a bill of exchange, in 
 name to it, which one Aickman was the payee, and the indictment contained counts 
 
 this is not charo-inp; the foroinjr and utterinp- of an indorsement upon an order for 
 
 forging a ° ° n ■ -, ;» i 
 
 receipt the payment ot money, an indorsement upon a warrant for the payment 
 
 within the f money, and a receipt on an order for the payment of money. It 
 
 66. It is ' appeared that the prisoner took the instrument in question, with the 
 
 not any following indorsement upon it, " Received, R. Aikman," to the banking 
 
 within that nouse where it was payable, and presented it for payment; but the clerk, 
 
 statute to perceiving that the name of the payee in the instrument was spelt 
 
 [indorse 11 'Aickinan,' with a 'c,' but in the indorsement was spelt 'Aikman/ 
 
 ment upon without any c, objected to pay it: upon which the prisoner altered the 
 
 a warrant indorsement thus, "Received for R. Aickman, G-. Arscott ;" his own 
 
 or (truer tor 
 
 the pay- name being G. Arscott. Bolland, B. — " The offences charged in the 
 ment of indictment are, the forging an indorsement or an order for the payment 
 of money, and also the uttering of the indorsement, and the forging and 
 uttering a receipt on an order for the payment of money. On looking 
 at the act of parliament, the sections which apply to this case appear to 
 be the third and the tenth. By the third section, several substantive 
 acts of forgery are mentioned. ('His lordship read the section through.) 
 Now, if this had been charged as a bill of exchange, instead of an order 
 *514 for the payment of money, there would *not have been any difficulty. 
 But the section does not include in the offences enumerated, the 
 forging of an indorsement on an order for the payment of money. The 
 tenth section applies to the forging and uttering of receipts. But the 
 words used are, < any acquittance or receipt, either for money or goods, 
 or any accountable receipt either for money or goods or for any note, 
 bill, or other security for payment of money.' That section, there- 
 fore, will not apply to those counts which charge the prisoner with 
 forging and uttering a receipt on an order for the payment of money." 
 Littledale, J. — " There are three sets of offences charged in the indict- 
 ment; the first relates to an order, the second to a warrant, and the 
 third to a receipt. It is not necessary to consider the first question that 
 was raised, whether the prisoner uttered the forged indorsement upon 
 the instrument or not, as those counts of the indictment which charge 
 the offence are not properly framed, as they do not properly describe 
 the instrument. The act of parliament, which consolidates the acts 
 relating to forgery, says : (his lordship here read section 3, and ob- 
 served) — Therefore it is made a felony if any person forges or puts off 
 any bill of exchange, or any promissory note for the payment of 
 money, or any indorsement on either of them. If the charge had been 
 the uttering a forged indorsement upon a bill of exchange, it would 
 have met the facts of this case ; but that is not the offence charged in 
 the indictment. Let us then see what the act of parliament provides 
 with respect to warrants and orders. The legislature has made no pro- 
 vision for forging an indorsement on any warrant or order, but for forg- 
 ing the instrument itself; and I think that the act of parliament was 
 purposely so framed, because warrants and orders do not pass by in- 
 dorsement, but bills of exchange and promissory notes do. It is very 
 probable that the person who drew the indictment, not seeing in the 
 instrument so many days or months after date, did not think it was a
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 514 
 
 bill of exchange, and therefore charged the prisoner with uttering a 
 forged indorsement on an order for the payment of money. Now, this 
 is not an offence within the act of parliament; and I think you cannot 
 call the indorsement itself an order for the payment of money, because 
 the word ' indorsement' is used in the act, and the act meant a distinct 
 instrument in mentioning a warrant or order. Then as to the tenth 
 section, the question is, whether this is forging a receipt for the pay- 
 ment of money ? The words are — l Received for R. Aickman, Gr. Ars- 
 cott/ I take it, that to forge a receipt for money, is writing the name 
 of the person for whom it is received. But in this case, the acts done 
 by the prisoner were, receiving for another person, and signing his own 
 name. Under these circumstances the prisoner must be acquitted upon 
 this indictment. "(g) 
 
 It now remains to notice the cases which relate to the instruments Construc- 
 which may be considered as warrants or orders for the payment of 'Arrant* or 
 money or delivery of goods. (q\ orders for 
 
 It appears at one time to have been contended that the statute was P a y ment of 
 
 . . . money. 
 
 confined to commercial transactions j but several cases have decided that The statute 
 it is not so confined. (r\ is not con- 
 
 *It has been frequently holden, that instruments which in the com- fi ° ° . , 
 mercial world have peculiar denominations, may yet be laid as war- transac- 
 rants, or orders for the payment of money, if they fall within those tl0 S s A-. r 
 terms, and are such in effect. So that a bill of exchange may be laid 
 as an order for payment of money, (s) and in one of the cases where exchange, 
 this point was considered by the judges, they were unanimously of &c.,maybe 
 opinion that it was well laid; and, it was observed, that every bill of warrants 
 exchange seemed to be an order for the payment of money, though not or orders 
 vice versd.(fj And in a subsequent case, the judges all finally concur- ° am g nt of 
 red in opinion, that a bill of exchange, or banker's draft was well laid money. 
 in the indictment as an order for payment of money ; on the ground 
 that though it was a bill of exchange, it was also a warrant for the 
 payment of money ; it was, if genuine, a voucher to the bankers or 
 drawees for the payment. (i/)f 
 
 (q) Rex v. Arscott, a G C. & P. 408. Littledale, J., Bolland, B., and Vaughan, J. 
 
 (r) Graham's case, 0. B. 1778. 2 East, P. C. c. 19, s. 41, p. 945. M'Intosh's case, 1800. 
 2 East, P. C. c. 19, s. 39, p. 942. 
 
 (*) Lockett's case, 0. B. 1772. Trin. T. 1774. 1 Leach, 94. 2 East, P. C. c. 19, s. 38, 
 p. 940. The instrument was in the following form : — 
 
 "London, Feb. 14, 1772. 
 " Messrs. Neale, James, Fordyce, and Down. 
 
 " Pay to Mr. William Hopwood or bearer, sixteen pounds ten shillings and sixpence. 
 
 "£16 10s. Gd. "R. Vennist." 
 
 (<) Shepherd's case, C. B. 1781. Mich. T. 1781. 2 East, P. C. c. 19, s. 40, p. 944. 1 
 Leach, 226. The instrument was as follows : — 
 
 "Green-street, 31st July, 1781. 
 
 " Sirs, — Pray pay to Mr. John Atkins, or bearer, six pounds six shillings, value received. 
 Yours, &c. "H. Turner." 
 
 (u) Willoughby's cases, Warwick Lent Ass. 1783. East. T. 1783. 2 East, P. C. c. 19, s. 
 40, p. 944, ante, p. 214. The instrument was in this form : — 
 
 " POST BILL. 
 
 "No. 6127." "Birmingham, 13 Feby. 1783. 
 
 "Sir Win. Lemon, Bt. <fc Co., Bankers, London. 
 
 " Pay 5 Gns. to Mr. Rich d . Moore, or bearer on demand, value received. 
 
 " Robt. Coales." 
 " Rec d . 5 Gns. 
 
 Enf 1 . R. Moore." 
 
 f {A counterfeit bank bill may be set forth, in an indictment for uttering it, as a forged 
 a Eng. Com. Law Reps. xxv. 461.
 
 515 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 M'Intosh's In another case the prisoner was convicted of forging and uttering, 
 
 Instrument knowing it to be forged, a certain order for the payment of money in 
 
 considered the words and figures following : — 
 
 as a bill of 
 
 exchange, __ 
 
 or order for "Petersfield, 6 August, 1799. 
 
 payment of « gj^ pi ease to pay on demand to Mr. Hugh Young, or order, all my 
 proportion of prize-money, due to me for my services on board his ma- 
 jesty's ship Leander, for which this shall be your authority. Witness, 
 my hand, 
 
 "John Johnson, 
 
 his mark. 
 " To Alexr. Davison, Esq. 
 No. 21, Milbank-street, Westminster. 
 
 Signed before us, — " Walter Noble, Minister. 
 
 « John Williams, "I Church 
 " Francis Gibbons, j wardens." 
 
 In two counts it was called an order for payment of money; and in 
 *516 two other counts a bill of exchange ; and it was stated to have *been 
 forged and uttered, with intent to defraud John Johnson. Four other 
 counts charged the offence to have been committed with intent to de- 
 fraud Alexander Davison. One of the objections on the part of the 
 prisoner was that this was not a bill of exchange, nor an order for pay- 
 ment of money within the 7 Geo. 2, c. 22, because no sum of money 
 was mentioned, and it was not certain that any money would be due to 
 Johnson. The point was referred to the consideration of the judges, 
 who held the conviction proper, (v) 
 Ravens- I n a case in which it appeared that the prisoner drew a bill, " Please 
 
 Not an C or- *° P a y * tte bearer on demand fifteen pounds, and account to your huni- 
 der for the ble servant, Charles H. Ravenscroft," which was his own name ; but 
 J^ men the bill was not addressed to any one; and it appeared that when the 
 instrument was uttered, the following words and signatures were forged 
 upon it, " Payable at Messrs. Masterman & Co., White Hart Court, 
 Wm. M'Inerheny ;" and it also appeared that M'Inerheny kept cash at 
 Masterman's & Co., who were bankers; a majority of the judges held 
 that this was not an order for payment of money, there being no special 
 averments in the indictment that it was intended for an order, or that 
 Masterinan & Co. were bankers. (w) 
 
 The prisoner drew a forged bill upon the treasurer of the navy, and 
 made it payable to blank or order, and signed it in the name of a navy 
 surgeon. It was holden that such a direction to pay to blank or order 
 was not sufficient, and that to constitute an order for payment of money, 
 there must be some payee. (x) 
 The war- it [ 8 $%[& that it seems to be settled, that if the warrant or order 
 der must " mentioned in the 7 Geo. 2, c. 22, do not purport on the face of it, or be 
 
 (v) M'Intosh's case, 1800. 2 East, P. C. c. 18, s. 39, p. 942. 
 
 (w) Lex v. Ravenscroft, Russ. & Ry. 161. 
 
 (x) Rex v. Richards, Russ. & Ry. 193, and see Rex v. Randall, id. 195. 
 
 promissory note; and if a design to defraud an individual is alleged, it is not necessary to 
 allege the existence of the bank of which it purports to be a bill. 2 Pick. 47, Common- 
 wealth v. Carey.}
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 516 
 
 shown, by proper averments, to be made by one having authority to purport to 
 command the payment of the money or direct the delivery of the goods, m a a v c j e e ^ n 
 and to be compulsory on the person having possession of the subject- one having 
 matter of it ; but only purport to be a request to advance the money or * lutnorit y 
 supply the goods on the credit of the party applying, which the other mand pay- 
 may comply with or not, as he sees proper, it is not a warrant, or an ment > Ac- 
 order within the statute, (y) 
 
 Thus it was holden that a note in the name of an overseer of the Mitchell's 
 poor to a shopkeeper, desiring him to let the prisoner have certain goods, ca se - 
 which he would see him paid for, was not a warrant or order for the a shop- 
 delivery of goods within the repealed statute. Nine of the judges, on kee P er > in 
 a conference, were clearly of opinion, that the writing was not a war- f an over- 
 rant or order for the delivery of goods within the act ; considering that seer of the 
 the words warrant or order, as they stand in the act, are synonymous, ^^ ° 
 and import that the person giving such warrant or order has, or at least be within 
 
 claims an interest in the monev or goods which are the subiect-matter tb , e TP e f 
 
 . i i- • J ed statute. 
 
 oi it, and has or at least assumes to have a disposing power over them, 
 
 and takes on him to transfer the property, or at least the custody of 
 them to the person in whose favour such warrant or order is *made. *517 
 And though this case must fall within the mischief, yet, in the con- 
 struction of an act so penal, the strict letter of it ought not to be de- 
 parted from. (2) 
 
 So a note to a tradesman, requesting him to let the bearer have eer- Williams's 
 
 tain o-oods, has been holden not to be an order for the delivery of goods case - So 
 
 a note to a 
 within the statute, it appearing that the person whose name was forged tradesman 
 
 in the note, though a customer of the tradesman, was not the owner of, requesting 
 nor had any special interest in the goods in question, or any others in thTbearer 
 the tradesman's hands, nor had any authority to send any such order if havecer- 
 it had been genuine.(a) tain S ood3 ' 
 
 Upon similar grounds it was ruled, by a very learned judge, that a Rush- 
 forged order for the purpose of obtaining a reward for the apprehen- wortn ' s 
 sion, &c, of a vagrant, was not a forgery within the statute, unless it forged or- 
 contained the requisites prescribed by the Vagrant Act, 17 Geo. 2, c. 5, der > for tne 
 s. 5, now repealed. It appeared that the order was deficient in the re- obtaining a 
 quisites described by that act, inasmuch as it did not purport to be under reward for 
 seal, and it was not directed to the high constable of the Riding ; and jjenstorTof 
 it was contended, on behalf of the prisoner, that such an instrument, a vagrant, 
 supposing it to have been genuine, would have been perfectly inopera- l^be^ith- 
 tive ; that it was nothing more than an order by a magistrate on the in the stat- 
 county treasurer, for the payment of a sum of money, over which the * u ' e > *' 
 magistrate had no control or dominion whatsoever, except by means offi c i e ntin 
 the 17 Geo. 2, c. 5. On the part of the prosecution, it was contended the requi- 
 
 (y) '2 East, P. C. c. 19, s. 37, p. 936. Reg. v. Newton, 2 Moo. C. C. R. 59, post, p. 525. 
 
 (z) Mitchell's case, Fost. 119. 2 East, P. C. c. 19, s. 37, p. 936. 
 
 (a) Williams's case, 1T75. 1 Leach, 114. 2 East, P. C. c. 19, s. 37, p. 937. The point 
 was submitted to the consideration of the judges, who all (De Grey, 6. J., and Willes, J., 
 being absent,) agreed that the case was not within the statute, feeling themselves bound by 
 the authority of Mitchell's case, note (z) ; but most of them said they should have doubted 
 the propriety of that determination, if it had been res Integra; but as it had been so long 
 acquiesced in they thought it could not be departed from. And accordingly, in a subse- 
 quent case, a note in the following form, " Messrs. Songer, please to send 10Z. by the 
 bearer, as I am so ill, I cannot wait on you, Eliz. Wery ;" was holden not to be an order 
 within the statute. Ellor's case, 0. B. 1784. 2 East, P. C. c. 19, s. 37, p. 938. 1 Leach, 
 323. The prisoner was, therefore, acquitted of the felony ; but detained, and at a subsequent 
 eessious convicted of the misdemeanor. 1 Leach, 323.
 
 517 
 
 OF THE FORGERY OF PRIVATE PAPERS, 
 
 [BOOK IV. 
 
 sites pro- 
 scribed by 
 the statute 
 which au- 
 thorized it 
 to be made 
 
 *518 
 
 principally, that since orders in the form of the order in question had 
 been generally drawn and acted upon in the Hiding of the county in 
 which this offence was committed, it was not essential, to bring the pri- 
 soner within the statute, that the order should comply with the requi- 
 sites of the 17 Geo. 2, c. 5 : and that it was sufficient that it pursued 
 the usual form, being thereby capable of being the instrument of fraud. 
 But Bayley, J., said, " To bring the case within the statute, the order 
 must be such as, on the face of it, imports to be made by a person who 
 has a disposing power over the funds. In this case, the party looking 
 at the act must have known that the order was not made by one who 
 had a disposing power over the funds in his hands. The magistrate, 
 as an individual, had no right to make such an order, and the trea- 
 surer had no right to consider it as an order which he was bound to 
 obey. The magistrate, in his character of a justice of the peace, had 
 no authority to make such an order; if he had any it was derived from 
 the statute, but he had no power to make such an order as this, and if 
 such a one had been made, the treasurer ought to have obeyed it."(b\ 
 
 *The same prisoner was tried and convicted at the same assizes for 
 presenting the same order to the treasurer of the county pretending it 
 was genuine, and obtaining from the said treasurer under such order 
 the sum of 41. 10s. 6d. The indictment after charging that the prisoner, 
 with intent to cheat, &c, the treasurer, presented the order, and that he 
 knowingly, &c, pretended that it was a genuine order, proceeded, " And 
 so the jurors, &c, say, that the prisoner on the day and year, &c., did 
 obtain the said sum of 41. 10s. 6d.;" but the intent to cheat and defraud 
 the said treasurer was not stated in this part of the indictment, nor was 
 the obtaining charged to have been effected knowingly and designedly. 
 And upon a case reserved the judges held the indictment bad.(c) 
 
 By the 48 Geo. 3, c. 75, a justice of the peace may order the treasu- 
 rer of the county to pay every churchwarden, overseer, headborough, 
 or constable, the expenses he has incurred in burying any dead body 
 that has been cast on shore. A justice's order was forged, stating that 
 a dead body had been cast on shore in the parish of A., that I. S. had 
 made oath before the justice that he had laid out 3^. 5s. in the burying 
 such body, and requiring the treasurer to pay that sum. The indictment 
 was for forging and uttering, &c, this order; and was founded on the 7 
 Geo. 2, c. 22, and the prisoner's counsel objected that the order in ques- 
 tion was not properly a warrant or order for the payment of money with- 
 
 (6) Rushworth's case, cor. Bayley, J., York Sum. Ass. 1816. Russ. & Ry. 317. The pri- 
 soner was accordingly acquitted upon that and another similar indictment. In Graham's 
 case, 0. B. Oct. 1778, 2 East, P. C. c. 19, s. 41, p. 945, ante, p. 514, note (r), the prisoner 
 was indicted for a similar offence, and an objection taken on his behalf was, that the 18th 
 sec. of the 17 Geo. 2, c. 5, expressly subjected the party forging such an order to a penalty 
 of 50L, which must be considered as a repeal of the 7 Geo. 2, c. 22, as to orders of this 
 decision. And it is observed in 2 East, (ubi supra,) that this objection seems to have been 
 entitled to a different consideration from what it is stated to have received ; as the prisoner 
 was, notwithstanding, convicted, and received judgment. And a qu. is made as to what 
 became of the case. It should, however, be observed, that this 18th sec. of the 17 Geo. 2, 
 c. 5, enacted, that " in case any such petty constable or other officer or governor or master 
 of any house of correction, shall counterfeit any such certificate, receipt, or note, or make 
 or knowingly permit to be made any alteration in any such certificate, receipt, or note, he 
 shall forfeit the sum of fifty pounds ;" and that it does not appear from the report that the 
 prisoner, Graham, was a petty constable or other officer, &c. A still better answer to the 
 objection seems to be, that the order in question was neither a certificate, receipt, nor note, 
 within the 18th sec. of the 17 Geo. 2, c. 5. 
 
 (c) Rex v. Rushworth, cor. Bayley, J., York Sum. Ass. 1816, Russ. & Ry. 317. 
 
 Froud's 
 case. Or- 
 der upon 
 the trea- 
 surer of a 
 county.
 
 CnAP. XXXIX.] SECURITIES AND DOCUMENTS. 518 
 
 in that statute. He contended that it was not in its purport a compul- 
 sory or even a valid order within the 48 Geo. 3, c. 75, as it did not ap- 
 pear on the face of it that the person who was stated to have laid out 
 the money, and to whom repayment thereof was ordered, was one of 
 the officers of the parish or place to whom, by that statute, a justice of 
 the peace has authority to order a repayment. And he contended also 
 that the order must be compulsory, which this was not, because it did 
 not state all that was sufficient to entitle the person to the payment of 
 the money : and further that the instrument also purported to be an 
 order to pay to the person at whose expense the corpse was buried, and 
 not to the officer of the parish or place who had repaid him. The 
 learned judge thought that the order, though it might not be compul- 
 sory, was not in itself a nullity, nor made void by the statute, but was 
 still an order for the payment of money, and protected by the 7 Geo. 2, 
 c. 22. But the prisoner being convicted, a case was reserved for the 
 consideration of the judges. * Several of the judges thought the con- *519 
 viction wrong, being of opinion that the instrument was not properly a 
 warrant or order for the payment of money within the 7 Geo. 2, c. 22, 
 because the justices had no authority to make such an order, but in 
 favour of a churchwarden, overseer, &c. : but a majority of the judges 
 thought the conviction right, because it did not appear on the face of 
 the order that I. S. was not a churchwarden, &c. : and that if nothing 
 appeared to the contrary, on the face of the order, they thought the 
 treasurer bound to conclude that the justice had not made an order 
 without satisfying himself that I. S. was a churchwarden, &c.(cZ) 
 
 It follows from these principles that an indictment for forging a war- It must not 
 rant or order will be bad in form, if it appears, upon the face of it, that jy* , *"d ,U * 
 the person whose name was subscribed to the warrant or order had no me nt that 
 authority to make them. th ® person 
 
 An indictment which charged the prisoner with forging an order for name was 
 
 the delivery of goods stated that the order was subscribed by one L. D., subscribed 
 
 "he, the said L. D., then and there being the servant of one J. L. D., thority to" 
 
 in his business of a silk dyer, and purporting to be a warrant or order make the 
 
 from the said L. D. as such servant of the said J. L. D., for the delivery wa ™" ant or 
 
 of 81b. of raw silk." It appeared upon the evidence that L. D., whose clinch's 
 
 name was forged, was, in fact, the son of J. L. D., and was apprenticed case. Hol- 
 
 to his father, whose business of a silk dyer was principally conducted ou ^ ht ^ 1 
 
 by him. Amongst other objections, on behalf of the prisoner, it was have ap- 
 
 urged that to bring the offence within the statute the order must purport p , ear . ed 1 . ir ! 
 i ii iii i i i • i tne m| iict- 
 
 to be made by a person who had an authority, or at least claimed an me nt that 
 
 interest in the subject-matter of it, and who took upon him to transfer 411 ® P erson 
 it to the person in whose favour the order was made. That it was not name was 
 averred in the indictment that L. D., whose order it purports, and is subscribed 
 averred to be, had any authority over, or interest in, the goods in ques- der had " 
 tion, or any authority to make such an order, which ought to have been authority 
 expressly alleged. It states that another person was the owner, namely, t0 ma ° ' • 
 the father J. L. D., to whom the son was only a servant ; and it can- 
 not be inferred from that circumstance that the son had authority over 
 the goods ; and the want of such an averment cannot be supplied by 
 parol evidence : on the contrary, the order appears to have been made 
 by an apprentice, who was not sui juris, and had no disposing power. 
 
 (d) Rex v. Froud, cor. Holroyd, J., Cornwall Lent Ass., 1819, and Trin. T. 1819, Russ. & 
 Ry. 389.
 
 519 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 The prisoner, having been convicted, the case was referred to the con- 
 sideration of the judges, who held the conviction bad. The learned 
 judge, who delivered their opinion, said, » that on the construction of 
 the statute the forged warrant, or order for the delivery of the goods, 
 must purport to be the order of the owner, or of some person who has, 
 or at least claims, an interest in, or who has, or at least assumes to have 
 a disposing power over the goods, and takes upon him to transfer the 
 property or custody of them to the person in whose favour such order 
 is made." And, as to the form of the indictment, he said, " that it 
 ought to have appeared in the indictment that the person, whose name 
 was subscribed to the order, had no authority to make it ; but that this 
 *520 could not be collected by any legal inference from the *words of the 
 indictment; for L. D., the person whose name was forged, was stated 
 to be the servant of the owner, which excluded every idea that he had 
 or could claim any interest in the goods which were the subject of the 
 order, and that it ought to have been expressly averred that he had 
 authority to make it.(e) 
 The order In the foregoing case it was further objected, on behalf of the priso- 
 must d b ® dl " ner, that the instrument in question was not an order, but a bare re- 
 the holder quest ; that it was not directed to any person, and consequently was 
 or person no t U p 0n the face of it, compulsory upon the holder of the goods ; and, 
 in, orhav- farther, that it ought to have appeared on the face of the indictment 
 ingpossc=- that the order was to the holder of the goods. (/) Upon these points 
 goods. ^ Qe learned judge, who delivered the opinion of the judges, said, " that 
 the order must be directed to the holder or person interested in or hav- 
 ing possession of the goods. That the order set forth in the indictment 
 was not directed to any person whatsoever, but merely expressed a desire 
 that 81b. of silk should be delivered to the bearer of it without any 
 direction from whom it was to be received. And that on this ground, 
 therefore, the judges were of opinion that this was not a warrant or 
 order within the statute."^) 
 But if the j$ u t it should be well observed that if the order purport to be one 
 port to be" which the party has a right to make, although in truth he had no such 
 one which right ; and although no such person as the order purports to be made by 
 ha g ^jg ht existed in fact, it falls within the penalty of the statute. (A) 
 to make, it The prisoner was convicted of knowingly uttering a forged order for 
 within the ^ e payment of money, in these words, " Messrs. Neale, Fordyce, and 
 act. Down, pay to Wm. Hopwood or bearer, 16£. 10s. Qd. Rt. Vennest," 
 
 Lockett's with intent to defraud one John Scoles.(i) It appeared that the pri- 
 fonred or soner applied to Scoles, who was a colourman, and agreed to purchase 
 der on a goods to the amount of 101. 10s. 6d., which he was to send for. He 
 bankerhol- wen t away taking with him a little Prussian blue ; and afterwards came 
 within the again, pretending to be in a hurry, and piesented this note, which he 
 
 (e) Clinch's case, 0. B. 1791, decided by the judges, 11th May, 1791. 2 East, P. C. c. 19, 
 s. 37, p. 938. 1 Leach, 540. And see Rex v. Wilcox, Russ. & Ry. 50, ante, p. 374. And it 
 seems, therefore, that if the indictment states the person in whose name the order was 
 forged to have been servant to I. S., and that the order was for the delivery of goods to I. 
 S., it ought to show that the servant as such had a disposing power over the goods. MS. 
 Bayley, J. 
 
 (/) The form of the instrument was: — 
 
 "Please to send by the bearer, 81b. of that whorpe hun market. 
 
 "M. Desemockex." 
 
 (g) Clinch's case, ante, note (c). (h) 2 East, P. C. c. 19, s. 38, p. 040. 
 
 (i) The form of the order is given with some slight difference in another report. See ante, 
 p. 515, note («).
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 520 
 
 said was a good one ; and for which Scoles gave him 61. 10s., being the statute, 
 difference. No such person as B,t. Vennest kept cash with Messrs. m ^- m a 
 Neale and Co. ', nor did it appear that there was any such man existing, fictitious 
 Upon these facts it was submitted to the consideration of the judges, name ' i f ( l t 
 whether this was an order within the statute ;(_/) and after very long to bo made 
 consideration they at last agreed that it was a forgery. They thought b y a P erson 
 it quite immaterial whether such a man as Vennest existed or not ; or ^^ w i tn 
 if he did whether he had kept cash at the banking-house of Messrs. such kank- 
 Neale and Co. ; and that it was sufficient that the order assumed *those '#co-i 
 facts, and imported a right on the part of the drawer to direct such a 
 transfer of his property. (k) 
 
 The indictment charged the prisoner with forging a certain order for The order 
 the payment of money, as follows : — charged as 
 
 ought to 
 St. Ann's Union. import that 
 
 " Mr. Thomas, _ making it 
 
 " Sir, — You will please to pay the bearer, for Richard Power, has a dis- 
 
 three pounds for three weeks due to him, a country member, and you £°^°jF over 
 
 will much oblige your's, &c. J. Beswick. the subject 
 
 Feb. 21, 1829. 2, Brown's Buildings, Stanhope Street." °JJ^ or 
 
 " To Mr. Thomas, Gray's Inn Lane." there ought 
 
 to be proof 
 with intent to defraud John Thomas, the said Thomas, on whom the person i n 
 said false, forged, and counterfeited order for payment of money was whose 
 made, then and there being intrusted with, and having in his hands j^ 1 *}® ha ^ 
 and possession, as the landlord of a certain public-house, known by the such power. 
 name of the " Crown and Barley Mow," in Gray's Inn Lane, a certain 
 large sum of money, to wit, the sum of thirty pounds, belonging to W. 
 Ireland and others, members of a Friendly Society called the St. Ann's 
 Union, meeting at the said public-house, for the purpose of enabling the 
 said J. Thomas to pay, and that he might pay all orders for payment of 
 money due to any of the members of the said Society, according to the 
 rules and regulations thereof. Second count for uttering and publishing 
 as true, a like order for payment of money, well knowing the same to 
 be false, forged and counterfeited, with intent to defraud the said J. 
 Thomas. Third, same as second, with intent to defraud J. Beswick. 
 Fourth same, with intent to defraud W. Ireland and others. J. Thomas 
 was the landlord of the Barley Mow, Gray's Inn Lane. A society 
 called the » St. Ann's Friendly Society," was holden at his house, of 
 which Mr. Beswick was the secretary ; there was usually money in Tho- 
 mas's hands to pay any demands that might be made by Mr. Beswick's 
 orders. On Saturday, 21st February, the prisoner produced a check 
 to Thomas, at his house, and said he brought it from Mr. Beswick's 
 for three pounds, for a country member, who had broken his arm. 
 Upon looking at it Thomas saw it was not Mr. Beswick's handwriting, 
 and told him so : he said he knew that ; that Mr. Beswick, being an 
 undertaker, was out of town at a funeral, and that Mrs. Beswick 
 directed her son to write it ; Thomas, according, gave him the three 
 
 (j) The doubt was stated to have arisen on what was stated in Mitchell's case, ante, p. 
 516. 
 
 (k) Lockett's case, 0. B. 1771, Trin. T. 1774. 1 Leach, 94. 2 East, P. C. c. 19, s. 38, p. 
 940. S. P. in Abraham's case, 1774. 2 East, P. C. c. 19, s. 38, p. 941. The prisoners in 
 each case received judgment of death, accordingly.
 
 521 
 
 OF THE FORGERY OF PRIVATE PAPERS, 
 
 [BOOK IV. 
 
 pounds. Mr. Beswick proved that the handwriting in the check was 
 not his ; and that there was do member of the name of R. Power in the 
 society. On the 21st of February, Beswick lived at No. 2 Brown's 
 Buildings, Stanhope Street, Clare Market. It was proved, that no au- 
 thority was given to any one to write or issue the check ; and that it 
 was not written by Beswick's son. W. Ireland said he was a member 
 of the St. Ann's Society (there were many other members,) that he sub- 
 scribed to the funds of it ; if taken ill, a member received money from 
 the funds of the society to support him. They were no rules or regu- 
 *522 lations put in, *or any evidence of their having been enrolled. The 
 Recorder suggested that, upon the authority of Mitchell's case,(rc) the 
 prisoner ought to be acquitted, as for want of the rules and regulations, 
 of which no parol evidence could be given, there was no evidence to 
 prove that Beswick had any disposing power over the money in the 
 hands of Thomas. Littledale, J., and Gaselee, J., however, thought 
 the better way was to leave the case to the jury, and reserve the point 
 suggested for the consideration of the judges, if the prisoner should be 
 convicted. The jury found the prisoner guilty on the counts for utter- 
 ing, and upon a case reserved, all the judges (except Gaselee, J., and 
 Park, J.) thought that this was not an order on the face of it ; and that 
 the conviction was therefore wrong, (o) 
 
 Where the forged instrument does not purport on the face of it to be 
 an order, and the party in whose name it is drawn had not the right or 
 power to order the payment of the money at the time when the instru- 
 ment is drawn, it is not an order for payment of money within the 1 
 Wm. 4, c. 66, s. 3. The indictment charged the prisoner with forging 
 on order for the payment of money, which was set out in the first count 
 as follows : — 
 
 The party 
 in whose 
 name the 
 instrument 
 is drawn 
 must have 
 the right to 
 command 
 payment, 
 or it is not 
 an order 
 within the 
 1 Wm. 4, c. 
 66, s. 3. 
 
 Monmouth, June, 9, 1842. 
 " Mr. Fisher, I should feel greatly obliged to you if you will please 
 to send by the bearer the sum of three pounds, as I have had a large 
 quantity of bones this week, and the man from Coleford is coming in 
 to-morrow with 10 cwt. I have about one ton now. 
 
 " Yours, 
 
 Thomas Davis." 
 " Mr. E. Fisher, Lanwarne." 
 
 with intent to defraud J. E. Fisher. The instrument was described ii 
 all the succeeding counts generally as an order for the payment of 
 money. Upon the trial, it appeared that the prisoner had written the 
 letter and forged the signatures of Davis thereto, and that Fisher, on the 
 faith of its being genuine, had paid the 3/. to the bearer of the same. 
 Davis was a waterman living at Monmouth, and was in the habit of 
 collecting bones throughout the adjoining country, and sending them to 
 Fisher as he collected them, generally by a wagon-load or three tons at 
 a time. Davis did not wait till he delivered the bones, before he got 
 paid, but drew upon Fisher as he was collecting the bones, but at the 
 time the letter was written, Davis had overdrawn, and bad no money 
 due to him from Fisher. The jury found the prisoner guilty, but a doubt 
 occurred to Lord C. J. Tindal, whether this would be considered an order 
 
 (n) Foster, 119, ante, p. 516. 
 
 (o) Rex v. Baker. R. & M. C. C. R. 231. Park, J. A. J., was absent.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 522 
 
 for the payment of money within the meaning of the 1 Wm. 4, c. 6G, 
 s. 3, and his Lordship submitted that question to the consideration of the 
 judges, and all the judges present agreed that this was not an order for 
 the payment of money, the party who made the order not having any 
 right or power to make it.(^) 
 
 *A charge for forging an order for the payment of money is supported *523 
 by proof of a foreign letter, requesting a correspondent of the supposed A foreign 
 writer in England to advance money, it being proved that such letters ques ting a 
 are in the course of business treated as orders. The prisoner, a German, corrcspon- 
 went to Messrs. Rothschild with the following letter, purporting to come vamjcTmo 
 from Cologne from Messrs. Schaaffhausen, who were correspondents ofneymaybe 
 Rothschild, whose house had money of S. in their hands. He presented state( * tobe 
 
 , . ,» -rv ts * a an °™er, if 
 
 himseli as Dr. h. A. Stern, such letters 
 
 « Cologne, 23d 3Iarch, 1838. aresotreat- 
 " Gentlemen, — I beg to introduce to you Dr. F. A. Stern, who in- C0U rse of 
 tends stopping some time in England for scientific purposes. You would business, 
 therefore much oblige me if you could acquire him the necessary access 
 to public buildings, such as libraries, &c. I also request you in case he 
 should be at any time in want of money to pay him at his desire to the 
 extent of £60 sterling, as he is accredited with me, and I am conse- 
 quently prepared to pay such an amount against his receipt. It will in 
 similar cases be my zealous endeavour doubly to outweigh all the 
 kindness you may be pleased to show him, and I have the honour to 
 remain, &c. 
 
 "A. Schaaffhausen." 
 
 When the prisoner presented this letter, he described himself as the Dr. 
 Stern therein mentioned, but at that time no money was paid him : but 
 in two days he called for 301. and it was paid him on the credit of the 
 letter. He brought the following receipt with him : "For account of 
 Mr. A. S. of Cologne, to have received of Rothschild and Sons the sum 
 of 307. Attests "Dr. F. A. Stern." He again went in two days more 
 with another receipt for 301. more, and got that money; 601. altogether. 
 It was proved that when such a paper as this letter, is brought to Messrs. 
 Rothschild from a correspondent, who has money in their hands, the 
 person who brought it is paid whatever he claims, not exceeding the 
 amount mentioned. If such person does not require the whole, the 
 house writes upon the letter whatever is paid, and they consider such a 
 document exactly as they would a bill of exchange, and equally obliga- 
 tory on them to pay to the extent of the fund in hand. The question 
 was, whether the above document was a warrant or order for the pay- 
 ment of money, within the 1 Wm. 4, c. 66, s. 3 : and, upon a case re- 
 
 (p) Reg. v. Thomas Roberts, Monmouth Sum. Ass. 1842, and Mich. T. 1842. Alderson, B. 
 Patteson, J., and Coleridge, J., were absent. This report is taken from the case submitted 
 to the learned judges, with which the editor was favoured by the Lord Chief Justice. Reg. 
 v. Rogers, ante, p. 378, was referred to before the judges, where an indictment for forging a 
 warrant for the payment of money under similar circumstances was held sufficient, because 
 the instrument would have been a voucher for the payment. Upon Reg. v. Rogers being cited 
 at the trial, Tindal, C. J., said, " in that case the instrument was charged as a warrant. The 
 doubt I feel is, whether such an order as this, made upon a person when there are no funds 
 in bis hands, is an order within the statute. Suppose Fisher had said, " I will not pay the 
 money, I will have the bones first," Davies would have had no remedy against him. A 
 banker who had money in his hands could not say so. The question is whether this instru- 
 ment is an order for the payment of money. It might be a very good warrant for the pay- 
 ment of it." MSS. C. S. G. 
 
 Vol. ii.— 34
 
 523 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 served, the judges were unanimously of opinion that the facts with the 
 paper warranted their considering this document as an order. (^>) 
 An order to An instrument contained an order to pay the prisoner or order a sum 
 pay a sum Q f mone y ? being a month's advance on an intended voyage, as per 
 • >f an in- agreement with the master, in the margin of which the prisoner had 
 tended written an undertaking to sail in a certain number of hours, is an order 
 for the payment of money, within the 1 Wm. 4, c. 66, s. 3. The pri- 
 soner was indicted for uttering the following order for the payment of 
 money : — 
 *524 *« Port of London, May 1st, 1834. 
 
 " Three days after the ship Mary Ann sails from 
 
 Gravesend, please to pay to Wm. Bamfield or his 
 
 On receiving this check order the sum of four pounds five shillings, being 
 
 I agree to sail in the ship montn > s a fa ance in part of wages of an intended 
 
 Mary Ann, and to be on r fc 
 
 board within sixteen hours voyage to Quebec in the ship hereinbefore men- 
 from the date of this tioned, as p er agreement with your obedient ser- 
 
 ' "May 1st." Vant, 
 
 "G. Martin, Master." 
 «ToR. Ray, Esq. 
 "No. 48, Fore Street, City." 
 
 with intent to defraud E. Child and another. The prisoner was con- 
 victed, subject to the opinion of the judges whether the order set forth 
 in the indictment were an order for the payment of money within the 
 meaning of the 1 Wm. 4, c. 66, s. 3, and at a meeting of all the judges, 
 (except Lord Lyndhurst, C. B., Park, J. A. J., and Bolland, B.) this 
 case was considered, and the conviction was unanimously held good.(j) 
 Where an Where the sum mentioned in an order for the payment of money, is 
 indictment truly stated in an indictment, it is no variance that by the course of 
 sum men- business of the bank where the order is payable, the bank would pay 
 tioned in a that sum together with the interest then due upon it. An indictment 
 der, it is no contained eight counts, of which the following only became material, 
 variance The third count charged the prisoner with feloniously forging "a certain 
 course^of e warrant and order for the payment of money, (to wit,) a warrant and 
 business order for the payment of 85/." The sixth count described the instru- 
 where ^is ment as " an acc l u i ttan ce and receipt for money, (to wit) for 85/." The 
 payable seventh and eighth counts were for uttering forged instruments de- 
 would pay s cr ibed as in the the third and sixth counts. It appeared that John Mann, 
 together i Q June, 1839, had deposited the sum of 85/. in the hands of Jonathan 
 with inter- Backhouse and others, who constituted the Darlington Bank at Stock- 
 whether ton > an< ^ tnat on that occasion he received from the bank an accountable 
 the sum receipt in the following form : 
 
 material c " ^°- F. 266. Darlington Bank, Stockton. 
 
 I 12th, 6 M. 1839. 
 
 ~S a Received of John Mann 
 
 ^J Eighty-five pounds 
 
 "S § to his credit, 
 
 S 1 *"' For Jonathan Backhouse & Co." 
 
 J ",£85. Frederick Backhouse." 
 
 h « Entered, F. B." 
 
 (p) Reg. v. Raake, a 2 Moo. C. C. R. 66. 8 C. & P. 626. 
 \q) Rex v. Bamfield, R. & M. C. C. R. 416. 
 
 »Eng. Com. Law Reps, xxxiv. 557.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 524 
 
 la October, 1840, the prisoner having this receipt in his possession, 
 went to the bank, and representing himself to be John Mann therein 
 mentioned, he wrote the words, « John Mann" on the face of the receipt, 
 and delivered it to the bankers, who paid him the sum of 87?. 17s. Qd., 
 being the amount mentioned in the receipt with ^interest. By the *525 
 course of dealing between the bankers and the customers, interest was 
 payable on their accountable receipts, and the bankers on having a re- 
 ceipt delivered back to them with the name of the party who had de- 
 posited written upon it by him, treated it as an order for the payment 
 of the amount deposited with the interest then due, and paid such amount 
 and interest accordingly. It was objected, that on the evidence these 
 counts were disproved; that the document itself, independent of the 
 evidence, had no meaning, and that the evidence showed it to be an 
 order or warrant not for 851., but for 87?. 17s. Qd. For the prosecution 
 it was submitted, that it was not necessary to state the amount at all, 
 and that being stated under a videlicet, it need not be proved precisely; 
 and, upon a case reserved, after a verdict of guilty, upon the question 
 whether the evidence supported the third, sixth, seventh, and eighth 
 counts, or either of them, the judges held the conviction right. (r) 
 
 The prisoner was indicted for uttering a forged order for the delivery a prisoner 
 
 of goods, which was set forth as follows : — convicted 
 
 or confess- 
 ing an in- 
 "July, 11, 1838. dictment 
 
 "Mr. Lang, please to send one piece of lead by the bearer 12 long ^" r U g d ing 
 16 wide. "George Kilby, Queenborough." order ought 
 
 not to have 
 
 with intent to defraud, &c. The prisoner pleaded guilty; on looking passed, if 
 into the facts, it occurred to Bosanquet, J., that they did not show any il appears 
 right in Kilby to make an order on Lang for the delivery of lead, and person 
 that the instrument set forth in the indictment did not import any thing whose 
 more than a request, which Lang might or might not comply with, as fb^ed^had 
 he might think fit, and he respited the sentence in order to bring the no author- 
 case under the consideration of the judges, who held the conviction lt y toorder » 
 wrong, and ordered a fresh indictment to be preferred for forging, &c, writing 
 a request for the delivery of goods, under the 1 Win. 4, c. 66, s. 10. (s) merel .>' 
 
 We have seen that it has been held that where an indictment des- request. 
 cribes a warrant for the payment of money, under the 2 & 3 Wm. 4, c. 
 123, s. 3, averments to show what the instrument is, are not necessary, 
 but it is a matter of evidence whether the instrument comes within the 
 description given of it by the indictment.^) 
 
 We have also seen, that an instrument may be described as a warrant I f tne cha- 
 and order, if the instrument be in fact both a warrant and order; a war- instrument 
 rant authorizing the banker to pay, and an order upon him to do so.(?t) be such as 
 And in a late case, where the prisoner was indicted for stealing four* be bot ^ 
 
 ~ ' , , • i i •! ■, • ° a warrant 
 
 post-orhce money orders, which were described in some counts as "war- and order; 
 rants and orders for the payment of money," and it was objected that u m " y h .® 
 such description was not correct, because it was uncertain; the judges e d in an in- 
 upon a a case reserved, were all of opinion that what was meant by the dictment. 
 
 (r) Reg. v. Atkinson," 1 C. & Mars. 325. 
 
 (a) Reg. v. Newton, 2 Moo. C. C. R. 59. 
 
 h) Reg. v. Rogcrs, b 9 C. & P. 41, ante, p. 278. 
 
 (w) Rex v. Crowthier," 5 C. & P. 31G. See also Reg. v. Atkinson, supra. 
 
 • Eng. Com. Law Reps. xli. 181. »> lb. xxviii. 28. c lb. xxiv. 337.
 
 525 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 indictment was, that the prisoner stole four instruments, or four valu- 
 
 ahle securities, each of which was both a warrant and order, and putting 
 
 *52G that construction upon the ^indictment, they were of opinion that the 
 
 instrument stolen was a warrant and order. They were of opinion it 
 
 was an order as well as a warrant, because assuming the post-master 
 
 had paid the order, the document itself delivered up to him would be a 
 
 warrant, which would be a discharge from the person to whom he had 
 
 to account for the post-office money. Therefore they were of opinion 
 
 that the counts of the indictment were not uncertain, meaning that 
 
 these instruments had both characters, (mm) 
 
 A? to the With respect to the form of the order in other respects, it appears 
 
 ti'.m 'of The not to ^ e necessary that the particular goods should be therein specified, 
 
 goods in provided it be conceived in terms intelligible to the parties themselves, 
 
 the order. tQ w j 10m g^h or( j er j s addressed. 
 
 Jones's In a case where the prisoner had been convicted of forging an order 
 
 ease. Or- f or t ae delivery of goods to the following purport: "Sept. 23d, 1764. 
 following Sir, please to deliver my work to the bearer, Lydia Bell, Fleet-street, 
 form: London," with intent to defraud the wardens and company of gold- 
 detiveTmw smiths ; and it appeared that the goods in question were articles of 
 work to the plate, which had been sent by Messrs. Bell, a silversmith, to Goldsmith's 
 hearer. pr^ to be marked ; and that the form of the order was the same as 
 was usually sent upon such occasions, except that in strictness, and by 
 the rule of the plate office, the several sorts of work, with the weight 
 of the silver, ought to have been mentioned in it; the judges affirmed 
 the conviction upon reference to them, after a motion to arrest judg- 
 ment. But the prisoner was pardoned on condition of transporta- 
 tion. (?;)f 
 An order The order will not be the less the subject of forgery, on account of 
 "bleYy 1 " ^ s n0 * k e irig available by reason of some collateral objection, not ap- 
 reason of pearing upon the face of it. Thus, where the prisoner had been con- 
 sole col- Y j c t e( j f or forging a n order for the payment of prize-money, and it 
 jeotion appeared that the party whose name was forged was a discharged 
 may yet be seaman> an( j waS) a t the time the order bore date, within seven miles of 
 of forgery, the port where his wages were payable ; under which circumstances his 
 genuine order would not have been valid, by the provisions of the 
 32 Geo. 3, c. 34, s. 2, unless made in the manner therein prescribed; 
 the judges held the conviction to be proper, the order itself purporting 
 on the face of it to be made at another place beyond the limited dis- 
 tance, (w) 
 Requests I Q consequence of certain forged instruments having been held not to 
 for the de- come within the words " warrant" or " order" in the 7 Geo. 2, c. 22, 
 ^oods. now repealed,^) the word " request" has been introduced into the 1 
 
 (mm) Reg. v. Gilchrist,* 1 C. & Mars. 224. 
 
 (v) Jones's case, 1764, 1 Leach. 53. 2 East, P. C. c. 19, s. 39, p. 941. 
 
 In-) M'Intosh's case, 1800, 2 East, P. C. c. 19, s. 39, p. 942. 2 Leach, 883. Ante, p. 353. 
 The same case is cited for another point, ante, p. 515. See Reg. v. Pike, 2 Moo. C. C. R. TO, 
 ante, p. 353. 
 
 (x) See the cases, ante, p. 516. 
 
 f jUnder a statute of Connecticut, providing a punishment for forgery of certain enume- 
 rated instruments, " or any other writing to prevent equity and justice;" it was held that 
 forging the following order was within the statute, viz.: " Messrs. D. & D., please let the 
 bearer trade ten dollars out of your store, and oblige yours," &c. 5 Day, 250, State v. Coo- 
 per.} 
 
 a Eng. Com. Law Reps. xli. 126.
 
 GHAP. XXXIX.] SECURITIES AND DOCUMENTS. 52G 
 
 Wm. 4, c. G6, and the following cases have been since decided relative 
 to requests for the delivery of goods. 
 
 An indictment for forging and uttering a request for the delivery of A request 
 goods, set out the request in each count in the words and figures fol- Hver/of 6 " 
 
 lowing: — goods need 
 
 not be ad- 
 dressed to 
 
 " Gentlemen, any parti- 
 
 "Be so good as to let the bearer have 51 yards of blue to pattern, cu!ar P er " 
 and send the drab cloth up, in the whole piece, on Monday *morning, *5<>7 
 by 10 o'clock; also a yard measure, as I do not know what quantity will 
 be wanted, and you will oblige 
 
 « W. Reading, Mortimer-street." 
 
 "N. B. Let the drab be good, as it is for the inspection of a gentle- 
 man. 
 
 The jury found the prisoner guilty, and, upon a case reserved upon 
 the question, whether as the request was not addressed to any individual 
 person by name or description, the request set out in the indictment was 
 a request for the delivery of goods within the words and true intent of 
 the statute, the judges present held the conviction right. (xx\ 
 
 So where the prisoner was indicted for forging a request for the de- Same point 
 livery of goods with intent to defraud Messrs. Warner and Co., and the j^st'ease 6 
 instrument forged was as follows : — An instru- 
 
 ment mere- 
 ly snecifv- 
 
 " Aug. 3, 1839. One 16 in. helmet scoop ; one 4 quart oval kettle, ing the 
 
 « Jas. Hay ward." s°o ds mnv 
 
 be shown to 
 be a request 
 
 And it was proved that the prisoner had been in the employ of Hay- *>y the cm- 
 ward, an ironmonger, who had had dealings for some years with Messrs. t ^de. 
 Warner, and that once or twice, during the time the prisoner was in 
 Hayward's employ, he had taken orders from him to Messrs. Warner. 
 It was also proved by a person, who managed the business of Messrs. 
 Warner, that it was the custom of their business to deliver goods on 
 such papers as the one in question; it was constantly done every day, 
 and being asked by the court whether he had done so as between the 
 firm and Hay ward, the witness replied, "certainly; it is the ordinary 
 form of a request to deliver goods to Mr. Hayward, or to any body." 
 Upon a case reserved upon the question, whether such a paper amounted 
 in law to a request for the delivery of goods within the meaning of the 
 statute, the judges were of opinion that it did, although it was not ad- 
 dressed to any one. (y\ 
 
 Where on an indictment for forging and uttering a request for the 
 delivery of goods with intent to defraud Bradley, it appeared that 
 Bradley was a butty-collier and Jones a grocer, and that the course of 
 dealing between them was for Bradley to write a list of names, with an 
 amount against each name, which denoted that Jones was to supply 
 that person with goods on Bradley's account to the amount set opposite 
 
 (xz) Rex v. Carney, R. & M. C. C. R. 351. Tindal, C. J., Lord Lyndhurst, C. B., and Taun- 
 ton, J., were absent. 
 
 (y) Reg. v. Pulbrook, a 9 C. & P. 37. 
 
 ■ Eng. Com. Law Reps, xxxviii. 26.
 
 527 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 his name} and that the prisoner took a paper to Jones in the following 
 form : 
 
 « 1841, Oct. 22. £ s. d. 
 
 Eliz. Bradley . . . . 12 
 
 Will. Jones . . . . 10 
 
 J. Prise 5 
 
 Jno. Bayley .... 5 
 
 Peter Stapleton . . .080 
 
 Simeon Walters . . . 15 0" 
 
 Here followed ten more names and a sum against each, and the sums 
 were cast up 11. 4s. Qd., which was the correct casting of the sum oppo- 
 site the prisoner's name had remained 5s. as it originally stood, but he 
 had put the figure 1 before the 5 and made it 15s. Opposite the sum 
 11. 4s. Qd. was the prosecutor's signature, " John Bradley." Ludlow, 
 Serjt., having consulted Patteson, J., stated that that learned judge was 
 of opinion that although this was not a request for the delivery of goods 
 on the face of it, yet it might be shown by evidence that the course of 
 dealing between the parties was that goods should be delivered on the 
 production of such documents as this ; and that being shown, the paper 
 was a request for the delivery of goods, and as such might be the sub- 
 ject of an indictment, if a forged alteration was made of \t.(i/y} 
 
 A request The prisoner was indicted for forging and uttering a certain request 
 
 purporting f or t ^ e d e H Yer y of sroods, which is as follows : — 
 
 to be signed ^ ° ' 
 l>y a custo- 
 mer of a u To Mr. Edwards, Southgate-street, near the Cross. 
 is within " Please to let bearer, William Gof, have spillshoul and grafting tool 
 
 the statute, for me, 
 
 " Edward Bicketts, of Stantway." 
 
 The prisoner went to the shop of Mr. Edwards, an ironmonger, and 
 
 presented the paper to his shopman, who, knowing Mr. Bicketts of 
 
 Stantway, allowed the prisoner to select a spade and grafting tool from 
 
 his master's stock. It was objected that this was not a request within 
 
 the meaning of the 1 Wm. 4, c. 66. In the cases of warrants and orders 
 
 it had been decided that the party must have a right to dispose of, or 
 
 an interest in, the property, and the requests intended to be made the 
 
 subject of forgery were requests for the delivery of goods, in which the 
 
 party had at least an interest ; but it was held that this was a forged 
 
 request for the delivery of goods within the statute.(z) 
 
 *528 *A forged letter requesting a tradesman to deliver goods to A. B. 
 
 The sup- on hi s credit, and vouching for his ability to pay, may be described as 
 
 ter of are" a request within the 1 Wm. 4, c. 66, s. 10, though the supposed writer 
 
 quest need have no authority over or interest in the goods, and A. B. only be 
 
 ant atuho- l°°ked to for payment. The indictment stated that the prisoner uttered 
 
 rity over or a certain forged request for the delivery of goods, which is as follows : — 
 
 (yy) Reg. v. Walters, 8 1 C. & Mars. 588. 
 
 (z) Reg. v. James, 15 8 C. & P. 292. Gurney, B., referring to Rex v. Carney, supra, note 
 
 a Eng. Com. Law Reps. xli. 320. b lb. xxxiv. 395.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 528 
 
 "May 24, 1836. interest in 
 „. the goods, 
 
 oir, nor need 
 
 "I beg to inform you that the thing is right and true. Please to let the goods 
 W. Thomas have such things, (meaning thereby certain goods which .^ ^ C1 e 
 the said W. Thomas then and there wanted) as he wants for the pur- request. 
 pose. 
 
 " Sir, I have got the amount of seven-and-twenty pounds for Maria 
 Cole in my keeping these many years. 
 " I am your servant, 
 
 "Ann Davies." 
 
 with intent, &c. A second count charged the uttering a certain forged 
 request from one Ann Davies, for the delivery of certain goods to him 
 the said W. Thomas, with intent, &c. The prisoner had come into the 
 shop of the prosecutor Clare, and asked him if he knew Maria Cole of 
 Prendergast. Being answered in the affirmative, he said she was dead, 
 that he was her son-in-law, that she had left 507. or 601., and that he 
 wanted black. Clare asked him if he meant to pay for it; he said he 
 had not the money, but it was very safe. Clare however refused, ob- 
 serving that he was a stranger to him, upon which the prisoner said 
 "It's very safe. It's in the hands of Mrs. Davies of Prendergast." 
 Clare knowing her, and knowing her to be a respectable person, said, 
 "if you will get me her order for the goods you shall have them." 
 Upon this the prisoner went away, and in half an hour returned with 
 the note set out in the first count in the indictment; upon the produc- 
 tion of which he was furnished with such mourning things as he re- 
 quired, which were put down to his credit. The note was a forgery, 
 and Mrs. Davies had no money of Maria Cole's in her keeping. 
 Coleridge, J., had doubts whether the paper-writing was properly a 
 request for the delivery of goods within the meaning of the statute, and 
 whether the charge ought not to have been for obtaining goods under 
 false pretences, because Ann Davies had not, nor was supposed to have, 
 any authority over, or interest in, the goods obtained, because the note 
 did not purport in any way to charge, nor did it charge, her credit, and 
 because the goods were supplied on the prisoner's own credit, and he 
 liable for them. The prisoner's counsel also suggested that no goods 
 were specified. But upon a case reserved, the judges present were 
 unanimously of opinion that the instrument was correctly set out as a 
 request, and the conviction was affirmed. (a) 
 
 An instrument may be requested for the delivery of goods within *529 
 the statute, although ic is also an undertaking to pay for them. An instru- 
 *The indictment charged the prisoner with forging and uttering " a ™ e ° t r ^ ay 
 certain forged request for the delivery of goods," which was as fol- quest, al- 
 lows • though it 
 
 I0WS ' be also an 
 
 undertak- 
 
 "Mr. Turner, — Please to let the lad have a hat, about 9s., and I Null \ n s t0 pay 
 ' „ for goods, 
 
 answer tor the money. 
 
 "Ed. Barrett." 
 
 (a) Rex v. Thomas," 2 Moo. C. C. R. 16. 1 C. & P. 851. Lord Abinger, C. B., Williams, 
 J., and Coleridge, J., were absent. Qu. whether the innuendo in the first count be not too 
 large, there being no introductory averments. C. S. G. 
 
 Eng. Com. Law Reps, xxxii. 708.
 
 529 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 and it was contended that this was not a request for the delivery of 
 goods, but a guarantee for the payment of the price ; and, if it were 
 the subject of forgery at all, it should have been charged to be an un- 
 dertaking for the payment of money; but Gurney, B., held that this 
 instrument was not the less a request for the delivery of goods, because 
 it might also be an undertaking for the payment of money. (&) 
 A request The 1 Wrn. 4, c. 66, makes no provisions at all for forging a request 
 tor the pay- ^ ^ e payment of money, and such a request cannot be described as 
 money is an undertaking, warrant, or order for the payment of money. Upon 
 not within an indictment for forging and uttering an instrument, described in dif- 
 4, c. 66. ferent counts as an order for the payment of money, a warrant for the 
 payment of money, and an undertaking for the payment of money, it 
 appeared that the prisoner sent one Walker to Messrs. Seager's with a 
 letter and the following memorandum : — 
 
 1 CUIltOIll) 
 
 Fore Strest, 
 
 h V 
 
 rest, j 
 " Gentlemen, 
 
 " I shall feel obliged by your paying Mr. Bennett the sum 
 of 2.1. Is. Sd. and debiting me with the same. You will please have a 
 receipt, and add the amount to invoice of order in hand. 
 
 " I am, 
 
 " Gentlemen, 
 " Your most obedient servant, 
 " T. D. Chappell." 
 " Messrs. Seager, Evans, & Co., distillers, &c, 
 "Milbank, Westminster." 
 
 Messrs. Seager and Evans had a customer at Taunton, named T. D. 
 Chappell, and Mr. Seager proved that supposing he had believed the 
 memorandum to be the genuine handwriting of Mr. Chappell, he should 
 have paid the money, and that it was the practice of their house, and 
 in the course of business, to pay on these requests to country customers. 
 It was objected, that this was not an offence within the 1 Wm. 4, c. 
 66, as the paper was neither an undertaking, warrant, or order for the 
 payment of money, but at most only amounted to a request; and forg- 
 ing a request for money was not provided for; and the prisoner having 
 530 been convicted, the judges *held, upon a case reserved, that the convic- 
 tion could not be sustained. (bfy 
 Where the Where an indictment for forging a request for the delivery of goods, 
 indictment se ^ s ou t, suc ] 1 request, either the instrument must purport on the face of 
 request, it it to be a request, or if the words have not necessarily that effect, but are 
 must either so understood in the trade, there must be an innuendo to explain them. 
 
 (b) Reg. v. White, a 9 C. & P. 282. In reg. v. Robson, b 9 C. & P. 423, (in which the only 
 point decided is mentioned, ante, p. 373,) the instrument was in form, "Please to forward as 
 address below, soon as possible, three mourning rings, sizes, 0. P. 0., good weight and well 
 finished ; three or four gold guard curbs, the last you sent me were not as I like them ; you 
 may send one or two ladies' gold watches, fashionable patterns, I want them immediately." 
 &c, and it was taken for granted on all hands that this was a request for the delivery of 
 goods. 
 
 (bb) Reg. v. Thorn, 1 C. & Mars. 206. The prisoner was afterwards convicted of a 
 fraud. 
 
 a Eng. Com. Law Reps, xxxviii. 122. b lb. 174. c lb. xli. 116.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 530 
 
 The prisoner was indicted for uttering a certain forged request for the purport to 
 delivery of goods, which is as follows :— S ffiSS? 
 
 of it, or 
 « Per bearer, * here must 
 
 ' be aver- 
 
 " 2 u Counterpanes, ments to 
 
 « T. Davies, ? h . ow that 
 "88, Aldgate. « E. Twell." °* 
 
 with intent to defraud J. Lanison and others, the prisoner well knowing 
 the said request to be forged. The prisoner who had been in the ser- 
 vice of Mr. Davies as porter, went on the 19th of November, 1880, to 
 the house of Messrs. Lanison & Co., and produced to Smith, their ser- 
 vant, the forged instrument in question. Smith, in consequence of the 
 prisoner producing the paper, delivered the counterpanes to him. Davies 
 was a customer of Lanison & Co., and lived at 88, Aldgate. Smith did 
 not then know Twell ; he gave credit to the signature of Davies ; Twell 
 was in the employ of Davies, and had authority from him in his ab- 
 sence, to write an order for goods in his name in this form ; but Twell 
 had no authority to employ any other person to write the same. The 
 paper produced was not the writing of Davies or Twell, nor signed by 
 the authority of Davies. Mr. Davies said they generally wrote their 
 orders " Send per bearer," or "per bearer," and that such orders as 
 these are common in their business. It was objected that the paper 
 produced did not purport to be a request, within the meaning of the 
 statute ; no particular person was requested, nor was it directed to any 
 particular person. The jury found the prisoner guilty, and said that 
 they considered the paper as a request for the delivery of the goods 
 mentioned in it, and that such papers were in trade so considered. But 
 upon a case reserved upon the questions, whether the instrument was 
 upon the face of it one of those instruments, namely, a request for the 
 delivery of goods, the knowingly uttering of which is prohibited by the 
 1 Win. 4, c. 66, s. 10, and particularly whether the want of any address 
 was a valid objection j the judges present were unanimously of opinion 
 that the words " per bearer" did not necessarily import " send per 
 bearer;" they might mean "I have sent per bearer," and that there 
 ought to have been an innuendo to explain them. They seemed to think 
 the address not necessary, (a) 
 
 Where goods are obtained by a forged request, with the 1 Wm. 4, c. The indict- 
 66, the indictment must be for forgery, and cannot be for obtaining them ^ e f or ^J.g. 
 by false pretences. The prisoner was indicted for *obtaining goods by ing a re- 
 means of the following false and counterfeit letter : — qU *eQi 
 
 " Mr. Brooks, — Please let the bearer, William Turton, have for 
 J. Roe, four yards of Irish linen and a waistcoat. 
 
 " John Roe." 
 « Jan. 6, 1833." 
 
 (c) Rex v. Cullen, R. & M. C. C. R. 300. This case is also reported in 5 C. & P. a 116, and 
 it is there stated that the indictment contained a count calling the instrument a forged or- 
 der, and that the judges held that the instrument was neither an order nor a request within 
 the 1 Wm. 4, c. 66, s. 10. See Reg. v. Pulbrook, ante, p. 527. In such a case there should at 
 all events be one count describing the request in the manner adopted in Reg. v. Robson, 
 ante, p. 373. C. S. G. 
 
 a Eng. Com. Law Reps. xxiv. 235.
 
 531 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 Taunton, J. — " This is a forged request for the delivery of goods. 
 This case conies within the 10th sec. of the 1 Wm. 4, c. 66 It is clearly 
 an uttering of a forged request for the delivery of goods. It is a felony, 
 and not a misdemeanor, (c?) 
 A condi- A written promise to pay a sum specified, or such other sum, not ex- 
 dertakhTg cee ding tne same, as A. B. may incur by reason of a suretyship, is an 
 to pay mo- undertaking to pay money within the 1 Wm. 4, c. 66, s. 3. The indict- 
 ^nuTT 111 ment charged tne prisoner with forging an undertaking for the payment 
 Wm. 4, c. of money in the following terms : — 
 66, s. 3. 
 
 « York, mh February, 1837. 
 " £100. I promise to pay Mr. W. Bellerby or order, the sum of one 
 hundred pounds, or such other sum of money, not exceeding the same, 
 as he may incur, or be put unto, for or by reason or means of his be- 
 coming one of the sureties of Mark Milbank, Esq., sheriff elect for the 
 County of York, for the year ensuing, for John Reed of this city, sheriff's 
 officer. "Val Wilson." 
 
 It was submitted for the prisoner, that this was not an undertaking for 
 the payment of money, within the 1 Wm. 4, c. 66, s. 3, as it was not an 
 absolute undertaking to pay any particular sum of money, but only 
 an indemnity to an uncertain amount, not exceeding 100?., and unless 
 the officer misbehaved, which the law would not presume, it was no un- 
 dertaking to pay any money at all. But upon a case reserved, the 
 judges present were unanimously of opinion that the instrument was an 
 undertaking for the payment of money, within the statute. (e) 
 The jury Where a forged instrument is uttered to one of two partners in the 
 that the absence of the other, the jury may find in some cases that the intent 
 prisoner was to defraud the partner, to whom the instrument was uttered. The 
 defraud one P r ^ soner was indicted for uttering and forging a bill of exchange, with 
 partner intent to defraud J. Leadbitter ; with respect to the intent to defraud, 
 where the jj. a pp eare( j t, na t Leadbitter had been employed by the prisoner, then the 
 strument is owner of a mill, to make a mill dam, and that Leadbitter had a partner 
 uttered to named Stansfield, who, however, took no active part in the business, 
 
 him in the ,,,, , ■■ < ., . T -n • 
 
 absence of although he was known to be a partner by the prisoner. Leadbitter, 
 
 another who had superintended the work, applied to the prisoner for payment, 
 par ner. aQ< j ^ e prisoner paid Leadbitter money on account ; and afterwards, 
 instead of making a further money payment, gave him the bill in ques- 
 tion; Stansfield was not present when the bill was so given. Lead- 
 bitter endorsed the bill in his own name only, and afterwards delivered 
 it to Stansfield, asking him if he could make any use of it ; Stansfield 
 *532 afterwards paid it away, indorsing it also *with his own name. It was 
 submitted that Leadbitter and Stansfield being partners, and the prisoner 
 knowing that they were so, the intent of the prisoner must be taken to 
 be the legal consequence of his own act, which was the defrauding the 
 two partners, and that there was therefore a variance between the intent 
 laid and the intent proved. It was answered, that the intent of the pri- 
 soner was a question for the jury, and on the facts proved the jury might 
 infer that the prisoner intended to defraud Leadbitter alone, with 
 whom he had had dealings, and even if he did also intend to defraud 
 both partners, he might be not the less guilty of intending to defraud 
 
 (d) Rex v. Evans, a 5 C. & P. 553. See Rex v. Carter, b 7 C. & P. 134, ante, p. 366. 
 (c) Reg. v. Reed, 2 Moo. C. C. R. 62, 8 C. & P. 624. 
 
 a Eng. Com. Law Reps. xxiv. 453. b Ib. xxxii. 467. °Ib. xxxiv. 557.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 532 
 
 the one only to whom he actually uttered the instrument. Wight- 
 man, J., left it to the jury to say whether the prisoner intended to 
 defraud Leadbitter only, and they found that the prisoner did intend to 
 defraud Leadbitter alone; and, upon a case reserved, the judges held 
 the conviction right. (/) 
 
 Many other points which have arisen upon indictments framed upon 
 the statutes mentioned in this chapter, being of general application, have 
 been already noticed in the chapter treating generally of the subject of 
 forgery, (g) 
 
 The 1 Wm. 4, c. 66, s. 31, repeals the 41 Geo. 3, c. 57, and so much l Wm. 4, o. 
 of the 43 Geo. 3, c. 139, "as in anywise relates to any foreign bill of ^[^ 1? * 
 exchange, or foreign promissory notes, undertaking, or order for the pay- having in 
 ment of money," and by sec. 17, enacts, " that if any person shall make P°ss essi0 ° 
 or use any frame, mould, or instrument for the manufacture of paper, f or manu- 
 with the name or firm of any person or persons, body corporate or com- factoring 
 pany carrying on the business of bankers, (other than and except the the name of 
 Bank of England,) appearing visible in the substance of the paper, any bank- 
 without the authority of such person or persons, body corporate, or j^*P p ^" 
 company, the proof of which authority shall lie on the party accused ; substance ; 
 or if any person shall, without lawful excuse, the proof whereof shall manufac - 
 lie on the party accused, knowingly have in his custody or possession having 
 anv such frame, mould or instrument ; or if anv person shall without sucn paper, 
 
 or ctiusin cp 
 
 such authority, to be proved as aforesaid, manufacture, use, sell, expose the name" 
 to sale, utter or dispose of, or shall, without lawful excuse, to be proved to appear 
 
 „ . , , -ii i • . 1 • . in the sub- 
 
 as aforesaid, knowingly have in his custody or possession, any paper in stanC e of 
 the substance of which the name or firm of any such person or per- any paper, 
 sons, body corporate, or company carrying on the business of bankers 
 shall appear visible ; or if any such person shall, without such autho- 
 rity to be proved as aforesaid, cause the name or firm of any such per- 
 son or persons, body corporate, or company carrying on the business of 
 bankers to appear visible in the substance of the paper upon which the 
 same shall be written or printed ; every such offender shall be guilty of 
 felony, and being convicted thereof, shall be liable, at the discretion of 
 the court, to be transported beyond the seas for any term not exceeding 
 fourteen years nor less than seven years, or to be imprisoned for any 
 term not exceeding three years nor less than one year."(/i.) 
 
 *By sec. 18, » if any person shall engrave or in anywise make upon *533 
 any plate whatever, or upon any wood, stone, or other material, any * Wm * £ ' c * 
 bill of exchange or promissory note for the payment of money, or any Engraving 
 part of any bill of exchange or promissory note for the payment of on an y 
 money, purporting to be the bill or note, or part of the bill or note, of anybiu'o'f 
 any person or persons, body corporate, or company carrying on the busi- exchange 
 ness of bankers, (other than and except the Bank of England,) without g^y^e^f 
 the authority of such person or persons, body corporate or company, the any bank- 
 proof of which authority shall lie on the party accused; or if any per- ers '° g r an y 
 son shall engrave or make upon any plate whatever, or upon any wood, sembling 
 stone, or other material, any word or words resembling, or apparently tho . su . b - 
 intended to resemble, any subscription subjoined to any bill of oxchange subjoined 
 
 (/) Reg. v. Hanson, 1 1 C. & Mars. 334. This case was not published till chap. 32, s. 3, 
 had been printed, or it would have been inserted in that section. C. S. G. 
 
 (ff) Ante, p. 319, et seq. 
 
 (h) See the general provisions of this act, ante, p. 408, et seq. As to principals in the 
 second degree, accessories, hard labour, and solitary confinement, see ante, p. 410. 
 a Eng. Coin. Law Reps xli. 185.
 
 533 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 thereto, or r promissory note for the payment of money issued by any such, per- 
 suelfplate son or P crsons > body corporate, or company carrying on the business of 
 or uttering bankers, without such authority, to be proved as aforesaid : or if any 
 or having p erson shall, without such authority, to be proved as aforesaid, use, or 
 
 iiuv paper * * j ? l * 
 
 upon which shall, without lawful excuse, to be proved by the party accused, know- 
 any part of jngly have in his custody or possession, any plate, wood, stone or other 
 bill or note material upon which any such bill or note, or part thereof, or any word 
 shall be or WO rds resembling, or apparently intended to resemble such subscrip- 
 trivnspoita- tion, shall be engraved or made; or if any person shall, without such 
 tion for 14 authority, to be proved as aforesaid, knowingly offer, utter, dispose of, 
 years, -c. or ^^ Q ^ or s ] ia i^ w ithout lawful excuse, to be proved as aforesaid, 
 knowingly have in his custody or possession any paper upon which any 
 part of such bill or note, or any word or words resembling, or appa- 
 rently intended to resemble any such subscription, shall be made or 
 printed ; every such offender shall be guilty of felony, and, being con- 
 victed thereof, shall be liable, at the discretion of the court, to be trans- 
 ported beyond the seas for any term not exceeding fourteen years, nor 
 less than seven years, or to be imprisoned for any term not exceeding 
 three years nor less than one year."(A 
 Having in The prisoner was convicted at the Central Criminal Court, upon an 
 plates of indictment founded on the 1 "Win. 4, c. 66, s. 18, which charged that 
 hankers in he feloniously, knowingly and without lawful excuse, had in his custody 
 da'is a " an< ^ possession a certain copper plate, upon which was engraved part 
 within the of a certain promissory note for the payment of money, purporting to 
 preceding ^ e a p ar j. f a promissory note of a certain company of persons carrying 
 on the business of bankers in a certain country under the dominion of 
 her majesty, that is to say, in the province of Upper Canada in North 
 America, under the name and style of the president, directors, and com- 
 pany of the Bank of Upper Canada, the said company of persons being 
 other than the Bank of England, which said part of a promissory note 
 is as follows : — 
 
 "Ten "Ten 
 
 10 X No. X C Ten 
 
 " Chartered by Act of Parliament. 
 
 "The president, directors, and company of the Bank of Lpper 
 
 Canada promise to pay ten dollars on demand to the bearer for value 
 received. 
 
 " Cashier. " President. 
 
 "Ten "X 
 
 "Toronto 18." "Ten." 
 
 *534 *The second and third counts were in the same terms, except that the 
 second described the note as a promissory note for the payment of 
 money of a certain body " corporate," and the third as a promissory 
 note for the payment of money of W. Proudfoot and others. The pri- 
 soner within the jurisdiction of the court, procured a copper plate to be 
 engraved with the words and figures set out in the indictment, which 
 are part of the form of the promissory notes, used and circulated by the 
 Bank of Upper Canada; the plate so engraved was received by the 
 prisoner under circumstances pregnant with suspicion that it was ob- 
 tained by him for a fraudulent purpose. W. Proudfoot was the presi- 
 
 (i) See the last note.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 534 
 
 dent, and T. Gr. Ridout the cashier of the Upper Canada Bank, the 
 notes of which are usually signed by those persons, and the prisoner 
 had endeavoured to obtain from another engraver a fac simile of their 
 signatures, which he had cut off from the Toronto note produced by 
 him to the first engraver. It was contended that sec. 18, of the 1 Wm. 
 4, c. 6Q, upon which alone the indictment could be supported, did not 
 extend to notes of companies carrying on business within her majesty's 
 dominions out of England, though the offence were committed within 
 the jurisdiction of the Central Criminal Court ; but after full argument 
 upon a case reserved, the judges were all of opinion that the offence 
 charged was within the statute, except Parke, B., Alderson, B., and 
 Coleridge, J., who entertained some doubt, and the conviction was 
 affirmed.^') 
 
 Upon an indictment on the 41 Geo. 3, c. 57, s. 2, (now repealed,) 
 which charged the prisoner with having in his custody a plate on which 
 was engraved part of a promissory note, purporting to be the. promis- 
 sory note of a body corporate called the British Linen Company, it 
 was objected that it was not an offence within this statute, to have in 
 custody a plate for making notes, &c, in the name of such company, 
 though it appeared that they carried on business as bankers, because 
 they were incorporated for a purpose entirely different, viz., that of car- 
 rying on a linen company ; and it was also objected, that the indictment 
 was bad, as it omitted to aver that the company carried on the business 
 of bankers, which the act required. The objections having been re- 
 served for the consideration of the judges, they seemed to be of opinion 
 that the first objection was fatal; and were all of opinion that the in- 
 dictment was bad, for the reason stated in the second, and that judg- 
 ment should be arrested. (k) 
 
 The 1 Wm. 4, c. 66, s. 19, enacts, "that if any person shall engrave l Wm. 4, c. 
 or in anywise make upon any plate whatever, or upon any wood, stone, Engraving 
 or other material, any bill of exchange, promissory note, undertaking, plates, &c, 
 or order for payment of money, or any part of any bill of exchange, ^g ^ 1611 
 promissory note, undertaking, or order for payment of money, in what- notes ; 
 ever language or languages the same may be expressed, and whether usm S or 
 the same shall or shall not be or be intended to be under seal, purport- sucn plates, 
 ing to be the bill, note, undertaking, or order, or part of the bill, note, or uttering 
 undertaking, or order, of any foreign prince or state, or of any minister on"which r 
 or officer in the service of any foreign prince or state, or of any body any part of 
 corporate, or body of the like nature, constituted or recognised by any S ?° Q ^J{ 0T 
 foreign prince or state, or *of any person or company of persons resident note may 
 in any country, not under the dominion of his majesty, without the J^" 1 ^' 
 authority of such foreign prince or state, minister, or officer, body cor- tion for 14 
 porate or body of the like nature, person or company of persons, the ye t r r' Q r e ' 
 proof of which authority shall lie on the party accused; or if any person 
 shall, without such authority, to be proved as aforesaid, use, or shall, 
 without lawful excuse, to be proved by the party accused, knowingly 
 have in his custody or possession, any plate, stone, wood, or other 
 material upon which any such foreign bill, note, undertaking, or order, of 
 any part thereof, shall be engraved or made ; or if any person shall, 
 without such authority, to be proved as aforesaid, knowingly offer, utter, 
 
 (j) Reg. v. Hannon,* 2 Moo. C. C. R. 11. 9 C. & P. 11. 
 (A-) Rex v. Catapodi, January, 1804, Russ. & Ry. 65. 
 
 » Eng. Com. Law Reps, xxxviii. 19.
 
 535 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 dispose of, or put off, or shall, without lawful excuse, to be proved as 
 aforesaid, knowingly have in his custody or possession, any paper upon 
 which any part of such foreign bill, note, undertaking, or order shall be 
 made or printed, every such offender shall be guilty of felony, and, 
 being convicted thereof, shall be liable, at the discretion of the court, to 
 be transported beyond the seas for any term not exceeding fourteen 
 years, nor less than seven years, or to be imprisoned for any term not 
 exceeding three years, nor less than one year."(Z) 
 On an in- Where prisoners are jointly indicted for feloniously using plates con- 
 a^ahisfse- tailing impressions of forged notes, the jury must select some one par- 
 veral pri- ticular time after all the prisoners have become connected, and must be 
 soners or sa ti s fi e d that at such time they were all either present together at one 
 plates, the act of using, or assisted in one such act ; and it is not sufficient to show 
 jury must ^ a ^ ^ e parties were general dealers in forged notes, and that at dif- 
 particular ferent times they had singly used the plates, and were individually in 
 time when possession of forged notes taken from them. The indictment charged 
 ers were ei- Balls, Moses, and Harris, in some of the counts, with engraving on a 
 ther pre- certain plate, in the polish language, a certain note for the payment of 
 sistedat 8 " mone y > m other counts with feloniously using the plates, on which the 
 one act of notes were engraved. At the close of the case for the prosecution, 
 using the Littledale, J., recpuired the counsel for the proseeution to elect, whether 
 an indict- they would go on the counts for engraving, or the counts for using the 
 ment con- plates, as they were quite distinct offences ; and the counsel for the 
 for engrav- cr own, admitting that there was no evidence of a joint engraving, relied 
 ing and n the counts for using the plates. It was then objected for the pri- 
 using soners that there was not any evidence of a joint using of the plates, 
 
 plates, the It was answered that there was evidence to go to the jury, as it was 
 must'elect c ^ ear tna * Balls had the plate at one time and Moses at another, and 
 on which that Harris was active in bringing the parties together, so that Flaurn 
 he will pro- m ight have the impression. Any act traced to one was traced to all ; 
 and the cpiestion was whether the notes were not struck off with the 
 joint consent of all parties. Littledale, J., in summing up, said, "In a 
 case of felony, you can only go upon one act committed. There is very 
 great difficulty in this case for you to know which act the prosecutor 
 relies on, all these things being done at different times. The prosecutor 
 does not fix on any particular day ; if you find that at any one time, 
 all three did concur in using the plates, then you may find them guilty. 
 *536 There are four different times at which *notes were taken. As to what 
 has been said about these parties being general dealers, it is not suffi- 
 cient; they are not indicted one for doing the act, and the others as 
 accessories before the fact, but are all charged as principal felons. 
 There may be cases in which acts done at different times may be evi- 
 dence of a joint using, as, for instance, if one were to find the plate, and 
 one the paper, and one to do the work, I should say it was a joint using, 
 but there is no evidence of that sort here. There is no evidence that 
 by common concert these parties did such things. If one-struck off 
 the impressions, and the others wished him to do it, and shared in the 
 profits, that would not make them principal felons. As this is an in- 
 dictment against all three, you must be satisfied that they were all three 
 present at one time, or assisting in some way at that time, either by 
 watching at the door or something of that sort. Having the notes in 
 
 (/) See the general provisions of this act, ante, p. 408, et seq. As to the principals in the 
 second degree, accessories, hard labour and solitary confinement, see ante, p. 410.
 
 CHAP. XXXIX.] SECURITIES AND DOCUMENTS. 536 
 
 possession is not sufficient evidence of having used the plate ; as in the 
 case of forgery, uttering is not sufficient evidence of having forged. 
 Balls, it seems, had the plate a year before, but that is no evidence 
 under this indictment, as the using under it must be since August, 1835, 
 as Harris and Moses do not come on the stage till that time. The only 
 evidence against Harris is the negotiations entered into with Saltzman 
 and others respecting this note ; there is no proof of his having the plate 
 in his possession. Moses had it in his possession, and he is proved to 
 have said before that he had the plate, and could print as many as he 
 liked ; this may be something like evidence of a using, on his part, of 
 the plate. It does not seem to me that there is any evidence to prove 
 a joint using at any one time, which, in my opinion, is necessary to 
 prove this indictment : you may find two of them guilty, or one of them 
 guilty, or all three of them guilty. "(m) 
 
 Upon an indictment against several for engraving plates, under the 1 Upon an 
 Wm. 4, c. 66, s. 19, the jury must be satisfied that they jointly em- ind ! ctni ent 
 
 . . J against se- 
 
 ployed the engraver, but it is not necessary that they should all be pre- veral for 
 sent when the order was given : it is sufficient if one first communicated en g ravin g 
 with the others, and all concurred in the employment of the engraver, joint em- 
 Mazeau, Ramuz, and Rault, were indicted for feloniously engraving and payment 
 making upon two plates, two parts of a promissory note for 25 rubles, ver mu ^tb~ e 
 of Nicholas, Emperor of Russia, and it appeared that Ramuz and Ma- proved, but 
 zeau had for some time been acquainted with an engraver, of the name necessary 
 of Salt, and that on the 9th of August, 1840, Mazeau went to Salt and that all the 
 showed him two Russian notes, and had some conversation with him v l lS0 ??l s 
 
 i i • should be 
 
 about engraving some plates, and some days after Mazeau came again, present 
 accompanied by Ramuz, and both told Salt that he was to go on with w ^ en * ne 
 the engraving, and both gave him some money, and they both came to- given. 
 gether to him frequently during the progress of the work. The evi- Semble, 
 dence against Rault was, that when Salt took the print, Mazeau told him song \^^ 
 that the man they were executing the order for was present in their plates to be 
 *house in the parlour ; in consequence of this, Salt watched outside the *537 
 door after he left, and saw Rault come out of the house. Salt had also engraved, 
 seen Rault several times during the progress of the engraving : he had w ithin the 
 seen him in conversation with Mazeau and Ramuz. Mrs. Salt, who 1 Wm - 4» c. 
 knew the three prisoners, had seen two of them a great many times, but w h e S t 'h er * 
 one not so often as the other two. She only saw the three prisoners to- they know 
 gether once, and that was on the day they were taken into custody ; they t °; e ] na * ure 
 were standing talking together, close to Salt's window. On Rault's ap- strument or 
 prehension, some proofs of the plate and a Russian passport were found not - 
 upon him. It was submitted for Rault, that there was not any act 
 proved to have been done by him jointly with Mazeau and Ramuz, so 
 as to make him guilty of the charge laid in the indictment; that there 
 must be a joint employment of Salt by all the three prisoners ; and that 
 in order to make out such joint employment, it was necessary to show 
 that all three were present at the time the order was given. Patteson, 
 
 (to) Rex v. Harris,* Balls and Moses, 7 C. & P. 416, cor. Littledale, J., and Gasclee, J. 
 The facts proved on the trial are not stated in the report, and although there is a reference 
 to Rex v. Balls, b 7 C. & P. 426, for the principal facts of the case, the statement there does 
 not contain any of the most important facts alluded to by the learned judge in his summing 
 up. For other points decided in other cases against the same prisoner, see Rex v Warsha- 
 ner, R. & M. C. C. R. 466, ante, p. 373. Rex v. Harris, Moses and Balls, ante, p. 375. Rext\ 
 Balls, R. & M. C. C. R. 470, ante, p. 405, 406. 
 
 a Eng. Com. Law Reps, xxxii. 564. b lb. xxxii. 569.
 
 537 OF THE FORGERY OF PRIVATE PAPERS, [BOOK IV. 
 
 J., « I quite agree that there must be a joint employment, and that all 
 these three persons cannot be convicted on this indictment, unless the 
 jury think that they jointly employed Mr. Salt. But I do not go along 
 with the learned counsel, in saying that they must all three be present 
 at the time when the order was given to Mr. Salt. I am of opinion, 
 that if it be shown that two or them gave the order on behalf of them- 
 selves and another person, that other person being the other prisoner, he 
 may be connected by some evidence with the employment. Whether 
 there is such evidence in the case is a question for the jury; I cannot 
 withdraw the case from their consideration." And in summing up, the 
 very learned judge said, " You cannot find all guilty, unless you are of 
 opinion that they jointly employed Salt to make the engraving. If you 
 are satisfied that Rault first communicated with the other two, and then 
 that they all concurred in employing Salt, the three prisoners may be 
 found guilty ; but you cannot find Rault guilty if you think he employed 
 the other two to get the plate engraved by any person, and they after- 
 wards, of their own accord, employed Salt. You may acquit all or any 
 one of the prisoners, if you are satisfied that they did not employ Salt. 
 It is clear, under the words of the act of parliament, and taking the evi- 
 dence to be true, if Ramuz and Mazeau knew the nature of the instru- 
 ment, that the case is brought home to them ; and I am inclined to think 
 that if by Salt they engrave the plate, although they did not know the 
 nature of the instrument, they are within the act ; but I am not confi- 
 dent of that, and shall ask you to say, whether you think they knew 
 the nature of the instrument which they employed Salt to engrave. 
 With respect to the guilt of Rault upon this indictment, the evidence 
 is not so cogent. He is not brought forward until a very late period, 
 long after the order had been given by the two other prisoners, when he 
 is seen coming out of their house, and he is subsequently seen in their 
 company. When he is arrested he gives his address in Portland Street, 
 and at that address, in the room he occupied, the first proof of the plate 
 is found, and other proofs are also found upon him. These circum- 
 stances, however, do not clearly lead to the inference that you must ar- 
 rive at, before you can pronounce him guilty of this indictment ; for, 
 to make him answerable for the offence now charged, you must be sat- 
 *538 isfied that he was a party concerned* in writing the order originally to 
 Salt. For that purpose, it seems to me, the evidence is but slight ; but 
 should you think that he did originally instruct the other prisoners, and 
 that by his authority they went and employed Salt, they may all be 
 convicted. If you do not think that, Rault must be acquitted. You 
 will therefore say, whether Ramuz and Mazeau knew what the contents 
 of the plate were, and what the nature of the instrument was ; and you 
 will also say whether Rault was a party concerned in giving the original 
 instructions to Salt.'Vw) 
 
 (n) Reg. v. Mazeau, a 9 C. & P. 676. The jury found Mazeau and Ramuz guilty, and that 
 they knew the nature of the instrument. With the greatest deference to the very learned 
 judge, it is submitted that it deserved consideration, -whether supposing that Rault gave the 
 order to Mazeau and Ramuz, and they in his absence gave it to Salt, who was an innocent 
 agent, Rault was more than an accessory befere the fact. If Rault had given the order to 
 Ramuz and Mazeau, and they in his absence had themselves engraved the plate, it is con- 
 ceived they would have been principals, and Rault an accessory before the fact ; and it is 
 submitted that this case is not varied by the act of an innocent agent, as that act is, ac- 
 cording to all the authorities, just the same as if it was done by the party procuring it to be 
 done. C. S. G. 
 
 a Eng. Com. Law Reps, xxxviii. 286.
 
 CHAP. XL.] OF FALSELY PERSONATING ANOTHER. *539 
 
 *CHAPTER THE FORTIETH. 
 
 OF FALSELY PERSONATING ANOTHER, (a) 
 
 Tue bare fact of personating another, for the purpose of fraud, is no Offence at 
 more than a cheat or misdemeanor at common law, and punishable as J*™"" " 
 such. (a) And the principal cases in which it has been considered as 
 indictable, have been laid as cases of conspiracy. 
 
 In a case where the prisoner had been acquitted on an indictment 
 preferred against him for forgery, upon its appearing that he had 
 merely passed himself off for the person whose real signature appeared 
 on the instrument, in concert with that person, (b) he was indicted again 
 for the misdemeanor : but it is observed that this second indictment did 
 not turn singly on the fact of such false personating for a fraudulent 
 purpose, but was framed against him and his associates for the con- 
 spiracy as well as the cheat, (c) And where a woman, living in the 
 service of her master, conspired with another man that he should per- 
 sonate her master, and in that character should solemnize a marriage 
 with her, which was accordingly done, for the purpose of afterwards 
 raising a spurious title to the property of the master ; the gist of the 
 indictment was for the conspiracy, and the conviction proceeded upon 
 that ground. (d\ And in a case where a cheat was effected by one person 
 pretending to be a merchant, and another to be a broker, we have seen 
 that judgment appeared ultimately to have been given for the crown, 
 on the ground that it was a case of conspiracy, (e) A case, however, is 
 
 (a) 2 East, P. C. c. 20, s. 6, p. 1010. (b) Ante, p. 326. 
 
 (c) 2 East, P. C. c. 20, s. 6, p. 1010. The defendants were convicted upon the second 
 indictment. 
 
 (d) Rex v. Robinson and Taylor, O. B. 1746. 1 Leach, 37. 2 East, P. C. c. 20, s. 6, p. 1010. 
 
 (e) Reg. v. Mackarty and Fordenbourgh, ante, p. 281. 
 
 (A) United States. — If any person shall acknowledge or procure to be acknowledged in 
 any of the courts of the United States, any recognizance, bail or judgment in the name or 
 names of any other person or persons, not privy or consenting to the same, every such person 
 or persons, on conviction thereof, shall be fined not exceeding five thousand dollars, or be 
 imprisoned not exceeding seven years, and whipped not exceeding thirty-nine stripes. 
 Provided, nevertheless, that this act shall not extend to the acknowledgment of any judg- 
 ment or judgments by any attorney or attorneys, duly admitted for any person or persons 
 against whom any such judgment or judgments shall be had or given. {1 U. S. Laws (Sto- 
 ry's ed.) 86; st. 1790, c. 36, \ 15.} 
 
 {If any person shall falsely and deceitfully personate any true or real proprietor or holder 
 of a share or sum in public stock or debt; or capital stock of the bank of the United States, 
 or any person entitled to any annuity, dividend due on such stock or debt, or to any pen- 
 sion, prize money, wages, or other debt or sum of money due or to become due from the 
 United States, as if such offender were the true and lawful owner thereof, and entitled 
 thereto ; every person so offending shall be deemed guilty of felony, and be punished by 
 fine not exceeding five thousand dollars, and by imprisonment and confinement to hard 
 labour not exceeding ten years. 3 U. S. Laws (Story's ed.) 2004; st. 1825, c. 276, \ 18.} 
 
 Xkw York. — In an action of scire facias against, bail, the defendant pleaded that another 
 person of the same name and description became bail, and traversed that the defendant was 
 the same person. The plaintiff replied that the defendant and the person described in ths 
 recognizance of the bail were the same person, and issue was thereon joined. The name of 
 Elnathan Noble was inserted in the hail-piece, but it was proved that Stephen Norton was 
 the person who intended to be, bail, and who in fact appeared before the judge who took and 
 signed the acknowledgment of the bail piece. It was held that this was a good plea; and 
 that the evidence was admissible, and sufficient on the issue joined between the parties, as 
 to the identity of the person. Where bail arc personated, the court will in their discretion, 
 on motion, order a vacatur of the bail; but if there has been a felonious personating of bail, 
 the court will stay an order for relief, until the party personated has prosecuted the felon. 
 Renoard v. Noble, 2 Johns. Cases, 293. 
 
 JSee Revised Statutes, Vol. II. 677.} 
 
 Vol. il— 35
 
 539 OF FALSELY PERSONATING ANOTHER. [BOOK IV. 
 
 yS— 1 — ■ 
 
 reported, in which the indictment only charged that the defendant per- 
 sonated a clerk to a justice of the peace, with intent to extort money 
 from several persons, for procuring their discharge from misdemeanors 
 for which they stood committed; and the court refused to quash it upon 
 motion, and put the defendant to demur to it.(/) But it is observed, 
 that it might probably have occurred to the court that this was some- 
 thing more than a bare endeavor to commit a fraud by means of falsely 
 personating another; that it was an attempt to pollute and render odious 
 the public justice of the kingdom, by making it a handle and pretence 
 *540 for corrupt practices.^) How far the refusal to quash the indictment* 
 upon motion can be considered as an authority is questionable ; as we 
 have seen that it was the practice of the court, as often declared, not to 
 quash on motion indictments for offences founded in fraud or oppres- 
 sion, though such indictments might appear not to be sustainable, but 
 to leave the defendants to plead. (K) 
 Of the of- The offence of falsely personating another for purposes of fraud is so 
 f tat *l s nearly allied to forgery, and so often blended with it, that these offences 
 have been frequently included by the legislature in the same enactments 
 and made felonies alike subject to the same punishment."!" Many of the 
 statutes, therefore, which relate to falsely personating, with a few cases 
 determined upon their construction, having necessarily been introduced 
 in the preceding chapters; as those concerning the personating the pro- 
 prietors of public stocks, kc.,(i\ and the personating of soldiers and 
 seamen, and their widows, &c, in order to obtain wages, pensions, prize- 
 money, &c.( j\ But the general provision of the 2 Wm. 4, c. 53, entitled 
 "An act for consolidating and amending the laws relating to the pay- 
 ment of army prize-money," may properly be introduced in this place. 
 J Wm. 4, c. That statute, by sec. 49, enacts, that » if any person shall knowingly 
 Personat- an & willingly personate or falsely assume the name or character or pro- 
 ing and cure any other person to personate or falsely assume the name or cha- 
 sumin^the rac t er °f an y officer, non-commissioned officer, soldier or other person 
 name, &c, entitled or supposed to be entitled to any prize-money, grant, bounty- 
 s^aiiorThi monev > share or other allowance of money due or payable or supposed 
 order to ob- to be due or payable for or account of any service performed or sup- 
 tain prize- p 0se( j t have been performed bv anv officer, non-commissioned officer, 
 
 money * - 
 
 pay, pen- soldier, or other person who shall have really served or be supposed to 
 sion. &c., have served in his majesty's army or in any other military service, or 
 shall personate or falsely assume, or act, aid, or assist in personating or 
 falsely assuming the name or character, or procure any other person to 
 personate or falsely assume the name or character of the executor or 
 administrator, wife, widow, next of kin, relation or creditor of any such 
 officer, non-commissioned officer, soldier, or other person as aforesaid, 
 in order to receive or to enable any other person to receive any prize- 
 money, grant, bounty -money, share or other allowance of money due or 
 payable or supposed to be due or payable for or on account of any ser- 
 vice performed or supposed to have been performed by any such officer, 
 non-commissioned officer, soldier, or other person as aforesaid ; all and 
 
 ( f) Dnpee's case, 12 Geo. 1, 2 Sess. Cass. 11. 2 East, P. C. c. 20, s. 6, p. 1010. 
 
 (g) 2 East, P. C. c. 20, s. 6, p. 1011. (h) Ante, p. 283, note (?'). 
 \i) Ante, p. 418, et seq. (j) Ante, p. 473, et seg. 
 
 -j- [Falsely personating a voter for Common Councilman is not indictable at common law 
 nor under the statute which is confined to false answers. Reg. v. Bent, 2 C. & K. 1 TO. 
 Eng. C. L. lxi. 178.]
 
 CHAP. XL.] OF FALSELY PERSONATING ANOTHER. 540 
 
 every person so offending, being thereof lawfully convicted, shall be and 
 are and is hereby declared and adjudged to be guilty of felony, and shall 
 be transported beyond the seas for life, or for any term not less than 
 seven years, as the court before whom such person or persons shall be 
 convicted shall adjudge. "(&) 
 
 The 11 Geo. 4, c. 20, entitled "an act to amend the laws relating *to *541 
 the pay of the royal navy," by sec. 84, enacts that " if any person shall 11 Geo. 4, 
 falsely and deceitfully personate any commission, warrant or petty officer, p 20 ' s ' , 84 ' 
 or seaman, or commissioned or non-commissioned officer of marines or ing officers, 
 marine, or the wife, widow, or relation, executor, administrator, r &c -' ofthc 
 
 . . . navy. 
 
 creditor of any such officer, seaman or marine, or any person entitled to 
 any allowance from the compassionate fund of the navy, in order to re- 
 ceive any wages, pay, half-pay, prize-money, bounty-money, pension or 
 any part thereof, gratuity or other allowance for money due or payable, 
 or supposed to be due or payable, to any such officer, seaman or marine, 
 or to the wife, or widow, relation, executor, administrator, or creditor 
 of any such deceased officer, seaman, or marine, or any allowance to 
 any person from the said compassionate fund, with intent to defraud 
 any person whomsoever; every such offender shall be guilty of felony, 
 and, being convicted thereof, shall be liable at the discretion of the court, 
 to be transported beyond the seas for life or for any term not less than 
 seven years, or to be imprisoned for any term not exceeding four years 
 nor less than two years. "(ft 
 
 Upon some of the former statutes relating to the false personating of The per- 
 seamen, it was decided, that as the false personating must be done in s ^^ l ^ oi: 
 order to receive the wages, &c, of some seamen, &c, entitled or sup- some sea- 
 posed to be entitled thereto, there must be some evidence to show that ™ an > &c, > 
 there was such a person of the name and character assumed, who was have been 
 either entitled, or might prima facie at least be supposed to be entitled in exis - 
 to receive the wages, &c, attempted to be acquired. Thus where the 
 prisoner was indicted on the 31 Geo. 2, c. 10,(m) for personating and 
 falsely assuming the name and character of Wm. Wheeler, a person 
 supposed to be entitled to prize-money, for service done on board his 
 majesty's ship Terpsichore, in order to receive certain prize-money, &c, 
 one of the objections taken after conviction was, that there was no evi- 
 dence that Wm. Wheeler ever served on board of the Terpsichore in 
 any capacity ; or, indeed, that any such person existed : and the judges, 
 after a conference, held that the conviction was wrong, there being no 
 evidence that there was any such person as Wm. Wheeler, who either 
 was entitled, or at le&stprimd facie entitled to prize-money, as a sea- 
 man on board the Terpsichore. (n\ 
 
 In a case upon one of the former statutes, 54 Geo. 3, c. 93, s. 89, the Personat- 
 indictment charged the prisoner with personating and falsely assuming " lg '?™ d " s ~ 
 the name and character of one Joshua Boatwright, a seaman entitled to name of ' 
 certain prize-monev ; and it was proved that the prisoner applied at persons 
 
 who were 
 
 Greenwich Hospital for prize-money in the name of Boatwright; but it acad, held 
 
 (/<•) The 2 Wm. 4, c. 53, contains no express provision for the punishment of accessories 
 after the fact, consequently they are punishable (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, 
 and the 1 Vict. c. 90, s. 5,) in the manner stated in note (w), ante, p. 448. See the remainder 
 of sec. 49 of the 2 Wm. 4, c. 63, ante, p. 473. 
 
 (/) See sec. 88, and the 1 Vict. c. 90, s. 5, ante, p. 478, note (k), as to principals in the 
 second degree, accessories, hard labour, and solitary confinement. 
 
 (m) Repealed by the 1 1 Geo. 4, c. 20. 
 
 («) Brown's case, 2 East, P. C. c. 20, s. 4, p. 1007. S. P. in M'Anelly's case, ibid. p. 1009.
 
 541 OF FALSELY PERSONATING ANOTHER. [BOOK IV. 
 
 to be with- appeared that lie did not obtain the money, and that Boatwright was 
 tutes* Stl " tnen dead. The counsel for the prisoner objected, that to personate 
 Boatwright under the circumstances, or to assume his name and char- 
 acter, was not an offence within the meaning of the act, which related 
 only to existing persons ; that after the death of Boatwright he could 
 not be entitled to prize-money, but that the personal representatives or 
 *542 nest of kin were *the persons entitled, and that in fact he was not sup- 
 posed to be entitled to prize-money, since it was supposed at the prize- 
 office that he was dead, and that his next of kin was in the course of 
 obtaining administration in order to receive it. The prisoner was found 
 guilty, and the point being reserved for the consideration of the judges, 
 they were of opinion that the conviction was right, and that the statute 
 applied, though the seaman personated was dead.(o) So where the 
 prisoner personated one Cuff, who was dead, and whose prize-money had 
 been paid to his mother, the judges were of opinion that a conviction 
 upon the same statute was right. (p) 
 The per- In a case upon the 57 Geo. 3, c. 127, s. 4, the indictment charged the 
 sonating prisoner with wilfully and knowingly personating, and falsely assuming 
 some per- the name and character of Peter M'Cann, a person entitled to prize- 
 son by his mone y f or an( j lri respect of his services performed on board of a ship 
 
 correct • 
 
 name, who of his majesty's called the Tremendous, in order to receive such prize- 
 was enti- money, with intent to defraud the commissioners and governors of the 
 supposed to Greenwich Hospital; and a second count described Peter M'Cann as a 
 be entitled person supposed to be entitled, &c, for services supposed to have been 
 monev^c performed. Upon the evidence it appeared by the prize list and muster 
 and it must book of the Tremendous, produced by the proper officer from Green- 
 be socharg- w j c h Hospital, that there was a person of the name of Peter M'Carn 
 indict- entitled to prize-money, but no person of the name of Peter M'Cann. 
 ment. ^he learned judge, by whom the prisoner was tried, inclined to direct 
 
 an acquittal upon this variance in the name, but he ultimately left the 
 case to the jury, directing them to say whether the prisoner intended to 
 personate Peter M'Carn. The jury found that he did so intend, and 
 returned a verdict of guilty ; upon which judgment was respited, and 
 the point reserved for the consideration of the twelve judges, who were 
 of opinion that the "personating" must apply to some person who had 
 belonged to the ship, and that the indictment must charge a personating 
 of some such person; and as that was not the case here, they held the 
 conviction wrong. (q\ 
 Aiders and It was held upon the same statute, 57 Geo. 3, c. 127, s. 4, that all 
 abettors. p er sons present aiding and abetting another in the personating and 
 falsely assuming the name, &c, of a seaman, were principals, and that 
 the offence was not confined to the individual only, by whom the sea- 
 man was personated. M 
 
 It remains now to mention that the statute which relates to the ac- 
 knowledging of deeds, bail, &c, iu the name of another. 
 
 The 21 Jac. 1, c. 26, the 4 W. & M. c. 4, s. 4, and the 27 Geo. 3, 
 c. 43, s. 4, which formerly provided for the punishment of these offences, 
 are repealed by the 1 Win. 4, c. 66, s. 31. 
 Fraudu- But that statute by sec. 11, enacts, "that if any person shall, before 
 
 (o) Rex v. Martin, East. T. 1817, Russ. & Ry. 324. 
 
 (p) Rex v. Cramp, East. T. 1817, id. 327. 
 
 \q) Rex v. Tannet, East. T. 1818, Russ. & Ry. 351. See Reg. v. Pringle. ante. p. 477. 
 
 (r) Rex v. Potts, East. T. 1818, Russ. & Ry. 353.
 
 CHAP. XLI.] OF FALSELY PERSONATING ANOTHER. 542 
 
 any court, judge, or other person lawfully authorized to take any recog- lently ac- 
 nizance or bail, acknowledge any recognizance or bail in the name of in g^ n l. g " 
 any other person not privy or consenting to the same, whether such re- recogni- 
 cognizance or bail in either case be or be not filed ;(s) *or if any person *543 
 shall, in the name of any other person not privy or consenting to the zance, bail, 
 same, acknowledge any fine, recovery,(£) cognovit actionem, or judgment, ver ' or 
 or any deed to be enrolled ; every such offender shall be guilty of felony, judgment, 
 and, being convicted thereof, shall be liable, at the discretion of the^*^°^ 
 court, to be transported beyond the seas for life, or for any term not less transporta- 
 than seven years, or to be imprisoned for any term not exceeding four t ™ n for llfe > 
 years nor less than two years. (m) 
 
 In the construction of the 21 Jac. 1, c 26, s. 2, (now repealed,) it 
 was holden, that the bare personating of bail before a judge at chambers, 
 or the acknowledging thereof in another name, was no felony, but only a 
 misdemeanor, unless the bail were filed. (y) But yet it appears in one 
 case that the offence was considered as complete by the personating ; 
 as, though the bail-piece was filed at Westminster, the trial was had in 
 London, the county where the bail was personated. (w) It seems that 
 if bail were put in under feigned names of persons who had no exist- 
 ence, the offender could not be prosecuted upon this repealed statute for 
 felony. (x\ 
 
 *CHAPTER THE FORTY-FIRST. *544 
 
 OP MALICIOUS INJURIES TO PRIVATE PROPERTY. 
 
 We now come to the consideration of those injuries to property which 
 proceed rather from malicious or wanton motives, than from any pro- 
 posed gain to the offender.*}" Injuries of this kind were made punish- 
 
 (s) The words in italics are new. 
 
 U) Fines and recoveries are now abolished by the 3 & 4 Wm. 4, c. 74. 
 
 (w) See the general provisions of this statute, ante, p. 408, et seg., and as to principals in 
 the second degree, accessories, and hard labour and solitary confinement, see ante, p. 410. 
 
 (v) 1 Hale, 606. Timberley's case, 2 Sid. 90. 1 Hawk. P. C. c. 47, s. 5. 2 East, P. C. 
 c. 20, s. 4, p. 1009. The words of the 21 Jac. 1, c. 26, s. 2, were "That all and every per- 
 son and persons which shall acknowledge or procure to be acknowledged, any fine or fines, 
 recovery or recoveries, deed or deeds enrolled, statute or statutes, recognizance or recogni- 
 zances, bail or bails, judgment or judgments, in the name or names of any other person or 
 persons not privy or consenting to the same," shall be adjudged felons. The words intro- 
 duced into the 1 Wm. 4, c. 66, s. 11, render it unnecessary for the recognizance or bail to 
 be filed. C. S. G. 
 
 (w) Beesley's case, T. Jones. 64. 1 Hawk. P. C. c. 47, s. 4. But in 2 East, P. C. c. 20, s. 
 5, p. 1010, it is observed that according to the report of the same case in Ventris, (1 Vent. 
 301,) Twisden, J., said that it must be tried in Middlesex, where the bail-piece was filed ; 
 the entry being venil coram domino rcge, §c. 
 
 (x) Anon. 1 Stra. 384. 1 Hawk. P. O. c. 47, s. 6. But the court in this case ordered the 
 bail and the attorney to be set in the pillory. 
 
 f [Skill v. The Slate, Humphreys, 283. Taylor v. State, lb. 285. 
 
 An indictment for malicious mischief will only lie for the malicious destruction of per- 
 sonal property. State v. Holmes, 5 Iredell, N. O. 364. 
 
 In order to a conviction of the offence of malicious mischief, the jury must be satisfied 
 that the injury was done either out of a spirit of wanton cruelty or of wicked revenge. 
 The Commonwealth v. Walden, 3 dishing, 558. 
 
 In an indictment for malicious mischief in killing a domestic animal, the name of the 
 owner should be disclosed, or it should at least be stated that the animal was the property of 
 some one, though the name was unknown; if there was no known proprietor, the killing will 
 not constitute malicious mischief. The State v. Pierce, 7 Alabama, 728. 
 
 On the trial of an indictment for maliciously cutting and girdling certain fruit trees, the
 
 544 OF MALICIOUS INJURIES TO PRIVATE PROPERTY. [BOOK IV. 
 
 able by different statutes passed from time to time, as they appeared to 
 be required for the protection of the community ; but it has lately been 
 deemed expedient that these statutes should be repealed, and that the 
 provisions contained in them should be amended and consolidated into 
 one statute, and accordingly the 7 & 8 Geo. 4, c. 30, was passed into a law. 
 The several enactments of this statute will be mentioned in the suc- 
 ceeding chapters, in such arrangement as may seem most appropriate ; 
 but its general provisions may be properly stated in the first instance. 
 Malice The 25th section enacts, that malice against the owner of the pro- 
 
 owneTof 6 p ert y shall not be essential in offences of this description ; an ingredient 
 property in the offences under some of the repealed statutes which had often ob- 
 sarviTof- structe d tne course of justice, and (as in the instance of maiming cattle) 
 fences of had screened the perpetrators of very barbarous acts from deserved pun- 
 
 l hl ( ? 1 5, ind- , ishment.fa^ The words of this section are, "that every punishment 
 & 8 Geo. 4, V / . . ■» l . . 
 
 c. 30, s. 25. <md forfeiture by this act imposed on any person maliciously committing 
 
 any offence, whether the same be punishable upon indictment, or upon 
 
 summary conviction, shall equally apply and be enforced, whether the 
 
 offence shall be committed from malice conceived against the owner of 
 
 the property in respect of which it shall be committed, or otherwise." 
 
 Ifthenatu- If the thing attempted to be done would, if successful, have preju- 
 
 ^uence^f diced a particular individual, it will be intended that such prejudice was 
 
 an act be to meant, without any proof of actual malice against such individual. 
 
 injure a. rj\^ Q p r i soner was indicted for setting; fire to a ship which belonged to 
 
 particular ,.,„,, . , . . ,. , , , 
 
 person it nimselt and others, with intent to prejudice the other part-owners, and 
 will be m- it appeared that there was an insurance at the least to the full value of 
 
 tended that 
 
 the person * ne ship > aQ d although made before the transfer of the shares to the 
 doing it so other part-owners, it was verbally agreed that they were to have the 
 m en e . jjgQggj f j^ anc i jj was therefore contended there could be no intent to 
 prejudice them : Gaselee, J., thought it right, however, to leave the 
 question to the jury, upon the ground that the prisoner must be under- 
 *545 stood to intend what was the natural consequence* of the act, and that 
 the setting fire to the ship by the person by whom and for whose bene- 
 fit the insurance was originally made, and in whose name any suit must 
 be brought to recover the amount, might vitiate the insurance ; and upon 
 a case reserved, it was contented that there was no proof of malice. 
 The prisoner could not be intended to mean malice to his part-owners 
 in an act which was equally injurious to himself; and unless he could 
 be presumed to have intended injury to himself, he could not be pre- 
 sumed to have intended it to them ; sec. 25 of the 7 & 8 Geo. 4, c. 30, 
 did not supply the deficiency of proof of malice, but was meant to ap- 
 ply to malicious injuries to animals. It was answered that it was not 
 necessary to prove express malice, where the act was of such a nature 
 as could spring from no other than a bad motive, and was calculated to 
 inflict injury without cause or justification. In such case the law im- 
 plies malice from the act itself, and in the language of the statute it will 
 
 («) An alteration had been made in this respect as to the offence of maiming cattle, by 
 the 4 Geo. 4, c. 54. now repealed by the 7 & 8 Geo. 4, c. 27. 
 
 property of one B., it is sufficient proof of ownership to show B.'s possession of the premises, 
 on which the trees stand ; and proof that B. owns them in common with others is not a vari- 
 ation. The People v. Ilorr, 7 Barb. Sup. Ct. 9. 
 
 An indictment for malicious mischief will not necessarily be defeated, merely because the 
 acts proved might have supported a charge for larceny. The State v. Leavitt, 32 Maine, 183. 
 
 An indictment for malicious mischief will lie for killing a dog. It must be shown that the 
 killing was from malice against the owner. The Slate v. Latham, 13 Iredell, 33. J
 
 CHAP. XLI.] OF MALICIOUS INJURIES TO PROPERTY. 545 
 
 properly be said to be maliciously done. And the judges were of opi- 
 nion that the intent to prejudice was implied by the act.(b\ 
 
 If an indictment under the 7 & 8 Geo. 4, c. 30, alleged an intent to Under the 
 injure the owner of the property set fire to, it was supported, although^ 30 *°~ 
 the jury found that the prisoner intended to injure another person. The lice was in- 
 prisoner was indicted for setting fire to an outhouse in the possession of ten( ? ei1 , 
 
 /-ii i • i • • • /-ii i i /~n ii ii against the 
 
 (Jhettie, with intent to injure Chettle, and Chettle swore that there had owner of 
 never been any quarrel between him and the prisoner, and there was P ro P er *y 
 evidence that the prisoner had endeavoured to throw suspicion on one though the 
 Smith; but Gaselee, J., told the jury that the law was that a person, J ur y found 
 who did an act wilfully, necessarily intended that which must be the erlntended 
 consequence of the act, and that the consequence here was injury to the to injure 
 prosecutor, who was injured by the destruction of his property. The another 
 jury said they must find the prisoner guilty, with intent to injure Smith. 
 Gaselee, J., asked them if they were content that their verdict should 
 be, that they found no intent to injure Chettle, except so far as by law 
 it must be so considered, to which they agreed ; and upon a case re- 
 served, in order that the opinion of the judges might be taken on the 
 finding of the jury, the judges present were unanimously of opinion that 
 the indictment was right as to the intent to injure Chettle. (c) 
 
 It must, however, be observed, that an act, the necessary consequence An act in- 
 of which is an injury to another person, may be done under such cir- jnn ° us t0 
 eumstances as negative malice. Thus if an act injurious to another be done under 
 done under a bond fide claim of right it will not come with the statute. a J>onafide 
 
 CI ill 1X1 Or 
 
 If, therefore, a servant stop up the airway of a mine by his master's right is not 
 order, supposing bond fide that the master had a right to order it to be within the 
 done, the servant is not liable to be convicted *under the 7 & 8 Geo. 4, 4 c- 30 T . 
 c. 30, s. 6, of maliciously obstructing the airway. The prisoners were *546 
 iudicted for feloniously and maliciously obstructing an airway belong- 
 ing to a mine of one Phelps, by building a wall across the airway; the 
 prisoners were in the employ of Protheroe, between whom and Phelps 
 there was a dispute respecting two mines in their respective occupations, 
 lying close together. Protheroe, professedly with the view of exerting 
 his supposed right against Phelps, directed the prisoners to effect the ob- 
 struction charged in the indictment, and the prisoners accordingly made 
 such obstruction. (c7) The effect of the obstruction would be to drive 
 back the choke damp into Phelps's mine, and prevent the working. 
 Lord Abinger, C. B., "If a master, having a doubt or no doubt of his 
 own rights, sets his servants to build a wall in a mine, they would, if 
 he proved to have no right, be all liable in an action of trespass, but it 
 would not be felony in the servants. The rules respecting acts mala 
 in se do not apply. If a master told his servant to shoot a man, he 
 would know that that was an order he ought to disobey. But if the 
 
 (b) Rex v. Pliilp, R. & M. C. C. R. 263. See this case, post, p. 563, as to other points. 
 
 (c) Rex v. Newill, R. & M. C. C. R. 468. In his luminous charge to the Bristol grand 
 jury in 1832, Lord C. J. Tindal observed, that " where a statute directs that to complete an 
 offence it must have been done with intent to injure or defraud any person, there is no occa- 
 sion that any malice or ill will should subsist against the person whose property is so 
 destroyed. It is a malicious act in contemplation of law when a man wilfully does that 
 which is illegal, and which, in its necessary consequence, must injure his neighbour, and it 
 is unnecessary to observe, that the setting fire to another's house, whether the owner be a 
 stranger to the prisoner, or a person against whom he had a former grudge, must be equally 
 injurious to him." 5 C. & P. 266, a note. 
 
 (d) This statement is taken from the report of James v. rhelps, b 11 Ad. & E. 483. 
 
 a Eng. Com. Law Reps. xxiv. 312. b lb. xxxix. 150.
 
 546 OF MALICIOUS INJURIES TO PROPERTY. [BOOK IV. 
 
 servant bond fide, did these acts, I think they do not amount to an 
 offence within the statute. If a man claims a right which he knows not 
 to exist, and he tells his servants to exercise it, and they do so, acting 
 bond fide, I am of opinion that that is not a felony in them, even if in 
 so doing they obstruct the airway of a mine. What I feel is this, that 
 if these men acted bond fide in obedience to the orders of a superior, 
 conceiving that he had the right which he claimed, they are not within 
 this act of parliament. But if either of these men knew that it was a 
 malicious act on the part of his master, I think then that he would be 
 guilty of the offence charged. "(e) 
 
 And this decision was confirmed in an action brought by one of the 
 prisoners against Phelps, for a malicious prosecution, in which it was 
 contended that the proviso in sec. 24 of the 7 & 8 Geo. 4, c. 30, (which 
 authorizes justices summarily to convict in cases of malicious injuries to 
 real or personal property) that " nothing herein contained shall extend 
 to any case where the party trespassing acted under a fair and reasona- 
 ble supposition that he had a right to do that act complained of," raised 
 a strong inference that the legislature did not intend to except from the 
 operation of sec. 6, acts done in the supposed exercise of a right, as 
 there was no such proviso in sec. 6. But the Court of Queen's Bench 
 were of a contrary opinion, and Lord Denman, C. J., observed, " as to 
 the 7 & 8 Geo. 4, c. 30, s. 24, I think it makes strongly against the argu- 
 ment of the defendant's counsel. That section gives a power to convict 
 summarily for malicious mischief; and it contains a proviso that, where 
 there is a bond fide acting under a supposed right, the party acting shall 
 not be liable to conviction even for the trespass. Now why was there 
 no such provision in the ease of felony ? for this plain reason, that the 
 principles of the common law prevent the act from being felonious 
 where there is no malice in the intention. "(f)f 
 *547 With respect to principals in the second degree and accessories, *the 
 Sec. 26. 26th section enacts, " that in the case of every felony punishable under 
 in the se- ^is ac *> ever y principal in the second degree, and every accessory be- 
 eond de- fore the fact, shall be punishable with death or otherwise, in the same 
 accessories manner as tne principal in the first degree is by this act punishable ; 
 and every accessory after the fact to any felony punishable under this 
 act shall, on conviction, be liable to be imprisoned for any term not 
 exceeding two years; and every person who shall aid, abet, counsel, or 
 procure the commission of any misdemeanor punishable under this act, 
 shall be liable to be indicted and punished as a principal offender." 
 Sec. 27. By sec. 27, " where any person shall be convicted of any indictable 
 
 inenTof °ff ence punishable under this act, for which imprisonment may be 
 hard labour awarded, it shall be lawful for the court to sentence the offender to be 
 confin ltary im P r i sonec '> or to be imprisoned and kept to hard labour, in the common 
 ment may gaol or house of correction, and also to direct that the offender shall be 
 be inflicted, kept in solitary confinement for the whole or any portion or portions of 
 such imprisonment, or of such imprisonment with hard labour, as to the 
 court in its discretion shall seem meet.(r/) 
 
 ( •■ i [ion;, v. James, a 8 C. & P. 131. Lord Abinger, C. B., directed the prisoner to be acquitted. 
 
 (/) James v. Phelps, ubi supra. 
 
 (ff) The 1 Vict. c. 90, s. 5, enacts that after the 1st October, 1837, '' it shall not be lawful 
 for any court to direct that any offender shall be kept in solitary confinement for any longer 
 period than one month at a time, or than three months in the space of one year.'' 
 
 f [Kate v. Evershed, 10 Q. B. 143. Eng. C. L. lix. 142.] 
 a Eng. Com. Law Reps, xxxviii. 326.
 
 CHAP. XLII.] OF ARSON AND BURNING, ETC. 547 
 
 And with respect to the apprehension of offenders, the 28th section Sec. 28. 
 enacts, "that any person found committing any offence against this act, si^^of rjer- 
 whether the same be punishable upon indictment or upon summary sons fouud 
 conviction, may be immediately apprehended, without a warrant, by any an^ffen- 2 
 peace officer, or the owner of the property injured, or his servant, or ces maybe 
 any person authorized by him, and forthwith taken before some neigh- wltnou t a 
 bouring justice of the peace, to be dealt with according to law." 
 
 Offences amounting to felony or misdemeanor, punishable under this Trial of of- 
 act, and committed within the Admirality jurisdiction are, (by see. 43,) ^^j 00111 " 
 to be dealt with, tried, &c, in the same manner as any other felony or within the 
 misdemeanor committed within that jurisdiction. Atmiraty 
 
 "* , jurisuic- 
 
 The statute contains various regulations as to the summary proceed- tion. 
 ings by conviction before magistrates, which are authorized by its Summary 
 provisions for the punishment of minor offences. It limits the time f° r fn^autho- 
 the prosecution of offences punishable on summary conviction, gives the rizedbytho 
 mode of compelling the appearance of offenders, makes abettors i n statute - 
 such offences punishable as principal offenders, gives a form of con- 
 viction, allows an appeal in certain cases, and contains provisions as to 
 the application of the forfeitures and penalties, and as to several other 
 matters. 
 
 The general provisions of the 7 Geo. 4, c. 64, as to offences commit- General 
 ted on the boundaries of counties, or begun in one county and com-^ v jf^ ns 4 
 pleted in another, or committed during a journey or voyage, and the c. 64, ap- 
 provisions as to the statement of property, and as to the trial, &c, of P^cable to 
 
 r . ... , malicious 
 
 accessories, will apply to offences by malicious injury. (A) injuries. 
 
 *CHAPTER THE FORTY-SECOND. *548 
 
 OF ARSON AND THE BURNING OF BUILDINGS, MINES, SHIPS, CORN, 
 
 TREES, &C.(A.) 
 
 Arson is, at common law, an offence of the degree of felony; and has offence of 
 been described as the malicious and wilful burning the house of an- arson at 
 
 (h) See these provisions ante, p. 120, et seq. 
 
 (A) New York. Setting fire to an inhabited dwelling-house, by which only a part of it 
 is consumed, is arson within the first section of the act, (1 N. R. L. Sess. 36, c. 29,) and it 
 is punishable with death. It is enough if the fire is applied with a malicious and criminal 
 intent, and that is as apparent as if the whole house had been consumed. By the addi- 
 tion of that word inhabitant, in the first section of the act, the legislature evidently intended 
 to make a distinction between the act of burning a dwelling-house while persons were actually 
 in it, and burning an uninhabited dwelling-house, the one offence being punishable with 
 death, and the other by imprisonment. The People v. Rose Butler, 16 Johns. Rep. 203. 
 
 Setting fire to a gaol by a prisoner, merely for the purpose of effecting his escape, is not 
 arson, nor is it wilfully burning an inhabited dwelling-house, within the meaning of the 
 first section of the act declaring the punishment of crimes, (1 N. R. L. 407, Sess. 36, Ch. 
 29,) though the gaol is to be deemed an inhabited dwelling-house within the act. " It 
 does not appear to have been the intention of the prisoners to burn the gaol. Their original 
 intention .was to effect their escape, and the burning was merely for that purpose. It lay 
 on the prisoners to show that it was no part of their intention to burn the gaol, and we 
 think they have done it. The statute makes it felony for a person to aid or assist a felon to 
 escape from prison; but neither by the statute, nor the common law, is the attempt of a 
 person to escape a felony. We think it would be carrying the doctrine too far to say, that 
 setting fire to a prison by a prisoner, merely for the purpose of effecting his own escape,
 
 548 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 common other. (a) The burning a party's own house does not come within this 
 definition; but the burning a man's own house in a town, or so near to 
 other houses as to create danger to them, is a great misdemeanor at 
 common law.(i) Barns with corn or hay within them, have been con- 
 sidered as so much entitled to the protection of the law, that though 
 distant from the house, and no part of the mansion, the burning of them 
 is felony at common law.(c)t 
 There must The burning necessary to constitute arson of a house at common law, 
 burnin Ua mus ^ be an actual burning of the whole or some part of the house. 
 Neither a bare intention, nor even an actual attempt to burn a house 
 by putting fire into or towards it, will amount to the offence, if no part 
 of it be burned; but it is not necessary that any part of the house should 
 be wholly consumed, or that the fire should have any continuance ; and 
 the offence will be complete, though the fire be put out, or go out of 
 itself, (d) 
 
 Upon an indictment for maliciously setting fire to a house it appeared 
 that a small faggot was found lighted and burning on the boarded floor 
 
 CO O o 
 
 of the kitchen, and a part of the boards of the kitchen floor was scorched 
 black but not burnt; the faggot was nearly consumed, but no part of 
 the wood of the floor was consumed; and Cresswell, J., after conferring 
 with Patteson, J., held that as the wood of the floor was scorched, but 
 no part of it consumed, the indictment could not be supported. But the 
 learned judges were of opinion, that it was not essential that the wood 
 
 (a) 3 Inst. 66. 1 Hale, 556. 1 Hawk. P. C. c. 39. 4 Bla. Com. 220. 2 East, P. C. c. 
 21, s. 1, p. 1015. {Davis's Justice, 313, 1st ed.} 
 
 (b) 1 Hale, 568, 569. 1 Hawk. P. C. c. 39, s. 15. 3 Bla. Com. 221. 2 East, P. C.c. 21, 
 s. 7, p. 1027. 
 
 (c) 3 Inst. 6V. Barbara's case, 4 Co. 20 a. Sum. 86. 1 Hawk. P. C. c. 39, s. 1. 4 Bla. 
 Com. 221. {5 Harris & Johns. 125, House v. House.} 
 
 (d) 3 Inst. 66. Dalt. 506. 1 Hale, 568, 569. 1 Hawk. P. C. c. 39, ss. 16, 17. 2 East, 
 P. C. c. 21, s. 4, p. 1020. {16 Mass. R. 105, Commonwealth v. Van Schanck.} 
 
 amounted to the crime of arson. Per Spencer, C. J. The People v. Cetteral & al., 18 
 Johns. Rep. 115, 120. 
 
 {See Revised Statutes, Vol. II., 657, 666, 667. 
 
 United States. — By st. 1825, c. 275, (3 U. S. Laws, 1999, Story's ed.) \ 1, If any person, 
 within any fort, dock-yard, arsenal, armory or magazine, the site whereof is ceded to and 
 under the jurisdiction of the U. States, or on the site of any light-house, or other needful 
 building, belonging to the U. States, the site whereof is ceded to them and under their 
 jurisdiction, shall wilfully and maliciously burn any dwelling-house, or mansion-house, or 
 any barn, stable, or other building, parcel of any dwelling or mansion-house, every person 
 so offending, his or her counsellors, aiders, and abettors, shall be deemed guilty of felony, 
 and shall, on conviction thereof, suffer death. 
 
 By \ 2, if any person, in any of the places aforesaid, shall wilfully and maliciously set 
 fire to, or burn, any arsenal, armory, magazine, rope-walk, ship-house, ware-house, block- 
 house, or barrack, or any storehouse, barn, or stable, not parcel of a dwelling-house, or any 
 other building not mentioned in the first section, or any ship or vessel built or building, or 
 begun to be built, or repairing, or any light-house or beacon, or any timber, cables, rigging, 
 or other materials for building, repairing, or fitting out ships or vessels, or any pile of wood, 
 boards or other lumber, or any military, naval, or victualling stores, arms, or other muni- 
 tions of war — every person so offending, his or her counsellors, aiders and abettors, shall be 
 deemed guilty of felony, and shall, on conviction thereof be punished by fine, not exceeding 
 five thousand dollars, and by imprisonment and confinement to hard labour, not exceeding 
 ten years, according to the aggravation of the offence. 
 
 By | 11, the wilful and malicious setting on fire, burning or otherwise destroying of any 
 ship or vessel of war of the U. States, afloat on the high seas, or in any arm of the sea. or 
 in any river, haven or creek, basin or bay within the Admiralty jurisdiction of the U. 
 States, and out of the jurisdiction of any particular state — is made felony punishable with 
 death.} 
 
 f [Sampson v. The Commonicealth, 5 Watts & Serg. 385.]
 
 CHAP. XLII.] AT COMMON LAW. 548 
 
 should be in a blaze, because some species of wood would burn and en- 
 tirely consume without blazing at all.(cW) 
 
 To constitute a setting on fire, it is not necessary that any flame It is not ne- 
 should be visible. Upon an indictment for setting fire to an outhouse, ^a^any 
 it appeared that the roof of the outhouse was made of pieces of wood flame 
 with straw put upon them, and that smoke was seen to issue out of the sho " ' d te 
 bottom of the roof ; there was a good deal of smoke in the straw ; some 
 handfulls of straw were pulled out, and there were sparks in the straw 
 when on the ground, but no sparks were seen in the straw when on the 
 roof; no flame was seen; a ball of linen was pulled out of the roof with 
 the straw ; smoke and sparks came from the ball ; the ball was trod out; 
 the ball was burnt right through on one side ; the fire on the roof was 
 extinguished by throwing some water upon it. On the following day, 
 two half matches were found in the straw on the ground, which was 
 pulled from the roof, but there was no appearance of burning in these. 
 On the same day, several handsful of straw were taken out of the roof, 
 *and there was burnt straw in some of these handsful ; and on the same *549 
 day, on examining the straw lying on the ground down by the build- 
 ing, there were some burnt ashes, and the ends of some of the straws 
 were burnt, and the ends of some of them dropped off like a powder, 
 and the ends of some of the straws had been reduced to ashes ; no part 
 of the wood, either in the pieces on which the straw was laid, or in the 
 posts of the building, was burnt. Upon a case reserved upon the ques- 
 tion, whether this was a setting on fire, the judges held the conviction 
 right, (e) 
 
 So where the prisoner was indicted under the 1 Vict. c. 89, s. 3, for 
 setting fire to a house, and it appeared that the floor near the hearth 
 had been scorched ; it was charred in a trifling way ; it had been at a 
 red heat, but not at a blaze ; it was held that this was a sufficient burn- 
 
 in g-(/) 
 
 The burning must also be malicious and wilful; otherwise, it is only The burn- 
 a trespass. No negligence or mischance, therefore, will amount to such in g m « st be 
 
 , . , , °. • i i • malicious 
 
 burning. (r/) And for this reason it has been holden, that if an un- and wilful, 
 qualified person should, in shooting at game, happen to set fire to the 
 thatch of a house, it will not be a burning of this description. (h\ And 
 so if a man unlawfully shoot at the poultry of another :/A but it is ob- 
 served, that in such case it should seem to be understood that the party 
 did not intend to steal the poultry, but merely to commit a trespass ; 
 for otherwise the first intent being felonious, the party must abide all 
 the consequences. (/) The mali- 
 
 The malicious and wilful burning effected need not correspond with ^(jf,^ 11 
 the precise intent or design of the party. If A. have a malicious intent burning 
 to burn the house of B., and in setting fire to it burn the house of C. need not , 
 
 ° . correspond 
 
 also, or if the house of B. escapes by some accident, and the fire take with the 
 in the house of C. and burn it, this shall be said in law to be the mali- P re ° is ? j?" 
 cious and wilful burning of the house of C, though A. did not intend to par ty. 
 
 (dd) Reg. v. Russel, a 1 C. & Mars. 541. 
 
 (e) Rex v. Stallion, R. & M. C. C. R. 398. See this case, post, p. 559. 
 (/) Reg. v. Parker," 9 C. & P. 45, Parke, B., and Bosanquet, J. 
 (ff) 3 Inst. 67. 4 Bla. Com. 222. 
 
 (h) 1 Hale, 569, where this is laid down contrary to the opinion of Dalt. c. 105, p. 506. 
 
 (i) Id. ibid. (/) 2 East, P. C. c. 21, s. 3, p. 1019. Ante, vol. 1, p. 540. 
 
 a Eng. Com. Law Reps. xli. 295. b lb. xxxviii. 29.
 
 549 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 burn that house. (k) And accordingly it has been said, that if one man 
 command another to burn the house of J. S., and he do so, and the fire 
 thereof burn another house, the commander is accessory to the burning 
 such other house, (£) So it has been held that if a person set fire to a 
 stack, the fire from which is likely to communicate to a barn, and it does 
 so, and the barn is burnt, he is in point of law indictable for setting fire 
 *550 to the barn.(m) So where *the prisouers set fire to a summer house 
 which was in a wood, and some of the trees overhung it, and their 
 branches were burnt by the fire, which consumed the summer-house 
 and also burnt some of the trees, it was held that the prisoner might 
 be convicted under the 7 & 8 Geo. 4, c. 80, s. 17, of setting fire to the 
 wood." (n) 
 It may be And such malicious and wilful burning of the house of another mav 
 
 effected by „ . _ ° . J 
 
 setting fire be by the means ot setting lire to the party s own house; and this, 
 to the though it should appear that the primary intention of the party was only 
 Eouie. S ° Wn to burn his own house. If in fact other houses were, burnt being adjoin- 
 ing, and in such a situation as that the fire must in all probability reach 
 them, the intent being unlawful and malicious, and the consequences 
 immediately and necessarily following from the original act done, the 
 offence will be felony, (o) Thus where the defendant was indicted for 
 a misdemeanor, in burning a house in his own occupation, such house 
 being alleged to be contiguous and adjoining to certain dwelling-houses 
 of divers liege subjects, &c; and the facts of the case, as opened by the 
 counsel for the prosecution, appeared to be that the defendant set fire 
 to his own house, in order to defraud an insurance office, and that in 
 consequence, several houses of other persons, adjoining to his own, were 
 burnt down; Buller, J., said, that, if other persons' houses were in fact 
 burnt, although the defendant might only have set fire to his own, yet 
 under these circumstances the prisoner was guilty, if at all, of felony, 
 (the misdemeanor being merged) and could not be convicted on this in- 
 dictment; and, therefore, he directed an acquittal, (p) And in a case of 
 a similar kind, which occurred about the same time, Grose, J., in passing 
 sentence in the Court of King's Bench, said, that if it had so happened, 
 that any of the neighbouring houses had been set on fire in consequence 
 of the defendant's wilful and malicious act in setting fire to his own 
 house, (which was proved to have been done in order to cheat the in- 
 
 (k) 1 Hale, 569. 3 Inst. 67. 1 Hawk. P. C. c. 39, s. 19. And the indictment may charge 
 it accordingly. 
 
 (1) Plowd. 475. 2 East, P. C. c. 21, s. 7, p. 1031. 
 
 (m) Rex v. Cooper, 1 5 C. & P. 535, Parke, J. Lord C. J. Tindal, in his charge to the 
 Bristol grand jury, 1832, 5 C. & P. 266, note, said, "Nor will it be necessary to prove that 
 the house, the subject of the indictment in any particular case, was that which was actually 
 set on fire by the prisoner. It will be sufficient to constitute the offence if he is shown to 
 have feloniously set on fire another house, from which the flames communicated to the rest. 
 No man can shelter himself from punishment on the ground that the mischief which he 
 committed was wider in its consequences than he originally intended." 5 C. & P. 266, b 
 note. See Curtis v. The Hundred of Godley, 3 C. & B. 248.° But in Turner's case, 1 
 Lewin, 9, it is said that Parke, J., left it to the jury whether the prisoner intended by setting 
 fire to a stack of haulm to set fire to a building close adjoining, and that the judges were 
 of opinion that this direction was right. In R. & M. C. C. R. 239. this point is not noticed. 
 
 («) Reg. v. Price, d 9 C. & P. 729, Gurney, B. The summer-house in this case was not a 
 building, the burning whereof was a felony. 
 
 (o) 2 East, P. C. c. 21, s. 8, p. 1031. And see the case of Coke v. Woodburne, 6 St. Tri. 
 (by Hargr.) 222. 
 
 (p) Isaac's case, cor. Buller, J., 1799. 2 East, P. C. c. 21, s. 8, p. 1031. 
 Eng. Com. Law Reps. xxiv. 444. b lb. xxiv. 309. c lb. x. 67. d lb. xxxviii. 309.
 
 CHAP. XLII.] AT COMMON LAW. 550 
 
 gurance office,) it would clearly have amounted to a capital felony, and 
 his life would have paid the forfeit. (g) 
 
 In order, however, to constitute the felonious offence of arson at com- The fire 
 mon law, the fire must burn the house of another. Therefore, it has thehouseof 
 been holden not to be felony in a party to burn a house, whereof he was another. 
 in possession under a lease for years, (r) 
 
 And it has been held, that a wife who set fire to her husband's house, 4 wife set - 
 was not guilty of felony, within the 7 & 8 Geo. 4, c. 30, s. 2. An indict- thtfhouse 
 ment described the prisoner as the wife of J. March, and charged herofherhus- 
 with setting fire to a certain house of the said J. March, with intent to an ' 
 injure him, against the statute. It appeared that March and his wife 
 had lived separate for about two years, and previous to the act, when 
 she applied for the candle with which it was done, she said it was to set 
 her husband's house on fire, because she wanted to burn him to death. 
 Upon a case reserved upon the question, whether it was an offence 
 within the 7 & 8 Geo. 4, c. 30, s. 2, *for a wife to set fire to her husband's *551 
 house for the purpose of doing him a personal injury, the conviction 
 was held wrong, the learned judges thinking that to constitute the 
 offence, it was essential that there should be an intent to injure or 
 defraud some third person, not one identified with herself.(s) 
 
 And it was decided, that a person in possession of a copyhold dwel- 
 ling-house, could not be guilty of arson, by burning it, although he had 
 a long time before surrendered it into the hands of the lord of the manor, 
 to the use of another person, his heirs, and assigns, for securing the pay- 
 ment of money borrowed : for it was considered, that while the tenant 
 continued in possession, it was his own house. (t) And upon the same 
 principle it was decided, that a tenant in possession under an agreement 
 for a lease for three years, from a person who held under a building 
 lease, was not guilty of arson by burning the house. («) 
 
 But if a landlord, or reversioner, sets fire to his own house of which 
 another is in possession, under a lease from himself, or from those whose 
 estate he hath, it shall be accounted arson ; for, during the lease, the 
 house is the property of the tenant. (v\ And it was determined, that a 
 widow entitled to dower, but not having it assigned, from a house, the 
 equity of redemption of which had descended from her husband to his 
 eldest son, for whose benefit she had let it and received the rent, was 
 guilty of arson, by burning it while in the possession of her tenant, (w) 
 It should be observed, however, that a mere residence in a house 
 without any interest therein, will not prevent it from being considered 
 as the house of another. As where the prisoner was a poor man, 
 
 (q) Probert's case, B. R. Mich. T. 44 Geo. 3. 2 East, P. C. c. 21, s. 7, p. 1031. 
 
 (r) Holmes's case, Cro. Car. 3T6. W. Jones, 351. 
 
 (*) Rex v. March, R. & M. C. C. R. 182. The 7 & 8 Geo. 4, c. 30, s. 2, contained the 
 words "whether the same or any of them respectively shall then be in the possession of 
 the offender," which are also found in the 1 Vict. c. 89, s. 3. See Rex v. Wallis, post, p. 560. 
 
 (t) Spalding's case, Bury Lent Ass. 1780. East. T. 1780. 1 Leach, 218. 2 East, P. C. 
 c. 21, s. 6, p. 1025. 
 
 (u) Breeme's case, O. B. 1780. Trin. T. 1780. 1 Leach, 220. 2 East, P. C. c. 21, s. 6, 
 p. 1026. And this and several of the preceding cases were recognized in Pedley's case, K. 
 B. 1782. 1 Leach, 242, where Lord Mansfield said, that Holmes's case, (ante, note (r),) was 
 confirmed to be good law, though he very much lamented that the law was so settled ; and 
 the bias of his mind was in favour of Mr. J. Foster's opinion in Harris's case, Fost. 115. In 
 a case which occurred shortly afterwards, Lord Mansfield said, that " it was certainly true 
 that it could be no felony in the defendant to burn a house of which he was in possession." 
 Scoficld's case, K. B. Hil. T. 24 Geo. 3. Cald. 397. 2 East, P. C. c. 21, s. 7, p. 1028. 
 
 (v) Fost. 115. 4 Bla. Com. 221. 
 
 (to) Harris's case, 1753. Fost. 113. 2 East, P. C. c. 21, s. 6, p. 1023.
 
 551 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 maintained by a parish, and had, some time before the commission of 
 the crime, been put by the parish officers to live in the house which he 
 was charged with burning, and was resident therein with his family at 
 the time of the fact being committed, having the sole possession and 
 occupation of it, but without payment of any rent ; all the judges held, 
 that it could not be considered as his house ; and that he was properly 
 convicted of the arson. (a;) 
 
 It will be presently seen that the questions as to the possession and 
 ownership of the house in which the arson is committed, are of less im- 
 portance under the statute law : as the 1 Vict. c. 89, makes the setting 
 fire to a house, &c, with intent to injure or defraud any person, a 
 felony, whether such house, &c, shall be in the possession of the person 
 so setting fire thereto, or of others. 
 *552 *The remaining inquiry concerning arson at common law, is as to 
 Of what is the meaning of the word house. And this, it may be briefly observed, 
 the term extends not only to the dwelling-house, but to all outhouses, which are 
 house. parcel thereof, though not adjoining thereto, or under the same roof ;(y\ 
 of which kind of outhouses mention has been made in a former, part of 
 this work.(z) It appears that the indictment need not charge the burn- 
 ing to be of a mansion house, but only of a house.(a\\ 
 Misde- It has been already stated, that the burning of a man's own house in 
 
 meanor in a town, or so near to other houses as to create danger to them, though 
 burning a . '. . ., , _ . . . . D . c 
 
 man's own not within the definition ot arson, is yet a great misdemeanor at corn- 
 house, mon law.(i) This doctrine has been acted upon in several cases ;(e) 
 tiguous to" an d> i n one °f the most recent, G-rose, J., in pronouncing the sentence 
 others. of the Court of King's Bench, said, that though by a lenient construc- 
 tion of the law of arson, this offence was holden not to be felony, yet 
 it was a misdemeanor of great magnitude, and deserving of the most 
 exemplary punishment.^ ) 
 
 (x) Gowen's case, 2786. 2 East, P. C. c. 21, s. 6, p. ]027. Rickman's case, ibid., s. 11, 
 p. 1034. 
 
 (y) 3 Inst. 67. 1 Hale, 570. 1 Hawk. P. C. c. 39, s. 1. Sum. 86. 4 Blac. Com. 221. 
 2 East, P. C. c. 21, s. 5, p. 1020. (z) Ante, vol. 1, p. 799, 861. 
 
 (a) 3 Inst. 67. Sum. 86. (b) Ante, 548. 
 
 (c) Holmes's case, Cro Car. 376. Scofield's case, Cald. 397. 2 East, P. C. c. 21, s. 6, p. 
 1023, and s. 7, p. 1028. It appears from these cases that where an indictment charges an 
 act to have been done with & felonious intent, and the jury find a verdict of guilty; and if 
 the charge, as laid, do not amount to felony, but amounts in law to a misdemeanor, the 
 court will pronounce judgment as for that offence. 
 
 (d) Probert's case, B. R. Mich. 40 Geo. 3. 2 East, P. C. c. 21, s. 7, p. 1030. The sen- 
 
 f \_Acc. Commonwealth v. Posey, 4 Call. 109. 
 
 "Where an information charged the prisoner with burning a dwelling-house ; and it ap- 
 peared that the building was designed and built for a dwelling-house ; was constructed like 
 one ; was not painted though designed to be ; and some of the glass in an outer door had 
 not been put in ; and it had not been occupied : it was held, that this was not a dwelling- 
 house, in such a sense, that the burning of it would constitute the crime of arson. But the 
 law is otherwise, with regard to a dwelling-house, once inhabited as such, and from which 
 the occupant is temporarily absent. In this case it was the duty of the court, on the trial. 
 to instruct the jury as to the law, and leave it to them to say whether the building was a 
 dwelling-house within the meaning of the law thus explained. The State v. M'Gowan, 20 
 Conn. 245. 
 
 The defendants having offered a reward for the detection and conviction of any person 
 who might be guilty of feloniously setting fire to any building in the city of Boston ; and 
 the plaintiff's claiming the reward on the ground of the detection and conviction of a per- 
 son for wilfully and maliciously setting fire to and burning in the day time, a building for- 
 merly used and occupied as a carpenter's shop, but then in the process of being altered, 
 adopted and designed to be converted and made into a dwelling-house, and notyet finished, 
 it was held that the court could not infer from this description that the burning was feloni- 
 ous. Mead v. Boston, 3 Gushing. 404.
 
 CHAP. XLII.] AT COMMON LAW. 552 
 
 For the punishment of felonies upon which no punishment may be Punish- 
 inflicted by statute, the general provision of the 7 & 8 Geo. 4, c. 28, s. S^ot 
 8, enacts, "that every person convicted of any felony for which no punishable 
 punishment hath been or hereafter may be specially provided, shall be^ t any sta * 
 deemed to be punishable under this act, and shall be liable, at the dis- 
 cretion of the court, to be transported beyond the seas for the term of 
 seven years, or to be imprisoned for any term not exceeding two years : 
 and, if a male, to be once, twice, or thrice publicly or privately whipped 
 (if the court shall so think fit) in addition to such imprisonment." And 
 by sec. 9, the court may order hard labour, or solitary confinement as 
 part of such imprisonment. (e\ 
 
 We may now proceed to the enactments of the 1 Vict. c. 89. (ee) 1 Vict, c 
 
 That statute by sec. 2 enacts, that "whosoever shall unlawfully and^ 9 " ^ ettin & 
 maliciously set fire to any dwelling-house, any person being therein, shall dwelling- 
 be guilty of felony, and, being convicted thereof, shall suffer death. "(f) nouse > * n y 
 
 By sec. 3, "whosoever shall unlawfully and maliciously set fire toingtherein. 
 any church or chapel, or to any chapel for the religious worship of per- Settin g fire 
 sons dissenting from the united Church of England and Ireland,(<7) *or or chapel, 
 shall unlawfully and maliciously set fire to any house, stable, coach- warehouse, 
 house, outhouse, warehouse, office, shop, mill, malt-house, hop-oast, barn C *rcq 
 or granary, or to any building or erection used in carrying on any trade 
 or manufacture, or any branch thereof, whether the same or any of them 
 respectively shall then be in possession of the offender, or in the posses- 
 sion of any other person, with intent thereby to injure or defraud any 
 person, shall be guilty of felony, and being convicted thereof, shall be 
 liable at the discretion of the court, to be transported beyond the seas 
 for the term of the natural life of such offender, or for any term not 
 less than fifteen years, or to be imprisoned for any term not exceeeding 
 three years. "(##)f 
 
 By sec. 4, " whosoever shall unlawfully and maliciously set fire to, Setting fire 
 cast away, or in any wise destroy any ship or vessel, either with intent [°° r in ® s " 
 to murder any person, or whereby the life of any person shall be endan- ships, with 
 
 tence pronounced was two years imprisonment in Newgate, to stand once during that time 
 in the pillory, and to give sureties for good behaviour for seven years from the expiration 
 of the imprisonment. 
 
 (e) See note (u), ante, p. 448, for the present punishment under the 7 & 8 Geo. 4, c. 28, 
 ss. 8 and 9, and 1 Vict. c. 90, s. 5. 
 
 (ee) The 1 Vict. c. 89, s. 1, repeals the 7 & 8 Geo. 4, c. 30, ss. 2, 5, 9, 11, and part of ss. 
 17 and 26. 
 
 (/) This provision is entirely new, and it should be observed, that the section is silent 
 about the intent with which the act is done. In Reg. v. Jeans, Gloucester Spr. Ass. 1842, 
 the prisoner was convicted under this section before Cresswell, J., although there was no 
 evidence to show that he knew that any person was in the house at the time when he set 
 fire to it. MSS. C. S. G. 
 
 (g) The 7 & 8 Geo. 4, c. 30, s. 2, had the words " duly registered or recorded," in this place. 
 
 (gg) This section is the same as the 7 & 8 Geo. 4, c. 30, s. 2, with the difference pointed 
 out in the last note, and the change from the punishment of death to that provided by this 
 section. It is to be regretted that this section has not provided as well as to what shall be 
 deemed an out-house, as for the punishment for setting fire to many buildings not now in- 
 cluded in the statute ; e. g. public buildings, as town-halls, courts, libraries, market-houses, 
 &c, private buildings, as cow-houses, ox-stalls, sheep-sheds, &c. ; ornamental buildings, as 
 summer-houses, hot-houses, green-houses, &c. &c. C. S. G. 
 
 ■j- [As to what is a house under this section, see Reg. v. James, 1 C. & K. 303. Eng. C. 
 L. xlvii. 303. Reg. v. England, 1 C. & K. 533. Eng. C. L. xlvii. 533. 
 
 One indicted under 7 W. 4, and 1 Vict. c. 89, s. 2, for setting fire to a dwelling-house, 
 some one being therein, cannot be convicted under sect. 3, without allegation of intent to 
 defraud. Reg. v. Paice, 1 C. & K, 73. Eng. C. L. xlvii. 73.
 
 553 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 intent to gered, shall be guilty of felony, and, being convicted thereof shall 
 murder,£c. sufferdeath „ (/t) 
 
 Setting fire By sec. 6, " whosoever shall unlawfully and maliciously set fire to or 
 wUhkftent * n an J w ' se destroy an y ship or vessel, whether the same be complete or 
 to destroy in an unfinished state, or shall unlawfully and maliciously set fire to, 
 them. caS £ away, or in anywise destroy any ship or vessel, with intent thereby 
 to prejudice any owner or part owner of such ship or vessel, or of any 
 goods on board the same, or any person that hath underwritten or shall 
 underwrite any policy of insurance upon such ship or vessel, or on the 
 freight thereof, or upon any goods on board the same, shall be guilty of 
 felony, and, being convicted thereof, shall be liable, at the discretion of 
 the court, to be transported beyond the seas for the term of the natural 
 life of such offender, or for any term not less than fifteen years, or to be 
 imprisoned for any term not exceeding three years."(s) 
 Setting fire By sec. 9, " whosoever shall unlawfully and maliciously set fire to any 
 to coal mine of coal or cannel coal, shall be guilty of felony, and, being con- 
 victed thereof, shall be liable, at the discretion of the court, to be trans- 
 ported beyond the seas for the term of the natural life of such offender, 
 or for any term not less than fifteen years, or to be imprisoned for any 
 term not exceeding three years. "(J) 
 Setting fire By sec. 10, "whosoever shall unlawfully and maliciously set fire- to 
 to a stack &Q ^ s t &c ,]~ f corn, grain, pulse, tares, straw, haulm, stubble, furze, 
 grain, heath, fern, hay, turf, peat, coals, charcoal, or wood, or any steer of 
 
 Straw, hay, w00 d } shall be guilty of felony, and, being convicted thereof, shall be 
 liable, at the discretion of the court, to be transported beyond the seas 
 for the term of the natural life of such offender, or for any term not 
 less than fifteen years, or to be imprisoned for any term not exceeding 
 three years. "(fc\ 
 *554 By sec. 11, " in the case of every felony punishable under this act, 
 Punish- *every principal in the second degree, and every accessory before the 
 ac ~fact, shall be punishable with death or otherwise, in the same manner 
 
 cessories. 
 
 as the principal in the first degree is by this act punishable ; and every 
 
 accessory after the fact to any felony punishable under this act shall, 
 
 on conviction, be liable to be imprisoned for any term not exceeding 
 
 two years." 
 
 Hard la- By section 12, « where any person shall be convicted of any offence 
 
 "Prison P un ishable under this act, for which imprisonment may be awarded, it 
 
 ment, shall be lawful for the court to sentence the offender to be imprisoned, 
 
 or imprisoned and kept to hard labour, in the common gaol or house of 
 
 Solitary correction, and also to direct that the offender shall be kept in solitary 
 
 ment 16 " confinement for any portion or portions of such imprisonment, or of such 
 
 imprisonment with hard labour, not exceeding one month at any one 
 
 time, and not exceeding three months in any one year, as to the court 
 
 in its discretion shall seem meet." 
 
 Offences By sec. 14, "where any felony punishable under this act shall be 
 
 committed . . . . 
 
 within the committed within the jurisdiction of the Admiralty of England or of 
 
 (h) This provision is entirely new. 
 
 (i) This section is the same as the 7 & 8 Geo. 4, c. 3, s. 9, except as to the punishment, 
 which was death. 
 
 (j) This section is the same as the 7 & 8 Geo. 4, c. 30, s. 5, except as to the punishment, 
 which was death. 
 
 (k) This section corresponds with the 7 & 8 Geo. 4, c. 30, s. 17, but the words printed in 
 italics are new. and the former punishment of death is altered to that mentioned in this 
 section.
 
 CHAP. XLII.] BY STATUTE. 554 
 
 Ireland, the same shall be dealt with, inquired of, tried and determined Admiralty 
 in the same manner as any other felony committed within that juris- |" r ^ cl 
 diction. 
 
 By sec. 15, the act does not extend to Scotland. 
 
 The 7 & 8 Geo. 4, c. 30, s. 17, enacts, that, « if any person shall 7 & 8 Geo. 
 unlawfully and maliciously set fire to any crop of corn, grain, or pulse, i7 C 'g et ' t i n „. 
 whether standing or cut down, or to any part of a wood, coppice, or fire to crops 
 plantation of trees, or to any heath, gorze, furze, or fern, wheresoever ol c j£ n '. 
 the same may be growing, every such offender shall be guilty of felony, 
 and, being convicted thereof, shall be liable, at the discretion of the 
 court, to be transported beyond the seas for the term of seven years, or 
 to be imprisoned for any term not exceeding two years, and, if a male, 
 to be once, twice, or thrice publicly or privately whipped (if the court 
 shall so think fit) in addition to such imprisonment."^) 
 
 The 12 Geo. 3, c. 24, s. 1, enacts, " that if any person or persons 12 Geo. 3, 
 shall either within this realm, or in any of the islands, countries, forts, ^iff^n S " *' 
 or places thereunto belonging, wilfully and maliciously set on fire, or setting on 
 burn, or otherwise destroy, or cause to be set on fire, or burnt, or other- &™> &c -' 
 wise destroyed, or aid, or procure, abet or assist in the setting on fire, war; arse . 
 or burning or otherwise destroying of any of his majesty's ships or ves- nals > &c -> 
 sels of war, whether the said ships or vessels of war be on float or build- or stor ' es '| 
 ing, or begun to be built, in any of his majesty's dock-yards, or building war. 
 or repairing by contract in any private yards, for the use of his majesty, 
 or any of his majesty's arsenals, magazines, dock-yards, rope-yards, 
 victualling offices, or any of the buildings erected therein, or belonging 
 thereto ; or any timber or materials there placed for building, repairing, 
 or fitting out of ships or vessels; or any of his majesty's military, naval, 
 or victualling stores, or other ammunition of war, or any place or places 
 where any such military, naval, or victualling stores, or other ammuni- 
 tion of war, is, are, or shall be kept, placed or deposited ; that then 
 the person or persons guilty of any such offence, being convicted, shall 
 be adjudged guilty of felony, without benefit of clergy."(m) *By the *555 
 second section of this act, any person who shall commit any of the Trial in 
 offences before mentioned out of the realm, may be indicted and tried ^J^ ^^ 
 either in any county within the realm, or in such island or place where 
 such offence shall have been actually committed, as his majesty, his 
 heirs, &c, may deem most expedient for bringing such offender to 
 justice. 
 
 By the articles of the navy, (22 Geo. 2, c. 33, art. 25) every person Articles of 
 who shall unlawfully burn or set fire to any magazine or store of powder, **"* n . av y- 
 or ship, boat, ketch, hoy, or vessel, or tackle, or furniture thereunto any ship, 
 belonging, not appertaining to any enemy or rebel, shall be punished store of 
 with death, by the sentence of a court martial. Ac, death. 
 
 The 39 Geo. 3, c. 69, a public local act, for rendering more commo- 39 Geo. 3, 
 dious and for better regulating the port of London, enacts, (by sec. 104) aoUset. 
 " that if any person or persons whomsoever shall wilfully and malici- ting fire to 
 ously set on fire any of the works to be made by virtue of this act, or Jj-Lg 4o 
 any ship or other vessel lying or being in the said canal, or in any of in the port 
 the docks, basins, cuts, or other works to be made by virtue of this act, of Londoi >- 
 
 (I) See the general provisions of this statute, ante, p. 544, el seq. 
 
 (m) This offence is still capital, 7 & 8 Geo. 4, c. 22, ss. 6 & 7. As there is no express 
 provision for the punishment of accessories after the fact, they are punishable in the man- 
 ner stated in note (?<), ante, p. 448. 
 
 Vol. ii.— 36
 
 000 
 
 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 every person so offending, in any of the said cases, shall be adjudged 
 guilty of felony, without benefit of clergy." 
 Mnlico By sec. 25 of the 7 & 8 Geo. 4, c. 30, the punishments imposed by 
 
 against the that act w ;u equally apply whether the offence be committed from ma- 
 nerossiuy. Hee conceived against the owner of the property or otherwise. (n) 
 
 It may be useful to mention some of the cases which occurred upon 
 the statutes now repealed. 
 Cases upon It appears to have been considered that the 9 Geo. 1, c, 22, did not 
 1,10 statn ^! alter the nature of the crime, or create any new offence, but only ex- 
 ed. eluded the principal more clearly from his clergy.(o) The words " set 
 
 fire to" in that statute did not, therefore, appear to admit of a larger 
 construction than prevails by the rule of the common law;Q>) by which, 
 as we have seen, the putting fire into or towards a house, however ma- 
 liciously, does not amount to arson, if either by accident or timely pre- 
 vention no part of it be burned. (#) So that where the prisoner was 
 indicted on that statute for setting fire to an outhouse, commonly called 
 a paper-mill, and it appeared that she had set fire to a large quantity 
 of paper, which was drying on a loft annexed and belonging to the mill, 
 but no part of the mill itself was consumed, the judges thought the 
 case not within the statute on that ground. (/•) The setting fire to a 
 parcel of unthreshed wheat was holden not to be felony within that 
 statute; and where the offence was so described in a warrant of com- 
 mitment, the court of King's Bench bailed the defendant.(s) 
 *556 A common gaol was holden to be a house within the 9 Geo. 1, c. 22. "j" 
 A common The indictment against the prisoner charged him in one of the ^counts 
 to °>e a ' Cn with setting fire to the house of the corporation of Liverpool ; in another, 
 house with- with setting fire to the house of one Richard Rigby; and in a third, 
 reo l c w * tn sett ^ n g nre to *^ e h° uss of one Hannah Kerby. Upon the evidence 
 22, now re- it appeared that the place where the offence was committed was a gaol 
 pealed. belonging to the corporation of Liverpool, which was used as the place 
 of confinement both for criminals and debtors ; that the prisoner, being 
 confined there for debt, voluntarily set fire to his box, which was a little 
 apartment in the prison : and that the whole gaol would, in consequence 
 have been probably burnt to the gronnd, but for timely assistance. The 
 R. Rigby mentioned in the indictment was the keeper of the gaol ; and 
 it appeared that his dwelling-house adjoined to the gaol, and was inha- 
 bited by himself and by Hannah Kerby, who was his mother-in-law, 
 and who lived there by his permission, and kept it as a public-house. 
 A wall separated the prison from the house ; but the entrance into the 
 prison was from the dwelling-house, by a door through the wall. This 
 door was locked every night, and nobody inhabited the prison itself but 
 the prisoners ; some of whom were occasionally supplied with beds in 
 
 (n) Ante, p. 544. A doubt perhaps may arise whether the 7 & 8 Geo. 4, c. 30, 8. 25, ap- 
 plies to cases within the 1 Vict. c. 89, as the words are, " every punishment and forfeiture 
 by this act imposed." And the punishment is now imposed by the 1 Vict. c. 89. See note 
 n), post, p. 5?2. C. S. G. 
 
 (o) Breeme's case,. 1780. 1 Leach, 220. 2 East, P. C. c. 21, s. 6, p. 1026. Clergy was 
 previously holden to be ousted only by reference and deduction from the 4 & 5 Ph." & M. 
 c. 4. 
 
 (p) 2 East, P. C. c. 21, s. 4, p. 1020. 
 
 (q) Ante, p. 548. 
 
 (r) Taylors case, 1760, 1 Leach, 49. 2 East, P. C. c. 21, s. 4 p ICO 
 
 (*) Judd's case, 2 T. R. 255. ' 
 
 f [Stevens v. The Commonwealth, 4 Leigh, 683. Comm. v. Posey, 4 Call. 109.]
 
 CHAP, xlil] by statute. 556 
 
 the dwelling-house. The prisoner having been convicted, the case was 
 submitted to the consideration of the judges, who were of opinion that 
 it was fully within the act ; the dwelling-house being to be considered 
 as part of the prison, and the whole prison being the house of the cor- 
 poration.^) 
 
 On the trial of an action against a hundred, under the 9 Geo. 1, c. A building 
 22, s. 7, (now repealed) to recover satisfaction for the malicious burning intended 
 of a house, outhouse, or barn, it appeared that the building which had struTtedTs" 
 been burnt, was in an unfinished state; it contained five rooms, viz., a a dwelling- 
 kitchen and parlour, two rooms on the first floor, and one room over that n°t Mm"' 
 floor ; it had a stone staircase, and all the windows were fixed in and pleted or 
 one was glazed ; the owner had deposited straw and agricultural imple- ml l ablted > 
 ments in the building. It was objected, first, that this building was which the 
 not a house ; that a house intended for a dwelling-house, but not com- ° wnei ; ha(l 
 
 deposited 
 
 pleted, and which had never been inhabited, was not a house within the straw and 
 meaning of the statute. 2dly, that it was not an outhouse, because it a g r icult.u- 
 was not parcel of a dwelling-house. 3dly, that it was not a barn in the ments was 
 ordinary acceptation of the term. It was not intended to be used as a notan ouse, 
 barn, nor was it constructed for that purpose. On the other hand it barn'with-* 
 was admitted that it was not a house or outhouse within the meaning in the 9 
 of the statute, for it must undoubtedly be a house or outhouse, in respect 22= 7 °" 
 of which burglary might be committed ; but it was contended that the 
 use of the building for the purpose of depositing in it hay and straw, 
 which is the purpose for which a barn is used, made this a barn. 
 Bayley, J., in delivering the judgment of the court, after time taken to 
 consider, said, " the question is, whether the building, which was set fire 
 to, comes within the description of a house, outhouse, or barn. It ap- 
 peared to have been built for the purpose of being used as a dwelling- 
 house, but it was in an unfinished state, and never was inhabited. It 
 was conceded in argument, that it was not a house within the meaning 
 of the statute 9 Geo. 1, c. 22. It has been decided *that that statute *557 
 does not alter the nature of the crime, or make any new offence, but 
 merely excludes the principal from clergy more clearly than he was be- 
 fore. There cannot be any doubt that the building, in this case, was 
 not a house, in respect of which burglary or arson could be committed. 
 It was a house intended for residence, but it was not inhabited. It was 
 not, therefore, a dwelling-house, though it was intended to be one. It 
 was not an outhouse, because it was not parcel of a dwelling-house. 
 But it was contended that it was a barn, because it had been used for 
 those purposes for which a barn is used. The building had three 
 stories, chimneys, a staircase, and windows. The plaintiff had deposit- 
 ed in it a quantity of straw and agricultural implements. On considera- 
 tion, we are of opinion, that this building was not a barn within the 
 meaning of that word as it is used in this statute. It was a house ap- 
 plied to those purposes to which a barn might be applied. The act of 
 the 9 Geo. 1, c. 22, though remedial in some respects, is in others cap- 
 itally penal. The hundred are liable to make satisfaction to the party 
 injured by the burning of a house, outhouse, or barn, provided a capital 
 offence be committed against that statute by such burning. The statute, 
 therefore, with reference to a case like the present, must be construed 
 
 (t) Donnavan's case, 1770, 2 Black. Rep. G82. 1 Leach, 69. 2 East, P. 0. C. 21, s. 5, p. 
 1020. See a precedent of an indictment at common law lor setting fire to a place of con- 
 finement in a borough, 2 Stark. Crim. Plead. 444.
 
 557 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 strictly ; and, so construing it, we are of opinion that the building con- 
 sumed by fire in this case was not a house, outhouse, or barn within the 
 meaning of this act of parliament : and in this opinion Lord Tenterden, 
 with whom we have conferred upon this case, concurs. "(w) 
 Cellar an- This first count of an indictment for arson, for setting fire to a cellar, 
 dor a cot- Ascribed it as the dwelling-house of a constable; the second count de- 
 ratelyoccu- scribed it as an outhouse parcel of a cottage. It appeared that under a 
 pied. cottage was a cellar, which cellar was hired by the constable of Brad- 
 
 ford as a lock-up-house. The cellar and cottage were independent of 
 each other in all respects. The cellar was six or seven feet below the 
 surface of the ground. Hullock, B., was of opinion that it was neither 
 a house nor an outhouse, and therefore improperly described in both 
 counts, (v) 
 No statute- The 7 & 8 Geo. 4, c. 29, s. 13, only determined what shall be consi- 
 
 ; v provi- (j ere( j a dwelling-house, for the purpose of burglary, house-breaking;, 
 nons as to . & ' i i • • 
 
 buildings and stealing in a dwelling-house; and there is no statutory provision as 
 
 within the to wna f shall be considered a house in the case of arson. (w) 
 
 As to an In a case where the prisoner was indicted under the repealed statute, 
 
 ••out- 9 Geo. 1, c. 22, for setting fire to a "certain outhouse," a point was 
 
 within the niade whether the building in question answered this description. It 
 
 repealed appeared that the prosecutor kept a public-house, and also carried on 
 
 statute. ^ Dus i ness f a flax-dresser: and that the building set fire to bv the 
 
 Ueo. 1, c. > " . . " 
 
 22. prisoner consisted of a stable and a chamber over it, which was used by 
 
 the prosecutor as a shop for keeping and dressing his flax; and that 
 these buildings were situated in a yard at the back of the house, about 
 four or five yards distant from it, the yard being inclosed on all sides, 
 in one part by the house, in another part by a wall, in a third by a rail- 
 *558 ing which separated it from a field, and in *the remaining part of a 
 hedge. It was objected on behalf of the prisoner, that this building 
 was not an outhouse within the statute. And that the statute applied 
 only to outhouses which in contemplation of law were not part of the 
 dwelling-house ; and it was insisted that this was part of the dwelling- 
 house, and that the indictment should have been for arson at common 
 law. And the prisoner having been found guilty, the point was reserved 
 for the opinion of the judges, who all (except Hotham B., who was 
 absent) agreed that the verdict was right. And it was observed, that 
 though for some purposes this might be part of the dwelling-house, yet 
 still it was in fact an outhouse. (x\ 
 A school- In a subsequent case, the prisoner, Jacob Winter, was convicted upon 
 den to be" aa indictment consisting of several counts, some of which charged him 
 well de- with burning "a certain outhouse" of one Thomas Rogers; and others 
 ther b a S l an witn Durnin g " a certain outhouse" of the said Rogers; and some of the 
 outhouse, counts were at common law, others being laid against the form of the 
 the P dwell f statute - It a PP eare d that the premises burnt consisted of a school-room, 
 ing house, which was situated very near to the house in which Rogers lived, being 
 separated from it only by a narrow passage about a yard wide. The 
 
 («) Elsmore v. The Hundred of St. Briavels, a 8 B. & C. 461. See also Hiles v. The Hun- 
 dred of Shrewsbury, 3 East, 457. ( v ) Anonvmous, 1 Lew. 8. 
 
 (w) See M'Donald's case, 2 Lew. 46, per Alderson, B. 
 
 (xj North's case, 1795. 2 East, P. C. c. 21, s. 5, p. 1021. In the discussion before the 
 judges. 3 Inst. 67, was referred to, where it was laid down that to burn a stable and the 
 like parcel of the mansion-house is felony, but that in the indictment it is sufficient to sa\ 
 domam. viz., a barn, malt-house, or the like, without saying mansionalem. Ante, p. 552. 
 1 Eng. Com. Law Reps. xv. 266.
 
 CHAP. XLII.] BY STATUTE. 558 
 
 roof of the house, which was of tile, reached over part of the roof of 
 the school, which was thatched with straw; and the school with a 
 garden and other premises, together with a court which surrounded the 
 whole, were rented by Rogers of the parish, at a yearly rent. There 
 was a continued feuce round all the premises, and nobody but Rogers 
 and his family had a right to come within it. Upon these facts it was 
 urged, on behalf of the prisoner, tbat the building burnt was not a 
 house nor an outhouse within the statute, 9 Geo. 1, c. 22. But the 
 point being referred to the consideration of the judges, they were of 
 opinion that the building was correctly described in the indictment either 
 as an outhouse or part of the dwelling-house within the meaning of that 
 statute. (y)f 
 
 An indictment upon the 7 & 8 Geo. 4, c. 30, s. 2, charged the pri- An °P en 
 soner in one count with setting fire to an outhouse of W. Deans ; in f ai e m l^rd 
 another with setting fire to a coach-house, and in another with setting composed 
 fire to a building and erection, then used by W. Deans in carrying on p " t g"u 
 the trade of a poulterer. The prosecutor was a labourer and poulterer, porting 
 and had between two and three acres of land, and kept three cows. The P lec ^ s , . f , 
 
 ..,,.. . - , , p ■, , , wood laid 
 
 building in question was in the prosecutor s rarm-yard, and was three or across 
 four poles from the prosecutor's dwelling-house, and might be seen from fc hem,and 
 it. The prosecutor used it to keep a cart in, which he used in his busi- W1 th straw 
 ness of poulterer, and also to keep his cows in at night. There was a as a loof > is 
 barn adjoining the dwelling-house, then a gateway, and then another ' nouse ~g et _ 
 range of buildings which did not adjoin the dwelling-house or barn ; ting fire to 
 the first of which from the dwelling-house was a pig-sty, and adjoining on^/roof 
 that was another pig-sty, and adjoining that was a turkey-house, and held a set- 
 adjoining the turkey-house the building in question. The dwelling- ji ng ^ t0 
 house *and barn formed one side of the farm-yard, and the three other house 
 sides were formed by a fence inclosing these buildings. The building l"' 1 * 1 "" the 
 
 7 & o Cjgo. 
 
 was formed by six upright posts, nearly seven feet high; three in the ^ c> 30, s ." 
 front and three at the back, one post being at each corner, and the 2 - 
 other two in the middle of the front and back, these posts supporting °°" 
 the roof; there were pieces of wood laid from one side to the other. 
 Straw was put on these pieces of wood, laid wide at the bottom, and 
 drawn up to a ridge at the top ; the straw was packed up as close as it 
 could be packed ; the pieces of wood and straw made the roof. The 
 front of the building to the farm-yard was entirely open between the 
 posts; one side of the building adjoined the turkey-house, which covered 
 that side all the way np to the roof, and that side was nailed to the tur- 
 key-house. The back adjoined a field, and was a rail-fence, the rails 
 being six inches wide; these came four or five feet from the ground, 
 within two feet of the roof, and this back formed part of the fence before 
 mentioned. The side opposite the turkey-shed adjoined the road, and 
 was a pale-fence, but not quite up to the top. One of the witnesses for 
 the prosecution, a considerable farmer, said that he should call the 
 building in question an outhouse. The only part burnt was some of 
 
 (y) Winter's case, cor. Richards, B., Reading Lent Ass. 813, East. T. 1815. Russ. & Ry. 295. 
 
 f [Under the act of 1809, a party may be indicted for wilfully burning a school-house 
 not parcel of a dwelling-house. Such property is embraced by the terms "any other oat- 
 house not parcel of a dwelling-house," used in that act. Jonesv. Hunffreford, 4 Gill & Johns. 
 (Maryland) Rep. 402 A barn standing eighty feet from a dwelling-house in a yard or lane 
 with which there was a communication by a pair of bars, is within the curtilage of the house 
 The People v. Taylor, 2 Michigan, 250.]
 
 559 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 the straw on the roof. Upon a case reserved upon the questions, first, 
 
 whether the building were an outhouse within the meaning of the 7 & 
 
 S (leo. 4, c. 30, s. 2, [for there was no ground for saying that it could 
 
 be called a coach-house, or a buildiDg and erection used in carrying on 
 
 the trade of a poulterer Q and second, whether in case the building were 
 
 an outhouse, the straw (as above described) were apart of the building; 
 
 all the judges, except Tindal, C. J., thought the erection an outhouse, 
 
 and that the conviction was right. (2) 
 
 An ©pen The indictment under the 7 & 8 Geo. 4, e. 30, s. 2, charged the pri- 
 
 l,ll ! l * h . ,1K * n soners with setting fire to an outhouse. The place in question stood in 
 
 distance an enclosed field, a furlong from the dwelling-house, and not in sight 
 
 from, and thereof. The supposed place had been originally divided into stalls 
 
 cf the I>wn- capable of holding eight beasts, and partly open and partly thatched ; 
 
 er's house, DU t f i a t e years it was boarded all round, the stalls taken away, and 
 
 boarded an opening left for horses and cows, or other cattle which might be in 
 
 round and the field, to go in and out of their own accord, there were no windows 
 
 covere in, c ] oor and the opening was sixteen feet wide, so that even a wagon 
 was not an V 
 
 outhouse might be drawn through it under cover. The back part of the roof was 
 within the SU pp 0r t et i by posts to which the side boards were nailed, part of it in- 
 4. c. 30, s. ternally was boarded and locked up, where several boards were locked 
 up; there was no distinction in the roof between the inclosed and unin- 
 closed part, and the inhabitants and owners usually called it the cow- 
 stalls: and upon a case reserved, all the judges (except Lord Lyndhurst, 
 C. B. and Taunton, J.) met and considered this case, and Lord Tenter-' 
 den, C. J., Bayley, B., Littledale, J., Vaughan, B., Parke, J., and 
 Bolland, B., held this to be an outhouse within the statute. The other 
 seven judges were of a contrary opinion, and a pardon was recom- 
 mended. (a) 
 *560 *The prisoner was charged in one count with setting fire to an out- 
 An out- house; and in another with setting fire to a stable; and it appeared 
 be a build- * na * * ne place burnt had been an oven to bake bricks, and that the pro- 
 ing which secutor had made a door-way (with a door) into it, and had put boards 
 ^dwelling an( ^ tur ^ over ^e venthole at the top. It also appeared that two poles 
 b >use and had been fixed across it at about half its height, on which boards had 
 
 sneTtTpar- ^ >een * a *^> so as to ma ^ e a 1°^ A 001 "- I" tn i s place the prosecutor kept 
 eel of the a cow ; and adjoining to it, but not under the same roof, was a lean-to, 
 dwelling- i n w hieh a person named Cope kept a horse; but this latter building 
 was not injured by the fire. The building was about a hundred yards 
 from any dwelling-house, and the owner of the nearest dwelling-house 
 had no interest in it, and no dwelling-house or farm-yard of the prose- 
 cutor was near it, and there was no wall to connect it with any dwelling- 
 house. It was contended for the prisoner, that this building was nei- 
 ther a stable nor an outhouse. The term outhouse had, both at common 
 law, and under the repealed statutes, been held to apply to those build- 
 dings only whieh were within the curtilage, and in which till the 7 & 8 
 Geo. 4, c. 29, a burglary might be committed, and the rule being 
 that where any term which has obtained a precise and definite mean- 
 ing at common law, or in a statute, is used in a statute, it will be 
 presumed to have the same meaning there ;{b) it must be taken that the 
 
 (2) Rex v. Stallion, R. & M. C. C. R. 398. As to what part was burnt, see the case, ante. 
 
 p. L.4'.». 
 
 I a Rex v. Ellison, East. T. 1832, R. & M. C. C. R. 336. 
 
 (b) Bac. Abr. Statute. (I. 4.) Moore v. Hussey, Hob. 97. Smith r. Harmon, 6 Mod. 143.
 
 CHAP. XLII.] BY STATUTE. 5G0 
 
 word outhouse is used iu the 7 & 8 Geo. 4, c. 30, in the same sense as 
 it had at common law and under the former statutes ; and unless such 
 a construction be put upon that word, the words " stable, coach-bouse," 
 &c, were useless. Taunton, J., «I am clearly of opinion, that this is 
 not a case within the act of parliament. It is true, that the word < out- 
 house' occurs in the act of parliament, but I apprehend that it has been 
 settled from ancient times that an outhouse must be that which belongs 
 to a dwelling-house, and is in some respect parcel of such dwelling- 
 house. This building is not parcel of any dwelling-house, and does not 
 appear to be connected in any way, either with the premises of Mr. 
 Sparrow, or of the prosecutor. It had been a brick-kiln, and the pro- 
 secutor kept his cow there afterwards. There is no such word as cow- 
 house in the statute The only word likely to be applicable in this case 
 is the word outhouse; and this building being wholly unconnected with 
 the dwelling-house, it is not included in the legal definition of outhouse. 
 It is also not a stable; indeed, I do not see that it could be much more 
 properly called a stable than it could be called a coach-house. "(c) 
 
 *So where the prisoner was indicted under the 7 & 8 Geo. 4, c. 30, *561 
 s. 2, for setting fire to an outhouse, and it appeared that the building A cart ho- 
 was a kind of cart-hovel, consisting of a stubble roof, supported by up-]. e !, in the 
 rights, and was situate by itself in a field some distance from any other 
 buildings; Vaughan, B., was of opinion that it was improperly de- 
 scribed as an outhouse. (d\ 
 
 Upon an indictment for setting fire to a stack of wood, it appeared What is not 
 that between the house of the prosecutor and the house next to it, there ^^ ck of 
 was an archway, which carts could go under, and that over this arch- 
 way a sort of loft was made by means of a temporary floor ; and that 
 in this place the prosecutor kept wood, straw, and fuel. It farther ap- 
 peared, that at the time of the fire, there was in this place about an 
 armful of straw, and a score of faggots, which were piled up one upon 
 another. The straw was burnt and also some faggots, but no part of 
 the building caught fire. Park, J. A. J., was clearly of opinion that this 
 
 (c) Rex v. Haughton, a 5 C. & P. 555, March 15, 1833. This case is entitled to the more 
 weight, as the opinion of the learned judge was not formed with reference to this case alone, 
 but the same question had before been raised and discussed before him in Rex v. Williams. 
 Gloucester Lent Ass. 1832. In that case the prisoner was indicted for setting fire to a 
 building, which was in one count described as a barn, and in another as an out-house, and 
 it appeared that there was a barn, which had a sloping roof extending continuously over 
 the barn and a cow-house adjoining to the barn, the rafters of the roof running the whole 
 length over both buildings ; but there was a wall between them, and in this wall there was 
 a square aperture for the purpose of admitting air to the cattle ; there was no internal com- 
 munication between the barn and the cow-house ; a part of the roof over the cow-house 
 was burnt, but no part of the barn. The buildings were in a field, and at a distance from 
 any house. It was objected, first, that the building burnt was not a barn, it was merely a 
 cow-house, and the use of it as such determined what the building was. Secondly, it waa 
 not an outhouse, because it was neither within the curtilage, nor had any connection with 
 any dwelling-house ; after hearing the points argued, Taunton, J., consulted Littledale, J., 
 and then said" it is desirable that there should be a better understanding of the term 'out- 
 house,' and therefore I will reserve the point. I have a very decided opinion myself on both 
 points, which, however, I will not state." The prisoner was acquitted. The case of Rex v. 
 Ellison came before the judges between this case and Rex v. Haughton, and cither by thai 
 case or by some other means, the learned judge had come to so decided an opinion as to the 
 meaning of the word " outhouse," that he did not reserve the point. 
 
 (d) Rex v. Parrott," 6 C. & P. 402. The prisoner was acquitted, otherwise the point 
 would have been reserved. See Rex v. Woodward, R. & M. C. 0. R. 323, and Res v. NVu ill, 
 R. & M. C. C. R. 548, where questions arose, but were not decided, as to whether certain 
 Luildings were out-houses. 
 
 a Eng. Com. Law Reps. xxiv. 453. l lb. xxxv. 458.
 
 561 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 was not a stack of wood, within the meaning of the 7 & 8 Geo. 4, c. 
 
 What is not An indictment under sec. 17 of the 7 & 8 Geo. 4, c. 30, for setting fire 
 a Btaok of ^ a s j. ic ]- f s traw, was held not to be supported by evidence of firing 
 a stack of haulm. The prisoners were indicted for setting fire to a stack 
 of straw, and on the trial it appeared that the stack consisted partly of 
 cole seed straw, and partly of wheat stubble, after the reaping and car- 
 rying the straw ; the greater part was of the latter. The jury said that 
 the stubble was haulm ; upon which, with the concurrence of Lord 
 Deninan, C. J., Gaselee, J., directed an acquittal. (/) 
 What is a A stack which principally consisted of wheat straw, with stubble 
 straw ^ l ^ on *^ e to P °^ *' to P revent it blowing away, was held to be a stack 
 of straw, within the 7 & 8 Geo. 4, c. 30. The indictment charged the 
 prisoner with setting fire to a stack of straw. The stack was principally 
 wheat straw, the greatest part; the bottom part was of wheat straw, 
 made up after the wheat was carried, half-a-load, the stack was three 
 loads ; there was stubble at the top to keep the straw from blowing 
 *562 away. It is not usual to put stubble on all *straw stacks, but just as 
 the farmer pleases, and upon a case reserved, the judges present were 
 unanimously of opinion that this was a stack of straw.(A) 
 Philip's It was an offence within the 7 & 8 Geo. 4, c. 30, s. 9, for a part-owner 
 
 case. A f a g^jp f. Q se f. g re j. Q j^ rp^g ven( j ee f a share in a ship was a com- 
 
 Dirt owner 
 
 of a vessel plete owner if an entry of a bill of sale to him, as the form of the 6 Geo. 
 may be ^ c ;qq^ g 37^ requires was made in the proper book of registry, though 
 offence. it did not express in terms that the bill of sale was produced, because it 
 within the would be against the duty of the officer to make the entry, except on 
 1 c 30 s.9 su °h production. The giving a date which has nothing to apply to, but 
 if he set fire the production of the bill of sale will imply it. Two or more persons 
 Several ' P ' ma y no ^ snares i Q a s ^ip jointly. The prisoner was indicted for setting 
 persons fire to a certain vessel, the property of the prisoner and of Grenfell and 
 may hold Eddv, with intent to prejudice Grenfell and Eddv, being part-owners 
 
 -hires in & *^ i •» •/ ? o t 
 
 ship joint- of the said vessel. There were other counts only stating Grenfell and 
 J y- Ast °Eddy to be part-owners, and not taking notice of the interest of the 
 entry in the prisoner. A bill of sale, dated the 7th of August, 1829, from the pri- 
 register of soner, who was then the sole owner, to Grenfell and Eddy, of *J parts 
 der the 6 °f ^ ne vessel, was put in, and the following entry in the book of registry 
 Geo. 4, c of the vessel, pursuant to the 6 Geo. 4, c. 110, s. 37 : — 
 
 110, s. 37. 
 
 « Custom House, Padetow, 11th August, 1829. 
 u William Philp of Padstow in the County of Cornwall, mariner, hath 
 sold by bill of sale, dated 7th August, 1829, ^ shares to N. Grenfell, 
 
 (e) Rex v. Aris tt 6 C. & P. 348. 
 
 (/) Rex v. Tottenham,* R. & M. C. C. R. 461. 7 C. & P. 237. The word " haulm " was 
 probably introduced in sec. 10 of the 1 Vict. c. 89, in consequence of this case. See the sec- 
 tion, ante, p. 553. In Rex v. Turner, R. & M. C. C. R. 239, a question was raised whether a 
 stack was a stack of straw within the 7 & 8 Geo. 4, c. 30. The stack was made partly of 
 straw, there being two or three loads of it at the bottom, and the residue of haulm, that is 
 the aftermath of the stubble of rye or wheat, about eighteen inches long : according to one 
 witness the straw and haulm were mixed. This question was not decided by the judges. 
 At the following assizes the prisoners were again indicted, and one count charged them 
 with setting fire to a stack of straw, called haulm, and Vaughan, B., intimated that it would 
 be unsafe to convict them on this count, and they were convicted ou counts for setting fire 
 to a barn and a wheat stack. 4 C. & P.° 246. 
 
 (h) Rex v. Newill, 3 Burn's Just, Doy. & Wms. 999. R. & M. C. C. R. 458. 
 
 a Eng, Com. Law Reps. xxv. 433. b lb. xxxii. 500. c lb. xix. 367.
 
 CHAP. XLII.] BY STATUTE. 562 
 
 of St. Just, in the County of Cornwall, mine-agent, and K. Eddy, of 
 Penzance in the same County, merchant. 
 
 " Edward Edwards, Collector. 
 
 " JonN Phillips, Comptroller." 
 
 An indorsement in the like terms was made on the certificate of re- 
 gistry. A subsequent entry of mortgage of the prisoner's shares, after 
 the date of the mortgage deed, added the words « now produced." It 
 was contended for the prisoner, that the bill of sale was not valid, as the 
 6 Geo. 4, c. 110, s. 37, requires the entry to contain not only the date of 
 the bill of sale, but of the production of it; Gaselee, J., and Bosanquet, 
 J., rather thought that the date of the 11th August, 1829, in the com- 
 mencement of the entry, might be considered as the date of the produc- 
 tion, particularly as it exactly complied with the form given by the act. 
 The jury found the prisoner guilty, and upon a case reserved upon the 
 question, (among others) whether the ownership of Grenfell and Eddy 
 had been sufficiently proved, it was contended first, that two persons 
 could not be owners of "ths of a ship ; the shares held by each not 
 being specified under sec. 32 of the 6 Geo. 4, c. 110 ; secondly, that the 
 transfer was not valid to pass the property, by reason of the omission of 
 the date and the fact of production ; that it was no offence within the 
 statute for an owner or part-owner to set fire to his own ship ; but the 
 judges overruled the objections, being of opinion that two or more per- 
 sons might hold shares jointly; and that the entry was sufficient, as the 
 date had no application, unless it applied to the production of the bill 
 of sale and entry thereof by the officer, it *being against his duty to *563 
 make the entry, but on the production of the bill of sale ; and the con- 
 viction was therefore affirmed. (i\ 
 
 In the course of the trial of an indictment upon the 9 Geo. 3, c. 29, Cotton mill 
 s. 2, now also repealed, which related to the burning of mills, it was p ltlll ° 9 
 objected that a cotton mill was not within the meaning of that statute : 29, s. 2. 
 but the objection was overruled. (/) 
 
 In a case in which the construction of the 43 Geo. 3, c. 58, now re- Farring- 
 pealed, came under consideration, it was decided that the "intent to a" to the' 
 injure" mentioned in that statute, must be inferred where injury was the intcnttoin- 
 necessary consequence of the setting fii*e to the premises, on the g roun d f"au<iunder 
 that a man must be supposed to intend the necessary consequence of his the 43 Geo. 
 own acts. The indictment was for setting fire to a mill, with intent to 3 c - 58 - 
 injure the occupiers thereof, and a point was reserved, whether under 
 the 43 Geo. 3, c. 58, it was not necessary to give some evidence of an 
 intent to injure beyond the mere act of setting fire, upon which the 
 judges were unanimous that the party must be taken to have intended 
 what was the necessary consequence of his act.(&) 
 
 With respect to the indictment, it may be observed, that it is clearly Of the in- 
 necessary in an indictment for arson at common law to lay the offence 
 
 (i) Rex v. Philp, R & M. C. C. R. 263. See this case, ante, p. 545, as to the intent to in- 
 jure. 
 
 (/) Anon. Lancaster Special Session, May, 1812. 2 Stark. Crim. Plead. 420. 
 
 (k) Rex v. Farrington, Mich. T. 1811, MS. Bayley, J., and Russ. & Ry. 207. This case oc- 
 curred in Staffordshire, and at the Lent Assizes for that county in 1812, the opinion of the 
 judges was delivered by Graham, B., when sentence of death was accordingly passed upon 
 the prisoner, but he afterwards received a pardon, on condition of his being imprisoned 
 for a year, and kept to hard labour in the house of correction. Sec Bex v. Newill, ante, p. 
 545.
 
 503 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 to have been done icilfully and maliciously :{T) and though the words 
 >• wilfully and malicious" did not occur in the statute 9 Geo. 1, c. 22, 
 now repealed, yet they seem to have been considered as necessary in an 
 indictment upon that statute. (m)f 
 The indict- The indictment under the 7 & 8 Geo. 4, c. 30, must have charged the 
 • i^nt must g- cnce t nave heen done "unlawfully and maliciously;" and stating 
 the act was that it was done " feloniously, voluntarily, and maliciously," was not 
 doro tin- sufficient. The first count alleged that the prisoners a certain barn 
 and "mill- " feloniously, voluntarily, and maliciously" did set fire to, &c. The 
 dotuly. second count stated that the prisoners a certain stack of straw " felo- 
 niously, voluntarily, and maliciously" did set fire to, &c. Upon reading 
 the indictment, Parke, J., found that it did not pursue the words of the 
 statute, as it omitted the word " unlawfully," and he referred to 2 
 Hawk, P. C, c. 25, s. 96, where it is laid down, " that where a statute 
 uses the word ' unlawfully' in the description of an offence, it is certain 
 that an indictment grounded on it, must use the word illicite, or some 
 other tantamount." The indictment, therefore, seemed to the learned 
 judge to be bad, but he left the case to the jury, who found the prisoners 
 guilty ; and upon a case reserved, the judges held that the indictment 
 ought to have charged the act to have been done unlawfully, and they 
 thought it best to order a new indictment to be preferred at the follow- 
 ing assizes, (n\ 
 *564 *I* was holden not to be necessary to allege the burning of a dwell- 
 ing-house: and that the burning of a house only was a sufficient state- 
 ment. (o\ And where an indictment on the same repealed statute stated 
 the burning to be of outhouses generally, without specifying their deno- 
 mination, it Was holden good.(^) And we have just seen that it was 
 holden to be sufficient, in an indictment upon that statute, to state the 
 burning of an outhouse, if it were such in fact, though in point of law 
 it was parcel of the dwelling-house as being within the curtilage.^) 
 Where the indictment was for setting fire to a hay-stack upon the same 
 statute, it was decided that it was not necessary to aver that the stack 
 was thereby burnt ; that not being requisite to the completion of the 
 offence. (A 
 Ownership It is material in an indictment at common law that the ownership of 
 house! ^ e nouse should be correctly stated so as to show it to be the house 
 of another within the principles mentioned in an early part of this 
 chapter. (s) And stating that the prisoner set fire to a house at, &c, 
 without stating whose house it was, or alleging anything to excuse that 
 statement will not be sufficient. An indictment charged that the pri- 
 soner feloniously set fire to a house situated in the parish of E., and it 
 
 (I) 2 East, P. C. c. 21, s. 11, p. 1033. Ante, p. 548. In Cox's case, 1 Leach, 71, it was 
 holden, upon an indictment for perjury at common law, that the words, " falsely, malicious- 
 ly, wickedly, and corruptly," implied that the offence was committed wilfully. * 
 
 (m) Minton's case, 2 East, P. C. c. 21, s. 5, p. 1033. 
 
 (n) Rex v. Turner, 4 R. & M. C. C. R. 239. 4 C. & P. 245. 1 Lew. 9. 
 
 (o) 3 Inst. 67. 1 Hale, 567. Sum. 86. 1 Hawk. P. C. c. 39, s. 1. Ante, p. 538, note 
 (z). 
 
 O) Glandfield's case, 2 East, P. C.c. 21, s. 11, p. 1033, 1034. 
 
 (q) North's case, ante, p. 558. 
 
 (r) Rex v. Salmon, East, 1802, MS. Bayley, J., and Russ. & Ry. 26. 
 
 (s) Ante, p. 550, et seq. 
 
 f [In an indictment for an attempt to burn a building, it is not necessary to describe the 
 combustible materials used for the purpose. The Commomcealth v. Flynn. 3 Cushing, 529.] 
 a Eng. Com. Law Reps. xix. 367.
 
 CHAP, xlil] by statute. 564 
 
 was holdcn to be bad.(/) The facts were that the house belonged to a 
 parish, and the parish permitted a person to live in it who was merely a 
 servant of the parish, and it was wholly unknown who were the trus- 
 tees, or in whom the legal estate was vested ; and it appears to have 
 been holden by the judges, that such house might have been laid to be 
 the property of the overseers or of persons unknown, (m) In an indict- 
 ment upon the 1 Vict. c. 89, s. 3, it is as we have seen, by the words of 
 the statute, sufficient to show the house, &c, to be in the possession of 
 the offender, or in the possession of any other person. With respect to 
 the nature of the possession it appears from a recent case that a house, 
 in part of which a man lives, and other parts of which he lets to lod°ers, 
 may be described as his house, though he has taken the benefit of the 
 insolvent debtor's act, and executed an assignment including the house, 
 if the assignee has not taken possession : or at least no objection can be 
 made if in other counts it is stated as the house of the assignee and also 
 of the lodger whose room was set fire to. The indictment described the 
 house first as Fearne's, secondly as Dance's, and thirdly as the prisoner's. 
 Fearne occupied part of it and let out the rest in lodgings ; the room 
 set fire to being let to the prisoner ; five months before the fire Fearne 
 was discharged as an insolvent debtor, and had previously executed an 
 assignment, including this house, to Dance; Dance never took posses- 
 sion. A case was reserved upon the point whether the possession of 
 the house was rightly described, and the judges held that it was ; for 
 the whole house was properly in the possession of Fearne, the possession 
 by his tenants being his possession ; and if not, the prisoner's own 
 room might be deemed his house. (f) 
 
 *It has been observed, that it requires great nicety in some cases to *565 
 distinguish the person who may be said to occupy property suojure ;(w?) 
 and. it will in some cases be advisable to state the ownership or posses- 
 sion differently, in different counts, in order to obviate any objection on 
 the ground of variance. In a case where the indictment laid the whole 
 of the premises consumed by the fire as in the sole occupation of one B. 
 Silk, widow, it appeared that the premises burned, consisting of out- 
 houses, were the property of the widow, but were only made use of by 
 her son, who lived with her after his father's death, in the dwelling- 
 house adjoining the outhouses, and took upon him the sole management 
 of the farm, with which these outhouses were used, to the loss and 
 profit of which he alone stood, though without any particular agreement 
 between him and his mother, and he paid all the servants, and purchased 
 all the stock ; but the legal property both in the dwelling-house, and 
 farm, was in the mother, and she alone repaired the dwelling-house and 
 the outhouses in question ; and the indictment in this form was holden 
 to be improper. And Heath, J., held, that as to the stable, pound and 
 hog-styes, which the son alone used, the indictment must lay them to be 
 in his occupation; and as to the brew-house (another of the outhouses 
 burned,) the mother and son both occasionally paying for ingredients, 
 the beer being used in the family, to the expenses of which the mother 
 in part contributed, though without any particular agreement as to tho 
 proportion, that the same should be laid as in their joint occupation 
 
 (0 Rickman's case, 1T89. 2 East, P. C. c. 21, s. 11, p. 1034. MS. Bayley, J. 
 (w) 2 East, P. C. ibid. 
 
 (v) Rex v. Ball, Mich. T. 1824, MS. Bayley, J., and R. & M. C. C. R. 30. 
 \w) 2 East, P. C. c. 21, s. 11, p. 1034. "
 
 J65 OF ARSON AND BURNING, ETC., [BOOK IV. 
 
 The prisoner was afterwards convicted on a second indictment, drawn 
 agreeably to this opinion, and containing two counts ; the first laying 
 the occupation of the son alone, the other laying it in the mother and 
 son ; and was executed. (as) 
 A house The prisoner who was the wife of James Wallis, was indicted for 
 
 may be de- ge ^ n g g re t a certain house in the possession of the said J. Wallis, 
 in the pos- with intent to injure M. Wright. The second count charged her with 
 session of tnc \fe e offence with intent to injure Lord Yarborough. The prisoner's 
 oooupier, husband was a labourer of Mr. Wright, who provided him with the 
 though his ] 10US e in question as part of his wages. The house was Lord Yar- 
 is wrong- borough's property, and was let with a large farm, and other cottages 
 ful. for the accommodation of labourer's on the farm, by his lordship to 
 
 Wright. Wright, being dissatisfied with Wallis's conduct, discharged 
 him from his service, and told him to quit his house in a month, which 
 time he allowed him to procure another residence. Two days after the 
 expiration of the month, Wallis and the prisoner and his family still 
 continuing in possession, Wright and two of his servants went in the 
 daytime, whilst the hnsband was out, to strip off part of the thatch, in 
 order to force them to quit. The prisoner resisted ; struck at the men 
 with a pitchfork ; knocked out the windows and doors ; made a fire with 
 the fragments on the floor of the house, and thereby set the house on 
 fire, and burned it down. The jury found that she wilfully set the house 
 on fire ; and that the fire communicated to the house whilst Wallis con- 
 tinued in the actual possession of it by means of his family and furni- 
 ture. The learned judge thought the indictment should have been 
 *566 framed differently, *and should have stated the house to be in the pos- 
 session of Wright, Wallis having, at the time of the fire, no lawful 
 possession, but the legal possession being in Wright : an offence com- 
 mitted under similar circumstances would have been capital before the 
 passing of the 43 Geo. 3, c. 58, (m) and would have been a felony at 
 common law. But upon a case reserved, the judges present held, that 
 as Wallis was the actual occupier, the statement was proper and the 
 conviction right, (xx) 
 As to lay- it W as considered in a case under the 7 & 8 Geo. 4, c. 30, s. 9, that an 
 t«nt to in- indictment for setting fire to a barge ought to contain an averment that 
 jure in an it was done with intent to injure the owner. The prisoner was indicted 
 for burning ^" or navin g wilfully and maliciously set fire to a barge, the property of 
 a barge. H. Stevens, and there was no averment that the prisoner did it with in- 
 tent to prejudice, &c. Alderson, J., was of opinion that such an aver- 
 ment was necessary, and upon its being submitted for the prosecution 
 that the indictment was sufficient without it, Alderson J., observed, that 
 at least it would have been safer to have had it ; but said that he would 
 confer with Mr. J. Gaselee on the point, and if he agreed with him, he 
 would reserve this case for the opinion of the judges. Gaselee, J., on 
 being consulted, was of opinion that the indictment was insufficient : 
 but the prisoner was acquitted, and therefore any further consideration 
 of the case became unnecessary. (v) 
 An indict- The prisoner was indicted on the first count for setting fire to an out- 
 
 (x) Glandfield's case, cor. Heath, J., Exeter Spr. Ass. 1791. 2 East, P. C. c. 21. s. 11, p. 
 1034. (u) Gowen's case, 2 East, P. C. 1027. (xx) Rex v. Wallis, R. & M. C. 0. R. 344. 
 
 ^ (y) Rex v. Smith, a 4 C. & P. 569, March 15, 1831. This case occurred before Rex v. 
 Newill, infra, and it may therefore perhaps be doubted whether the opinion expressed by 
 the learned judges in this case may not be considered as overruled by that case. C fc>. G. 
 a Eng. Com. Law Reps. xix. 531.
 
 CHAP. XLII.] BY STATUTE. 566 
 
 house in the possession of Chettle, with intent thereby to injure Chettle, ment under 
 and to a certain stack of straw belonging to Chettle; in the second q° 7 ± * 
 count for setting fire to an outhouse, and in the third, for setting fire to 30 e ,°for'set- 
 a certain stack of straw belonging to Chettle, not saying with intent to ting fire t0 
 injure, &c. And, upon a case reserved, the judges present were unani- strwwas 
 niously of opinion, that as the 17th clause of the act had no words fS oodwith - 
 intent, the last count was good.fs 1 ) outlaying 
 
 mi 1 , & . V / an intent. 
 
 Ihe judge will take judicial notice that beans are "pulse," and there- An indict- 
 fore where an indictment charged the prisoner with settino- fire to a cer- ment for 
 tain stack of beans, upon a case reserved, the judges present unani- Eartaek" 
 mously held that they were bound to consider beans as a species of pulse of beans is 
 and the conviction was affirmed. (a) good- 
 
 So the judges will take notice that barley is corn or grain; where, So a stack 
 therefore, an indictment charged the prisoner with setting fire to a stack of barle y- 
 of barley, Patteson, J., held that it was sufficient.(6)"j" 
 
 An indictment which alleges that the prisoner on such a day, and Statement 
 at such a place, "feloniously, unlawfully and maliciously did set fire to ofthe . ow ~ 
 a certain stack of barley of R. P. W., then and there being," sufficiently ^ " 1P ' 
 states the property to belong to R. P. W., and there is no necessity for 
 such an indictment to state that the prisonor did " then and there" set 
 fire, &c.(c) 
 
 *The general provisions of the 7 Geo. 4, c. 64, as to the statement *567 
 of the ownership of partners, joint tenants, &c, and the ownership of Ownership 
 property belonging to counties, parishes, &c, will apply to prosecutions of partners 
 for the offences now under consideration.^) joint-ten- 
 
 In a case where the prisoners were charged with setting fire to a ant . s ' 
 house, the proof adduced by the first witness of their having been pre- vl ence ' 
 sent in the house, and implicated in the fact, was that a bed and blan- 
 kets, which had been taken out of the house at the time it was fired, 
 and concealed by them from that time, were afterwards found in their 
 possession ; and Buller, J., doubted at first whether such evidence of 
 another felony could be admitted in support of this charge. But as it 
 seemed to be all one act, although the prisoners came twice to the house 
 fired, which was adjoining to their own, he admitted this amongst other 
 evidence, (e) 
 
 It was ruled upon an indictment for arson, that the books of an in- Policy of 
 surance company are not evidence of an insurance, unless notice had insurance - 
 been given to produce the policy. (/) In a modern case of an indict- 
 ment for feloniously setting fire to a house with intent to defraud an 
 insurance company, a policy of insurance was given in evidence on the 
 part of the prosecution, by which the prisoner's goods, in a house de- 
 scribed in the policy, were insured against fire, and upon which a memo- 
 
 (z) Rex v. Newell, R. & M. C. C. R. 458. Another question was reserved as to the out- 
 house, but as a stack was burnt, and the conviction affirmed on the last count, the judges 
 thought it unnecessary to consider the question as to the out-house. See this case, ante, p. 
 545, as to the person intended to be injured. 
 
 (a) Rex v. Woodward, R. & M. C. C. R. 323. 
 
 (b) Rex v. Swatkins, b 4 C. & P. 548. 
 
 (c) Rex v. Swatkins, ubi supra. (d) See ante, p. 120, el seq. 
 (e) Rickman's case, 1789. 2 East, P. C. c. 21, s. 11, p. 1035. 
 
 (/) Rex v. Doran, cor. Kenyon, C. J., 1 Esp. 127. 
 
 f [An indictment for burning stacks of wheat is not supported by evidence of burning 
 shocks of wheat. Denbow v. The State, 18 Ohio, 11.] 
 
 a Eng. Com. Law Reps. xix. 531. b lb. xix. 520.
 
 ,-,r,7 OF ARSON AND BURNING, ETC. [BOOK IV. 
 
 ramlum was indorsed, stating that the goods insured had been removed 
 from the house described in the policy to another house mentioned in 
 the memorandum. In this house so mentioned in the memorandum the 
 prisoner was charged with having committed the felony. The policy 
 was properly stamped, but the memorandum had no stamp : and upon 
 this circumstance an objection was taken on behalf of the prisoner, that 
 it was essentially necessary to show, in support of the charge, that there 
 subsisted a legal effective contract; and that, by the express provisions 
 of the stamp acts, the memorandum in question not being stamped, 
 could not be given in evidence, or be good or available in any manner 
 whatever. The point being reserved for the consideration of the twelve 
 judges was argued before them; and the conviction was held to be 
 wrong.(#) 
 The offence The offence of setting fire to a stack of corn is not local but transi- 
 ent" 1 ^ toi 7 5 it 1S therefore no objection, upon the plea of not guilty, to an in- 
 stack of dictment, that it alleges the fire to have taken place at a different place 
 corn is not f rom w ^ at > t ^j^ or at a p ar i s h which, in fact, does not exist. The in- 
 there'forca dictment charged that the prisoner, at the parish of Normanton on the 
 variance in Would, j n the county of Nottingham, set fire to a certain outhouse there 
 lakUn the situate, and to a certain stack of beans then and there being, with in- 
 indictment tent, &c. The second count stated that the prisoner at the parish 
 1 r s ia 1 1 mmate " aforesaid, set fire to a certain outhouse there situate, &c. The third 
 count stated that the prisoner at the parish aforesaid, set fire to a cer- 
 tain stack of beans, &c. The house was in Normanton on the "Would, 
 in the county of Nottingham, which is a hamlet, maintaining its own 
 *568 poor, and is in the *parish of Plumtree ; there is no such parish as Nor- 
 manton on the Would, in the county of Nottingham; but there are two 
 parishes called Normanton in the county, one called Normanton on the 
 Sour, the other Normanton on Trent. Graselee, J., and Littledale, J., 
 doubted whether the prisoner could be convicted on this indictment. 
 The objection seemed to be more particularly applicable to the charge 
 as to the outhouse, as there was a local description given to it which 
 should be proved as laid, and even if the words on the Would could be 
 rejected as surplusage in mentioning the parish, still there was no such 
 parish as Normanton singly. But they thought the objection as to the 
 outhouse not material, if the indictment were correct as to the stack of 
 beans; and as to that, the first question would be, whether the setting 
 fire to that were to be considered as of a local nature as to the parish, 
 or whether it were to be considered in the same light as common lar- 
 ceny, which need not be proved in the parish alleged, provided it be 
 in the county, and if it should be put on the same ground as common 
 larceny in this respect, then a question would arise, whether, as it was 
 proved negatively that there was no such parish as Normanton on the 
 Would in that county, the indictment could be sustained. And, upon 
 a case reserved, the judges present unanimously held that the offence 
 of setting fire to the stack of beans had nothing of locality in it, and 
 that there was no such place in the county could only be taken advan- 
 tage of by plea in abatement, and the conviction was affirmed. (h\ 
 
 (g) Gilson's case, 1807, 2 Leach, 1007. 1 Taunt. 95. Rus3. & Ry. 138. But there was 
 considerable difference of opinion, the conviction being held wrong by six judges only 
 against five who were of a contrary opinion. 
 
 (h) Rex v. "Woodward, R. & M. C. C. R. 323. A question was also raised, but not decided 
 in this case, as to whether the building was an out-house within the meaning of the 7 & 8
 
 CHAP. XLIII.] OF MAIMING AND KILLING CATTLE. 568 
 
 The punishment of principals in the second degree and of accessories Principals 
 
 has been already mentioned amongst the general provisions of the 1 Vict in ^V 6 ' 
 „ on / *\ ' coiitt ae- 
 
 C - 89 -(0 . gree and 
 
 In conclusion of this chapter, it may be mentioned, that by the acce8Soriei! ' 
 6 Anne, c. 31, s. 3, and 14 Geo. 3, c. 78, s. 84, if any menial or other JJ^j* on 
 servant, through negligence or carelessness, shall fire, or cause to be firing"^ 
 fired, any dwelling-house, or outhouse, and be convicted thereof, by house or 
 oath of one witness before two justices, he shall forfeit 100/. to' the through 6 
 churchwardens, to be distributed amongst the sufferers by such fire ■ negligence, 
 and if he shall not pay the same immediately, on demand of the church- 
 wardens, he shall be committed by the justices to some workhouse or 
 common gaol, or house of correction, for eighteen months, there to be 
 kept to hard labour. 
 
 *CHAPTER THE FORTY-THIRD. *569 
 
 OF MAIMING AND KILLING CATTLE. (A) 
 
 It has been holden that no indictment lies at common law for unlaw- No indict- 
 fully with force and arms maiming a horse. The indictment charged montliesat 
 that the prisoner, on, &c, with force and arms, at, &c, "one black law fbrun- 
 gelding of the value of SOL, of the goods and chattels of one William lawfully vi 
 Collyer, then and there being, then and there unlawfully did maim; to m a knl 'ng a 
 the great damage of Collyer, and against the peace, &c," upon reference horse, 
 to the judges after conviction, they all held that no indictable offence 
 was stated in the indictment; that if the case were not within the Black 
 Act, 9 Geo. 1, c. 22, now repealed, the fact itself was only a trespass; 
 and that the words vi et armis did not imply force sufficient to support 
 an indictment, (a) 
 
 The 6 Geo. 1, c. 22, (commonly called the Black Act,) was for a Statute?. 
 considerable time the principal statute upon the offence of maliciously 
 maiming and killing cattle. But the clause in that statute relating to 
 offences of this description was repealed by the 4 Geo. 4, c. 54, by which 
 a lesser degree of punishment was provided for such offences, and the 
 
 Geo. 4, c. 30. There seems no reason to doubt, although no opinion was given bv the 
 judges on the point, that the description of the out-house being local, was bad. See ante,-p. 113. 
 
 (i) Ante, p. 554. 
 
 (a) Ranger's case, 1798, 2 East, P. C. c. 22, s. 09, p. 1074. 
 
 (A) Tennessee. — It was held in the case of the State v. Council, that on an indictment for 
 malicious mischief, it is not necessary to prove express malice ; and that the killing a horse 
 is an indictable offence at common law. 1 Overton's Rep. 305. 1 Dall. 335. {See also 
 ante, Vol. I., p. 42, note (A), 52, note [2]. 1 Aikens's Rep. 226. State v. Briggs.J 
 
 The malicious maiming and disfiguring of cattle, is punished by particular statutes in 
 most of the States to which the reader is referred. 
 
 Massachusetts. — In the case of the Commonwealth v. Leach and al., 1 Mass. Rep. 58, il 
 was unanimously held by the court, that an indictment for poisoning a cow, was within tin- 
 jurisdiction of the (then) court of sessions; and the indictment, which was at common law, 
 was held good, and the motion in arrest of judgment overruled. 
 
 Indictments at common law, for maliciously poisoning fowls, have been sustained in 
 Massachusetts, in several cases at nisiprius, which have not been reported. 
 
 {New York. — By the Revised Statutes of New York, wilfully administering poison to any 
 horse, cattle or sheep, or maliciously exposing any poisonous substances, with intent thai il 
 shall be taken or swallowed by any horse, rattle or sheep, subjects the offender to impri- 
 sonment, or fine, or both. Vol. II., 089.]
 
 569 OF MAIMING AND KILLING CATTLE. [BOOK IV. 
 
 enactment of the statute 9 Geo. 1, was made somewhat more general. 
 The latter, however, having been repealed by the 7 & 8 Geo. 4, c. 27, 
 the statute upon this subject at the present time is the 7 & 8 Geo. 4, 
 c. 30. 
 : & 8 Goo. This statute, by sec. 16, enacts, " that if any person shall unlawfully 
 [j. 0, JXv 8, and maliciously kill, maim, or wound any cattle, every such offender 
 ,.r maiming shall be guilty of felony, and being convicted thereof, shall be liable at 
 cattle. t h e discretion of the court, to be transported beyond the seas for life, 
 or for any term not less than seven years, or to be imprisoned for any 
 term not exceeding four years; and, if a male, to be once, twice, or 
 thrice publicly or privately whipped, (if the court shall so think fit,) in 
 addition to such imprisonment." 
 l Vict. c. The 1 Vict. c. 90, s. 2, recites this section, and that it is expedient 
 90, s. 2. tQ a j ter an( j amen( j the said recited act, and then repeals so much of 
 the said act " as relates to the punishment of persons convicted of any 
 of the offences hereinbefore specified," and enacts that "every person 
 convicted, after the commencement of this act, (1st of October, 1837,) 
 of any of such offences respectively, shall be liable to be transported 
 beyond the seas for any term not exceeding fifteen years, nor less 
 than ten years, or to be imprisoned for any term not exceeding three 
 years." 
 *570 *And by sec. 3, "it shall be lawful for the court to direct such im- 
 prisonment to be with or without hard labour, in the common gaol or 
 house of correction, and also to direct that the offender shall be kept in 
 solitary confinement for any portion or portions of such imprisonment, 
 or of such imprisonment with hard labour, not exceeding one month at 
 any one time, and not exceeding three months in any one year, as the 
 court in its discretion shall seem meet." 
 As to the a s this statute relates to the offence of maiming, &c, "cattle" in 
 the word general, it may be proper to introduce some of the cases in which the 
 "cattle" in meaning of that word in the repealed clause of the 9 Geo. 1, c. 22, 
 
 the 9 Geo. , °, , . , e , . . r 
 
 1 c. 22. became the subject ot decision. 
 
 The 9 Geo. 1, c. 22, was considered as extending, and not as abridg- 
 ing the offences described in the 22 & 23 Car. 2, c. 7. Where the pri- 
 soner had been convicted on an indictment framed on the 9 Geo. 1, c. 
 22, for killing a mare and a colt, it was moved in arrest of judgment; 
 first, that the mare and colt were not averred in the indictment to be 
 cattle within the meaning of the act; and, secondly, that the word 
 cattle did not necessarily include Jwrses, mares and colts. In support 
 of these objections, several statutes were cited, in which different sorts 
 of animals were particularly specified, tb\ and several others, in which 
 " horses" and "horses and mares," seemed to be contradistinguished 
 from and not included in the word "cattle. "(c) But the judges agreed 
 unanimously that as the 22 & 23 Car. 2, c. 7, had made the offence of 
 killing horses by night a single felony, the 9 Geo. 1, c. 22, was only to 
 be considered as ah extension of that act; and some precedents of capi- 
 tal convictions were cited upon this branch of the statute, though none 
 of executions. It was therefore agreed that judgment of death should 
 
 (b) 3 & 4 Ed. 6, c. 19. 5 & 6 Ed. 6, c. 14, and 31 Geo. 2, c. 40, for regulating the sale of 
 cattle. 
 
 (c) 12 Car. 2, c. 4, (book of rates). 22 Car. 2, c. 13. 14 Geo. 2, e. 6. 15 Geo. 2, c. 34. 
 But see the observations in 2 East, P. C. c. 22, s. 18, p. 1075, that the argument from the 
 Statutes 14 & 15 Geo. 2, will lose much of its force from adverting to the preamble of the 
 first of those statutes.
 
 CHAP. XLIII.] OF MAIMING AND KILLING CATTLE. 570 
 
 be given against the prisoner at the next assizes.(d) This point received 
 a similar determination, in subsequent cases.(e) And it is observed that 
 it is plain that the legislature must have intended to include horses in 
 the word « cattle," when in the statute of Car. 2, they speak of » horses 
 sheep, or otJier cattle ; and by the statute of George the First they ex- 
 clude from clergy such as kill, &c, any cattle; which latter statute 
 was evidently intended to enlarge, and not to restrain, the description 
 of the felony. (/) It was subsequently decided that pigs were cattle 
 within the 9 Geo. 1. Upon a conviction for poisoning pigs, the point 
 was saved, whether pigs were cattle within the act, and the judges held 
 that they were. (jy^) The same decision more recently took place with 
 respect to asses. The prisoner was convicted under the act of mainline 
 and wounding two asses, and Richards, C. C, saved the point whether 
 asses were within that act; and, upon a case reserved, the judges (eleven 
 being present) held that they were.(/t) 
 
 *It was also held upon the 9 Geo. 1, c. 22, that the repealed clause *571 
 extended to such as should maim or wound any cattle, though the cattle As to the 
 were not destroyed, which by the 22 & 23 Car. 2, c. 7, was left a mis- t^^ 
 demeanor at most, punishable only by action to recover treble damages, ing," Ac, 
 It was decided, therefore, upon the 9 Geo. 1, c. 22, that the maiming or ^ er the 
 wounding need not be mortal ; and that the wounding need not even 22. 
 be such as to cause a permanent injury. Thus, upon an indictment The 
 which charged the prisoner, in one count, with maiming, and in another W0 " ndin S 
 with wounding a gelding ; and, upon proof that he had maliciously, and cause a 
 with an intent to injure the prosecutor, driven a nail into the frog of the p e . rma nent 
 horse's foot, whereby the horse was rendered useless to the owner, and ' 
 continued so at the time of the trial, but was stated to be likely to do 
 well, and to be perfectly sound again in a short time, judgment was res- 
 pited, after conviction, upon a doubt whether, as the horse was likely 
 to recover, and as the wound was not a permanent injury, the offence 
 was within the statute; but the judges held the conviction right, and 
 considered the word " wound" in the 9 Geo. 1, to be used as contra- 
 distinguished from a permanent injury, such as maiming. (i) The clause 
 in the late act appears to admit of a similar construction. 
 
 The prisoner was charged in different counts with having unlawfully, Pouring 
 feloniously and maliciously killed, maimed and wounded a certain mare, jjheeyoof a 
 The two first counts charged the prisoner with having unlawfully, felo- mare and 
 niously and maliciously killed the mare, against the form of the statute, ^ndin^it 
 The first, stating the means used by the prisoner for that purpose, is a maim- 
 namely, the pouring nitrous acid into the left ear of the mare, and also'"» Wltll ' n 
 stating as a fact that the prisoner thereby killed the mare, and the se- 
 cond count, merely stating as a fact, that the prisoner killed the mare ; «- 
 the third count, charged the prisoner with having unlawfully, felo- 
 niously and maliciously maimed the mare, against the form of the sta- 
 tute ; and the fourth count charged the prisoner with having unlawfully, 
 
 (d) Paty's case, Abingdon Sum. Ass. 1770. 2 Black. Rep. 721. 1 Leach, 72. 2 East, 
 P. C. c. 22, s. 18, p. 1074. At the next assizes the prisoner was reprieved for transportation ; 
 and afterwards (upon a strong application from the country,) he received a free pardon. 
 
 (e) Mott's case, 0. B. 1783. 1 Leach, 73, note (a). Moyles's case, cor. Buller, J., Bodmin 
 Sum. Ass. 1791. 2 East, P. C. c. 22, s. 18, p. 1076. 
 
 (/) 2 East, P. C. c. 22, s. 18, p 107G. 
 
 (ff) Rex v. Chappie, Mich. T. 1804, MS. Bayley, J., and Russ. & Ry. 77. 
 (h) Rex v. Whitney, Hil. T. 1824, MS. Bayley, J., and It. & M. C. C. R. 3. 
 (t) Haywood's case, 1801, 2 East, P. C. c. 22, s. 20, p. 107G, Russ. & Ry. 16. 
 
 Vol. ii.— 37
 
 571 OP MAIMING AND KILLING CATTLE. [BOOK'IV. 
 
 feloniously and maliciously wounded the mare, against the form of the 
 statute. On the trial it was proved that the prisoner did pour a quan- 
 tity of nitrous acid, which he had shortly before purchased, into the 
 mare's left ear ; and that he had either also poured some of it into the 
 left eye, or, what was more probable, that some of the acid, which he 
 had poured into the ear, had run along a furrow which it had made from 
 her left ear upon her left temple, and so into her left eye, and that he 
 had thereby occasioned the immediate blindness of that eye. The mare 
 continued to live, in extreme pain, about ten days, when, in order to 
 put her out of her misery, she was stuck with a knife, and bled to 
 death. Two surgeons stated that the injuries which were done to the 
 ear (which was produced) were not wounds but ulcers, though such 
 ulcers would have turned to wounds. Upon this state of facts, the 
 nitrous acid not having been the proximate and immediate cause of the 
 death of the mare, and the surgeons having deposed that the nitrous 
 acid had not produced what they could technically call wounds, the 
 court recommended the jury, if they were satisfied of the guilt of the 
 prisoner, to find their verdict against him on the third count of the in- 
 *572 dictment, and to acquit him on the other *counts ; the jury having 
 found a verdict accordingly, a case was reserved upon the question, 
 whether the injury done to the eye of the mare in the manner and by 
 the means above stated, was a maiming within the meaning of the 7 & 
 8 Geo. 4, c. 30, s. 16; and the conviction was affirmed.^') 
 Wounds in- The prisoner was indicted under the 4 Geo. 4, c. 54, s. 2, for felo- 
 do^set at a n i ous ty wounding a sheep, and it appeared that he had set a dog at the 
 sheep. sheep, and that the dog, by biting it, inflicted several severe wounds. 
 Park, J. A. J., "This is not an offence at common law, and is only 
 made so by statute ; and I am of opinion that injuring a sheep by set- 
 ting a dog to worry it, is not maiming or wounding within the meaning 
 of the statute. "(A*) 
 Burning a If a person maliciously set fire to a building in which a cow is, and 
 wtth e^cow ^ e cow i s burnt to death by the fire, this is a killing within the statute, 
 in it. The prisoner was indicted under the 7 & 8 Geo. 4, c. 30, s. 16, for 
 
 maliciously killing a cow, and it appeared that the building, in which 
 the cow was kept, had been set fire to by the prisoner, and that the cow 
 had been burnt to death in it. Taunton, J., " If the prisoner set this 
 place on fire while the cow was in it, and the cow was thereby burnt to 
 death, that is a killing the cow by him within the meaning of this act 
 of parliament."^) 
 JinUce to Under the repealed clause of the 9 Geo. 1, c. 22, malice to the owner 
 no*t neceT °^ ^ e cattle was a necessary ingredient to constitute the offence there 
 sary. created, and numerous decisions took place as to the nature and proof 
 
 of this malice, to which it is unnecessary to refer, as under the late sta- 
 tute the offence will be complete, whether it be committed from malice 
 conceived against the owner, or " otherwise." (m\ 
 
 On the trial of an indictment under the 7 & 8 Geo. 4, c. 30, s. 16, 
 
 (J) Rex v. Owens, R. & M. C. C. R. 205. See Rex v. Murrow, R. & M. C. C. R. 465, ante, 
 vol. 1, p. 731. 
 
 (k) Rex v. Hughes, a 2 C. & P. 420. But see Elmsley's case, 2 Lew. 126, where Alderson, 
 J., thought a wound inflicted by the bite of a dog was a wound within the 9 Geo. 4, c. 31, 
 but intended to reserve the point if it became necessary. As to what injuries constitute 
 wounds, see vol. 1, p. 729, et seg. C. S. G. 
 
 (I) Rex v. Haughton, b 5 C. & P. 559. (m) Sec 25, ante, p. 544. 
 
 a Eng Com. Law Reps. xii. 200. b lb. xxv. 4 34.
 
 CHAP. XLIII.] OF MAIMING AND KILLING CATTLE. 572 
 
 for unlawfully and maliciously wounding cattle, it is not necessary to 
 show personal malice against the owner of the property. It is enough 
 that there was a mischievous motive, though not particular malice to- 
 wards the owner.(») 
 
 It should seem that the indictment upon the late statute ought, *like *573 
 an indictment upon the repealed clause of the 3 Geo. 1, c. 22, to specify Indictment 
 the kind of cattle injured, and that such statement must be supported deuce! 1 
 by the evidence. In an indictment upon the 9 Geo. 1, c. 22, the pri- 
 soner was charged with maliciously killing certain cattle, viz. a mare, 
 and he was convicted, but upon referring to the evidence, it did not 
 appear that there was any evidence of the sex of the animal killed. A 
 case being reserved, the first question considered was, whether the alle- 
 gation that the prisoner killed certain cattle, without specifying what, 
 would have been sufficient, because then what was stated under the 
 videlicit might be rejected; and the judges thought that it would not 
 have been sufficient, and they were clear that it was essential that some 
 evidence should have been given that the animal was a mare.(o) 
 
 If a prisoner was indicted for maliciously killing cattle by poison, Other acts 
 
 other acts of administering poison would be admissible in order to show? * dmmi . s " 
 
 the intent. The prisoner was indicted for a misdemeanor in adminis- son are ad- 
 
 tering; sulphuric acid to six horses, with intent maliciouslv to kill them, ™ issi ~l e to 
 
 • • -ill- • • SQ0W tn0 
 
 and it appeared that the prisoner mixed sulphuric acid with a quantity intent. 
 
 of corn, and that having done so, he gave each horse his feed, all the 
 horses being in the same stable. Sulphuric acid is sometimes given to 
 horses by grooms, under an idea that it will make their coats shine. 
 Park, J. A. J., held that several acts of administering sulphuric acid 
 were admissible; as they might go to show whether it was done with 
 the intent charged in the indictment ! and he left it to the jury to say 
 whether the prisoner had administered the poison with the intent im- 
 puted in the indictment, or whether he had done it under the impres- 
 sion that it would improve the appearance of the horses ; for that in the 
 latter case they ought to acquit him.(p) 
 
 Every principal in the second degree, and every accessory before the ? J '"^H* 
 fact, is punishable in the same manner as the principal in the first C ond de- 
 degree ; and every accessory after the fact is liable to be imprisoned s rec au(l 
 for any term not exceeding two years.(g) ries. 
 
 (w) Reeves Wilson's case, 1 Lew. 226. It may admit of some doubt, whether this he the 
 present state of the law, as the 7 & 8 Geo. 4, c. 30, s. 25, ante, p. 544, only applies to " every 
 punishment and forfeiture by this act imposed," and the punishment for the offences men- 
 tioned in this section is repealed by the 1 Vict. c. 90, s. 2, and the present punishment is 
 imposed by the 1 Vict. c. 90, ss. 2 and 3. It was clearly settled that in order to bring an 
 offender within the 9 Geo, 4, c. 22, the malice must have been directed against the <n\ ner 
 of the cattle and not merely against the animal itself. 2 Bast, I'. C. c. 32, s. Hi, p. lo72. 
 Pearce's case, ibid., 1 Leach, 527. Mean's case, 1 Leach, 527. Shepherd's case, 1 Leach, 
 539. Rex v. Austen, Russ. & Ry. 490. In all these, cases except the last, there appears I" 
 have been express malice against the animal wounded, and no malice against the owner}; 
 and in the last the malice was against a person who was not the owner. " Bui il doc- not 
 appear to have been decided that it is necessary to give express evidence of previous malice 
 against the owner, in order to bring a case within the act; but the fact being proved to be 
 done wilfully, which can only proceed from a brutal or malignant mind, it seems n question 
 solely for the consideration of the jury to attribute the real motive to it, to which the trans- 
 action itself will most probably furnish a clue." 2 East, P. C. c. 22, s. 16, p. iOU. Laager's 
 case, ibid., and see the cases, ante, p. 544, 545, 5C3. C. S. G. 
 
 (o) Rex v. Chalkley, December, 1813, Russ. & Ry. 258. 
 
 (p) Rex v. Mogg, a 4 C. & P. 364. The learned judge also held Unit the evidence proved a 
 joint administering of the sulphuric acid to all the horses. 
 
 (q) Ante, p. 546, where the other general provisions of the acl are stated. -Mr. Lonsdale 
 a Eng. Com. Law Reps. xix. 420.
 
 573 OF INJURING AND DESTROYING TREES, ETC. [BOOK IV. 
 
 The 5 & 6 Win. 4, c. 59, s. 2, makes any person cruelly beating or 
 otherwise ill-treating any cattle, &c, or improperly driving the same, 
 liable to be summarily convicted. 
 
 < 5 74 *CHAPTER THE FORTY-FOURTH. 
 
 OF INJURING AND DESTROYING TREES, SHRUBS OR UNDERWOOD, (a) 
 
 Offences by Offences of the kind mentioned in the title to this chapter, were 
 
 former 
 statutes. 
 
 treated only as trespasses and misdemeanors by several ancient statutes; 
 
 they were afterwards made offences of the degree of felony ; but all the 
 statutes upon this subject were repealed by the 7 & 8 Geo. 4, c. 27, 
 and the present law is contained in 7 & 8 Geo, 4, c. 30. 
 7 & 8 Geo. By sec. 19 of this statute, " if any person shall unlawfully and mali- 
 4, c 30, s. c i ous iy( a ^ cu t 5 break, bark, root up, or otherwise destroy or damage 
 Destroying the whole or any part of any tree, sapling or shrub, or any underwood, 
 or damag- reS p ec tively growing in any park, pleasure-ground, garden, orchard, 
 shrubs, ' or avenue, or in any ground adjoining or belonging to any dwelling- 
 Ac grow- h 0U se, (6) every such offender (in case the amount of the injury done 
 tafn ? itua- shall exceed the amount of one pound) shall be guilty of felony, and 
 tions, shall being convicted thereof, shall be liable, at the discretion of the court to 
 /Ahe value De transported beyond the seas for the term of seven years, or to be im- 
 exceeds one prisoned for any term not exceeding two years, and if a male, to be 
 rkTto^r* es once > tw i° e or tnr i ce publicly or privately whipped, (if the court shall 
 growing so think fit,) in addition to such imprisonment ;(c) and if any such per- 
 
 observes, (St. Cr. L. 136,) that "the 7 & 8 Geo. 4, c. 30, was not repealed by the 1 Yict. c. 
 90, so far as relates to principals in the second degree and accessories before and after the 
 fact to any offence affected by the latter act, nor does that act contain any provision for their 
 punishment; they consequently continue punishable under the 26th section of the 7 & 8 
 Geo. 4. c. 30." But as that section only applies to felonies punishable under that act, and 
 these felonies are now no longer punishable under that act, this may be doubted. If that 
 section no longer applies, then there is no provision expressly made for the punishment of 
 principals in the 8econd degree and accessories, and they are consequently punished in the 
 manner stated in note (w), ante, p. 448. C. S. G. 
 
 (a) See sec. 25, ante, p. 544. 
 
 (b) As to the meaning of the terms " garden," and " adjoining to," see Rex v. Hodges," 
 Moo. & M. 341, ante, p. 68. 
 
 (c) The present puuishment (under this section and sec. 27, and the 1 Vict. c. 90, s. 5,) is 
 transportation for seven years or imprisonment for any term not exceeding two years, with 
 
 (A) Pennsylvania. — In the case of the Commonwealth v. Hoover and al., 1 Browne, Appx. 
 xxv., it was decided, that on an indictment for cutting timber trees, it was sufficient to show 
 that the prosecutor was in possession under a claim of title to the land on which the timber 
 was cut. A motion in arrest of judgment and for a new trial, was made for the following 
 reasons : — 1. That the indictment did not specify the particular kind of timber trees, whether 
 black or white oak ; — 2. That the prosecutor did not show any title to the land on which 
 the timber was cut ; — 3. That he did not prove any possession in himself of the piece of 
 ground whereon the said timber was cut, nor any right of possession, except by producing 
 a survey which was said to include it; — 4. That the act of Assembly on which the defen- 
 dants were indicted is obsolete by non user. These several reasons were overruled by the 
 court, who decided, " that the indictment was sufficiently clear and specific in stating the 
 kind of timber ( which were alleged to be twenty oak timber trees,) charged to have been 
 cut by the defendants on the land of the prosecutor ; that the title of the prosecutor to the 
 land on which the timber was cut, could not be brought in question, on the charge contained 
 in the indictment, if it appeared that he was in full possession under a claim of title ; and 
 that the possession of the property was sufficiently proved to warrant the finding of the 
 •jury." 
 
 a Eng. Com. Law Reps. xxii. 330.
 
 CHAP. XLIV.] OF INJURING AND DEST ROYING TREES, ETC. 574 
 
 son shall unlawfully and maliciously cut, break, bark, root up, or other- elsewhere 
 wise damage the whole or any part of any tree, sapling, or shrub, or£ b f f 
 any underwood, respectively growing elsewhere than in any of the the° value 
 situations hereinbefore mentioned, every such offender (in case the excecds 
 amount of the injury done shall exceed the sum of five pounds) shall pounds, 
 be guilty of felony, and being convicted thereof, shall be liable to any 
 of the punishments which the court may award for the felony herein- 
 before last mentioned." 
 
 By sec. 20, "if any person shall unlawfully and maliciously cut, Destroying 
 break, bark, root up, or otherwise destroy or damage the whole or any ? r dama S- 
 part of any tree, sapling, or shrub, or any underwood, wheresoever the shrubs, 6 *' 
 same may be respectively growing, the injury done being to the amount &c v there- 
 of one shilling at the least, every such offender, being convicted before growing, 
 a justice of the peace, shall for the first offence forfeit and pay over and and of an y 
 above the amount of the injury done, such sum *of money, not exceed- *575 
 ing five pounds, as to the justice shall seem meet ; and if any person so value 
 convicted shall afterwards be guilty of any of the said offences, and ^ifo 0118 
 shall be convicted thereof in like manner, every such offender shall for punishable 
 such second offence be committed to the common gaol or house f onsum - 
 
 i ii Till p i mary con- 
 
 correction, there to be kept to hard labour tor such term, not exceed- viction, for 
 ing twelve calendar months, as the convicting judge shall think fit; firstaml 
 and if such second conviction shall take place before two justices, fence, third 
 they may further order the offender, if a male, to be once or twice pub- offence 
 licly or privately whipped, after the expiration of four days from the e ony ' 
 time of such conviction ; and if any person so twice convicted, shall 
 afterwards commit any of the said offences, such offender shall be 
 deemed guilty of felony, and being convicted thereof, shall be liable to 
 any of the punishments which the court may award for the felony here- 
 inbefore last mentioned. "(cZ) 
 
 The words of this statute are much larger than the words of the 9 
 Geo. 1, c. 22, s. 1, which were, " unlawfully and maliciously cut down 
 or otherwise destroy any trees." But upon this clause, it was held 
 that cutting down, apple trees was sufficient, although the trees were 
 not thereby totally destroyed. (e) 
 
 In the same case it was also held that the act must be done from Malice, 
 malice to the owner, but this is no longer necessary. (/) 
 
 An indictment for damaging apple trees growing in a garden, should Theindict- 
 state the damage to be done "unlawfully and maliciously," and it is not ,nent Inust 
 sufficient to state that it was done "feloniously." The prisoner was in- ac t to bo 
 dieted for damaging some apple trets growing in a garden, and the in- dono " un - 
 dictment alleged that the damage was done "feloniously," but did not a ' ml , nn \\. 
 state that it was done "unlawfully and maliciously." Bosanquet, J., ciously." 
 " "Where the statute creating an offence uses particular words, those 
 
 or without hard labour, in the common gaol or house of correction, and the offender may 
 be ordered to be kept in solitary confinement for any portion or portions of such imprison- 
 ment, or of such imprisonment with hard labour, not exceeding one month at a time, and 
 not exceeding three months in the space of one year, as to the court in its discretion Bhall 
 seem meet; and if a male, may be ordered to be once, twice, or thrice publicly or pri- 
 vately whipped in addition to such imprisonment. As to the punishment of principals in 
 the second degree and accessories, see the 7 & 8 Geo. 4, c. 30, s. 26, and 1 "Vict. c. 90, s. 5, 
 ante, p. 547. 
 
 (d) See the last section, and note (c) to it. 
 
 (e) Rex v. Taylor, Russ. & Ry. 373. The words in the 4 Geo. 4, c. 54, were the same as 
 in the 9 Geo. 1, c. 22. 
 
 (/) See sec. 25 of the 7 & 8 Geo. 4, c. 30, ante, p. 544.
 
 uuscs. 
 
 575 OF DESTROYING PLANTS, ROOTS, ETC. [BOOK IV. 
 
 words must be pursued in the indictment. In this case, unless the dam- 
 age was done maliciously, there was no felony committed. I think this 
 indictment is bad."(^) 
 A :■ n:.m It should seem that there may be cases in which a party may come 
 cuttin B within sec. 19, though the tree cut may be growing upon land in his 
 the de- occupation as tenant. In an action against a magistrate for false im- 
 mised pre- pr isonment, it appeared that he had committed the plaintiff under that 
 section for maliciously cutting a tree, growing on premises in his occu- 
 pation, and it was contended that the defendant had no jurisdiction, 
 because it appeared that the plaintiff cut the tree on premises in his 
 own occupation; but Tindal, C. J., said, "I cannot accede to the pro- 
 position that the circumstance of a party's being the occupier of the pre- 
 mises on which the tree is cut, necessarily takes a case out of the sta- 
 tute ; suppose the trees excepted in a lease, the tenant would be a tres- 
 passer ; and if liable in trespass, I am not prepared to say he might not 
 be liable criminally. "(A) 
 Principals The statute also contains provisions as to the principals in the second 
 degree, as to accessories, and as to abettors in misdemeanors. (;') 
 
 The destruction of a wood, coppice, &c, by fire has been mentioned 
 in a former chapter, (j) 
 
 in second 
 degree. 
 
 *576 *CHAPTER THE FORTY-FIFTH. 
 
 OP DESTROYING, ETC., PLANTS, ROOTS, FRUITS, AND VEGETABLE 
 PRODUCTIONS. 
 
 Destroying The 7 & 8 Geo. 4, c. 30, s. 21, enacts, "that if any person shall un- 
 
 n-uitT/ lawfully and maliciously(a) destroy, or damage with intent to destroy, 
 
 vegetable any plant,(6) root, fruit, or vegetable production, growing in any gar- 
 
 Fn a^arden ^ en > orc ^ iar d, nursery ground, hot-house, green-house, or conservatory, 
 
 &c, pun- every such offender, being convicted thereof before a justice of the peace, 
 
 ishable on g^n a ^ ^he discretion of the iustice, either be committed to the corn- 
 summary ' .ii. .ii -i 
 conviction mon gaol or house of correction, there to be imprisoned only, or to be 
 
 for the first imprisoned and kept to hard labour, for any term not exceeding six cal- 
 cond of- endar months, or else shall forfeit and pay over and above the amount 
 fence fe- f the injury done, such sum of money, not exceeding twenty pounds, 
 as to the justice shall seem meet; and if any person so convicted shall 
 afterwards commit any of the said offences, such offender shall be deemed 
 guilty of felony, and being convicted thereof, shall be liable to any of 
 the punishments which the court may award for the felony hereinbe- 
 fore last mentioned. "(c) 
 ? e f T ? J ~ By se c- 22, " if any person shall unlawfully and maliciously destroy, 
 vegetable or damage with intent to destroy, any cultivated root or plant used for 
 
 (g) Rex v. Lewis, Gloucester Sum. Ass. 1830, Bosanquet, J. MSS. C. S. G. See Rex v 
 Turner, R. & M. C. C. R. 239, ante, p. 563. 
 (h) Mills v. Collett, 6 Bing. R. 85. (i) Ante, p. 547. 
 
 (.;') Ante, p. 554. (a) See sec. 25, ante, p. 544. 
 
 (b) As to the meaning of the terms " plant," and " vegetable production," see Reg. v. 
 Hodges, 3 Moo. & M. 341, crn/e/.p. 68, and Rex v. Fraser, R. & M. C. C. R. 419, ante, vol. 1, 
 p. 737. 
 
 (c) That is the punishment mentioned in sec. 19, ante, p. 574, and see note (c), ibid. 
 
 » Eng. Com. Law Reps. xxii. 330.
 
 CHAP. XLVI.] OF CUTTING AND DESTROYING HOP-BINDS. 576 
 
 the food of man or beast, or for medicine, or for distilling, or for dyeing, produc- 
 er for or in the course of any manufacture, and growing in any land, tions . not . 
 open or inclosed, not being a garden, orchard, or nursery ground, every fardenf, ** 
 such offender being convicted thereof before a justice of the peace, &c - 
 shall, at the discretion of the justice, either be committed to the com- 
 mon gaol or house of correction, there to be imprisoned only, or to be 
 imprisoned and kept to hard labour, for any term not exceeding one 
 calendar month, or else shall forfeit and pay, over and above the amount 
 of the injury done, such sum of money, not exceeding twenty shillings, 
 as to the justice shall seem meet, and in default of payment thereof 
 together with the costs, if ordered, shall be committed as aforesaid for 
 any term not exceeding one calendar month, unless payment be sooner 
 made; and if any person so convicted shall afterwards be guilty of any 
 of the said offences, and shall be convicted thereof in like manner, every 
 such offender shall be committed to the common gaol or house of cor- 
 rection, there to be kept to hard labour for such term not exceeding six 
 calendar months, as the convicting justice shall think fit; and if such 
 subsequent conviction shall take place before two justices, they may 
 further order the offender, if a male, to be once or twice publicly or 
 privately whipped, after the expiration of four days from the time of 
 such conviction." 
 
 ^CHAPTER THE FORTY-SIXTH. *577 
 
 OF CUTTING AND DESTROYING HOP-BINDS. 
 
 The 7 & 8 Geo. 4, c. 30, s. 18, enacts, " that if any person shall Destroying 
 unlawfully and maliciously(a) cut or otherwise destroy any hop-binds no P- binds - 
 growing on poles in any plantation of hops, every such offender shall 
 be guilty of felony, and being convicted thereof, shall be liable, at the 
 discretion of the court, to be transported beyond the seas for life, or for 
 any term not less than seven years, or to be imprisoned for any term not 
 exceeding four years ; and if a male, to be once, twice, or thrice pub- 
 licly or privately whipped, (if the court shall so think fit,) in addition 
 to such imprisonment." 
 
 The 1 Vict. c. 90, s. 2, recites this section, and repeals so much of 
 it " as relates to the punishment of persons convicted of any of the 
 offences hereinbefore specified," and then enacts that " every person 
 convicted after the commencement of this act, (1 October, 1837) of 
 any of such offences respectively, shall be liable to be transported 
 beyond the seas for any term not exceeding fifteen years nor less 
 than ten years, or to be imprisoned for any term not exceeding three 
 years. "(6) 
 
 (a) See sec. 25, ante, p. 544. 
 
 (6) See sec. 3, ante, p. 570, as to hard labour and solitary confinement; and as to the 
 punishment of principals in the second degree and accessories, see note (j), ante, p. 573.
 
 any river or 
 caiiul. 
 
 *578 OF DESTROYING DAMS AND FISH PONDS, ETC. [BOOK IV. 
 
 ♦CHAPTER THE FORTY-SEVENTH. 
 
 OF BREAKING DOWN, ETC., SEA BANKS, LOCKS, AND WORKS ON RIVERS, 
 
 CANALS, ETC. 
 
 Destroying TnE 7 & 8 Geo. 4, c. 30, s. 12, enacts, "that if any person shall un- 
 bank"* lawfully and maliciously(cr) break down or cut away any sea bank or 
 or works on sea wall, or the bank or wall of any river, canal, or marsh, whereby 
 any lands shall be overflowed or damaged, or shall be in danger of 
 being so ; or shall unlawfully and maliciously throw down, level, or 
 otherwise destroy any lock, sluice, floodgate, or other work on any 
 navigable river or canal ; every such offender shall be guilty of felony, 
 and, being convicted thereof, shall be liable at the discretion of the 
 court, to be transported beyond the seas for life, or for any term not less 
 than seven years, or to be imprisoned for any term not exceeding four 
 years, and, if a male, to be once, twice, or thrice publicly or privately 
 whipped (if the court shall so think fit) in addition to such imprison- 
 ment; and if any person shall unlawfully or maliciously cut off, draw 
 Removing up, or remove any piles, chalk, or other materials fixed in the ground, 
 the piles of an( j use( j f or securing any sea bank, or sea wall, or the bank or wall of 
 bank^c anv river, canal, or marsh ; or shall unlawfully and maliciously open 
 or doing or draw up any floodgate, or do any other injury or mischief to any 
 Tl toob navigable river or canal, with intent and so as thereby to obstruct or 
 struct the prevent the carrying on, completing or maintaining the navigation 
 navigation thereof ; every such offender shall be guilty of felony, and, being Con- 
 or canal, victed thereof, shall be liable, at the discretion of the court, to be trans- 
 ported beyond the seas for the term of seven years, or to be imprisoned 
 for any term not exceeding two years ; and, if a male, to be once, twice, 
 or thrice publicly or privately whipped, (if the court shall so think fit,) 
 in addition to such imprisonment. "(&) 
 
 *579 *CHAPTER THE FORTY-EIGHTH. 
 
 OF DESTROYING THE DAMS OF FISH-PONDS, ETC., OR MILL-PONDS, AND 
 OF PUTTING NOXIOUS MATERIALS INTO FISH-PONDS, ETC. 
 
 Breaking The 7 & 8 Geo. 4, c. 30, s. 15, enacts, " that if any person shall unlaw- 
 
 damVfa *" U ^ Y anc * ma li c io u sly(a«) break down, or otherwise destroy the dam of 
 
 fishery, any fish-pond, or of any water which shall be private property, or in 
 
 A ?:j °* which there shall be any private right of fishery, with intent thereby to 
 
 take or destroy any of the fish in such pond or water, or so as thereby 
 
 to cause the loss or destruction of any of the fish ; or shall unlawfully 
 
 and maliciously put any lime or other noxious material in any such pond 
 
 or water, with intent thereby to destroy any of the fish therein ; or shall 
 
 unlawfully and maliciously break down or otherwise destroy the dam 
 
 (a) See sec. 25, ante, p. 544. 
 
 (b) As to the punishment of principals in the second degree and accessories, see 7 & 8 
 Geo. 4, c. 30, s. 26, ante, p. 546, and as to hard labour and solitary confinement, see the 7 & 
 8 Geo. 4, c. 30, s. 27, and the 1 Vict. c. 90, s. 5, ante, p. 547. 
 
 (era) See sec. 25, ante, p. 544.
 
 CHAP. XLIX.] OF DESTROYING OR INJURING BRIDGES, ETC. 579 
 
 of any mill-pond ; every such offender shall be guilty of a misdemeanor, 
 and, being convicted thereof, shall be liable, at the discretion of the court, 
 to be transported beyond the seas for the term of seven years, or to be 
 imprisoned for any term not exceeding two years; and, if a male, to be 
 once, twice, or thrice publicly or privately whipped (if the court shall so 
 think fit,) in addition to such imprisonment.'Vi) 
 
 In the case upon the 9 Geo. 1, c. 22, the words of which were, "if any 
 person shall unlawfully and maliciously break down the head or mound 
 of any fish-pond, whereby the fish shall be lost or destroyed," the 
 judges thought that the provision applied only to cases of wanton and 
 malicious mischief in cutting the head of a pond, and not to cases where 
 it was used as the means of stealing the fish.(c) 
 
 *CHAPTER THE FORTY-NINTH. 
 
 OF DESTROYING OR INJURING BRIDGES, TURNPIKE-GATES, ETC. 
 
 *580 
 
 The 7 & 8 Geo. 4, c. 80, s. 13, enacts, « that if any person shall un- 7 & 8 Geo. 
 lawfully, and maliciously(a) pull down or in any wise destroy any public f:, c ' y°: s ' 
 bridge, or do any injury with intent, and so as thereby to render such to a public 
 bridge or any part thereof dangerous or impassable, every such offender bnd S e - 
 shall be guilty of felony, and, being convicted thereof, shall be liable, at 
 the discretion of the court, to be transported beyond the seas for life, or 
 for any term not less than seven years, or to be imprisoned for any term 
 not exceeding four years ; and, if a male, to be once, twice, or thrice 
 publicly or privately whipped (if the court shall so think fit,) in addi- 
 tion to such imprisonment/'(J6) 
 
 By sec. 14, « if any person shall unlawfully and maliciously (a) throw Sec. 14. 
 down, level, or otherwise destroy, in whole or in part, any turnpike- a tu/nmke^ 
 gate, or any wall, chain, rail, post, bar, or other fence belonging to any gate, toll- 
 turnpike-gate, set up or erected to prevent passengers passing by with- house > &c - 
 out paying any toll directed to be paid by any act or acts of parliament 
 relating thereto, or any house, building, or weighing engine erected for 
 the better collection, ascertainment, or security of any such toll, every 
 such offender shall be guilty of a misdemeanor, and, being convicted 
 thereof, shall be punished accordingly. "(cc) 
 
 The malicious destruction or damaging of 'public bridges is said to be Destruc- 
 without doubt punishable as a misdemeanor at common law, being a damaging 
 nuisance to all the king's subjects.(J) But in a case of slight damage of bridges, 
 this might perhaps be questioned. With respect to wilful damage done 
 to bridges, arches, walls, &c, erected by the commissioners of turnpike- 
 
 (b) As to abettors, see sec. 26, ante, p. 546, and as to hard labour and solitary confine- 
 ment see sec. 27, and the 1 Vict. c. 90, s. 5, ante, p. 547. 
 
 (c) Rex v. Ross, Russ. & Ry. 10. The new statute seems framed expressly so as to meet 
 this case. C. S. G. 
 
 (a) See sec. 25, ante, p. 544. 
 
 (bb) As the punishment of principals in the second degree and accessories, see sec. 26, 
 ante, p. 546, and as to hard labour and solitary confinement, see sec. 27, and the 1 Vict. c. 
 90, s. 5, ante, p. 547. 
 
 (cc) As to hard labour and ^solitary confinement, see sec. 27, and the 1 Vict. c. 90, s. 5, 
 ante, p. 547, and as to abettors' see sec. 26, ante, p. 546. 
 
 (d) 2 East, P. C. c. 22, s. 27, p. 1081.
 
 JSO OF DESTROYING FENCES, AVAILS, ETC. [BOOK IV. 
 
 roads, pecuniary penalties, recoverable by summary conviction, are im- 
 posed by the 8 Geo. 4, c. 126, s, 121, and 4 Geo. 4, c. 95, s. 72. 
 There are, however, a great number of bridges within this kingdom 
 *581 which it was made felony to injure or destroy, by the enactments *of 
 particular statutes. In some instances the offence was made capital, as 
 in the case of Westminster Bridge, by 9 Geo. 2, c. 29, s. 5. But the 1 
 Geo. 4, c. 116, repeals this provision of the Westminster Bridge Act, and 
 with respect to similar provisions in other statutes it enacts, " that such 
 parts of all former acts relating to bridges as enact that if any person or 
 persons shall wilfully and maliciously blow up, pull down, or destroy 
 any bridge, or any part thereof, or attempt so to do, or unlawfully and 
 without authority remove or take any works thereunto belonging, or in 
 anywise direct or procure the same to be done, such offender or of- 
 fenders, being thereof lawfully convicted, shall be adjudged guilty of 
 felony, and shall suffer death as a felon, without the benefit of clergy 
 shall from and after the passing of this act be and the same are hereby 
 repealed." 
 
 *582 *CHAPTER THE FIFTIETH. 
 
 OP DESTROYING FENCES, WALLS, STILES, OR GATES. 
 
 Destroying The 7 & 8 Geo. 4, c. 30, s. 23, enacts, " that if any person shall 
 &c, any unlawfully and maliciously(a) cut, break, throw down, or in anywise 
 stile, or ' destroy any fence of any description whatsoever, or any wall, stile, or 
 gate. gate, or any part thereof respectively, every such offender, being con- 
 
 victed before a justice of the peace, shall for the first offence forfeit and 
 pay, over and above the amount of the injury done, such sum of money, 
 not exceeding five pounds, as to the justice shall seem meet : and if any 
 person so convicted shall afterwards be guilty of any of the said 
 offences, and shall be convicted thereof in like manner, every such 
 offender shall be committed to the common gaol or house of correction, 
 there to be kept to hard labour for such term, not exceeding twelve 
 calendar months, as the convicting justice shall think fit; and if such 
 subsequent conviction shall take place before two justices, they may 
 further order the offender, if a male, to be once or twice publicly or 
 privately whipped after the expiration of four days from the time of 
 such conviction." 
 
 *583 
 
 *CHAPTER THE FIFTY-FIRST. 
 
 OF THE DESTROYING AND DAMAGING MINES AND MINE ENGINES. 
 
 The offence of setting fire to any coal-mine has been mentioned in a 
 former chapter, (a a) 
 7 & 8 Geo. The 7 & 8 Geo. c. 30, s. 6, enacts, » that if any person shall unlaw- 
 4, c. 30, s. fully and maliciously^) cause any water to be conveyed into any mine, 
 
 (a) See sec. 25, ante, p. 544. 
 
 \aa) Ante, p. 553. (b) See sec. 25, ante, p. 544.
 
 CHAP. LI.] OF DESTROYING AND DAMAGING MINES, ETC. 583 
 
 or into any subterraneous passage communicating therewith, with intent 6. Drown- 
 thereby to destroy or damage such mine, or to hinder or delay the work- 1^ or fill 
 ing thereof ; or shall with the like intent, unlawfully and maliciously ing up any" 
 
 pull down, fill up, or obstruct any air- way, water-way, drain, nit, level. s ^ a , ft, . &c -' 
 
 ■> n n 11 • , • i „ , , ,, , 'with intent 
 
 or shaft, of or belonging to any mine ; every such offender shall be to destroy 
 
 guilty of felony, and being convicted thereof, shall be liable at the dis- the mine - 
 cretion of the court, to be transported beyond the seas for the term of 
 seven years, or to be imprisoned for any term not exceeding two years ; 
 and, if a male, to be once, twice, or thrice publicly or privately whipped 
 (if the court shall so think fit) in addition to such imprisonment : pro- 
 vided always, that this provision shall not extend to any damage com- 
 mitted under ground by any owner of any adjoining mine, in working 
 the same, or by any person duly employed in such working.'Vc) 
 
 By sec. 7, " if any person shall unlawfully and maliciously(i) pull Sec. 7. 
 down or destroy, or damage, with intent to destroy or to render use- anv^n^nf 
 less, any steam-engine or other engine for sinking, draining, or working erection, 
 
 any mine, or any staith, building, or erection used in conducting the &c '' us . ed m 
 v • c • -u -5 i x- • any mine, 
 
 business ot any mine, or any bridge, wagon-way, or trunk for conveying 
 
 minerals from any mine, whether such engine, staith, building, erection, 
 
 bridge, wagon-way, or trunk be completed or in an unfinished state, 
 
 every such offender shall be guilty of felony, and, being convicted 
 
 thereof, shall be liable to any of the punishments which the court may 
 
 award, as hereinbefore last mentioned." 
 
 We have seen that where one of the owners of adjoining mines Claim of 
 asserting that an air-way belongs to him, directs his workmen to stop " s 
 it up, and they acting bond fide, and believing that he has a right to 
 give such an order, do so, they are not guilty of felony for stopping up 
 the air-way, even though the master knew that he had no right to it. 
 But if any of the workmen knew that the stopping of the air-way* *584 
 was a malicious act of his master, such workman would be guilty of 
 felony, (d) 
 
 If a steam-engine be set in motion without any machinery attached Wrongful- 
 to it, with intent to damage it or render it useless, the case is within the ^^"nt a 
 statute. Upon an indictment for maliciously damaging a steam engine gino in mo- 
 with intent, as charged in one account, to destroy, as charged in another, tion,whero- 
 to render it useless, it appeared that the steam-engine was used to bring damaged. 
 up coals from the shaft of one mine, and water from another, and that 
 it was stopped and locked up in the evening, and that the prisoners in 
 the night got into the engine house and set the engine going, and from 
 its having no machinery attached to it, the engine worked with greater 
 velocity, and the wheels were some of them thrown out of cog, so that 
 the engine was damaged to the amount of 10Z., and would have been 
 injured to a much greater extent, if the mischief had not been disco- 
 vered and the engine stopped. Gurney, B., left it to the jury to say 
 whether the intent of the prisoners was to destroy the engine or to 
 render it useless ; and held that if the prisoners had either of thoso 
 intents the case came within the provisions of the statute. 
 
 (c) See sec. 26, ante, p. 546, as to principals in the second degree and accessories, and 
 sec. 27, and the 1 Vict. c. 90, sec. 5, ante, p. 547, as to hard labour and solitary confinement. 
 
 (b) See sec. 25, ante, p. 544. • 
 
 (d) Reg. v. Norris, a 9 C. & P. 241. See Rex v. Tacey, post, p. 586. 
 
 a Eng. Com. Law Reps, xxxviii. 100.
 
 584 OF DESTROYING, ETC., MACHINERY. [BOOK IV. 
 
 What is an Damaging a drum moved by a steam engine is not damaging the steam 
 "ereotion. t , n ,,j n0 } m i damaging a scaffolding placed across the shaft of a mine, in 
 \\ bat is not & > r • . • ,, -i • ■% • 
 
 part of a order to work a level, is damaging an " erection " used in conducting 
 
 steam on- tno Dus i nesg f a mine." Upon an indictment founded on the 7 & 8 
 Geo. 4, c. 30, s. 7, containing counts for damaging an engine employed 
 in working a mine with intent to destroy it, and for damaging a certain 
 erection used in the working a mine, with intent to destroy it, it appeared 
 that a coal mine was worked by a steam engine, which caused a cylin- 
 der, called a drum, to revolve and take up the rope as the coal was 
 drawn from the mine. At the other end of the rope was a heavy 
 weight, called a bull, which the prisoners threw into the shaft of the 
 mine, and by the sudden jerk caused the drum to be strained and injured. 
 The bottom of the shaft was filled with water, and the owner of the 
 mine had caused a scaffold to be erected at some distance above the 
 bottom of the mine, for the purpose of working a vein of coal that was 
 on a level with the scaffold, and the prisoners had thrown a sort of 
 wagon, called a corve, down the shaft, whereby the scaffold was much 
 injured. It was objected, first, that as the drum was no part of the 
 steam engine, the counts charging the damaging the steam engine could 
 not be supported; secondly, that the scaffolding was not an " erection" 
 within the meaning of the 7 & 8 Geo. 4, c. 30, s. 7, as the word " erec- 
 tion" being used in conjunction with the words "staith or building" 
 must be taken to mean an erection ejusdem generis; and it was held 
 that the damaging the drum did not support the counts charging the 
 damaging the steam engine, but it was also held that the scaffolding 
 was an erection within the meaning of the statute; the word " erec- 
 tion" being clearly meant to denote something different from a build- 
 ing, (e) 
 
 *585 *CHAPTER THE FIFTY-SECOND. 
 
 OF DESTROYING AND DAMAGING ARTICLES IN A COURSE OF MANUFAC- 
 TURE, AND OF DESTROYING, ETC., IMPLEMENTS AND MACHINERY. 
 
 7 & 8 Geo. The 7 & 8 Geo. 4, c. 30, s. 3, enacts, " that if any person shall un- 
 i' d 3 «t' S " ^ aw ^ u ^y an & maliciously (a) cut, break, or destroy, or damage with in- 
 ing silk, tent to destroy or to render useless, any goods or articles of silk, woollen, 
 woollen, linen, or cotton, or of any one or more of those materials mixed with 
 cotton each other, or mixed with any other material, or any framework-knitted 
 goods in piece, stocking, hose, or lace respectively, being in the loom or frame, 
 &c. or^'ny or on an y machine or engine, or on the rack or tenters, or in any stage, 
 machinery process, or progress of manufacture ; or shall unlawfully and maliciously 
 manufac cut > break, or destroy, or damage with intent to destroy or render use- 
 tures, &c. less, any warp or shute of silk, woollen, linen, or cotton, or of any one 
 or more of those materials mixed with each other, or mixed with any 
 other material, or any loom, frame, machine, engine, rack, tackle, or 
 implement, whether fixed or movable, prepared for or employed in card- 
 ing, spinning, throwing, weaving, fulling, shearing, or otherwise rnanu- 
 
 (e) Reg. v. Whittingharn, a 9 C. & P. 234, Patteson, J. 
 (a) See sec. 25, ante, p. 544. 
 
 a Eng. Com. Law Reps, xxxviii. 96.
 
 CHAP. LII.] OF DESTROYING, ETC., MACHINERY. 585 
 
 factoring or preparing any such goods or articles : or shall by force enter 
 
 into any house, shop, building, or place, with intent to commit any of 
 
 the offences aforesaid, every such offender shall be guilty of felony, and 
 
 being convicted thereof, shall be liable, at the discretion of the court, 
 
 to be transported beyond the seas for life, or for any term not less than 
 
 seven years, or to be imprisoned for any term not exceeding four years ; 
 
 and if a male, to be once, twice, or thrice publicly or privately whipped 
 
 (if the court shall so think fit,) in addition to such imprisonment." lb) 
 
 Upon an indictment under the 28 Geo. 3, c. 55, s. 4, (now repealed) Taking 
 
 for maliciously damaging a frame used for making stockings, it appeared o^a^rame 
 
 that the prisoner unscrewed, unfastened, and carried away a part, called and tkere- 
 
 the half-jack, from two frames used for the making of stockings. The^ y r . ender - 
 . . . .. . ° mg it use- 
 
 half-jack is a piece of iron, which is an essential part of the frame, and less. 
 
 when taken out the frame is rendered useless ; but it may be taken out 
 
 and again replaced without injury to the frame, and is sometimes so 
 
 treated when the frame is taken to pieces to be cleaned. Most of the 
 
 other parts of the frame may in like manner be taken out and replaced. 
 
 The frames in this case were not otherwise injured than by taking away 
 
 the half-jacks. It was*objected, that this removal of the half-jack was *586 
 
 not a damaging of the frame within the statute, which it was contended, 
 
 applied only to cases of breaking, bending, or straining some part of the 
 
 frame, and not to the removal of a part, though that part might be an 
 
 essential part. But, upon a case reserved, the judges were unanimously 
 
 of opinion that the taking out and carrying away the half-jack, was a 
 
 damaging the frame within the meaning of the 28 Geo. 3, as it made 
 
 the frame imperfect and inoperative. (c) 
 
 The 22 Geo. 3, c. 40, s. 1, made it a capital felony to break into any Looms, 
 house, &c, with intent to destroy "any serge or other woollen goods in 
 the loom, or any tools employed in the making thereof," and it was held 
 that destroying part of a loom did not come within the meaning of that 
 statute. (cZ) 
 
 The first count charged the prisoner with maliciously damaging 100 Goods 
 pieces of worsted stuff, " in a certain process of manufacture," with in- ™™^ ° in 
 tent to destroy the same. Other counts stated the goods to be in a process' or 
 " certain stage of manufacture," and others stated them to be " in the progress of 
 
 mi i i • i nianutac- 
 
 progress of manufacture. The prosecutors were dyers, and received turethough 
 the stuffs from the manufacturer after the texture was complete, but the texture 
 while they were still in an unmarketable state. The stuffs which were plot0j jj 
 damaged by the prisoners were, at that time, upon rollers, immersed in they he not 
 liquid, and in the actual process of being dyed ; and the injury was done .*™| 
 by throwing deleterious ingredients upon the stuffs themselves, and into condition 
 the liquid in which they were immersed. For the prisoners it was con- fit for S(llc - 
 tended, that as the article damaged was at the time of the damage being 
 done in a complete state, so far as the manufacturing and texture were 
 concerned, and only required dyeing to fit it for the market, the case did 
 not come within the words of the act. For the prosecution it was sub- 
 mitted, that the legislature could not have intended to withdraw the pro- 
 tection of the act, until the manufacture was so complete that the ar- 
 
 (b) See sec. 27, and the 1 Vict. c. 90, s. 5, ante, p. 547, as to hard labour and solitarj 
 confinement ; and sec. 26 ante, p. 546, as to principals in the second degree and accesso- 
 ries. 
 
 (c) Rex v. Tacey, Russ. & Ry. 452. 
 
 \d) Rex v. Hill, Russ. & Ry. 433. The new statute seems framed to meet this case.
 
 586 OF DESTROYING, ETC., MACHINERY. [BOOK IV. 
 
 tides were fit for immediate sale. Coleridge, J., (after consulting with 
 Parke, 13.,) said that they were both of opinion that the true construction 
 of the act was that contended for by the prosecutor; he therefore over- 
 ruled the objection, and he referred to the provision in the same section 
 relating to goods on " rack or tenters," as showing that the act contem- 
 plated injuries to goods subsequent to the completion of the texture.(e) 
 An indict- The indictment stated that the prisoner six warps of linen yarn of the 
 'i iunt !' r <r g°°ds of A. B. unlawfully, maliciously, and feloniously did damage by 
 warps of throwing the said warps of linen yarn with great force unto and upon 
 linen yam, ^ e ground, &c, with intent to render the .same useless; against the 
 allege that form, &e. After conviction a writ of error was brought, and the errors 
 the warps assigned were, that it did not appear by the count that the said warps 
 pared P for were > a * tne thne °f the damage, goods in any stage of manufacture, or 
 or employ- that they were prepared for being woven or manufactured into, or were 
 'icOT employed in the weaving or manufacturing any such goods, &c. ; and it 
 otherwise was contended that the indictment did not state any offence within the 
 preparing s tatixte, because the damaging warps was made an offence only where 
 #587 ' such warps had been prepared for, *or employed in spinning, &c, or 
 otherwise manufacturing the goods mentioned in the previous part of 
 the section ; and that the indictment did not allege that the warps of 
 linen were so prepared or employed. Lord Tenterden, C. J., in deliver- 
 ing the judgment of the court, said, " We are of opinion, on a careful 
 examination of the statute, that it was not necessary to allege specifi- 
 cally in the count that the warps therein mentioned were prepared for 
 or employed in carding, spinning, weaving, &c, or otherwise manufac- 
 turing goods. The third section of 7 & 8 Greo. 4, c. 30, consists of three 
 branches. The first branch enacts, that if any person shall unlawfully 
 and maliciously damage with intent to destroy, any goods therein de- 
 scribed, being in the loom, &c, he shall be guilty of felony. Now in an 
 indictment for an offence against that enactment, it would be undoubt- 
 edly necessary to allege that the goods were at the time of the damage 
 in the loom, &c, because it was not the intention of the legislature to 
 make it an offence to destroy such goods wherever found, but to protect 
 them only while they were in a course of manufacture. The same ob- 
 servation applies to the latter part of the second branch of the section, 
 which makes it an offence to damage or break any loom prepared for 
 or employed in manufacturing, &c. ; it would not be sufficient in an in- 
 dictment, framed upon that provision of the statute, to charge the mere 
 destruction of a loom, without adding that it was one prepared or em- 
 ployed in some of the ways therein described, for the count then would 
 be too general. But as to the damaging of any warp or shute of silk, 
 woollen, or linen, the question may, on the words of the act, admit of 
 some doubt. The whole sentence is, " If any person shall unlawfully 
 and maliciously damage, &c, with intent to destroy, any warp or shute 
 of silk, woollen, linen, &c, or any loom, frame, &c, prepared for or em- 
 ployed in carding, spinning, weaving," &c; and the question is, if the 
 words » prepared for or employed," &c., are to be considered as referring 
 to all the preceding words, or to those only denoting the implements of 
 manufacture. That must be ascertained by looking at the subject-matter 
 of the enactment and the object which the legislature had in view. That 
 object in the first branch of the section was, the protection of goods 
 
 (e) Rex v. Woodhead, 1 M. & Rob. 549.
 
 CHAP. LII.] OF DESTROYING, ETC., MACHINERY. 587 
 
 while in the course of manufacture ; in the second, the protection of the 
 warp or shute, and of the machinery and implements, when they were 
 prepared for or employed in the production of goods. Now as to the 
 latter, it is necessary, with a view to the limited purpose which the 
 legislature had in view, that the concluding words should apply to 
 them ; but not so as to the warp, because a warp is a denomination of 
 some kind of thread prepared to be woven and used in manufacture : it 
 is in itself something « prepared for manufacturing goods." We were 
 referred in the argument to former acts of parliament in pari materia" 
 which had been repealed, and it was said, that under some of those acts, 
 the word warp was so connected with the words importing preparation 
 for manufacture, that a similar connection must be understood here and 
 consequently it was necessary that they should be so connected in an 
 indictment on the present clause. To the party indicted that must at 
 all events, be immaterial, because the warp must be something already 
 prepared for manufacture ; and therefore the proof would be the same, 
 whether the indictment contained such an allegation or not; but in the 
 statute, 4 Geo. 4, c. 46, the word warp is used absolutely by itself, with- 
 out *reference to any word denoting preparation for manufacture, and *588 
 without any qualification before or after. The words which follow, " or 
 to burn, break, &c, any loom, &c, prepared for or employed in manu- 
 facturing," constitute a distinct branch of the sentence, and after them 
 a new sentence commences. Upon this view of the two acts of parlia- 
 ment, and considering that the word warp is a well known denomina- 
 tion of an article which is in someway or other prepared for or employed 
 in manufacture, we are of opinion that it was not necessary to allege 
 specifically in this case that the warp mentioned in the indictment was 
 so prepared or employed. "(d) 
 
 By the 7 & 8 Geo. 4, c. 30, s. 4, " if any person shall unlawfully 7 & 8 Geo. 
 and maliciously cut, break, or destroy, or damage with intent to destroy*' c \3°> s - 
 or to render useless any threshing machine, or any machine or engine, stroying 
 whether fixed or movable, prepared for or employed in any manufac- threshing 
 ture whatsoever (except the manufacture of silk, woollen, linen, or cot- or mao hi_' 
 ton goods, or goods of any one or more of these materials mixed with nery in 
 each other, or mixed with any other material, or any framework-knitted jj^ufae- 
 piece, stocking, hose or lace) every such offender shall be guilty of turo than 
 felonv, and being convicted thereof, shall be liable, at the discretion of th ? foro " 
 
 * 7 a ' going. 
 
 the court, to be transported beyond the seas for the term of seven 
 years, or to be imprisoned for any term not exceeding two years, and, if 
 a male, to be once, twice, or thrice publicly or privately whipped (if the 
 court shall so think fit,) in addition to such imprisonment."^) 
 
 Upon an indictment for destroying a threshing machine it appeared Destroy- 
 that the prosecutor, in expectation of a mob coming to destroy hisl?®*.. 
 threshing machine, had himself taken it to pieces, and that the prisoners machine, 
 only broke the detached parts of it; but it was held that the offence ,; ! kl " '." 
 was made out, although at the time when the machine was broken, it OX p e ota- 
 had been taken to pieces, and was in different places, only requiring the ,i " 11 " |M 
 carpenter to put the pieces together again. (/) So where the prisoner 
 
 (d) Rex v. Ashton, a 2 B. & Ad. 750. 
 
 (e) See sec. 26, ante, p. 54G, as to principals in the second degree and accessories, and 
 sec. 27, and the 1 Vict. c. 90, s. 5, ante, p. 547, as to hard labour and solitary confine- 
 ment. 
 
 (/) Rex v. Mackerel, 11 4 C. & P. 448, Park, J. A. J. Bolland, B., and Patteson, J. 
 a Eng. Com. Law Reps. xxii. 176. b lb. xix. 467.
 
 588 OP DESTROYING, ETC., MACHINERY. [BOOK IV. 
 
 was indicted for destroying a threshing machine, and it appeared that 
 it had been previously taken to pieces by the owner, by separating the 
 arms and other parts of it, for the purpose of placing it in safety, but 
 with a view to put it together again ; and it was destroyed, whilst in 
 this disjointed state ; it was decided that the offence was within the 
 statute of the 7 & 8 Geo. 4, c. 30, s. 3.(#) So where certain side-boards 
 were wanting to the machine at the time it was destroyed, but which 
 did not render it so defective as to prevent it altogether from working, 
 though it would not work so effectually as if those boards had been made 
 good ; it was held, that it was still a threshing machine within the 
 meaning of the statute. (A) So also where the owner had removed a 
 wooden stage belonging to the machine, on which the man who fed the 
 machine was accustomed to stand, and had also taken away the legs ; 
 and it appeared in evidence, that though the machine could not be con- 
 veniently worked without some stage for the man to stand on, yet that 
 *589 a chair, or *table, or a number of sheaves of corn, would do nearly as 
 well, and that it could also be worked without the legs ; it was held, 
 that the machine was an entire one, within the act, notwithstanding the 
 stage and legs were wanting, (i) 
 Destroying So where on an indictment for destroying a threshing machine, it 
 wheeler" a PP eare d tnat tne machine was worked by water, and that the prosecu- 
 threshing tor, expecting a mob would come and break it, had had it taken to 
 machine. pi eces? am i h ac l removed the pieces to a barn at the distance of a quar- 
 ter of a mile, leaving no part of it standing but the water-wheel and its 
 axis and a brass joint, which was joined to the axis of the water-wheel, 
 and that this water-wheel was broken by the prisoners. The water- 
 wheel had been put up for the sole purpose of working the threshing 
 machine, and had never been used for anything else, except sometimes 
 to work a chaff-cuttep, which was appended to the threshing machine ; 
 it was held that the wheel was part of the threshing machine, and that 
 the damaging it was damaging a threshing machine within the mean- 
 ing of the statute, and that it made no difference that the threshing 
 machine was sometimes worked by horses when there was a scarcity of 
 water. (^) 
 
 But where the prosecutor had not only taken the machine to pieces, 
 
 but had broken the wheel before the mob came to destroy it, for fear 
 
 of having it set on fire and endangering his premises; and it was 
 
 proved, that, without the wheel, the engine could not be worked ; in 
 
 this case it was held, that the remaining parts of the machine, which 
 
 were destroyed by the mob, did not constitute a threshing machine 
 
 within the meaning of the statute. (k) 
 
 Persons Where, on an indictment for destroying a threshing machine, it ap- 
 
 to d Pe tr ed P eare d tnat ^e ma chine was broken by a mob, Patteson, J., allowed 
 
 machines the witnesses to be asked whether many persons had not been compelled 
 
 by a mob. to join the mob against their will, and whether the mob did not compel 
 
 each person to give one blow to each threshing machine they broke ; 
 
 (g) Rex v. Hutchins, 2 Deac. Cr. Dig. 1517, Read. Sp. Com. Park, J. A. J., Bolland, B., 
 and Patteson, Js. 
 
 (h) Rex v. Bartlett, 2 Deac. Cr. Dig. 1517, Salisb. Sp. Com., Vaughan, B., Parke, andAl- 
 derson, Js. 
 
 (i) Rex v. Chubb, 2 Deac. Cr. Dig. 1518, Salisb. Sp. Com. Vaughan, B., and Parke, J. 
 
 (/) Rex v. Fidler," 4 C. & P. 449. Park, J. A. J., Bolland, B., and Patteson, J. 
 
 \k) Rex v. West, 2 Deac. Cr. Dig. 1518, Salisb. Sp. Com. Alderson, J. 
 a Eng. Com. Law Reps. xix. 467.
 
 CHAP. LII.] OF DESTROYING, ETC., MACHINERY. 589 
 
 and also whether, at the time when the prisoner, and a witness called 
 for the prisoner, joined the mob they did not agree together to run 
 away from the mob at the first opportunity.(7) 
 
 The 7 & 8 Geo. 4, c. 30, s. 8, enacts, "that if any persons, riotously 7 & 8 Geo. 
 and tumultously assembled together to the disturbance of the public 4 '. c- 30 > s - 8 - 
 peace, shall unlawfully and with force demolish, pull down, or destroy, moSing-' 
 or begin to demolish, pull down, or destroy, any church or chapel or &c -> a 
 any chapel for the religious worship of persons dissenting from the chlpe?,' 
 united Church of England and Ireland, duly registered or recorded or house/or 
 any house, stable, coach-house, out-house, warehouse, office, shop, mill, buUdi' 1 
 malt-house, hop-oast, barn or granary, or any building or erection used or any 8 
 
 ma- 
 
 in carrying on any trade or manufacture, or any branch thereof, or any chiner y in 
 machinery, whether fixed or movable, prepared for or employed in any factory 1 ^" 
 manufacture, or in any branch thereof, or any steam engine or other miue- 
 engine for sinking, draining, or working any mine, or any staith, build- 
 ing, or erection used in conducting the business of any mine, or any 
 bridge, wagon-way, or trunk for conveying minerals from any mine, 
 every such *offender shall be guilty of felony, and being convicted *590 
 thereof, shall suffer death as a felon. "(U) 
 
 The 4 & 5 Vict. c. 56, s. 2, recites this section and so much of the 4 & 5 Vict. 
 act as " relates to the principals in the second degree and accessories P - 56 ' s- 2- 
 before the fact," and enacts, "that from and after the commencement punish- 
 of this act (1st October, 1841) if any person shall be convicted of any ment - 
 of the said offences hereinbefore last specified, whether as principal, or 
 as principal in the second degree, or as accessory before the fact, such 
 person shall not be subject to any sentence, judgment, or punishment 
 of death, but shall, instead of the sentence or judgment in and by the 
 said act hereinbefore recited ordered to be given or awarded against per- 
 sons convicted of the said last mentioned offences, or any of them res- 
 pectively, be liable, at the discretion of the court, to be transported 
 beyond the seas for any term not less than seven years, or to be impri- 
 soned for any time not exceeding three years." 
 
 By sec. 4, "in awarding the punishment of imprisonment for any Sect. 4. 
 offence punishable under this act, it shall be lawful for the court to b " £~ c 
 direct such punishment to be with or without hard labour in the com- 
 mon gaol or house of correction, and also to direct that the offender 
 shall be kept in solitary confinement for any portion or portions of such 
 imprisonment, whether the same be with or without hard labour, not 
 exceeding one month at any one time, and not exceeding three months 
 in any one year, as to the court in its discretion shall seem meet."(«i) 
 
 Where an indictment contained counts founded on the 8th section Joinder of 
 for riotously demolishing certain machinery, and also counts founded on co 
 the third section for destroying certain looms, and it was objected that 
 the two sets of counts were improperly joined, as the same judgment 
 
 (I) Rex v. Crutchley, a 5 C. & P. 133. 
 
 (II) See vol. 1, p. 270, for the cases decided upon this section. 
 
 (m) The 4 & 5 Vict. c. 56, contains no provision for the punishment of accessories after 
 the fact, and as the offences mentioned in the 7 & 8 Geo. 4, c. 30, s. 8, are no longer punish- 
 able under that statute, it may be doubted whether accessories after the fad are now pun* 
 ishable under sec. 26, ante, p. 546. If they are not, then there is no express punishment 
 provided for such accessories, and they are punishable (under the 7 <fc 8 Geo. 4, c. 28, ss. 
 8 and 9, and the 1 Vict. c. 90, s. 5,) in the manner stated in note (w), ante, p. 448. C. S. 
 G. 
 
 a Eng. Com. Law Reps. xxiv. 244. 
 
 Vol. ii.— 38
 
 500 OF DESTROYING AND DAMAGING SHIPS, ETC. [BOOK TV. 
 
 could not be passed on both; Bayley, J., said, "I see no difficulty. I 
 do not see that the prisoners will be under any disadvantage; but I will 
 speak to the judges on the subject.' Vw) 
 
 *591 ^CHAPTER THE FIFTY-THIRD. 
 
 OF DESTROYING AND DAMAGING SHIPS AND OTHER VESSELS, AND 
 ARTICLES THEREUNTO BELONGING. 
 
 The offence of unlawfully and maliciously setting fire to ships and 
 other vessels has been mentioned in a preceding chapter. (a) The en- 
 actment there mentioned extends to other modes of destruction : the 
 former statute on this subject, namely, the 7 & 8 Geo. 4, c. 30, con- 
 tained several general provisions against the offences of maliciously 
 damaging ships and other vessels, and doing certain acts tending to 
 their immediate loss or destruction, most of which are repealed by the 
 1 Vict. c. 89.(6) 
 7 & 8 Geo. The 7 & 8 Geo. 4, c. 30, s. 10, enacts, "that if any person shall unlaw- 
 li). Dam- f u My and maliciously(c) damage, otherwise than by fire, any ship or ves- 
 aging a sel, whether complete or in an unfinished state, with intent to destroy the 
 wi*e thaiT same > or *° render the same useless, every such offender shall be guilty of 
 by fire. felony, and being convicted thereof, shall be liable, at the discretion of the 
 court, to be transported beyond the seas for the term of seven years, or 
 to be imprisoned for any term not exceeding two years ; and if a male, 
 to be once, twice, or thrice publicly or privately whipped (if the court 
 shall so think fit), in addition to such imprisonment."(e?) 
 1 Vict c. The 1 Vic. c. 89, s. 4, enacts that " whosoever shall unlawfully and 
 Setting fire maliciously set fire to, cast away, or in anywise destroy any ship or 
 to ships, vessel, either with intent to murder any person, or whereby the life of 
 kitenT'to any P erson sna M De endangered, shall be guilty of felony, and being 
 commit convicted thereof shall suffer death. "(e) 
 
 murder. By sec. 5, "whosoever shall unlawfully exhibit any false light or 
 
 ouTfalse s ig na l> with intent to bring any ship or vessel into danger, or shall un- 
 lights to lawfully and maliciously do any thing tending to the immediate loss or 
 wreck ^ destruction °f an J sn ip or vessel in distress, shall be guilty of felony, 
 and being convicted thereof, shall suffer death. "(/) 
 pJL, By sec. 6, "whosoever shall unlawfully and maliciously set fire to or 
 f ? ships or 6 * D an y w i se destroy any ship or vessel, whether the same be complete or 
 Tessels in an unfinished state, or shall unlawfully or maliciously *set fire to, 
 tTdesteor * cast awa ^' or in an y wise destroy any ship or vessel, with intent thereby 
 the same, to prejudice any owner or part owner of such ship or vessel, or of any 
 
 (n) Kershaw's case, 1 Lew. 218. It is not stated in the report how this case terminated. 
 
 (a) Ante, Chap. On Arson, Sfc, p. 553. 
 
 (b) The 1 Vict. c. 89, repeals the 9th and 11th sections of the 7 & 8 Geo. 4, c. 30, and so 
 mueh of the same act as relates to the punishment of principals in the second degree and 
 accessories to the offences contained in those sections. 
 
 (c) See sec. 25, ante, p. 544. 
 
 (d) See sec. 26, ante, p. 546, as to principals in the second degree and accessories, and 
 see sec. 27, and the I Vict. c. 90, s. 5, as to hard labour and solitary confinement, ante, p. 
 547. i > ' f 
 
 (e) This section is new. 
 
 (/) This section is the same as the beginning of the 7 & 8 Geo. 4, c. 30, B. 11, except that 
 the word " unlawfully" is introduced before the word " exhibit."
 
 CHAP. LIII.] OF DESTROYING AND DAMAGING SHIPS, ETC. 592 
 
 goods on board the same, or any person that hath underwritten or shall 
 underwrite any policy of insurance upon such ship or vessel, or on the 
 freight thereof or upon any goods on board the same, shall be guilty of 
 felony, and being convicted thereof, shall be liable at the discretion of 
 the court, to be transported beyond the seas for the term of the natural 
 life of such offender, or for any term not less than fifteen years, or to be 
 imprisoned for any term not exceeding three years. "(g) 
 
 By sec. 7, " whosoever shall by force prevent or impede any person Impeding 
 endeavouring to save his life from any ship or vessel which shall be in *"J persou 
 distress, or wrecked, stranded, or cast on shore, (whether he shall be on ingto^ave 
 board or shall have quitted the same,) shall be guilty of felony, a nd hislife f rom 
 being convicted thereof, shall be liable, at the discretion of the court, wrecked, 
 to be transported beyond the seas for the term of the natural life of &c * 
 such offender, or for any term not less than fifteen years, or to be 
 imprisoned for any term not exceeding three years." (h) 
 
 By sec. 8, " whosoever shall unlawfully and maliciously destroy any Destroying 
 
 part of any ship or vessel which shall be in distress, or wrecked, stranded, wreck ^. or 
 
 . i i it.,/. an y articles 
 
 or cast on shore, or any goods, merchandise, or articles of any kind belonging 
 
 belonging to such ship or vessel, shall be guilty of felony, and being tlieret0 - 
 
 convicted thereof, shall be liable, at the discretion of the court, to be 
 
 transported beyond the seas for any term not exceeding fifteen years 
 
 nor less than ten years, or to be imprisoned for any term not exceeding 
 
 three years.'Yt) 
 
 A person may be convicted under the 1 Vic. c. 89, ss. 6 and 11, as an 
 accessory before the fact to the offence of casting away and destroying 
 a vessel of which he was at the time part owner. (u) Where it appeared 
 that certain goods which were on board a vessel which was feloniously 
 cast away, were insured, and one count alleged an intent to prejudice 
 the person who had underwritten the policy which insured them, and 
 there were also three other policies, effected on certain goods specified 
 in such policies, but no part of these goods were put on board the 
 vessel, it was held that evidence was receivable with respect to such 
 three policies, notwithstanding the 1 Vict. c. 89, s. 6, describes one 
 felonious intent to be to prejudice the persons who shall underwrite 
 any policy of insurance upon any goods on board the vessel. (jf\ 
 
 The 12 Geo. 3, c. 24, relates to the king's ships of war, arsenals, &c, 12 Geo - 3 - 
 and enacts, " that if any person or persons shall, either within this persons 
 realm, or in any of the islands, countries, forts or places thereunto be- wilfully 
 longing, wilfully and maliciously set on fire, or burn, or otherwise de- gj^Lg ^ ng 
 stroy, or cause to be set on fire, or burnt, or otherwise destroyed, or aid, war, arse- 
 procure, abet ; or assist in the setting on fire, or burning or otherwise y^g ]£*" 
 destroying any of his majesty's ships or vessels of war, whether the said or any tim- 
 ships or vessels of war be on float or building, or begun to be built, in bcr> &c -< or 
 any of his majesty's dock-yards, or building or repairing by contract 
 in any private yards, for the use of his majesty, or any of his majesty's 
 
 [g) This section is the same as the 7 & 8 Geo. 4, c. 30, s. 9. 
 
 (h) This section is the same as the last part of the 7 & 8 Geo. 4, c. 30, s. 11. 
 
 (t) This section is the same as the middle part of the 7 & 8 Geo. 4, c. 30, s. 11. As to 
 the punishment of principals in the second degree and accessories, see sec. 11, ante, p. 553; 
 and as to hard labour and solitary confinement, see sec. 12, ante, p. 554, and as to the 
 question of malice against the owner in offences against this statute, see note (n), ante, p. 
 572. 
 
 (ii) Reg. v. Wallace,* 1 C. & Mars. 200. All the judges on a case reserved. 
 
 (jj) Reg. v. Wallace, supra. 
 
 a Eng. Com. Law Reps. xli. 113.
 
 592 OP DESTROYING AND DAMAGING SHIPS, ETC. [BOOK IV. 
 
 arsenals, magazines, dock-yards, rope-yards, victualling-offices, or any 
 of the buildings erected therein, or belonging thereto; or any timber or 
 materials there placed for building, repairing, or fitting out of ships or 
 vessels; or any of his majesty's military, naval or victualling stores, or 
 other ammunition of war, or any place or places -where any such mili- 
 tary, naval, or victualling stores, or other ammunition of war, is, are, 
 or shall be kept, placed, or deposited ;" the person or persons guilty of 
 any such offence shall be adjudged guilty of felony, and suffer death 
 without benefit of clergy.f j\ By the second section, persons commit- 
 ting these offences out of the realm, may be indicted and tried for the 
 same, either in any county within the realm, or in the place where the 
 *593 offence shall *have been actually committed, as his majesty may deem 
 most expedient for bringing such offender to justice. (A*) 
 l & 2 Geo. The 1 & 2 Geo. 4, c. 75, s. 11, enacts, " that if any person or persons 
 41 ^Cutting sna ^ wilfully cut away, cast adrift, remove, alter, deface, sink, or de- 
 away, de- stroy, or shall do or commit any act with intent and design to cut away, 
 "buo^f' cast ac ^ r ^*> remove, alter, deface, sink or destroy, or in any other way 
 buoy-ropes, injure or conceal any buoy, buoy-rope, or mark, belonging to any ship 
 Ac, felony, or Y esse l or -which inav be attached to anv anchor or cable belonging 
 
 punishable . . J , - . » _, r 
 
 by trans- to any ship or vessel whatever, whether in distress or otherwise, such 
 portation, person or persons so offending shall, on being convicted of such offence, 
 be deemed and adjudged to be guilty of felony, and shall be liable to 
 be transported for any term not exceeding seven years, or in mitigation 
 of such punishment, to be imprisoned for any number of years at the 
 discretion of the court in which the conviction shall be made."(Z) 
 Statutes of Besides the statutes which have been thus cited, there are some others 
 and local °f a more limited and local operation, which may be briefly noticed. 
 operation, The 2 Geo. 3, c. 28, which made provisions against damaging the cord- 
 ed 47 s. 27! a S e °f vessels on the Thames, was repealed by the 2 & 3 Vict. c. 47, 
 entitled "An act for further improving the police in and near the metro- 
 polis;" but sec. 27 of that act enacts, that "every person who shall 
 unlawfully, cut, damage, or destroy any of the ropes, cables, cordage, 
 tackle, hcadfasts, or other the furniture of or belonging to any ship, 
 boat, or vessel lying in the river Thames, or in any of the docks or 
 creeks adjacent thereto, with intent to steal or otherwise unlawfully 
 obtain the same or any part thereof, shall be deemed guilty of a misde- 
 meanor." The 39 Geo. 3, c. 69, (a local act for improving the port of 
 39 fiq e °' 3 ' -k 011 ^ 011 ?) s - 4, after providing as to the burning, kc, of ships therein 
 mentioned, enacts, « that if any person or persons shall knowingly, wil- 
 fully, or maliciously demolish break down, cut, or destroy any of the 
 works to be made by virtue of this act, or any ship or vessel lying in 
 the said canal, or in any of the said docks, basins, cuts, or other works ; 
 
 (j) See ante, p. 554, note (m). 
 
 (k) Some offences of a similar nature may be inquired of and tried by courts martial by 
 the naval articles of war, sees. 24 and 25, as given in 22 Geo. 2, c. 33. And by the 26th 
 article, " care shall be taken in the conducting and steering of anv of his majesty's ships, 
 that through wilfulness, negligence, or other defaults, no ship be stranded or run upon any 
 rocks or sands, or split or hazarded, upon pain that such as shall be found guilty therein be 
 punished by death, or such other punishment as the offence, by a court-martial, shall be 
 judged to deserve." 
 
 (I) See various provisions of this act as to unlawfully receiving anchors, cables, &c, or 
 goods obtained from ships, ante, p. 270. By sec. 36, the act is not°to extend to Scotland or 
 Ireland ; nor (by sec. 23,) to effect the Cinque Port act, 48 Geo. 3. c. 130, or the Pilot act, 
 48 Geo. 3, c. 104. This statute contains no express provision for the punishment of princi- 
 pals in the second degree and accessories, they are therefore punishable in the manner stated 
 in note (u), ante, p. 448.
 
 CHAP. LIH.] OF DESTROYING AND DAMAGING SHIPS, ETC. 593 
 
 then every such offender, being convicted thereof, shall suffer punish- 
 ment by fine, imprisonment, or transportation, at the discretion of the 
 judge, &c, before whom such offender shall be tried and convicted." 
 And by sec. 105, persons wilfully or maliciously cutting, &c, or in any 
 manner destroying any rope, &c, by which any ship or vessel lying in 
 the said canal, docks, &c, or in any place or places in the river Thames 
 hetween London Bridge and the mouth of the river Lea are moored or 
 fastened, shall forfeit not exceeding 10?. The 47 Geo. 3 sess. 2 c 2 47 Geo. 3. 
 s. 57 (local act,) relates to the damaging, &c, of shipping, or *goods' ® es 5 s : 2 > c " 2 " 
 &c, in Folkstone Harbour. The 1 & 2 Geo. 4, c. 76, relates to the S '*594 
 jurisdiction of the Cinque Ports, and the 6th section contains an en- 1 & 2 Geo. 
 actment making the cutting away, defacing, &c, buoys, &c, a felony 4 > c - 76 * 
 punishable by transportation in words similar to the 1 & 2 Geo 4 c 
 75, s. 11. (m) 
 
 Upon the words " cast away or destroy" it may be mentioned that Words 
 upon the construction of those words in the two statutes, 4 Geo. 1, c. " castawa y, 
 12, and 11 Geo. 1, c. 29, (now repealed) it appears to have been ruled 
 that if a ship were only run aground or stranded upon a rock, and were 
 afterwards got off in a condition capable of being easily refitted, she 
 could not be said to be cast away or destroyed, and that the case was not 
 therefore within either of those statutes. (n\ 
 
 A question has twice arisen, but has not been expressly decided, as As to the 
 to what vessels are included within the word "vessel" in the 7 & 8 Geo. J^word ° f 
 4, c. 30. In the first case the prisoner was indicted for setting fire to a "vessel." 
 barge, and Alderson B., would have reserved the question, if the pri- 
 soner had been convicted, whether a barge was a vessel within the mean- 
 ing of this statute. (o) In the second case the prisoner was indicted for 
 damaging a certain vessel by beating a hole in the bottom of it. The 
 vessel in question was a small pleasure boat, about eighteen feet long, 
 and two men could have carried it, and it was objected that the legisla- 
 ture meant to apply the terms " ship or vessel" only to such vessels as 
 were likely to be underwritten, and not to small boats ; and that in the 
 7 & 8 Geo. 4, c. 29, s 17, where it was meant to include boats, the 
 words were » vessel, barge, or boat," clearly making a distinction be- 
 tween a vessel and a boat. Patteson, J., " That the term vessel would 
 in common parlance include this boat is clear, but whether in this act 
 of parliament it was meant to include such boats is the question." <* I 
 incline to think that this boat is within the clause in the act of parlia- 
 ment ; but as the word vessel must have the same construction in all 
 other acts of parliament, it might lead to inconvenience, and therefore if 
 necessary I will take the opinion of the judges upon it."(p) 
 
 In the same case it was objected that the indictment was bad, because Indict- 
 
 111 cut 
 
 it did not allege that the damage was done " otherwise than by fire j 
 but it was held to be sufficient, as it was alleged to be done by beating 
 a hole in the bottom of the boat.(^) 
 
 (m) Ante, p. 593, and see the 1 & 2 Geo. 4, c. 76, as to other offences committed within 
 this jurisdiction. 
 
 (re) De Londo's case, 1765. 2 East, P. C. c. 22, s. 42, p. 1098. 
 
 (o) Rex v. Smith," 4 C. & P. 569. See this case, ante, p. 506. 
 
 (p) Rex v. Bowyer, b 4 C. & P. 559. Verdict, not guilty. Could a corricle be considered 
 a vessel within this statute? 
 
 (q) Rex v. Bowyer, supra. 
 
 a Eng. Com. Law Reps. xix. 246. b lb. xix. 527.
 
 *595 OF WILFUL OR MALICIOUS DAMAGE, ETC. [BOOK IV 
 
 ^CHAPTER THE FIFTY-FOURTH. 
 
 OF WILFUL OR MALICIOUS DAMAGE TO REAL OR PERSONAL PROPERTY 
 NOT OTHERWISE PROVIDED FOR. 
 
 Persons The 7 & 8 Geo. 4, c. 30, s. 24, enacts, "that if any person shall 
 
 commi r t i tins wilfully or maliciously(a) commit any damage, injury, or spoil to or 
 any proper- upon any real or personal property whatsoever, either of a public or 
 ty, in any p r j va te nature, for which no remedy or punishment is hereinbefore pro- 
 previously vided, every such person being convicted thereof before a justice of the 
 provided p eaee) shall forfeit and pay such sum of money as shall appear to the 
 compelled justice to be a reasonable compensation for the damage, injury, or spoil 
 by a justice so committed, not exceeding the sum of five pounds; which sum of 
 pensation 1 " money shall, in the case of private property, be paid to the party ag- 
 not exceed- grieved, except where such party shall have been examined in proof 
 mg five Q f ^ e g- ence . an( ] i n SUC ] I cas6j or i n the case of property of a pub- 
 \pplica- li c nature, or wherein any public right is concerned, the money shall 
 tion of the be applied in such manner as every penalty imposed by a justice of the 
 awarded P eace under this act is hereinafter directed to be applied ; and if such 
 sum of money, together with costs (if ordered) shall not be paid imme- 
 diately after the conviction, or within such period as the justice shall at 
 the time of the conviction appoint, the justice may commit the offender 
 to the common goal or house of correction, there to be imprisoned only, 
 or to be imprisoned and kept at hard labour as the justice shall think 
 fit, for any term not exceeding two calendar months, unless such sum 
 Proviso, and costs be sooner paid ; provided always, that nothing herein con- 
 tained shall extend to any case where the party trespassing acted under 
 a fair and reasonable supposition that he had a right to do the act com- 
 plained of,(6) nor to any trespass not being wilful and malicious, com- 
 mitted in hunting, fishing, or in the pursuit of game, but that every such 
 trespass shall be punishable in the same manner as before the passing 
 of this act." 
 
 (a) See sec. 25, ante, p. 544. 
 
 (b) It is a question for the magistrates, under all the circumstances, whether the party acted 
 under such fair and reasonable supposition that he had a right to do the act. Reg. v. Dod- 
 son, a 9 Ad. & Ell. 704. 
 
 a Eng. Com. Law Reps, xxxvi. 248.
 
 CHAP. I.] OF PERJURY AND SUBORNATION OF PE2JURY. *o96 
 
 BOOK THE FIFTH. 
 
 OF OFFENCES WHICH MAY AFFECT THE PERSONS OF INDIVIDUALS 
 OR PROPERTY. 
 
 CHAPTER THE FIRST. 
 
 OF PERJURY AND SUBORNATION OF PERJURY. 
 
 Perjury, by the common law, appears to be a wilful false oatb. by Perjury by 
 one who, being lawfully required to depose the truth in any pro- the com - 
 ceeding in a court of justice, swears absolutely in a matter of some 
 consequence to the point in question, whether he be believed or 
 not.(a)[A] 
 
 (a) 1 Hawk. P. C. c. 69, s. 2. 3 Inst. 164. Com. Dig. tit. Justice of Peace, (B). 102. Bac. 
 Ab. tit. Perjury. 
 
 (A] This is an incorrect definition of perjury at common law. The definition in Hawkins, 
 is " a wilful false oath, &c, in any procedure in a course of justice," not in a court of justice. 
 Many perjuries may be committed out of court ; as iu all cases where depositions, affidavits, 
 &c, are taken out of court, and before magistrates. In such cases the perjuries may be 
 properly said to be committed in a course of justice, though not in a court of justice. 
 
 Massachusetts. — The {court "inclined to the opinion" that the} remedy provided by the 
 ninth section of the statute of 1794, c. 65, for the party injured, by an action of the case, 
 against persons summoned as trustees who shall, upon their examinations, knowingly and 
 wilfully swear falsely, does not depend upon a previous conviction of the other party for 
 perjury ; but the two remedies are concurrent and distinct, and one may be pursued in- 
 dependently of the other. 10 Mass. Rep. 223, Forseth v. Shaw. 
 
 In the case of the Commonwealth v. Knight, 12 Mass. Rep. 274, the following points were 
 decided : 1. That in an indictment for perjury, it is not necessary to allege that the witness 
 was summoned to appear at the court, or that the false affirmation was in answer to a spe- 
 cific question. For every person who appears as a witness, and is duly sworn before a com- 
 petent court, on the trial of an issue there depending, is " lawfully required to depose the 
 truth." (These words are made use of in the statute.) 
 
 2. It is sufficient to allege in such indictment, that the perjury was committed in the trir.l 
 of an issue duly joined, without any express allegation that the cause of action was within 
 the jurisdiction of the court. 
 
 3. It is necessary that it should be alleged, or that at least it should appear in the indict- 
 ment; that the facts, respecting which the testimony was given, were material to the issue on 
 trial. If it is not averred in the indictment that the facts concerning which the defendant 
 testified, were material on the trial, the court cannot consider them so, unless they clearly 
 appear to be material from the other facts set forth in the indictment. 12 Mass. Rep. 274. 
 
 A case of perjury was tried at nisiprius'm the county of Hampshire, before Parsons, C. J., 
 in which the perjury alleged to have been committed, was in swearing falsely to the affida- 
 vit before a magistrate, intended to be used before a committee of the House of Representa- 
 tives. There was no order of the house to take the affidavit ; but it was obtained by the 
 party interested in the subject to be inquired into, of his own accord ; and the affidavit was 
 voluntarily given and taken before the magistrate. Upon these facts the Chief Justice rule 1 
 that there could be no legal or technical injury in such a case ; and the defendant was there- 
 upon acquitted. 
 
 Jin Commonwealth v. Alden, 14 Mass. R. 388, it was hold that an indictment for perjury 
 in takingthe poor debtor's oath need not aver that the oath was administered to the defend- 
 ant in the prison, or within the prison yard — as the magistrates have a discretionary power 
 to appoint a suitable place for the administration of the oath, and are not obliged to admin-
 
 596 OF PERJURY AND SUBORNATION OF PERJURY. [BOOK V. 
 
 Suborna- Subornation of perjury by the common law is an offence in procuring 
 
 •' "•i! 1 tu a inan to ta ke a false oath amounting to perjury, who actually takes 
 
 common such oath. But it seems clear that if the person incited to take such 
 
 lavr- an oath, do not actually take it, the person by whom he was so incited 
 
 ister it within the limits of the prison — and a prisoner commits no escape in rendering him- 
 Belf at the place so appointed.} 
 
 Connecticut. — In the case of Chapman v. Gillett, 2 Connecticut Rep. 40, which -was an 
 action of slander, it was decided that "the taking of a false oath, wilfully and corruptly, in 
 any case where the administration of an oath is lawful, is perjury at common law." This 
 was a very interesting case, reserved upon a motion for a new trial for the consideration and 
 advice of the nine judges in the supreme court of errors, — where it was also decided that 
 •• w ords charging a person with having given false evidence under an oath administered by 
 a justice of the peace before a church convened for the purpose of administering discipline 
 among its members are actionable without an averment and proof of special damage." Six 
 of the judges were in favour of the plaintiff, and of the positions above stated; three of the 
 judges were of a contrary opinion. Six of the nine judges gave the reasons of their opin- 
 ions, at large. Much ingenuity and learning are displayed upon both sides of the question ; 
 and as the case is of great importance and some novelty, the perusal of it is recommended 
 to the profession, more particularly in New England, where it has a particular application 
 to the ecclesiastical usages and proceedings in that part of the United States. The argu- 
 ments of the judges are too long to be inserted at large in a note, but the following is an 
 outline of the case, made with a particular view to the nature of perjury in general, as 
 stated, explained and applied in the case cited. 
 
 At the trial below, a verdict was recovered by the plaintiff. The only words proved to 
 have been spoken by the defendant, were words charging the plaintiff with having taken a 
 false oath before a meeting of the members of the church in an ecclesiastical society, acting 
 according to the usages of this state, as an ecclesiastical tribunal for the administration of 
 church discipline. The defendant moved the court to instruct the jury, that the words proved 
 were not in themselves actionable ; but the court instructed the jury that they were action- 
 able per se; and for this misdirection the defendant moved for a new trial. 
 
 In support of the motion, the defendant's counsel stated the question to be, whether a per- 
 son who testifies falsely before an ecclesiastical tribunal, is indictable for perjury ; and they 
 contended, that in order to make a false oath the subject of an indictment for perjury, it 
 must be taken before a tribunal having civil power, and must go to affect the civil rights of 
 the party. 1 Hawk. c. 69, s. 3. They farther argued, that a church in this state has no civil 
 power ; that it is merely a voluntary association of individuals, and that a false oath before 
 a meeting of its members, for discipline, can affect the civil rights of no one. 
 
 It was admitted by the counsel for the plaintiff, that if the taking a false oath before a 
 church meeting cannot be perjury, the words in question were not of themselves actionable ; 
 but they contended that in all cases, in which the law recognizes the administration of an 
 oath, it will make that oath efficacious ; and the taking of a false oath is perjury. That the 
 law recognizes the administration of an oath before an ecclesiastical tribunal is evident from 
 these considerations : — First, it has been the immemorial usage before these respectable tri- 
 bunals, to receive the testimony of witness under oath : — Secondly, an oath, in the case under 
 consideration is necessary to the investigation of truth, the attainment of justice, and the 
 advancement of the best interests of religion. A church is a body, whose existence and 
 powers, as such, are recognized by the laws of the state, and the being " in full communion 
 with the church," is a qualification for voting in a society meeting, equal to real or personal 
 estate to a certain amount. It was also stated, that it had been decided by the superior 
 court and the supreme court of errors in this state, in the case of Lyman v. Wetmore, 
 Supreme Court of Errors, June term, 1T95, that the taking of a false oath before an arbi- 
 tration is perjury. 
 
 In the principal case, the late learned and lamented Chief Justice Swift, delivered his 
 opinion against granting a new trial as follows : — " Christianity is a part of the law of the 
 land. We have no establishment of any denomination of Christians; but all have by law, 
 the power of supporting and conducting public worship, in a manner conformable to their 
 own sentiments. From time immemorial it has been the usage of churches of every denomi- 
 nation to have ecclesiastical tribunals, who are invested with certain powers for their gov- 
 ernment and the administration of discipline among their members. These are necessary, 
 not only for the promotion of religion, but for the peace and well-being of civil society. In 
 the exercise of their powers, these tribunals, by their sentences, can directly affect the 
 spiritual rights of their members, and indirectly their civil rights. They may be said to be 
 courts where justice is judiciously administered. In the discharge of their duties, it is ne- 
 cessary that they should investigate the truth of facts by the testimony of witnesses. To 
 enable them to do this, it is essential that they should have the power to examine witnesses, 
 upon oath ; and it is understood to be the general practice for magistrates to administer 
 oaths in such cases.
 
 CHAP. I.] OF PERJURY AND SUBORNATION OF PERJURY. 596 
 
 is not guilty of subornation of perjury, yet it is certain that he is liable 
 to be punished, not only by fine, but also by infamous corporal punish- 
 ment.^) 
 
 (b) 1 Hawk. P. C. c. 69, s. 10. Bac. Ab. tit. Perjury, and the authorities there cited. 
 
 " Here, then, are well known tribunals of ecclesiastical jurisdiction, who possess certain 
 powers by common consent and immemorial usage, sanctioned by law, in the exercise of 
 which it is necessary and proper for them to inquire into the truth of facts by testimony, and 
 before whom it is necessary and proper for the civil magistrate to administer oaths. It is a 
 sound principle, that where an oath can lawfully be administered, there false swearing shall 
 be deemed perjury. There can be no reason to confine it to those tribunals only, whose de- 
 cisions can affect civil rights ; other rights may be equally important and equally deserving 
 of protection. None will say that it is unlawful or improper to administer an oath before 
 an ecclesiastical tribunal ; for otherwise witnesses will not be under the obligations of an 
 oath to speak the truth, at a time when their testimony may deeply affect the rights and the 
 character of individuals. It appears to me, that justice and policy require, that these tri- 
 bunals, acting within their proper jurisdiction, should have the same powers as civil courts 
 to investigate the truth ; that the parties who may be subjected to their discipline, should 
 be protected against false accusations by the punishment of witnesses who swear falsely ; 
 and that witnesses who are falsely charged with perjury in such cases, should have the means 
 of defending their character by an action against the slanderer. To deny this, would be to 
 encourage perjury and slander. No man could consider his character safe, as a party or 
 witness before such tribunals ; and it would tend greatly to lessen their respectability and 
 usefulness to have it published to the world, that they are viewed in so unimportant a light 
 by courts of law that perjury might be committed before them with impunity and their wit- 
 nesses slandered without redress. 
 
 " But it is said, that we are encroaching on the province of the legislature ; that we are 
 making, not expounding the law; and are adding a new offence to the criminal code; and 
 a new head in the chapter of actionable words. But this is no innovation : it is only ex- 
 tending and applying principles already known, to new and analogous cases ; a power which 
 has ever been exercised by judicial tribunals ; and which has produced the greatest improve- 
 ments in jurisprudence. What would have been our condition, if judges at the outset, had 
 been checked and restrained, by this timid doctrine, from the exercise of such an important 
 power! We should yet have been in the infancy of black letter learning, and causes might 
 have been decided by the ordeal, or wager of battle. 
 
 " It is a first principle, founded in the nature and fitness of things, that swearing falsely, 
 when under an oath, lawfully administered, is a crime. At first, perjury was confined to 
 false swearing in a court of record ; it was then extended to courts not of record. It has 
 been decided in this court, that to charge a man with perjury before arbitrators, is actionablo 
 slander ; and now by analogy, we extend the same principle to ecclesiastical tribunals. 
 Here no new principle is introduced. We only apply a well known principle to similar 
 cases. The same objection might have been made to extending it to arbitrators ; but no 
 one will now question the propriety and correctness of that decision ; and I have no doubt 
 that the doctrine now promulgated, will meet with the same approbation. 
 
 " I would not advise a new trial." 
 
 The two judges, Edmond and Goddard, who dissented from the majority, and were in 
 favour of a new trial, gave their reasons at large, which were in substance as follows : " If 
 to take a false oath before a church meeting is an indictable offence, it must be on the 
 ground that it is perjury at common law, or perjury by the state of Connecticut." 1 Stat. 
 Conn. tit. 12T. 
 
 " That it cannot be perjury within the statute must be admitted, unless it can be shown, 
 that a church meeting is, in legal contemplation, not only a court with judicial powers, but 
 a court of record. The statute extends to no other perjury than that which may be com- 
 mitted by a witness in giving ' his deposition in any court of record or upon examination,' 
 without the unlawful procurement of others ; or who, by the unlawful and corrupt procure- 
 ment of others, shall ' commit wilful and corrupt perjury in any matter or cause whatever, 
 depending, or that shall be depending in suit and variance, by any writ, action, bill, com- 
 plaint or information in any court of record.' That every church meeting is a court of re- 
 cord, they were not prepared to say. The legislature, and ' they only,' have power 'to in- 
 stitute and style judicatories and officers as they shall see necessary, for tho government of 
 the State.' 1 Stat. Conn. tit. 42, c. 1, s. 4. This power has been exercised, as far as has 
 hitherto been deemed expedient. But in the distribution of the power thus delegated, we 
 find no mention of a church or church meeting, as constituting a court or judicial tribunal, 
 with authority to decide between parties, or among their own members any matter of con- 
 troversy, either in relation to their civil rights, their doctrines or their discipline. 
 
 " Of the wisdom or policy of such an omission it is not our province to decide. The fact, 
 however, evinces a total destitution in church meetings, of all the powers incident to courts
 
 596 OF PERJURY AND SUBORNATION OF PERJURY. [BOOK V. 
 
 Inciting a witness to give particular evidence, where the inciter does 
 not know whether it is true or false, is a high misdemeanor, especially 
 if the inciter being attorney on one side gets himself employed for that 
 
 or officers intrusted with the execution of the laws ; and at the same time furnishes evi- 
 dence of the delicate nature of the subject, and the expediency of legislative interference. 
 
 " If, then, in the distribution of judicial powers by the General Court or Assembly, 
 churches, or church meetings, have received no share, or have been vested with no author- 
 ity judicially to decide any question of law, or matter of controversy, or to do any official 
 act, required to be done, and necessary to the due execution of the laws, they must be con- 
 sidered as destitute of every requisite essential to a court. Is follows, that a false oath vol- 
 untarily taken, (and no other than a voluntary oath can be taken before them,) although a 
 gross immorality, is no more the crime of perjury punishable by the statute, than a false 
 oath voluntarily taken in any other place, before any number of persons associated by 
 covenant or agreement to pursue any measure for their common benefit or the general 
 good. 
 
 " It remains to be inquired, whether the taking a false oath before a church meeting, is 
 perjury at common law. No definition of perjury by the common law, will be found so 
 long, or so broad, as to embrace, or even countenance the position, that to take a false oath 
 before a church meeting (such as has been described) is perjury in any sense of the word, 
 recognized by the law." 
 
 The definitions of perjury, from 2 Hawk. 83, and Bla. Com. vol. iv., p. 136, are then 
 stated, and the following remarks from Blackstone, quoted. " The law takes no notice of 
 any perjury, but such as is committed in some court of justice, having power to administer 
 an oath ; or before some magistrate or proper officer, invested with a similar authority, in 
 some proceeding relative to a civil suit, or a criminal prosecution ; for it esteems all others 
 unnecessary at least, and therefore will not punish the breach of them. 
 
 " But recurrence to authorities is unnecessary. No precedent has, or can be shown in 
 support of the proposition. The case of Lyman v. Wetmore, does not bear on the question. 
 There is no analogy between the powers and duties of arbitrators, and church meetings. 
 The former are vested with powers to determine civil rights, and are sworn ' faithfully to 
 administer justice between the parties in the case submitted, or referred according to law.' 
 1 Stat. Conn. tit. 122, c. 3, s. 6. 
 
 "Not so with the latter. They have no uniform usage. They do not act under the com- 
 mon law rules in relation to the admission and examination of witnesses, nor consider them 
 as obligatory ; they are bound by no oath prescribed by law in relation to their proceed- 
 ings ; nor are they trusted, in any respect, as a court of law in the administration of jus- 
 tice." (A case is here stated in a note, in which a question being put to an ecclesiastical 
 counsel, whether in the admission of testimony, the counsel were governed by the rules of 
 law, or to take the scripture for their rule, it was resolved that the Word of God was the 
 rule by which they were to be governed.) 
 
 " But it is said church members have civil privileges, which others do not possess. When 
 of full age, they may vote at society meetings, (tit. 151, c. 1, s. 7, and tit. 144, c. 1, s. 2.) 
 By excommunication, a church meeting may deprive them of this right. But it is to be ob- 
 served that if after excommunication, a question should arise, whether the right to vote 
 continued, upon the ground of a former right or qualification in point of property before 
 admission and after excommunication, the court of law, and not a church meeting must 
 decide it. 
 
 " From these considerations, it is inferred, that to take a false oath before a church meet- 
 ing, though an act highly immoral in itself, does not amount to the crime of perjury within 
 the statute, or by the common law, is not an indictable offence, and to charge a person with 
 it, cannot expose the person charged to a criminal prosecution or punishment." 
 
 Upon the same side of the argument, it was added (among other important matter) by 
 Goddard, J., that according to Coke, 3 Inst. p. 165, " that no old oath can be altered, or 
 new oath raised without an act of parliament : or any oath administered by any that hath 
 not allowance by the common law. or by act of parliament;" and hence it was, that 
 the commissioners concerning policies of insurance, would not examine upon oath, be- 
 cause they had no warrant, either by the common law, or by any act of parliament, and 
 therefore it was enacted that it should be lawful for the said commission to examine upon 
 oath any witnesses. 
 
 Christian in his notes to Blackstone's Com. vol. iv., p. 137, says, " Where an oath is re- 
 quired by an act of parliament, but not in a judicial proceeding, the breach of that oath 
 does not seem to amount to perjury, unless the statute enacts, that such oath, when false, 
 shall be perjury, or shall subject the offender to the penalties of perjury." The same learned 
 judge further adds — "It is a part of the definition of perjury, that the testimony should be 
 material to the issue or cause in question." " If a man should be prosecuted for perjury 
 before an ecclesiastical tribunal, their rules of evidence and modes of proceeding arc so dif- 
 ferent from those which prevail in a judicial tribunal, that judges and jurors might bo 
 much puzzled to ascertain either what was the issue, or what testimony was material to
 
 CHAP. I.] OF PERJURY AND S UBORNATION OF PERJURY. 596 
 
 purpose by the other side ; at least, if the evidence is given accordingly. 
 The indictment charged that the defendant, an attorney, being retained 
 to defend Wood against a charge of picking Lewis's pocket, deceitfully 
 
 support it; and having no rules of evidence by which they would judge of the materiality 
 of the testimony, resort must be had to the members of the church to prove what they 
 judged material." J 
 
 New York.— In the case of Jackson v. Humphrey, 1 Johns. Rep. 499, it was decided, that 
 an oath administered in Canada, by a late judge of a county in the state of New York was 
 extra judicial and of no validity. That a judge has no authority to administer an oath out 
 of the jurisdiction of the state, and that the witness, in such case, could not be prosecuted 
 for perjury. 
 
 In an action of slander for charging the plaintiff with having sworn falsely and committed 
 perjury in swearing out an attachment, &c, before a justice of the peace, it was held, that 
 as the statute authorized the justice to issue the attachment on satisfactory proof it was left 
 to his discretion to decide on the proof, and when he took the oath of the party ,'which was 
 not legal evidence, this was held an error of judgment, and not an excess of jurisdiction, and 
 the proceeding was therefore erroneous only and not void; and perjury may be assigned in 
 an oath erroneously taken, especially while the proceedings remain unreversed. l(fjohns. 
 Rep. 169, Van Steenbergh v. Eortz. Spencer, J. contra. 
 {See Revised Statutes, vol. i., 149, 199. Vol. ii., 681.} 
 
 Pennsylvania. — In order to constitute perjury, there must be "lawful oath administered 
 in some judicial proceeding." False swearing in a voluntary affidavit made before a justice 
 of the peace before whom no cause is depending, is not perjury, nor can it be punished by 
 indictment, although it is a very immoral and disgraceful transaction. Per Tilghman, C. J., 
 in Shaffer v. Kintzer, 1 Binn. Rep. 543. 
 
 A man swears wilfully and deliberately to a matter that he rashly believes, but which he 
 has no probable cause for believing, and which is false, is guilty of perjury. 6 Binn. Rep. 
 249, the Commonwealth v. Cornish. In this case, Tilghman, C. J., says, "It is contended 
 that there can be no perjury where a man believes what he swears. But it appears to me 
 that a position so extensive cannot be supported. He ought at least to have some probable 
 cause for belief, unless the oath be taken under such circumstances of haste or surprise, as 
 afford no opportunity of deliberation. If a man undertakes to swear to a matter of which 
 he has no knowledge, he is perjured, although what he has sworn turns out to be true. 
 3 Inst. 166. Where a man was adjudged guilty of perjury for swearing to the value of 
 goods which he never saw or knew, although his valuation was not incorrect. There is 
 corruption in undertaking to SM r ear positively to a thing of which you have little knowledge, 
 and which you may know if you will take the trouble to inquire. And when there is this 
 kind of corruption the law implies malice. It is objected, that it may be of dangerous con- 
 sequence, if witnesses are convicted for swearing to what they believe to be true. On the 
 other hand, it will be more dangerous, if they are to escape punishment who rashly and ob- 
 stinately persist in a false oath, in a matter on which they will not take the pains to inform 
 themselves. That the oath of Cornish (the defendant,) was absolute and false, will not be 
 denied. It was wilful, also, according to the legal import of that word, by which it is only 
 understood that the oath is taken with some degree of deliberation, and not merely through 
 surprise or inadvertency, or a mistake of the true nature of the question." (3 Bac. Abr. 814, 
 A.) "Now here was great deliberation, or at least room for deliberation : for there was an 
 interval of two days for the first and second oath ; and the first was taken two days after 
 the affray in which the defendant was shot. In cases where the oath was clearly false, I 
 know no rule more reasonable than to leave it to the jury to decide, whether there was 
 any probable ground for mistake." And in the same case, per Brackenridge, J., " The ques- 
 tion is, can a man be guilty of perjury who believes what he says to be the truth? Pro- 
 bable cause or reasonable ground of belief, in a prosecution in a course of justice, will 
 exempt from damages. The want of probable cause or reasonable ground, pari ratimic, will 
 subject to the conviction of perjury. For the malice is an inference of law, from the want 
 of probable cause or reasonable ground. I am not to be at the mercy of the weakness of a 
 man; and the law will protect against the weakness as well as against the actual wicked- 
 ness of him, who attacks my reputation by an oath in a court of justice. It is the same 
 thing to me whether it was his weakness or actual malice and wickedness, that led him to 
 take the oath. 
 
 "It interests the public that rash and unadvised swearing a crime upon another, should 
 be restrained; and how can this be done if the only inquiry shall be, whether the weak man 
 really thought which he swore was true. It ought to be at a man's risk to swear positively 
 under circumstances where he ought to have mistrusted his vision, and could not be certain 
 as to what he undertook to say he positively saw." 
 
 In the case, Respublica v. Robert Newell, 3 Yeates's Reports. 407, it was decided, that in 
 an indictment for perjury in answering interrogatories on a rule to show cause why an at- 
 tachment should not issue for a contempt, &c, in a civil suit, the intereogatories may be 
 entitled as between the state and the party, and the perjury be assigned in the answers.
 
 596 OF PERJURY AND SUBORNATION OF PERJURY. [BOOK V. 
 
 procured himself to be employed by Lewis, and persuaded Lewis to 
 swear before the grand jury that he did not know who picked his 
 pocket, which he did, and no bill was returned. An objection was 
 
 thereto, before the attachment actually issued. It was also decided that such indictment is 
 sufficiently certain, by averring that the party was sworn in due form of law. After a con- 
 viction In this case, the following reasons were filed in arrest of judgment: — 1. That the affi- 
 davit on which the perjury is assigned, is stated to be on an interrogatory filed between the 
 Commonwealth and the defendant, on the part of the Commonwealth, without stating any 
 proceeding on the part of the Commonwealth and the defendant, in which the said affidavit 
 would be material. 2. For that it is not stated that the defendant took an oath on the Holy 
 Gospel of God, or in the presence of Almighty God by uplifted hand. 3. For that in the 
 assignment of perjury it is not stated that he did falsely, corruptly, and voluntarily swear. 
 4. That the said indictment is insensible, &c. The opinion of the court was delivered by 
 Smith, J., in which these objections are all overruled, and the motion in arrest of judgment 
 denied. The opinion contains a statement of the reasons and authorities upon which it is 
 founded, to which the reader must be referred. 
 
 The third reason in arrest of judgment was considered as most material, and the learned 
 judge states at large the ground and authorities upon which it was overruled. He first goes 
 into a comparison between the English statute of 5 Eliz. c. 9, and the statute of Pennsylva- 
 nia ; and then says, " the law is perfectly ascertained, that one may be guilty of perjury at 
 common law, in respect of a false oath taken by him in his own cause, in answer to ques- 
 tions put to him in a court of law having power to purge him upon oath, concerning his 
 knowledge of the matters in dispute." 
 
 In Ofncium Clerici Pacis, fol. 87, there is an indictment resembling the present case. Again 
 in West's Symb. 119, sec. 160, a similar form occurs, and in the same book and page, sec. 
 161, and in p. 138, sec. 241. The result is, that at common law the forms of indictments 
 are not uniformly the same; but the words falsely, corruptly, and wilfully, as applied ad- 
 jectively or adverbially to the act of swearing, are mere expletives to swell the sentence, in 
 the language of Lord Hardwicke, 1 Atk. 40. We find no adjudged case or dictum in the 
 books, that such words are appropriate terms of art, descriptive of the crime of perjury, as 
 murdravit in murder, &c. On the contrary, we find it laid down by the judges, that an in- 
 dictment for perjury at common law does not require so much certainty as on the statute, 
 and that it need not be in a court of record ; or matter material to the issue. 5 Mod. 348. 
 1 Sid. 106. In Cox's case, (Leach, 69,) it was agreed by ten judges unanimously, that the 
 word wilfully was not essentially necessary in an indictment for perjury at common law, 
 though it was essential in an indictment for perjury on the statute of 5 Eliz. c. 9, because 
 the term wilful in the statute, is a material description of the offence ; still it must appear 
 by the indictment that the oath was wilfully false. The indictment in this case, in its con- 
 clusion, negatived by express averments, the truth of the oath, &c, viz., " that the said R. 
 N. the day and year aforesaid, at C. aforesaid, by his own act and consent, and of his own 
 most wicked and corrupt mind and disposition, in manner aforesaid, did knowingly, falsely, 
 wickedly, maliciously, and corruptly commit wilful and corrupt perjury," &c, though it was 
 not averred that the defendant did falsely, corruptly and voluntarily swear, &c. 
 
 Two defendants cannot be joined in an indictment for perjury. Respublica v. Goss and 
 al., 2 Yeates's Rep. 479, — adjudged 2 Str. 921. 2 Burr. 985, — and on an indictment for 
 perjury on a trial at nisi prius the postea must be produced in evidence. Respublica v. Goss 
 and al., 2 Yeates, 479. {See post, 549.} 
 
 In the case of Kramer v. The Commonwealth, in error, it was decided that the courts of 
 Quarter Sessions for this state, have jurisdiction of perjury. Also, that persons convicted of 
 perjury are liable to fine and imprisonment at hard labour, but not to any particular kind 
 of treatment as to diet or discipline. A sentence, therefore, which adjudges that the con- 
 vict shall be confined, fed, clothed, and treated as the law directs, is erroneous. 3 Binn. 
 Rep. 577. 
 
 United States.— By st. 1790, c. 36, \ 18, (1 U. S. Laws, 87, Story's ed.) wilful and cor- 
 rupt perjury, and the procuring any person to commit corrupt and wilful perjury, on oath 
 or affirmation in any suit, controversy, matter or cause, depending in any of the courts of 
 the U. States, or in any deposition taken pursuant to the laws of the U. States, are punish- 
 able by imprisonment not exceeding three years, and fine not exceeding eight hundred dol- 
 lars, and standing in the pillory for one hour, and future incompetency to give testimony in 
 any of the courts of the U. States, until judgment is reversed. 
 
 The 19th and 20th sections provide that it shall be sufficient to set forth, in an indict- 
 ment, the substance of the offence of perjury or subornation. See post, 536. 
 
 It was decided, in an anonymous case in 1 Wash. C. C. Rep. 84, that this section relates 
 only to perjuries committed in judicial proceedings in the courts of the United States, and 
 does not extend to cases of perjury in proceedings under the bankrupt act, and other pro- 
 ceedings under the authority of the United States. 
 
 It seems that perjury committed on a hearing on a criminal complaint before a distri 
 judge is not within \ 18 of this statute. 1 Gallison, 497, U. States v. Clark.
 
 CHAP. I.] OF PERJURY AND SUBORNATION OF PERJURY. 596 
 
 made that Lewis's evidence was not stated to have been false • but 
 upon a case reserved, the judges thought it unnecessary, as the defend- 
 ant's crime was the same, unless he knew it to be true, and that he 
 should have proved. (c) 
 
 *The false oath must be wilful, and taken with some degree of delibc- *597 
 ration,f for if upon the whole circumstances of the case it shall appear The false 
 probable that it was owing rather to the weakness than perverseness of bf wHfuf 
 the party, as where it was occasioned by surprise, or inadvertency, or and taken 
 a mistake of the true state of the question, it cannot but be hard to de* ree^ 8 
 make it amount to voluntary and corrupt perjury, which is of all crimes delibera- 
 whatsoever the most infamous and detestable. (d) tion " 
 
 It has been said that no oath will amount to perjury, unless it be A man may 
 sworn absolutely and directly, and therefore, that he who swears a thino- be indi . cted 
 according as he thinks, remembers, or believes, cannot, in respect of i^s wearing- 
 such an oath, be found guilty of perjury. (e)f But De Grey, Ld. C. J., 
 
 (c) Rex v. Edwards, East. T. 1764, ME. Bayley, J. And as to dissuading witnesses from 
 giving evidence, see vol. 1, p. 182. 
 
 (d) 1 Hawk. P. C. c. 69, s. 2. 
 
 (e) 3 Inst. 166. 
 
 By st. 1825, c. 276, \ 13, (3 U. S. Laws, 2002, Story's ed.) « if any person, in any case, 
 matter, hearing or other proceeding, when an oath or affirmation shall be required to be 
 taken or administered under or by any law or laws of the United States, shall, upon the 
 taking of such oath or affirmation, knowingly and wilfully swear or affirm falsely, every 
 person, so offending, shall be deemed guilty of perjury, and shall, on conviction thereof, be 
 punished by fine not exceeding two thousand dollars, and imprisonment and confinement to 
 hard labour not exceeding five years." The same punishment is provided for the intentional 
 procuring of any such perjury to be committed. 
 
 An indictment for perjury cannot be sustained on the 7th and 9th sections of st. 1812, c. 
 32, (2 U. S. Laws, 1353 — 4 Story's ed.) granting a bounty to vessels engaged in the fisheries, 
 unless the certificate required by \ 7 be sworn to by the same person who signs the certifi- 
 cate. If the owner signs the certificate and the agent swears to it, the case is not within 
 the statute. 2 Mason, 69, U. States v. Kendrick. 
 
 On an indictment for perjury, the day on which the offence was committed must be pre- 
 cisely stated. U. States v. Bowman, 2 Wash. C. C. Rep. 228. 
 
 Perjury in cases under the ship-registry act, — see st. 1792, c. 45, § 27, (1 U. S.Laws, 281, 
 Story's ed.) — in cases before committees of Congress, sts. 1798, c. 52, and 1817, c. 183, (1 
 U S. Laws, 499, and 3 ib. 1618,) — in cases of poor imprisoned debtors, st. 1798, c. 66, (1 
 U. S. Laws, 506) — in cases in custom-house, st. 1799, c. 128, § 88, (U. S. Laws, 653) — in 
 cases of accounts of public expenditures at the treasury, sts. 1817, c. 218, \ 12, and 1823, 
 c. 165, (3 U. S. Laws, 1632, 1917,) in cases of elections of directors of the bank of U. States, 
 St. 1819, c. 196, § 3, (3 U. S. Laws, 1737,) — in cases respecting pensions, st. 1820, c. 51, 
 \ 2, (3 U. S. Laws, 1779.)} 
 
 In U. States v. Passmore, 4 Dallas, 372,— {1 Wash. C. C. Rep. 84, S. C.} it was decided 
 that the repeal of the Bankrupt Act was a bar to a prosecution for perjury before the com- 
 missioners, though committed previous to the passing of the repealing act. — {Indeed, it is a 
 common learning that an offence cannot be prosecuted after the statute which created it is 
 repealed, or has expired by its own limitation, unless there is a provision therefor in the 
 repealing or temporary act. See 3 Dallas, 378, Hollingsworth and al. v. Virginia. 1 Bin- 
 ney, 601, Commonwealth v. Duane. 3 Burr. 1456. 1 Bl. Rep. 452. 7 Wheat. 551, The 
 Irresistible.} 
 
 ■j- \_Acc. State v. Cochran, 1 Bailey, 50.] 
 
 j [If a person know that a fact exist, but state on oath, knowingly and intentionally to 
 deceive and mislead, that if the fact is so he docs not know it, he will be guilty of perjury, 
 and it will be equivalent to swearing that the fact does not exist. Wilson v. Nations, 5 Ver- 
 ger, 211. 
 
 When the affidavit upon which the charge of perjury is founded, merely states the belief 
 of the affiant, that a larceny had been committed, the assignment of the perjury must nega- 
 tive the words of the affidavit, and it is not sufficient to allege generally that the per -un- 
 charged committed not the larceny ; it is necessary, when the defendant onlj states his l>e- 
 lief, to aver that the fact was otherwise, and that the defendant knew the contrary of w hut 
 he swore. The State v. Lea, 2 Alabama, 002. 
 i J; Ar indictment for perjury cannot be maintained when the Supposed perjury depends upon 
 
 e instruction of a deed. The State v.Woolverton, 8 Black, p. 452.]
 
 507 OF PERJURY AND SUBORNATION OF PERJURY. £bOOE V. 
 
 that he bo- appears to have laid down a different doctrine. (/) And Lord Mans- 
 '"T! tact field C. J., is stated to have said, "It is certainly true that a man may 
 
 tu be true ' ' » ■» 
 
 be indicted for perjury in swearing that he believes a fact to be true 
 which he must know to be false. "(g) It is further said that, upon this 
 question being agitated in the Court of Common Pleas, all the judges 
 were unanimous that belief was to be considered as an absolute term, 
 and that an indictment might be supported upon such a statement. (h) 
 But it has been holden that perjury cannot be assigned upon an asser- 
 tion, the correctness of which depends upon the construction of a 
 deed.(i')f 
 
 The important requisites in a case of perjury appear to be these : the 
 false oath must be taken in a judicial 'proceeding, before a competent 
 jurisdiction, and it must be material to the question depending .(k) 
 The oath With respect to the falsity of the oath it should be observed, that it 
 fUse 6 ^as Deen considered not to be material whether the fact, which is sworn, 
 be in itself true or false ; for, howsoever the thing sworn may happen 
 to prove agreeable to the truth, yet, if it were not known to be so by 
 him who swears to it, his offence is altogether as great as if it had been 
 false, inasmuch as he wilfully swears that he knows a thing to be true 
 which at the same time he knows nothing of, and impudently endea- 
 vours to induce those before whom he swears to proceed upon the credit 
 of a deposition which any stranger might make as well as he.(l) 
 The oath The oath must be taken either in a judicial proceeding, or in some 
 must be tber public proceeding of the like nature, wherein the king's honour 
 judicial or interest are concerned ; as, before commissioners appointed by the 
 proceed- king to inquire of the forfeitures of his tenants, or of defective titles 
 wanting the supply of the king's patents. But it is not material whe- 
 ther the court, in which a false oath is taken, be a court of record or 
 not, or whether it be a court of common law or a court of equity, or 
 civil law, &c, or whether the oath be taken in the face of the court, or 
 *598 0u t of it before persons ^authorized to examine a matter depending in it, 
 as, before the sheriff on a writ of inquiry, &c, or whether it be taken 
 in relation to the merits of a cause, or in a collateral matter, as, where 
 one who offers himself to be bail for another, swears that his substance 
 is greater than it is.fmYj; But neither a false oath in a private matter, 
 as in making a bargain, &c, nor the breach of a promissory oath whe- 
 ther public or private, are punishable as perjury.(n) 
 Affidavit of In a case where perjury was assigned upon an affidavit of an attor- 
 an a orney ^ ^ £j our t f King's Bench, made in answer to a charge exhibited 
 
 in answer . . . . . 
 
 to an appli- against him in a summary way, for having in his possession blank 
 cation pieces of paper with affidavit stamps, and the signatures of a master 
 
 (f) Miller's case, 3 Wils. 427. 22 Bla. Rep. 881. (g) Pedley's case, 1 Leach, 325. 
 
 (h) Anon. C. P. Mich. T. 1780. 1 Hawk. P. C. c. 69, s. 7, note (a), p. 88, (ed. 1795.) 
 
 \i) Rex v. Crespigny, cor. Kenyon, C. J. 1 Esp. 280. 
 
 (k) By Lord Mansfield, C. J., in Rex v. Aylett, 1 T. R. 69. 
 
 (I) 1 Hawk. P. C. c. 69, s. 6. Rex v. Edwards, cor. Adams, B., Shrewsbury Lent. Ass. 
 1764 ; and subsequently considered of by the judges, MS. And see per Lawrence, J., in 
 Rex v. Mawbey and others, 6 T. R. 619. 
 
 (m) 1 Hawk. P. C. c. 69, s. 3. Bac. Abr. tit. Perjury, (A). (n) Id. ibid. 
 
 | [So where the witness said, " he thought." Reg. v. Schlcsinger, 10 Q. B. 670. Eng. C. 
 L. lix. 669. 
 
 \ [If a State magistrate administer an oath under the act of Congress expressly giving 
 him the power to do so, it would be a lawful oath by one having competent authority ; as 
 much so as if he had been specially appointed a commissioner under a law of Congress for 
 that purpose. United States v. Bailey, 9 Peters's Rep. 238.]
 
 CHAP. I.] OF PERJURY AT COMMON LAW. 598 
 
 extraordinary in Chancery and another person at the bottom of the against 
 papers, an objection was taken in arrest of judgment that the indict- him< 
 ment did not show that the affidavit of the defendant was made in any 
 legal proceeding. It was urged that the court had no right to call on 
 the defendant summarily to answer any complaint against him merely 
 because he was an attorney, unless in a case touching the defendant's 
 office as an attorney, in his conduct towards some of the suitors of the 
 court, or for a breach or contempt of some rule or order of the court 
 or for some matter touching the proceedings or process of the court, 
 none of which were stated ; or, if the paper found in the defendant's 
 custody could have been the object of a summary inquiry, (not havin^ 
 been used or attempted so to be, nor having a proper stamp,) it could 
 only have been in the Court of Chancery, where the paper could have 
 been used, if at all, and not in the Court of King's Bench, wherefore 
 all the proceedings respecting it were coram non judice, and could not 
 be the subject of an indictment fc: perjury. But this objection was 
 afterwards abandoned. To) 
 
 It has been doubted, whether a false oath taken in Doctors' Commons, Oath to 
 for the purpose of obtaining a marriage license, amounts to perjury.(j9)^™^™g 
 And the same doubt was entertained in a subsequent case, where the licenser 
 defendant was indicted for perjury in an affidavit in Doctors' Commons, 
 in order to obtain a license to marry one C. Hill, spinster, to which he 
 swore that he knew no lawful impediment, whereas in truth and in fact 
 he knew she was the wife of another man.(j) And ft has been lately 
 decided that a false oath before a surrogate, taken in order to procure a 
 marriage license, will not support a prosecution for perjury; and, fur- 
 ther, that if the indictment only charges the taking the false oath with- 
 out stating that it was for the purpose of procuring a license, or that a 
 license was procured thereby, the party cannot be punished thereupon 
 as for a misdemeanor. The indictment stated that the prisoner, being 
 minded to procure a marriage between himself and *A. B., went before *599 
 a surrogate, and was sworn to an affidavit in writing, that the said A. 
 B. had been residing four weeks in the parish of S., whereas she had 
 not, and so had committed perjury; and the indictment had all apt 
 allegations of an indictment for perjury. But a case being reserved upon 
 the question whether on such an affidavit the party could be prosecuted 
 for perjury, and if not, whether upon this indictment any offence was 
 charged, the judges were unanimous that upon an oath before a surro- 
 gate, perjury could not be assigned; and that as this indictment did not 
 charge that the defendant took the oath to procure a license, or that he 
 did procure one, no punishment could be inflicted, and he was therefore 
 pardoned.(r) It appears, however, from this case that if the purpose of 
 such an oath is to obtain a license, and the license is obtained, and 
 
 (o) Rex v. Crossley, 7 T. R. 315. 
 
 \p) Alexander's case, 0. B. 1767. 1 Leach, 63. The point was admitted to the considera- 
 tion of the twelve judges, and several times agitated; but the result was not communicated, 
 as the prisoner died in Newgate. 
 
 (q) Woodman's case, 0. B. 1768. 1 Leach, 64, note (a). The point appears to have been 
 submitted also in this case to the consideration of the twelve judges ; but their opinion was 
 not publicly communicated. In 3 Chit. Crim. L. 713, a precedent is given of an information 
 by the attorney-general for a misdemeanor in procuring a marriage with a minor, by false 
 allegations ; and in the note (a), it is said, " It seems doubtful whether an indictment for 
 perjury could have been supported in this case ; but it seems most probable that it might." 
 And 1 Leach, 63, is referred to. 
 
 (r) Rex v. Foster, East. T. 1821, MS. Bayley, J., and Russ. & Ry. 459.
 
 599 OF PERJURY AT COMMON LAW. [BOOK V. 
 
 marriage had, the party may be indicted as for a misdemeanor. The 
 nature of the oath at present required to be taken before the surrogate 
 is described in the 4 Geo. 4, c. 76, s. 14, and by section 23 of that 
 statute, when a marriage has been effected between parties under age, 
 contrary to the act, by means of a false oath or fraud, certain prooceed- 
 ings are given by which the guilty party may be made to forfeit all 
 property accruing from the marriage. 
 
 As a suit will be abated by the death of a co-plaintiff, unless the 
 death be suggested according to the 8 & 9 Wm. 3, c. 11, s. 6, it has 
 been ruled that if a co-plaintiff die, after issue joined, a trial without 
 such suggestion on the record would be extra-judicial, and that no per- 
 jury could be assigned upon any false evidence given at such trial. (s) 
 Audit must The oath must be taken before a competent jurisdiction, that is before 
 before a some person or persons lawfully authorized to administer it. So that a 
 competent false oath taken in a court of requests, in a matter concerning lands, 
 tion S 1C ~ ^as been holden not to be indictable, that court having no jurisdiction 
 in such cases. Mf And it seems clear, that no oath whatsoever taken 
 before persons acting merely in a private capacity, or before those who 
 take upon them to administer oaths of a public nature, without legal 
 authority for their so doing, or before those who are legally authorized 
 to administer some kinds of oaths, but not those which happen to be 
 taken before them, or even before those who take upon them to adminis- 
 ter justice by virtue of an authority seemingly colourable, but in truth 
 unwarrantable and merely void, can ever amount to perjuries in the eye 
 of the law, because they are of no manner of force, but are altogether 
 idle. (if) But a false oath taken before commissioners, whose commis- 
 sion at the time is in strictness determined by the demise of the king, 
 is perjury, if taken before such time as the commissioners had notice of 
 
 (s) Rexu. Cohen, a 1 Stark. R. 511. (t) Buxton v. Gouch, 3 Salk. 269. 
 
 (w) 1 Hawk. P. C. c. 69, s. 4, and the authorities there cited; and 4 Bla. Com. 137, where 
 it is said, " it is much to be questioned how far any magistrate is justifiable in taking a vol- 
 untary affidavit, in any extra-judicial matter, as is now to frequent upon every petty occa- 
 sion, since it is more than possible that by such idle oaths a man may frequently in foro 
 conscientise incur the guilt, and at the same time evade the temporal penalties of perjury." 
 See the 5 & 6 Wm. 4, c. 62, s. 13, post, p. 617. 
 
 f {Enough must be shown to give the tribunal jurisdiction: On a submission by bond to 
 arbitrators, and perjury assigned in an oath before them, the bonds must be produced. Per 
 Savage, C. J., 9 Cowen, 30, Bullock v. Koon. In South Carolina, arbitrators have no au- 
 thority to administer an oath, and a person cannot be indicted for taking a false oath, before 
 them. 3 McCord, 308, State v. McCroskey. But perjury may be assigned on an oath ad- 
 ministered by a justice of the peace, on an investigation of a matter submitted to arbitrators. 
 4 ib. 165, State v. Stephenson. 
 
 See also 1 Virginia Cases, 181, 265, Commonwealths. Calvert. 2 ib. 30, Commonwealth 
 v. Conner. 
 
 Where, on reference of a cause by a judge's order, the witnesses were directed to be sworn 
 before a judge, or "before a commissioner duly authorized ;" and a witness was sworn be- 
 fore a commissioner for taking affidavits, and examined viva voce by the arbitrator — it was 
 held that the witness, so sworn, was not indictable for perjury. 3 Car. & Payne, 419, [Eng. 
 Com. L. Rep. xiv. 876.] Rex v. Hanks.} 
 
 [Xo perjury can be assigned on an extra-judicial oath. Lamden v. The State, 5 Humphreys, 
 83. 
 
 Swearing falsely before a person not authorized to administer the oath is not perjury. 
 But false swearing before a clerk that a person applying for a marriage license is over tweu- 
 ty-one years of age, whereby the person applying is enabled to obtain a marriage license, 
 and the marriage takes place, is a misdemeanor. Williamson's case, 4 Grattan, 554. An 
 oath administered by the clerk of a court, not required by law or by order of court, is extra- 
 judicial, and if false, lays no foundation for an indictment for perjury. The United States v. 
 Bubcock,4: M'Lean, 113. 
 
 Perjury cannot be committed in an official oath. The Statev. Dayton, 3 Zabriskie, 49.] 
 a Eng. Com. Law Reps. ii. 489.
 
 CHAP. I.] OF PERJURY AT COMMON LAW. 599 
 
 the demise ; for it would be of the utmost ill consequence in such case 
 to make their proceedings wholly void. (a;) 
 
 *The oath must be material to the question depending : for if it be *600 
 wholly foreign from the purpose, or altogether immaterial, and neither The oath 
 in any way pertinent to the matter in question, nor tending to acgra- must - 3e 
 vate or extenuate the damages, nor likely to induce the jury to o-ive the the ques-* 
 readier credit to the substantial part of the evidence, it cannot amount tion ? e ~ 
 to perjury, because it is wholly idle and insignificant; as, where a wit- PeU mg " 
 ness introduces his evidence, with an impertinent preamble of a story 
 concerning previous facts, not at all relating to what is material, and is 
 guilty of a falsity as to such facts.^) And it appears to have been 
 determined, that where a witness, being asked by a judge whether A. 
 brought a certain number of sheep from one town to another all to- 
 gether, answered, that he did so, whereas in truth A. did not brino- 
 them altogether, but part at one time and part at another, yet such 
 witness was not guilty of perjury, because the substance of the question 
 was, whether A. did bring them at all or not, and the manner of bring- 
 ing them was only a circumstance. And that, upon the same ground, 
 where a witness being asked whether a particular sum of money were 
 paid for two things in controversy between the parties, answered that it 
 was, whereas, in truth, it was paid only for one of them by agreement, 
 such witness ought not to be punished for perjury ; because, as the case 
 was, it was not material whether the sum were paid for one or both. 
 And it is also said to have been resolved, that a witness who swore that 
 a man drew his dagger, and beat and wounded J. S., whereas in truth 
 he beat him with a staff, was not guilty of perjury, because the beating 
 only was material.^) 
 
 But upon these decisions it is remarked, that perhaps in all these cases 
 it ought to be intended, that the question was put in such a manner, that 
 the witness might reasonably apprehend that the sole design of putting 
 it was to be informed of the substantial part of it, which might induce 
 him through inadvertency to take no notice of the circumstantial part, 
 and give a general answer to the substantial : for otherwise, if it appear 
 plainly that the scope of the question was to sift him as to his know- 
 ledge of the substance, by examining him strictly concerning the cir- 
 cumstances, and he gave a particular and distinct account of the 
 circumstances which afterwards appears to be false ; surely he cannot 
 but be guilty of perjury, inasmuch as nothing can be more apt to incline 
 a jury to give credit to the substantial part of a man's evidence, than 
 his appearing to have an exact and particular knowledge of all the cir- 
 cumstances relating to it.(a)f And it is spoken of as a reasonable]!' u ,, 
 opinion, that a witness may be guilty of perjury in respect of a false ™£"Fjj. . 
 oath concerning a mere circumstance, if such oath have a plain ten- material, it 
 dency to corroborate the more material part of the evidence; as if, in iBsufficient 
 trespass for spoiling the plaintiff's close with the defendant's sheep, a 
 witness swears that he saw such a number of the defendant's sheep in 
 
 (z) 1 Hawk. P. C. c. 69, s 4. Bac. Abr. tit. Perjury, (A). 
 
 (y) Rex v. Griepe, 1 Lord Raym. 256. Bac. Ab. tit. Perjury, (A). 
 
 (z) 2 Roll. 41, 42, 369. Hetl. 97. 1 Hawk. P. C. c. 69, s. 8. 
 
 (a) 1 Hawk. P. C. c. 69, s. 8. 
 
 f [Where three or more persons were alleged to be jointly concerned in an assault, and it 
 was contended to be immaterial if all participated in it, by which of them certain acts were 
 done— held to be material, and that evidence as to the acts of either, if wilfully ami 
 given, constituted perjury. State v. Norris, 9 N. Hamp. 96.] 
 
 Vol. ii.— 39
 
 000 OF PERJURY AT COMMON LAW. [BOOK V. 
 
 the close ; and being asked how he knew theru to be the defendant's, 
 swears that he knew them by such a mark, which he knew to be the 
 defendant's mark, whereas, in truth, the defendant never used any such 
 mark.(i) And it appears to have been holden not to be necessary that 
 ♦601 it should be *shown to what degree the point in which a man is per- 
 jured was material to the issue, and that it will be sufficient if the point 
 It need not were circumstantially material. (c) And still less is it necessary that 
 be sufficient fa e evidence be sufficient for the plaintiff to recover upon, since evi- 
 
 1 hit in dence may be very material, and yet not full enough to prove directly 
 question. th e p i n t in question, (d) In a modern case, where A. advanced money 
 
 to B. on two distinct mortgages, upon one of which the security was in- 
 sufficient, and B. assigned the equity of redemption in both to C, who 
 assigned the insufficient estate to an insolvent, and filed a bill against 
 A. to redeem the other, to which bill A. put in his answer, and therein 
 denied having had notice of the assignment to the insolvent; it was 
 holden that the notice was a material fact upon which perjury might be 
 assigned. (e) 
 
 Where an indictment for perjury, alleged to have been committed 
 before commissioners of taxes on an appeal of W. Hewatt against a 
 surcharge for a greyhound used by W. Hewatt on the 24th of Novem- 
 ber, averred that it was a material question whether a certain receipt 
 produced by the defendant on the hearing of the said appeal was given 
 to him before the 12th day of September then last past, and that the 
 defendant falsely swore that the said receipt was given to him before 
 the 12th day of September aforesaid ; and it appeared, that at the com- 
 missioners' meeting evidence was given that Hewatt and the defendant 
 were coursing with two greyhounds on the 24th of November, and that 
 one of the dogs had been Hewatt' s, who had no certificate; on the 28th 
 of November, he was surcharged for a greyhound, and on appealing 
 against this surcharge, he stated that the dog had been sold to the de- 
 fendant long before, and he called the defendant as a witness, who 
 swore that he bought the dog of Hewatt on the 6th of September, and 
 produced a receipt for the purchase-money bearing that date ; he was 
 asked by the surveyor whether the receipt was given at the time of the 
 sale, and he said it was not, but a few days after; and, on being pressed, 
 he said that it was given to him before the 12th of September; and, on 
 the surveyor pointing out that the stamp on the receipt bore date the 
 18th of November, and saying that the defendant must be mistaken, the 
 defendant persisted in his statement, and swore positively that the re- 
 ceipt was given to him before the 12th of September. It was proved 
 that the paper on which the receipt was written was stamped on the 18th 
 of November, and could not have been issued from the Stamp-office be- 
 fore that day. It was objected that the materiality of the question as 
 stated in the indictment had not been proved ; the material question 
 was whether the dog was Hewatt's or the defendant's on the 24th of 
 November, the day of the coursing ; but Patteson, J., after consulting 
 Parke, B., overruled the objection, and the defendant was convicted; 
 and upon a case reserved, the same objection being urged, Lord Abin- 
 
 (b) Bac. Ab. tit. Perjury, (A). 1 Hawk. P. C. c. 69, s. 8. See Reg. v. Gardiner, post, p. 
 633, et seq. 
 
 (c) Rex v. Griepe, 1 Ld. Raym. 256. 
 
 (d) Reg. v. Rhodes and Cole, 2 Ld. Raym. 886. 
 
 (e) Rex v. Pepvs, cor. Kenyon, C. J. Peake, N. P. R. 138.
 
 CHAP. I.] OF PERJURY AT COMMON LAW. 601 
 
 ger, C. B., said, "the whole matter turned on the credit of the wit- 
 ness, and he tries to support his credit by false evidence. The receipt 
 is to confirm his evidence, and he swears it was given before the 12th. 
 
 If that were true, the proof would be decisive." Williams J. « The 
 
 time when this receipt was given, is a step in the proof." Lord Den- 
 man, C. J. — " You cannot dispute that everything that comes out at a 
 trial is material, if it goes to the credit of the witness." Lord Abin- 
 ger, C. B. — " Every question on the cross-examination, which goes to 
 the credit of the witness, is material. If a witness were asked, in cross- 
 examination, whether he was in such a place at such time, and he denies 
 it, that would be material, if it went to his credit. In the present case 
 if they could not have contradicted the witness by the date of the stamp, 
 the receipt confirming his evidence would have made out the case before 
 the commissioners." And the conviction was held right. (ee) The 
 judgment was afterwards reversed, on another ground of error. See vol 
 2, p. 639. 
 
 Upon an indictment for perjury in an answer to a bill filed against Perjury 
 the defendant in Chancery, stating that the defendant promised to pay c ^" not *j e 
 Martin 1000/f. as a marriage portion, when he was about to marry the an answer 
 defendant's niece ; the defendant, by his answer, insisted that as there in Chan - 
 
 ccrv cIgh V- 
 
 was no promise in writing, he was entitled to the benefit of the Statute ing a pro-" 
 of Frauds, but as to the fact denied that he had ever made any such mise abs °- 
 promise, on which denial perjury was assigned. Lord Kenyon, C. J. bylnVsta- 
 said, that " he thought this was not such a material fact as would sup- tu te of 
 port the indictment. This promise was absolutely void, and supposing rau s " 
 it in fact to have taken place and acknowledged by the defendant, could 
 not be enforced either at law or in equity ; that court had no power to 
 decree a performance of it. It might be a false swearing, but did not 
 amount to what the law denominated perjury."(/) 
 
 So where upon an indictment for perjury, alleged to have been com- Perjury 
 mitted in answer to a bill filed in Chancery, it appeared that the bill can . not l ' e . 
 was filed against the defendant and Robinson, in order to compel the swearingas 
 specific performance of a contract for the purchase of a freehold estate, to a P ar °* 
 and it was not stated in the bill that the contract was in writing, but it the sale of 
 was alleged that the defendants had frequently since the contract was ^un- 
 entered into, admitted that the plaintiffs were interested in the purchase ; 
 and the defendants in their answer pleaded that the allege! agreement 
 not being in writing, was within the fourth section of the Statute of 
 Frauds and could not be enforced, and also denied the agreement as set 
 forth in the bill, and denied that they ever admitted that the plaintiffs 
 were interested in the purchase as stated : and upon these denials per- 
 jury was assigned. It was admitted that the agreement was not in 
 writing, and that there was not any memorandum or declaration of trust 
 respecting it. It was objected that the alleged perjury was not material 
 or relevant to the matter in issue in Chancery; the agreement not being 
 in writing, the defendant relied on the Statute of Frauds as a good 
 ground of defence. The denial therefore of an agreement which the 
 court had no power to enforce, was immaterial and irrelevant to the in- 
 vestigation of the several matters in the bill. The counsel for the 
 prosecution cited Bartlett v. Pickersgill,(r/) where a party was con- 
 fee) Reg. v. Overton," 1 C. & Mars. 655. (/) Rex v. Beneseeh, I'eakc, Add. C. 93. 
 (g) 4 Burr. 2255. 4 East, 577, in no tit. 
 
 a Eng. Com. Law Reps. xli. 355.
 
 gOl OF PERJURY AT COMMON LAW. [BOOK V. 
 
 victed of perjury for the denial of a parol agreement for the purchase 
 *G02 of an estate, *which parol agreement a court of equity had refused to 
 enforce. Abbott, Ld. C. J., "It does not appear from the short state- 
 ment of the case which has been cited, and which is not very distinctly 
 reported, whether the Statute of Frauds was there pleaded and relied 
 on. But in the present case the defendants have in their answer pleaded 
 the statute, and insisted that this agreement not being in writing, and 
 relating to the sale of land, is within the fourth section of that statute, 
 and cannot be enforced. As a judge of a court of common law, it is 
 competent for me to form my opinion upon the construction of this 
 statute, although I cannot be presumed to know how a court of equity 
 might deal with it. The statute, for the wisest reasons, declares that 
 agreements of this description shall not be enforced unless they are re- 
 duced into writing. These defendants, therefore, having insisted upon 
 the statute in their answer, the question is, whether under such circum- 
 stances the denial of an agreement, which by the statute is not binding 
 upon the parties, is material ; I am of opinion that it was utterly imma- 
 terial. It was necessary that the matter sworn to and said to be false, 
 should be material and relevant to the matter in issue : the matter here 
 sworn is in my judgment immaterial and irrelevant, and the defendant 
 must be acquitted. "(h) 
 Rut where But where the indictment stated that a bill was filed in Chancery 
 a bill is against the defendant, stating an agreement to purchase certain wheat, 
 aside a to be paid for by draft at three months, which agreement was not re- 
 written duced into writing, and that afterwards a bought note was delivered to 
 the ground* * ne defendant, which did not contain fully the terms of the agreement; 
 of fraud, a that the defendant brought an action and recovered a verdict, and that 
 be^uiit^f ne was ena M e cl to obtain such verdict by reason of his fraudulently con- 
 perjury "in cealing the true terms of the agreement, and the bill prayed that one of 
 r^pj nng the terms of the contract might be declared to be that the purchase 
 to terms of money should be paid by a bill of exchange, payable three months after 
 the con- ^ate ; and the defendant by his answer denied the parol agreement 
 contained stated in the bill, and the bill was dismissed, and the denial by the de- 
 in .writing, fendant was the subject of the indictment for perjury. It was contended 
 that the indictment could not be sustained. The only legitimate evi- 
 dence of the contract was the bought and sold notes. The contract by 
 parol was void by the Statute of Frauds, and a false answer to a bill for 
 the discovery of such a contract would not subject a person to an indict- 
 ment for perjury; and Rex v. Dunston,(-A was relied upon. Coleridge, 
 J., " In that case, the bill in Chancery was to enforce the performance 
 of a parol contract, which could not be enforced by reason of the Statute 
 of Frauds ; and the case of Rex v. Benesechf j\ proceeded on the same 
 ground. Though it is true that a party cannot vary the terms of a 
 written contract by parol evidence, he may show by such evidence that 
 he was induced to sign the written contract inadvertently and by fraud. 
 In thiscase the object of setting up the parol terms of the contract is for 
 the purpose of avoiding the contract on the ground of fraud. " I think 
 that the principle, that the parol evidence is inadmissible to contradict 
 or vary the terms of a written contract, does not apply where the object 
 *603 of that evidence, as in this case, is to impeach *the transaction on the 
 
 (A) Rex v. Dunston, a R. & M. N. P. R. 109. 
 (»') Supra. U) Supra, note (/). 
 
 Eng. Com. Law Reps. xxi. 392.
 
 CHAP. I.] OP PERJURY AT COMMON LAW. 603 
 
 ground of fraud. I think that the assignment of perjury on the denial 
 in the answer of the parol terms, which the bill prayed to have estab- 
 lished, is material and relevant; and I think therefore that the objection 
 cannot be sustained. "(/.-) 
 
 Perjury may be committed on the trial of an indictment, which is Perjury on 
 afterwards held bad upon a writ of error. An indictment charged the the . triul of 
 defendant with having committed perjury on the trial of a previous in- ment rei 
 dictment for perjury upon which a party had been convicted and sen- versed 
 tenced, but a judgment reversed on a writ of error on the ground that Up ° n err ° r " 
 the assignment of perjury was insufficient ;(£) and it was objected that 
 the evidence of the defendant never could have been material, as the 
 former indictment was held bad upon a writ of error; but the objection 
 was overruled, on the ground that whether a witness had committed 
 a wilful and corrupt perjury or not, could not depend on the validity in 
 point of form of the indictment as to which he gave evidence. (to) 
 
 It should be observed that a man may be as much perjured by an A man 
 oath taken bv him in his own cause, either in an answer in Chancery, Ma ? be j 
 
 . . z. perjured 
 
 or in an answer to interrogatories concerning a contempt, or in an affi- by an oath 
 
 davit, &c, as by an oath taken by him as a witness in the cause of an- ^ ken in 
 f his own 
 
 other person. (n)"f" But the oath must be taken by a person sworn to cause. 
 
 depose the truth ; and a false verdict does not come within the notion But a false 
 
 of perjury, because the jurors do not swear to depose the truth, but only n e ' t l c c ome 
 
 to judge truly of the depositions of others. (o) under the 
 
 A further point of general application may be mentioned, namely, p"-"" 
 that it appears not to be important whether the false oath were credited j t ; s not 
 or not, or whether the party in whose prejudice it was taken were in necessary 
 the event any ways damaged by it, for the prosecution is not grounded fal a ge ° th 
 on the damage to the party, but on the abuse of public justice. (p) were cre- 
 
 In some cases, where a false oath has been taken, the party may be dlted " 
 prosecuted by indictment at common law, though the offence may not indictable 
 amount to perjury. Thus it appears to have been holden, that any in some 
 person making or knowingly using any false affidavit taken abroad, l^ugh not 
 (though a perjury could not be assigned on it here) in order to mislead assignable 
 our courts of justice is punishable by indictment as for a misdemeanor ; as P er J ur . v - 
 and Lord Ellenborough, C. J., said, " that he had not the least doubt, 
 that any person making use of a false instrument in order to pervert 
 
 (k) Reg. v. Yates," 1 C. & Mars. 132. (1) See Reg. v. Burraston, post, p. G41. 
 
 (m) Reg. v. Meek, b 9 C. & P. 513, Williams, J. Mullett v. Hunt, 1 Or. & M. 752, was cited 
 in support of the objection. See also Davis v. Lovell, 4 M. & W. 678. See 1 Hawk. P. C. 
 c. 69, s. 4, cited, post, p. 620. 
 
 (n) 1 Hawk. P. C. c. 69, s. 5. Bac. Ab. tit. Permry, (A). (o) Id. ibid. 
 
 (p) 1 Hawk. P. C. c. 69, s. 9. Bac. Ab. tit. Perjury, (A). In Rex v. Niuholls, Gloucester 
 Sum. Ass. 1838, cor. Patteson, J., the prisoner had on the trial of one Pitt for larceny, sworn 
 that he had not given the stolen property to Pitt, but he was contradicted by other witnesses, 
 and the jury disbelieved him, and acquitted Pitt, and he was convicted of perjury in so 
 swearing, and transported for seven years. C. S. G. 
 
 f [In a trial before a justice of tae peace, if the plaintiff offer himself as a witness, is sworn 
 and testifies falsely, perjury may be assigned on the oath thus taken. Montgomery v. The 
 State, 10 Ohio, 220. . 
 
 Where a party to a suit, on the trial thereof presents himself as a witness in support o! the 
 charges against the adverse party in his account book, and voluntarily takes the general oath 
 to tell the truth, the whole truth, and nothing but the truth, legally administered, instead oi 
 the more restricted oath to make just and true answers to such questions as shall h>- asked 
 —and testifies untruly, wittingly and willingly, to matters material and legitimately deriv- 
 able from him, he may be convicted of perjury. Slate v. Keene, 2<; Maine 33. | 
 " Eug. Com. Law Reps. xli. 77. b lb. xxxviii. 201.
 
 G03 OF PERJURY, ETC., BY STATUTES. [BOOK V. 
 
 the course of justice was guilty of an offence punishable by indict- 
 ment."^) 
 
 Statutes We may now proceed to consider the 5 Eliz. c. 9, and other statutes 
 
 relating to w ] 1 ; c ] 1 re ] a te to the offence of perjury. 
 
 perjury ; x *f J 
 
 *(504 The 5 Eliz. c. 9 (made perpetual by the 29 Eliz. c. 5, s. 2, and 21 
 5 Eliz. c. Jac. 1, c. 28, s. 8) enacts by sec. 3, " that all and every such *person and 
 p • "• <r P ersons which shall unlawfully and corruptly procure any witness or 
 any witness witnesses by letters, rewards, promises, or by any other sinister and 
 to commit unlawful labour or means whatsoever, to commit any wilful and corrupt 
 any matter perjury, in any matter or cause whatsoever now depending, or which 
 in suit, by hereafter shall depend in suit and variance, by any writ, action, bill, 
 concerning complaint, or information, in any wise touching or concerning any lands, 
 any lands, tenements, or hereditaments, or any goods, chattels, debts, or damages, 
 S rwhen ° '' * D any °^ *^e courts before mentioned, (?•) or in any of the Queen's ma- 
 sworn in jesty's courts of record or any leet, view of frank-pledge or law-day, 
 perpetuam anc i en t demesne court, hundred court, court baron, or in the court or 
 
 ret memori- I ' ' .. 
 
 am punish- courts of the stannery in the counties or Devon and Cornwall ; or shall 
 
 able by for- likewise unlawfully and corruptly procure or suborn any witness or wit- 
 
 40/. nesses, which shall be sworn to testify in perpetuam rei memoriam ; 
 
 and then every such offender or offenders shall for his, her, or their said 
 
 offence, being thereof lawfully convicted or attainted, lose and forfeit the 
 
 sum of forty pounds." 
 
 Sec. 4. By sec. 4, "if it happen any such offender or offenders, so being con- 
 
 f nder°not v i c t e d or attainted as aforesaid, not to have any goods or chattels, lands 
 
 having or tenements, to the value of forty pounds, that then every such person 
 
 goods, &c, so heina; convicted or attainted of any of the offences aforesaid, shall 
 
 tO LUG Ytl-lllC ■/ ■' 
 
 of 40/. to for his or their said offence suffer imprisonment by the space of one half 
 
 suffer im- year, without bail or mainprize, and to stand upon the pillory(s) the 
 
 merit. space of one whole hour, in some market town, next adjoining to the 
 
 place where the offence was committed, in open market there, or in the 
 
 market town itself where the offence was committed." 
 
 Sec. 5. By sec. 5, " no person or persons, being so convicted or attainted, be 
 
 convicted ^ rom thenceforth received as a witness to be deposed and sworn in any 
 
 not to be court of record, (within England, Wales, or the Marches of the same,) 
 
 witnesses' 3 unt ^ sucu ^ me as tne judgment given against the said person or per- 
 
 until judg- sons shall be reversed by attaint^) or otherwise ; and that upon every 
 
 rnent re- such reversal, the parties grieved to recover his or their damages against 
 
 all and every such person and persons as did procure the said judgment 
 
 so reversed to be first given against them or any of them, by action or 
 
 actions to be used upon his or their case or cases, according to the course 
 
 of the common laws of this realm." 
 
 Sec. 6. By sec. 6, " if any person or persons either by the subordination, 
 
 Persons unlawful procurement, sinister persuasion or means of any others, or by 
 
 ting perju- their own act, consent or agreement, wilfully and corruptly commit any 
 
 (q) Omealey v. Newell, 8 East, 364. 
 
 (r) Viz. (as in sec. 1) " the King's courts of Chancery, the Star Chamber, the "Whitehall, 
 or elsewhere within any of the king's dominions of England or Wales, or the marches of the 
 same, where any person or persons have or from henceforth should have authority by vir- 
 tue of the king's commission, patent or writ, to hold plea of land, or to examine, hear, or 
 determine any title of lands, or any matter or witnesses concerning the title, right, or in- 
 terest of any lands, tenements, or hereditaments." 
 
 (s) The 1 Vict. c. 23, abolishes the punishment of pillory in all cases, but does not 
 " change, alter, or affect any punishment whatsoever which may now by law be inflicted in 
 respect of any offence, except only the punishmeut of the pillory." 
 
 (t) Abolished by the 6 Geo. 4, c. 50, s. 60.
 
 CHAP. I.] OF PERJURY, ETC., BY STATUTES. 604 
 
 manner of wilful perjury, by Lis or their deposition in any of the courts ry, to fbr- 
 before mentioned, or being examined ad perjoetuam rel mcmoriam, ^Jelm^ 
 that then every person or persons so offending, and being thereof duly prisoned" 
 convicted or attainted by the laws of this realm, shall for his or their for si * 
 said offence lose and forfeit twenty pounds, and to *have imprisonment and their 
 by the space of six months without bail or mainprize ; and the oath of oath no . t t0 
 such person or persons so offending from thenceforth not to be received i^y court 
 in any court of record within this realm of England, of Wales, or the ofreconl 
 Marches of the same, until such time as the judgment given against the £j™t r . " 
 said person or persons shall be reversed by attaint,(w) or otherwise : aud versed, 
 that upon every such reversal the parties grieved to recover his or their *<305 
 damages against all and every such person and persons as did procure 
 the said judgment so reversed to be given against them or any of them, 
 by action or actions to be sued upon his or their case or cases according 
 to the course of the common laws of this realm." 
 
 By sec. 7, " if it happen the said offender or offenders so offending Sec. 7. 
 not to have any goods or chattels to the value of twenty pounds, that ^ (1 \ f s " ch 
 then he or they to be set on the pillory(y) in some market-place within Lave not 
 the shire, city or borough, where the said offence shall be committed, g° oclstotl if 
 by the sheriff or his ministers, if it shall fortune to be without any city 20/., they 
 or town corporate ; and if it happen to be within any such city or town are to be set 
 corporate, then by the said head officer or officers of such city or town ryandhave 
 corporate, or by his or their minister, and there to have both his ears their ears 
 nailed, and from thenceforth to be discredited and disabled for ever to to \, e( jjgf 
 be sworn in any of the courts of record aforesaid, until such time as the abled from 
 judgment shall be reversed, and thereupon to recover his damages in n"s"e=uiril 
 manner and form before mentioned." judgment 
 
 The statute further enacts, that one moiety of the said forfeitures shall p™^^" . 
 be to the king, and the other moiety to such person as shall be grieved, forfeitures, 
 hindered or molested by reason of any of the offences before mentioned, 
 that will sue for the same, &c. ; and that as well the judge and judges Trial of 
 of every such of the said courts where any such suit shall be, and ° 
 whereupon any such perjury shall be committed, as also the justices of 
 assize and gaol delivery, and justices of peace at their quarter sessions, 
 both within the liberties and without, may inquire of, hear, and deter- 
 mine all offences against the said act.(w) And it is provided that the The act is 
 said act shall in no way extend to any spiritual or ecclesiastical court, ^nd tosp'i- 
 but that every such offender as shall offend in term as aforesaid, shall ritual 
 be punished by such usual and ordinary laws as are used in the said courts - 
 courts, (cc) And it is also provided, that the said statute shall not Nortorc _ 
 restrain the authority of any judge having absolute power to punish strain other 
 perjury before the making thereof; but that every such judge HMJ-Eitof 
 proceed in the punishment of all offences punishable before the making perjury, 
 of the said statute, in such wise as they might have done and used to 
 do to all purposes, so that they set not on the offender less punishment 
 than is contained in the said act.(y) 
 
 The important statute relating to the punishment of perjury is the ^ J»^i '• 
 2 Geo. 2, c. 25, s. 2, which, in order more the effectually to deter per- W, jury 
 sons from committing wilful and corrupt perjury, or subornation of™*™ b o ° f r - 
 perjury, enacts, " that besides the punishment already to be inflicted by ,„,,„,> 
 
 (u) See the last note. [v) See note (s), supra. 
 
 (w) Sec. 8, 9. But see the 5 & G Vict. c. 38, post, p. 649. 
 
 (x) Sec. 11. (v) S( -' c - l3 '
 
 for seven 
 years 
 
 (505 OF PERJURY, ETC., BY STATUTES. [BOOK V. 
 
 made fur- law for so great crimes, it shall and may be lawful for the court or judge, 
 •'.'.'.M! 1 !"" before whom any person shall be convicted of wilful and corrupt per- 
 byimpri- jury, or subornation of perjury, according to the laws now in being, 
 sonment to on j e r suc h person to be sent to some house of correction within the 
 *(>06 same county, for a time not exceeding seven *years, there to be kept to 
 1, bour in hard labour(ic) during all the said time, or otherwise to be transported 
 tUehouseof to some f his majesty's plantations beyond the seas, for a term not 
 orbytaMs- exceeding seven years, as the court shall think most proper; and 
 portation thereupon judgment shall be given, that the person convicted shall be 
 committed or transported accordingly over and beside such punishment 
 as shall be adjudged to be inflicted on such person, agreeable to the 
 laws now being; and if transportation be directed, the same shall be 
 executed in such manner as is or shall be provided by law for the 
 Offenders transportation of felons ; and if any person so committed or transported 
 so commit- g y ia jj voluntarily escape or break prison, or return from transportation 
 transport- before the expiration of the time for which he shall be ordered to be 
 ed escaping transported as aforesaid, such person, being thereof lawfully convicted, 
 prison, or" shall suffer death as a felon, without benefit of clergy, and shall be tried 
 returning f or sucn felony in the county where he so escaped, or where he shall 
 
 from trans- , i i i 
 
 portation. oe apprehended. 
 
 Statutes Besides these statutes, there are a great number relating to perjury 
 
 relating to coniniitted in particular proceedings and transactions, and by particular 
 commuted persons, some of which it will be proper to notice in this place. Enact- 
 in partieu- uients of this description are to be met with in so many and such vari- 
 .eedinffs ous statutes, that it is not presumed but that many of them have not 
 Ac, and by come within the author's observation, 
 particular j t should first be mentioned that the false affirmation, or declaration, 
 
 persons. . in i i_ 
 
 False affir- of any of the people called Quakers, made instead of an oath, will sub- 
 notions, of j ect t ^ e party to the penalties of perjury, by the enactments of several 
 SgS%, statutes; 7 & 8 Win. 3, c. 34 ; 8 Geo. 1, c. 6; and 22 Geo. 2, c. 46. 
 c 46, s. 36. The latter statute by sec. 36, enacts, " that in all cases wherein by any 
 act or acts of parliament now in force, or hereafter to be made, an oath 
 is or shall be allowed, authorized, directed, or required, the solemn 
 affirmation or declaration of any of the people called Quakers, in the 
 form prescribed by the said act made in the eighth year of his said late 
 majesty's reign, (a;) shall be allowed and taken instead of such oath, 
 although no particular or express provision be made for that purpose in 
 such act or acts ; and all persons who are or shall be authorized or re- 
 quired to administer such oath shall be and are hereby authorized and 
 required to administer the said affirmation or declaration ; and the said 
 solemn affirmation or declaration so made as aforesaid shall be adjudged 
 and taken, and is hereby enacted and declared to be of the same force 
 and effect, to all intents and purposes, in all courts of justice and other 
 places where by law an oath is or shall be allowed, authorized, directed, 
 or required, as if such Quaker had taken an oath in the usual form : 
 and if any person making such affirmation or declaration, shall be law- 
 fully convicted of having wilfully, falsely and corruptly affirmed and 
 declared any matter or thing, which if the same had been deposed in the 
 
 (v:) The 3 Geo. 4, c. 114, provides that any person convicted of perjury or subornation 
 of perjury, may be sentenced to imprisonment -with hard labour, for any term not exceed- 
 ing the term for which the court may imprison for such offences, in addition to or in lieu of 
 any other punishment. 
 
 (x) That form was as follows : — " I, A. B., do solemnly, sincerely, and truly declare and 
 affirm."
 
 CHAP. I.] OF PERJURY, ETC., BY STATUTES. 606 
 
 usual form would have amounted to wilful and corrupt perjury, every 
 person so offending shall incur and suffer the like pains, penalties, and 
 forfeitures, as by the laws and statutes of this realm are to be ^inflicted *607 
 on persons convicted of wilful and corrupt perjury." But, by sec. 87 
 it is provided, " that no Quaker shall by virtue of this act be qualified 
 or permitted to give evidence in any criminal cases, or to serve on juries, 
 or to bear any office or place of profit in the government." 
 
 The 9 Geo. 4, c. 32, s. 1, reciting that " it is expedient that Quakers 9 Geo. 4, c. 
 and Moravians should be allowed to give evidence upon their solemn 32 > s - l- ' 
 affirmation in all cases, criminal as well as civil," enacts that " every Nation ^f 
 Quaker or Moravian, who shall be required to give evidence in any case Quakers 
 whatsoever, criminal or civil, shall, instead of taking an oath in the a ? d Mora_ 
 
 ^ V1UDS 
 
 usual form, be permitted to make his or her solemn affirmation or de- 
 claration in the words following, that is to say : " I, A. B., do solemnly 
 sincerely, and truly declare and affirm ;" which said affirmation or de- 
 claration shall be of the same force and effect in all courts of justice, 
 and other places where by law an oath is required, as if such Quaker 
 or Moravian had taken an oath in the usual form ; and if any person 
 making such affirmation or declaration, shall be convicted of having 
 wilfully, falsely, and corruptly affirmed or declared any matter or thing, 
 which if the same had been sworn in the usual form would have 
 amounted to wilful and corrupt perjury, every such offender shall be 
 subject to the same pains, penalties, and forfeitures to which persons 
 convicted of wilful and corrupt perjury are or shall be subject," 
 
 The 3 & 4 Wm. 4, c. 49, s. 1, enacts that " every person of the per- 3 & 4 Wm. 
 suasion of the people called Quakers, and every Moravian be permitted i' e ' k 4 ^', 
 to make his or her solemn affirmation or declaration, instead of taking and Mora- 
 an oath, in all places and for all purposes whatsoever where an oath is vians - 
 or shall be required by the comon law, or by any act of parliament 
 already made, or hereafter to be made :" and provides that " if any 
 such person making such solemn affirmation or declaration shall be law- 
 fully convicted, wilfully, falsely, and corruptly to have affirmed or de- 
 clared any matter or thing, which if the same had been(:c) in the usual 
 form would have amounted to wilful and corrupt perjury, he or she 
 shall incur the same penalties and forfeitures as by the laws and the 
 statutes of this realm are enacted against persons convicted of wilful 
 and corrupt perjury." 
 
 The 1 & 2 Vict. c. 77, enacts that " it shall be lawful for any per- 1 & 2 Vict. 
 son who shall have been a Quaker or Moravian to make solemn affir- p crs ^ ns 
 mation and declaration in lieu of taking an oath, as fully as it would who have 
 be lawful for any such person to do if he still remained a member of j^" Q"*" 
 either of such religious denominations of Christians," and subjects per- Moravians, 
 sons guilty of making false affirmations or declarations to the same pun- 
 ishments as persons guilty of perjury in the same manner as the pre- 
 ceding statute, (y) 
 
 The 1 & 2 Vict. c. 105, enacts that « in all cases in which an oath 1 & 2 Viet. 
 may lawfully be and shall have been administered to any person, either * ^ | 
 as a juryman or a witness, or a deponent in any proceeding, civil or bound by 
 criminal, in any court of law or equity in the United Kingdom, or on jJjJJJ* 
 appointment to any office or employment, or on any occasion whatever, 
 
 (x) The word " sworn," seems omitted here. 
 
 (y) This statute was passed in consequence of Reg. v. Doran, 2 Moo. C. C. R. 31. 2 
 Lew. 37.
 
 607 OF PERJURY, ETC., BY STATUTES. [BOOK V. 
 
 such person is bound by the oath administered, provided the same shall 
 *(308 have been administered in such form *and with such ceremonies as 
 such person may declare to be birding, and every such person, in case 
 of wilful false swearing may be convicted of the crime of perjury in the 
 same manner as if the oath had been administered in the form and with 
 the ceremonies most commonly adopted." 
 Perjury in The statutes for enabling the commissioners of the national debt to 
 ™speotof g rant life annuities, usually contain clauses relating to perjury; as the 
 ties. 10 Geo. 4, c. 24, s. 44, which enacts, " that if any person in any affi- 
 
 davit, to be taken before any justice of the peace or magistrate, or be- 
 fore any officer acting under the said commissioners, under the provi- 
 sions of this act shall wilfully or corruptly swear or affirm any matter 
 or thing which' shall be false or untrue, every such person so offending, 
 and being thereof duly convicted, shall be and is hereby declared to be 
 subject and liable to such pains and penalties as by any laws now in 
 force any persons convicted of wilful and corrupt perjury are subject 
 and liable to." 
 Perjury in The 51 Geo. 3, c. 15, which authorizes an issue of exchequer bills to 
 T &ccheguer commissioners for the purpose of their making advances for the assist- 
 bills. ance and accommodation of manufacturers, directs certain oaths to be 
 
 administered ; and then by sec. 10 enacts, "that if any person or persons 
 upon examination upon oath or affirmation before the said commissioners 
 respectively, or if any person or persons making any such affidavit or 
 deposition as beforementioned, shall wilfully and corruptly give false 
 evidence, or shall in such affidavit or deposition wilfully and corruptly 
 swear, affirm or allege any matter or thing which shall be false or un- 
 true, every such person or persons so offending, and being thereof duly 
 convicted, shall be and is and are hereby declared to be subject and 
 liable to such pains and penalties as by any law now in being persons 
 convicted of wilful and corrupt perjury are subject and liable to." 
 Perjury Many of the statutes relating to the duties of excise contain clauses 
 
 Sdutiea of a similar kind > as the 55 Geo - 3 > c - 113 > s - 6 > and 56 Geo> 3 > c - 108 > 
 of excise, s. 7, in respect of the duties and drawbacks upon plate glass, &c. The 
 
 46 Geo. 3, c. 112, s. 3, contains a general provision on the subject of 
 the excise; and, after reciting that by the several acts relating to his 
 majesty's duties of excise, oaths are required to be taken in manner 
 therein mentioned, and that it was expedient to make such provisions 
 as thereinafter mentioned, for the punishment of persons wilfully 
 taking a false oath in any of the cases in which an oath is by any 
 such acts directed or required, to be taken, it enacts, " that any person 
 or persons who shall be convicted of wilfully taking a false oath in any 
 of the cases in which an oath is by any act or acts of parliament rela- 
 ting to the duties of excise directed or required to be taken, shall be 
 liable to the pains and penalties to which persons are liable for wilful 
 and corrupt perjury." 
 Perjury The 3 & 4 Wni. 4, c. 51, entitled "An act for the management of 
 
 thlfduf t0 ^ e customs /' enacts by sec. 29, that, " upon examinations and inquiries 
 of the aw- made by any surveyor-general of the customs, or any inspector-general 
 toma. Q f ^ e CU gtoms, for ascei-taining the truth of facts relative to the cus- 
 
 toms, or the conduct of officers or persons employed therein, and upon 
 the like examinations and inquiries made by the collector and controller 
 of any out-port of the United Kingdom, or of any port in the Isle of 
 Man, or made by any person or persons in any of tbe British pusses-
 
 CHAP. I.] OF PERJURY, ETC., BY STATUTES. G09 
 
 sions abroad, appointed by the ^commissioners of his majesty's customs 
 to make such examinations and inquiries, any person examined before 
 him or them as a witness shall deliver his testimony on oath, to be ad- 
 ministered by such of the surveyors-general, or such of the inspectors- 
 general, or such collector and controller, or such person or persons as 
 shall examine him, and who are hereby authorized to administer such 
 oath, and if such person shall be convicted of making a false oath, 
 touching any of the facts so testified on oath, or of giving false evidence 
 on his examination on oath, before any of the surveyors-general or in- 
 spectors-general of the customs, or such collector and controller, or such 
 person or persons in conformity to the directions of this act, every such 
 person so convicted as aforesaid shall be deemed guilty of perjury, and 
 shall be liable to the pains and penalties to which persons are liable for 
 wilful and corrupt perjury." 
 
 The last stamp act, 55 Geo. 3, c. 184, s. 53, contains a general pro- Perjury 
 vision in respect of oaths relating to the stamp-duties, and enacts, " that [j^ 1 ^* 
 all and every person and persons before whom any affidavit or solemn duties, 
 affirmation is or shall be required or directed to be made by this or any 
 former or future act of parliament relating to any stamp duties, shall 
 be, and they are hereby authorized to take the same and administer the 
 proper oath or affirmation for that purpose ; and if any person making 
 any such affidavit or affirmation shall knowingly and wilfully make a 
 false oath or affirmation of or concerning any of the matters to be therein 
 specified and set forth, every person so offending and being thereof law- 
 fully convicted, shall be subject and liable to such pains and penalties 
 as by any law now in force, persons convicted of wilful and corrupt per- 
 jury, are subject and liable to." The 54 Geo. 3, c. 133, entitled, "An 
 act for enabling the commissioners of stamps to make allowances for 
 spoiled stamps of policies of assurances, and for preventing frauds re- 
 lating thereto," enacts, by sec. 13, " that if any person making any such 
 affidavit or affirmation as aforesaid, shall knowingly and wilfully make 
 a false oath or affirmation, of or concerning any of the matters to be 
 therein specified or set forth, every person so offending, and being there- 
 of lawfully convicted, shall be subject and liable to such pains and 
 penalties as by any law now in force persons convicted of wilful and 
 corrupt perjury are subject and liable to." 
 
 The 39 & 40 Geo. 3, c. 89, entitled, " An act for the better pre- Perjury 
 venting the embezzlement of his majesty's naval, ordnance, and victual- j^ ngt0 
 ling stores," enacts, by sec. 36, "that if any person upon examination stores, Ac. 
 on oath or affirmation before any commissioners of the navy, ordnance, 
 or victualling respectively, or before any justice of the peace in Great 
 Britain, in any matter relating to the execution of this act, shall wil- 
 fully and corruptly give false evidence, or shall, in any information or 
 deposition sworn, or affirmation taken in writing before any such com- 
 missioner or justice, wilfully and corruptly swear or affirm any matter 
 or thing which shall be false or untrue, every such person so offending, 
 and being thereof lawfully convicted, shall be and is hereby declared to 
 be subject and liable to the like pains and penalties as any person con- 
 victed of wilful and corrupt perjury are by any law now in force sub- 
 ject and liable to." 
 
 The 55 Geo. 3, c. 157, by which the courts of law and equity in Ire- ^ 610 
 land were empowered to grant commissions for taking affidavits in dljjjjjjj 1 ^ 
 parts of Great Britain, enacts, by sec. H, "that every person *who shall &c-> for th $
 
 (310 OF PERJURY, ETC., BY STATUTES. [BOOK V. 
 
 Irish in England or Scotland be sworn or deponed, and examined as a wit- 
 
 courts. negs ^ or sworn or deponed to the truth of any answer or plea or affida- 
 vits before any officer or officers who shall be appointed under the au- 
 thority of this act for taking the same, and who shall, in his or her an- 
 swer, plea, or affidavit, wilfully swear or depone falsely, shall be deemed 
 guilty of perjury, and shall incur and be liable to the same pains and 
 penalties as if such person had wilfully sworn or deponed falsely in 
 the open court, wherein the suit in which oath was so taken then de- 
 pended." 
 Perjury The 11 Geo 4, c. 20, "an act to consolidate and amend the laws re- 
 
 relating to l a ting to the pay of the royal navy," by sec. 85 enacts, that "if any 
 &c, of ' person shall fraudulently and deceitfully take a false oath, in order to 
 seamen. obtain probate of any will, or letters of administration of the effects of 
 any deceased commission, warrant, or petty officer, or seaman, or com- 
 missioned or non-commissioned officer of marines or marine; or if any 
 person shall fraudulently receive or demand wages, pay, prize-money, 
 bounty money, pension, or any part thereof, or any allowance of money 
 whatever, payable or supposed to be payable in respect of the services 
 of any such officer, seaman, or marine, or from the compassionate fund 
 of the navy, or any pension to the widow of an officer, upon or by virtue 
 of any probate of a will or letters of administration, knowing such will 
 to be forged, or such probate or letters of administration to have been 
 obtained by means of a false oath, with intent in any of the said cases 
 to defraud any person whomsoever, every such offender shall be guilty 
 of felony, and being convicted thereof shall be liable, at the discretion 
 of the court, to be transported beyond the seas for life, or for any term 
 not less than seven years, or to be imprisoned for any term not exceed- 
 ing four years nor less than two years." 
 2 Wm. 4, c. The 2 Wm. 4, c. 53, entitled, "an act for consolidating and amending 
 Perjury 5 ' tne ^ aws relating to the payment of army prize-money," by sec. 45, 
 relating to enacts, that " if any person or persons shall falsely make oath to any 
 
 armypnze- £ t ^ e ma tt ers hereinbefore required to be verified on oath, or suborn 
 money* . 
 
 any other person so to do, such person or persons shall suffer the like 
 
 pains and penalties as are incurred by persons committing wilful and 
 corrupt perjury." 
 
 By sec. 46, " where the offence of taking a false oath or suborn- 
 ing any person so to do, or any of the offences by it made cognizable 
 in any of his majesty's courts of record, in Great Britain, shall be com- 
 mitted out of this realm, the same may be alleged to be committed, and 
 may be laid, inquired of, tried, and determined in any county in Eng- 
 land, in the same manner to all intents and purposes as if the same had 
 been actually done or committed within the body of such county." 
 Perjury in By the 1 & 2 Geo. 4, c. 61, s. 6, which regulates the appropriation of 
 matters re- une l a i me d shares of prize-money belonging to soldiers and seamen in 
 certain the service of the East India Company, it is enacted, that if any person 
 East India shall be convicted of making a false oath touching any of the matters 
 ney. " directed or required by that act to be testified on oath, such person so 
 convicted shall be deemed guilty of perjury, and liable to be punished 
 as persons guilty of perjury in England. And it also provides for the 
 punishment of persons procuring or suborning any other person to swear 
 falsely in any such oath. 
 *611 The Mutiny Acts usually contain the following clause :, (as in 5 $ 6 
 Perjury by *yi c t. c . 12, s. 79,) namely, "that any person taking a false oath or de-
 
 CHAP. I.] OF PERJURY, ETC., BY STATUTES. 611 
 
 claration in any case wherein an oath or declaration is required to be the mutiny 
 taken by this act, shall be deemed guilty of wilful and corrupt perjury, acts- 
 or of making a false declaration, and being thereof duly convicted, 
 shall be liable to such pains and penalties as by any laws in force any 
 persons convicted of wilful and corrupt perjury are subject and liable 
 to."(^) And with respect to naval courts-martial, the 22 Geo. 2, c. 33, And in 
 s. 17, enacts, "that all and every person and persons who shall commit £^ 
 any wilful perjury, in any evidence or examination upon oath at any martial, 
 such court-martial, or who shall corruptly procure or suborn any person 
 to commit such wilful perjury, shall and may be prosecuted in his 
 majesty's Court of King's Bench, by indictment or information; and 
 every issue joined in any such indictment or information shall be tried 
 by good and lawful men of the county of Middlesex, or such other 
 county as the said court of King's Bench shall direct; and all and 
 every person and persons, being lawfully convicted upon any such in- 
 dictment or information, shall be punished with such pains and penalties 
 as are inflicted for the like offences respectively by the 5 Eliz. c. 9, and 
 2 Geo. 2, c. 25." 
 
 The 6 Geo. 4, c. 78, s. 59, enacts, "that in all cases wherein by virtue Perjury 
 of this act, or anv other act hereafter to be made touching quarantine, !i!,* JL °„ 
 
 > J o i J quarantine. 
 
 any examination or answer shall be taken or made upon oath, the person 
 who shall be authorized and required to take such examination and 
 answers shall and may be deemed to have full power and authority to 
 administer such oaths : and if any person who shall be interrogated or 
 examined shall wilfully swear falsely to any matter concerning which 
 such person shall depose or make oath on such examination, or in such 
 answer, or if any person shall procure any other person so to do, he or 
 she so swearing falsely, or procuring any other person so to do, shall be 
 deemed to have been guilty of, and shall be liable to be prosecuted for 
 perjury, or subornation of perjury, as the case may be, and shall suffer 
 the pains, penalties, and punishments of the law, in such case respec- 
 tively made and provided." 
 
 The 6 Geo. 4, c. 125, entitled "an act for the amendment of the laws Perjury in 
 •i i-i i on i respect of 
 
 respecting pilots and pilotage, enacts by sec. ©U "that every person, p n tage, 
 who in any examination upon oath under the provisions of this act, shall * c :> of 
 wilfully give false testimony or a false account of the matter sworn to by w 
 him, shall be liable to be prosecuted for the same by indictment; and if 
 duly convicted of false swearing in the premises, shall be subject and 
 liable to such punishments, disqualifications, and disabilities, as any 
 person would be subject or liable to for wilful and corrupt perjury, in 
 any other case, by the laws and statutes of this realm." 
 
 The act for the registering of vessels, 3 & 4 Wm. 4, c 55, s. 45, enacts, In respect 
 that if any person shall falsely make declarations to any of the matters ^t^gof 
 hereinbefore required to be verified, such person shall forfeit five hun- vessels, 
 dred pounds. 
 
 The 5 Geo. 4, c. 113, which was passed to prevent the traffic in slaves, P c c r rj '" h r J un - 
 enacts by sec. 41 "that if any oath taken under this act shall be wilfully slavc tril(lo 
 false, or if such false oath shall be unlawfully or wilfully procured or act. 
 suborned, the offender shall incur and suffer the like *pains and penalties *61- 
 as are by law inflicted upon the persons committing wilful and corrupt per- 
 jury or subornation of perjury respectively." And section 5S provides 
 
 (p) And see ii similar clause in the 5 & G Viet. c. 13, s. 59, being the act for regulating 
 the marine forces.
 
 612 
 
 OF PERJURY, ETC., BY STATUTES. 
 
 I\rjury in 
 respect of 
 the land 
 revenues, 
 &c, of the 
 crown. 
 
 Perjury by 
 the general 
 inclosure 
 act. 
 
 [book v. 
 
 for the prosecution, trial, and punishment of persons who may give false 
 evidence in any examination or deposition, or affidavit had or taken 
 upon or in any proceeding before the commissary, judges, or commis- 
 sioners, mentioned in the act, or before the secretary or registrar 
 under the treaties, conventions, instructions, or regulations therein men- 
 tioned.^) 
 
 The 10 Geo. 4, c. 50, an act to amend the laws relating to the land 
 revenues of the crown, &c, enacts, by sec. 83, " that any officer or other 
 person, who shall in any verification, or examination upon oath men- 
 tioned in that act, be guilty of wilful and corrupt perjury, shall be liable 
 to be punished in such manner as by the different laws and statutes then 
 in force for the punishment of wilful and corrupt perjury." 
 
 The General Inclosure Act, 41 Geo. 3, c. 109, s. 43, enacts, "that if 
 any person or persons shall in any examination, affidavit, deposition, or 
 affirmation, to be had or taken in pursuance of this act, before such 
 justice or justices, or such commissioner or commissioners, knowingly 
 and wilfully swear and affirm any matter or thing which shall be false 
 or untrue, every such person so offending shall, on conviction thereof, 
 be deemed guilty of perjury, and shall suffer the like pains and penalties 
 as persons guilty of wilful and corrupt perjury are now subject and 
 liable to." 
 
 The Registry Act for the West Riding of Yorkshire, 2 & 3 Anne, c. 4, 
 enacts, by sec. 19, "that if any person or persons shall at any time for- 
 swear himself before the said register or his deputy, or before any judge 
 or master in Chancery, in any of the cases aforesaid, and be thereof 
 lawfully convicted, such person or persons shall incur and be liable to 
 the same penalties, as if the same oath had been made in any of the 
 courts of record at Westminster." A similar provision is contained 
 also in the 5 & 6 Anne, c. 18, which regulates the inrolment of bargains 
 and sales of land, &c, in the same Riding; in the Middlesex Registry 
 Act, 7 Anne, c. 20, s. 15; and also in the 8 Geo. 2, c. 6, s. 33, which 
 relates to the registry of deeds, &c, in the North Riding of the county 
 of York. 
 
 The Bribery Act, 2 Geo. 2, c. 24, gives the form of an oath or affirma- 
 tion (in the case of a Quaker,) to be taken by electors, and the form of 
 an oath to be taken by the returning officer; and then enacts by sec. 5, 
 "that if any returning officer, elector or person, taking the oath or affir- 
 mation hereinbefore mentioned, shall be guilty of wilful and corrupt 
 perjury, or of false affirming, and be thereof convicted by due course 
 of law, he shall incur and suffer the pains and penalties, which by law 
 are enacted or inflicted in cases of wilful and corrupt perjury." 
 
 The 2 Wm. 4, c. 45, entitled " an act to amend the representation 
 of the people of England and Wales," by sec. 58, enacts that in all 
 elections whatever of members to serve in parliament, "no inquiry shall 
 be permitted at the time of polling as to the right of any person to vote, 
 except only as follows ; that is to say, that the returning officer or his 
 respective deputy shall, if recpiired on behalf of any candidate, put to 
 any voter at the time of his tendering his vote, and not afterwards, the 
 following cpuestions or any of them, and no other : 
 
 *613 1. Are you the same person whose name appears as A. B. on the reg- 
 
 Perjury 
 under the 
 Registry 
 Act for 
 Yorkshire 
 and Mid- 
 dlesex. 
 
 Perjury by 
 electors, 
 2 Geo. 2, c. 
 24. 
 
 2 Wm. 4, i 
 
 45, s. 58. 
 False an- 
 swers by 
 voters at 
 elections. 
 
 (q) See also the 6 & 7 Wm. 4, c. 5, s. 8.
 
 CHAP. I.] OF PERJURY, ETC., BY STATUTES. 613 
 
 ister of voters now in force for the county of (or for 
 
 the riding, parts or divisions, &c, or for the city, &c, as the 
 case may be ?) 
 
 2. Have you already voted, either here or elsewhere, at this election for 
 
 the county of (or for the riding, parts, or division of 
 
 the county of or for the city or borough of as 
 
 the case may be ?) 
 
 3. Have you the same qualification for which your name was originally 
 
 inserted in the register of voters now in force for the county of, 
 &c, (or for the riding, &c, or for the city, &c, as the case 
 
 may be, specifying in each case the particulars of the qualification 
 as described in the register?) 
 
 And if any person shall wilfully make a false answer to any of the 
 questions aforesaid, he shall be deemed guilty of an indictable misde- 
 meanor, and shall be punished accordingly,(r) and the returning officer 
 or his deputy, or a commissioner, or commissioners to be for that pur- 
 pose by him or them appointed, shall (if required on behalf of any can- 
 didate at the time aforesaid,) administer an oath (or in case of a Quaker 
 or Moravian, an affirmation) to any voter in the following form : that 
 is to say, 
 
 « You do swear, (or being a Quaker or Moravian, do affirm,) that 
 you are the same person whose name appears as A. B. on the register 
 of voters now in force for the county of (or for the riding, 
 
 parts, or division of the county of or for the city or borough of 
 
 as the case may be,) and that you have not before voted, either 
 here or elsewhere, at the present election for the said county, (or for the 
 said riding, parts, or division of the said county, or for the said city or 
 borough, as the case may be.) 
 
 So help you God."(s) 
 
 And no elector shall hereafter at any such election be required to 
 take an oath or affirmation except as aforesaid, either in proof of 
 his freehold or of his residence, age, or other qualification or right 
 to vote, any law or statute, local or general, to the contrary notwith- 
 standing." 
 
 The same statute by sees. 41 & 50 provides that the Revising Barris- Sec. 52. 
 ters shall hold open courts for the purpose of revising the lists of voters , Pe f r J ur ^ 
 for counties and boroughs, and section 52 enacts, that " every such bar- listers. 
 rister holding any court under this act as aforesaid, shall have power to 
 adjourn the same from time to time, and from any one place to any 
 other place or places within the same county, riding, parts, or division, 
 or within the same city or borough, or within any place sharing in the 
 election for such city or borough, but so as that no such adjourned court 
 shall be held after the 25th day of October in any year ; and every such 
 barrister shall have power to administer an oath (or in the case of a 
 
 (r) Rex v. Harris, 8 7 C. & P. 235, post, p. 671. Reg. v. Dodsworth, b 8 C. & P. 218,;>o«<, 
 p. 672. Reg. v. Irving, 2 M. & Rob. 75, note («), post, p. 762. 
 
 (s) Although the statute does not expressly make the falsely taking this oath either per- 
 jury or a misdemeanor, yet it is conceived that it would be a misdemeanor at common law. 
 See Rex v. De Beauvoir, 7 C. & P. 17, post, p. 726. 
 
 a Eng. Com. Law Reps, xxxii. 503. b lb. xxxiv. 3G0. L lb. xxxii. 422.
 
 *014 OF PERJURY, ETC., BY STATUTES. [BOOK Y. 
 
 Quaker or Moravian, *an affirmation) to all persons making objection 
 to the insertion or omission of any name in any such lists as aforesaid, 
 and to all persons objected to, or claiming to be inserted in any of such 
 lists, or claiming to have any mistake corrected or any omission sup- 
 plied in any such lists, and to all witnesses who may be tendered on 
 either side, and that, if any person taking any oath or making any 
 affirmation under this act, shall wilfully swear or affirm falsely, such 
 person shall be deemed guilty of perjury, and shall be punished accord- 
 
 ingly."(') 
 1 A 2 Yict. The 1 & 2 Vict. c. 48, entitled " an act to amend the laws relating to 
 
 c - 48 - the qualification of members to serve in parliament," after providing 
 
 clarations by sec. 3, that candidates at elections shall make and subscribe the de- 
 by mem- claration therein specified, and by sec. 6, that every person returned as 
 Parlia- a member shall make and subscribe the declaration therein mentioned ; 
 ment. by sec. 7, enacts, that "any person who shall make and subscribe any 
 such declaration as aforesaid, or who shall sign and deliver in any such 
 paper as aforesaid, knowing the same to be untrue in any material par- 
 ticular, shall be deemed guilty of a misdemeanor." 
 4 & 5 Vict. The 4 & 5 Vict. c. 58, entitled " an act to amend the law for the trial 
 c. 58, s. 75. f controverted elections, by sec. 75, enacts, "that where in this act 
 
 it eriury . 
 
 before anything is required to be verified on oath to the House of Commons, 
 election ft shall be lawful for the clerk or clerk assistant of the House of Com- 
 tees. mons to administer an oath for that purpose, or an affidavit for such 
 
 purpose may lawfully be sworn before any justice of the peace or mas- 
 ter of the high Court of Chancery." 
 
 By sec. 76, " every person who shall wilfully give any false evidence 
 before the House of Commons, or any committee or examiner of re- 
 cognizances, under the provisions of this act, or who shall wilfully swear 
 falsely in any affidavit authorized by this act to be taken, shall, on 
 conviction thereof, be liable to the penalties of wilful and corrupt per- 
 jury." 
 6 & 7 Wm. The marriage Act, 6 & 7 Wm. 4, c. 85, s. 38, enacts, that " every 
 P C 'ur as P erson w ^° shall knowingly and wilfully make any false declaration, 
 to marri- or sign any false notice or certificate required by this act, for the pur- 
 ages " pose of procuring any marriage, shall suffer the penalties of per- 
 
 jury."^*) 
 Perjury by The 6 Geo. 4, c. 16, entitled " an act for amending the laws relating 
 and^ther 3 to bankruptcy," enacts, by sec. 99, "that any bankrupt or other person 
 persons ex- who shall, in any examination before the commissioners, or an any affi- 
 amined be- fi av ft or deposition authorised or directed by the present, or any act 
 missioners hereby, repealed, wilfully and corruptly swear falsely, being convicted 
 of bank- thereof, shall suffer the pains and penalties in force against wilful and 
 rup ' corrupt perjury ; and where any oath is hereby directed or required to 
 
 be taken or administered, or affidavit to be made by or to any party, 
 such party, if a Quaker, shall or may make the solemn affirmation, and 
 such Quaker shall incur such danger or penalty for refusing to make 
 *615 such solemn affirmation in such *matters, when thereto required, as is- 
 
 (t) See Reg. v. Thornhill,^os?, p. 647. 
 
 (u) The 3 Geo. 4, c. 75, s. 10, contained a clause making persons wilfully swearing any 
 false oath in order to procure a marriage license, guilty of perjury, but that clause seems 
 to be repealed by the 4 Geo. 4, c. 17, which is repealed by the 4 Geo. 4, c. 76, s. 1, and that 
 act contains no provision making such false swearing perjury, but by sec. 23, provides that 
 where a marriage is procured by false swearing, that party may be caused to forfeit the 
 property obtained thereby in the manner therein provided.
 
 CHAP. I.] OF PERJURY, ETC., BY STATUTES. 615 
 
 hereby provided against persons refusing to be sworn ; and all Quakers 
 who shall in any such affirmation knowingly and willingly affirm falsely 
 shall suffer the same penalties as are provided against persons guilty 
 of wilful and corrupt perjury ; and all persons before whom oaths or 
 affidavits are hereby directed to be made, are respectively empowered 
 to administer the same, and also such solemn affirmation as afore- 
 said."^) 
 
 The 7 Geo. 4, c. 57, entitled, " an act to amend and consolidate the Perjury by 
 laws for the relief of insolvent debtors in England, enacts, by sec. 71 insolvent 
 " that if any prisoner who shall apply for his or her discharge under 
 the provisions of this act, or any other person taking an oath under the 
 provisions of this act, shall wilfully forswear or perjure himself or her- 
 self, in any oath to be taken under this act, and shall be lawfully con- 
 victed thereof, he or she so offending, shall suffer such punishment as 
 may by law be inflicted on persons convicted of wilful and corrupt per- 
 jury ; and that in all cases wherein by this act an oath is required, the 
 solemn affirmation of any person, being a Quaker, shall and may be 
 accepted and taken in lieu thereof; and that every person making such 
 affirmation, who shall be convicted of wilful false affirmation, shall incur 
 and suffer such and the same penalties as are inflicted and imposed upon 
 persons convicted of wilful and corrupt perjury."f 
 
 The 1 & 2 Vict. c. 110, contains in sec. 100 a similar provision. 
 
 The 5 & 6 Wm. 4, e. 62, which was passed for the purpose of abol- 5 & 6 Wm. 
 ishing unnecessary oaths, by sec. 2 enacts, " that in any case where, by ^ c ' L 62 ' d s t ,' 
 any act or acts made or to be made relating to the revenues of customs oftheTrea- 
 or excise, the post-office, the office of stamps and taxes, the office f™J*yem- 
 
 Dowcrcl to 
 
 woods and forests, land revenues, works, and buildings, the war-office, substitute a 
 the army pay-office, the office of treasurer of the navy, the accountant- declaration 
 general of the navy, or the ordnance, his majesty's treasury, Chelsea oat h & 0- 
 Hospital, Greenwich Hospital, the board of trade, or any of the offices * n certain 
 of his majesty's principal secretaries of state, the India board, the office cases 
 for auditing the public accounts, the national debt office or, any office 
 under the control, direction, or superintendence of the lords commis- 
 sioners of his majesty's treasury, or by any official regulation in any de- 
 partment, any oath, solemn affirmation, or affidavit might, but for the 
 passing of this act, be required to be taken or made by any person on 
 the doing of any act, matter, or thing, or for the purpose of verifying 
 any book, entry, or return, or for any other purpose whatsoever, it shall 
 be lawful for the lords commissioners of his majesty's treasury or any 
 three of them, if they shall so think fit, by writing under their hands 
 and seals, to substitute a declaration to the same effect as the oath, solemn 
 affirmation, or affidavit which might, but for the passing of this act, be 
 required to be taken or made; and that the person who might under thi 
 act or acts imposing the same be required to take or make such oath, 
 solemn affirmation, or affidavit, shall, in presence of the commissioners, 
 collector, other officer or person empowered by such act or acts to ad- 
 minister such oath, solemn affirmation, or affidavit, make and subscribe 
 such declaration, and every such commissioner, collector, other officer or 
 person is hereby empowered and required to administer the same accord- 
 ingly." 
 
 (v) See also the 5 & 6 Vict. c. 122, s. 81. 
 
 f J5 Wend. 10, People v. Phelps. lb. 271, People v. Warner.} 
 
 Vol. ii.— 40
 
 *gl6 OF PERJURY, ETC., BY STATUTES. [BOOK V. 
 
 Seo. 3. De- *By sec. 3, the declaration so substituted is to be published in the 
 
 .•laraii.m n. g azette an( j a ft er twenty-one days from the date of the Gazette, the 
 bo publish- ' . <> ' 
 
 ed. provisions ot this act are to apply. 
 
 See. 4. No By sec. 4, "after the expiration of the said twenty-one days it shall 
 .»ath after- no t be lawful for any commissioner, collector, officer, or other person to 
 administer or cause to be administered, or receive or cause to be received, 
 any oath, solemn affirmation, or affidavit, in the lieu of which such de- 
 claration as aforesaid shall have been directed by the lords commission- 
 ers of his majesty's treasury to be substituted." 
 False de- By sec. 5, " if any person shall make and describe any such declara- 
 claratious t j on as herein-before mentioned in lieu of any oath, solemn affirmation, 
 nieanor. or affidavit by any act or acts relating to the revenues of customs or 
 excise, stamps and taxes, or post-office, required to be made on the doing 
 of any act, matter, or thing, or for verifying any book, account, entry, 
 or return, or for any purpose whatsoever, and shall wilfully make therein 
 any false statements as to any material particular, the person making the 
 same shall be deemed guilty of a misdemeanor." 
 
 By sec. 6, the oath of allegiance is to be required in all cases as be- 
 fore the act passed. 
 
 By sec. 7, oaths in courts of justice are to be taken in the same manner 
 as if the act had not passed. 
 Universi- By sec. 8, « it shall be lawful for the Universities of Oxford and 
 ties of Ox- Cambridge, and for all other bodies corporate and politic, and for all 
 Cambridge, bodies now by law or statute, or by any valid usage, authorized to ad- 
 and other minister or receive any oath, solemn affirmation, or affidavit, to make 
 substitute a statutes, by-laws, or orders authorizing and directing the substitution of 
 declaration a declaration in lieu of any oath, solemn affirmation, or affidavit now 
 an oath.° required to be taken or made : provided always that such statutes, by- 
 laws, or orders to be otherwise duly made and passed according to the 
 charter, laws, or regulations of the particular University, other body 
 corporate and politic, or other body so authorized as aforesaid." 
 Church- By sec. 9, "in future every person entering upon the office of church- 
 
 and side*- war d en or sidesman, before beginning to discharge the duties thereof, 
 man's oath shall in lieu of such oath of office, make and subscribe, in the presence 
 ab ° hsl \ ed ' of the ordinary or other person before whom he would, but for the pas- 
 olaration to sing of this act, be required to take such oath, a declaration that he will 
 be made in faithfully and diligently perform the duties of his office, and such ordi- 
 £ ' nary or other person is hereby empowered and required to administer 
 
 the same accordingly : provided always, that no churchwarden or sides- 
 man shall in future be required to take any oath on quitting office, as 
 has heretofore been practised." 
 Declara- By sec. 10, "in any case where, under any act or acts for making, 
 
 tion substi- maintaining, or regulating any highway, or any road, or any turnpike 
 oaths and road, or for paving, lighting, watching, or improving any city, town, or 
 affidavits place, or touching any trust relating thereto, any oath, solemn affirma- 
 aJtmghT 8 ti° n > or affidavit, might, but for the passing of this act, be required to be 
 turnpike taken or made, by any person whomsoever, no such oath, solemn 
 trusts. affirmation, or affidavit shall in future be required to be or be taken 
 or made, but the person who might under the act or acts imposing 
 the same be required to take or make such oath, solemn affirmation, or 
 affidavit, shall, in lieu thereof, in the presence of the trustee, commis- 
 *617 sioner, or other person before whom he might *under such act or acts 
 be required to take or make the same, make and subscribe a declaration
 
 CHAP. I.] OF PERJURY, ETC., BY STATUTES. 617 
 
 to the same effect as such oath, solemn affirmation, or affidavit, and 
 such trustee, commissioner, or other person is hereby empowered and 
 required to administer and receive the same." 
 
 By sec. 11, "whenever any person or persons shall seek to obtain Declara- 
 any patent under the great seal for any discovery or invention, such per- tion substi - 
 son or persons shall in lieu of any oath, affirmation, or affidavit which oaths a°nd 
 heretofore has or might be required to be taken or made upon or before affidavits 
 obtaining any such patent, make and subscribe, in the presence of the requirlcUn 
 person before whom he might, but for the passing of this act, be required taking out 
 to take or make such oath, affirmation, or affidavit, a declaration to the a patent - 
 same effect as such oath, affirmation, or affidavit; and such declaration, 
 when duly made and subscribed, shall be to all intents and purposes as 
 valid and effectual as the oath, affirmation, or affidavit in lieu whereof 
 it shall have been so made and subscribed." 
 
 By sec. 12, "where by any act or acts at the time in force for regu- Declara- 
 lating the business of pawnbrokers, any oath, affirmation, or affidavit | 10n substl - 
 might, but for the passing of this act, be required to be taken or made, oaths and 
 the person who by or under such act or acts might be required to take affida-rits 
 or make such oath, affirmation, or affidavit shall in lieu thereof make ac t s as to ' 
 and subscribe a declaration to the same effect; and such declaration pawnbro- 
 shall be made and subscribed at the same time, and on the same occa- 
 sion, and in the presence of the same person or nersons, as the oath, 
 affirmation, or affidavit in lieu whereof it shall be made and subscribed 
 would by the act or acts directing or requiring the same to be directed 
 or required to be taken or made ; and all and every the enactments, 
 provisions, and penalties, contained in or imposed by any such act or Penalties 
 acts, as to any oath, affirmation, or affidavit thereby directed or required as *° s « cu 
 to be taken or made, shall extend and apply to any declaration in lieu to 'j- ^ 
 thereof, as well and in the same manner as if the same were herein declara- 
 expressly enacted with reference thereto." 
 
 Sec. 13, reciting that " a practice has prevailed of administering and Justices are 
 receiving oath and affidavits voluntarily taken and made in matters not jj^istw 
 the subject of any judicial inquiry, nor in anywise pending or at issue oaths, <&c., 
 before the justice of the peace, or other person by whom such oaths or touchlu S 
 affidavits have been administered or received," and that "doubts have thereof 
 arisen whether or not such proceeding is illegal, for the more effectual they have 
 suppression of such practice and removing such doubts," enacts, " that tio *[ w 8ta . 
 from and after the commencement of this act, it shall not be lawful for tutc. 
 any justice of the peace or other person to administer, or cause or allow 
 to be administered, or to receive, or cause or allow to be received, any 
 oath, affidavit, or solemn affirmation touching any matter or thing 
 whereof such justice or other person hath not jurisdiction or cognizance 
 by some statute in force at the time being :(a) provided always, that Proviso, 
 nothing herein contained shall be construed to extend to any oath, affi- 
 davit, or solemn affirmation before any justice in any matter or thing 
 touching the preservation of the peace, or the prosecution, trial, or pun- 
 ishment of offences, or touching any proceedings before either of the 
 houses of parliament or any committee thereof respectively, nor to any 
 oath, affidavit, or affirmation which may be required by the laws of any 
 foreign country to *give validity to instruments in writing designed to. *G18 
 be used in such foreign countries respectively." 
 
 (a) See Reg. v. Nott,» 1 0. & Mars. 288, post, p. CT3. 
 1 Eng. Com. Law Reps. xli. 161.
 
 618 OF PERJURY, ETC., BY STATUTES. [BOOK V. 
 
 Declara- By sec. 14, " in any case in which it has been the usual practice of 
 
 'u^f for'' tne B an k °f England to receive affidavits on oath to prove the death of 
 
 oaths ami any proprietor of any stocks or funds transferable there, or to identify 
 
 affidavits tne p erson f an y such proprietor, or to remove any other impediment 
 
 Bank of to the transfer of any such stocks or funds, or relating to the loss, muti- 
 
 Enslandoni at i 011j or defacement of any bank-note or bank post bill, no such oath 
 
 f stock. ° or affidavit shall in future be required to be taken or made, but in lieu 
 
 thereof the person who might have been required to take or make such 
 
 oath or affidavit shall make and subscribe a declaration to the same 
 
 effect as such oath or affidavit." 
 
 By sec 15, declarations are substituted in lieu of the oaths required 
 by the 5 Geo. 2, c. 7, " an act for the more easy recovery of debts in 
 his majesty's plantations and colonies in America," and the 54 Geo. 3, 
 c. 15, " an act for the more easy recovery of debts in his majesty's 
 colony of New South Wales." 
 Declara- By sec. 16, " it shall and may be lawful to and for any attesting 
 writing suf- witness to the execution of any will or codicil, deed, or instrument in 
 ficient to writing, and to and for any other competent person, to verify and 
 prove exe- p rove ^he s ig U ing, sealing, publication, or delivery of any such will, 
 any will, codicil, deed, or instrument in writing, by such declaration in writing 
 codicil, &c. ma( j e as aforesaid, and every such justice, notary, or other officer shall 
 be and is hereby authorized and empowered to administer or receive such 
 declaration." 
 Suitsonbe- By sec. 17, "in all suits now depending or hereafter to be brought 
 half of his ' Q aQ y cour £ f ] aw or equity by or in behalf of his majesty, his heirs 
 be proved and successors, in any of his said majesty's territories, plantations, colo- 
 ny declara - n ies, possessions, or dependencies, for or relating to any debt or account, 
 that his majesty, his heirs and successors, shall and may prove his and 
 their debts and accounts, and examine his or their witness or witnesses 
 by declaration, in like manner as any subject or subjects is or are em- 
 powered, or may do by this present act." 
 Voluntary g ec . lg ; reciting that " it may be necessary and proper in any cases 
 in the form not herein specified to require confirmation of written instruments or 
 of the sche- allegations, or proof of debts, or of the execution of deeds or other mat- 
 taken iay e te TS >" enacts, that "it shall and may be lawful for any justice of the 
 peace, notary public, or other officer now by law authorized to adminis- 
 ter an oath, to take and receive the declaration of any person voluntarily 
 "Making a making the same before him in the form in the schedule to this act 
 ration a " annexed ; and if any declaration so made shall be false or untre in 
 misde- any material particular, the person wilfully making such false declara- 
 imeanor. t j 0Q gj^jj ^ Q kerned guilty f a misdemeanor." (w) 
 Persons By sec. 21, " in any case where a declaration is substituted for an oath 
 
 fal* 1 d g 1 un( ^ er tne aut hority of this act, or by virtue of any power or authority 
 rations hereby given, or directed and authorized to be made and subscribed 
 deemed under the authority of this act, or by virtue of any power hereby given, 
 misde- any person who shall wilfully and corruptly *make and subscribe any 
 meanor. suc h declaration, knowing the same to be untrue in any material parti- 
 ol ^ cular, shall be guilty of a misdemeanor." 
 
 (ic) By sect. 19, the same fees are payable on declarations as on the oaths, in lieu of 
 which they are made. By sect. 19, the declaration is to be in the form following: — " I, A. 
 B., do solemnly and sincerely declare, that and I make this solemn declaration con- 
 
 scientiously believing the same to be true, and by virtue of the provisions of an act made 
 and passed in the year of the reign of his present majesty, entitled an act." [hire insert 
 
 the title of this act.~\
 
 CHAP. I.] OF PERJURY, E TC., BY STATUTES. 619 
 
 By sec. 22, the act commenced on the 1st October, 1835. (x) 
 
 There are also some statutes of limited and local operation, which Perjury by 
 contain enactments respecting perjury, a few of which may be briefly statut es of 
 noticed. The 11 Geo. 1, c. 18, s. 3, relates to false oaths taken at elec- S2!jSJ 
 tions for the city of London; the 44 Geo. 3, c. 60, s. 4, to perjury at tion - 
 elections for Aylesbury ; the 47 Geo. 3, sess. 2, c. 109, s. 123 (local 
 act) to perjury under the Dublin Improvement act ; the 47 Geo. 3, 
 sess. 2, c. 68, s. 149, 56 Geo. 3, c. 21, s. 49, and 56 Geo. 3, c. 78, s. 
 50, (local acts) relate to false oaths taken in the course of the vending 
 admeasurement, &c, of coals in London, and certain places in the neigh- 
 bouring counties ; and the 54 Geo 3, c. 99, s. 16, (local act) to false 
 oaths taken in respect of bread sold in London, or within the bills of 
 mortality. These statutes, and others of a similar kind, either provide 
 that the offenders shall be punishable under the 5 Eliz. c. 9, and the 
 2 Geo. 2, c. 25, s. 2, or (which is more generally the case) enact, "that 
 they shall be subject and liable to the pains and penalties, which per- 
 sons convicted of wilful and corrupt perjury are subject and liable to." 
 
 With respect to the first of the statutes above set forth, namely the Construc- 
 5 Eliz. c. 9, as it is but little resorted to at the present time, on account tion of the 
 of prosecutions upon it being more difficult than at the common law ; 1Z * ( 
 and as it did not alter the nature of the offence, but merely enlarged 
 the punishment,(y) a brief statement of some of the principal points 
 decided upon its construction will probably be deemed sufficient. 
 
 In many instances an indictment will lie at common law, when it will 
 not lie upon this statute. Thus where a witness for the king swears 
 falsely, he cannot be indicted on the statute. (2) 
 
 It has been adjudged that a man cannot be guilty of perjury within 
 this statute, in any case wherein he may not possibly be guilty of 
 subornation of perjury within it; on the ground that it is reasonable to 
 give the whole statute the same construction ; and that it cannot well 
 be intended that the makers of it meant to extend its purview farther 
 as to perjury, which they appear to have considered as the less crime, 
 than to subornation of perjury, which they seem to have esteemed the 
 greater: and, therefore, since the clause concerning subornation of per- 
 jury, mentioning only matters depending by writ, bill, plaint, or infor- 
 mation, concerning hereditaments, goods, debts, or damages, &c, does 
 not extend to perjury on an indictment or criminal information ; the 
 clause concerning perjury, though penned in more general words, has 
 been adjudged to come under the like restriction. (a) And it has also 
 been resolved, that as the clause concerning subornation of perjury 
 relates only to perjury by witnesses, that concerning perjury extends to 
 no other perjury than that of a * witness ; and, therefore, not to perjury *020 
 in an answer in Chancery; or in swearing the peace against a man; or 
 in a presentment by a homager in a court baron, or in a wager of law, 
 or in swearing before commissioners of the king's title to lands. (i) And 
 by the opinions of some, a false affidavit against a man, in a court of 
 
 (x) The number of statutes which contain clauses making persons giving false evidence, 
 making false affidavits, &c, either liable to the punishment of perjury or guilty of a mis- 
 demeanor, is so large that it is conceived they would occupy more space than the infre- 
 quency of the occasions on which it may lie necessary to consult them, warrants devoting 
 to their insertion; all of them, therefore, have not been inserted. 0. S. G. 
 
 (y) Buxton v. Gouch, 3 Salk. 269. (z) Id. ibid. 
 
 (a) Bac. Ab. tit. Perjury, (B). 1 Hawk. P. C. c. G9, s. 19. 
 
 (6) 1 Hawk. P. C. c. 69, S. 20. Bac. Ab. tit. Perjury, (B).
 
 620 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 justice is not within the statute. (c) But it is observed that if such 
 affidavit be by a third person, and relate to a cause depending in suit, 
 before the court, and either of the parties in variance be grieved, hind- 
 dered, or molested, in respect of such cause, by reason of the perjury, 
 it may be strongly argued that it is within the purview of the statute. ((2) 
 It seems to be the better opinion that a false oath before the sheriff on 
 a writ of inquiry of damages, is within the statute. (e) 
 
 It has been collected from the clause giving an action to the party 
 grieved, that no false oath is within the statute, which does not give 
 same person a just cause of complaint ; and, therefore, that if the thing 
 sworn be true, though it be not known by him that swears it to be so, 
 the oath is not within the statute, because it gives no good ground of 
 complaint to the party, who would take advantage of another's want of 
 sufficient evidence to make out the justice of the cause. (/) And upon 
 the same ground no false oath can be within the statute, unless the 
 party against whom it was sworn suffered some disadvantage by it : 
 therefore, in every prosecution on the statute, it is necessary to set forth 
 the record wherein the perjury is supposed to have been committed, 
 and to prove at the trial that there is such a record, either by actually 
 producing it, or by an attested copy; and it is necessary not only to set 
 forth in the pleadings the point wherein the false oath was taken, but 
 to show also how it conduced to the proof or disproof of the matter in 
 question. (<?) And if an action on the statute be brought by more than 
 one, it is necessary to show how the perjury was prejudicial to each of 
 the plaintiffs. (A) But it seems that a perjury, which tends only to 
 aggravate or extenuate the damages, is as much within the statute as a. 
 perjury that goes directly to the point in issue ; and that perjury com- 
 mitted in a cause wherein an erroneous judgment is given, is a good 
 ground of a prosecution upon the statute till the judgment be re- 
 versed. (A 
 Indictment It has been holden that every indictment or action upon this statute 
 Eliz c 9 must > exactly pursue the words of it ; and, therefore, if it allege that 
 the defendant deposed such a matter /also et deceptive, or falso et cor- 
 rupte, or falso et voluntarie, without saying voluntarie et corrupte, it 
 is not good, though it conclude that sic voluntarium et corruptum 
 commisit perjuriam contra formam statuti, &c. Also it is said to be 
 necessary expressly to show that the defendant was sworn ; and that it 
 is not sufficient to say that tacto per se sacro evangelio deposuit. But 
 *621 there is no need to *show whether the party took the false oath through 
 the subornation of another, or of his own act, though the words of the 
 statute are, " Ifpe7'sons by subornation, &c, or their own act, &c, shall 
 commit wilful perjury ;" for there being no medium between the 
 branches of this distinction, they seem to be put in ex abundanti, and 
 
 (c) 2 Roll. Ab. 11. 1 Roll. 19. 3 Keb. 345. 
 
 (d) 1 Hawk. P. C. c. 69, s. 21. 
 
 (e) Bac. Ab. tit. Perjury, (B). 1 Hawk. P. C. c. 69, s. 21. 
 
 (/) 1 Hawk. P. C. c. 69, s. 22. Bac. Ab. tit. Perjury, (B). We have seen tbat this is 
 otherwise at common law. Ante, p. 597. 
 
 (y) Bac. Ab. tit. Perjury, (B). 1 Hawk. P. C. c. 69, s. 23. (h) Id. ibid. 
 
 (i) 1 Hawk. P. C. c. 69, s. 23. Bac. Ab. tit. Perjury, (B). In 1 Hawk. P. C. c. 69, s. 4. 
 there is a qu. whether perjury in a court, whose proceedings are afterwards reversed by 
 error, may not still be punished as perjury, notwithstanding such reversal? See Reg. v. 
 Meek, ante, p. 603.
 
 CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 621 
 
 to express no more than the law would have implied, and therefore, 
 operate nothing. (/) 
 
 It seems that if perjury be committed that is within this statute, but 
 the indictment concludes not contra formam statuti, yet it is a good 
 indictment at common law, but not to bring the offender within the cor- 
 poral punishment of the statute. "(k\ 
 
 For the purpose of facilitating prosecutions for perjury, and of pre- Facilities 
 venting great offenders from escaping punishment by reason of the ex- S iven t0 
 pense attending such prosecutions, the 23 Geo. 2, c. 11, s. 3, enacts, uonTfor 
 " that it shall and may be lawful to and for any of his majesty's justices perjury. 
 of assize, or nisi prius, or general gaol delivery, or of any of the great ^n^ 3 
 sessions of the principality of Wales, or of the counties palatine; and The judges 
 they are hereby authorized (sitting the court, or within twenty-four ^ f assize ' 
 hours after) to direct any person examined as a witness upon any trial direct any 
 before him or them, to be prosecuted for the said offence of perjury, i u ^ itness t0 
 case there shall appear to him or them a reasonable cause for such pro- ted for per- 
 secution, and that it shall appear to him or them proper so to do; andJ ur y- :uui 
 to assign the party injured, or other persons undertaking such prosecu- counsel 
 tion, counsel, who shall and are hereby required to do their duty with- &c. 
 out any fee, gratuity, or reward for the same ; and every such prosecu- 
 tion, so directed as aforesaid, shall be carried on without payment of 
 any tax or duty, and without payment of any fees in court, or to any 
 officer of the court who might otherwise claim or demand the same. 
 And the clerk of assize or his associate or prothonotary, or other proper 
 officer of the court, (who shall be attending when such prosecution is 
 directed) shall, and is hereby required, without any fee or reward, to 
 give the party injured, or other person undertaking such prosecution, a 
 certificate of the same being directed, together with the names of the 
 counsel assigned him by the court, which certificate shall in all cases be 
 deemed sufficient proof of such prosecution having been directed as 
 aforesaid, provided that no such direction or certificate shall be given in 
 evidence upon any trial to be had against any person upon a prosecu- 
 tion so directed as aforesaid." 
 
 The same statute also makes provisions for the more easy framing of Provision 
 indictments for perjury and subornation of perjury. The first section n ^ re ® 
 reciting that by reason of the difficulties attending prosecutions for per- framing ot 
 jury and subornation of perjury, those heinous crimes had frequently 
 gone unpunished, enacts, " that in every information or indictment to be 
 prosecuted against any person for wilful and corrupt perjury, it shall be 
 sufficient to set forth the substance of the offence charged upon the de- 
 fendant, and by what court, or before ivhom the oath was taken (aver- 
 ring such court, or person or persons to have a competent authority to 
 administer the same) together with the proper averment or averments 
 to falsify the matter or matters, wherein the perjury or perjuries is or 
 are assigned, without setting *forth the bill, answer, information, indict- *622 
 ment, declaration, or any part of any record or proceeding, either in law 
 or in equity, other than as aforesaid, and without setting forth the com- 
 mission or authority of the court, or person or persons before whom the 
 perjury was committed." And the second section enacts, " that in every 
 information or indictment for subornation of perjury, or for corrupt 
 
 (,/) 1 Hawk. P. C. C. 69, ss. 17, 18. Bac. Ab. tit. Perjury, (B), and the authorities there 
 cited. 
 
 (k) 2 Hale, 191, 102. See this case cited, vol. 1, \>. Cr.5. 
 
 indict- 
 ments.
 
 022 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 bargaining or contracting with others to commit wilful and corrupt per- 
 jury, it shall be sufficient to set forth the substance of the offence 
 charged upon the defendant, without setting forth the bill, answer, in- 
 formation, indictment, declaration, or any part of any record or pro- 
 ceeding, either in law or equity, and without setting forth the commis- 
 sion or authority of the court, or person or persons before whom the 
 perjury was committed, or was agreed or promised to be committed. "f 
 The provi- It was lamented by a very learned judge, that the party prosecuting 
 this statute ^ or P ei 3 UT y> did n0 *> more frequently avail himself of this excellent law, 
 should be made for the purpose of obviating difficulties in drawing the indict- 
 l "drawim° ments -(0 I Q tne case in which this remark was made, the commission at 
 indict- ° the Admiralty session had been unnecessarily set forth in the indict- 
 ments, nient ; and it was admitted that where a prosecutor undertakes to set 
 out in the indictment more of the proceedings than he need under this 
 statute, he must set them forth correctly : but it was holden that the 
 commission at the Admiralty session being set forth as directed to A., 
 B., and C, and others not named, of which number A., B., and C, 
 amongst others, should alicays be one, the court must take it to mean 
 that if either of the persons, named of the quorum, were present, it 
 would be sufficient. (m) 
 Several It has been holden, on motion in arrest of judgment, that several 
 
 tobejefiued P ersons cannot be joined in one indictment for perjury, the crime being 
 in an in- in its nature several. {n\ But this does not apply to subornation of per- 
 
 for perjury. J J'\ ) 
 
 Venue. With respect to the venue in an indictment for perjury it may be 
 
 briefly observed that the parish or place, unless used as giving some 
 specific local description, will not be material, and that it will be suffi- 
 cient to show the offence committed any where within the county. But 
 it seems to be necessary that a place should be stated in the indictment 
 to which a venue may be properly awarded ; and an indictment was 
 holden to be bad for laying the offence to have been committed " at the 
 Guildhall of the city of London," without stating any parish or ward.(/>) 
 *623 In a case where *perjury had been committed in the booth-hall within 
 the limits of the city of Gloucester, which is a county of itself, on the 
 trial of a cause before a jury of the county at large, it was holden that 
 
 (I) By Lord Kenyon, C. J., in Rex v. Dowlin, 5 T. R. 317. And a case is mentioned in 
 which the court of K. B. referred an indictment for perjury, which had been removed from 
 Hick's Hall, to the master, to see what part of the record was unnecessary; and made an 
 order that the clerk of the peace should pay the expense incurred by such unnecessary part. 
 The indictment was drawn to an exorbitant length, by stating all the continuances on the 
 former prosecution, &c. 1 Leach, 201. 
 
 (m) Rex v. Dowlin, 5 T. R. 311. 
 
 (n) Rex v. Philips and another, 2 Str. 921. 
 
 (o) Reg. v. Rhodes and another, 2 Ld. Raym. 886. In Reg. v. Goodfellow and ar .her, 
 Stafford Spr. Ass. 1842, one defendant was indicted for perjury, and the other for suborning 
 him to commit the perjury, and no objection taken to both being included iu the sa;/ ' in- 
 dictment ; and it should seem none could have been successfully taken on that gro' is 
 it is like the case of principal and accessory before the fact, included in the same ovr- 
 ment. C. S. G. dict- 
 
 (p) Harris's case, 2 Leach, 800. But it may perhaps be doubted whether this '.' ere 
 would be considered a binding authority since the 6 Geo. 4, c. 50, s. 13, and see'xt- ack. 
 Woodward, R. & M. C. C. R. 323, ante, p. 568. C. S. G. 
 
 f {The 19th and 20th sections of the statutes of the United States, 1790, c. 36.are a trans- 
 cript of these sections 1 and 2, of statute 23 Geo. 2. 
 
 It is not necessary, even at common law. that the indictment should specifically Stat* the 
 fact which the defendant attempted to procure the witness to swear to. 1 McCord, 31, State 
 v. Holding.}
 
 CHAP. I.] OF PERJURY, ETC.— INDICTMENT. 623 
 
 the indictment might be found and tried by juries of the county at 
 large. (5) And where perjury had been committed on the trial of an 
 indictment at the Worcestershire Quarter Sessions, which were held in 
 the Guildhall at Worcester, which is situate in the county of the city of 
 Worcester, it was held that the indictment, which was found by the 
 grand jury of the county of the city of Worcester was good, as it was 
 preferred in the county where the oath was actually taken. (r) A suffi- 
 cient venue was holden to be laid on the act of taking the false oath in 
 a case where perjury was assigned on an affidavit of an attorney of the 
 court made in answer to a summary application against him, and where 
 it was objected that it was not stated where the court was holden when 
 the original application was made, or when the rule was made, calling 
 upon the defendant to answer the charge, it being expressly averred 
 that the defendant "then and there before the said court was duly 
 sworn. "(s) In the instance of making an affidavit in the county, the 
 party is not to be indicted where the affidavit may happen to be used, 
 but in the county where the offence was complete, by making the false 
 oath.(/) 
 
 The indictment must also contain an allegation of time, which is some- Allegation 
 times material and necessary to be laid with precision, and sometimes °^ ''". me } n 
 not.(w) Where it is not material, it need not be positively averred ; and men t. 
 if, under a videlicet, it may be rejected. (v\ In a case where an indict- 
 ment for perjury, charged to have been committed in the defendant's 
 answer to a bill of discovery filed in the Court of Exchequer, alleged 
 that the bill was filed on a day specified, it was holden that the day was 
 not material, as it was not alleged as part of the record; and therefore, 
 that it was no variance, though the bill, when produced, appeared to be 
 entitled generally of a preceding term.(w) But in the same case where 
 an assignment of perjury alleged that the defendant, at the time of 
 effecting a policy of insurance purporting to have been underwritten by 
 A., B., C, and others, on a day specified, well knew, &c, and it appeared 
 on producing the policy that A. underwrote it on a different day, the 
 defect was holden to be fatal, although it appeared that B., C, &c, did 
 underwrite the policy on that day.(x) Where the perjury was assigned 
 in answer to a bill alleged to have been filed in a particular term, and 
 a copy produced was of a bill amended in a subsequent term, by order 
 of the court, it was held to be no variance, the amended bill being part 
 of the original bill.(y) So it has been held on indictment for perjury 
 committed on the trial of a cause at nisi prius to be no variance that 
 the nisi prius *record states the trial to have been on a day different *624 
 from that stated in the indictment, there being no express reference in 
 the i ^dictment to the record. (z) 
 
 (g^ Rex v. Gough, Dougl. 760. In this case a charter had made Gloucester a county of 
 itsi -eserving only the trial of matters arising in the county at large within Gloucester as 
 v j* The judges intimated their opinion that the indictment might he in either county, 
 
 pr were clear it might be in the county at large. 
 
 1 ' .ex v. Jones,* 6 C. & P. 137, Tindal, C. J. 
 
 a ' ex v. Crossley, 7 T. R. 315, ante, p. 598. (/) By Lord Kcnyon, C. J. Id. ibid, 
 otf j Rex v. Aylett, 1 T. R. G9. (v) Rex v. Aylett, 1 T. R. 70, 71. 
 
 u)) Rex v. Hucks, b cor. Lord Ellenborough, C. J., 1 Stark. R. 621. And see Rastall v. 
 jtratton, 1 H. B. 49. Woodford v. Ashley, 4 Campb. 193, and 1 Stark. Crim. Plead. 122. 
 (x) Rex v. Hucks, 1 Stark. R. 521. 
 
 \y\ Rex v. Waller, Mich., G Geo. 1. 3 Stark. Evid. 856. 
 
 (z)- Rex v. Coppard, Moo. & M. 118. 3 C. & P. 69, jw Lord Tcntcrden, C. J., on the 
 » Eng. Com. Law Reps. xxv. 320. b lb. ii. 494. ° lb. xiv. 210.
 
 624 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 Necessary It is proper to make such a statement by way of indictment as will be 
 ^ t^in sufficient to explain the assignment of perjury, and make it intelligible 
 dictment. and consistent. And the statements in the indictment must, in general, 
 Variances. ^ e ma j e w ith great accuracy. An indictment for perjury stating a bill 
 of Middlesex as "issuing out of the office of the chief clerk assigned to 
 inrol pleas in the court, &c," has been holden to be bad. (a) And a mis- 
 recital of the judgment-roll of the cause, at the trial of which the per- 
 jury is alleged to have been committed, is also fatal. (&) And if the 
 indictment state that at the assizes, holden before justices assigned to 
 take the said assizes, the oath was taken before A. B., one of the said 
 justices, the said justice then and there having power, &c, it will be a 
 fatal variance if the oath was administered when the judge was sitting 
 under the commission of oyer and terminer and gaol delivery. (c) And 
 where an indictment for perjury, committed in a written deposition 
 before a magistrate, in which deposition a word necessary to the sense 
 had been omitted, set out the substance and effect of the deposition, and 
 supplied a word which the sense required, as though it were actually 
 in the deposition, the variance was holden to be fatal. (</) And when 
 a count in an indictment undertakes to set out continuously the sub- 
 stance and effect of what the defendant swore upon his examination, it 
 must be proved that in substance and effect he swore the whole of 
 what is set out, though several distinct assignments of perjury are made 
 thereon. (e\~f 
 False state- Where perjury is assigned upon several parts of an affidavit, and sueh 
 m ® Dt ^ . parts are set out continuously, it is no variance if such parts are sepa- 
 an affidavit rated by other intervening matter, provided what intervenes does not 
 or in evi- var y ^g effect of what is set out. An indictment for perjury alleged to 
 
 dence may , ' . .,. «.'■■'• • it 
 
 be set out nave been committed in an amdavit, set out various matters deposed to 
 
 continu- as if they had been continuous in the affidavit, but on the production of 
 
 *625 the affidavit, it appeared that the parts set *out in the indictment were 
 
 authority of Purcell v. Macnamara, 9 East, 156, where, in an action for malicious prosecu- 
 tion, it was held to be no variance that the record of acquittal stated the acquittal to have 
 been on a different day from that laid in the declaration, as the day named in the declara- 
 tion was not laid as part of the description of the record of the acquittal. 
 
 (a) Rex v. Scole, cor. Kenyon, C. J., Peake, N. P. R. 112. 
 
 (b) Rex v. Eden, cor. Kenyon, C. J., 1 Esp. R. 97. The indictment alleged that the cause 
 came on to be tried before Lloyd, Lord Kenyon, &c, William Jones being associated, &c. ; 
 and from the judgment roll it appeared that Roger Kenyon was associated, &c. ; and the 
 variance was held to be fatal. 
 
 (c) Rex v. Lincoln, Mich. T. 1820, MS. Bayley, J., and Russ. & Ry. 421. 
 
 (d) Rex v. Taylor, cor. Ellenborough, C. J., 1 Campb. 104. The deposition should have 
 been set out literally, and the meaning explained by an innuendo. The indictment stated 
 that the defendant went before a justice of the peace, and swore in substance to the effect 
 following, that is to say, &c, and part of the deposition so set forth, was that a person 
 therein named assaulted the deponent with an umbrella and, at the same time, threatened to 
 shoot her with a pistol ; but when the deposition was produced it appeared that after stating 
 the assault with the umbrella, it proceeded thus, " and at the same threatened to shoot," 
 &c, omitting the word time. 
 
 (e) Rex v. Leefe, cor. Ellenborough, C. J., 2 Campb. 134, post, note (k). It appears. Ii5w- 
 ever, that in Reg. v. Rhodes and another, 2 Lord Raym. 886, it was holden, upon an iniict- 
 ment containing only one count, that although all the assignments of perjury but one were 
 bad, judgment should not be arrested. And see Compaernon and wife v. Martin, 2 Black. 
 R. 790. 
 
 f {In a prosecution for perjury, if the indictment sets forth that a " warrant for debt by 
 account for rent," was sued out by the defendant — and the warrant given in evidence 
 shows that the claim was not for rent, but for other things; this is such a variance as to 
 exclude the warrant from being given in evidence. 2 Virginia Cases, 323, Commonwealth 
 v. Hickman.
 
 CHAP. I.] OF PERJURY, ETC.— INDICTMENT. 625 
 
 not continuous but were separated by tbe introduction of other matter, ously 
 It was contended that there was clearly a variance between the affidavit matter i 
 set out in the indictment and that given in the evidence. The proper tervene, if 
 mode of stating it was, " in one part whereof the defendant swore such ^uch matter 
 and such things, and in another part whereof he swore certain other the^r effect! 
 things." In actions or indictments for libel such a variance would 
 clearly be fatal. Abbott, C. J., " In actions or indictments for libel the 
 tenor must be set out; in indictments for perjury it is sufficient to state 
 the substance and effect of the false oath ; the variance pointed out is 
 therefore immaterial."(/) And the same has been held as to evidence 
 given upon a trial. An indictment for perjury committed on the trial of 
 an action for assault and battery, charged the defendant with having 
 sworn that the plaintiff spit in the defendant's face before the defendant 
 struck him, and that he, the defendant in the indictment, had not said 
 certain words, and assigned perjury on both statements. The evidence 
 given by the defendant on the former trial contained all the matter 
 charged as perjury, but other matter intervened between the statement 
 as to the spitting and that as to the words. It was objected that this 
 was a variance, as the evidence charged as perjury in the indictment 
 appeared to have been given continuously; but Abbott, C. J., held it 
 was immaterial, as what intervened did not vary the effect of what was 
 stated. fa) 
 
 In an indictment for perjury committed before a select committee of Mode of 
 the House of Commons, it was averred that the election was held by s * atl °S 
 virtue of a certain precept of the high sheriff, by him duly issued to the returns. 
 bailiff of the borough of New Malton ; and it was holden that this was 
 not matter of description, and that the production of a precept, which 
 in fact issued to the bailiff of the borough of New Malton, though 
 directed to the bailiff of the borough of Malton, was sufficient ; but the 
 indictment also stated that A. and B. were returned to serve as bur- 
 gesses for the said borough of New Malton ; and this was considered as 
 a description of the indenture of return, in which the borough was 
 described as the borough of Malton, and the variance was holden to be 
 fatal. (A) But where an information for perjury committed before a select Committee 
 committee of the House of Commons, stated that the committee was »*" the 
 chosen to try and determine the merits of an election, and that the com- Commons, 
 mittee were sworn " to try the merits of the petition referred to them;" 
 it was held that the committee was well described, although by the 
 10 Geo. 3, c. 16, s. 13, they were to be a committee " to try and deter- 
 mine the merits of the return or election. "(i) 
 
 An indictment may be supported upon an answer in a court of equity, Proceed- 
 though the'answer is not correctly entitled and the name of one of the {gjjjjj_ 
 parties be mistaken. Thus where an indictment alleged that Francis 
 Cavendish Aberdeen and others exhibited their bill in the Exchequer, &c. 
 and on the production of the bill, the complainants on the face of it pur- 
 ported to be J. G. Aberdeen, and others, it was holden that this was not 
 a variance, and that it was competent to the prosecutor to prove, by 
 other means than *by the bill itself, the allegation that Francis Caven- *626 
 
 (/) Rex v. Callanan, tt 6 B. & C. 102. 
 (a) Rex v. Solomon, b R. & M. N. P. R. 252. 
 
 (h) Rex v. Leefe, 2 Campb. 134. (t) Rex t>. Dunn," 1 Howl, k R. 10. 
 
 *Eng. Com. Law Reps. xiii. 102. Mb. xxi. 430. c lb. xvi. 11.
 
 626 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 dixit Aberdeen did, in fact, exhibit this bill. (A And it was further 
 holden not to be a variance, although after the allegation in question, 
 and after setting out such parts of the bill as were necessary, these 
 words were added, "as appears by the said bill, &c, filed of record;" 
 on the ground that these words referred to the last antecedent, and 
 could not be considered as incorporated with the prefatory allegation 
 that Francis Cavendish Aberdeen exhibited his bill. (A;) And in an 
 indictment for perjury committed in an answer to a bill in Chancery 
 where the bill was stated to have been filed by A. against B. (the de- 
 fendant in the indictment) and another, though in fact it was filed against 
 B., C, and D., the variance was holden not to be fatal ;f the perjury 
 being assigned on a part of the answer which was material between 
 A. and B.(?) So where an indictment for perjury in answer to a bill 
 in chancery described the bill as exhibited against three persons only, 
 viz., A., B., and C, and the bill when produced appeared to be against 
 A., B., and D ; Abbott, C. J., held that this was not a fatal variance, 
 and that the bill produced must be considered as the same described in 
 the indictment. If the indictment had professed to set forth the title 
 of the bill, such a variance would have been fatal, but the bill was sub- 
 Ecclesias- stantially described, and that was sufficient. (m) So if an indictment 
 tical Court. £ or p er j ul y s t a t e that there was a suit depending in the Ecclesiastical 
 Court between W. Peacock and Pi. Miles, and the proceedings in that 
 court state that the suit was between W. Peacock and R. Miles, the 
 elder; this is no variance. (n) And it has been holden, that though 
 there be two counts in the original proceeding, an averment that an 
 issue came on to be tried is not a variance. (o) 
 
 And a variance between the affidavit actually sworn, and in which 
 the perjury was charged to have been committed, and the affidavit 
 stated in the indictment, by leaving out the letter s iu the word under- 
 stood, was holden to be immaterial. (jj) In a subsequent case, the 
 defendant was tried on an indictment for perjury, committed in giving 
 evidence as the prosecutor of an indictment against A. for an assault ; 
 and it appeared that the indictment for the assault charged, that the 
 prosecutor had received an injury, " whereby his life was greatly 
 despaired of;" but that in the indictment for perjury, the indictment 
 for the assaidt, being introduced in these words " which indictment was 
 presented in manner and form following, that is to say," and then 
 
 (j) Rex v. Roper,* cor. Ellenborough, C. J., 6 M. & S. 327. 1 Stark. R. 518. 
 
 (k) Id. ibid. 
 
 U) Rex v. Benson, cor. Ellenborough, C. J. 2 Campb. 508. 
 
 \m) Rex v. Powell,* R. & M. N. P. R. 101. 
 
 \n) Rex v. Bailey, 7 C. & P. 264, Williams, J. See Rex v. Peace, d 3 B & A. 579. 
 
 (o) Peake's case, N. P. C. 37. 
 
 (p) Beech's case, 1 Leach, 133. The inspection of a record is within the peculiar province 
 of the court; and therefore, if a doubt arise as to any word upon a record, the court and 
 not the jury must resolve that doubt. By Lord Ellenborough, C. J., in Rex v. Hucks, e 1 
 Stark. R. 521. 
 
 f [An indictment for perjury in swearing to an answer in Chancery, should set out to 
 which bill and answer. Lodge's case, 2 Grattan, 579. Commonwealth v. Warden, 10 Met- 
 calf, 406. 
 
 In the trial of an indictment for perjury in an answer to a bill of discovery, the certificate 
 of the magistrate before whom the answer was sworn to, on proof of the handwriting of his 
 signature, is competent and sufficient />nma/ao'e evidence of the administration of the oath 
 to the defendant. Commonwealth v. Warden, 10 Metcalf, 406.] 
 
 a Eng. Com. Law Reps. ii. 492. * lb. xxi. 391. c lb. xxxii. 506. 
 
 d lb. v. 384. e lb. ii. 497.
 
 CHAP. I.] OF PERJURY, ETC.— INDICTMENT. 626 
 
 set forth at length, did not recite the above-mentioned passage correctly, 
 but omitted the word "despaired;" upon which the counsel for the 
 defendant admitted that it was not necessary to have recited the indict- 
 ment for the assault ; but he contended that the prosecutor, by the 
 words " in manner and form following, that is to say," had undertaken 
 to recite it; and that, having so done, he was bound to set it forth ver- 
 batim. But the *learned judge overruled the objection; and said that *627 
 the word « tenor" had so strict and technical a meaning as to make a 
 literal recital necessary ; but that by the words " in manner and form 
 following, that is to say" nothing more was made requisite than a sub- 
 stantial recital ; and that the variance, therefore, in the present case 
 was only matter of form, and did not vitiate the indictment. (q) 
 
 Where an indictment for perjury in setting out the substance and Variance, 
 effect of a bill in equity, to which the defendant put in an answer, and in sub_ 
 upon which the perjury was assigned, stated an agreement between the effort? and 
 prosecutor and defendant concerning houses, and upon the original bill 
 being read it appeared that the word was " house" in the singular 
 number ; Abbott, C. J., held that, although the indictment professed to 
 describe the substance and the effect of the bill, and not to set out the 
 tenor, yet this was a difference, in substance, and consequently a fatal 
 variance. (r\ 
 
 Where an indictment for perjury stated that on an inquiry before two 
 justices of the peace on an information under an excise statute, it be- 
 came a material question where a certain individual was at 4 A. M., on 
 the 2d of July, and that the defendant swore she had been in his com- 
 pany from two in the same morning until four, and on the trial for 
 perjury the evidence was that she had said she had been in his company 
 from eleven until half-past four; Parke, J., doubted whether the evi- 
 dence supported the allegation, but on conference with Bolland, B., he 
 inclined to think it did.(s) 
 
 If an indictment charge that the defendant swore in substance and Mode of 
 effect in a deposition, and the deposition he made jointly by him and cnftr R in S 
 his wife, his statement following that of his wife, it will not be a sworn in a 
 variance. The indictment stated that upon a certain information upon J? int dopo- 
 oath, entitled "the information" &c, the defendant wilfully deposed in 
 substance and to the effect following : " the defendant (meaning C. B.) 
 I am certain is one of the persons that assaulted and ill-treated my 
 wife," &c. The information began, " The information and complaint 
 of Jane, the wife of C. E. Grindall and of the said C. E. Grindall, made 
 an oath," &c. "And first, the said J. Grindall for herself saith that 
 the defendant is one of the persons who assisted W. J. S. and others in 
 handcuffing and otherwise assaulting me on, &c." (Signed) "J. 
 Grindall." "And the said C. E. Grindall, sworn, says the defendant 
 I am sure is one of the persons who assaulted and ill-treated my wife," 
 &c. It was objected that there was a variance, as the indictment set 
 forth the deposition as sworn by the defendant alone ; but it was held 
 
 (q) May's case, cor. Buller, J., 1799. The learned judge cited Beech'scase, ante, note(^). 
 
 (r) Rex v. Spencer," R. & M. N. P. R. 97. 1 (J. & P. 260. In the Latter report it is stated 
 that the indictment alleged the agreement to be that the defendant would execute a lease 
 of a certain piece of ground adjoining the new houses, whereas the agreement Bet out in the 
 bill .stated that the defendant would execute a lease of certain ground adjoining the aew 
 house, and Abbott, 0. .J., held the variance fatal, because, " in the bill the land is said to be 
 contiguous to one house, in the indictment to nunc than one." 
 
 (s) Anonymous, 1 Lew. 271. 
 
 Eng. Com. Law Reps. xi. 384.
 
 627 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 that, as what the defendant swore was set out in substance, it was suffi- 
 cient.^) 
 
 Where an indictment alleged that the defendant committed perjury 
 on the trial of one B.. and that B. was convicted, and it appeared by the 
 *628 record when produced that the judgment against B. *had been reversed 
 upon error after the bill of indictment against the defendant had been 
 found, it was held that this was no variance, (w) 
 Variance Where an indictment for perjury alleged that an officer of excise 
 between in- wen j. De f ore two justices of the peace, and gave the said justices to un- 
 set out and derstand and be informed that " W. Stock, victualler, being a brewer of 
 that pro- oeer or a i e for sale," did neglect to make the declaration of the quantity 
 of beer brewed ; and the words in italics were not found in the infor- 
 mation when produced ; it was held that this was a fatal variance, as 
 the meaning of the indictment was that " Stock being a brewer ne- 
 glected." (uu\ 
 Variance. If an indictment use a word of equivocal meaning, the meaning in 
 indictaTnt w hi°h it * s use d must be collected from the context of the sentence in 
 uses an which it occurs. An indictment for perjury alleged that a commission 
 equivocal f bankrupt was issued against the defendant, under which he was duly 
 meaning is declared bankrupt, and that afterwards he preferred a petition to the 
 to be col- Chancellor, stating (amongst other things') that a commission had issued, 
 
 lected from . » ' 
 
 the context, that the petitioner, on the 1st of March, 1821, was declared bankrupt, 
 
 and by that and that at the several meetings before the commission the petitioner 
 
 determined declared that the bill of exchange (on which the commission had issued) 
 
 whether or was not due, &c. But the allegation in the petition was that at the 
 
 no ere is seyera ] meetings before the commissioners the petitioners declared that 
 a variance. . 
 
 the bill was not due. It was contended that the words " commission," 
 
 and " commissioners," were not convertible terms ; that the word " com- 
 mission" denoted the authority under which the parties acted, and there- 
 fore the variance was fatal. Abbott, C. J., " The objection is that there 
 is a variance between the petition set forth in the indictment and that 
 which was given in evidence at the trial. Now, in a proceeding of this 
 kind it was not necessary to set out in the indictment verbatim the 
 tenor of the petition ; it is sufficient if it be set out truly in substance 
 and effect. The petition, as set out in the indictment, purports that at 
 the several meetings before the commission, the petitioner declared in 
 the hearing of the said assignee that the bill of exchange given to Gr. 
 Drowley for the debt was not due at the time when he struck the 
 docket. Now the allegation in the petition, which was proved in evi- 
 dence, was that at the several meetings before the commissioners the 
 petitioner declared so and so, and the question is whether that is a fatal 
 variance. The word commission is one of equivocal meaning ; it is used 
 either to denote a trust or authority exercised, or the instrument by 
 which the authority is exercised, or the persons by whom the trust or 
 authority is exercised. And if it may denote the person exercising the 
 authority, we must collect from the context of the sentence in which the 
 words < before the commission' occur, and of the other parts of the peti- 
 tion, whether it was used in that sense or not." After stating the in- 
 dictment the very learned Chief Justice proceeded, « Now, if the word, 
 
 (t) Rex v. Grindall," 2 C. & P. 553, Abbott, C. J. 
 
 (m) Reg. v. Meek, b 9 C. & P. 513. See Reg. v. Burraston. 2>ost, p. 641. 
 
 (i/m) Rex v. Leech, c 2 Man. & Ry. 119. 
 
 a Eng. Com. Law Reps. xii. 264. b lb. xxxviii. 201. c lb. xvii. 294.
 
 CHAP. I.] OP PERJURY, ETC.— INDICTMENT. 628 
 
 commission as there used was intended to denote the commission itself, 
 it would follow that the several meetings took place before any com- 
 mission issued ; but that is impossible, because in that case the peti- 
 tioner could not have made his declaration in the hearing of the said 
 assignee. Then, if that cannot be the meaning* of the word commis- *629 
 sion, we must construe it in the other sense, which it is capable of bear- 
 ing, namely, as denoting the persons to whom the authority was given; 
 and if it be so constructed, there was no variance between the petition 
 set forth in the indictment and that which was given in evidence • the 
 consequence is, that there must be judgment for the crown. "(u) 
 
 The 9 Geo. 4, c. 15, s. 1, authorizes the court to cause the record " in The court 
 any indictment or information for any misdemeanor, when any variance ma ? order 
 shall appear between any matter in writing or in print produced in evi- lobe a-* 8 
 dence, and the recital or setting forth thereof upon the record" to be mcndedun - 
 amended : but it has been held that such amendment ought to be made GeV 4° 9 
 very sparingly in the case of perjury. Thus where a prisoner was in- 15, but tin? 
 dieted for perjury committed in an affidavit made for the purpose of J^^u b 
 setting aside judgment entered up on a warrant of attorney, and the sparingly 
 indictment charged that the defendant made his warrant of attorney, exercised - 
 and that » afterwards, to wit, in or as of Trinity term/' in the 5 Wm. 4, 
 judgment was entered up on the said warrant of attorney; and in the 
 margin of the copy of the record when produced was entered « June the 
 26th, 5 Wm. 4," pursuant to rule H. T., 4 Wm. 4,js. 3. It was ob- 
 jected that the indictment was bad, as every averment in an indictment 
 must be positive and not in the alternative. It was answered that the words 
 "in or" might be rejected, or the indictment might be amended under 
 the 9 Geo. 4, c. 15. But Patteson, J., after consulting Littledale, J., 
 held that the judgment was not properly stated, and although this was 
 a recital upon the record, refused to allow the amendment, as amend- 
 ments ought to be made very sparingly in criminal cases, and the ob- 
 jection to the form of averment "in or as of," furnished a very good 
 reason why the amendment should not be made.(zA So where an in- 
 dictment for perjury, alleged to have been committed before certain 
 commissioners appointed to examine witness in a chancery suit, alleged 
 that a commission was issued whereby Hobbes, Woodward, Kendall, 
 and Cheek were commanded to examine each of the witnesses upon 
 their oaths, and the commission itself commanded Hobbes, Woodward, 
 Kendall, and Cheek, or any three or two of them, to examine each of 
 the witnesses on oath, and it appeared that the defendant had been 
 sworn before three of the commissioners only ; Coleridge, J., held the 
 variance fatal : and on being asked to allow an amendment to be made 
 under the 9 Geo. 4, c. 15 ; Coleridge, J., said, " I think that I ought 
 not to allow this amendment. I entirely agree with my brother Pat- 
 teson, that the discretion of the judges, as to amending in criminal 
 cases, ought to be exercised very sparingly. One objection to readily 
 permitting an amendment in an indictment is, that by the amendment 
 a presentment on the oath of the grand jury is altered. I am also un- 
 willing to amend variances, which, by ordinary care in collation, might 
 be avoided. "(w) 
 
 (w) Rex v. Dudraan," 4 B. & 0. 850. (v) Rex v. Cooke, b 7 0. & P. 559. 
 
 (w) Reg. v. Ilewins, 9 C. & P. 78G. 
 
 * Eng. Com. Law Reps. x. 459. b lb. xxxii. 629. c lb. xxxviii, 3UG.
 
 629 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 Where an indictment for perjury alleged that the defendant exhibited 
 an affidavit, entitled in the Court of Chancery, " In a suit therein at 
 the suit of the said Commissioners of Charitable Donations and Be- 
 quests," and the affidavit was in fact entitled, " In Chancery, between 
 the Commissioners of Charitable Donations and Bequests, &c," Lord 
 Denman, C. J., allowed the record to be amended, by striking out the 
 word " entitled. "(tvw^j 
 Averment i n a case where a complaint having been made ore tenus by a soli- 
 complaint cltor hefore the Chancellor in the Court of Chancery, of an arrest in 
 was heard, returning home after the hearing of a cause, the indictment stated that, 
 &c ' " at and upon the hearing of the said complaint," the defendant de- 
 
 *630 posed, &c. ; and this was holden to be a sufficient *averment that the 
 complaint was heard. (x\ And it has been holden that an indictment 
 for perjury, assigned on an affidavit sworn before the court, need not 
 state that the affidavit was filed of record, or exhibited to the court, or 
 in any manner used by the party. (y) 
 Before An indictment for perjury may state the trial to have taken place 
 
 whom a tn- e j tner \) e f ore the judge, who in fact tried the case, or before the judges 
 alleged to before whom it is considered in point of law to have taken place. There- 
 have taken f ore an indictment for perjury, stating the oath to have been taken on 
 P ace * a trial before one judge is good, although the record of the trial names 
 both. The indictment stated that the defendant appeared as a witness 
 on a trial at nisi prius, and. was sworn before the Hon. Edward Wiles, 
 but the nisi prius record stated in the usual form that the trial was be- 
 fore both the judges, and upon a case reserved, the judges were unani- 
 mously of opinion that the evidence maintained the indictment. (z\ So 
 an indictment for perjury on the trial of a cause at the sittings after 
 term, stating the trial to have been before a puisne judge, who in fact 
 tried the cause, is good, although the postea states the trial to have 
 been before the Chief Justice. An indictment for perjury, charged to 
 have been committed on a trial at the sittings after term in London, 
 alleged the trial to have taken place before Littledale, J. ; and on pro- 
 ducing the record it did not appear before whom the trial took place, 
 but the postea stated it to have been before the Lord Chief Justice; in 
 point of fact, however, the trial took place before Littledale, J. ; and it 
 was objected that this was a variance: it was answered that there was 
 no reference in the indictment to the record, and no prout patet per re- 
 cordum : it was merely stated that the trial took place before Littledale, 
 J., and that was proved. Lord Tenterden, C. J., " On a trial at the 
 assizes the postea states the trial to have taken place before both jus- 
 . tices ; it is considered in law before both, though in fact it is before 
 one only, and I am not aware that the postea is ever made up here dif- 
 ferently when a judge of the court sits for the Chief Justice. I cannot 
 stop the case upon such an objection; you may have leave to move 
 upon this point in case it shall become necessary. "(a\ 
 
 (ww) Reg. v. Christian, 5 1 C. & Mars. 388. (x) Rex v. Aylett, 1 T. R. 70. 
 
 (y) Rex v. Crossley, 7 T. R. 315. Nor is it necessary to prove such facts. Id. ibid. And 
 see the cases, post, p. 667. But it is otherwise when the proceeding is under the statute of 
 Eliz. Stark. Crim. Plead. 121. And see 3 Stark. Evid. 857, citing Rex v. Taylor, Skin. 403, 
 where it was held that the bare making of the affidavit without producing or issuing it is 
 not sufficient. 
 
 (z) Rex v. Alford, 1 Leach, 150. See this case, post, p. 631. 
 
 (a) Rex v. Coppard, b Moo. & M. 118. 3 C. & P. 59. 
 
 a Eng. Com. Law Reps. xli. 214. t> lb. xiv. 210.
 
 CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 
 
 G30 
 
 If an indictment for perjury committed on a trial before the sessions Varian 
 
 ce in 
 
 alleges an adjournment to have been made by certain justices, and the jj£„ ng tha 
 record states it to have been made by other justices, this is a variance; mint "Jr a 
 but the defect may be cured by proving that in fact the adjournment q . uarterscs - 
 was made by the justices named in the indictment An indictment for S1 ° US ' 
 perjury on the trial of an indictment for an assault, alleged an adjourn- 
 ment to have been made by Const, and A. B., and others their fellows, 
 justices, &c. The examined copy of the record of the conviction stated 
 the adjournment to have been made by Const, and E. F., and others 
 their fellows, justices, &c. It was contended that this was a fatal va- 
 riance ; and Abbott, C. J., held that it was ; but that the defect might 
 be cured by other evidence, as by calling *some person who could state *631 
 that he was present and saw the justices named in the indictment pre- 
 sent on the day in question. (b) 
 
 It is sufficient to state in the indictment that the defendant was duly The indict- 
 sworn.(c) In a case where it was averred that he was sworn on tf ie mentmust 
 Gospels, and he appeared to have been sworn according to the custom thedefend- 
 of his own country, without kissing the book, it was considered as a ant was 
 fatal variance; though it was holden that the averment was proved by kJ^ 
 its appearing that he was previously sworn in the ordinary mode.(rf) 
 An indictment for perjury in a cause tried at the assizes was holden 
 good, although it alleged the oath to have been taken before one only 
 of the judges in the commission, and the nisi prius record imported 
 that the trial was before the two judges of assize. (e) 
 
 An indictment at common law, which charged that the defendant Wilfully 
 " falsely, maliciously, wickedly and corruptly swore, &c," was holden and In- 
 sufficiently to imply that the offence was committed wilfully ;(/) but 
 
 (b) Rex v. Bellamy,* R. & M. N. P. R. 171. In order to remedy the defect, a witness from 
 the office of the clerk of the peace produced a minute book, which contained an entry, not 
 drawn up in any formal manner, of the names of the particular justices who were present at 
 the day of adjournment mentioned in the indictment, and amongst whom were all the 
 names mentioned in the indictment: these minutes were made by a clerk in the same office, 
 of the name of Richards, whose duty it appeared to be to attend at the quarter sessions, for 
 the purpose of making these entries at the time; but Richards was not called as a witness, 
 and there was no evidence to show whether he was present on the particular day farther 
 than the entry itself. In the same book, on the opposite page to the entry already stated, 
 was another drawn up by the witness who produced the book; this was in the form of a re- 
 cord, and was in fact a summary of all the names of the justices attending upon the quarter 
 sessions upon each day during the sessions, but it did not distinguish who was present upon 
 any particular day; amongst these names also were the justices mentioned in this indict- 
 ment. But Abbott, C.J. , held that the evidence was not sufficient to supply the defect; the 
 minute made by Richards was not a record, or in the nature of a record, and the entry on 
 the opposite page was insufficient, as it did not give the names of the justices who were pre- 
 sent on the particular day. 
 
 (c) Rex v. M'Carthur, cor. Kenyon, C. J., Peake's N. P. C. 155. 
 
 (d) Rex v. M'Carthur, cor. Kenyon, C. J., Peake's N. P. C. 155. 
 
 (e) Rex v. Alford, 1 Leach, 150. Ml. T. 1777. MS. Bayley, .1. Ej re, B., doubted on the 
 trial whether one commissioner of assize alone had competent authority to administer the 
 oath, and conceived the indictment ought to have alleged the oath to have been taken be- 
 fore both the judges in the commission^ but on a case reserved the judges were unanimous 
 that tli e indictment was right. But as to a record in the Crown Court, see Hex V. Lincoln, 
 ante, p. 624. In Reg. v. Demon, 2 Ld. Baym. 1221, an exception was taken to an indict- 
 ment; that it stated the trial at which the oath was taken to have been before the Lord 
 Chief Baron and the associate, but stated the oath to have been before the Chief Baron, 
 
 without the associate: and also, that, the assignment of perjun differed IV the oath, lie- 
 fore the Chief Baron and associate. But the objections were overruled ; and the court held 
 that the associate need not be mentioned in every part of the indictment where the Chief 
 Baron was mentioned. 
 
 (/) As to the offence being wilful, see ante, p. 507. 
 
 a Eng. Cora. Law Reps. xxi. 406 
 
 Vol. ii.— 41
 
 (331 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 it was considered at the same time that, in an indictment on the 5 
 
 Eliz. c. 9, the offence must be laid expressly to have been wilfully 
 
 committed. ('/) 
 
 The indict- The indictment should aver that the defendant " vnl fully and cor- 
 
 should rupUy" swore, and every count should expressly state that the defen- 
 
 state that dant was sworn, and the fact of his having been sworn cannot be taken 
 
 the defend- ^ intendment. The first count stated that the defendant on the trial 
 
 .tn swore J . , ,. . . 
 
 wilfully of an indictment against J. H., intending to injure J. H., and to cause 
 
 and cor- n j m t ^ e wrongfully convicted, appeared as a witness and was sworn, 
 count and " then and there falsely and maliciously gave false testimony against 
 shouldaverj, H., by then and there deposing and ^giving evidence," &c. The 
 tendant ^h count, the only one that differed materially from the first, alleged 
 was sworn, that bv means of the false testimonv in the first count mentioned, J. 
 0°^ H. was found guilty; that a rule nisi for a new trial was granted; that 
 the defendant intending to hinder the said rule from being made abso- 
 lute came before a commissioner and was sworn, and being so sworn, wick- 
 edly, wilfully, and corruptly did depose, swear, and make affidavit in 
 writing, in substance that the evidence which he, J. S., had given on 
 the said trial was true, whereas the evidence which the said J. S. had 
 given on the said trial was not true, but was false in the particulars in 
 the said first count of this inquisition assigned and set forth. The de- 
 fendant having been convicted, a rule was obtained for arresting the 
 judgment, and after argument, Abbott, C. J., delivered the judgment of 
 the court as follows : — " I am of opinion that this rule must be made 
 absolute. As to the first class of counts the objection is that they do 
 not charge that the defendant swore wilfully or corruptly. Every defi- 
 nition of perjury is swearing wilfully and corruptly that which is false. 
 Whether the word maliciously might supply the place of either wilfully 
 or corruptly, it is not necessary to determine, for neither of those words 
 is found in the counts in question, and Cox's case,(A) which has been 
 referred to, proves at all events that such counts are insufficient. I 
 now come to the consideration of the last count. It is in a form per- 
 fectly novel; it was intended to allege perjury in an affidavit made in 
 this court. In the ordinary course of pleading, the first step would have 
 been to charge that there had been a trial, and that the defendant was 
 sworn as a witness ; the second, that he swore such and such things; the 
 third, that the matter was false, and so on. Here there is no distinct 
 averment that the defendant was sworn as a witness, or of what he swore. 
 But the fact of his having been sworn must be taken by intendment. 
 "Were we to do that, as we are desired to do, in support of this indict- 
 ment, we should furnish a precedent for a very loose and insufficient 
 mode of charging a very serious offence, which has always hither been 
 required to be charged with great certainty and particularity. I think 
 that these novel attempts in pleading are not to be encouraged, and that 
 the judgment must be arrested. "(i\ 
 That the It must appear or be alleged in the indictment that the person by 
 person had w h om the oath was administered had competent power to administer 
 
 (g) Cox's case, 1 Leach. 71. (h) Supra, note (g). 
 
 (i) Rex v Stevens, a 5 B. & C. 246. The 5 Eliz. c. 9, s. 6, ante, p. 604, uses both the words 
 " wilfully and corruptly,"' and therefore it should seern that both these words must be used 
 in aa indictment on that statute. C. S. G. 
 
 a Eng. Com. Law Reps. xi. 216.
 
 CHAP. I.] OF PERJURY, ETC.— INDICTMENT. 
 
 632 
 
 it.f Thus upon an indictment for perjury before a justice in swearing authority 
 that I. S. had sworn twelve oaths, where the charge as stated did not J^S" 1 " 3 - 
 import that the oaths were sworn in the county for which the justice oath. ° 
 acted, Eyre, J., arrested the judgment; because as the charge did not 
 so import, the justice had no jurisdiction to administer the oath in ques- 
 tion to the defendant. (A 
 
 Where a statute recpuires an act to be done by justices of the peace Perjury at 
 acting for a particular division in petty sessions, an indictment for per- JJJjjJ 
 jury committed before two such justices must allege that they were act- justices ° 
 ing for such division, but need not aver that they were assembled in acti °S for a 
 petty sessions. An indictment for perjury on the ^hearing of an infor- dSSionof 
 mation for selling beer at improper hours,(i) stated that the proceeding a eou nty. 
 was before two justices, but not that, they were assembled in petty ses- *^33 
 sions, or that they were acting for the division in which the house was 
 situated; and it was held that the indictment was defective for want of 
 an allegation that the justices were acting for the division in which the 
 house was situated; but it was held not necessary to aver that they were 
 assembled in petty sessions, for that the meeting of the two justices was 
 in itself a petty session. 
 
 Where an indictment for perjury stated that the prisoner, maliciously Indict- 
 intending to subject W. Mortiboy to the punishments of felony and lar-? ie ?j held t 
 ceny, went before J. C. and H. H., two justices of the peace, and was showing 
 sworn (J. C. and H. H. having competent power, &c.) and deposed i n that there 
 substance that on Wednesday last he (the prisoner) was in W. M.'s, charge 
 Peg Alley, and that he (the prisoner) put his hand into his watch fob, made be - 
 and took out a bl. note to make a bet with W. M., and put it into his tice. 
 
 (/) Rex v. Wood, Exeter. 1723. MS. Bayley, J. 
 
 (i) Reg. v. Rawlins, a 8 C. & P. 439, Park, J. A. J., and Patteson, J., after time taken to 
 consider the points. Patteson, J., intimated that he had not given particular consideration 
 to the question as to the necessity of a written information, but the inclination of his opin- 
 ion was that it was not necessary. The 1 Wm. 4, c. 6G, s. 15, provides that " all penalties, 
 &c, may be recovered upon the information of any person whomsoever, before two justices 
 acting in petty sessions," &c, and that every person " who shall be convicted before two 
 justices so acting in and for the division or place in which shall be situate the house kept,'' 
 &c. 
 
 f {In an indictment for making a false affidavit, it is sufficient to state that the defendant 
 came before A. and took his corporal oath, (A. having power to administer an oath,) without 
 setting out the nature of A.'s authority, G Barn. & Ores. 102, Rex v. Callanan. S. P. 2 
 Southard's (N. J.) Rep. 772, State v. Ludlow. 5 Wend. 10, People v. Phelps. See ante, 535, 
 536.} 
 
 [An indictment for perjury in taking an oath administered by a clerk of court, must show 
 that the oath was such as the clerk was authorized to administer. MQragor v. The State, 
 1 Smith, 179. 
 
 An indictment for perjury, stating that the defendant came before A., a justice, &c, and 
 then, &c, was sworn before said A. being such justice, &c, shows with sufficient certainty 
 by whom the oath was administered. The State v. Ellison, 8 Blackf. 225. 
 
 Where, in an indictment for perjury, it appeared that the defence set up to a criminal com- 
 plaint amounted to an alibi; that the testimony of a particular witness who was examined 
 thereon, and whose evidence was alleged to be false, tended to establish this defence; and 
 it was averred that each and every part of the testimony became and was material to the 
 defence : it was held that the materiality of the alleged false testimony was sufficiently stated 
 in the indictment. Commonwealth v. F/i/nn, 3 Gushing, 525. 
 
 In an indictment for perjury committed before a justice of the peace, it is sufficient to aver 
 in relation to jurisdiction, that it was at a justice's court held at the proper time and place, 
 on an issue duly joined in his court, in a cause which came on to be tried in due form at 
 law, and that the justice had sufficient authority to administer an oath, without alleging that 
 the case in which the perjury is charged to have been committed was within the jurisdiction 
 of the justice. The Slate v. Newton, 1 Iowa, 1G0.] 
 
 a Eng. Com. Law Reps, xxxiv. 470.
 
 633 OF PERJURY, ETC.— INDICTMENT. [BOOK V. 
 
 breeches pocket. That W. M. collared him, and knocked him down, 
 and put his knee on him, and then put his hand into his (the prisoner's) 
 pocket, and took the said 51. note, &c. It was submitted that the indict- 
 ment was bad, as it did not show that there was any proceeding pend- 
 ing before the magistrate, or that this was a deposition on any charge 
 of felony. Coleridge, J., " There might be cases of an affidavit where 
 there was no charge, and no prosecution, and, indeed, no cause in hand. 
 It might have been averred that the defendant made a charge, and that 
 in support of that charge the deposition was made. If the defendant 
 had merely come before the magistrates to swear this, without more, it 
 would not be perjury. I think that the indictment is not sufficient."^') 
 An indict- The first count of an indictment for perjury stated in substance that 
 ment for ^ e p r i soner meaning to subject C. F. E. to the punishment provided 
 
 pcriurv 
 
 stating that for persons guilty of felony, &c, &c, went and was sworn before a jus- 
 the prison- ^ ce f the peace for the county having competent authority to admin- 
 foreama-" ^ eY the oath, and being so sworn then and there upon a certain infor- 
 gistrate, mation and examination, entitled " County of Oxford, to wit : the 
 in *p'o4 C1 " information and examination of R. Gr. taken upon oath *before me, &c," 
 ously de- falsely, &c, did depose, &c. The whole of the information was then 
 posed, set out, it contained the following passage : — " I then went and got over 
 ehareed ^ rs " Calcut's wall into the close, and went and looked over the wall 
 and gave between her close and Mr. E's ox-pens. I then saw the donkey stand- 
 him to be - ln „ w j t | 1 j ts s [^ e towards and near to the manger of the second pen, 
 
 informed *~ 
 
 that C. F. with her head towards Mrs. Calcut's close. Mr. C. E. was standing 
 E. had a behind her. I saw that he had the flap of his trowsers unbuttoned and 
 
 VGDCrCtll 
 
 affair with hanging down. I saw the corner of the inside of it : he was rather on 
 a donkey, the move ; he appeared to be on the donkey, (meaning that he appeared 
 cientiVa " to tne sa ^ -^- ^ *° ^ e * a tne actua ^ commission of that detestable 
 proceeding crime, &c.) He remained in that position about five minutes, when the 
 ma'istr' t donkey kicked Mr. E's leg, upon which he moved aside, turning his 
 to make the back rather more towards me than it had been, and stooped down to rub 
 false swear- ^j s j e „. . ne th en lifted himself up again, and turned round with his face 
 
 inET "Deriii- 
 
 ry . towards me. I then saw his private parts exposed : I saw him tuck up 
 
 his shirt and button up his trowsers ; the upper part of them as well as 
 the flap had been unbuttoned." This count contained no averment as 
 to the materiality of any of the matters deposed to. It contained seve- 
 ral assignments of perjury. Those on which the prisoner was found 
 guilty were as follows : — " Whereas in fact the said C. F. E. then and 
 there had not the flap of his trowsers unbuttoned or hanging down. 
 And whereas the said C. F. E. had not then or there or at any other 
 
 (./) Reg. v. Parsons, a 8 C. & P. 119. When the objection was first made, Coleridge, J., 
 said, "this might have been the original information. Might it not be that this statement 
 to the magistrates was the charge?" And it is conceived that this was the correct view of 
 the case. In cases of felony and misdemeanor it is a very common practice for the party 
 complaining to state the facts to the magistrate's clerk, who takes them down in the shape 
 of an information ; such information is then taken to the magistrate, and the complainant 
 aworn to the truth of it ; in such cases it is conceived the making the charge before the 
 magistrate, and the making the deposition, is one and the same thing ; it could not, there- 
 fore, be averred and proved that the party made the charge, and in support of it made the 
 deposition. See Caudle v. Seymour, 6 1 A. & E. Q. B. R. 889, where some strong observa- 
 tions were made against the propriety of such a practice. It may. however, lie questionable 
 whether such a mode of taking the information would afford any ground of defence to the 
 party who was sworn to its truth. It may be observed also, that although it may admit of 
 doubt whether the deposition disclosed a felony, yet as it clearly showed an assault, the 
 magistrate had jurisdiction to administer an oath. C. S. G. 
 
 a Eng. Com. Law Reps, xxxiv. 321. t> lb. xli. S25.
 
 CHAP. I.] OF PERJURY, ETC.— INDICTMENT. 634 
 
 time or place whilst standing behind the said donkey, or any other 
 donkey, the flap of his trowsers unbuttoned and hanging down, nor had 
 the trowsers the said C. F. E. then wore any flap whatsoever. And 
 whereas the said C. F. E. did not appear to the said R. Gr. to be, nor 
 was he then and there, or at any other time, or at any other place, in 
 the actual commission of that detestable crime, &c, with the female 
 donkey aforesaid, or with any other animal, or in any other manner 
 whatsoever. And whereas the said C. F. E. did not remain in that 
 situation for about five minutes, nor did the said donkey kick the said 
 C. F. E.'s leg, nor did, &c. &c." Here followed a number of other 
 averments, which were not proved for want of two witnesses. The 
 third count was the same as the first, except that it stated the prisoner's 
 intention to be, to subject C. F. E. to the punishment inflicted on 
 persons guilty of misdemeanors, and the innuendo was, that C. F. E. 
 was attempting to commit the offence. The seventh count stated that 
 the prisoner, intending to aggrieve C. F. E., "came before Mr. Rawlin- 
 son, and was sworn (he having authority) and falsely, &c, did depose, 
 swear, charge, and give the said justice to be informed that the said 
 C. F. E. upon, &c, had a venereal affair with a certain animal called a 
 donkey, and feloniously and against the order of nature did commit and 
 perpetrate that detestable and abominable crime, &c, with the said 
 donkey. And further (it being then and there material to the inquiry 
 into the said charge and information to know the state of the said 
 C. F. E.'s dress at the time the alleged offence was so charged to have 
 been committed as aforesaid) that he, the said R. Gr., then and there 
 saw that the said C. F. E. then and there had the flap of his trowsers 
 unbuttoned and hanging down, and that he, the said R. Gr., then and 
 there saw the inside of the said flap ; whereas the said R. G. did not 
 then and there, or at any time, or at any place, see the said C. F. E. at 
 any time in the act of having a venereal* affair with a donkey, or with any *C35 
 other animal whatsoever, nor did the said C. F. E. then, or at any time, 
 or at anyplace, or in any manner commit, nor was the said C. F. E. at 
 any time, or at any place, or in any manner in the act of committing 
 that detestable and abominable crime. And whereas the said R. Gr. did 
 not then and there see the flap of his, the said C. F. E.'s trowsers un- 
 buttoned, or hanging down, nor was the flap of the said C. F. E.'s 
 trowsers then and there unbuttoned, or hanging down, nor did the said 
 R. G. then and there see the inside of the flap of the said trowsers. 
 The information signed by the prisoner was put in, and it was proved 
 that he was duly sworn, and that the charge was dismissed. The two 
 witnesses, produced to the facts, were C. F. E., a lad of fifteen, and 
 his elder brother J. H. E. They swore they went together to the field, 
 J. H. having a gun ; that they spoke of going to Chipping Norton, and 
 that Charles went to see whether the donkey was able to go to Chipping 
 Norton, and parted from his brother for that purpose — that he was 
 absent three minutes — that the trowsers he had on, which were pro- 
 duced in court, had no flap. These were the only facts to which they 
 both spoke. C. F. E. fully negatived what the prisoner had sworn to, 
 in a manner quite satisfactory to the jury. The brother, J. II., also 
 stated that he was about forty yards from the ox-pens — that he had his 
 back towards them — that if he had turned round he could have seen 
 them and the wall, and must have seen if any one was looking over it, 
 but he did not turn round. It was objected, first, that the first and
 
 635 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 third counts did not distinctly show any proceeding pending before the 
 magistrate; that they ought to have averred directly that a charge was 
 pending. Keg. v. Pearson. (?) But Patteson, J., thought that case dis- 
 tinguishable, because of the words "upon an information and examina- 
 tion," &e.(k) Second, that the flap of the trowsers being unbuttoned 
 did not appear on the face of the counts to be material, and there was 
 no averment of its materiality. The same objection applied to the pre- 
 cise time of five minutes. Third, that the assignment of perjury as to 
 the main charge was too large, because it denied all animals, and all 
 times and places. Fourth, as to the first count, that the language used 
 by the prisoner as there set out, did not import that a felony was com- 
 mitted, but only an attempt. These objections were urged in arrest of 
 judgment. Fifth, so as to the seventh count, the first objection to the 
 first and third counts was urged. Sixth, to the same count it was urged 
 that, although in that count the state of C. F. E.'s dress was averred to 
 be material, yet, that by such averment was meant — not whether the 
 flap of his trowsers was unbuttomed — but the trowsers generally. Se- 
 venth, that the seventh count alleged, that the prisoner charged the 
 capital offence, whereas, by his information, he appeared to have charged 
 only an attempt. The sixth and seventh objections were taken before 
 the verdict, and did not apply in arrest of judgment, as was also the 
 objection, whether the evidence of the brother, J. H. E., went to any 
 material fact sufficient to satisfy the rule as to two witnesses in cases of 
 perjury. On all these questions the learned judge requested the opinion 
 *636 of the judges, and all of them (except Vaughan, J., *Gurney, B., Wil- 
 liams, J., and Maule, J., who were absent) held the conviction good 
 on the seventh count, and most of the judges appeared to think it good 
 on all the others. (?) 
 Insuffici- Where an indictment stated that "heretofore, to wit, on, &c, at, 
 tion^f Sa " *^ C -' before M. Gr. and T. H. A., two of the justices, &c, came one J. 
 making an Osborne, and then and there exhibited to and before the said M. Gr. 
 tiorToif" an( ^ ^" ^" ^"> so being such justices as aforesaid, a certain information 
 oath. upon oath, and then and there informed the said justices" that certain 
 
 quantities of stolen silk were found in a certain house; it was held that 
 this allegation did not sufficiently show that the oath was taken before 
 the said justices, as it was consistent with the allegation that the oath 
 might have been taken before some other justices. (m\ 
 Indict- Where an indictment for perjury committed under the Interpleader 
 
 perhiryhi ^ ct ' set out tne i ssues found in the Court of Exchequer between A. B. 
 an affidavit and C. D., the trial at Westminster, the verdict for the plaintiffs, the 
 interplead- judgment, the writ of fieri facias consequent thereon to the Sheriff of 
 er rule, Somersetshire, dated the 5th of June, 1841, the warrant, the seizure of 
 
 TTth 1686 ^ G § ooc * s °^ ^" **•' an< * tne not i ce oa tne P art °f J- Bishop, the party 
 was an ap- indicted for perjury, to the sheriff not to sell the goods so seized, but to 
 plication to deliver them up to him, the same being his property. And the indict- 
 ment then charged that the said J. Bishop came before a commissioner, 
 and produced an affidavit in writing, and swore to the truth of the 
 
 (i) Ante, p. 663. 
 
 (k) The present indictment is in the same form as the one in 4 Wentw. 244. 2 Chitty's 
 Crim. Law, 443. 
 
 (I) Reg. v. Gardiner. 2 Moo. C. C. R. 95. 8 C. & P. 737. 
 
 (m) Reg. v. Goodfellow and another," Stafford Spr. Ass. 1842, MSS. and 1 C. & Mars. 569. 
 a Eng. Com. Law Reps. xli. 310.
 
 CHAP. I.] OF PERJURY, ETC.— INDICTMENT. 636 
 
 matter contained in it; and the affidavit in fact was, that the deponent 
 having heard that the defendant C. D. had certain goods (those seized 
 under the fieri facias of the 5th of June) bought them and paid for 
 them on the 1st of June. The sale and purchase were then negatived, 
 and this was the perjury charged. It was submitted that, as there was 
 no allegation that any application had been made under the Interpleader 
 Act, it did not appear that the affidavit was made in a judicial proceed- 
 ing; and Coleridge, J., held the objection fatal; as for anything that 
 appeared this was a voluntary oath, and not made in any judicial pro- 
 ceeding.^) 
 
 Where an indictment for perjury alleged that a certain cause had Writ of in- 
 been depending in the King's Bench, and that such proceedings were <l uir y is - 
 had, that a writ of inquiry was duly issued out of the said court, directed "b R Ut re . 
 to the sheriffs of London to inquire, &c, and that the said sheriffs tamable in 
 should make appear the inquisition which they should take thereof " P ' 
 before the Justices of our said Lord the King at Westminster, and then 
 assigned perjury on the taking of the said inquisition before the secon- 
 dary; the Court of King's Bench seem to have been of opinion that 
 the indictment was bad, as it appeared that the perjury was committed 
 coram non judice ; for the writ of inquiry was issued out of the King's 
 Bench, and made returnable in the Common Pleas, and therefore the 
 secondary had no jurisdiction to administer the oath.(o) 
 
 *It should seem that an indictment for perjury committed before com- *637 
 missioners of bankrupt in an examination touching the estate of the Indict- 
 bankrupt should allege that there was a trading, petitioning creditor's perjury be- 
 debt, and act of bankruptcy.(p) But if the indictment were for per- fore com- 
 jury committed in the preliminary proceedings before the commissioners j!f wkt" 
 to ascertain whether the party should be adjudged bankrupt or not, itrupt. 
 should seem that an indictment would be good, although it omitted to 
 state that there was a good petitioning creditor's debt.(g) 
 
 In an indictment for perjury in an affidavit, it is sufficient to state If an in- 
 that the defendant was sworn before A. B. (A. B. having power to ad- rtatTthat 
 minister an oath) without stating the nature of A. B.'s authority. An the party 
 indictment for perjury in an affidavit, alleged that the defendant did take lj . ilJ * utho - 
 his corporal oath before F. J. Chell (he the said F. J. Chell then and minister 
 there having sufficient and competent power and authority to administer f n V " :iI, |. 
 the said oath to the defendant in that behalf) and that the defendant did e nt without 
 before the said F. J. Chell, as such commissioner as aforesaid, depose, showing 
 &c. It was contended in arrest of judgment, that the indictment was bad, of ® ,' 
 as it did not describe the official station of the person before whom the thority. 
 defendant was sworn. It was, indeed, stated that he made affidavit of 
 certain matters before F. J. Chell, as such commissioner as aforesaid ; 
 but he had not been before mentioned as a commissioner, and, therefore, 
 
 (n) Reg;, v. Bishop,* 1 C. & Mars. 302. 
 
 (o) Pippet v. Hearn, b 5 B. & A. 634. The question arose in an action for a malicious pro- 
 secution for perjury, and the first count set out the indictmenl for perjury as stated in the 
 text, and the court held that the count was good, for where a man maliciously prefers an 
 indictment for a crime, he is liable to an action for it, although the indictmenl be defective. 
 
 (p) Rex v. Jones,« 4 B. & Ad. 345, ante, p. 232. Reg. v. Ewington, d 1 0. & Mars. 319, 
 post, p. 661. The second count in this case alleged that a fiat " duly issued " againsl the 
 bankrupt, and it was objected that it was had because it did nol allege any petitioning i ■ - 
 ditor's debt or act of bankruptcy, and Ilex v. Jones was relied upon, bui the poinl was upl 
 decided. 
 
 (q) Reg. v. Ewington, supra. 
 
 a Eng. Com. Law Reps. xli. ICQ. b lb. vii. 217. c lb. xxiv. 71. d lb. xli. 178.
 
 637 OF PERJURY, ETC. — INDICTMENT. [BOOK T. 
 
 that averment could not cure the defect. The 23 Geo. 2, c. 11, made 
 it unnecessary to set out the commission of the person before whom the 
 oath was taken, but that did not dispense with the necessity of showing 
 the nature of his office. Abbott, C. J., "Looking at the act of parlia- 
 ment, 28 Geo. 2, c. 11, we find that all that is required to be set out in 
 indictments for perjury is the substance of the offence charged, and by 
 what court or before whom the oath was taken, averring such court or 
 person to have competent authority to administer the same, without set- 
 ting forth the commission or authority of the court or person before 
 whom the perjury was committed. It is, therefore, to be considered 
 whether the present indictment has set forth all that is required by the 
 statute. It sets forth the substance of the matter sworn, the person 
 before whom the oath was taken, and avers that he had authority to 
 administer it. The indictment does, therefore, contain all that is required 
 by the words of the statute; and taking into consideration the object of 
 the act, which was framed to remove the difficulties before felt by reason 
 of the averments and matters whieh were usually set out in indictments 
 for perjury, we ought not to require more than the words of the legis- 
 lature have made necessary. When a case of this sort comes on for 
 trial, the prosecutor must prove the situation of the person before whom 
 the oath was taken, and the nature of his authority. I am, therefore, 
 of opinion, that the indictment is sufficient if it contain the name of the 
 person, if the defendant was sworn before a person, or of the court, if 
 *638 be was sworn before *a court. There is not then any reason for grant- 
 ing this application."^) 
 Indict- This case was reconsidered in the following ease : — The indictment 
 
 perjury on s t a ted that before and at the time of the taking of the false oath by J. 0. 
 an appeal hereinafter mentioned, R. L., F. D. P., and H. S. G., were commis- 
 commis sioners acting in the execution of certain acts of parliament relating to 
 sioners of the duties of assessed taxes in and for the district of the hundred of 
 the assess- Knighton, in the county of W., and thereupon heretofore, to wit, on, &c, 
 must show at &c, in the district and county aforesaid (at a meeting then and there 
 that the ap-^e]^ h v ^q commissioners aforesaid for the purpose of hearins; and de- 
 one they termining appeals against the certificate of supplementary charges made 
 
 (q) Rex v. Callaman, a 6 B. & C. 102. 9 D. & R. 97. This case having been much relied 
 upon in the following case, and the record examined, I have thought it right to insert the 
 following statement of the first count, which I took from the record. The indictment stated 
 that C. C, contriving and intending to injure one T. Stevens, and in order to obtain a rule of 
 the Court of B. R., whereby it might be ordered by the said court that the said T. S. should 
 show cause why a certain judgment signed on a warrant of attorney in a cause in the said 
 Court of Stephens against Callanan, and the execution issued thereon should not be set aside, 
 and the said warrant of attorney be delivered up to be cancelled, and why the proceeds of 
 the said execution should not be restored to the said C. C, and why the said T. S. should 
 not pay the costs of that application, and that in the meantime the said proceeds should re- 
 main in the hands of the sheriff of the county of Middlesex, came in his proper person, &c, 
 on, &c, at, &c, before F. J. Chell, gentleman, and the said defendant then and there, to wit, 
 on, &c, at, &c, was duly sworn, and did take his corporal oath upon the Holy Gospel of God 
 before the said F. J. Chell, (he the said F. J. Chell then and there having sufficient and com- 
 petent power and authority to administer the said oath to the said C. C. in that behalf,) and 
 the said C. C. being so sworn as aforesaid, falsely, &c, did then and there before the said F. 
 J. Chell, as such commissioner as aforesaid, depose, swear, and make affidavit in writing, 
 amongst other things, in substance, &c. The indictment then set out the affidavit, which 
 stated, amongst other things, that C. Chad applied to the said T. S. for a loan of 150/.. which 
 T. S. had agreed to let C. C. have upon having a mortgage upon his, C. C.*s house, and as a 
 collateral security a warrant of attorney to accompany the said mortgage, that the mortgage 
 and warrant of attorney were prepared for 250/. although no more than 150/. was advan 
 &c. : "all which said matters and things so deposed and sworn by the said C. C. as aforesaid, 
 were, and each of them was material for the obtaining and supporting of the said rule." C. S. G. 
 1 Eng. Com. Law Reps xiii. 109.
 
 CHAP. I.] OF PERJURY, ETC. — INDICTMENT. 63£ 
 
 by one J. L., crown surveyor, in pursuance of the said acts) a certain had juris- 
 appeal of one W. H. of C, in the district and county aforesaid in due^°£j n in 
 form of law came on to be heard. The indictment then averred that order to" 
 the defendant on, &c, at, &c, appeared before the said commissioners as * h ° w th , ey 
 a witness for and on the behalf of the said W. EL, on the hearing of the rity to ad- 
 said appeal, and was then and there sworn, &c, before the said R. L., minister 
 F. D. P., and H. S. Gr., so being such commissioners as aforesaid, that the ° ath " 
 the evidence which he the defendant should give upon the hearing of 
 the said appeal should be the truth and nothing but the truth (they the 
 said commissioners then and there having authority to administer the 
 said oath, &c.) The indictment then proceeded to aver the materiality, 
 the giving the evidence, &c. The defendant having been convicted, a 
 writ of error was brought, and one of the errors assigned was, that it 
 did not appear that the said appeal was an appeal against such a certi- 
 ficate as in the said indictment mentioned, or that the same appeal was 
 such an appeal as the said commissioners or any of them had power, 
 authority, or jurisdiction to determine, and if they had no such power, 
 &c, they had no jurisdiction to administer the said oath ; and the Court 
 of Queen's Bench held *that the indictment was bad upon this ground, *639^^: 
 and the judgment was reversed. (r) _^ 
 
 It is necessary that it should appear on the face of the indictment that It must ap- r ' 
 the oath taken was material to the question depending. (s) But it is notP ear °?,^ 9 K 
 necessary to set forth in the indictment so much of the proceedings of the indictment 
 former trial as will show the materiality of the question on which the that tl10 — 
 perjury is assigned; and it will be sufficient to allege generally that the mater { a i or 
 particular question became a material question. (/) Thus, statements it must be _ 
 that, at a court of Admiralty session, J. K. was " in due form of law ^fit was. 
 tried upon a certain indictment then and there depending against him" 
 for murder, and that " at and upon the said trial it then and there be- 
 came, and was made a material question," whether, &c, were holden 
 to be sufficient averments that the perjury was committed on the trial 
 of J. K. for the murder, and that the question on which the perjury was 
 assigned was material on that trial. (w) If the materiality of the ques- 
 tion evidently appears upon the record, as where the falsehood affects 
 the very circumstance of innocence or guilt, or where the perjury is 
 assigned on documents from the recital of which it is evident that the 
 perjury was important, the express allegation may, it seems, be omit- 
 ted.^) And where, upon an indictment for perjury on a trial for 
 felony, it did not appear that the matter sworn was material, nor was 
 it alleged that it was so, the judges held, upon a case reserved, that if 
 the original indictment had been set out, and it could plainly have been 
 collected that the matter was material, it would have been sufficient 
 without an averment of materiality, but that as this was not the case, 
 the indictment was bad.(y) So where upon an indictment for perjury 
 committed in an answer in Chancery, the perjury was assigned in de- 
 fendant's denial in the answer of his having agreed, upon forming an 
 insurance company of which he was director, &c, to advance 10,0007. 
 for three years, to answer any immediate calls, and there was no 
 
 (r)Reg. v. Overton, Jan. 28, 1843, in B. R. Many other errors were assigned, but not 
 determined by the court. 
 
 (s) Rex v. Aylett, 1 T. R. GO. (<) Rex v. Dowlin, 5 T. R. 311. 
 
 (it) Id. ibid. 
 
 (x) 2 Chit Crim. L. 30T a, citing Trem. P. C. 130, &c, and 1 T. R. 315. Rex v. Crosslcy. 
 \y) Rex v. M'Kcron, East. T. 1792, MS. Bayley, J. 5 T. R. 31G. S. C.
 
 639 
 
 OF PERJURY, ETC. — INDICTMENT. 
 
 [BOOK V. 
 
 The indict- 
 ment must 
 show either 
 by a state- 
 ment of the 
 proceed- 
 ings, or by 
 express 
 averment 
 that the 
 matter 
 sworn was 
 material. 
 
 *640 
 
 averment that this was material, nor did it appear for what purpose 
 the bill was' filed, or what was the prayer, the judgment was arrest- 
 ed.^) 
 
 It seems to be fully settled that either it must appear upon the indict- 
 ment that the matter in respect of which the perjury is assigned was 
 material, or it must be expressly alleged to have been so. An indict- 
 ment for perjury alleged that on the trial of a certain issue the defend- 
 ant was sworn as a witness, and that on such trial certain questions 
 became material, that is to say " whether one J. Kenworthy had been 
 arrested by one J. Lister : whether the said J. L. had on the occasion of 
 the said alleged arrest touched the person of the said J. K. ; and whether 
 the said J. L. had on the occasion of the said ^alleged arrest put his 
 arms round the said J. K. and embraced him." The indictment then 
 charged that the defendant swore falsely to the following effect. " Lis- 
 ter (meaning the said J. L.) put his arms around him (meaning the said 
 J. K.) and embraced him, (meaning the said J. K., and meaning there- 
 by that the said J. L. had on the occasion to which the said evidence 
 applied, touched the person of the said J. K.) It was further alleged 
 that an answer to a question put to the defendant « whether the said J. 
 L. did not put his arms round him (meaning the said J. K.) and em- 
 brace him," the defendant falsely swore as follows, " he (meaning the 
 said J. L.) did j" (meaning that the said J. L. did on the occasion to 
 which the said evidence applied put his arms around and embrace the 
 said J. K. and did touch the person of the said J. K.) The defendant 
 having been convicted, a writ of error was brought, and the error spe- 
 cially assigned was that the materiality of the evidence alleged to have 
 been false was not sufficiently averred in the indictment ; and it was con- 
 tended that in the evidence, on which the perjury was assigned, there 
 appeared neither time, place, nor circumstance to connect the statement 
 with the alleged arrest. The whole might have turned upon some for- 
 mer and entirely different transaction. And the innuendoes did not 
 remove the difficulty ; for there was no averment in them that it was 
 on the occasion of the alleged arrest ; it merely imported that the evi- 
 dence was given concerning an occasion, which was not identified with 
 that in question. Bayley, J., "An indictment must be good without 
 the help of argument or inference. In the case of perjury the indict- 
 ment must show, either by a statement of the proceedings, or by other 
 averments, that the question to which the offence related was material. 
 That is not shown here in either way. The words on which perjury is 
 assigned, if taken without the innuendoes, have no necessary reference 
 to the occasion of an alleged arrest ; nor is there anything in the indict- 
 ment to connect them with it. It is contended that the inquiry, to 
 which part of the evidence was an answer, would not have been rele- 
 vant if applicable to any other matter and occasion than those now in 
 question; but we know nothing of the merits of the case except from 
 the indictment. The innuendoes rather introduce greater doubt than 
 greater certainty, and lessen the force of the argument that only one 
 occasion could have been contemplated. I am, therefore, of opinion 
 
 < 
 
 (z) Rex v. Bignold, Trin. T. 1824, MS. Bayley, J. The indictment was shown to Lord 
 Gifford, Master of the Rolls, and Mr. Bell, king's counsel, who both thought that upon the 
 face of the indictment it could not be said whether the question was material or not ; and the 
 materiality of all questions in a Chancery suit depending upon the purpose for which the 
 suit is instituted, the court held that the indictment could not be supported. MS. Bayley, J.
 
 CHAP. I.] OF PERJURY, ETC.— INDICTMENT. 640 
 
 that the indictment is defective, and the judgment ought to be re- 
 versed. "(«) 
 
 Where an indictment stated that a suit was pending in the Court of Hewin's 
 Chancery, and that a commission was issued to certain commissioners to "erfectS." 
 examine witnesses upon interrogatories, and then set out the ninth in- FegatLnVf 
 terrogatory, and averred that, " upon the examination of the defendant materiali " 
 upon the said interrogatories, it became, and was, material to ascertain 7 ' 
 the truth of the matters hereinafter alleged to have been sworn to and 
 deposed by the defendant, upon his oath, in answer to the said ninth in- 
 terrogatory;" it was objected that the averment of materiality was in- 
 sufficient, there being no statement of the alleged perjury being material 
 to the Chancery *suit, or to any question in that suit; and Coleridge, *641 
 J., expressed some doubt whether the averment of materiality was suffi- 
 cient, and would have reserved the point if it had become necessary, (b) 
 And where an indictment for perjury, after alleging that an information Goodfel- 
 was exhibited before two magistrates, and that the same information low ' s case - 
 came on to be heard before M. Gr. and J. S., two justices, and that 
 " upon hearing of the said information before the said M. G-. and J. S., 
 so being such justices as aforesaid, it became and was material to ascer- 
 tain the truth of the matter hereinafter alleged to have been sworn to, 
 and stated by the said J. S., upon his oath;" it was held, that this aver- 
 ment of materiality was sufficient, (c) 
 
 An indictment stated that, on the trial of an action of Meek v. Knight, Burraston'a 
 
 • i • C£LSG III- 
 
 " it became and was a material question, whether a certain bill of ex- sufficient 
 change, bearing date, &c," here the bill was described,) "was ac- averments 
 cepted by the said J. Meek, for the accommodation of the said W. aiit^andof 
 Knight, and without valuable consideration to the said J. Meek from the falsity 
 the said W. Knight ; and whether a certain paper writing or memoran-° f tho milt " 
 
 n } e -£ m o tej sworn. 
 
 dum, then and there produced, by and in the handwriting of the de- 
 fendant, J. Burraston, was really and truly executed by the said W. 
 Knight, by affixing his mark thereto, at the time of the making of the 
 said bill of exchange. (The indictment then set out the memorandum.) 
 And whether the said memorandum was read over by the said J. Bur- 
 raston to the said W. Knight, at the time of making the said bill of ex- 
 change as aforesaid." The indictment then alleged that the defendant 
 swore that the said paper-writing or memorandum was duly executed 
 by the said W. Knight, by affixing his mark to the same, in the pre- 
 sence of the said J. Burraston, on the day on which the same bears date, 
 and at the time of the malting of the said bill of exchange, and that 
 the said memorandum was then and there read over by the said J. Bur- 
 raston to the said W. Knight. " Whereas, in truth and in fact, the 
 said W. Knight did not execute the said paper-writing or memorandum 
 by affixing his mark thereto, in the presence of the said J. Burraston, 
 on the day on which the same bears date, nor was the said memorandum 
 
 (a) Rex v. NicholI, a 1 B. & Ad. 21. Littledale, J., and Parke, J., concurred, and Parke, 
 J. added, " It is part of the definition of perjury that the false swearing is on sonic point 
 material to the question in issue. In an indictment this may appear either from the matter 
 of the suit, as shown on the record, or by direct averment." 
 
 (b) Reg. v. llewins, b 9 C. & P. 786. The defendant was acquitted. Tho form of the 
 averment in this and the following "case was taken from 2 Chitty's Cr. L. p. 307 a; where it 
 is said that this " concise statement would, it should seem, in all cases sullicc" 
 
 (c) Reg. v. Goodfellow and another, Stafford Spr. Ass. 1842, Patteson, J., after consult- 
 ing Crcsswell, J., 1 C. & Mars. 569. See the averment of materiality in Rex v. Callanan, 
 ante, p. 638, note (q). 
 
 a Eng. Com. Law Reps. xx. 336. h lb. xxxviii. 33G. e lb. xli. 310.
 
 641 OF PERJURY, ETC. — MATERIALITY. [BOOK V. 
 
 read over by the said J. Burraston to the said W. Knight at the time 
 of the making of the said bill of exchange, nor was the said memoran- 
 dum produced or shown to the said W. Knight by the said J. Burras- 
 ton, at the time of making the said bill of exchange. Upon a writ of 
 error, brought after a general verdict of guilty, the errors assigned were, 
 that no perjury was assigned upon the question alleged to have been a 
 material question upon the trial, and that no perjury was assigned upon 
 any question alleged to have been a material question upon the trial ; 
 and the Court of Queen's Bench held that the indictment was bad. 
 The assignment of perjury, that the bill was not executed on the day on 
 which the same bears date, departed from the statement of the evidence, 
 and the allegation of the materiality. And the assignment of perjury, 
 that the paper was not executed at the time of the making of the bill, 
 *642 bore no relation *to the allegations of the evidence of the defendant. 
 The statement of the evidence of the defendant, as well as the allega- 
 tion of the falsehood, were uncertain. The words " then and there" 
 might, refer to the two dates, the date of the memorandum, and the day 
 of the making of the bill, and it might consist with the fact that it never 
 was read over on both days, or the defendant might never have intended 
 to say that it was.(cZ) 
 Ann Bird's The indictment must show on the face of it that the matter was ma- 
 case. Ma ' terial, it is not sufficient if it only shows that it might or might not 
 not neces- have been material. An indictment for perjury alleged that, on the 
 sanly ap- i v [ a \ f an indictment for an assault, with intent to commit a rape, and 
 the face of for a common assault, upon one Ann Bird, the said Ann Bird swore that 
 the indict- sae was the wife of one J. Bird, and had been married to him at such a 
 time and such a place, whereas she was not the wife of the said J. Bird, 
 and had never been married to him ; and the indictment contained an 
 allegation of materiality, which was insensible in consequence of an 
 error in copying it from the draft ; it was, nevertheless, contended, that 
 it sufficiently appeared on the face of the indictment, that the evidence 
 on which the perjury was assigned, was material on two grounds. First, 
 that on an indictment for an assault, with intent to commit a rape, it 
 was most material, not only as affecting the credit of the witness, but 
 as going to the very gist of the charge itself, whether the party assaulted 
 had falsely sworn that she was a married woman. Secondly, that by 
 swearing that she was the wife of J. Bird, the prosecutrix, supported 
 the allegation that the assault was upon " Ann Bird," which would 
 have failed if she had admitted that she was not married to J. Bird. But 
 Cresswell, J., held that it did not sufficiently appear that the evidence 
 was material ; it might or might not be material, and that was not suf- 
 ficient.^) 
 
 (d) Reg. v. Burraston, Q. B. Easter T., 1840, Jurist, vol. 4, p. 697. The court expressed 
 strong doubts whether it was possible to separate the three propositions, which were said to 
 have formed one question ; and Littledale, J., said that if it was one assignment of perjury, 
 and part was bad, the whole was vitiated. It was also doubted whether where a matter 
 was stated to be a material question, the prosecutor could abstain from stating any swear- 
 ing as to such matter, or assigning any perjury upon it. But it became unnecessary for the 
 court to decide either of these points, as the indictment was held bad on the grounds stated 
 in the text. 
 
 (e) Reg. v. Ann Bird, Gloucester Sp. Ass. 1842. The indictment for the assault simply 
 stated the assault to be upon Ann Bird, without any further description. The learned 
 judge expressed an opinion that the indictment was insufficient before the case went to the 
 jnry, but he left it to them, and after they had found the prisoner guilty, arrested the judg- 
 ment, in order that the prosecutor might bring a writ of error if he thought lit. >*o writ
 
 CHAP. I.] OF PERJURY, ETC.— MATERIALITY. 642 
 
 Where an indictment for perjury stated that a cause was set down for Apparent 
 trial, and appointed for a particular day, and that the defendant *in ^^"7 
 that cause, before that day, made an affidavit before a judge, in which vit*to post 
 he stated that he had a good defence to the action, which he would L e P one atrial. 
 able to prove at the trial, and that some of the bills, on which it was *®^ 
 brought, were void for usury; and then assigned perjury on these 
 allegations ; it was objected that the indictment was clearly bad : the 
 only manner, in which such an affidavit could be a judicial proceeding 
 or the matters contained in it become material, would be upon an 
 application to postpone the trial of the cause; but the indictment 
 did not show that any such application was made or intended. Lord 
 Tenterden, C. J., however, thought that the occasion, on which the 
 affidavit was intended to be used, might be sufficiently collected from 
 the indictment, and refused to stop the trial, as the defendant, if there 
 was any weight in the objection, might have the benefit of it after he 
 was convicted. (/) 
 
 But if the false oath has any tendency to prove or disprove the Circum- 
 matter in issue, though but circumstantially ; as, if the party wilfully materhili- 
 mis-state the colour of a man's coat, or speak to the credit of another ty. 
 witness, it will amount to perjury. (cf\ 
 
 It is also necessary that the indictment should expressly contradict The indict- 
 the matter falsely sworn to by the defendant. And the general aver- ment m , ust 
 ment that the defendant falsely swore, &c, upon the whole matter, will contradict 
 not be sufficient ; the indictment must proceed bv particular averments, the matt « r 
 
 . ± %/ x / sworn to by 
 
 (or, as they are technically termed, by assignments of perjury,} to nega- the defen- 
 sive that which is false. It may be necessary to set forth the whole clant - 
 matter to which the defendant swore, in order to make the rest intelli- 
 gible, though some of the circumstances had a real existence : but the 
 word "falsely" does not import that the whole is false; and when the 
 proper averments come to be made, it is not necessary to negative the 
 whole but only such parts as the prosecutor can falsify, admitting the 
 truth of the rest.(/A It is suggested that in negativing the defendant's 
 oath where he has sworn only to his belief, (t) it will be proper to aver 
 that "he well knew" the contrary of what he swore. (_/) It seems thatAssign- 
 an assignment of penury may, in some instances, be more full than thc" lont *" ullcr 
 
 ° r 1 1 i • -i • • • it t mi than st;ite- 
 
 statement of the defendant, which it is intended to contradict. Ihus, ment of tho 
 where the fact in the affidavit, in which the defendant was charged to defendant. 
 
 of error was brought, the prosecutor being unable to incur the expense of such a proceed- 
 ing. It sometimes happens that upon an objection taken to an indictment before verdict, 
 the judge who tries the case, if he considers the objection valid, directs an acquittal ; but 
 the course adopted by the learned judge in this case is certainly the better course, as if the 
 decision be incorrect where the judgment is arrested, it may be reversed upon error, whereas 
 if the prisoner is acquitted, and the decision is incorrect, there is no means of correcting 
 the error, and as the verdict of the jury has been taken, it may be very questionable whether 
 if a fresh indictment were preferred a plea of autrefois acquit might not be successfully 
 pleaded. Seeder Lord Tenterden, 0. J., Rex v. Fowle," 4 C. 4 1'. 592, post, p. 694. In Reg. 
 v. Purchase^ 1 C. & Mars. 617, tried at the same assizes, Patteson, J., after consulting Cress- 
 well J., refused to allow any objection to be taken to an indictmenl for embezzlement, except 
 upon demurrer or in arrest of judgment, and it seems most in accordance with the I 
 course of proceeding that such a course should be adopted in all cases. 0. S, I ; . 
 
 (/) Rex v. Abraham, 1 M. & Rob. 7. The defendanl was convicted, bu1 did not appear 
 to receive judgment when called upon, and no motion in arresl of judgment was made. 
 
 (a) Rex v. Griepe, 12 Mod. 142. Reg. v. Muscot, 10 Mod. 196. 3 Stark. Bvid. 869, and 
 see Reg. v. Gardiner, ante, p. 633. 
 
 (h) Rex v. Perrott, 2 M. & S 385, 390, 301, 392. And sec ante, p. 31C. 
 
 («') Ante, p. 597. (./) 2 Chit. Crim. L. 312. 
 
 » Eng. Com. Law Reps. xix. 540. b lb. xli. 335.
 
 643 ASSIGNMENT OF PERJURY. [BOOK V. 
 
 have perjured himself, was, that he never did, at any time during his 
 transactions with the commissioners of the victualling office, charge 
 more than the usual sum of sixpence per quarter beyond the price he 
 actually paid for any malt or grain purchased by him for the said com- 
 missioners as their corn-factor ; and the assignment in the indictment, to 
 falsify this, alleged that the defendant did charge more than sixpence 
 per quarter for and in respect of such malt and grain so purchased; it 
 was objected that the words in respect of might include lighterage, 
 freight, and many collateral and incidental expenses attending the corn 
 and grain jointly with the charge for the corn or grain, and, that bear- 
 *644 ing such sense, the *defendant was not guilty of perjury ; but the ob- 
 jection was overruled, (k) 
 The aver- The averments introduced to negative the matter sworn, ought to be 
 merits neg- gQ distinct and definite as to inform the defendant of the particular and 
 
 ntmng the . . 111 t ■ i ■ 
 
 truth of the precise charges, which are intended to be proved against him. An 
 matter indictment for perjury committed in the Insolvent Debtor's Court, 
 ought to be alleged, that the defendant swore in substance that his schedule con- 
 distinct tained a full, true, and perfect account of all debts owing to him at the 
 dse PrC " time of presenting his petition ; whereas, the said schedule did not con- 
 tain a full, true, and perfect account of all debts owing to him at that 
 time; and Lord Tenterden, C. J., after consulting the other judges of 
 the Court of King's Bench, held, that the indictment was insufficient, as 
 it was quite impossible that the defendant could know, from allegations 
 so vague and indistinct, what was to be proved against him ; the alle- 
 gations conveyed no information whatever of the particular charges 
 against which the defendant ought to be prepared to defend him- 
 se\f.(kk) 
 Perjury It has been decided in a recent case that perjury cannot be legally 
 
 assio-ned on charged and assigned by showing that the defendant did on two different 
 contradic- occasions make certain depositions contradictory to each other with an 
 sUions °~ averment that each of them was made knowingly and deliberately, but 
 without without averring or showing in which of the two depositions the false- 
 sh .°. w J i n o. hood consisted. The information stated that the defendant, before a 
 tbem is committee of the House of Commons, being duly sworn, deliberately 
 false. an( j knowingly, and of his own act and consent, did say, swear, and 
 
 give in evidence, &c. : setting out the evidence so given. And then the 
 count averred that the said defendant, at the bar of the House of Lords, 
 being duly sworn, deliberately and knowingly, and of his own act and 
 consent did say, swear, and give in evidence, &c. : setting out in like 
 manner the latter evidence, which was directly contrary to that given 
 before the House of Commons ; and concluded (after averments as to 
 the identity of the persons and places referred to in the evidence on 
 both occasions), and so the jurors aforesaid, do say that the said Ed- 
 ward Harris did commit wilful and corrupt perjury. And this was 
 holden to be bad on motion in arrest of judgment. (£) 
 
 (k) Rex v. Atkinson, Dom. Proct. 1785. Bac. Abr. tit. Perjury, (C). See Reg. v. Gardi- 
 ner, ante, p. 633. 
 
 (kk) Rex v. Hepper, a R. & M. N. P. R. 210. Lord Tenterden, C. J., referred to J'Anson v. 
 Stuart, 1 T. R. 748, where in an action for a libel in describing the plaintiff as a swindler, a 
 justification that the defendant had been guilty of divers acts of swindling, was held on 
 demurrer too general to be sustained. See Rex v. Mudie, 1 M. & Rob. 128, post, p. 671. 
 
 (1) Rex v. Harris, b 6 B. & A. 926. It should have been averred and shown in which of 
 the two depositions the falsehood consisted. 
 
 tt Eng. Com. Law Reps. xi. 494. *> lb. vii. 304.
 
 CHAP. I.] OF PERJURY, ETC.— INNUENDO. 644 
 
 If there be any doubt on the words of the oath, which can be made Of the in- 
 more clear and precise by a reference to some former matter, it may be nwendo - 
 supplied by an innuendo; the use of which is by reference to preceding 
 matter, to explain and fix its meaning more precisely :(m) but it is not 
 allowed to add to, extend, or change the sense.(rc) We have seen that, 
 in a case of perjury committed in an affidavit, it was holden that a word 
 which had been omitted by accident in the original document was im- 
 properly stated in the indictment, as though it had been in the original 
 document, *and that such word ought to have been inserted and ex- *645 
 plained by an innuendo. (o) In a case where an objection was taken to 
 an indictment, that it added, by way of innuendo to the defendant's 
 oath, "his house situate in the Haymarket in St. Martin in the Fields;" 
 without stating by any averment, recital or introductory matter, that he 
 had a house in the Haymarket ; or, (even admitting him to have such 
 a house,) that Ms oath was of and concerning the said house, so situ- 
 ated, the objection was overruled ; on the ground that the innuendo 
 was only a more particular description of the same house which had 
 been previously mentioned. (p) And in the same case, tho oath of the 
 defendant being that he was arrested upon the steps of his own door, 
 an innuendo that it was an outer door was holden good.(j) "Where Where it 
 an innuendo is introduced contrary to the rules which have been men-™ a 7 ^ e re " 
 
 1 G C to u 
 
 tioned, and any use is made of it in the indictment, it cannot be rejected 
 as surplusage, and it will be bad after verdict.(r) But if the innuendo, 
 and the matter introduced by it, are altogether impertinent, and imma- 
 terial, and can have no effect in enlarging the sense, it seems that they 
 may be rejected at superfluous, (s) 
 
 The proper office of an innuendo is to fix and point the meaning of Virrier's 
 
 something that has been previously averred. The indictment stated ? ase * An 
 • ••itt n • innuendo 
 
 the presenting of a petition to the House of Commons concerning the held good, 
 
 election of F. H. F. Berkeley, and set out the petition, which stated the as lt fixod 
 
 said F. H. F. Berkeley before and at the election was guilty of bribery, m g of what 
 
 and that certain agents of the said F. H F. Berkeley, being trustees of was pre- 
 
 divers public charities, and by virtue of such office entitled to dispose^ 1 ™ 8 ys a 
 
 of the funds of such charities, before and at the said election were guilty 
 
 of various corrupt acts, &c, in order to procure the return of the said 
 
 F. H. F. Berkeley. The indictment then averred that one T. Carlisle Indictment 
 
 was a trustee of divers of the said public charities, and " that shortly J^^"^ 
 
 before the said election, (to wit,) on, &c, the said T. Carlisle, the said show thai 
 
 F. H. F. Berkeley, and other persons, went to the house of one W. tho occa - 
 
 Virrier for the purpose of soliciting the said W. Virrier to vote for the w h w h t i, e 
 
 said F. H. F. Berkeley at the said election." The indictment then stated matter 
 
 that certain members of the House of Commons were chosen to try and tod) wa8 
 
 determine the merits of the said election, and that the said persons s<> theone to 
 
 chosen met to try and determine the matter of the said petition. The ^"^ 
 
 indictment then averred that S. Virrier appeared "as a witness before of materi- 
 
 the said select committee touching the matter of the said petition," and '^ refcr - 
 
 that the said S. Virrier was duly sworn, &c. " And it then and there 
 
 (m) Rex v. Aylett, 1 T. R. . 0. Rex v. Taylor, 1 Campb. 404. 
 
 (n) Rex v. Griepc, 1 Lord Raym. 256. 2 Salk. 513. And see as to the use of an innuendo, 
 1 Saund. 243, note (4). 1 Chit, on Plead. 400. 1 Stark. Criin. Plead. 118, el scq. 
 (o) Rex v. Taylor, 1 Campb. 404. Ante, p. 024. 
 (p) Rex v. Aylett, 1 T. R. 70. (7) Id. ibid. 
 
 (r)Rex v. Griepe, 1 Ld. Raym. 2G0. 
 (s) Roberts v. Camden, 9 East, 93. 2 Chit. Crim. L, 311.
 
 645 OF PERJURY, ETC. — INNUENDO. [BOOK V. 
 
 became and was a material question, whether at the time aforesaid when 
 the said T. Carlisle, the said F. H. P. Berkeley, and the said other per- 
 sons, so went to the house of the said W. Virrier, the said T. Carlisle 
 said that he would give the said W. Virrier 6/. out of one of the afore- 
 said charities at Christmas, whereof the said T. Carlisle was trustee as 
 aforesaid, or that he would give him 6/. at Christmas. (<) And that the 
 said S. Virrier falsely, &c, did depose, &c, to the select committee 
 *646 aforesaid, *" touching the matters and merits of the said election, and 
 the matter of the said petition, in substance and to the effect following, 
 viz., that before the said election a canvassing party came to her hus- 
 band's house, and Mr. Berkeley (meaning the said F. H. F. B.,) and 
 Mr. Carlisle (meaning the said T. C.,) came into the house of the said 
 W. Virrier, and Mr. Carlisle asked her if she knew who her husband 
 was going to vote for at the ensuing election ; that she said she believed 
 he was going to vote one and one, and that Mr. Carlisle then said that 
 he would act like a sensible man, and " I will give him the 61. at Christ- 
 mas," (thereby meaning that at the said time when the said F. H. F. 
 Berkeley, and the said T. Carlisle, and the said other persons so went 
 as aforesaid to the house of the said W. Virrier, for the purpose of 
 soliciting him to vote for the said F. H. F. Berkeley, the said T. Car- 
 lisle said he would give the said W. Virrier 6/. at Christmas, out of the 
 funds of one of the aforesaid public charities, whereof the said T. Car- 
 lisle was trustee as aforesaid. "(ft) " Whereas in truth and in fact 
 the said T. Carlisle did not at the said time when the said F. H. F. 
 Berkeley, the said T. Carlisle, and other persons went to the said house 
 of the said W. Virrier to solicit him to vote as aforesaid, or during the 
 time when, on that occasion, they were in or at the said house, say to 
 the said S. Virrier that the said T. Carlisle would give to the said W. 
 Virrier the Ql. at Christmas, or any sum of money from or out of any of 
 the said public charities, or any sum of money whatsoever at Christmas 
 or at any other time."(?/) The defendant having been found guilty, it 
 was moved in arrest of judgment that it did not appear either from the 
 evidence said to have been given by the defendant, or from any other 
 part of the indictment, except the innuendo, that the occasion on which 
 the speaking of the words was said to have been material, was the 
 same occasion with refereuce to which the evidence was given ; that 
 the averment of materiality might relate to one occasion, and the evi- 
 dence to another occasion of the same kind ; and that the innuendo 
 would not aid, because an innuendo can only explain, and cannot sup- 
 ply the place of a substantial averment. The indictment also alleged 
 that the defendant swore " touching the matters and merits of the said 
 election, and the matter of the said petition," but that did not show 
 that her evidence related to the material time before mentioned. Nor 
 did her evidence, as set out, identify the occasion without the innuendo. 
 The innuendo, therefore, did more than explain ■ it supplied that which 
 made the evidence material. Lord Denman, C. J., after full argument 
 and time taken to consider, delivered the judgment of the court as fol- 
 lows: "Upon this indictment a motion has been made to arrest the 
 judgment upon two objections. 1st. That the allegation of the oath 
 
 (/) The indictment here stated other questions to be material in a similar manner. 
 (tt) The indictment here set. out more of the evidence. See the case, post, p. 650. 
 («) The indictment here set out other matters of perjury to the other parts of the evidence, 
 which was set out in the indictment.
 
 CHAP. I.] OF PERJURY, ETC. — INNUENDO. G46 
 
 having been taken ' touching the matter of the said election, and the 
 matter of the said petition, did not sufficiently point to the matter 
 whereupon the defendant was alleged to have given evidence; and 
 secondly, that there was nothing to fix the alleged gift and promise of 
 money to the said visit on the 6th of July. We think, however, that 
 neither objection is sustainable. As to the first, it does sufficiently ap- 
 pear that a competent trial was *had, that a material question arose as *647 
 to the existence of certain facts, to which the defendant deposed, and 
 was therein guilty of perjury. Now although it is certainly true that 
 the averment stated the oath to have been < touching and concerning 
 the matters and merits of the said election, and the matter of the said 
 petition,' does not directly refer to what are alleged to be material ques- 
 tions which arose, yet, where it does sufficiently appear, both by aver- 
 ment and otherwise, that the oath was upon a material point, the alle- 
 gation ' touching and concerning,' &c, is wholly superfluous and unne- 
 cessary, and the indictment would have been sufficient if it had omitted 
 that part altogether, and had merely stated that the defendant deposed 
 and swore ' as follows,' &c. The second objection is, that the evidence, 
 upon which the perjury is alleged to have been committed, is not re- 
 ferred with sufficient distinctness to the said canvassing visit, and that 
 the innuendo, by which it is attempted so to apply it, introduces new 
 matter, and is therefore bad. We, however, think otherwise, for an in- 
 troductory averment expressly states that there was, in fact, such can- 
 vassing visit, and the innuendo directly refers thereto. It is plain, 
 therefore, that this case comes within the rule laid down by Ld. C. J. 
 De Grey, in Rex. v. Horne,(#) which has always been recognized as the 
 true one, and that the innuendo does only point and fix the meaning of 
 something previously averred, which is the proper office of an innuendo, 
 and that it does in no respect enlarge it. We think, therefore, that there 
 is no ground for arresting the judgment."(«-) 
 
 And indictment for perjury at common law need not conclude against Conclusion 
 the form of the statute; but where perjury is committed under such a^ent 
 circumstances that it is only punishable by the provisions of a statute, 
 and not at common law, the indictment ought to conclude against the 
 form of the statute. The defendant was indicted for perjury in giving 
 false evidence before the revisiug barrister, as to the occupation of a 
 tenement in the borough of Bridgnorth, and the indictment did not 
 conclude against the form of the statute. It was objected that a.s this 
 was a crimecreated by the 2 Wm. 4, c. 45, s. 52, the indictment ought 
 so to have concluded. It was answered that the revising barrister held 
 a court, which was made so by sec. 50 of the same act, That any false 
 swearing in a court was perjury at common law, and therefore the in- 
 dictment was good. Lord Abingcr, 0. B., thought the only question 
 was, whether the statute by sec. 50, constituted a court; for if it did, the 
 offence of false swearing in it was perjury at common law, and his opin- 
 ion was that it did constitute a court, and therefore the indictment was 
 sufficient.^) 
 
 (v) 2 Cowp. 672. (•) Reg- v. VIrrtor," 12 Ad. & B. 317 
 
 (x) Reg v Thornhill,* Salop Sum. Ass. 1838, reported on another point, 8 0. & Y. 575. 
 
 In Rex v. De Beauvoir," 7 C. & P. 17, the Lndictmenl seems not to have com ludi A 
 
 the form," &c. See the note fit the end of the case. 
 
 * Eng. Com. Law Reps. xL 48. " lb. xxxiv. 532, lb axil 422. 
 
 Vox* ii.— 42
 
 647 OF PERJURY, ETC. — INDICTMENT. [BOOK V. 
 
 The court In general the court will oblige the defendant to plead or demur to a 
 ni'vil' 11 SG defective indictment for perjury. (y\ And they are also very cautious 
 oblige the in granting a certiorari to remove it. (z) And it appears that Lord 
 hw iuiaut Thurlow refused permission to amend an answer where an indictment 
 
 to plead or * . 
 
 demur to a for perjury had only been threatened, even where the party, having no 
 defective interest, could not be supposed to take the *false oath intentionally.(a) 
 m ent. In a late case, Abbott, Lord C. J., said that, inasmuch as the objection 
 
 *648 taken to an indictment for perjury appeared on the record, he did not 
 feel himself warranted in taking notice of it at nisi prius. (&) 
 Where an But where an indictment for perjury is clearly bad upon the face of 
 !? D ct " e ™ it) a judge at nisi prius may refuse to try such indictment. An indict- 
 is clearly ment for perjury charged that one A. B., had been convicted of certain 
 bad, the offences, and that A. B., afterwards obtained a rule to show cause why a 
 
 lUUfiTG will 
 
 refuse to new trial should not be granted, and that the defendant in order to pre- 
 try it. vent the said rule from being made absolute made the affidavit whereon 
 the perjury was assigned, but there was no averment that the matters 
 falsely sworn were material, nor could it be collected from the indict- 
 ment that they were so; and Garrow, B., having consulted Abbott, C. J., 
 who concurred with him in opinion that the indictment was clearly bad, 
 held that it was the duty of the judge not to proceed to try the case.(c) 
 So where in an indictment for perjury, the allegations negativing the 
 matter sworn, were so vague and indistinct as to convey no information 
 of the particular charges against the defendant : Abbott, C. J., after con- 
 sulting the other judges of the Court of King's Bench, ordered the case 
 to be struck out of the list.(e?) So where an indictment for perjury at 
 common law was found at the Quarter Sessions, and removed by certi- 
 orari into the Court of King's Bench, and sent down to be tried at nisi 
 prius, Gaselee, J., refused to try it, as it was quite clear that the ses- 
 sions had no jurisdiction over perjury at common law, and the indictment 
 was therefore void.(e) But a judge will not allow counsel to argue at 
 length at nisi prius the invalidity of an indictment, for the purpose of 
 inducing the court to refuse to try it, as that is not the time or place to 
 discuss such disputed questions. (f\ 
 Plea of The right of the defendant to plead a plea of autrefois acquit came 
 
 Vcquit. 1 * unaer tae consideration of the Court of King's Bench in the following 
 case. The defendant was indicted in Middlesex, for perjury committed 
 
 (;/) 2 Hawk. P. C. c. 25, s. 146. (z) 2 Hawk. P. C. c. 27, s. 28. 
 
 (a) Brown's Chan. Cas. 419. 
 
 (b) Rex v. Souter, a 2 Stark. R. 423. The objection was, that the indictment was drawn 
 in the compendious manner described by the 23 Geo. 2, c. 11 ; and yet no count alleged that 
 the question upon the answers to which perjury was assigned was material. 
 
 (c) Rex v. Tremearne, b R. & M. N. P. R. 147. In Rex v. Deacon, R. & M. N. P. R. 27, 
 Abbott, C. J., refused to try an indictment for a forcible entry, which was bad for want of 
 alleging that the entry was manuforti, although the counsel for the defendant insisted that 
 the case should proceed, in order that the defendants might have the benefit of an acquittal 
 by a jury, as they intended to institute proceedings for a malicious prosecution. 
 
 ' (d) Rex v. Hepper, d R. & M. N. P. R. 210. 
 
 (e) Rex v. Haynes, e R. & M. N. P. R. 298. See Reg. v. Rigby/ 8 C. & P. 770, where Ers- 
 kine, J., quashed an indictment for forging a request for the delivery of goods, which had 
 been found at the quarter sessions on the same ground. 
 
 (/) Rex v. Abraham, 1 M. & Rob. 7, ante, p. 643. In this case the defendant's counsel 
 pointed out the objections in order to induce the court to stop the trial, and Lord Tenterden, 
 C. J., said, that "it might be convenient sometimes for counsel to suggest a point on which 
 an indictment is clearly bad, to save the time of the court." In Rex v. Hepper, and Rex v. 
 Tremearne, the objections to the indictment were pointed out by the court. See note (e), 
 ante, p. 642. 
 
 a Eng. Com. Law Reps. iii. 413. b lb. xxi. 402. ■ lb. xxi. 373. d lb. xi. 494. 
 e lb. xxi. 444. f lb xxxiv. 629.
 
 CHAP. I.] OF PERJURY, ETC. — TRIAL, ETC. 6-48 
 
 in an affidavit; which indictment, after setting out so much of the affi- 
 davit as contained the false oath, concluded with a prout patet by the 
 affidavit filed in the Court of King's Bench, at Westminster, &c, and 
 on this he was acquitted ; after which he was indicted again in Middle- 
 sex, for the same perjury, with this difference only, that the second in- 
 dictment set out the *jurat of the affidavit, in which it was stated to *649 
 have been sworn in London : which was traversed by an averment that 
 in fact, the defendant was so sworn in Middlesex, and not in London : 
 and the Court of King's Bench held, that he was entitled to plead 
 autrefois acquit, as the jurat was not conclusive as to the place of 
 swearing; and the same evidence as to the real place of swearing the 
 affidavit might have been given under the first as under the second in- 
 dictment ; and, therefore, the defendant had been once before put in 
 jeopardy for the offence. (#) 
 
 With respect to the trial of perjury, it may be observed, that the Tlial - Jn- 
 court of quarter sessions have no jurisdiction over the offence at com- o' f s ^ ctlou 
 mon law, and though they had jurisdiction over it under 5 Eliz. c. 9, quarter 
 yet that jurisdiction is taken away by the 5 & 6 Vict. c. 38, s. 1, which fi 8 ^ y : 
 enacts, that " neither of the justices of the peace acting in and for any c. 38, g. l. 
 county, riding, division, or liberty, nor the recorder of any borough, 
 shall, at any session of the peace, or at any adjournment thereof, try 
 any person or persons for (inter alia\ perjury or subornation of per- 
 jury;" or, ''making or suborning any other person to make a false 
 oath, affirmation, or declaration punishable as perjury, or as a misde- 
 meanor." The mode of proceeding is by indictment at the assizes, or 
 in the King's Bench. And indictments for perjury at common law, 
 preferred at the quarter sessions, appear to have been quashed for want 
 of j urisdiction . (h\ 
 
 It may be observed that it is the practice of the Central Criminal Time of 
 Court not to try an indictment for perjury arising out of a civil suit *" al at . the 
 while that suit is in any way undetermined, except in cases in which Criminal 
 the court, where the suit is pending, postpones the decision of it, in Court - 
 order that the criminal charge may first be disposed of.(?') 
 
 Where a person made an affidavit in the Court of Common Pleas, Summary 
 and afterwards, being summoned to appear in court, came there, and J 1 ^ 000 
 confessed it to be false, the court recorded his confession and ordered 
 that he should be taken into custody, and put in the pillory. (/r) In 
 answer to the objection of the defendant's counsel to this proceeding, 
 it was argued that it was fully justified under the 5 Eliz. c. 9, and that 
 even if the court could not punish the defendant by virtue of that 
 statute, he might be punished at common law, on the ground that any 
 court might punish such a criminal for an offence committed in jacie 
 curio3.(l\ 
 
 The evidence of one witness is not sufficient to convict the defendant Evidence, 
 
 V 
 
 (g) Rex v. Emden, 9 East, 437. 
 
 (h) 3 Burn. Just. tit. Perjury, &c. Rex v. Sainton, 2 Str. 1088. Rex v. West in. 
 ibid. 1 Chit. Crim. L. 301. Rex v. Haynes," R. & M. N. P. II. 298, ante, p. 648. 
 
 (i) Rex v. Ashburn, and Rex v. Simmons, b 8 C. & P. 50. The reporters Btata thai the 
 reason of the practice is that so long as the case is undecided, the plaintiff and the d< fend- 
 ant, who might be witnesses on the trial for perjury, have a direcl Intereil in giving their 
 evidence, which they would not have after the case was finally decided. 
 
 (k) Rex v. Thorogood, 8 Mod. 179. 
 
 (1) Id. ibid.; and Bushnell's case, Vaugh. 152, was cited. 
 
 » Eng. Com. Law Reps. xxi. 444. b lb. xx.xiv. 288.
 
 iU',1 OF PERJURY, ETC. — TWO WITNESSES. [BOOK V. 
 
 One wit- on an indictment for perjury; as in such case there would be only 
 
 sufficient one oatu a ?ainst another, (m) But the rule must not he understood 
 
 *65(J as establishing that two witnesses are necessary to disprove *the fact 
 
 One wit- sworn to by the defendant, for if any material circumstance be proved 
 
 ness and ^y other witnesses in confirmation of the witness who gives the 
 
 eorrobora- j . . , , c 
 
 tive evi- direct testimony of perjury, it may turn the scale, and warrant a con- 
 
 dence. vi C tion.(«)f 
 
 Where Upon an indictment for perjury, Coleridge, J., is reported to have 
 
 there is gg}^ u ne witness in perjury is not sufficient, unless supported by cir- 
 direct wit- cumstantial evidence of the strongest kind ; indeed, Lord Tenterden, 
 ness there (j j #j was f opinion that two witnesses were necessary to a con vie- 
 strong evi- tion."(eA In a later case, where the evidence of one witness went in 
 dence to support of all the assignments of perjury ; and to confirm him another 
 that wit- witness was examined as to a conversation between himself and the 
 ness in or- defendant, and some entries in the defendant's books were given in evi- 
 ran/a ^^ ^ence '■> ^ was submitted that there was no evidence to go to the jury; 
 viction. that the rule is that a case of perjury cannot be submitted to the jury 
 on the evidence of a single witness; and as to the evidence of confirma- 
 tion, it was not enough that there should be some evidence in confirma- 
 tion, as in an ordinary case at nisi prius, where some evidence is ne- 
 cessary to prevent a nonsuit, but it must be such evidence as, in the 
 opinion of the judge, is really confirmatory in some important respect, 
 and equivalent to the positive testimony of a second witness. Cole- 
 ridge, J., "I think that the case must go to the jury, but I also think 
 without the slightest chance of a verdict for the crown. The rule that 
 the testimony of a single witness is not sufficient to sustain an indict- 
 ment for perjury, is not a mere technical rule, but a rule founded on 
 substantial justice; and evidence confirmatory of that one witness, in 
 some slight particulars only, is not sufficient to warrant a convic- 
 tion."^) 
 
 (m) Reg. v. Muscot, 10 Mod. 193. 4 Bla. Com. 358. Peake on Evid. 10. 1 Phil, on 
 Evid. 151, 7 edit. 
 
 (n) Rex v. Lee, Mich. 6 Geo. 3. MS. Bayley, J., 1 Phil. Evid. 152, 7 edit. 
 
 (o) Champney's case, 2 Lew. 258, and the same point is said to have been ruled by the 
 same learned judge in Rex v. Wigley, ibid. note. And Mr. Starkie observes, " And semble 
 that the contradiction must be given by two direct witnesses, and that the negative supported 
 by one witness, and by circumstantial evidence, would not be sufficient. It has been so 
 held (ut audivi) by Lord Tenterden, C. J." 3 Stark. Evid. 860, note (g). 
 
 (p) Reg. v. Yates, a 1 C. & Mars. 132. See Reg. v. Porker, post, p. 654. 
 
 f {If there be only one witness, circumstances strongly corroborative are enough, although 
 not in themselves sufficient to prove a fact. Per Sutherland, J., 6 Cowen, 118, Woodbeck v. 
 Keller. See also 1 Nott & M'Cord, 546, State v. Hayward.} 
 
 [In order to authorize a conviction of perjury it is necessary, in addition to the testimony 
 of one witness to the falsity of the statement alleged as the perjury, that strong corroborating 
 circumstances of such a character as clearly to turn the scale and overcome the oath of the 
 party charged and the legal presumption of his innocence, should be established by inde- 
 pendent evidence : and therefore, where the charge in an indictment for perjury was that 
 the defendant had testified that no agreement for the payment by him of more than the 
 lawful rate of interest had ever been made between him and a person to whom he was in- 
 debted, upon certain contracts ; it was held that the testimony of the creditor to the exis- 
 tence of such an agreement, corroborated by the letters of the defendant to him. containing 
 a direct promise to pay more than legal interest on a demand held by such creditor, if the 
 payment could be delayed, and apologizing for a delay which had already taken place in 
 the payment of another demand, and promising to pay a bonus for the delay, was competent 
 and sufficient evidence of the falsity of the statement alleged as perjury. The Commonwealth 
 v. Parker, 3 Cushing, 2l2.] 
 
 a Eng. Com. Law Reps. xli. 77.
 
 CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 650 
 
 In one case where there were three assignments of perjury upon evi- Virrier'a 
 dence relating to one and the same transaction, at one and the same fixation"" 
 time and place, it seems to have been considered that the jury ought ou two out 
 not to convict on one of the assignments, although there were several of t . hree 
 witnesses who corroborated the witness who spoke to such assignment mems of 
 on the facts contained in the other assignments. The indictment stated P er J ur y« 
 that the defendant swore that Mr. B. and Mr. C. came to her husband's 
 house, that Mr. C. said, " I will give him the 6/. at Christmas," and 
 Mr. B. shook hands with her, and put something into her hand, and 
 told her to give it to her hushand, and that it was a sovereign wrapped 
 up in some paper ; and Mr. C. told her he should not forget it was in 
 his power to give her husband the Ql. at Christmas. The assignments 
 of perjury were, 1st, that Mr. C. did not say that he would give the QL 
 at Christmas ; 2dly, that Mr. B. did not put a sovereign into the hand 
 of the defendant; and thirdly, that Mr. C. did not tell the defendant 
 that he should not forget it was in his power to give her husband the 
 61. at Christmas. Evidence was given in support of all the assignments 
 of perjury. Lord Denman, C. J., in summing up, said, that as to the 
 second *assignment the proof lay almost entirely in the evidence of one *651 
 witness, and, therefore, he did not see how the jury could convict of the 
 perjury imputed ; but that on the others there was a distinct contradic- 
 tion of the defendant's testimony by Mr. C. who was supposed to have 
 offered the QL, and several other witnesses ; and he left it to the jury to 
 say whether there was not a strong body of evidence clearly supporting 
 Mr. C.'s denial.^) 
 
 But where an indictment for perjury, alleged to have been committed Gardiner's 
 in making a charge of an unnatural offence in which the defendant had caso * 
 deposed that he saw the prosecutor committing the offence, and saw the 
 flap of his trowsers unbuttoned, and that he was there five minutes ; and 
 to disprove this the prosecutor swore that he did not commit the offence, 
 and that his trowsers had no flap on ; and to confirm him his brother 
 proved that at the time in question the prosecutor was only absent 
 three minutes, and that the trowsers he had on, which were produced 
 in court, had no flap; Patteson, J., held that the corroborative evidence 
 was quite sufficient to go to the jury; and, upon a case reserved, the 
 judges held the conviction right. (r) So where perjury was alleged to One wit- 
 have been committed by the defendant, who was an attorney, in an affi- ""of ooBta 
 davit made by him to oppose a motion to refer the defendant's bill of of defend- 
 costs to taxation, and to prove the perjury one witness was called, and ant * 
 in lieu of a second witness, it was proposed to put in the defendant's 
 bill of costs delivered by him to the prosecutor ; it was suggested that 
 
 (q) Reg. v. Virrier, a 12 Ad. & E. 317. The learned Chief Justice considered the most 
 convenient mode of summing up the case to be to treat the second assignment as the first, 
 and the first and third as one, and did so leave the case to the jury, who found a vnlirt of 
 " not guilty on the first assignment of perjury for want of sufficient evidence, and guilty on 
 the second," but said nothing on the third, and the verdict was entered accordingly. The 
 Chief Justice did not at the time make any note of his summing up, but did so afterwards 
 and having a distinct remembrance of it, and no doubt of the jury's intention, he (on sum- 
 mons) allowed the pos tea to be amended by entering a verdict of "guilty" on the ftrsl and 
 third assignments, and " not guilty" on the second; but the court afterwards held that the 
 amendment ought not to have been made, there being no note or memorandum of the judge 
 or other document to amend by. 
 
 (r) Reg. v. Gardiner, 2 Moo. C. C. R. 95. See a fuller statement of this rase, ante, p. 033. 
 et seq. 
 
 ft Eng. Com. Law Reps. si. 48.
 
 651 OF PERJURY, ETC. — EVIDENCE. [BOOK V. 
 
 this was not sufficient, as the bill had not been delivered by the de- 
 fendant on oath. Lord Denman, C. J., "I have quite made up my 
 mind that the bill delivered by the defendant is sufficient evidence, or 
 that even a letter, written by the defendant, contradicting his statement 
 on oath, would be sufficient to make it unnecessary to have a second 
 witness."(s) 
 Knill's And the rule does not apply where the evidence consists of the con- 
 
 tridietory 1 " tradictory oath of the party accused. Thus, in a case where the defen- 
 oath of the dant had been convicted of perjury, charged in the indictment to have 
 defendant. jj een committed in an examination before the House of Lords, and the 
 only evidence was a contradictory examination of the defendant before 
 a committee of the House of Commons, application was made for a new 
 trial, on the ground that in perjury two witnesses were necessary, 
 whereas in that case only one witness had been adduced to prove the 
 corpus delicti, namely, the witness who deposed to the contradictory 
 evidence given by the defendant before the committee of the House of 
 Commons, and, further, it was insisted, that mere proof of a contradic- 
 *652 tory statement by the defendant* on another occasion was not sufficient, 
 without other circumstances, showing a corrupt motive, and negativing 
 the probability of any mistake. But the court held that the evidence 
 was sufficient, the contradiction being by the party himself, and that 
 the jury might infer the motive from the circumstances, and the rule 
 was refused. (t) And the same px*inciple appears to have been acted 
 upon in a former case. The defendant had first made his information 
 upon oath before a justice of the peace, that three women were con- 
 cerned at a riot at his mill (which was dismantled by a mob on account 
 of the price of corn), and afterwards, at the sessions, when the rioters 
 were indicted, he was examined concerning those women, and (having 
 been tampered with in their favor) he then swore they were not in the 
 riot. There was no other evidence on the trial of the defendant for 
 this perjury to prove that the women were in the riot (which was the 
 perjury assigned) but the defendant's own original information on oath, 
 which was produced and read, and by which he had sworn that they 
 were in the riot. And the judge thought this evidence sufficient, and 
 the defendant was convicted and transported. (u) And with respect to 
 this evidence, it has been observed, that when the same person has by 
 opposite oaths asserted and denied the same fact, the one seems suffi- 
 cient to disprove the other ; and with respect to the defendant (who 
 cannot contradict what he himself has sworn) is a clear and decisive 
 proof, and will warrant the jury in convicting him on either, for which- 
 soever is given in evidence to disprove the other, it can hardly be in the 
 defendant's mouth to deny the truth of that evidence, as it came from 
 himself. (w)f 
 
 (*) Rex v. Mayhew, a 6 C. & P. 315. (t) Rex v. Knill, b 5 B. & A. 929, note (a). 
 
 (m) Anon, cor. Yates. J., Lancaster Sum. Ass. 1764. And afterwards Lord Mansfield, C. 
 J., and Wilmot, J., and Aston, J., to whom Yates, J., stated the reasons of his judgment, 
 concurred in his opinion. Notes to Rex v. Harris, 5 B. & A. 939, 940, MS. Bayley, J. 
 
 (t>) From the Precedent-book of Chambre, J., cited 5 B. & A. ibid. 
 
 f [The cases in which a living witness of the corpus delicti of the defendant, in a prosecu- 
 tion for perjury, may be dispensed with, are : All such where a person charged with a per- 
 jury by false swearing to a fact directly disproved by documentary or written testimony 
 springing from himself, with circumstances showing the corrupt intent ; in cases where the 
 perjury charged is contradicted by a public record, proved to have been well known to the 
 defendant when he took the oath, the oath only being proved to have been taken ; in cases 
 B Eng. Com. Law Reps. xxv. 415. b lb. vii. 30G. e lb. vii. 309.
 
 CHAP. I.] OF PERJURY, ETC.— EVIDENCE. 652 
 
 But where the defendant was indicted for perjury, alleged to have Wheat- 
 been committed on the trial of an indictment for larceny, and it appeared J^f s Con 
 that the defendant had sworn to several material facts before the com- tradictory 
 mitting magistrate, but, when he was called on the trial, denied the 0ilth ot ' the 
 whole of what he had stated before the magistrate ; and Rex v. Kuill notTuffici- 
 and Anon,(w) were cited to show that the contradiction by the oath be- ent without 
 fore the magistrate, would alone be sufficient evidence to convict the dence. 6 ' 1 
 defendant ; but Gurney, B., held that it was not sufficient to prove that 
 the defendant had, on two diiferent occasions, given directly contra- 
 dictory evidence, although he might have wilfully done so; but that the 
 jury must be satisfied affirmatively that what he swore at the trial was 
 false; and that would not be sufficiently shown to be false by the mere 
 fact that the defendant had sworn the contrary at another time ; it might 
 be, that his evidence at the trial was true, and his deposition before the 
 magistrate false. There must be such confirmatory evidence of the de- 
 fendant's deposition before the magistrate, as proved that the evidence 
 given by the defendant at the trial was false.(x) 
 
 *And where the prisoner was indicted for perjury, and it appeared that *653 
 
 (w) Supra, notes (t) and (m). 
 
 (z) Reg. v. Wheatland, a 8 C. & P. 238. Although at first sight this decision may seem at 
 variance with those cited, perhaps it may not in fact be so. In Rex v. Knill, the court held 
 that " the jury might infer the motive from the circumstances," none of which are stated in 
 the short minute of the case ; some of them might have been such as to show that the one 
 statement was false, or the other statement true. In the anonymous case the defendant had 
 been tampered with after his first examination, and the evidence of the tampering with the 
 defendant might be such as to lead to the conclusion that his evidence on the trial was 
 false. But supposing those cases to go the length of establishing the proposition that the 
 defendant's own evidence upon oath is sufficient to contradict the evidence on which the 
 perjury is assigned; it is conceived they cannot be supported. The prosecutor may charge 
 the perjury either on the one statement or on the other, and whichever he selects, it is clear 
 that the defendant could not avail himself of a plea of autrefois acquit, or convict in case he 
 were subsequently indicted for the other, and therefore he might be twice put in jeopardy, 
 and perhaps twice convicted for the same offence. The judgment in Rex v. Harris, b 5 B. & 
 Aid. 926, is conclusive to show that this is a good objection. Again, such evidence leaves 
 it wholly uncertain which of the two statements is true ; now it is a clear rule of criminal 
 law that if the evidence on the part of the prosecution leaves it wholly uncertain whether 
 the crime charged has been committed or not, the defendant must be acquitted; and as to 
 the observation that " it can hardly be in the defendant's mouth to deny the truth of the 
 evidence that came from himself," it must be remembered that there are two statements 
 upon oath, and if he is to be concluded from denying one to be true, the same reason would 
 conclude him from denying the other, and it would surely be very unreasonable to hold thai 
 he is concluded to deny the truth of whichever the prosecutor may think fit to select. It is 
 conceived, also, that an indictment charging each of the statements to be false in separate 
 couDts, could not succeed. The charges being directly contradictory the one to the other, 
 it may be doubted whether the grand jury would be warranted in finding such an indict- 
 ment; or, if found, whether it would not be bad on the face of it ; and as the defendant 
 could only make a defence to one charge by proving himself guilty of the oilier, the judge 
 would probably insist upon the prosecutor electing on which charge lie would proceed. Bu1 
 supposing these difficulties to be surmounted, it is not easy to see how it would lie possible 
 for the jury to find a verdict without any evidence to show which statement was false. It 
 they found a verdict they would at one and the same time find each of the statements to be 
 both true and false, unless indeed they were satisfied that tie defendant had, upon both 
 occasions, wilfully sworn to matters about which he had no knowledge at all. Ante, p. 597 
 
 C. S. G. 
 
 where the party is charged with taking an oath contrary to what he must necessarily have 
 known to be the truth; and the false swearing can be proved by his own Letters relating to 
 the fact sworn to, or by other written testimony existing and being found ir the possession 
 of the defendant, and which has been treated by him as containing the evidence oi the tat I 
 recited in it. The United Stairs v. Wood, 1 4 Peters, 430. Case in which a defendanl was 
 convicted of perjury, when it appeared by his (jwn deposition.) hut :i former deposition was Wil- 
 fully and corruptly false. The People v. Burden, !> Barbour, Sup. Ct. -I'm. 
 a Eng. Com. Law Reps, xxxiv. 300. b lb. vii. 304.
 
 653 
 
 OF PERJURY, ETC. — EVIDENCE. 
 
 [BOOK V. 
 
 Jackson's 
 ease. 
 
 Mudie's 
 case. Sev- 
 eral wit- 
 nesses 
 speaking- 
 to several 
 assign- 
 ments of 
 perjury. 
 
 *654 
 
 The rule 
 applies to 
 every se- 
 parate as- 
 signment 
 of perjury. 
 
 she had made two statements on oath, one of which was directly at 
 variance with the other; Holroyd, J., is reported to have said, "Although 
 you may believe, that on one or other occasion, she swore that which 
 was not true, it is not a necessary consequence that she committed per- 
 jury; for there are eases in which a person might very honestly and 
 conscientiously swear to a particular fact, from the best of his recollec- 
 tion and belief, and from other circumstances, at a subsequent time, be 
 convinced that he was wrong, and swear to the reverse, without mean- 
 ing to swear falsely either time. Again, if a person swears one thing at 
 one time, and another at another, you cannot convict where it is not 
 possible to tell which was the true and which was the false."(x) 
 
 In the following case, it was doubted whether the rule, which requires 
 two witnesses, was satisfied by several witnesses, each supporting a 
 separate assignment of perjury, but no two speaking to the same assign- 
 ment. Upon the trial of an indictment for perjury, alleged to have 
 been committed by an insolvent debtor in falsely swearing to the cor- 
 rectness of his schedule, the defendant's account-book given by him to 
 the Insolvent Debtor's Court, was put in, and several persons whose 
 names were specified in the indictment as debtors, and omitted in the 
 schedule, appeared in the book as debtors to the defendant, and " p: I "' 
 was marked to their accounts in the defendant's writing. These pe is 
 were called, and stated that they did not pay until after the peti .on 
 and schedule. It was objected that this was not sufficient evidence, 
 inasmuch as it was only oath against oath, the defendant having sworn 
 that the debts *were paid, a single witness, with respect to each par- 
 ticular debt, swore that it was not at the particular time of the sehed de. 
 Lord Tenterden, C. J., " I feel the force of the objection. It is a very 
 important point whether the defendant's book and the oath on one side, 
 be not met by the oath of the witness on the other side. It would be 
 very difficult to give any other evidence. I will not stop the case. If 
 the defendant is convicted you can move for a new trial." (y\ 
 
 But it has since been held, that the rule which requires two witnesses 
 or one witness and some sufficient corroboration, applies to every assign- 
 ment of perjury in an indictment. "Where, therefore, an indictment 
 contains several assignments of perjury, it is not sufficient to disprove 
 each of them by one witness; but in order to convict on any one as- 
 signment, there must be either two witnesses, or one witness and corro- 
 borative evidence, to negative the truth of the matter contained in such 
 assignment. The prisoner was indicted for perjury alleged to have 
 been committed in an affidavit to obtain a criminal information, in 
 which he had sworn that he had paid all his debts, except two, as to 
 which there was an explanation, and there were several assignments of 
 perjury averring that he had not paid certain persons who were named, 
 (besides the two excepted ones,) and such persons proved that they had 
 not been paid, but only spoke to their respective debts not having been 
 paid : Tindal, 0. J., held that it was not sufficient, and that as each 
 debt, there should be the testimony of two witnesses, or of one witness, 
 and such confirmatory evidence as was equivalent to the testimoi.' »f a 
 second witness.(z) 
 
 (x) Mary Jackson's case, 1 Lew. 2 TO. 
 
 (y) Rex v. Mudie, 1 M. & Rob. 128. The defendant was acquitted on another g" 
 see the same case, post, p. 671. 
 
 (z) Reg. v. Parker, 4 Stafford Sum. Ass. 1842, MSS. 1 C. & Mars. 639. 
 8 Eng. Com. Law Reps. xli. 346.
 
 CHAP. I.] OF PERJURY, ETC.— EVIDENCE. 654 
 
 The rule that the testimony of a single witness is insufficient to war- To what 
 rant a conviction on a charge of perjury, is an arbitrary rule, founded J^uMn 
 upon the general apprehension that it would be unsafe to convict in a tiro*!? 
 case where there is merely the oath of one man to be weighed against nesses ex " 
 the oath of another ;(a) and it should be observed that this rule does en *' 
 not extend to all the facts, which are necessary to be proved on the trial 
 of an indictment for perjury; but only to the proof of the falsity of the 
 matter upon which the perjury is assigned. Thus, the holding of the 
 court, the proceedings in it, the administering the oath, and even the 
 evidence given by the defendant, may all be proved by one witness. (M 
 
 Though the contrary doctrine appears at one time to have pre- Party pre- 
 vailed,^) it is now well established that the party prejudiced by the^ diced . by 
 perjury is a competent witness to prove the offence. (d) And, though a compe- 
 at one time it was considered necessarry to show that such party had tent wit " 
 satisfied the judgment in the suit in which the perjury was committed 
 before he could be admitted as a witness ;(e) on the ground that he might 
 possibly make use of a conviction for the purpose of obtaining relief 
 in equity against the judgment; yet, as it is *now an established rule *655 
 thai a court of equity will not grant a relief on a conviction which pro- 
 - s s on the evidence of the prosecutor, (/) it is observed that there can 
 u o objection to his being admitted a witness. (</) And this position 
 ha jeen sanctioned in a late case; in which a new objection was taken, 
 namely, that where the prosecutor expected that the defendant would 
 be taken, namely, that where the prosecutor expected that the defend- 
 ant would be called as a witness in an action between the same parties, 
 as Ahose to the suit in which the perjury was alleged to have been com- 
 mitted, he had a direct interest to obtain a conviction, as the witness 
 would thereby be permanently disqualified from giving evidence in any 
 future trial. The defendant was indicted for perjury on the trial of a 
 case of Hulme and Co. v. Gibson and Others. Gibson, who was called 
 as a witness for the prosecution, stated that he had not paid the debt 
 and costs, but had filed a bill in equity, and expected that the defend- 
 ant would be called as a witness against him in another cause, which 
 was coming on between the same parties; and it was objected that Gib- 
 son was incompetent, first, on the authority of Rex v. Eden, and Rex 
 v. Dalby ;(A) and secondly, because he had an immediate interest in 
 convicting the defendant, because he would thereby be permanently dis- 
 qualified from giving evidence against him on any future trial. With 
 regard to the first point, Lord Denman, C. J., was of opinion that the 
 cases cited had been overruled, and had always understood of late years 
 that the courts had considered that a conviction obtained by the evidence 
 of the party should not be used in his favour. The second point, how- 
 ever, appeared to bo a new one, and there was great difficulty about it. 
 But there being no decision on the point, his lordship thought it his 
 duty to receive the evidence, as witnesses were not to be disqualified 
 
 [J 
 
 (a) ., Stark. Evid. 859. (&) Soo 2 Hawk. P. C. c. 40, s. 10. 
 
 P?Rex v. "Whiting, 1 Salk. 283. 1 Ld. Raym. 390. Rex v. Nunc/., 2 Str. 1043. Rex V. 
 El' '.1. 1104. 2 Hawk. P. C. c, 40, 8. 124. Bull. N. P. 289. 
 
 v ex v. Broughton. 2 Str. 1230. Abrahams, q. t. v. Bunn,4 Burr. 2255. Rex v. Boaton, 
 581. 
 aex v. Eden, 1 Esp. 97. Rex v. Dalby, Peake, N. P. C. 12. 
 ■ i Bartlett v. Pickersgill. 4 Burr. 2255. Smith v. Prager, 1 T. R. 00. Rex v. Bo 
 ^ H7. 
 
 • 1 Phill. on Evid. 03. (A) Supra, note (e).
 
 655 OF PERJURY, ETC. — EVIDENCE. [BOOK V. 
 
 without some clear determination on the subject. If, however, he had 
 to decide the question finally, he would reject the evidence; and he only 
 received it because his decision might be revised. (/) 
 The prose- Where upon an indictment for perjury against the defendant in an 
 competent answer to a bill in Chancery, it appeared that the defendant had brought 
 after a bill an action against Lovell and others on a contract, and obtained a verdict 
 in Chan- a2 - a inst them, and that he afterwards filed the bill in Chancery against 
 
 ocrv is (lis- 
 
 missed. the defendant to restrain him from suing out execution, and the defend- 
 ant put in his answer and the bill was dismissed. Lovell being called 
 as a witness stated that he had engaged to indemnify his partners from 
 the expenses of the suit in chancery; and it was objected that he was 
 *656 incompetent, and *Rex v. Dalby,(A was relied upon; but Coleridge, 
 J., held that he was competent. In Rex v. Dalby, the fate of the bill 
 in Chancery might have depended on the result of the indictment, but 
 in this case the perjury was assigned upon an answer to a bill upon 
 which a decree had been made. (A;) 
 
 And even if the indictment proceeded upon the 5 Eliz. c. 9,(7) wbich 
 gives the prosecutor half the forfeiture incurred, it is conceived that, as 
 in an action to recover his moiety he would be precluded from giving 
 the conviction in evidence, there would be no objection to his compe- 
 tency, (m) 
 Bankrupt's On an indictment for perjury alleged to have been committed by a 
 assignee, b an k ru pt in an affidavit in support of his petition to the Court of Re- 
 view to supersede his bankruptcy, upon the ground that he was not at 
 or previously to the time of the issuing of the fiat a trader, and if he 
 had been a trader, that he had not committed any act of bankruptcy, 
 the petitioning creditor, the assignees, and creditors are competent wit- 
 nesses to prove the validity of the fiat.(o) 
 Witness It has been ruled to be no objection to the competency of a witness 
 
 fore sworn on an i D dictrnent for perjury committed in an answer in Chancery, 
 to the same that, in his answer to a cross-bill, he has sworn to the same fact which 
 fact or is h e j s called to prove upon the indictment. (p) And if several persons 
 dieted for are separately indicted for perjury in swearing to the same fact, either 
 perjury. f them before conviction, may be a witness on the trial of the 
 other.fo) 
 
 (i) Rex v. Hulme, a 1 C. & P. 8. The counsel for the prosecution then withdrew the wit- 
 ness. Lord Denman, C. J., added, that the only ground on which the evidence could be 
 received was the possibility that some great public inconvenience might result from a contra- 
 ry course. In this case a case of Campbell v. Freeling was cited, in which there was a ver- 
 dict against the defendant, who obtained a new trial, and indicted two of the witnesses for 
 perjury, and was a witness against them, and examined before Lord Tenterden, C. J., with- 
 out objection. As the only mode, in which a witness can be disqualified by reason of a con- 
 viction for perjury, is by proof of the conviction and judgment by due course of law, 1 Phil. 
 Ev. 19; and as it seems clearly settled that a party cannot use a conviction obtained by his 
 own evidence in his own favour, it seems deserving of consideration whether the conviction 
 would render the defendant incompetent in any suit to which the witness was a party. This 
 point does not appear to have been noticed in Rex v. Hulme, either bv the bar or by the court. 
 C. S. G-. 
 
 (j) Ante, p. 654, note (e). (k) Reg. v. Yates, b 1 C. & Mars. 132. 
 
 (I) Ante, p. 603. 
 
 (m) 1 Phil, on Evid. 66. In the note, however, Mr. Phillips adds, "Serf qu. The point 
 appears so have been ruled otherwise in an old case. Bacon's case, 2 Roll. Ab. 685 ; and 
 see Bui. N. P. 289. Gilb. Evid. 111. The question of course depends upon the point, whether 
 a separate action is or is not necessary for the recovery of the penalties." See the cases col- 
 lected, 1 Phill. Evid. 66. 
 
 (o) Reg. v. Keat, 3 Moo. C. C. R. 24. 
 
 (p) Rex v. Pepys, Peake, N. P. C. 138. (q) 2 Hale, P. C. 280. 
 
 a Eng. Com. Law Reps, xxxii. 417. *> lb. xii. TT.
 
 CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 656 
 
 Where a bill of indictment was preferred against the defendant for Chairman 
 
 perjury alleged to have been committed on a trial at the quarter ses-?* c L uarter 
 
 • i • I. • n ■% sessions 
 
 sions, and it was proposed to examine one of the grand jury, who had not allow- 
 
 acted as chairman of the quarter sessions at the trial at which the al- ed to ^ e 
 
 leged perjury was committed, but that the gentleman expressed a desire as a wit- 
 
 not to be examined as a witness, and the grand jury wished to know ness - 
 
 whether they ought to examine him or not; Patteson, J., held that they 
 
 ought not to examine him. He was the president of a court of record, 
 
 and it would be dangerous to allow such an examination, as the judges 
 
 of England might be called upon to state what occurred before them in 
 
 court, (r) 
 
 *It has been holden, that if a count for an indictment for perjury under- *657 
 
 take to set out continuously the substance and effect of what the de- Proof of 
 
 fendant swore when examined as a witness, it is necessary, in support an e t having" 
 
 of this count, to prove, that in substance and effect he swore the whole sworn in 
 
 of that which is thus set out as his evidence, although the count contains 8 " j' a £ ce . 
 
 " ° . ana effect. 
 
 several distinct assignments of perjury. It was urged in support of the 
 prosecution that reddendo singula singidis, the defendant was charged 
 with swearing separately in answer to all the questions that were men- 
 tioned. But Lord Ellenborough, C. J., said, " Suppose you had under- 
 taken to set out the tenor of what the defendant swore, and it should 
 appear by the evidence that he had not sworn a material part of that 
 which was set out, would not this have been fatal? Having taken 
 upon you to state the substance and effect of what he swore, you are 
 not bound down to precise words j but must you not prove that he 
 swore in substance and effect the whole of what you have stated ? You 
 aver that part of the defendant's evidence concerning the assurance 
 given by Lord Hcadley to be material, and you have not proved that 
 he swore to any such assurance. Did you ever know the rule of red- 
 dendo singula singulis applied to a misrecital ? Is there any authority 
 to show, that, under secundum substantiam, you are not bound to 
 prove the substance of what you state, as under secundum tenorum, 
 you are Ibound to prove the tenor? To hold otherwise, would be to 
 introduce a most dangerous latitude into criminal proceedings. I am 
 decidedly of opinion that you have failed in the proof of a substantial 
 allegation. It is essential to the security of innocence, that words set 
 out in the record should be either literally or substantially proved. A 
 person giving his assurance generally, and giving his assurance for the 
 performance of a particular stipulation, are allowed to be entirely dif- 
 
 (r) Reg. v. Gazard, a 8 C. & P. 595. In Rex v. Jones," 1 C. & P. 137, on an indictment for 
 perjury the chairman of the Worcestershire Quarter Sessions proved what a witness sworo 
 on a trial before him at the Quarter Sessions. In Reg. v. Gazard, the chairman was required 
 as a witness for the same purpose, and not being examined the bill was ignored. Mr. 
 Starkie, after citing the case, adds a qiuere, without Btatingany reason for so doing. 8 8tark. 
 Evid. 861. It may, however, have struck him that no Bufficient reason could be assigned 
 for the decision. It would, no doubt, be extremely inconvenient if the judges were called upon 
 to give evidence as to what occurred before them in court, but the inconvenience In the case 
 of chairman of Quarter Sessions is comparatively Blight, especially as thej arc a ually pre- 
 sent at the assizes, and the evidence must be given in the county where thej arc chairman. 
 Assuming, however, that the inconvenience in their case was considerable, H leemi worthy 
 of further consideration how far that can prevent their liability to be called as wil 
 The general rule undoubtedly is, that every person is Liable to be compelled to give evidence 
 in a criminal case, and it may be dangerous to introduce exceptions which .nay prevent 
 persons from giving evidence either for the crown or for the defendant, 0. B. <J. 
 * Eng. Com. Law Reps, xxxiv. 542. " th. LXV. 320.
 
 657 OF PERJURY, ETC. — EVIDENCE. [BOOK V. 
 
 ferent. If a man swears falsely to several material questions, these may 
 
 be included in distinct counts."(s) 
 *658 *It appears to have been ruled, that upon an indictment for perjury 
 Proof of the committed at the trial of a cause, the prosecutor must prove the whole 
 tchohoi £ tue defendant's testimony :(7) unless the perjury be assigned upon a 
 
 the defend- . *'\ / ' . • ,• • 1 • i 
 
 ant's testi- point which first arose upon the defendant s cross-examination, in which 
 mony. case p ro of of the whole cross-examination has been ruled to be suffi- 
 cient, (w) And the ground upon which proof of the whole of the exami- 
 nation, or cross-examination, was ruled to be necessary in these cases 
 appears to have been, that possibly the defendant might have corrected 
 in some part of such examinations any mistake he had made in other 
 parts. But, it is observed, that the doctrine of compelling the prose- 
 cutor to prove more than a primd facie case, is an anomaly in the 
 criminal law ; that in general the party indicting is not bound to anti- 
 cipate matters of defence, which it lies on the prisoner to bring forward ; 
 and that it does not seem that, in this case, the party indicted would 
 sustain hardships in being compelled to show that he had corrected the 
 part of his evidence assigned. («) And it is 6aid by another learned 
 writer, that at most the rule seems to amount to this, that all the evi- 
 dence given by the defendant, in reference to the particular fact on 
 which perjury is assigned, ought to be proved. (w) And the rule hardly 
 seems to be necessary for the protection of the defendant, as it will be 
 open to him to cross-examine the witness by whom his statements upon 
 oath are proved, whether he did not in some other parts of his evidence 
 
 («) Rex v. Leefe, 2 Campb. 134. The learned reporter says, "I find no decision or dictum 
 in the books as to the evidence of the words sworn which is necessary to support an indict- 
 ment for perjury. For the general principles upon this subject, vide 2 Hawk. P. C. c. 46, s. 
 34, 35, 36. Compagnon v. Martin, 2 Bl. Rep. 790." The count upon which the question in 
 this case turned, alleged that a committee was appointed and met to try the merits of a pe- 
 tition complaining of an undue election, that certain questions were material, and that the 
 defendant swore "touching the said material questions, and the merits of the said petition," 
 in substance and effect as follows, that he, by the directions of J. L., waited upon Lord H., 
 and proposed to the said Lord H. that the said J. L. would decline upon the expenses being 
 paid him, including the previous expenses of the day before ; that Lord H. agreed that the 
 6aid expenses should be paid, including the expenses that had been incurred at different inns 
 in the town ; that J. L.'s voters were to be applied to in consequence of that arrangement for 
 the purpose of voting for the said Lord H., and that the defendant enumerated the expenses ; 
 that the defendant upon his return to the committee of the said J. L. communicated to them 
 what had so passed between the said Lord H. and him, and that the said committee dispersed 
 to carry the said agreement into effect ; and the said J. L. asked the defendant if the expenses 
 were secured, and that the defendant told the said J. M. his lordship had given his assurance 
 that it should be so. The assignments of perjury negatived each of these statements, and it 
 was proved that everything alleged was sworn, except the last words "that it should be so." 
 The decision in this case seems questionable. As it is clearly settled that a defendant may 
 be convicted of any one distinct assignment of perjury, though acquitted of all the rest, see 
 post, p. 658, note (a), there seems no reason why proof of having sworn the matter negatived 
 by one assignment should not be sufficient. In the case of obtaining goods by false preten- 
 ces, it is clearly settled that proof of any one false pretence, and that the goods were obtain- 
 ed by that pretence, is sufficient, ante, p. 310; and that it is a stronger case, because there the 
 indictment in effect avers that all the pretences operated towards the obtaining the goods. 
 In perjury each assignment of perjury is separate and distinct, and the court will give judg- 
 ment upon one, although all the others are bad in point of law. Reg. v. Rhodes, 2 Ld. Ravm. 
 886. C. S. G. 
 
 (t) Rex v. Jones, cor. Kenyon, C. J., 1791, Peake, N. P. C. 37. 
 
 hi) Rex v. Dowlin, cor. Kenyon, C. J., 1793, Peake, N. P. C. 170. 
 
 (v) 2 Chit. Crim. L. 312, referring to 1 Sid. 418, Rex v. Carr. 
 
 (w) 3 Stark. Evid. 858. And the author farther observes, that the rule even to this effect 
 appears to be a doubtful one; for when it has once been proved that particular facts, posi- 
 tively and deliberately sworn to by the defendant in any part of his evidence, were falsely 
 sworn to, it seems in principle to be incumbent on him to prove, if he can, that in other parts 
 of his testimony he explained or qualified that which he had so sworn.
 
 CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 658 
 
 correct or explain those statements upon which the prosecution is 
 founded, and unless the witness can positively deny any such correction 
 or explanation, or if he admits that they may have occurred, the proof 
 would probably be deemed insufficient for a conviction. And it will of 
 course be open to the defendant to prove that any corrections or expla- 
 nations were given by him in other parts of his evidence. (r) And it Proof of 
 has since been held upon a case reserved, that on an indictment for a ! 1 that 
 perjury committed on the trial of a cause, it is sufficient to go to the fhepartfcu- 
 jury, if a witness states from recollection the evidence that the defendant lar P oint is 
 gave, though he did not take it down in writing, and cannot say with sufficient * 
 certainty that it was all the evidence the defendant gave, if he can say 
 with certainty that it was all he gave on that point, and that he said 
 nothing to qualify it.f^) 
 
 *It is sufficient to support the averment that the party administering *659 
 the oath had competent authority for that purpose by showing in the Proof of 
 first instance that he acted as a person having such authority. Thus, authon . tv . 
 upon an indictment for perjury before a surrogate in the Ecclesiastical ter the 
 Court, it was ruled, that the fact of the person who administered the ? ath - Act - 
 oath having acted as a surrogate, was sufficient prima facie evidence of officer suffi- 
 his having been duly appointed, and having authority to administer it. ciont. 
 And Lord Ellenborough, C. J., said, "I think the fact of Dr. Parson 
 having acted as surrogate is sufficient prima facie evidence that he was 
 duly appointed and had competent authority to administer the oath. I 
 cannot for this purpose make any distinction between the ecclesiastical 
 courts and other jurisdictions. It is a general presumption of law, that 
 a person acting in a public capacity is duly authorized so to do.'Yz) But 
 it was holden, in the same case, that upon its appearing that the surro- 
 gate was appointed contrary to the canon (which requires that no judi- 
 cial act shall be speeded by any ecclesiastical judge, unless in the pre- 
 sence of the registrar or his deputy, or other persons by law allowed in 
 that behalf,) his appointment was a nullity, and the averment that he 
 had authority to administer the oath was negatived. (a) So where per- 
 jury was assigned upon an affidavit sworn before Chell, a commissioner, 
 &c, and it was proved that Chell acted as a special commissioner for 
 taking the affidavits of parties in prison, or unable from sickness to attend 
 before a judge ; Patteson, J., held that this was sufficient evidence that 
 Chell was a commissioner, and that it was not necessary to prove the 
 commission under which the affidavit was taken, upon the general prin- 
 ciple that a person acting as a public officer must be taken to have au- 
 thority as such, and that a commissioner for taking affidavits came within 
 that principle. (b) 
 
 It has recently been held that an indictment for perjury in an affida- Perjury in 
 
 (x) Rex v. Carr, 1 Sid. 418. 
 
 \y) Rex v. Rowley, R. & M. C. C. R. Ill, and R. ft M. N. P. R. 299, where Littledale, J., 
 
 is reported to have said, "I take the true rule to be this, and all the evidence referable to 
 the fact on which the perjury is assigned must be proved. In Res v. Mnnton,* 3 ('. & p. 
 498 three witnesses stated what the defendant bad said on the trial of an indictment for 
 
 an assault and the defendant was convicted, :iltl gh none of the witnesses took down thi 
 
 evidence as it, was given, and none of them professed to Btate the whole of the evidence 
 given. And this course has bee'n followed in subsequent cases. Reg. '•. Meek,' reported 9 
 C. & P. 513 ast0 another point. Reg. v. Ann Bird, Gloucester, Spr. A.-s. Is n>, cur. Cress- 
 
 (z) Rex v. Verelst, 3 Campb. 432. Rex v. Cresswell, 2 Chit. Cr. L. 812. S. 1'. per Lord 
 Ellenborough, 0. J. 
 
 (a) Rex v. Verelst, supra. (4) Rex v. Howard, 1 M. k Rob. 187. 
 
 * Eng. Com. Law Reps. xxi. 444. Mb. xiv. 411. «Ib. xxxviii. 201.
 
 659 
 
 OF PERJURY, ETC. — EVIDENCE. 
 
 [BOOK V. 
 
 an affida- 
 vit in tho 
 Insolvent 
 
 Courts. 
 
 vit sworn in the Insolvent Debtors' Court by an insolvent, respecting 
 the state of his property and expenditure, for the purpose of obtaining 
 an extended time to petition under sec. 10 of the 7 Geo. 4, c. 57, can- 
 not be supported, without proving that the court by its practice required 
 such an affidavit : and it was also held that such proof was not given by 
 an officer of the court producing printed rules, purporting to be rules 
 of the court, which he had obtained from the clerk of the rules, and 
 was in the habit of delivering out as the rules of the court, but which 
 were not otherwise shown to be sanctioned by the court; the officer 
 professing to have no knowledge of the practice except from such printed 
 rules, (c) 
 
 Upon an indictment for perjury committed before Mr. Dudley, an 
 arbitrator, it appeared that an action was referred to the arbitrator, by 
 an order of Lord Tenterden, which ordered that the witnesses should 
 be sworn before a judge or " before a commissioner duly authorized." 
 thorizeTto Mr. Dudley was a commissioner for taking affidavits in the Court of 
 take affida- King's Bench, and he, under this order, swore the present ^defendant 
 
 Examina- 
 tion on 
 oath viva 
 voce by a 
 commis- 
 sioner au- 
 
 >Q6Q 
 
 The oath 
 must be 
 proved as 
 alleged. 
 
 as a witness before himself, and signed a jurat stating that she had been 
 so sworn; and he then examined her viva voce. It was objected that 
 Mr. Dudley had no authority to administer an oath for any vtvd voce 
 examination. Gaselee, J., " By the 29 Car. 2, c. 5, the courts are em- 
 powered to appoint commissioners for taking affidavits; and if this order 
 had empowered a commissioner for taking affidavits to administer this 
 oath, I would have reserved the point, because, whether the Court of 
 King's Bench has any power to authorize their commissioners to take 
 anything but affidavits, is a question that I should have left them to 
 decide. However, on this order that question does not arise, for the 
 order only allows the witnesses to be sworn before a commissioner duly 
 authorized ; now, as Mr. Dudley was never authorized to administer 
 an oath for a vivd voce examination, and I am of opinion that the de- 
 fendant must be acquitted, "(d} 
 
 The taking the oath must be proven as it is alleged. Therefore, if 
 it be averred that the defendant was sworn upon the Holy Gospels, &c, 
 and it turn out that he was sworn in some other manner, according to 
 some particular custom, and not upon the Gospels, the variance will be 
 fatal. (e) But where the allegation in an indictment was, that on the 
 trial of an action the prisoner " was duly sworn, and took his corporal 
 oath on the holy Gospel of God," and the proof was that the witness 
 was sworn and examined; and it was objected that the particular mode 
 of swearing must be proved, as the evidence given would apply to the 
 oath of a Jew, or person of any other religion than the Christian ; Little- 
 dale, J., held the evidence sufficient, as the ordinary mode of swearing 
 was the one specified. (/) 
 
 The recital of the place where the oath is administered in the jurat 
 has always been considered as a sufficient proof that the oath was ad- 
 ministered at the place named. (#) Where, therefore, perjury was as- 
 
 (c) Rex v Koops, a 6 Ad. & E. 198, 1 N. & P. 828. It was also contended for the defend- 
 ant that the Insolvent Court had no power to make the rule, and that the offence was 3t any 
 rate not perjury ; but no opinion was expressed upon these points. 
 
 (d) Rex v. Hanks," 3 C. & P. 419. 
 
 (e) 3 Stark. Evid. 857. Rex v. M'Arthur, Peake's C. 155. 
 (/) Rex v. Rowley , c R. & M. N. P. R. 299. 
 
 (ff) Per Lord Tenderden, C. J. Rex v. Spencer, 3 R. & M. N. P. R. 97. 1 C. & P. 260. 
 a Eng. Com. Law Reps, xxxvii. 51. b lb. xiv. 376. « lb. xxi. 444. d lb. xi. 334. 
 
 The place 
 stated in 
 the jurat is 
 evidence
 
 CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 600 
 
 signed on an answer in Chancery, and the defendant's signature to the that the 
 answer, and that of the master in chancery to the jurat, were proved defendant 
 and that Southampton Buildings, which the jurat recited as the place thereout 
 where the oath was administered, was in the county of Middlesex ■ Lord n . ot conclu - 
 Teuterden, C. J., held that this was sufficient proof that the oath was S1V6 ' 
 administered in Middlesex. (h) But a variance as to place of taking the 
 oath will not be material, if it be proved to have been taken in the 
 county where the defendant is indicted. (i) And upon an indictment in 
 Middlesex, it may be shown that the oath was in fact taken in Middle- 
 sex, although the jurat state it to have been sworn in London. (j) 
 
 It seems that on an indictment against a bankrupt for perjury before Proof 
 the commissioners, in passing his last examination, it is necessary to a S amst a 
 give strict evidence of the trading petitioning creditor's debt, and act *" rUpt ' 
 of bankruptcy. (7c) For where the authority delegated is of a special 
 nature, limited to particular circumstances, it is essential to prove their 
 existence, in order to show the authority to administer the oath.(/) 
 
 *Upon an indictment for perjury, committed in an examination of a *661 
 witness, touching the estate of a bankrupt, it must be proved that . u P? n an 
 there was a good petitioning creditor's debt. The indictment stated tbat fo r perjury 
 A. P. carried on the business of a builder, and that he was indebted to against a 
 W. B., in the sum of 100/. and upwards, that he committed an act of bank- ^amined 
 ruptcy ; that a fiat issued against him, on the petition of W. B. ; that as to a 
 the commissioners adjudicated A. P. to be a bankrupt; that in the pro- ban ^ ru P t s 
 secution of the fiat it became material to inquire into the estate and good peti- 
 effects of A. P. ; and that at a meeting of the commissioners the de- tl . omn g cre - 
 
 tlitor s ciGut 
 
 fendant appeared before them as a witness, and was sworn, &c. It must be 
 appeared that the debt due to W. B. was much less than 100/., but that shown - 
 there were two other creditors, to each of whom A. P. owed more than 
 100/. ; therefore, under the 6 Geo. 4, c. 16, s. 18, the lord chancellor 
 might, on application, have directed the substitution of a good petition- 
 ing creditor's debt for that of W. B., but that in fact this had not been 
 done. It was objected, that the defendant was entitled to be acquitted, 
 as the averment that W. B. was a creditor to the amount of 100/. was 
 not only not proved, but was disproved. The counsel for the crown 
 cited Ilex v. Raphael,(?/i) where Abbott, J., held that on an indictment 
 against a third person, examined before commissioners of bankrupt, 
 their declaration that the party is a bankrupt, was sufficient. The de- 
 fendant having been convicted, the judges, upon a case reserved, held 
 the conviction wrong. («) 
 
 On an indictment for perjury, in an answer in Chancery, the bill must Proof of 
 
 (h) Rex v. Spencer, supra. (i) Rex v. Taylor, Skin. 403. 
 
 (/) Rex v. Emden, 9 East, 137. 3 Stark. Bvid. 858. 
 
 (k) Rex v. Punshon, 3 Campb. 9G. And see Rex v. Bullock, 1 Taunt. 71. 
 
 (1) 3 Stark. Evid. 854. If the defendant was not a bankrupt, there was no authority to 
 • administer the oath. But the case might admit of a different consideration, where the perjury 
 is assigned upon the deposition of a witness who comes to prove the bankruptcy ; for there 
 the commissioners have jurisdiction to inquire into the fact, though it should ultimately turn 
 out that there was no bankruptcy. Id. ibid. See note («). 
 
 (m) Manning's Ind. 232. 
 
 (n) Reg. v. Ewington," 1 C. & Mars. 319. In the course of the argument before the 
 judges, Lord Abinger, C. B., said, "You cannot dispute the authority of the commissioners 
 to take the preliminary proceedings under the fiat, to ascertain whether the party should be 
 adjudged bankrupt or not. They were authorized to do that by the fiat of the Lord Chan- 
 cellor; but you say that if there was no good petitioning creditor's debt, the commissioners 
 had no authority to inquire and examine witnesses as to the bankrupt's property.'' 
 a Eng. Com. Law Reps. xli. 178.
 
 661 
 
 OF PERJURY, ETC. — EVIDENCE. 
 
 [BOOK V. 
 
 tho defend- 
 ant having 
 taken tho 
 oath in 
 answer in 
 Chancery, 
 or upon ob- 
 taining ad- 
 ministra- 
 tion of a 
 seaman's 
 effects. 
 
 *662 
 
 Proof of 
 niateriali- 
 
 ty. 
 
 Evidence 
 of a de- 
 ceased wit- 
 ness. 
 
 Proof of 
 nisi priua 
 record. 
 
 be proved in the usual way; and proof of the defendant's signature, 
 and of that of the master before whom the answer purports to be sworn, 
 is evidence of the defendant's having sworn to the truth of the contents, 
 without calling the person who wrote the jurat; or further proving the 
 identity of the defendant as being the very same person who had signed 
 the answer.(o) But unless there be such proof of the defendant's sig- 
 nature, or some other sufficient proof to identify him as the person by 
 whom the oath was taken, no return of commissioners, or of a master 
 in chancery will be sufficient. (p\ In a case upon the 31 Geo. 2, c. 10, 
 s. 24, (for taking a false oath to obtain administration to a seaman's 
 effects, in order to receive his wages) it was holden necessary to prove, 
 directly and positively, that it was the prisoner who took the oath. And 
 the court said that the evidence given was defective, as there was a 
 possibility, from anything that had been given in evidence to the con- 
 trary, that the prisoner might have gone through all the rest *of the 
 fraud, and have avoided the circumstance of taking the oath, especially 
 as he probably knew that the taking the oath was a capital felony. And 
 they further said, that if this had been an indictment for perjury at 
 common law, it would have been incumbent on the prosecutor to have 
 given precise and positive proof that the prisoner was the person who 
 took the oath ; and it was equally incumbent on him so to do upon an 
 indictment on the statute in question. (q\ 
 
 In order to show the materiality of the deposition or evidence of the 
 defendant, it is essential, where perjury is assigned in an answer to a 
 bill in equity to produce and prove the bill,(r) or if the assignment is 
 on an affidavit, to produce and prove the previous proceedings, such as 
 the rule nisi of the court, in answer to which the affidavit in question 
 has been made.(s) 
 
 If the assignment be on evidence on the trial of a cause, in addition 
 to the production of the record, the previous evidence and state of the 
 cause should be proved, or at least so much of it as shows that the mat- 
 ter sworn was material. So also such prefatory circumstances and in- 
 nuendoes as are averred upon the face of the indictment for the same 
 purpose must be proved^) 
 
 It is reported to have been held upon the trial of an information for 
 perjury, alleged to have been committed on the trial of an ejectment, 
 that in order to prove the perjury, a witness might prove what a wit- 
 ness, who was since dead, swore on the trial of the ejectment. («) It 
 has been observed that this ruling seems to be utterly inconsistent with 
 the principles now established. (v\ 
 
 If the perjury was committed on the trial of a cause at nisi prius, 
 the record ought to be produced, in order to show that such a trial was 
 had : but the production of the postea will be sufficient for this pur- 
 
 (o) Rex v. Benson, 2 Camp. 508. Rex v. Morris. 2 Burr. 1189. 1 Leach, 50. The rea- 
 son why the Court of Chancery made a general order that all defendants should sign their 
 answers was, with a view to the more easy proof of perjury in answers. 2 Burr. 1189. 
 
 (p) Id. ibid. (q) Brady's case, 1784, 1 Leach, 327. 
 
 (r) 3 Stark. Evid. 859, citing Rex v. Alford, 1 Leach, 150. 
 
 (*) 3 Stark. Evid. 859. (/) 3 Stark. Evid. 859. 
 
 (w) Rex v. Buckworth and others, T. Raym. 160, per Twisden, S., and Morton, J., against 
 Keeling, C. J., who said it was not to be allowed, because between other parties. 
 
 (r) 3 Stark, Evid. 801, where the case is erroneously cited as Taylor v. Brown. The 
 report does not show for what precise purpose the evidence was adduced ; if for the pur- 
 pose of proving what passed on the former trial in order to show that the matter was ma- 
 terial, qu. whether it was not admissible. C. S. G.
 
 CHAP. I.] OF PERJURY, ETC — EVIDENCE. 662 
 
 pose.(w) And, in addition to the production of the record, the previous 
 evidence and state of the cause should be so far proved as to show that 
 the matter sworn to was material : and the prefatory circumstances and 
 innuendoes averred in the indictment for the purpose of showing such 
 materiality, must also be provecj. The record will show what issues 
 were joined between the parties; but such proof must be given of what 
 occurred at the trial as will show the bearing and materiality of the de- 
 fendant's evidence. (x\ 
 
 Where some counts in an indictment for perjury in an affidavit to set 
 aside a judgment alleged that the defendant « caused to be entered up 
 final judgment in the said action," and a clerk from the judgment office 
 produced a book from that office, in which judgments are entered up, 
 and stated that interlocutory judgment was signed in the action, and 
 that afterwards final judgment was entered up ; it was held that this was 
 sufficient evidence to support those counts, without producing the roll 
 or an examined copy of it.(jj;) 
 
 Where, in order to prove an allegation in an indictment for perjury Officers 
 that a cause came on to be tried, the nisi prius record was produced, minut « of 
 
 Si verdict nt 
 
 and it appeared that no postea had been indorsed upon it, but there was nisi prius. 
 a minute, in the handwriting of the officer, indorsed upon the jury panel 
 which was affixed to it, in these words, " Verdict for plaintiff, damages 
 Is." Lord Tenterden, C. J., after consulting the other judges of the 
 Court of King's Bench, held that *the officer's minute was sufficient *663 
 evidence that the trial took place. (^) 
 
 An indictment for perjury averred that there was an action pending A notice of 
 between W. C. and B., and the defendant. The writ was not produced, set ; off . ls 
 
 ' , ... not evi- 
 
 but to show the existence of the action, the attorney for the plaintiffs in dence thai 
 the action produced a notice of set-off entitled in the cause, which he an nctl0r | 
 
 \vsis Dcnd- 
 
 had received from the attorneys for the defendant in the action ; it was} ng- 
 objected that the notice of set-off' was inadmissible, as at most it was 
 only secondary evidence; and the objection was held good. (2) 
 
 Where, upon an indictment for perjury alleged to have been com- Proof of 
 mitted on the trial of an appeal against an order of removal, the sessions an a p_ eal 
 book was produced by the clerk of the peace in order to prove the trial 
 of the appeal, and the clerk of the peace stated that he would, if applied 
 to, have drawn up a record of the trial of the appeal on parchment ; it 
 was held that the sessions book was not sufficient evidence of the trial 
 of the appeal. (0) But it has since been held that the sessions book 
 containing the orders and other proceedings of the court made up and 
 recorded after each sessions, with an entry containing the style and the 
 date of the sessions, and the name of the justices in the usual form of a 
 caption, no other record being kept, is good evidence of the trial of an 
 appeal against an order of removal. (A) 
 
 Where perjury was assigned on the answer to a bill in Chancery Bs£™° nded 
 it originally stood, which 1 > 1 1 1 had afterwards been amended, and the chanceiy, 
 
 (w) Rex v. lies, Hard. 118. Bull. N. P. 243. 2 Hawk. P. 0. C. 46, B. 57. 3 Stark. Evid. 
 855. 
 
 (x\ 3 Stark. Evid. 859. 
 
 (zx) Reg. v. Gordon," 1 C. & Mars. 410. Lord Penman, C. J. 
 (y) Rex v. Browne. 1 ' M. & M. 315. 3 0. ft P. - r ,72. 
 (z) Rex v. Stoveld," 5 <'. & V. 489, Lord Denman, <'. J. 
 
 (a) Rex v. Ward," 6 0. & 1'. 366, Park, .1. A. J. (l>) Reg. >'. Yeoveley," 8 A. & E 806 
 » Eng. Com. Law Reps. xli. 225. b Tb. xiv. 457. B lb. nv. 504. '" lb. xxv. 440. 
 
 lb. xxxv. 530. 
 
 Vol. 11.— 43
 
 663 OF PERJURY, ETC. — EVIDENCE. [BOOK V. 
 
 avidence ofbUl was produced by a clerk from the six clerks' office, who stated that 
 theonginal it was an amended bill, but that it was the original record which was 
 filed in the six clerks' office in the first instance, but altered by the 
 amendments, which were made by altering the original record, and that 
 these alterations were all made by a clerk in the six clerks' office, whose 
 handwriting he knew, and that that person wrote the word " amend- 
 ment" against each alteration ; but none of the alterations related to the 
 particular parts of the answer upon which the perjury was assigned. It 
 was contended that this was not sufficient evidence of what the bill was 
 before the alterations, and that the person who made the alterations 
 ought to be called. But Lord Tenterden, C. J., was of opinion that 
 the amendments were sufficiently proved, and also thought them not 
 material to the case.(c) 
 A copy of a In order to prove a bill in Chancery by an office copy, such copy 
 Chancery mus * ^ e a correct copy of the words in the bill, and if it contain abbre- 
 containing viations of words which are written at length in the bill, it is insuffi- 
 abbreyia- c [ en ^ Upon an indictment for perjury, in order to prove a suit in 
 sufficient. Chancery, an office copy of the bill was produced, which contained 
 many abbreviations,^) and had all the dates in figures, and it was 
 proved that in the original bill all the words were written at full length, 
 and all the dates expressed by words ; and it was held that this copy 
 was not sufficient evidence of the bill in Chancery.(e) 
 *664 *It seems that if a party produce an affidavit, purporting to have 
 been made by him before commissioners in the country, and make use 
 of it in a motion in the cause, it will be evidence against him that he 
 made it.(/) 
 Proof of Upon an indictment for perjury, in falsely taking the freeholder's 
 
 ! ! ! k \ ng i | he oat, h at an election of a knight of the shire, in the name of J. W. ; it- 
 er's oath at appearing by competent evidence that the freeholder's oath was admin- 
 an election, istered to a person who polled on the second day of the election, by the 
 name of J. W., who swore to his freehold, and place of abode; and that 
 there was no such person ; and that the defendant voted on the second 
 day, and was no freeholder, and some time afterwards boasted that he 
 had done the trick, and was not paid enough for the job, and was afraid 
 that he should be pulled for his bad vote; and it not appearing that 
 more than one false vote was given on the second day's poll, 01 that the 
 defendant voted in his own name, or any other than the name of J. 
 W. ; it was holden, that there was sufficient evidence for the jury to 
 presume that the defendant voted in the name of J. W., and conse- 
 quently to find him guilty of the charge as alleged in the indict- 
 ment, (a) 
 
 Tl f t f 
 
 i defendant W nere > upon an indictment for perjury committed upon a trial, the 
 in a cause supposed perjury arose upon evidence given in reply to the testimony 
 having f one f t ne defendants on the former trial, who was acquitted and ex- 
 amined, amined as a witness, and the indictment for perjury did not state his 
 may be acquittal, nor did the minute of the verdict produced show it ; it was 
 paroL 7 ^ e ^> *hat although the evidence of a shorthand writer, who stated that 
 
 (c) Rex v. Laycock, a 4 C. & P. 326. 
 
 (d) Such as " posted of consible pnl este." 
 
 i e) Reg. v. Christian,* December 6, 1842. MSS. 1 C. & Mars. 388, Lord Denman. C. J. 
 | f) Rex v. James, Show. 397. 3 Stark. Evid. 857. And see Brickell v. Hulse. c lA.i 
 E. 454. 
 uj) Rex v. Price, alias Wright, 6 East, 323. 
 
 a Erjg. Com. Law Reps. xix. 405. b lb. xli. 214. « lb. xxxiv. 144.
 
 CHAP. I.] OF PERJURY, ETC. — EVIDENCE. 664 
 
 the defendant was acquitted and then examined, was not any proof of 
 his acquittal, yet it was good proof that he was examined. (A) 
 
 If perjury is assigned upon an affidavit made by a marksman, either An affidavit 
 the jurat must state that the affidavit was read over to the defendant, or of a ma ^ ks - 
 it must be proved that it was so read. Upon an indictment for perjury aTmissiblc 
 in an affidavit, which was signed with the mark of the defendant, but unless itis 
 the jurat to which omitted to state that it was read over to the defend- Lvl been 
 ant; Littledale, J., said, "as the defendant is illiterate, it must be readover 
 shown that she understood the affidavit. In those cases where the p° on ent? e ~ 
 affidavit is made by a person who can write, the supposition is that such «« , c«« if 
 person was acquainted with its contents, but in the case of a marksman ^ e ^ * 
 it is not so. If in such case the master by the jurat authenticates the can write, 
 fact of its having been read over, we give him credit ; but if he does 
 not, and the fact were so, he ought to be called to prove it. I should 
 have difficulty in allowing the evidence of any other person to that 
 fact. And no evidence being adduced to show that the affidavit was 
 read over in the presence of the defendant, it was held that the assign- 
 ments of perjury on this affidavit could not be supported. (A 
 
 It was held in the same case, that where one affidavit which has per- *665 
 feet jurat, refers to another affidavit which is inadmissible for *want of An affida- 
 proof that it was read over to the defendant, the former affidavit cannot I- 1 * re t fer " 
 
 be read. (j) inadniissi- 
 
 Where an indictment for perjury, alleged to have been committed in b }caffida- 
 the Insolvent Debtor's Court, stated that the defendant gave in his where the 
 schedule on oath that the same and all its contents were true, and con- assign- 
 tained a full, true, and perfect account of all his Just debts, credits, meuts of 
 &c, and then went on to state that the said schedule and its contents allege that 
 were not true, and that certain persons whose names were set out, were certain 
 debtors to the defendant at the time of giving in his schedule ; Lord nftme wer * 
 Tenderten, C. J., held that the evidence must be confined to the cases debtors, 
 specified in the indictment, as the defendant could only come prepared ot h cr s be- 
 to answer those cases, and that evidence that other persons, whose ing so inad- 
 names were not set out in the indictment, were also debtors, to the de- missx 
 fendant and were omitted in the schedule, was inadmissible. (/.-) 
 
 Where the defendant had stated in an affidavit that he had paid all 
 the debts proved under his bankruptcy, except two, as to which he gave 
 an explanation, and an indictment for perjury alleged to have been 
 committed in this affidavit in one assignment alleged that the creditors 
 were not all, with two exceptions only, paid by the defendant in full ; 
 and in another assignment that certain creditors who were named, be- 
 sides the excepted two were not paid in full ; Tindal, C. J., held that 
 if the first assignment were too general, the defendant should have de- 
 murred to it, and that although by the generality of its form the prose- 
 cutor was not precluded from proving the non-payment of other creditors 
 
 (h) Rex v. Browne," M. & M. 315. Lord Tenter den, C. J., after consulting t lie other 
 judges of the Court of Bang's Bench. See this case as to another point, ante, p. CC2. 
 
 (i) Rex v. Hailey,'' IJ. It. & M. N. P. C. 1 C. & P. 258. 
 
 (/) Bex v. Iliiiley, 1 C. & P. 258. The report does not state in what manner the one 
 affidavit referred to the other. 
 
 (k) Rex v. Mudie, d 1 M. & Rob. 128. S. C. as Rex V. Moody, 5 C. & P. 23. The Indict- 
 ment is set out in the note to the latter report. See Reg. v. Parker; Stafford Sum. Ass. 1842. 
 1 C. & Mars. G39. 
 
 » Enf. Com. Law Reps. xxii. 319. b lb. xi. 383. ° lb. xi. 383. J lb. x.\iv. 186. 
 
 « lb. xli. 340.
 
 065 OF PERJURY, ETC. — EVIDENCE. [BOOK V. 
 
 besides those named, yet as names were stated in the other assignments, 
 it was reasonable to presume that die defendant would suppose that 
 they were the persons, the non-payment of whose debts was to be relied 
 on, and that in fairness the prosecutor ought not to go into evidence of 
 the non-payment of any other creditors than those named. (&&) 
 Averment Where an indictment for perjury alleged that Hallett exhibited a bill 
 nerahipnot * n Chancery, by which he set forth that he, Bowden and Tucker (the 
 supported defendant,) entered into a verbal agreement to become joint dealers and 
 by the facts. CO p ar t ners i n the trade or business of druggists : and assigned perjury 
 against the defendant in swearing that he, Hallett and Bowden did not 
 become joint dealers in the trade or business of druggists; and it ap- 
 peared that Hallett was a druggist, but the defendant and Bowden were 
 drug brokers, and had nothing to do with Hallett's shop, or the drugs 
 sold there ; but were continually in the drug market, but being brokers 
 of the city of London they could not deal in their own names, and it was 
 agreed that they should buy and sell drugs in Hallett's name, and then 
 they were to divide the profit and loss. Abbott, C. J., held that the 
 allegation in the bill in Chancery could only apply to an ordinary part- 
 nership, and not to such a transaction as this, and, consequently that the 
 indictment could not be supported. (£) 
 Declara- Where an indictment for perjury alleged that a bill was pending in 
 
 tion by an ^ e cour t f Chancery, and that it became material to ascertain whether 
 
 agent at . /i 
 
 the time of an annuity granted by G. Hawkins to the defendant, or granted to J. 
 paying mo- j^ Bostock, as trustee for the defendant, had been paid up to the year 
 bank. 1828, and that the defendant falsely swore that the annuity had not 
 
 been paid up to 1828, and in order to show that Bostock, who was 
 abroad, had paid the money to the defendant, it was proved that Bostock 
 had sent money to his banker's by his clerk ; and it was held that 
 what the clerk said about the money at the time he paid it into the 
 banker's was admissible in evidence, on the ground that it was a decla- 
 ration made by an agent acting at the time within the scope of his 
 authority, (m) 
 Parol evi- Upon an indictment for perjury alleged to have been committed 
 adcUo a u P on tne hearing of an information for sporting without a game certifi- 
 deposition. cate, in order to prove what the defendant swore before the magistrate, 
 his deposition taken in writing before the magistrate was put in, and it 
 was held that evidence was not admissible of other things stated by the 
 *666 defendant when he was examined as a witness *before the magistrate, 
 but which were not contained in the written deposition. (n\ 
 
 (iifc) Reg. o. Parker. a 1 0. & Mars. 639. 
 
 (I) Rex v. Tucker,* 2 C. & P. 500. 
 
 {m) Reg. v. Hall, c 8 C. & P. 358, Littledale, J. 
 
 (n) Rex v. Wylde, a 6 C. & P. 380, Park, J. A. J. The correctness of this decision seems 
 questionable. In the case of summary convictions there is no statute which requires ma- 
 gistrates to take down the evidence in writing, and therefore what a party says in an ex- 
 amination before a magistrate on such an occasion may be proved by parol, whether any 
 person took it down or not. Robinson v. Vaughton, e 8 C. & P. 252, Alderson, B. Inasmuch 
 therefore, as all the defendant said might have been proved by parol, it is difficult to see 
 how the deposition being put in could prevent other matters iiot contained in it from being 
 proved by parol. The distinction between depositions in felony and in summary convictions 
 was not noticed in this case, nor was any reference made to Rex v. Harris, R. & M. C. C. R. 
 338. And the distinction in the text appears at variance with the ordinary practice ot 
 cross-examining a witness in cases of felony as to other statements made by him before the 
 commiting magistrate, after his deposition has been put in and and read. C. S. G. 
 
 a Eng Com. Law Reps. xli. 346. b lb. xii. 234. ° lb. xxxiv. 427. d lb. xxv. 447. 
 c lb. xxxiv. 376.
 
 CHAP. I.] OF PERJURY, ETC. — EVIDENCE. G66 
 
 Where perjury is assigned upon the evidence of a witness examined Conviction 
 before magistrates on the hearing of an information, the conviction is ri^/wh" 1 
 not admissible in evidence on the trial of the indictment for perjury, as not admis- 
 it is irrelevant to the matter in issue. (o) sible « 
 
 Where a count alleged perjury to have been committed before magis- Count for 
 trates in examining a charge of feloniously receiving stolen silks, know- per i ury on , 
 
 ., . , . * ° "a charge of 
 
 mg them to have been stolen, and it appeared that the evidence was receiving 
 given upon the hearing of an information, under the 17 Geo. 3, c. stole . Q 
 56, for having possession of silks suspected to have been purloined orfupported 
 embezzled ; Patteson, J., held that the count was not supported, as the bv P roof of 
 evidence was given upon the specific charge contained in the in forma- hearing an 
 tion.(jp) informa- 
 
 Evidence is essential, not merely to show that the defendant swore thTl^Geo 
 falsely in fact, but also, as far as circumstances tend to such proof, to 3, c. 56. 
 show that he did so corruptly, wilfully, and against his better knowledge. Evidence 
 For it has been justly and humanely said that a jury ought not to 00^°^^°^ 
 vict where it is probable that the fact was owing rather to the weakness of the de- 
 than the perverseness of the party ; as where it was occasioned by sur- en 
 prise or inadvertency, or by a mistake of the true state of the question.^) 
 The jury may infer the corrupt motive of the defendant from the cir- 
 cumstances of the case,(r) and in order to show that the defendant swore 
 wilfully and corruptly what was not true, evidence may be given of 
 expression of malice used by the defendant towards the person against 
 whom he gave the false evidence. (s) The evidence appears to have 
 been received in this case without objection. 
 
 The defendant, although perjury be assigned on his answer, affidavit, Defence. 
 or deposition in writing may prove that an explanation was afterwards 
 given qualifying or limiting the first answer.(t) 
 
 Thus where the perjury was assigned upon an answer in Chancery, General ex- 
 in which the defendant had sworn that she had received no money ; the j^^er' 1 
 defendant proved that, upon exceptions taken to this answer for the in- explained 
 sufficiency thereof, she had put in another answer, which explained the b - v anotner 
 
 ■* fliiswcr* 
 
 generality of the first answer, and stated that she had received no money 
 before such a day ; and it was held, upon a trial *at bar, that nothing *667 
 could be assigned as perjury which was explained by the second answer, 
 because the second answer clearly showed that that which at first ap- 
 peared to be perjury, was not perjury. (u) 
 
 Where an indictment for perjury contains several assignments of per- Evidence 
 jury, and no evidence is adduced upon one of the assignments, the dc- j^"^,,^. 
 fendant is not entitled to give any evidence to show that the matter, 
 charged by such indictment to be false, was in fact true.(t) 
 
 (o) Reg. v. Goodfellow and another,* Stafford Spr. Ass. 1842, MSS., and 1 C. & Mars. 569. 
 See Rex. v. Dowlin, 5 T. 11. 311. 
 
 (p) Reg. v. Goodfellow, supra. 
 
 (q) 3 Stark. Evid. 8G0, citing 1 Hawk. c. GO, s. 2. Rex v. Melling, 5 Mud. 349. Reg. I 
 Muscott, 10 Mod. 102. As where a man Bwore that he had seen and read a deed, and on 
 the trial it appeared that lie bad read tin- counterpart only. 
 
 (r) Rex v Knill, b 5 B. & Aid. 929, note (a), ante, p. 652. 
 
 (s) Rex v. Munton, 3 C. & P. 498, cor. Lord Tenterden, C. J. 
 
 (t) 3 Stark. Evid. 8G0. 
 
 (u) Rex v. Carr, 1 Sid. 418. 2 Kebl. . r .7G. 3 Stark. Evid. 8G0. The reporter adds, "at 
 which unexpected evidence and resolution the counsel for the prosecution were surprised 
 (v) Rex v. Hemp, d 5 (J. & P. 468. 
 
 • Eng. Com. Law Reps. xli. 310. b lb. vii. 30G. « lb. xiv. 411. « lb. xxiv. 410.
 
 667 OF PERJURY, ETC. — DEFENCE. [BOOK V. 
 
 It is no do- The crime of perjury is complete at the time when an affidavit is 
 fence that sworn ^ ; s n0 defence, therefore, that the affidavit cannot, through cer- 
 
 an affidavit " t ' , « . . ' . » 
 
 is inadrais- tain omissions in the jurat, be received in the court for which it is sworn, 
 sible by Upon an indictment for perjury in an affidavit relating to the service of 
 defective a petition upon a bankrupt, it appeared that the affidavit was signed 
 jurat. w ith the mark of the defendant, and the jurat did not state either where 
 
 it was sworn, or that the affidavit was read over to the party, and it was 
 proved by a clerk in the master's office in Southampton Buildings that 
 in cases where the party swearing the affidavit cannot write, the jurat 
 ought, after stating the place where it was sworn, to state that the wit- 
 ness to the mark of the deponent had been first duly sworn, that he had 
 truly, distinctly, and audibly read over the affidavit to the deponent, 
 and saw the mark affixed ; and that no affidavit would be received which 
 did not contain this form of jurat when the party could not write. Little- 
 dale, J., "The omission of the form directed by this and other courts to 
 be used in the jurat of affidavits may be an objection to their being 
 received in the court whose rules and regulations the party has neg- 
 lected to comply with ; but I am of opinion that the perjury is complete 
 at the time the affidavit is sworn, and although it cannot be used in the 
 court for which it is prepared, that nevertheless perjury may be assigned 
 upon it.'YwA So where an affidavit when sworn, had been marked by 
 the judge's clerk with his initial, but through mistake not then pre- 
 sented to the judge for his signature, but some days afterwards it was 
 signed by the judge ; Alderson, B., in the presence of other Barons of 
 the Exchequer, expressed a clear opinion that perjury might be assigned 
 upon the affidavit, although the judge's signature was omitted. (x) 
 So it is no Upon an indictment for perjury, it appeared that the defendant had 
 thau-ho. ^ ec ^ a kiM * n Chancery for an injunction, and had made the affidavit, on 
 affidavit which the perjury was assigned, in support of the allegations in that 
 
 has not ^j]j rp^e j n( ji c tment averred the bill to have been filed, and the affi- 
 been used .... . . . 
 
 for the pur- davit exhibited in support of it; and it stated the matters assigned as 
 
 l"? s . e ^°. r perjury to be material to the questions arising on the bill; but it did 
 was made. n °t contain any statement that a motion had been made for an injunc- 
 tion, and it did not appear by the evidence that any such motion had in 
 fact been made. It was submitted that the defendant was entitled to an 
 acquittal. By the practice of the Court of Chancery, an injunction could 
 not be obtained, except for want of an answer, or on the insufficiency 
 of the answer, or on evidence disproving the answer, in none of which 
 cases is the affidavit of the plaintiff admissible; or else ex parte before 
 the time allowed to the defendant for answering has elapsed. In the 
 last case and in that only, could the plaintiff's affidavit be used. The 
 *668 averment, *therefore, that the perjury was assigned on matter material 
 to the bill was not true ; it could only be material to an application 
 of a peculiar nature, and it did not appear, and was not alleged that 
 such an application was ever made. It was answered, that the objec- 
 tion, if tenable at all, amounted to this, that perjury could not be as- 
 signed upon an affidavit which had not been used. Lord Tenterden, 
 C. J. — " I do not think the averment or proof, the absence of which is 
 
 (V) Rex v. Hailey,* R. & M. N. P. C. 94. 1 &. C. & P. 258. See Rex v. Crossley, ante, p. 
 630, note (y). 
 (z) Bill v. Bament, 8 M. & W. 317. 
 
 a Eng. Com. Law Reps. xi. 383.
 
 CHAP. I.] OF PERJURY, ETC. — PUNISHMENT. 668 
 
 objected to, can be necessary. The statements in the affidavit are ma- 
 terial to the matters contained in the bill, which is for an injunction ; 
 and it may well have been filed in anticipation of a contemplated motion 
 for an injunction, on which it might have been used. Can it make any 
 difference that it afterwards turns out that the motion is not made ? 
 The crime, if any, is the same, morally, in each case; and I certainly 
 shall not, where the objection is open hereafter, hold it necessary to 
 give proof of a fact, which does not vary the conduct of the party in 
 taking the oath."(y) 
 
 Where an indictment for perjury alleged that the defendant produced Or that it 
 before a master in chancery an affidavit, " entitled, in the said Court of has . il de ." 
 Chancery, and in the said suit therein at the suit of the said E. J. C, tie.™ 
 and also in the said suit therein at the suit of the said Commissioners of 
 Charitable Donations and Bequests in Ireland," and the affidavit, when 
 produced, appeared to be entitled « between the Commissioner of Cha- 
 ritable Donations and Bequests in Ireland, against J. E. D., &c, (naming 
 the other defendants,) and between E. J. C. and J. E. D., the Commis- 
 sioners of Charitable Donations and Bequests in Ireland, and Others." 
 It was objected that this affidavit was not one on which perjury could 
 be assigned as there was no such suit as that in which the Commis- 
 sioners of Charitable Bequests were plaintiffs ; and the affidavit suit was 
 improperly entitled, as the names of all the defendants were not stated, 
 and therefore the affidavit was not admissible in the Court of Chancery. 
 Lord Denman, C. J., " The courts are quite right in not receiving affi- 
 davits which are not properly entitled ; but I do not think the question 
 whether there be perjury or not depends on the rule as to the entitling 
 being strictly complied with. "(z) 
 
 If any one distinct assignment of perjury be proved, the defendant Verdict 
 ought to be convicted. (a) 
 
 In a case of prosecution against T. Reilly for suborning one Mac- Proof npon 
 daniel to commit perjury, it was contended, on the part of the crown, j L i( 1 ) , 1 ,'^ r '" 
 that the bare production of the record of Macdaniel's conviction was of suboma- 
 itself sufficient evidence that he had, in fact, taken the false oath as ! l0n of P er " 
 
 . jury. 
 
 alleged in the indictment. But it was insisted by the prisoner, that the' 
 record was not of itself sufficient evidence of the fact; that the jury had 
 a right to be satisfied that such conviction *was right ; that Reilly had a *QQ ( J 
 right to controvert the guilt of Macdaniel ; and that the evidence given 
 on Macdaniel's trial ought to be submitted to the consideration of the 
 present jury ; and the recorder obliged the counsel for the crown to go 
 through the whole case, in the same manner as if the jury had been 
 charged to try Macdaniel. (b) 
 
 The punishment for perjury and subornation of perjury, at common _" n ! f *" 
 law, has been various; being anciently death; afterwards banishment, perjuryand 
 
 (y) Rex v. White,* M. & M. 271. The defendant was acquitted. 
 (z) Reg v Christian," December 6, 1842. 1 C. & Mars. 388. 
 
 (a) Reg. v. Rhodes, 2 Lord Raym. 886, 887. :: Stark. Evid. 860. And sec Compagnon 
 v. Martin, 2 Bla. Rep. 790. Reg.V Virrier,* 12 Ad. & E. :tl7. Reg. v. Gardiner, ante, p 
 633. In Rex v. Nicholls, Gloucester Sum. Ass. 1838, perjury was alleged t<> have be< 
 mitted by the defendant in evidence given on a trial for larceny, in which lie denied 
 having been at a particular ho use on a particular occasion, and denied having had a cob 
 
 tion with certain persons there, and the indictment contained man; distini I b ign nts i n 
 
 the going to the house, and the conversation, upon all of which evidence was given, and 
 Patteson J., directed the jury simply to consider w hether the defendant had been to the hous< 
 and if they were satisfied that he had to convict him, which they did. MSS. C. 8. G. 
 
 (b) Reilly's case, 1 Leach, 45* See vol. 1, p. 43. 
 
 a Eng. Com. Law Reps. xxii. 304. b lb. xli. 214. c lb. xl. 48.
 
 669 OF PERJURY, ETC. — PUNISHMENT. [BOOK V. 
 
 suborns- or cutting out the tongue ; then forfeiture of goods. (c)f At the pre- 
 lum "i l^ r - seut t j me ^ j s fi ne an( j imprisonment, at the discretion of the court,(c?) 
 to which, as we have already seen, the 2 Geo. 2, c. 35, (e) superadds a 
 power for the court to order the offender to be sent to the house of cor- 
 rection for a term not exceeding seven years, or to be transported for 
 the same period ; and makes it felony, without benefit of clergy, to re- 
 turn or escape within the time. If the prosecution proceeds upon the 
 5 Eliz. c. 9, that statute, as we have seen,(/) inflicts the penalty of 
 perpetual infamy, and a fine of 401. on the suborner ; and in default of 
 payment, imprisonment for six months, and to stand with both ears 
 nailed to the pillory ;[g\ and punishes perjury with six months' impri- 
 sonment, perpetual infamy, and a fine of 20/., or to have both ears 
 nailed to the pillory. 
 s Geo. 4, c. The 3 Geo. 4, c. 114, enacts, that "whenever any person shall be 
 lai.'ur ar convicted of any of the offences hereinafter specified and set forth, that 
 is to say (inter alia) of wilful and corrupt perjury, or of subornation of 
 perjury, it shall and may be lawful for the court before which any such 
 offender shall be convicted, or which by law is authorized to pass sen- 
 tence upon any such offender, to award and order (if such court shall 
 think fit) sentence of imprisonment with hard labour, for any term not 
 exceeding the term for which such court may now imprison for such 
 offences, either in addition to or in lieu of any other punishment which 
 may be inflicted on any such offenders by any law in force before the 
 passing of this act ; and every such offender shall thereupon suffer such 
 sentence, in such place, and for such time, as aforesaid, as such court 
 shall think fit to direct." 
 
 It has been holden that the punishments directed by the 18 Geo. 2, 
 c. 18, to be inflicted upon perjury, in falsely taking the freeholder's 
 oath at an election of a knight of the shire, are cumulative under the 5 
 Eliz. c. 9, s. 6,(i) and 2 Geo. 2, c. 25, s. 2Jj\ to which the first men- 
 tioned statute, 18 Geo. 2, c. 18, refers. (k\ 
 *670 *Upon a conviction for perjury at the Chester Assizes, after the 
 Judgment entry of the verdict the record proceeded " it is therefore ordered that 
 perjury. tae sa ^ L. K. be transported to the coast of New South Wales, or some 
 
 (c) 4 Bla. Com. 138. 
 
 (d) 4 Bla. Com. 138. Rex v. Nueys and Galey, 1 Bla. R. 416. Rex v. Lookup, 3 Burr. 
 1901. In this last case the form of the sentence was that the defendant "should be set in 
 and upon the pillory at C. Cross, for an hour between the hours of twelve and two, and 
 that he should afterwards be transported to some of his majesty's colonies or plantations 
 in America, for the space of seven years ; and be now remanded to the custody of the mar- 
 shal, to be by him kept in safe custody, in execution of the judgment aforesaid, and until 
 he shall be transported as aforesaid." The 1 Vict. c. 23, abolishes the punishment of the 
 pillory in all cases, " provided that nothing herein contained shall extend, or be construed 
 to extend, in any manner to change, alter, or affect any punishment whatsoever, which 
 may now be by law inflicted in respect of any offence except only the punishment of 
 pillory." 
 
 (e) Ante, p. 605. (/) Ante, p. 604. (g) See note ((f), supra. 
 (?) Ante, p. 604. (j) Ante, p. 605. 
 
 (k) Rex v. Price, alias Wright, 6 East, 323. Grose, J., passed sentence upon the defend- 
 ant and two other persons who had been convicted of similar perjuries in the following 
 form : — " That each of them for this offence should lose and forfeit 20/., and be imprisoned 
 in Newgate by the space of six months without bail or mainprize, and that his oath from 
 thenceforth be not received in any court of record within England or Wales, or the marches 
 of the same, until such time as the judgment should be reversed by attaint or otherwise. 
 and that after the expiration of the said six months he be transported to such place beyond 
 the seas, as his mnjesty, with the advice of his privy council, should think fit to direct and 
 appoint, for the term of six years." 
 
 f [Hooper v. The State, 5 Yerger, 422.]
 
 CHAP. I.] OF PERJURY, ETC. PUNISHMENT. 670 
 
 one or other of the islands adjacent, for and during the term of seven 
 years;" and upon a writ of error the following errors were relied upon; 
 that the judgment was erroneous in form, being, "it is ordered-" 
 whereas it should have been " it is considered ;" that it was bad in 
 substance, being a judgment of transportation only, whereas the 2 
 Geo. 2, c. 25, s. 2, enacts that judgment of transportation may be 
 pronounced, besides the punishment that might before be inflicted; 
 that the place, to which the prisoner was to be transported, ought not 
 to have been fixed by the court, the power of appointing that being 
 given to the king in council by the 56 Geo. 3. c. 27 ; and that at all 
 events the appointment of the place was bad, being to one or other 
 of the various places, and, therefore, uncertain. And the Court of 
 King's Bench held that by the 2 Geo. 2, c. 25, s. 2, two things were 
 required to be done by the court before which the party was tried : an 
 order for transportation is to be made, and thereupon judgment is to be 
 given : and here the court had made an order not followed up by a 
 judgment. Inasmuch, therefore, as no judgment had been entered in 
 the court below, and the Court of King's Bench had no power to supply 
 the deficiency, as the punishment was discretionary, that the court 
 awarded a procedendo, commanding the court below to proceed to give 
 judgment on the conviction. (l\ 
 
 A consequence of a conviction for perjury, though it forms no part of Conviction 
 the judgment, is that the offender is incapacitated from giving evidence f or P er J ur y 
 in a court of justice. (in\ But a pardon will restore his competency ; tates the 
 except in the case of a conviction for perjury or subornation of perjury ° ffende . r 
 on the 5 Eliz. c. 9,(?i) which provides that the offender shall never be ing evi- 
 admitted to give evidence in courts of justice until the judgment be dence - 
 reversed ; and, therefore, the king's pardon will not in such case make 
 him a competent witness, (o) 
 
 A very summary mode of proceeding is given, where persons con- Summary 
 victed of perjury practise as attorneys or solicitors in courts of law or j^ere oer- 
 equity. The 12 Geo. 1, c. 29, s. 4, enacts, "that if any person who sons con- 
 hath been or who shall be convicted of forgery, or of wilful and corrupt vic ' ed of 
 
 ° ' ' r perjury 
 
 perjury, or subornation of perjury, or common barratry, shall act or practise as 
 practise as an attorney, or solicitor or agent, in any suit or action, attorneys 
 brought or to be brought in any court of law or equity within that part tors. 
 of Great Britain called England, the judge or judges of the court, where 
 such suit or action is or shall be brought, shall upon complaint or in- 
 formation thereof, examine the *matter in a summary way in open *C71 
 court ; and if it shall appear to the satisfaction of such judge or judges, 
 that the person complained of, or against whom such information shall 
 be given, hath offended contrary to this act, such judge or judges shall 
 cause such offender to be transported for seven years to some or one of 
 his majesty's colonies or plantations in America, by such ways, means, 
 and methods, and in such manner, and under such pains and penalties 
 as felons in other cases are by law to be transported." 
 
 The following cases, which have occurred with reference to some of 
 the statutes mentioned in the course of this chapter, seem deserving of 
 being introduced in this place. 
 
 (I) Rex v. Kenworth, a 1 B. & C. 711. 
 
 (m) Gilb. Ev. 120. Bull. N. P., 291. 4 Bla. Com. 138. 2 Hawk. I'. 0. C. 46, B. 101, 
 (n) Ante, p. 604. (o) 1 Phil, on Evid. 21, and the authorities there cited. 
 
 11 Eng. Com. Law Reps. viii. 100.
 
 671 OF PERJURY, ETC — PUNISHMENT. [BOOK V. 
 
 An in. Hit- An indictment for perjury, alleged to have been committed in the 
 neriurvwil] Insolvent Debtors' Court, stated that the defendant gave in his schedule 
 not lie un- on oath that the same contained a true and correct account of all his 
 der the i <jebts, credits, &c, and then went on to state that certain persons, whose 
 57, s. 71, names were set out, were debtors to the defendant at the time of giving 
 against an j n ]j} s schedule, and that they were omitted in the schedule. It was 
 debtor tor objected that no indictment for perjury would lie on such omissions; 
 omissions fcgfc the offence of wilfully making such omissions was made punishable 
 in Ms sche^ as a misdemeanor by sec. 70 of the 7 G-eo. 4, c. 57, and the offence of 
 dule. perjury created by sec. 71, only applied to positive affirmations con- 
 
 tained in the schedule. Lord Tenterden, C. J., "I think the legislature 
 contemplated the particular case of omissions, and provided for them in 
 the seventieth section, the debts omitted being comprehended under the 
 terms 'effects or property' there used. The act then goes on in the 
 seventy-first section to make other falsehoods in the oath of the party 
 punishable as perjury. I therefore think the defendant must be ac- 
 quitted."(p) 
 Indictment Upon an indictment against the defendant under the 2 Wm. 4, c. 45, 
 for a false s pjg f or o-} v i n0 ; a false answer to the question whether he had the same 
 
 answer to ' p ° i /> i • i i • • 
 
 the third qualifications to vote as that for which he was registered, it appeared 
 
 question that th e defendant had occupied a house at the time of the registration, 
 
 reform act. f° r which he was on the register as a voter, but he had left it before the 
 
 Determina- election, and the landlord's agent had, before the election, given the key 
 
 tenancy °^ * ne nouse to another person, who had put horses into the stable and 
 
 beer into the cellar, but the rent of such person did not commence till 
 
 after the election ; it was held that the defendant must be acquitted, 
 
 as there was no evidence as to the determination of the defendant's 
 
 tenancy, (a) 
 
 Although a Upon an indictment against the defendant under the 2 Wm. 4, c. 45, 
 
 party who g gg^ f QT f a i se iy answering that he had the same qualification for which 
 
 up the pro- his name was originally inserted in the register of voters, it appeared 
 
 perty he that the defendant at the time of registration was occupying a house 
 
 rented &t 
 
 the time he at Turnhani Green, as tenant to Mr. Kay, at the rent of 60/. per 
 was regis- annum, but he left that house at Lady Day following, and in April com- 
 not vote menced the occupation of another house at Turnham Green, as tenant 
 still he to Mr. L., at a rent of bOI. and upwards per annum, and he continued 
 tT'bVcon- * n ^ e occu P at i° u of this house from April till the time of the election. 
 *Q72 The defendant had been told that he *had no right to vote before he 
 vieted of a did so, but he said that he believed he had a right to vote, and that he 
 false an- j^ ^ een g0 i n f orme( j D y a committee of two of the candidates, and that 
 
 swer to the , . . . J . ... T , 
 
 question in their opinion was sufficient to warrant him in voting. It was held that 
 see. 58 of the nature of the qualifications being the same did not give the party a 
 
 2 \\ m 4:C»i 
 
 45, if he' ' right to vote, merely because it fell within the general terms of the de- 
 
 bonafide scription, which he had given to the revising barrister. The identity of 
 
 had a right * ne qualification must continue ; and if a voter ceased to occupy the 
 
 to vote. premises in respect of which he was registered, he thereby ceased to 
 
 have a right to vote ; and it was no answer to say that, although he had 
 
 ceased to occupy those premises, he had entered upon the occupation of 
 
 other premises of equal value. It had been urged that if the statement 
 
 (p) Rex v. Mudie, 1 M. & Rob. 128. S. C. as Rex v. Moody,' 5 C. & P. 23. See sec. 70 
 of the 7 Geo. 4, c. 57, ante, p. 235, and sec. 71, ante, p. 615. 
 (?) Rex v. Harris," 7 C. & P. 253, Lord Denman, C. J. 
 
 a Eng. Com. Law Reps. xxiv. 196. *> lb. xxxii. 503.
 
 CHAP. I.] OF PERJURY, ETC. — PUNISHMENT. 672 
 
 of the defendant was untrue, he made it under the advice of a commit- 
 tee j but that made very little difference, for if a party made a state- 
 ment which he knew to be untrue, the opinion of an election committee 
 (which generally had a pretty strong bias one way or the other) did not 
 alter the character of the offence. But still the term " same qualifica- 
 tion" was undoubtedly an equivocal expression, and almost necessarily 
 implied something of opinion as to a matter of law, and the jury ou<dit 
 not to convict a person of a misdemeanor who possessed property of 
 equal value to that which he held at the time of the registration, if he 
 had acted bond fide, and had been guided in his conduct in a matter of 
 law by persons who were conversant with the law, and who had told 
 him that he possessed the same qualification, for which his name was 
 originally inserted in the register of voters. (r) 
 
 If a party who is registered for a borough as a 10?. householder, gives 
 up the house in respect of which he is registered, and takes another of 
 superior value within the same borough after the registration and before 
 the election, he loses his vote, and if before and at the time of the elec- 
 tion a new tenant has taken possession of the house that the voter has 
 left, and is paying rent for it, the fact that a few articles of the voter's 
 furniture remain in the house, and that the voter retains one of the two 
 keys of it, will make no difference. (Vr) 
 
 The " same qualification" in the 2 & 3 Wm. 4, c. 45, s. 58, means 
 the same identical property. (ss) 
 
 A voter in a borough who is registered as a 10/. householder in re- 
 spect of a house in Eldon Place, loses his vote, if after the registration 
 and before the election, he removes to another house in Eldon Place, 
 although the house, to which he removes, is in every respect within the 
 description contained in the register.(M) 
 
 In a register of a borough the word " Penkhull," which denoted a 
 portion of the borough, was put at the head of sevaral names, including 
 that of the defendant, who was on the register in respect of a house in 
 Eldon Place, and it was held that if there was no other Eldon Place in 
 the borough, it was not necessary for the deputy returning officer, in 
 putting the third question under the Reform Act to add the word 
 " Penkhull" as part of the description. {uu} 
 
 On an indictment under the 2 & 3 Wm. 4, c. 45, for giving a false 
 answer at the poll at an election of members of parliament for a borough, 
 it is not neeessary that the returning officer should himself put the ques- 
 tions to the voters, under sec. 58. But it is sufficient if the town clerk 
 do it in his presence and by his direction; neither is it necessary to show 
 that the agent, who required the questions to be put, was expressly ap- 
 
 O) Reg. v. Dodsworth,* 8 C. & P. 218. 2 Moo. & Rob. 72, Lord Denman, C. J. In Reg. 
 v. Irving, 2 M. & Rob. 75, note (a), the same points arose, and Bosanquet, J., was decidedly 
 of opinion in point of law the qualification was not the same, but said that if the answer 
 was given by the prisoner under a bond fide belief that he still retained his qualification, ho 
 should be acquitted. In the same note the learned reporters advert to the case w berea voter 
 is registered for " land,'' described, in his own occupation, or for "freehold houses," in some 
 specified street, and after the registration he sells part of the land which was in his own 
 occupation at the time of the registration, or some of the houses of which he then possessed 
 the freehold; in each case, however, retaining enough in point of value to confer B qualifi- 
 cation, and intimate a doubt whether such a party could truly answer the question in the 
 affirmative. 0. 8. G. 
 
 (rr) Reg. v. Bowler," 1 C. & Mars. 559. Patteson, J. 
 
 (ss) Reg. v. Ellis 1 C. & Mars. 5G4. (tt) Reg. v. Ellis, mpra. 
 
 (mm) Reg. v. Ellis, supra. 
 
 »Eng. Com. Law Reps, xxxiv. 300. b lb. xli. 304. « lb. xli. 563.
 
 672 OF PERJURY, ETC. PUNISHMENT. [BOOK V. 
 
 pointed by the candidate ; it is sufficient to show that he had acted as 
 agent for the candidate.^) 
 
 The word " wilfully" in an indictment on the 2 & 3 "Win. 4, c. 45, s. 
 58, for giving a false answer at the poll, should be construed in the same 
 way, and supported by the same sort of evidence, as in an indictment 
 for perjury. (ww) 
 
 An indictment against a voter for giving a false answer at the poll, 
 which stated that at a certain election for a member of parliament for 
 the borough of Stoke-upon-Trent, the defendant appeared as a voter, 
 and tendered his vote as such, and that he gave a false answer that 
 he had the same qualification for which he was put on the register, 
 whereas in truth he had not, appears to be bad, because it states all 
 the matters by way of recital, and neither states the writ nor the pre- 
 cept in holding the election, nor that the defendant's name was on the 
 register. (.cb) The defendant was acquitted in this case. In Reg. v. 
 Ellis, 1 C. & Mars. 564, b the indictment was in similar form, the de- 
 fendant convicted, and the judgment arrested in the Queen's Bench, no 
 cause being shown. 
 The de- Where on the trial of an indictment on the 2 & 3 Wm. 4, c. 45, s. 58, 
 
 scnption in against the defendant for giving a false answer to the question, " Have 
 
 the register ° . ° e # ~i _ ' 
 
 must be you the same qualification for which your name was originally inserted 
 read or the j n the register of voters now in force for the city of Bristol V the sheriff's 
 indictable, deputy stated, that on the defendant tendering his vote he had asked 
 him the question as set out in the indictment, but did not, at the end 
 of the question, read from the register the line in which his name and 
 qualification were inserted, 'Lucy, William, House, Lodge-street,' Wight- 
 man, J., held that the defendant must be acquitted, as the particular 
 qualification ought to have been read over.'Ys) 
 Indictment Where a person is indicted for a misdemeanor in taking a false oath, 
 «wearinVto ^ mus * De proved not only that the matter sworn was false, but that the 
 a qualifica- defendant knew it to be so at the time he took the oath. Upon an in- 
 
 tion to sit di c traent against the defendant for a misdemeanor, in falsely swearing 
 as a mem- & . ' . J ° 
 
 ber of par- that he bond fide had such an estate in law or equity of the annual 
 
 liament. value of 300/., above reprizes, as qualified him to be a member of par- 
 *673 liament for a borough • a surveyor stated *that the fair annual value of 
 the property was about 200/. a year, but another witness stated that it 
 was badly let, and believed it was worth more than 300?. a year, and 
 that he told the defendant so, and that he did not think that the de- 
 fendant had any reason to believe that the qualification, in point of value, 
 was not sufficient. It was held, that the jury must be satisfied, beyond 
 all doubt, that the property was not of the value of SOOL a year, and 
 that at the time the defendant made the statement, he knew that it was 
 not of that value. (ss\ 
 * n ^tment The firgt count of the indictment, founded upon the 5 & 6 Wm. 4, c. 
 magistrate 62, s. 13, charged that the defendant, being a justice of the peace, did 
 for admm- unlawfully administer to and receive from J. Huxtable a certain volun- 
 oath'con- tarv oatn touching certain matters and things whereof the defendant 
 
 (vv) Reg. v. Spalding, a 1 C. & Mars. 568, Patteson, J. 
 (to) Reg. v. Ellis," 1 C. & Mars. 564. Patteson, J. 
 (zx) Reg. v. Bowler, 1 C. & Mars. 559, per Patteson, J. 
 (*) Reg. v. Lucy, d 1 C. & Mars. 510. 
 
 (**) Reg. v. De Beauvoir, 6 V C. & P. 17, Lord Denman, C. J. 
 
 » Eng. Com. Law Reps. xli. 310. b lb. xli. 564. ° lb. xli. 304. d lb. xli. 563. 
 
 e lb. xxxii. 422.
 
 CHAP. II.] OF CONSPIRACY. 673 
 
 had not jurisdiction or cognizance by any statute. The second and third trary to the 
 counts were slightly varied, and the fourth count negatived the proviso^ * y Vm ' 
 in sec. 13. There were other counts charging the defendant with 13. C " 
 administering oaths to two other persons. The defendant had made a 
 complaint to the bishop against two clergymen, who officiated in his 
 parish, that one had played at thimble-rig, and that both had neglected the 
 duties of the parish. The bishop intimated that, before he could call on 
 the clergyman to answer the complaint, the defendant must either bring 
 before him the persons who proved the charges, or obtain statements in 
 writing to the facts. The defendant obtained statements from the three 
 persons mentioned in the indictment, and swore them before himself, as 
 a justice of the peace, to the truth of the statements. The bishop had 
 before appointed a day for hearing the charges, and had summoned the 
 clergymen to attend ; but on finding that the depositions had been thus 
 sworn, he declined to look at them; he went, however, into the charges 
 on other evidence. It appeared that the defendant was ignorant of the 
 statute rendering the administering voluntary oaths illegal. It was con- 
 tended, that the enacting part of the statute must be construed with 
 reference to the preamble; that the enacting clause, which prohibits 
 "any justice of the peace, or other person," from administering oaths, 
 other than in matters over which jurisdiction was given by statute, if 
 taken by itself, would render unlawful the taking of many oaths which 
 could be administered by the common law, that the enactment construed 
 together with the proviso, was still too stringent, and that the enactment 
 and proviso must be governed by the preamble. Coleridge, J., in sum- 
 ming up, said he was of opinion that the enacting part of the statute 
 was not governed by the preamble; that he considered the enacting part 
 of the section and the proviso preserved to justices of the peace all the 
 jurisdiction they had, as well at the commou law as by statute, to 
 administer oaths; and that the injury before the bishop was clearly a 
 matter in respect of which the defendant had no jurisdiction, either at 
 common law, or by statute. He directed the jury, that, if they were 
 satisfied the defendant did administer the oaths, they should find him 
 guilty. The jury found the defendant " guilty of inadvertently admin- 
 istering an oath or oaths;" and Coleridge, J., held that that was a verdict 
 of guilty, (t) 
 
 ♦CHAPTER THE SECOND. *674 
 
 OF CONSPIRACY. (a) 
 
 The conspiring to obstruct, prevent, or defeat the course of public Deecrip- 
 justice ;(«) to injure the public health, as by selling unwholesome provi- 00 n 
 
 ft) Reg. v. Nott, a 1 0. k Mars. 288. See the section, ante, p. 61 7. 
 
 (a) Rex v. Mawbey and others, 7 T. R. 619, et scq. 4 Black. Com. inc. 1 Hawk. P. ('. <• 
 72, s. 2. 
 
 (A) Massachusetts. — In tbe case of the Commonwealth i>. Jodd A: al., 2 Maes. K. 329, 
 the law relative to the offence of conspiracy, and the numerous cases in the English autho- 
 rities upon that subject were fully discussed. The defendants were indicted for conspiring 
 together to manufacture certain materials mentioned in the indictment, (of which one was 
 » Eng. Com. Law Reps. xli. 1CI.
 
 674 OF CONSPIRACY. [BOOK V. 
 
 sions ;(b) or to effect any public mischief, as by raising the price of the 
 public funds by illegal nieans;(c) are offences punishable by indictment. 
 
 (bj Reg. v. Mackarty and Fordenbourgh, 2 Lord Rayrn. 1179. 2 East, P. C. c. 18, s. 5, p. 
 823. 4 Bla. Com. 162. And see the remarks upon the case of Mackarty and Fordenbourgh, 
 in 6 East, 133, 141. 
 
 (e) Rex v. De Berenger and others, 3 M. & S. 67. 
 
 good indigo of foreign growth,) a base composition resembling genuine indigo of the best 
 quality, and of foreign growth, with the fraudulent intention that the same should be sold 
 at public auction as genuine indigo of the best quality and of foreign growth. The indict- 
 ment further alleged, that the defendants did in fact manufacture this base composition and 
 expose it to sale, and did sell it at public auction for genuine indigo of the best quality and 
 foreign growth. .The defendants were found guilty of the whole indictment except the last 
 allegation, viz., that this base composition was in fact sold at auction. 
 
 Several objections were made to the verdict, the last and most important of which was, 
 that the first count charges a conspiracy to do an act not prohibited bylaw, with an unlaw- 
 ful intent to defraud, not any individual, by name, but whoever might, be the purchasers, 
 without giving any description of them, and no act done in pursuance of this conspiracy is 
 either alleged in the first count, or found by the verdict. Parsons, C. J., in delivering the 
 opinion of the court, says : "The question is, whether the conspiracy as alleged in the first 
 count, no act being alleged as done in pursuance of it, is an indictable offence. After fully 
 considering the several cases, the court are of opinion, that the gist of a conspiracy is the 
 unlawful confederacy to do an unlawful act, or even a lawful act for unlawful purposes. 
 That the offence is complete when the confederacy is made, and any act done in pursuance 
 of it is no constituent part of the offence, but merely an aggravation of it. This rule of 
 the common law is to prevent unlawful combinations. A solitary offender may be easily 
 detected and punished. But combinations against law are always dangerous to the public 
 peace, and private security. The unlawful confederacy is therefore punished, to prevent 
 the doing of any acts in the execution of it. Of this principle, the adjudged cases have 
 left no doubt." 
 
 It was admitted that the conspiracy to do a lawful act with the unlawful intent of injur- 
 ing an individual, was an indictable offence, although no act were done in pursuance of it: 
 — but it was insisted that the law was different when the intent was to injure a number of 
 people not described. The Court were satisfied that the law made no such distinction. It 
 does not in the cases of knowingly having in possession forged bank-notes, or counterfeit 
 current coin, with the intent to pass them as genuine ; for it is necessary to allege an 
 act done in these cases, in pursuance of the intent. The intent is to cheat whoever can be 
 cheated. In this case there was the same general intent to defraud all who could be de- 
 frauded. " We therefore think the offence to be greatly aggravated by the undistinguishing 
 mischief that was designed." For this the case of the Journeymen Tailors is substantially 
 in point. The object was to raise their wages, and the persons to be injured were any per- 
 sons who might employ them. 
 
 In the case of the Commonwealth v. Tibbetts & Al. }2 Mass. R. 536,} the same doctrine as 
 laid down in Commonwealth v. Judd & al., was recognized and adhered to. The particular 
 point decided in this case was, that in an indictment for a conspiracy to accuse one of a crime, 
 it is not necessary to allege that the defendants procured or intended to procure an indict- 
 ment or other legal process ; and that any informality in the indictment, in alleging matter 
 merely in aggravation of the offence, will not vitiate it. And in the Commonwealth v. 
 Warren & al., 6 Mass. R. 74, the same doctrine is again recognized. " The gist of the of- 
 fence, is the conspiracy to cheat the prosecutor." Per Parsons, C. J. So in the Common- 
 wealth v. Davis, 9 Mass. R. 415. "Upon an indictment for a conspiracy to cheat, the con- 
 spiracy is the gist of the offence, and the cheating is but aggravation." 
 
 When a felony or misdemeanor is in fact committed, a conspiracy to commit such felony 
 or misdemeanor cannot be indicted and punished as a distinct offence. Commonwealth v. 
 Kingsbury & al., 5 Mass. R. 106. The defendants were convicted, and there was a motion 
 in arrest of judgment, because the offence charged and proved amounts to larceny, which 
 being a felony, the conspiracy charged was merged. " Had the conspiracy not been effected, 
 it might have been punished as a distinct offence ; but a contrivance to commit a felony, 
 and executing the contrivance, cannot be punished as an offence distinct from felony, when 
 committed pursuant to it." Per Parsons, C. J. " The law is the same respecting misde- 
 meanors." Id. 
 
 Connecticut. — A combination or conspiracy may be proved by evincing a concurrent 
 knowledge and approbation in the persons conspiring, of each other's acts ; and it is most 
 usually done by proof of the separate acts of several persons, concentrating in the same pur- 
 pose or particular object. The greater the secrecy that is observed relative to the object of 
 such concurrence, and the more apparent the similarity of the means employed to effect it. 
 the stronger is the evidence of the conspiracy. In order to prove a conspiracy, the acts of 
 the different conspirators are admissible, though acts to which the prisoners were no party.
 
 CHAP. II.] OP CONSPIRACY. 674 
 
 And it appears that an indictment lies, not only wherever a conspiracy 
 is entered into for a corrupt or illegal purpose, but also where the con- 
 
 {2 Day, 205, Gardner v. Preston.} [An indictment may be sustained whenever there is a 
 conspiracy tor an unlawful purpose, or to effect a lawful purpose by unlawful means. The 
 State v. Eoicley and an., 12 Conn. 101.] 
 
 {New York.— By the Revised Statutes of New York, vol. ii. 591, 692—" If two or more 
 persons shall conspire, either, 1. To commit any offence; or, 2. Falsely and maliciously to 
 indict another for any offence, or to procure another to be charged or arrested for any such 
 offence ; or, 3. Falsely to move or maintain any suit ; or, 4. To cheat and defraud any per- 
 son of any property, by any means which are in themselves criminal; or, 5, to cheat and 
 defraud any person of any property, by any means, which, if executed, would amount to a 
 cheat, or to obtaining money or property by false pretences; or, 6. To commit any act 
 injurious to the public health, to public morals, or to trade and commerce, or for the perversion 
 or obstruction of justice, or the due administration of the laws : They shall be deemed guilty 
 of a misdemeanor. 
 
 " No conspiracies, other than such as are enumerated in the last section are punishable 
 criminally. 
 
 "No agreement, except to commit a felony upon the person of another, or to commit ar- 
 son or burglary, shall be deemed a conspiracy, unless some act besides such agreement be 
 done to effect the object thereof, by one or more of the parties to such agreement."} 
 
 In the case of People v. Olcott, 2 Johns. Cases, 301, two points of law were decided 
 
 1. That the court may in their discretion in a criminal case, discharge a jury who are una- 
 ble to agree on a verdict, and against the consent of the defendant ; who may be brought 
 to trial a second time for the same offence. And 2nd. That where three persons were engaged 
 in a conspiracy, and one of them died before trial, and another was acquitted, the survivor 
 might be tried and convicted. A third point was also decided, which was applicable to that 
 particular case, rather than to any general point or principal of law. The opinion of the 
 court was delivered by Kent, J. As to the first point he referred to the case of the People 
 v. Denton, 2 Johns. Cases, 275, in which the same question was decided. He then went into 
 an historical and learned statement of the opinions and discussions of the English judges, 
 upon the question ; to which the reader must be referred, and from which he will find, that 
 both reason and the authorities are clearly in favour of the power of the court to discharge 
 the jury when it shall appear that public justice, or the circumstances of the case, or of the 
 prisoner, require it. 
 
 The authorities referred to are, 1 Inst. 227, b. 3 Inst. 110. Foster, 32. Brook, Corone, 
 42. Hawk. b. 2, c. 97, s. 1. 4 Bla. Com. 360. Carthew, 465. The King v. Jeffs, Stra. 984. 
 The learned judge here remarks, " that the position generally denying the power of the 
 court to discharge a jury sworn and charged in a criminal case, has originated, (probably 
 without further examination or inquiry,) from a dictum to be found in the Institutes of Lord 
 Coke, and that this dictum rests upon his single authority without the sanction of any ju- 
 dicial decision. On the contrary, there are many authorities admitting and establishing the 
 power of the court to discharge the jury, even in capital cases." As in the case of Ferrars, 
 cited in Sir T. Raymond, 84, which was an information for forgery. In 1 Vent. p. 69, which 
 was a case of larceny. Foster, 271, a case of murder. 2 Salk. 646, and Hale, P. C. vol. ii. 
 p. 295, who, in direct opposition to Coke, says that the practice in his time had been com- 
 mon for the court, after the jury were sworn and charged, and evidence given, to discharge 
 the jury, and remit the prisoner for another trial. In the case of the two Kinlocks, (Foster, 
 22 to 40,) the general question, touching the power of the court to discharge jurors, under- 
 went a full and solemn discussion, and all the cases before-mentioned were cited, and ex- 
 amined, and the court came to this decision, (ten judges against one,) that the general rule. 
 as laid down by Lord Coke, (that a jury sworn and charged by the court in cases of life or 
 member, cannot be discharged, but ought to give a verdict,) had no authority to warrant it, 
 and could not be universally binding; and that the question was not capable of being de- 
 termined by any general rule; for that none could govern the discretion of the court in :ill 
 possible circumstances. 
 
 This power is also recognized in Comb. 401. Kclyng. 26, 52. St. Tri. vol. 2, p. 710, 827. 
 
 Other instances where a jury may be discharged are also quoted by Hie Learned judge. If 
 
 the prisoner be found insane, (1 Hale, 35,) or in a lit, (Leach, I 13,) or to he taken in lal r. 
 
 (Foster, 76,) or if a juror escape from lii.s fellows, (2 Hale, 2H7,) or if taken in a fit, or lie in- 
 toxicated; in all other cases it has been held that a jury may be discharged, and the pri- 
 soner remanded for another trial. It is further added, " If the question in capital cases be 
 doubtful, there is nothing to render it so in cases of misdemeanor. The pou er of the court 
 in those cases is analogous to their power in civil cases; and they possess the same power 
 and control over the verdict in awarding new trials, (6 T. I!. 688. T. Jones, L63. 1 Le\ . '■>. 
 21. Lofft, 147. 4 Bla. Com. 355. Ridg. 51,) and the party is entitled to a writ of error, as 
 a matter of right. Laws of New York. vol. i., 184. " if the court are satisfied that the jury 
 have made long and unavailing efforts to agree; that they are so far exhausted as to l>e in- 
 capable of further discussion and deliberation, it then becomes a case of necessity, and re-
 
 674 OF CONSPIRACY. [BOOK V. 
 
 spiraey is to effect a legal purpose by the use of unlawful means : and 
 this, although such purposes be not effected. (d\ And it is laid down in 
 
 ((/ ) Rex v. Journeyman Tailors of Cambridge, 8 Mod. 11. Reg. v. Best, 2 Lord Raym. 
 11G7. 6 Mod. 185. 1 East, P. C. c. 11, s. 11, p. 462. But an action will not lie for a con- 
 spiracy unless it be put in execution, 9 Co. 57. W. Jones, 93. Saville v. Roberts, 1 Lord 
 Raym. 378. And see 8 Mod. 320, that conspiring to do a lawful act, for an unlawful end, 
 is indictable. See post, note (j). 
 
 quires an interference. The doctrine of compelling a jury to unanimity by the pains of 
 hunger and fatigue, so that the verdict, in fact, be founded not on temperate discussion, but 
 on strength of body, is a monstrous doctrine, that does not stand with conscience, but is 
 altogether repugnant to a sense of humanity and justice." (Emelyn's Preface to the State 
 Trials, pp. 6, 7.) 
 
 In Massachusetts this power of discharging a jury in capital cases, as well as in cases of 
 misdemeanor, is now constantly exercised without hesitation or doubt. The question was 
 first thoroughly examined in the Supreme Judicial Court, in the case of the Commonwealth 
 v. Bowden, 9 Mass. R. p. 494. This was an indictment for highway robbery. The case is 
 not fully reported. In addition to the authorities mentioned in the report as cited by the 
 counsel for the government, a note of many others was prepared ; but he was stopped by 
 Parsons, C. J., and told that the court was entirely satisfied. The opinion of the court is 
 not given at large; but it is remarked, as a part of that opinion " that it would not be con- 
 sistent with the genius of our government or laws, to use compulsory means to effect an 
 agreement among jurors." Since this decision, the Supreme Judicial Court of Massachusetts 
 have never doubted their power to discharge the jury without the consent of the prisoner, 
 when it is fully ascertained that they cannot agree upon a verdict, as well in capital cases 
 as cases of felony not capital, and misdemeanors. 
 
 But prior to the decision in Bowden's case, this power had not been exercised or admitted, 
 in capital cases. The absurdity of denying the court this power, had been severely felt in 
 the case of several persons tried for an atrocious murder in the county of Kennebec. The 
 jury, by the right of peremptory challenge, were almost wholly of the prisoner's own selec- 
 tion. Several of them, however, were impartial and conscientious. After an elaborate trial 
 of three days, it was found that the jury could not agree. They were kept together three 
 days ; during which time they were allowed moderate refreshment, but no spirituous liquor. 
 They came into court every day, and declared that there was no prospect or even possibility 
 of their ever agreeing upon a verdict ; but they were informed that the court had no power 
 to discharge them without the consent of the prisoners. On the third day they came into 
 court again, and three of them declared that they believed the prisoners to be guilty, and 
 that if they assented to a verdict of acquittal, it would be in violation of their judgments and 
 consciences, and of their oath, to give their verdict u according to the evidence "; but that 
 they should be compelled to assent to such a verdict, if the court had no power to relieve 
 them ; and upon being told by the court that they had no such power, they did assent to a 
 verdict of not guilty. But it was most manifest to all present, that this assent was given 
 from necessity and upon compulsion, and under the duress which they were then subjected 
 to ; and that it was given in direct opposition to their judgments, opinions and consciences, 
 and for no other reason than to obtain their liberty. After such a case as this, can it be 
 possible that an American judge or jurist will doubt the right of a court to discharge a jury, 
 whenever it shall manifestly appear either that they cannot agree upon a verdict, or that 
 other circumstances, in any case shall render it necessary or expedient. f 
 
 The second ground on which the motion in the case of the People v. Olcott was made, is 
 more immediately applicable to the subject of this chapter, viz, " that the conviction of two 
 persons is requisite to constitute the crime of conspiracy. And Aborn being acquitted, and 
 Roe dead, the defendant cannot legally be convicted." But the learned judge observes, that 
 the case of King v. Nicholls, (Str. 1227,) is directly in point, that one conspirator may be 
 convicted after the other is dead, before conviction. In the King v. Scott & Hames, (3 Bur- 
 row, 1262,) the same principle is recognized, — in the case of a riot, where six persons were 
 indicted. Two of them were acquitted, and two died before trial. Lord Mansfield held, 
 that the two convicted must have been guilty, together with one or the other of the persons 
 who died before conviction, and the conviction of the two survivors was held good. 
 
 Pennsylvania. — A combination is a conspiracy in law, whenever the act to be done has 
 a necessary tendency to prejudice the public, or oppress individuals, by unjustly subjecting 
 them to the power of the confederates, and giving effect to the purposes of the latter, 
 
 ■j- Another method is said to have been adopted (in one of the middle states) to compel a 
 juror to agree with his fellows, not quite so complaisant, but perhaps not loss painful to the 
 suffering juror. Eleven of the jury were agreed after a few minutes deliberation; one of 
 them only was obstinate. After using various methods to induce him to agree, the eleven 
 agreed that the best argument they could use would be cowskin, and by the application of 
 it, obtained, very readily, the assent of the obstinate juror to their verdict.
 
 CHAP. II.] OF CONSPIRACY. 674 
 
 a book of great authority, that all confederacies whatsoever wrongfully 
 to prejudice a third person are highly criminal at common law ; as 
 where divers persons confederate together by indirect means to impov- 
 erish a third person, or falsely and maliciously to charge a man with 
 being the reputed father of a bastard child, or to maintain one another 
 in any matter whether it be true or false.(e) The conspiracy or unlaw- 
 ful agreement, though nothing be done in prosecution of it, is the gist 
 of the offence. (/)f The nature of conspiracy, therefore, requires that 
 more than one person should be concerned in it. In many cases an 
 agreement to do a certain thing has been considered as the subject of 
 an indictment for a conspiracy, though the same act, if done separately 
 by each individual without any agreement amongst themselves, would 
 not have been illegal ; as in the case of journeymen conspiring to raise 
 their wages, each may insist on raising his wages if he can, but if sev- 
 eral meet for the same purpose it is illegal, and the parties may be in- 
 
 (e) 1 Hawk. P. C. c. 72, s. 2. It is not necessary in an indictment for conspiring to charge 
 a man with being the father of a bastard child, to state that the charge was false. Keo-. v. 
 Best, post, p. 683. 
 
 (/) Reg. v. Best, 2 Lord Ray. 1167. Rex v. Spragg, 2 Burr. 993. Rex v. Rispal,3 Burr, 1320. 
 
 whether of extortion or mischief. Every association therefore is criminal, whose object is 
 to raise or depress the price of labour beyond what it would bring if it were left without 
 artificial excitement. Commonwealth v. Carlisle, Hab. Cord, before Gibson, J., Feb. 1821. 
 
 1 Journal of Jurisprudence, 235. Referred to in Wharton's Dig. Conspiracy, 4, 5. 
 
 In the case of Collins and others, in error, v. The Commonwealth, 3 Serg. & R. 220, it was 
 decided that " an indictment charging a conspiracy to defraud by means of false pretences 
 and false writings, in the form and similitude of bank-notes, — and stating the overt act to 
 consist in altering a note purporting to be a promissory note, and to have been signed. 
 &c, is sufficient. And also that an overt act, charged to be done by one conspirator, in 
 pursuance of the conspiracy, is to be considered as the act of all. And further, that it is not 
 necessary in such indictment to charge the actual defrauding of any person : passing with 
 intent to defraud, is sufficient. And such conspiracy is punishable under the acts of April. 
 5, 1790, and April 4, 1807. But few authorities are cited by the judges, who gave then- 
 opinions in this case; but the reader will find them collected in the case of the Common- 
 wealth v. Judd & al., 2 Mass. Rep. 329. 
 
 A conspirator may be convicted in the place where the overt act is done in pursuance of 
 the conspiracy. And one who procures a misdemeanor to be committed, is guilty in the 
 place where it is committed by his procuree. The Commonwealth v. Gillespie & al., 7 Serg. 
 & R. 469. It makes no difference where the defendant resided; if he conspired with his 
 agent to sell New York lottery tickets in Pennsylvania, and the agent effected the act, the 
 object of the unlawful conspiracy, he is answerable criminally to the laws of Pennsylvania. 
 In this offence there is no accessory. It must be recollected the conspiracy is a mat in- <>! 
 inference, deducible from the acts of the parties accused, done in pursuance of an apparent 
 criminal purpose in common between them, and which are rarely confined to one piece : 
 and if the parties are linked in one community of design, and of interest, there can be no 
 good reason why both may not be tried, where one distinct overt act is committed. For lie 
 who procures another to commit a misdemeanor is guilty of the fact, in w hatever place it is 
 committed by the procuree. Per Duncan, J., in delivering the opinion of the couri in tin 
 case last quoted. 
 
 Virginia. — The words probable cause, are not necessary in an indictment tor a conspiracy, 
 nor in the ancient action or writ of conspiracy, (Rastall's Entries, 123, I :'«:. i'. N. 15. 114 
 and 116,) nor are they necessary in an information. 1 Str. 193. The I'oullicen'a case, 8 
 Co. 56, was an action on the case for a combination, confederacy and agreement, falselj 
 and maliciously to charge the plaintifT with a robbery, and to procure him to be indicted, 
 There is no notice of this averment in that case : yet the plaintiff, upon good consideration, 
 had judgment. Other cases are cited to the same point, Per 'fucker, J., in Kirtly r. he, 1 . 
 
 2 Munf. Rep. 10. 
 
 (United States. — By St. 1825, c. 276, \ 23, a wilful and corrupt conspiracy to east away, 
 burn, or otherwise destroy any ship or vessel, with intent to injure any underwriter thereon, 
 or on goods on board thereof, or any lender of money on such vessel, on bottomrj or res- 
 pondentia, is made felony, and the offender punishable by line not exceeding ten thou and 
 dollars, and by imprisonment ami confinement to hard labour not exceeding ten years. | 
 
 f {4 Halsted, 293, State v. Rickey & al. 5 Harris & Johns. 317, State v. Buchannan & al. 
 4 Wend. 229, People v. Mather, Ace.} 
 
 Vol. ii. — 44
 
 *675 OF CONSPIRACY. [BOOK V. 
 
 dieted for a conspiracy. (#) It has been *said that perhaps few things 
 are left so doubtful in the criminal law, as the point at which a combi- 
 nation of several persons, in a common object, becomes illegal. (A) It 
 appears, however, to have been holden that if such persons illegally 
 concur in doing an act they may be guilty of conspiracy, though they 
 were not previously acquainted with each other. (r) It has been laid 
 down by a very learned judge that conspiracy is " a crime which con- 
 sists either in a combination and agreement by persons to do some ille- 
 gal act, or a combination and agreement to effect a legal purpose by 
 illegal means. "{j)% 
 Conspira- Amongst the most flagrant instances of conspiracies against the public 
 against the justice of the kingdom, maybe mentioned a case in which the defendants 
 public jus- were charged with a conspiracy, in causing a man to be executed for a 
 k'n^cf m° e r °bbery which they knew he was innocent of, with intent to get into 
 by agreeing their possession the reward offered by the act of parliament. (7c) And it 
 t° make would have been equally a conspiracy, though the defendants had failed 
 ges and ac- in their infamous design and the man had been acquitted. Indeed one 
 cusations. f the more ancient descriptions of conspiracy is a " a consultation and 
 
 {g) By Grose, J., in Res v. Mawbey and others, 6 T. R. 636. And see Rex v. The Jour- 
 neymen Tailors of Cambridge, 8 Mod. 11. If one man alone be guilty of an offence, 'which, 
 if practised by two, would be the subject of an indictment for a conspiracy, he is civilly 
 liable in an action for reparation of damages at the suit of the person injured. By Buller, 
 J., in Pasley v. Freeman, 3 T. R. 58. (A) 3 Chit. Crim. L. 1139. 
 
 (i) By Lord Mansfield in the case of the prisoners in the King's Bench, Hil. T. 26, Geo. 3. 
 1 Hawk. P. C. c. 72, s. 2, in the notes. See post, p. 699. 
 
 (J) Per Alderson, B., Reg. v. Vincent, 9 C. & P. 91, and in Rex ». Seward, 1 A. & E. 713, 
 Lord Denman, C. J., said, " An indictment for conspiracy ought to show either that it was 
 an unlawful purpose, or to effect a lawful purpose by unlawful means ; but in Reg. v. Peck," 
 
 9 A. & E. 686, the very learned chief justice, upon this dictum being cited, said, " I do not 
 think the antithesis very correct." In Rex v. Jones, b 4 B. & Ad. 345. 1 N. & M. 78, how- 
 ever, several learned judges gave a similar definition of the crime of conspiracy. And see 
 ante, note (d). C. S. G. 
 
 (k) Rex v. Macdaniel and others, 1 Leach, 45. And see Fost. 139. See also ante, vol. 1, 
 p. 494. It should seem that the only objection to this being treated as a conspiracy is that 
 which might arise from its being considered as a crime of the highest degree, (t. e. murder,) 
 in which the misdemeanor would be merged. 
 
 % [State v. Cawood <J- al., 2 Stewart, 360. A conspiracy to commit a misdemeanor is not 
 merged in the commission of it. State v. Murray, 15 Maine, 100. A conspiracy to commit a 
 felony when executed, is merged in the felony ; but a conspiracy to commit a misdemeanor 
 is not merged in the misdemeanor. The People v. Richards, 1 Manning, 216. The offence of 
 conspiracy to impede an officer in the discharge of his official duty will not merge in the 
 offence of impeding the officer. The State v. Noyes, 25 Vermont, 415. 
 
 A mere agreement between two or more to do an unlawful act, without any act done in 
 furtherance of the common design, is not ordinarily an indictable offence. Torrey v. Field, 
 
 10 Vermont, 353. An indictment may be sustained whenever there is a conspiracy for an 
 unlawful purpose, or to effect a lawful purpose by unlawful means. State v. Rowley, 12 
 Conn. 101. 
 
 A. (the wife of B.) and C. were indicted with others for a conspiracy to commit adultery; 
 held, that the indictment would not lie, as by the crime of adultery the combination was 
 merged in the greater offence, and that generally when the concert is a constitutional part of 
 the act to be done, a party convicted of the major, cannot be indicted for the minor offence. 
 Shannon v. The Commonwealth, 14 Penna. State Rep. 226. 
 
 A conspiracy is a confederacy to do an unlawful act, or a lawful act by unlawful means, 
 whether to the prejudice of an individual or the public, and it is not necessary that its object 
 should be the commission of a crime. The State v. Burnham. 15 New Hampshire, 394. 
 
 It is not necessarily a punishable crime to defraud one of his money, goods or estate ; nor 
 to cheat and defraud one of the same, nor wrongfully and wickedly to obtain his money and 
 other property, designedly and with intent to defraud. Therefore an indictment charging 
 a conspiracy with such intents, and specifying no criminal means designed to be used to 
 effect such intents is insufficient. The State v. Roberts, 34 Maine, 320. 
 
 A conspiracy to cheat and defraud is indictable. Rhoads v. The Commonwealth, 15 Penna. 
 State Rep. 272.] 
 
 a Eng. Com. Law Reps, xxxvi. 240. * lb. xxiv. 70.
 
 CHAP. II.] OF CONSPIRACY. 675 
 
 agreement between two or more to appeal, or indict an innocent per- 
 son falsely and maliciously of felony, whom, accordingly, they cause to 
 be indicted or appealed; and afterwards the party is lawfully acquitted 
 by the verdict of twelve men."(/f) But of this description it is observed, 
 that the lawful acquittal of the party grieved does not appear to be re- 
 quired in order to make the offenders guilty of conspiracy, (m) The 
 description of conspirators in the old statute, 83 Edw. 1, st. 2, (some- 
 times cited as 21 Edw. 1,) is "that conspirators be they that do confeder- 
 ate or bind themselves by oath, covenant, or other alliance, that every of 
 them shall aid and bear the other falsely and maliciously to indict, or 
 cause to indict, or falsely to move and maintain pleas ; and also such as 
 cause children within age to appeal men of felony, whereby they are 
 imprisoned and sore grieved ; and such as retain men in the country 
 with liveries or fees for to maintain their malicious enterprises ; and this 
 extendeth as well to the takers as to the givers, and to stewards and 
 bailiffs of great lords, who by their seigniority, office, or power, under- 
 take to bear or maintain quarrels, pleas, or debates, that concern other 
 parties than such as touch the estate of their lords or themselves." From 
 which definition of conspirators* it is said that it seems clearly to follow *676 
 that not only those who actually cause an innocent man to be indicted, 
 and also to be tried upon the indictment, whereupon he is lawfully ac- 
 quitted, are properly conspirators, but that those also are guilty of this 
 offence, who barely conspire to indict a man falsely and maliciously, 
 whether they do any act in prosecution of such conspiracy or not ; for 
 the words of the statute seem expressly to include all such confederacies 
 under the notion of conspiracy, whether there be any prosecution or 
 not.(?i) But it is also said that since it does not appear to have been 
 solemnly resolved that persons offending by a false and malicious accu- 
 sation against another, are indictable upon this statute, it seems to be 
 more safe and advisable to ground an indictment for such offence upon 
 the common law than upon the statute. (o) 
 
 A conspiracy of this kind appears, therefore, to consist in the unlaw- The false 
 ful agreement to injure a person by a false charge; though it be in 00*^^,^ 
 way prosecuted. And whether the conspiracy be to charge a temporal prosecuted, 
 or ecclesiastical offence on an innocent person, it is the same thing.(^)) 
 
 A conspiracy to indict a person for the purpose of extorting money 
 from him is a misdemeanor, whether the charge be or be not false, (y) 
 
 It seems not to be any justification of a confederacy to carry on a The con- 
 false and malicious prosecution, that the indictment or appeal, which ^J^,*^ 
 was preferred, or intended to be preferred in pursuance of it, was insuf- charges, 
 ficient, or that the court wherein the prosecution was carried on or de-jj'jjj 1 '' c 
 signed to be carried on, had no jurisdiction of tl i« - cause, <u- that the criminal, 
 matter of the indictment did import no matter of scandal, so that the 'j^''^, 1 ^ 
 party grieved was, in truth, in no danger of losing either his life, liberty, i„ gfl [„. 
 
 (I) 3 Inst. 643. 4 Bla. Com. 13G. 
 
 (m) 1 Hawk, P. C. c. 72, s. 2. In the case of Rex v. Spragg, 2 Burr. 998, Serj. Davy said, 
 " There is a distinction between a writ of conspiraej and an indictment for conspiracy. In 
 an action the damage is the gill of the action; and therefore the wril and declaration must 
 charge 'that he was indicted and ustained damage;' bul this is not nece arj in an indict- 
 ment; which is for an offence against the public. And this distinction explains Lord Coke's 
 meaning in 3 Inst. 143." 
 
 (n) 1 Hawk. P. C. c. 72, s. 2. (o) Ibid. 
 
 (p) Reg. Best and another, 2 Lord Raym. 1167. 1 Salk. 174. 
 
 (g) Rex v. Hollingberry," 4 & C. 329. G D. & R. 345. 
 
 * Eng. Com. Law Reps. x. 34G.
 
 (576 OF CONSPIRACY. [BOOK V. 
 
 tended to or reputation. For notwithstanding the injury intended to the party 
 
 atrainst whom such a confederacy is formed may perhaps be inconsidera- 
 tnteil were 6 . . i , . \ 
 
 lefective. ble, yet the association to pervert the law, in order to procure it, seems 
 
 to be a crime of a very high nature, and justly to deserve the resent- 
 ment of the law.(r) Therefore on an indictment for wickedly and un- 
 lawfully conspiring to accuse another of taking hair out of a bag, with- 
 out alleging it to be an unlawful and felonious taking, it was said by Lord 
 Mansfield that the gist of the offence was the unlawful conspiracy to do 
 an injury to another by a false charge, and that whether the conspiracy 
 be to charge a man with criminal acts, or such only as may affect his 
 reputation, it is sufficient. (s) 
 Such eon- Neither is it any plea for one who is prosecuted for such an unlawful 
 federacy confederacy, that nothing more was intended by him but only to give 
 qually cri- his testimony in a legal course of justice against the party, to whose 
 nnnal, prejudice such confederacy is supposed to have been formed; for not- 
 partiesmay withstanding it may be said that it would be a great discouragement to 
 say that legal proceedings to make persons liable to a criminal prosecution for 
 ded^only barely intending to give their evidence, and it being a prejudging of a cause 
 to give tes- to try the truth of the testimony ^intended to be given in it before the 
 1 a\ ny m * cause itself is determined, yet the law would rather venture this mis- 
 eourse of chief than suffer so flagrant a villany to go unpunished. However, if 
 J 11 ^'^' there be ony probability that the principal cause will ever be tried, it 
 seems proper to apply to the court to stay the trial of the confederacy 
 until the merits of the principal cause be determined. (t\ 
 But the It is observed that it appears not only from the words of the statute, 
 
 ^""niusTbe DU ^ a ^ so fr° m the plain reason of the thing, that no confederacy what- 
 false and soever to maintain a suit can come within the words of the 33 Edw. 1, 
 malicious, g^ 2 unless it be both false and malicious. (u) And several persons 
 
 andpersons 7 V / r 
 
 may con- may lawiully meet together and consult to prosecute a guilty person, or 
 suit to pro- one against whom there is probable cause of suspicion ; but not to pro- 
 guilty per- secute one that is innocent, right or wrong.(t;) And associations to pro- 
 son, secute felons, and even to put the laws in force against political offenders, 
 
 are lawful. (w) 
 Mavrbey's In the following case it was holden that a certificate by justices of the 
 piracy to' P eace tna t an indicted highway is in repair, is a legal instrument, recog- 
 perrert the nized by the courts of law, and admissible in evidence after conviction, 
 
 course of wnen th e cour t are about to impose a fine : and that, consequently, it 
 justice, by . . * . „ . . , ^ , . 
 
 producing was illegal to conspire to pervert the course of justice by producing a 
 
 a false cer- f a ] se certificate in evidence to influence the judgment of the court. The 
 
 highway indictment stated that a highway was indicted as being out of repair, 
 
 being in re- and a plea of not guilty, but that it was intended to apply to withdraw 
 
 the plea and plead guilty; that two justices of the county, and two 
 
 other persons conspired to pervert the course of justice and impose on 
 
 the court by producing a false certificate from the two defendants, who 
 
 were justices, that the road was in repair, and that they did so. There 
 
 was a verdict against the two justices, and a rule was obtained to arrest 
 
 Argument * ne judgment. Upon showing cause against this rule the counsel for 
 
 (r) 1 Hawk, P. C. c. 72, s. 3. 
 
 (s) Rex v. Rispal, Bla. Rep. 368. 3 Burr. 1320. And see Pippet v. Hearn, 5 B. & A. 634, 
 ■mte, p. 636, note (o). 
 
 (t) 1 Hawk. P. C. c. 72, s. 4. («) 1 Hawk. P. C. c. 72, s. 7. 
 
 (v) Reg. v. Best and another, 1 Salk. 174. And see 1 Hawk. P. C. c. 72, s. 7. 
 
 (w) Rex v. Murray, 1 Chit. Burn's Just. 817. Math. Dig. 90. Abbott, C. J., Guildhall, 
 1823.
 
 CHAP. II.] OF CONSPIRACY. G7' 
 
 the prosecution went at large into a discussion of the doctrine and nature of theconn- 
 of conspiracies. He said that it follows from the very nature of the offence * el for the 
 of conspiracy that there is no charge of any specific crime, but it con- tion. 
 sists wholly of the unlawful combination ; and this will appear fully by 
 adverting to the several sorts of conspiracy to be found in the books. 1. 
 Where the subject-matter is neither malum prohibitum, nor malum in 
 se, as referred to the individual ; but the criminality in law arises wholly 
 from the conspiracy. Such as an agreement to maintain each other, 
 right or wrong ;(x) or a combination amongst labourers or mechanics to 
 raise their wages. (y) So where several conspired to hiss at the Bir- 
 mingham Theatre, Lord Mansfield held it indictable, although each 
 might have done so separately. (z) So a combination between officers in 
 the service of the East India Company, to resign their commissions, 
 was held an illegal act; and consequently a resignation tendered under 
 those circumstances was held not to be a determination of the service. (a) 
 2. Where the subject-matter is not malum prohibitum, as referred to 
 the individual, though malum in se : but the criminality in law arises 
 from the conspiracy,* such as a malicious combination against a trader *678 
 to ruin him in his trade. (&) So the taking up dead bodies, even though 
 for the purposes of science in dissecting them, is now held an indictable 
 offence per se:(c\ yet formerly it was not so considered, but even then 
 it was held that an indictment lay for conspiracy to do so.(e?) A false 
 indictment is no crime as referred to the individual, (e) but a conspiracy 
 for that purpose subjects the offenders to the villanous judgment. (/) 
 The private slander of another by an individual is not indictable ; but 
 conspiring to charge another with slanderous matter is so,(^) though no 
 legal charge be actually preferred. (A) And in this latter case it was held 
 that the quarter sessions had jurisdiction over conspirators. It is the 
 same with private immorality, which is only indictable when coupled 
 with a conspiracy. (?') So two or more joining to do legal acts with a 
 corrupt intent may be indicted. (Jc) And private deceits, coupled with a 
 conspiracy, are indictable on that account. (I) 3. The third head of con- 
 spiracy is where the subject-matter is malum prohibitum, as referred 
 to the individual, and the criminality in law is thereby aggravated if 
 executed. Of this nature is the bare attempt to subvert religion, (in) or 
 public justice; and the latter will apply to both descriptions of counts 
 in the indictment. Such also is the endeavour to dissuade witnesses 
 from giving evidence,(n) or the preparation of witnesses,(o) or the tam- 
 pering with jurors.(p) Such are public frauds in trade,(ry) or public 
 cheats,(r) or deceit or collusion in the king's courts, or any consent there- 
 to) 9 Co. 56. (v) 8 Mod. 10. 
 (z) Anon. B. R. 18 or 19 Geo. 3. (a) 4 Burr. 2472. 
 
 (b) 1 Stra. 144. 1 Lev. 124. Rex v. Eccles and others, B. R. 24 Geo. 3, post p. G87. 
 
 (c) Rex v. Lynn, 2 T. R. 733. 
 
 (d) Rex v. Young, cited in 2 T. R. 733. This was an indictment for a conspiracy to pre- 
 vent the burial of a corpse. And see a precedent for such a conspiracy, 2 Chit. Orim. L. 36 
 
 (e) 1 Ed. 3, stat. 2, c. 11. 2 Bla. Rep. 1328, 9. 
 
 (/) Ibid. See as to the judgment, post, p. 704. (//) 1 Lev. 62. 1 Vent. 304. 
 
 (h) 1 Salk. 174. 1 Stra. 193. 3 Burr. 1320. 
 
 (i) 1 Salk. 382, 552. 3 Burr. 1434, 1878. 2 Lord Raym. 1031. 4 St. Tr. 515. 
 
 (k) Rex v. Robinson and others, 1 Leach, 37. 8 Mod. 321. I Willi. 41. 3 Burr. L439 
 
 (Z) <; Mod. 42, 301. 2 Burr. 1127. 2 Stra. 866. (»" Fitzg. ,;,; - 
 
 ■ (n) 1 Hawk P. C. c. 21, s. 15. 3 Stra. 904. And see Rex v. Steventon and others, 2 
 East R. 362. (o) Hob. 271. 3 Inst, Km;. 2 Show. 1. 
 
 (p) 1 Saund. 300. 1 Lord Raym. 148. 1 Burr. 510. Rex r. Jollffe, I T. R. 285. Co. Lit 
 157 {,,) 1 Sess. Cas. 217. Comb. 16. 1 Sid. 409. L Vent. 18. 
 
 (r) 5 St. Tr. 486. 1 Latch. 202. 1 Roll. Rep. 2. 2 Lord Raym. nor.. 1 Barnard, 330.
 
 GTS OF CONSPIRACY. [BOOK V. 
 
 to.(s) 4. "Where there is a bare conspiracy unexecuted,^) or where the 
 conspiracy by the execution merges in a higher offence. (it) And he then 
 argued that the offence charged against the defendants fell within the 
 Opinions of principles of the above cases. In giving his judgment in this case, 
 the judge?. Ashurst, J., said, "The principal question is, whether a conspiracy to 
 pervert the course of justice by producing in evidence a false certificate 
 be or be not a crime? It seems to me that a greater offence can hardly 
 be stated than that of obstructing or perverting the course of justice, 
 on which the lives and properties of all the subjects depend." And 
 Grose, J., said, "It is laid down in some of the cases that an attempt 
 to persuade another not to give evidence in a court of justice is indict- 
 *(*79 able; then it cannot be doubted but that an attempt to mislead *the 
 court by misrepresentation is equally criminal. The course of justice 
 is perverted if the certificate of the justices be false. If they agree to 
 certify that a road is in repair for the purpose of perverting the course 
 of justice, it is a crime and indictable; and it is not necessary that they 
 should know at the time of such agreement that the road is out of re- 
 pair; it is sufficient that they did not know that the fact which they 
 certified to be true was true." And Lawrence, J., said, "The question 
 is, whether a conspiracy to do an act from which the public may receive 
 any damage be or be not indictable? At first I thought this a very 
 doubtful case, because it struck me that this was an act by which the 
 public would not suffer, as the court at the assizes were not bound to 
 receive the certificate of the defendant, it not being on oath. But on 
 examination it appears that the practice of receiving the certificates of 
 magistrates respecting the state of roads, has existed as far as the memory 
 of living persons extends, and the books carry it still farther back. I 
 have not been able to discover how or when the practice of receiving 
 these certificates arose : but a practice that has been adopted in the courts 
 at least as long back as the reign of Charles the First, goes a great way 
 to show what the law is upon the subject. And this is not the only in- 
 stance of receiving certificates in evidence ; certificates of bishops with 
 respect to marriage are received ; the customs of London are certified 
 by the recorder, so formerly were certificates received from the captain 
 of Calais; and in Cro. Eliz. 502, 8, this court said that they would give 
 credit to the certificates of the judges in Wales respecting the practice 
 of their court, and that the custom of the court is a law in that court." (a;) 
 Conspiracy Where the plaintiff had been arrested for 38?. at the suit of Cohen, 
 it j- a bail ail( j Blake had become bail for her, and some proceedings had been 
 to obtain taken against him as bail, and Blake, Cohen, Swaysland, and Solomon 
 security went to the plaintiff's lodgings, and Blake said he must have his mo- 
 defendant. ney or *^e Plaintiff must go to gaol, and stated that Swaysland and 
 Solomon were officers, which was not the fact; and the plaintiff being 
 frightened, delivered to Blake a watch and other articles, and Sways- 
 land and Solomon wrote two papers, which were signed by the plain- 
 tiff and Blake, and which papers stated that the articles were deposited 
 with Blake as a security, and that he should be at liberty to sell them 
 within forty-two days unless he was paid in the mean time; Lord 
 
 (s) 3 Edw. 1, c. 29. 2 Inst. 212, 217. 
 
 (t) 1 Lev. 62. 125. 1 Vent. 304. 3 Burr. 1320. 1 Lord Raym. 379. 1 Salk. 174. 1 
 Stra. 193. L. Raym. 417. (w) 1 Lord Raym. 711. 
 
 (x) Rex v. Mawbey and others, 6 T. R. 619 to 938.
 
 rumours. 
 
 CHAP. II.] OF CONSPIRACY. 679 
 
 Lyndhurst, C. B.,held that, as the defendants all acted in concert, they 
 were guilty of a conspiracy, for which they might all have been indicted^) 
 
 In a recent case it was held to be an indictable offence to conspire De Beren- 
 on a particular day by false rumours to raise the prices of the public g er>s c ^ e " 
 government funds with intent to injure the subjects who should pur- to°?a?sethe 
 chase on that day, and that the indictment was well enough without 13ric ® of thc 
 specifying the particular persons who purchased as the persons intended funds' on a 
 to be injured, and that the public government funds of this kingdom particular 
 might mean either British or Irish funds, which since the Union°were ?,™K? Se 
 each a part of the United Kingdom. After the argument upon the 
 motion in arrest of judgment, Lord Ellenborough, C. J., said, " I am 
 perfectly clear that there is *not any ground for the motion in arrest *680 
 of judgment. A public mischief is stated as the object of this con- 
 spiracy ; the conspiracy is by false rumours to raise the price of the 
 public funds and securities, and the crime lies in the act of conspiracy 
 and combination to effect that purpose, and would have been complete, 
 although it had not been pursued to its consequences, or the parties had 
 not been able to carry it into effect. The purpose itself is mischievous, 
 it strikes at the price of a vendible commodity in the market, and if it 
 gives a fictitious price by means of false rumours it is a fraud levelled 
 against all the public, for it is against all such as may possibly have 
 anything to do with the funds on that particular day." Bayley, J., said 
 "It is not necessary to constitute this an offence that it should be pre- 
 judicial to the public in its aggregate capacity, or to all the kings sub- 
 jects, but it is enough if it be prejudicial to a class of the subjects. 
 Here then is a conspiracy to effect an illegal end, and not only so, but 
 to effect it by illegal means, because to raise the funds by false rumours 
 is by illegal means. And the end is illegal, fcr it is to create a tem- 
 porary rise in the funds without any foundation, the necessary conse- 
 quence of which must be to prejudice all those who become purchasers 
 during the period of that fluctuation." And by Dampier, J., "I own I 
 cannot raise a doubt, but that this is a complete crime of conspiracy 
 according to any definition of it. The means used are wrong, they were 
 false rumours ; the object is wrong, it was to give a false value to a com- 
 modity in the public market, which was injurious to those who had to 
 purchase, "(z) 
 
 In the argument upon the foregoing case an authority was cited Conspiracy 
 where the defendants being acquitted of all but conspiring to impoverish {^farmers 
 the farmers of the excise, it was objected that there was no offence : of the ex- 
 but the court held it well, because the information showed that the cise - 
 excise was parcel of the revenue of the crown, and so the impoverish- 
 ment of the farmers of excise tended to prejudice the revenue of the 
 crown, (a) 
 
 It seems that parties may be guilty of a conspiracy to raise the price £° *■*[" 
 of oil by making fictitious sales. (/>) oil. 
 
 A conspiracy to obtain money by procuring from the lords of the Pollman'a 
 treasury the appointment of a person to an office in the customs is a caso - Con - 
 
 (y) Bloomfield v. Blake, a 6 C. & P. 75. 
 
 (z) Rex v. De Berenger and others, 3 M. & S. G7. (a) Rex v. Starling. 1 Sid. 174. 
 
 (6) Rex v. Hilbers," 2 Chitty Rep. 1G3. This was amotion for a criminal information for 
 
 'a conspiracy to raise the price of oil by making fictitious sales, and the coarl held thai it. 
 
 must appear that two combined together, as it was no offence for an individual separately 
 
 to endeavour. 
 
 * Eng. Com. Law Reps. xxv. 289. b lb. xviii. 285.
 
 GSO 
 
 OF CONSPIRACY. 
 
 [BOOK V. 
 
 '081 
 
 Conspira- 
 cy to com- 
 mit riots. 
 
 spiracy to misdemeanor at common law. The counsel for the defendant proposed 
 
 obtain mo- e tQat tne i u <ji c tnient was bad on the face of it, as it was not a 
 
 nov by pro- e ' 
 
 curing from misdemeanor at common law to sell or to purchase an office like that of 
 the lords of a coas t, wa iter, and that however reprehensible such a practice might be, 
 ry the ap- it could only be made an indictable offence by act of parliament. But 
 pointment L ort l Ellenborough, C. J., said, " If that be a question it must be de- 
 to an office bated on a motion in arrest of judgment, or on a writ of error. But 
 in the cus- after reading the case of Rex v. Vaughan,(c) it will be very difficult to 
 argue that the offence charged in the indictment is not a misdemeanor." 
 And Grose, J., *in passing sentence, likewise observed that there could 
 be no doubt that the indictment was sufficient, and that the offence 
 charged was clearly a misdemeanor at common law.(c7) 
 
 Precedents are to be met with in the books of indictments for con- 
 spiracies to commit riots. (e) And in one case it was said by a learned 
 judge, with respect to premeditated and systematic tumults at a theatre, 
 that " the audience have certainly a right to express by applause or 
 hisses the sensations which naturally present themselves at the moment ; 
 and nobody has ever hindered, or would ever question the exercise of 
 that right. But if any body of men were to go to the theatre with the 
 settled intention of hissing an actor or even of damning a piece, there 
 can be no doubt that such a deliberate and preconcerted scheme would 
 amount to a conspiracy, and that the persons concerned in it might be 
 brought to punishment.'^/) 
 
 Where some of the counts of an indictment charged the defendant 
 with conspiring to cause a great number of persons to meet together for 
 the purpose of exciting discontent and disaffection in the minds of the 
 subjects of the queen, and for the purpose of exciting the said subjects 
 to hatred and contempt of the government and constitution, and it ap- 
 peared that a large number of persons had assembled at meetings, at 
 which violent speeches had been made respecting the government and 
 constitution and the people's charter. Alderson, B., told the jury, "The 
 purpose which the defendants had in view, as stated by the prosecutors, 
 was to excite disaffection and discontent, but the defendants say that 
 their purpose was by reasonable argument and proper petitions to ob- 
 tain the five points mentioned by their learned counsel. If that were 
 so, I think it is by no means illegal to petition on those points. The 
 duration of parliaments and the extent of the elective franchise have 
 undergone more than one change by the authority of parliament itself; 
 and with respect to the voting by ballot, persons whose opinions are 
 entitled to the highest respect are found to differ. There can also be no 
 illegality in petitioning that members of parliament should be paid for 
 their services by their constituents ; indeed they were so paid in ancient 
 times, and they were not required to have a property qualification till 
 the reign of Queen Anne, and are now not required to have it in order 
 to represent any part of Scotland or the English Universities." And 
 the learned baron directed the jury to say whether they were satisfied 
 that the defendants conspired to excite disaffection, and if they were, to 
 find them guilty of conspiracy. (g\ 
 
 Conspira- 
 cies to ex- 
 cite discon 
 tent and 
 disaffec- 
 tion. 
 
 (e) 4 Burr. 5494. Ante, vol. 1, p. 147. (d) Rex. v. Pollman and others, 2 Campb. 229 
 (e) 2 Chit, Crim. L. 506, note (a). See Reg. v. Vincent, a 9 C. & P. 91. 
 \f) By Mansfield, C. J., in Clifford v. Brandon, 2 Campb. 369. 
 (ff) Reg. v. Vincent, b 9 C. & P. 91. 
 
 a Eng. Com. Law Reps, xsxviii. 48. b lb.
 
 CHAP. II.] OP CONSPIRACY. 681 
 
 Several cases have occurred in which the conspiring and contriving, Conspiring 
 by sinister means, to marry a pauper of one parish to a settled inhabit- to a "^ 
 ant of another, in order to bring a charge upon it, have been con- ordirto "" 
 sidered as indictable offences.(fr) It is observed respecting a conspiracy char s e a 
 of this kind, that, considering the offence as a prostitution of the sacred Pa " S ' 
 rites of marriage, for corrupt and mercenary purposes, and that, by art- 
 ful and sinister means, persons *are seduced into a connection for life *682 
 without any inclination of their own, and contrary to that freedom of 
 choice which is peculiarly required in forming so close an union, and 
 on which the happiness of them both so entirely depends; and this for 
 the sake of some gain or saving to others who bring about such mar- 
 riage; in this light it seems a fit ground for criminal cognizance, not 
 only as being a great oppression upon the parties themselves more im- 
 mediately interested, but as an offence against society in general, being 
 an abuse of that institution by which society is best continued and legal 
 descent preserved, and a perversion of the purposes for which it was 
 ordained. (€j But where, upon an indictment against parish officers for 
 a conspiracy of this kind, it appeared that a man of one parish having 
 gotten a woman with child belonging to another, the defendants had 
 agreed with the man (who was of the age of 29,) with the approbation 
 of his father, to give him two guineas if he would marry the woman, 
 and that he afterwards married her on such condition, and received the 
 money from the defendants immediately after the marriage ; and it was 
 also sworn both by the man and the woman, that they were willing to 
 marry at the time; Buller, J., directed an acquittal, notwithstanding 
 the proof of the money having been given to procure such consent; and 
 this after the putative father had been taken up under a magistrate's 
 warrant, and was in custody of the overseers. And that learned judge 
 held it necessary, in support of such an indictment, to show that the 
 defendants had made use of some violence, threat, or contrivance, or 
 used some sinister means to procure the marriage without the voluntary 
 consent or inclination of the parties themselves ; and that the act of 
 marriage being in itself lawful, a conspiracy to procure it could only 
 amount to a crime by the practice of some undue means. (/) 
 
 In a case where the indictment stated the marriage to have been pro- 
 cured by threats and menaces against the peace, &c, it was holden to 
 be sufficient, without averring in terms, that the marriage was against 
 the will or consent of the parties, though that must be proved. (&) 
 
 And it has since been held that an indictment does not lie for con- Rex v. 
 spiracy merely to exonerate one parish from the charge of a pauper 
 and to throw it on another, not for conspiring to cause a male pauper 
 to marry a female pauper for that purpose, it not being stated that the 
 conspiracy was to effect such marriage by force, threats, or fraud, or 
 that it was so effected in pursuance of the conspiracy. [I) An allegation 
 in such an indictment that a poor unmarried woman in a parish was 
 
 (h) Rex. v. Tarrant, 4 Burr. 2106. Rex. v. Herbert and others, I East, P. C. c. 11, s. 11, 
 p. 461. Rex. v. Compton and others, Cald. 246. 8 Mod. 320. 
 
 (i) 1 East, P. C. c. 11, s. 11, p. 461. 
 
 (/) Rex v. Fowler and others, cor. Buller, J., Taunton Spr. Ass. 1 788. 1 East, P. C. c. 
 11, s. 11, p. 461. And the learned judge said that this point, had been so ruled several times 
 by several judges. 
 
 (k) Rex v. Parkhouse and Tremlet, cor. Buller, J., Exeter, Sum. Ass. 1792. 1 East, P. C. 
 c. 11, s. 11, p. 462. (0 Rex v. Seward," 1 A. & E. 706. 3 N. & M. 557. 
 
 a Eng. Com. Law. Reps, xxviii. 185.
 
 682 OF CONSPIRACY. [BOOK V. 
 
 with child, is not equivalent to an allegation that she was chargeable to 
 such parish. (m) And it has been doubted whether an allegation that 
 the defendants conspired together for the purpose of exonerating, is 
 equivalent to an allegation that they conspired to exonerate. (?i) 
 *683 *Upou an indictment for conspiring together, and giving the husband 
 money to marry a poor helpless woman, who was an inhabitant of B., 
 in order to settle her in the parish of A., where the husband was set- 
 tled, judgment was arrested, because it was not averred that she was 
 last legally settled in B.(o) But it is observed, that it seems to be per- 
 fectly immaterial where the woman's settlement was, if it were not in 
 A., provided that fact distinctly appeared.(j?) It is further said, how- 
 ever, that it is usual to aver the settlements of the parties in their re- 
 spective parishes, and also that the woman was chargeable to her own 
 parish at the time, though this latter has never been adjudged to be 
 necessary, nor seems to be required according to the general rules 
 which govern the offence of conspiracy, fa) It should seem that in such 
 cases both the purpose and the means used are clearly unlawful. 
 
 Conspiring to let a pauper land to the intent that he may gain a set- 
 tlement is illegal. (r) 
 Conspiracy Conspiring to charge a man with being the father of a bastard < M d, 
 to charge w ^ n m j- en t to extort money from him, in indictable ; and wher. 
 
 a man with . •> ... . 
 
 being the object is stated to be to extort money, it is immaterial whether 
 father of a woman j s or { s no t pregnant.(s) And conspiring to make such a ch ., 
 child. though without any intent to extort money, is indictable ; and it 1. not 
 
 necessary to state in the indictment that the charge was false, or that 
 the child was likely to be chargeable. The court doubted upon the 
 objection that the charge was not stated to be false, but ultimately 
 they held the indictment to be sufficient, as the defendants were at least 
 charged with conspiring to accuse the prosecutor of fornication, and 
 although that was spiritual defamation, conspiring to do it was a tem- 
 poral offence. (A 
 Conspira- The frauds practised by swindlers may sometimes be indictable as 
 fraud° conspiracies. In a case which has been mentioned in a former part of 
 Hevey's this work,(a) where the prisoner had been acquitted upon a charge of 
 case. Con- f or gery, he was afterwards indicted with two of his associates for a con- 
 make a spiracy to defraud. The indictment charged that the defendants Hevey, 
 fraudulent Beatty, and M'Carty, fraudulently and unlawfully conspired that Beatty 
 of a bill of s h° u ld write his acceptance to a certain paper-writing, purporting to be 
 exchange, a bill of exchange, etc., (the tenor of which was set out) in order that 
 Hevey might, by such acceptance, and by the name M'Carty being 
 indorsed on the back thereof, negotiate the said paper-writing as a good 
 bill of exchange, truly drawn at Bath, by one Jer. Connel, for Smith and 
 Co., as partners in the business of bankers, under the style of Bath Bank, 
 as persons well known to them the said defendants, and thereby fraudu- 
 
 (m) Per Lord Denman, C. J., and Taunton, J., ibid. 
 
 (n) Per Williams, J., ibid., citing Rex v. Nield, 6 East, 416. But see Rex v. Rid 'way,* 
 5 B & Aid. 527, where it was held that in a conviction for attending a meeting for c rring 
 on a combination of journeymen for the purpose of obtaining an advance of w the 
 
 words " for the purpose of obtaining," were synonymous with the words "to obtai 
 39 & 40 Geo. 3, c. 106, s. 4, and Rex v. Nield doubted by Lord Tenterden, C. J. .., 
 
 (o) Rex v. Edwards and others, 8 Mod. 320. 
 
 (p) 1 East, P. C. c. 11, s. 11, p. 462. (q) Id. ibid. 
 
 (r) Per cur. 8 Mod. 820. 
 
 (s) Rex v. Armstrong, 1 Ventr. 304. 1 Lev. 62. Sid. 68. 
 
 (t) Reg. v. Best, 2 Lord Raym. 1167. (u) Ante, p. 326. 
 
 a Eng. Com. Law Reps. vii. 180.
 
 CHAP. II.] OF CONSPIRACY. 683 
 
 lently to obtain from the king's subjects goods and moneys; that Beatty, 
 in pursuance of such conspiracy and agreement, did fraudulently and 
 unlawfully write his acceptance to the said paper-writing to *the tenor *684 
 following, viz., "Accepted, 20 Nov. — 81, R. B.," well knowing the firm 
 of Smith and Co. to be fictitious ; that the defendants procured the in- 
 dorsement "B. M'Carty" to be written on the same, and that the said 
 Hevey, in pursuance of such fraudulent conspiracy, did utter the said 
 paper-writing to one S. Reed, as and for a good bill of exchange, truly 
 drawn, &c, and accepted by the said Beatty as a person able to pay the 
 said sum of 30?., in order to negotiate the same, and by means thereof 
 did fraudulently obtain a gold watch, value twelve guineas, and 71. 8s. 
 in money ; whereas, in truth, at the time of drawing, accepting, and 
 uttering the said bill, there were no such persons as Smith and Co. in 
 the business of bankers at Bath, and the said Beatty was not of suffi- 
 cient ability to pay the said 30Z., they, the defendants, well knowing the 
 same, &c, whereby they defrauded the said S. Reed of the said goods 
 and moneys. The fact so charged being fully proved, the defendants 
 were convicted. (f) 
 
 A conspiracy to raise money by means of a bill importing to be a 
 cr try bank bill, where there is no such bank, and none of the parties 
 >f ability to pay the bill, is indictable. (w) 
 
 l a case of later occurrence the defendants were convicted on an in- Robert's 
 aent which charged them with a conspiracy to cause themselves to ca f e - Con " 
 be. relieved persons of large property for the purpose of defrauding defraud 
 tract 3srnen.(x)f tradesmen. 
 
 Where in an action for slander it appeared that certain brokers were Conspiracy 
 in the habit of agreeing together to attend sales by auction, and that °f brokers 
 one- of them only should bid for any particular article, and that after sa i es Dy 
 the sale they should have a meeting, consisting of themselves only, at auction, 
 another place, to put up to sale among themselves, at a fair price, the 
 
 (v) Rex v. Hevey, Beatty, and M'Carty, 1782. 2 East, P. C. c. 19, s. 5, p. 858, note (a). 
 (w) Anonymous, 1782, MSS. Bayley, J., Rose, Cr. Evid. 368. Qusere, whether this be 
 not a note to the preceding case. 
 
 (x) Rex v. Roberts and others, 1808, cor. Ellenborough, C. J., 1 Cam. 399. 
 
 f [The obtaining goods on credit by an insolvent person, without disclosing his insol- 
 vency, and without having any reasonable expectation of being able to pay for such goods, 
 in and by means of the fair and ordinary course of his business, is not of itself such an 
 unlawful act as may be the subject of the conspiracy ; though it would be otherwise it 
 seems, in the case of a purchase made without any expectation of payment. 
 
 The obtaining possession of goods under the pretence of paying cash for them on deli- 
 very, the buyer knowing that he has no funds to pay with, and appropriating the goods to 
 his own use, in fraud of the seller, is such a fraud or cheat as may be the subject of a con- 
 spiracy. 
 
 In an indictment for a conspiracy to do an act which is a well known and recognised 
 offence at common law, the object of the conspiracy may be described by the general terms 
 by which it is familiarly known ; if the alleged purpose be the doing of an act which is 
 not unlawful in itself, but which is to be effected by the use of unlawful means, those means 
 must be particularly set forth ; if it be the doing of an act which is not an offence at com- 
 mon law, but only by statute, the purpose of the conspiracy must be set forth in such a 
 iiiaii r as to show that it is within the terms of the statute. The Commonwealth v.Uasi- 
 ma~ Pushing, 189. 
 
 e A. and B. were indicted for a conspiracy to defraud the creditors of B., and the 
 
 v tlieti was the deposit by B. with A. of a large sum of money, and the proof of this 
 
 **> s - ' , declaration after he had been arrested by the procurement of A. and other credi- 
 
 by ses 1 no receipt was proven and all the circumstances were against such a deposit ; it 
 
 (*' ' that the proof was wholly unsatisfactory to support the indictment, though thero 
 
 c< ! evidence that A. had aided B. to procure his discharge in insolvency. The State 
 
 :-; 4 Strobhart, 2CC]
 
 684 
 
 OF CONSPIRACY. 
 
 [BOOK V. 
 
 s;oods that each had bought at the auction, and that the difference between 
 
 the price, at which the goods were bought at the auction, and the fair 
 
 price at this private re-sale, should be shared among them ; Grurney, B., 
 
 was of opinion that, as owners of goods had a right to expect at an 
 
 auction that there would be an open competition from the public, if a 
 
 knot of men went to an auction upon an agreement among themselves 
 
 of the kind that had been described, they were guilty of an indictable 
 
 offence, and might be tried for a conspiracy. (_y) 
 
 Conspiracy Where an indictment alleged that a certain joint-stock company had 
 
 to fabricate |j een established, the capital of which was to consist of 2000 shares, and 
 
 addition to charged the defendants with conspiring to fabricate a great number of 
 
 the limited other shares in addition to the said 2000, and it appeared that the com- 
 
 whicrfa P an y na( ^ no ^ been legally established ; Abbott, C. J., was of opinion 
 
 joint stock that if, in point of fact, a combination to the effect stated in the indict- 
 
 company men ^ were made out, such conduct, in point of law, constituted an offence 
 
 punishable in a criminal way, notwithstanding the original imperfection 
 
 of the company's formation. (z) 
 
 *685 The selling unwholesome provisions is, as we have seen, an indict- 
 
 to barter 
 unwhole- 
 some wine 
 Mackarty 
 and For- 
 den- 
 bourgh's 
 case. 
 
 Conspiracy able *offence ; and the following case of bartering bad and unwholesome 
 wine appears to have been treated as a conspiracy. The indictment 
 charged that the defendants falsely and deceitfully intending to defraud 
 Thomas Chowne, of divers of his goods, &c, together deceitfully bar- 
 gained with him to barter, sell and exchange a certain quantity of pre- 
 tended wine, as good and true new Portugal wine of him the said 
 Fordenbourgh, for a certain quantity of hats of him the said Chowne ; 
 and that, upon such bartering, &c, the said Fordenbourgh pretended to 
 be a merchant of London, and to trade as such in Portugal wines, when, 
 in fact, he was no such merchant, nor traded as such in wines ; and the 
 said Mackarty, on such bartering, &c, pretended to be a broker of 
 London, when, in fact, he was not, and that the said Chowne, giving 
 credit to the said fictitious assumptions, personating and deceits, did 
 barter, sell, and exchange, to Fordenbourgh, and did deliver to Mackarty, 
 as the broker between the said Chowne and Fordenbourgh, for the use 
 of Fordenbourgh, a certain quantity of hats, of a certain value, for so 
 many hogsheads of the pretended new Portugal wine; and that Mackarty 
 and Fordenbourgh, on such bartering, &c, affirmed that it was true new 
 Lisbon wine of Portugal, and was the wine of Fordenbourgh, when, in 
 fact, it was not Portugal wine, nor was it drinkable or wholesome, nor 
 did it belong to Fordenbourgh, to the great deceit and damage of the 
 said Chowne, and against the peace, &c.(a) It is observed of this in- 
 dictment, which was for a cheat at common law, that though it did not 
 charge that the defendants conspired eo nomine, yet it charged that 
 they together, &c, did the acts imputed to them, which might be con- 
 sidered to be tantamount.(6) The case was considered as one of doubt 
 and difficulty, but it seems that judgment was ultimately given for the 
 crown, on the ground that the offence was conspiracy. (c) 
 Conspiracy We have seen that all conspiracies, wrongfully to prejudice a third 
 to solemn- p ersorjj are considered as highly criminal at common law.(f?) And 
 
 (y) Levi v. Levi, a 6 C. & P. 239. (z) Rex v. Mott, b 2 C. & P. 521. 
 
 (a) Reg. v. Mackarty and Fordenbourgh, 2 Lord Raym. 1179. 2 East, P. C. c. 18, s. 5, 
 p. 823. 
 
 (b) 2 East. P. C. c. 18, s. 5, p. 824. (c) 2 East. ibid. And see ante, p. 281. 
 (d) Ante, p. 674. 
 
 a Eng. Com. Law Reps. xxv. 377. b lb. xii. 254.
 
 CHAP. II.] OF CONSPIRACY. C85 
 
 where a woman living in the service of her master, conspired with i*e a mar- 
 another man that he should personate her master, and in that character nage ' 
 should solemnize a marriage with her, which was accordingly done, for 
 the purpose of afterwards raising a specious title to the property of the 
 master ; the gist of the indictment was for the conspiracy, and the con- 
 viction was founded on that ground. And it was considered in this 
 case that, though no actual injury was proved, yet it was the province 
 of the jury to collect, from all the circumstances of the case, whether 
 there was not an intention to do a future injury to the person whose 
 name was assumed. (e) 
 
 And a conviction has taken place on an indictment, which charged Conspiracy 
 that M. A. "Wrench was a person of ill-fame and bad character, and a to P roc . ure 
 
 i TTr -p, r-i 'a marriage 
 
 common prostitute, and that W. B. Serjeant was an infant within the with a mi- 
 age of 21 years, and that M. A. W. and P. D. and S. J., intending to Jj°^ a b 
 defraud the said W. B. S. of his property, conspired for the purpose tained by a 
 aforesaid to procure a marriage to be solemnized* between the said W. false oath - 
 B. S. and the said M. A. W., by means of a false oath to be taken by 
 the said M. A. W., and by divers false pretences, and without the con- 
 sent of the mother of the said W. B. S., his father being dead, and that 
 the said M. A. W. and P. D., and S. J., in pursuance of the said con- 
 spiracy, did prevail on the said W. B. S. to consent to marry the said 
 M. A. W., and by means of such persuasion, and by means of a false 
 oath taken by the said M. A. W., in order to obtain a license for the 
 solemnization of marriage between the said W. B. S. and the said M. 
 A. W., did cause the said W. B. S. to marry the said M. A. W., and a 
 marriage by such license was accordingly solemnized between them 
 without the leave of the mother of the said W. B. S., who then was 
 such infant as aforesaid. (f\ 
 
 The seduction of a young woman may be attended with such cir- Conspiracy 
 cumstances as to be indictable as a conspiracy. A case is reported where youn^wo* 
 Lord Grey and others were charged, by an information at common law, man. 
 with conspiring and intending the ruin of the Lady Henrietta Berkeley, 
 then a virgin unmarried, within the age of eighteen years, one of the 
 daughters of the Earl of Berkeley, (she being under the custody, &c, 
 of her father,) and soliciting her to desert her father, and to commit 
 whoredom and adultery with Lord Grey, who was the husband of an- 
 other daughter of the Earl of Berkeley, sister of the Lady Henrietta, 
 and to live and cohabit with him ; and further, the defendants were 
 charged, that in prosecution of such conspiracy, they took away the 
 Lady Henrietta at night from her father's house and custody, and 
 against his will, and caused her to live and cohabit in divers secret 
 places with Lord Grey, to the ruin of the lady, and to the evil example, 
 &c. The defendants were found guilty, though there was no proof of 
 any force, but, on the contrary, it appeared that the lady, who was her- 
 self examined as a witness, was desirous of leaving her father's house, 
 and concurred in all the measures taken for her departure and subse- 
 quent concealment. It was not shown that any artifice was used to pre- 
 vail on her to leave her fathei-'s house; but the case was put upon the 
 
 (<?) Rex v. Taylor and Robinson, 1 Leach, 37. 2 East, P. C. c. 20, s. 6, p. 1010. See 
 Wade v. Broughton, 3 Ves. & B. 172, that persons conspiring to procure the marriage of a 
 female for the sake other fortune may be indicted for a conspiracy. 
 
 (/) Rex v . Serjeant, a R. & M. N. P. R. 352. 
 
 Eng. Com. Law Reps. xxi. 453.
 
 686 OF CONSPIRACY. [BOOK V. 
 
 "•round that there was a solicitation and enticement of her to unlawful 
 lust by Lord Grey, who was the principal person concerned, the others 
 being his servants, or persons acting by his command, and under his 
 control. (#) 
 Conspiracy An indictment has been held to lie against several persons for con- 
 awav and spiring to carry away a young female under the age of twenty-one from 
 many a the custody of her parents and instructors, and afterwards to marry her 
 deT theT e to one °^ ^ ie on ° ea dei's contrary to the provisions of the 4 & 5 Ph. & 
 of twenty- M., c. 8, ss. 3 & 4, and also for conspiring to commit the capital felony 
 one, with- ^ un( j er the 3 Hen. 7, c. 2, s. 1) of taking away an heiress against her 
 consent of will, and afterwards marrying her to one of the defendants.f The 
 her pa- young lady, who was the heiress of a gentleman of large fortune, and 
 was only fifteen years of age, had been placed under the care of some 
 ladies at Liverpool, for the purpose of finishing her education, and was 
 *687 induced to leave their house by *means of a fictitious letter, fabricated 
 by the defendants, who conveyed her to Gretna Green, where she was 
 induced by means of false representations to go through the ceremony 
 of a Scotch marriage, and to consent to become the wife of one of the 
 defendants; and the defendants were convicted. (^) 
 Conspiracy A case is reported where several persons were convicted on an indict- 
 to iimpover- me nt wn ; cn charged them with conspiring to impoverish one H. B., a 
 
 ish a man » ..,.,. ° £ • i • 
 
 in his trade, tailor, and to prevent him, by indirect means, trom carrying on his 
 trade. (A This, however, appears to have been considered as a conspi- 
 racy in restraint of trade, and so far a conspiracy to do an unlawful act 
 affecting the public. (j)^ 
 But an in- An indictment will not lie for conspiring to commit a civil trespass 
 wfflnotlie u P on P ro P ert y> by agreeing to go, and by going into, a preserve for 
 for con- hares, the property of another, for the purpose of snaring them, though 
 spinng to j t ^ e a u e g ec i t De done in the ni<rht time, and that the defendants were 
 
 commit a , ~ «. i 
 
 civil tres- armed with offensive weapons, for the purpose or opposing resistance to 
 pass. ^ an y endeavours to apprehend or obstruct them. And Lord Ellenbo- 
 case. rough, C. J., in pronouncing the judgment of the court, said, "I should 
 
 be sorry that the cases in conspiracy against individuals, which have 
 gone far enough, should be pushed still farther. I should be sorry to 
 have it doubted whether persons agreeing to go and sport upon an- 
 other's ground, in other words, to commit a civil trespass, should be 
 thereby in peril of an indictment for an offence which would subject 
 them to infamous punishment."(&) It may be observed that it was not 
 
 (g) Rex v. Lord Grey and others, 3 St. Tri. 519. 1 East, P. C. c. 11, s. 10, p. 460. See 
 also Rex v. Sir Francis Blake Delaval and others, 3 Burr. 1434. 
 
 (h) Rex v. Wakefield, 2 Lew. 1. The marriage being in Scotland, an indictment for felo- 
 ny under the 3 Hen. 7, c. 2, s. 1, could not have been supported, and there was no evidence 
 to support an indictment under the 4 & 5 Ph. & M c. 8, s. 4. See vol. 1, p. 703, 711. An 
 indictment was preferred upon the 4 & 5 Ph. & M. c. 8, s. 3, but no judgment given upon it. 
 
 (0 Eccles's case, 1 Leach, 274. 
 
 (/) By Lord Ellenborough, C. J., in Rex v. Turner, 13 East, 228. 
 
 (k) Bex v. Turner, 13 East, 228, 531. But qu. as to that which is reported in this case, 
 (p. 230.) to have been said by Lord Ellenborough in the course of the argument, viz., that 
 " all the cases in conspiracy proceed upon the ground that the object of the combination is 
 
 f [A confederacy to assist a female infant to escape from her father's control, with a view 
 to marry her against his will, is indictable as for a conspiracy at the commoii law. Mifflin 
 v. The Commonwealth, 5 Watts & Serg. 461.] 
 
 % [An association, the object of which is to adopt measures that have a tendency to im- 
 poverish a person— that is to diminish his gains and profits, — is lawful or unlawful, as the 
 means by which that object is to be effected is lawful or unlawful. Commonwealth v. Hunt ) 
 4 Metcal'f, 111.1
 
 CHAP. II.] OF CONSPIRACY. 687 
 
 stated in the indictment that the weapons were dangerous, nor that the 
 defendants conspired to go, &c, with strong hand. 
 
 In a later case the defendants were charged with conspiring to cheat Nor will 
 and defraud General Maclean, hy selling him an unsound horse. It merit lie*" 
 appeared that one of the defendants, named Pywell, had advertised the for a con- 
 sale of horses, undertaking to warrant their soundness; and that, upon s P irflcy *? 
 an application by General Maclean, at Pywell's stables, another of the defraud a 
 defandants stated to him that he had lived with the owner of a horse mai ? by 
 which he then showed to the General; that he knew the horse to be a n unsound 
 perfectly sound, and, as the agent of Pywell, would warrant him to be horse, 
 sound. General Maclean purchased the horse, taking a receipt, in which c ^ e 1 s 
 the horse was mentioned as warranted sound, and to be returned if not 
 approved of within a week. It was discovered very soon after the sale 
 that the animal was nearly worthless. Lord Ellenborough, C. J., was 
 of opinion that the case did not assume the shape of a conspiracy, and 
 that the evidence did not warrant any proceeding beyond that of an 
 *action on the warranty, for the breach of a civil contract. And if *683 
 this were to be considered as an indictable offence, then, instead of the 
 actions which had been brought on warranties, the defendants ought to 
 have been indicted as cheats, and that no indictment, in a case like this, 
 could be maintained without evidence of concert between the parties 
 to effectuate a fraud. (Af 
 
 An indictment cannot be supported for conspiracy to deprive a man An indict- 
 of the office of secretary to an illegal unincorporated trading company. ment . Tr J, u 
 Lord Ellenborough, C. J., said that the society being certainly illegal, conspiring 
 to deprive an individual of an office in it could not be treated as an in- to deprive 
 jury: and that when the prosecutor was secretary to the society instead tne ffi ce f 
 of having an interest which the law would protect, he was guilty of a secretary 
 
 / \ to an ille- 
 
 Cnme -( W ) . . . gal trading 
 
 The several statutes relating to the combinations of workmen were company. 
 
 repealed by the 5 Geo. 4, c. 95. But the 6 Geo. 4, c. 129, recites that Coinbina- 
 
 the provisions of the former act had not been found effectual, and that amongst 
 
 such combinations were injurious to trade and commerce, dangerous tojoumey- 
 
 the tranquillity of the country, and especially prejudicial to the interests j?^?' ?' 
 
 of all who are concerned in them, and that it was expedient to make 129, repeals 
 
 further provision, as well for the security of personal freedom of indi- forme racts, 
 
 vidual workmen in the disposal of their skill and labour, as for the 
 
 security of the property and persons of masters and employers, and for 
 
 that purpose to repeal the said act, and to enact other provisions and 
 
 to be effected by some falsity." The facts stated in this case would constitute an offence 
 within the 9 Geo. 4, c. 69, ante, vol. 1, p. 471, and it is conceived that a conspiracy to com- 
 mit an offence within that statute would be indictable, although not carried into effect. See 
 Rex v. Wakefield, supra. See also the observations on this case in Deac. Game L. 175. C. 
 S. G. 
 
 (I) Rex v. Powell and others, 8 1 Stark. R. 402. 
 
 (m) Rex v. Stratton and others, cor. Lord Ellenborough, C. J., 1 Camp. 549, in the notes. 
 See Reg. v. Hunt, b 8 C. & P. 642, ante, p. 177. 
 
 f {In The State v. Rickey & al., 2 llaltsed, 293, it was held that an indictment will not 
 lie for a conspiracy to commit a civil injury, which is not of itself an indictable offence; e. 
 (/., a conspiracy to obtain money from a bank by drawing checks on it when the drawers 
 have no funds there. 
 
 In The State v. Buchanan and al., 5 Harris & Johnson, 317, it wag held that a conspiracy 
 to defraud a third person, accomplished by means of an act which would not in law amount 
 to an indictable cheat, if effected by an individual, is indictable. See 9 Cowen, 578. And 
 N. York Revised Statutes, Vol. II. 691, 692.} 
 
 a Eng. Com. Law Reps. ii. 444. b lb. xxxiv. 563.
 
 688 OP CONSPIRACY. [book v. 
 
 regulations in lieu thereof, and then repeals the said act of 5 Geo. 4, 
 c. 95. It then provides that various statutes therein mentioned, and 
 all enactments in any other statutes or acts which immediately before 
 the passing of the said recited act, of the 5 Geo. 4, were in force 
 throughout or in any part of the United Kingdom of Great Britain and 
 Ireland relative to combinations to obtain an advance of wages, or to 
 lessen or alter the hours or duration of the time of working, or to de- 
 crease the quantity of work, or to regulate or control the modes of 
 carrying on any manufacture, trade, or business, or the management 
 thereof or relative to combinations to lower the rate of wages, or to 
 increase or alter the hours of duration of the time of working, or to 
 increase the quantity of work, or to regulate or control the mode of 
 carrying on any manufacture, trade or business, or the management 
 thereof, or relative to fixing the amount of the wages of labour or re- 
 lative to the obliging workmen not hired to enter into work, and every 
 enactment enforcing or extending the application of any of the said 
 several enactments so repealed shall, notwithstanding the repeal of the 
 said recited act of the 5 Geo. 4, still be and remain repealed, except 
 only so far as the same or any of them may have repealed any former 
 act or enactment. 
 6 Geo. 4, c. The third section enacts, "that from and after the passing of this act, 
 Compel- ^ an y P erson shall, by violence to the person or property, or by threats 
 ling jour- or intimidation, or by molesting or in any way obstructing another, 
 neymento f orce or endeavour to force anv iournevnian, manufacturer, workman, 
 
 leave em- ' . . <• i 
 
 ployment, or other person hired or employed in any manufacture, trade, or busi- 
 
 *689 ness, to depart from his hiring, employment, or work, or to *return his 
 
 or to re- wor k before the same shall be finished, or prevent or endeavour to pre- 
 
 turn work . _ i i 
 
 unfinished, vent, any journeyman, manutacturer, workman, or other person not 
 preventing being hired or employed, from hiring himself to, or from accepting work 
 themfelves or employment from any person or persons ; or if any person shall use 
 compelling or employ violence to the person or property of another, or threats or 
 Ions to* 6 i nt i m idation, or shall molest or in any way obstruct another for the pur- 
 elubs, &c, pose of forcing or inducing such person to belong to any club or associa- 
 or to pay t j on or to con tribute to any common fund, or to pay any fine or penalty, 
 alter' the or on account of his not belonging to any particular club or association, 
 mode of or no j having contributed or having refused to contribute to any coni- 
 on bus- mon fund, or to pay any fine or penalty, or on account of his not having 
 iness, pun- complied or of his refusing to comply with any rules, orders, resolutions 
 imprison^ or regulations made to obtain an advance or to reduce the rate of wages, 
 ment, &c. or to lessen or alter the hours of working, or to decrease or alter the 
 quantity of work, or to regulate the mode of carrying on any manufac- 
 ture, trade or business, or the management thereof; or if any person 
 shall, by violence to the person or property of another, or by threats or 
 intimidation, or by molesting or in any way obstructing another, force 
 or endeavour to force any manufacturer or person carrying on any trade 
 or business to make any alteration in his mode of regulating, managing, 
 conducting, or carrying on such manufacture, trade, or business, or to 
 limit the number of his apprentices, or the number or description of his 
 journeymen, workmen, or servants: every person so offending or aiding, 
 abetting or assisting therein, being convicted thereof in manner herein- 
 after mentioned, shall be imprisoned only, or shall and may be impri- 
 soned and kept to hard labour for any term not exceeding three calendar 
 months."
 
 CnAP. II.] OP CONSPIRACY. 689 
 
 By sec. 4, " this act shall not extend to subject any person to pun- Sec. 4. 
 ishment who shall meet together for the sole purpose of consulting meetin° f°' 
 upon and determining the rate of wages or prices, which the persons for settling 
 present at such meeting, or any of them, shall require or demand for rates of 
 his or their work, or the hours or time for which he or they shall work received, 
 in any manufacture, trade, or business, or who shall enter into any or hours oi 
 agreement, verbal or written, among themselves, for the purpose of fixing employed"" 
 the rate of wages or prices which the parties entering into such agree- bv the P er - 
 ment, or any of them, shall require or demand for his or their work, or j°° s meet 
 the hours or time for which he or they will work, in any manufacture, 
 trade, or business ; and that persons so meeting for the purposes afore- 
 said, or entering into such agreement as aforesaid, shall not be liable to 
 any prosecution or penalty for so doing, any law or statute to the con- 
 trary notwithstanding." 
 
 By sec. 5, "this act shall not extend to subject any person to pun- Sec. 5. 
 ishment who shall meet together for the sole purpose of consulting upon Pro ^. lso for 
 and determining the rate of wages or prices which the persons present for rates of 
 at such meeting, or any of them, shall pay to his or their journeymen, wa S es > * c -: 
 workmen, or servants, for their work, or the hours or time of working by masters 
 in any manufacture, trade, or business, or who shall enter into any t0 journey- 
 agreement, verbal or written, among themselves for the purpose of men ' c ' 
 fixing the rate of wages or prices, which the parties entering into such 
 agreement or any of them, shall pay to his or their journeymen, work- 
 men, or servants, for their work, or the hours or time of working in any 
 manufacture, trade, or business ; *and that persons so meeting for the *690 
 purposes aforesaid, or entering into any such agreement as aforesaid, 
 shall not be liable to any prosecution or penalty for so doing, any law 
 or statute to the contrary notwithstanding." 
 
 This act further provides that offenders shall be compelled to give 
 evidence, and shall be indemnified ; and it also contains provisions for 
 the summoning offenders before justices of the peace, and for issuing 
 warrants for their apprehension when they do not appear upon sum- 
 mons; regulates the proceeding before the justices, gives a form of 
 conviction and an appeal to the quarter sessions. (n\ 
 
 The 6 Geo. 4, c. 129, was not intended to empower workmen to meet The 6 Geo. 
 and combine for the purpose of dictating to their masters whom they d ' gg ?' 
 should employ, and consequently a combination of workmen for such a empower 
 purpose is indictable as a conspiracy. An indictment charged that the 7 orkuien 
 
 i o i -11 ti . ^ T /-. to combine 
 
 defendant with others did conspire to prevent the workmen of J. Gar- and dictate 
 forth from continuing to work in a colliery, and it appeared that seven to tne "' 
 colliers had been summoned by Garforth before a magistrate for refusing whom they 
 to work, and this was done at their own request, as they were afraid to sIia11 em - 
 work except under the appearance of being compelled to do so. The !> ° y ' 
 body of the other men met and agreed upon a letter addressed to Gar- 
 forth, to the effect that all the workmen in Garforth's employ would 
 strike in fourteen days, unless the seven men were discharged from the 
 colliery. Patteson, J., held that the statute never meant to empower 
 workmen to meet and combine for the purpose of dictating to the mas- 
 ter whom he should employ, and that this compulsion was clearly 
 illegal. (o) 
 
 In his charge to the grand jury at the Stafford Special Commission, 
 
 (n) Sec. 6, et sej. And see Burn's Justice, tit. Servants. 
 (o) Rex v. Rykerdyke, 1 M. & Rob. 179. 
 
 Vol. ii. — 45
 
 t-590 OF CONSPIRACY [BOOK V. 
 
 October, 1843, Tindal, C. J., observed, " The first observation that 
 arises is that if the workmen of the several collieries and manufactories, 
 who complained that the wages which they received were inadequate to 
 the value of their services, had assembled themselves peaceably together 
 for the purpose of consulting upon and determining the rate of wages or 
 prices which the persons present at the meeting should require for their 
 work, and had entered into an agreement amongst themselves for the 
 purpose of fixing such rate, they would have done no more than the 
 law allowed. A combination for that purpose and to that extent, (if 
 indeed it is to be called by that name) is no more than is recognized as 
 legal by the 6 Geo. 4, c. 129, by which statute also exactly the same 
 right of combination, to the same extent, and no further, is given to the 
 masters when met together, if they are of opinion the rate of wages is 
 too high. In the case supposed, — that is a dispute between the masters 
 and the workmen as to the proper amount of wages to be given — it was 
 probably thought by the legislature that if the workmen on the one part 
 refused to work, or the masters on the other refused to employ, as such 
 a state of things could not continue long, it might fairly be expected that 
 the party must ultimately give way, whose pretensions were not founded 
 in reason and justice, — the masters if they offered too little, the work- 
 men if they demanded too much. But unfortunately for themselves and 
 others, those who were discontented did not rest here. Not satisfied 
 with the exercise of their own right to withhold their own labour, if they 
 were discontented with the price they received for it, they assumed the 
 power of interfering with the right which others possessed, of exercising 
 their discretion upon the same point ; and accordingly you will have 
 numerous cases laid before you in which large bodies of dissatisfied 
 workmen interfered by personal violence and by threats and intimida- 
 tion, to compel others, who were perfectly willing to continue to labour 
 in their callings at the rate of wages then paid, to desist from their 
 work, to leave the mine or manufactory, and against their own will to 
 add themselves to the numbers of the discontented party ; than which 
 a more glaring act of tyranny and despotism by one set of men over 
 their fellows cannot be conceived. If there is one right, which beyond 
 all others, the labourer ought to be able to call his own, it is the right 
 of the exertion of his own personal strength and skill, in the full enjoy- 
 ment of his own free will, altogether unshackled by the control or dic- 
 tates of his fellow workmen ; yet, strange to say, this very right, which 
 the discontented workman claims for himself to the fullest extent, he 
 does, by a blind perversity and unaccountable selfishness entirely refuse 
 to his fellows, who differ in opinion from himself. It is unnecessary 
 to say, that a course of proceeding so entirely unreasonable in itself, so 
 injurious to society, so detrimental to the interests of trade, and so 
 oppressive against the rights of the poor man, must be a gross and flag- 
 rant violation of the law, and must be put down, when the guilt is esta- 
 blished, by a proper measure of punishment/Voo)"}" 
 jf the pro- "yy e have seen that from the nature of conspiracy it is an offence 
 anT pro- which cannot be charged as having been committed by one person 
 
 (oo) 1 C. & Mars. 8 662, 663, note. 
 
 f [A combination for protection and to obtain such wages as workmen choose to demand 
 is not illegal. It is otherwise if the object is to injure another or if anything is done to his 
 injurv : as by seducing or intimidating his workmen. Reg. v. Roivlands. 17 Q. B. 671, 686, n. 
 Eng.'C. L. Ixxix. 670.] 
 
 » Eng. Com. Law Reps. xl. 358.
 
 CHAP. II.] AMONG WORKMEN. 690 
 
 only.(^>) And upon this ground it has been holden that no prosecution ceedings in 
 
 for a conspiracy can be maintained against a husband and wife only ^ore than' 
 
 because they are esteemed but one person in law, and presumed to have one person 
 
 but one will.fo) So if all the defendants who are prosecuted for a con- must !^ e 
 w. . r conspired, 
 
 spiracy be acquitted but one, and the conspiracy be not stated as having 
 
 been had with persons unknown, the acquittal of the rest is the acquittal 
 
 of that one also.(r) But if two persons be indicted for a conspiracy, 
 
 and one only of them appear and take his trial, he may be found guilty, 
 
 though the other defendant be absent, and has not pleaded :(s) and this, 
 
 although the other conspirator named in the indictment was dead before 
 
 the indictment was preferred. (<) 
 
 Where to an indictment against four for a conspiracy, two pleaded Judgment 
 not guilty ; one pleaded in abatement, to which plea there was a de- V asSQd on 
 murrer; and the fourth never appeared; and before the argument of ant before 
 the demurrer the record was taken down for trial, and one of the de- the trial of 
 fendants who had pleaded not guilty acquitted, and the other found f en dant. 
 guilty of conspiracy with him who had pleaded in abatement ; and 
 the demurrer was afterwards argued, and judgment of respondeat ouster 
 given, whereupon a plea of not guilty was pleaded; the *Court of *691 
 King's Bench held that judgment might be pronounced upon the one 
 that had been found guilty before the trial of the other defendant; for 
 although it was possible that such defendant might be acquitted, yet the 
 court were not warranted in coming to the conclusion that that would 
 be so against the verdict that had been found, or in forbearing to pro- 
 nounce judgment upon the defendant who had been found guilty. («) 
 
 With respect to the statement of the charge in the indictment it may be Statements 
 observed, that though it is usual to state the conspiracy, and then show dlctment 
 that in pursuance of it certain overt acts were done, it is sufficient to state 
 the conspiring alone. M And it is not necessary to state the means by 
 which the object was to be effected, as the conspiracy may be complete 
 before the means to be used are taken into consideration. Therefore 
 an indictment for conspiring by divers false pretences and subtle means 
 and devices to get money from J. S., and cheat him thereof, is not ob- 
 jectionable on the ground that it is too general, or does not sufficiently 
 show the corpus delicti, or specify any overt act.(w) But this is only 
 the case, where the conspiracy is to commit some offence, and if it be 
 not to commit some offence, the indictment must show some illegal act 
 done in pursuance of the conspiracy, or it is sufficient. (x)f 
 
 (p) Ante, p. 674. (?) 1 Hawk. P. C. c. 62, s. 8. 
 
 (r) Id. ibid. 3 Chit. Crira. L. 1141. (s) Rex v. Kinnersley and Moore, 1 Str. 193. 
 
 (t) Rex v. Nicbolls and Bygrave, 2 Str. 1227. But see the case as better reported in 13 
 East, 412, in the notes. 
 
 («) Rex v. Cooke, a 5 B. & C. 538. 7 D. & R. 673. Littledale, J., said, " If the other 
 defendant hereafter be acquitted, perhaps this judgment may be reversed." Sed gucere, for 
 such acquittal would not necessarily show that the verdict of guilty on the former trial was 
 wrong, as witnesses might be dead or absent who were examined on the former trial, or the 
 one defendant might have been convicted on his own confession, which would not be admis- 
 sible against the other defendant. C. S. G. 
 
 (v) Reg. v. Best, 2 Ld. Raym. 1167. 1 Salk. 174. 3 Chit. Grim. L. 1143. 
 
 (w) Rex v. Gill, 2 B. & A. 204. See note (e), post, p. 622. 
 
 \x) Rex v. Seward, b 1 A. & E. 706. 
 
 f {9 Cowen, 578, Lambert v. People, where it was decided in the Court of Errors (against 
 the decision of the Supreme Court,) by a casting vote, that if an indictment does not set 
 forth the object of the conspiracy specifically, and show that such object is a legal crime, 
 it should particularly set forth the means intended to be used, and show that those means 
 are criminal.} 
 
 a Eng Com. Law Reps. xii. 307. b lb. xxviii. 185.
 
 091 OF CONSPIRACY. [BOOK V. 
 
 It need not be averred in the indictment that the prosecutor was inno- 
 cent of the crime imputed to him by the conspirators.^) And in a case 
 of a conspiracy to charge a person with being the father of a bastard 
 child, it was holden not to be necessary to aver that the prosecutor was 
 not the father, especially when the words of the indictment were " did 
 falsely conspire falsely to charge, &c. ;" the principle being that inno- 
 cence must be intended till the contrary appears. (2) And it should seem 
 that even without those words the indictment would be sufficient, and 
 need not state that the charge was false, nor that the child was likely to 
 become chargeable, &c.(a) And an indictment for a conspiracy was 
 holden to be good, although it was not alleged in the charge itself 
 that the defendants conspired falsely to indict the prosecutor, and 
 although it did not appear of what particular crime or offence they con- 
 spired to indict him, but only in general that the defendants did wicked- 
 ly and maliciously conspire to indict and prosecute the prosecutor for a 
 crime or offence liable to be capitally punished by the laws of this king- 
 dom. (ft) The conspiracy is the gist of the charge alleged in such an 
 indictment. 
 *692 In a case where the defendants were indicted for conspiring to pervert 
 
 Not neces- the course of justice by producing in evidence a false certificate of a 
 j^'^^ 6 justice of peace, it was holden not to be necessary *to set forth in the 
 fendant indictment that the defendants knew at the time of the conspiracy that 
 knew, &e. ^ e corj tents of the certificate were false, on the ground that if persons 
 with intent to obstruct the course of justice, conspire to state a fact at 
 all events as true, which they do not know to be true, it is criminal ; 
 and that the defendants were bound to have known that the fact was 
 true which they agreed to certify as such.(c) 
 Not neces- Where the act is in itself illegal, it is not necessary to state the means 
 means by te ^3 7 wll i cn tne conspiracy was effected. Thus, where the indictment 
 which the charged that the defendants conspired together by indirect means to 
 
 conspiracy p reven t one jj j} from exercising the trade of a tailor, and it was con- 
 was enect- , . , . 
 
 ed where tended that it should have stated the fact on which the conspiracy was 
 
 the tuin g. founded, the means used for the purpose; Lord Mansfield, C. J., said, 
 
 illegal. "The conspiracy is stated and its object; it is not necessary that any 
 
 Secuo, means should be stated :" and Buller, J., said, " If there be any objec- 
 
 ical. ^ on ^ * s * na ^ * ne indictment states too much; it would have been good 
 
 certainly if it had not added < by indirect means,' and that will not make 
 
 it bad."(<7) And in a late case, where the indictment charged that the 
 
 defendants conspired, by divers false pretences and subtle means and 
 
 devices, to obtain from A. divers large sums of money, and to cheat 
 
 and defraud him thereof; it was holden that the gist of the offence 
 
 being the conspiracy, it was quite sufficient to state the fact and 
 
 its object, and not necessary to set out the specific pretences. Bayley, 
 
 J., said, that when parties had once agreed to cheat a particular person 
 
 of his moneys, although they might not then have fixed on any means 
 
 (>/) Rex v. Kinnersley and Moore, 1 Str. 193. 
 
 (2) Reg. v. Best and another, 1 Salk. 174. 2 Lord Raym. 1167. 
 
 (a) 2 Lord Raym. 1167. 
 
 (b) Rex v. Spragg and another, 2 Burr. 993. 
 
 (V) Rex v. Mawbey and others, 6 T. R. 610. Ante, p. 677, Lawrence, J., said that it was 
 not unlike the case of perjury where a man swears to a particular fact without knowing at 
 the time whether the fact be true or false ; which is as much perjury as if he knew the fact 
 to be false, and equally indictable. Ante, p. 597. 
 
 (d) Eccles's case in note (d) to Rex v. Turner, 13 East, 230. Ante, p. 687.
 
 CHAP. II.] OP INDICTMENT. G92 
 
 for that purpose, the offence of conspiracy was complete. (e) But where 
 the act only becomes illegal from the means used to effect it, the ille- 
 gality of it should be explained by proper statements, as in the cases 
 which have been cited of conspiracies to marry paupers. (/)f 
 
 Where an indictment charged the defendants with conspiring " to de- Conspiracy 
 fraud J. W. of divers goods, and in pursuance of that conspiracy de- j° w/of* 
 frauding him of divers goods, to wit, of the value of 100/. ;" the Court divers 
 of King's Bench refused to quash the indictment on motion; for goods * 
 although if this had been an indictment for stealing the prosecutor's 
 goods, it would have been bad for uncertainty, yet in this case the gist 
 of the indictment was the conspiracy, and it might be that there was so 
 much uncertainty in the transaction, which was the subject of the in- 
 dictment, that the allegation could not be made with greater certainty, 
 as the conspiracy might be to defraud the prosecutor, not of any par- 
 ticular goods, but of any goods the prisoner could get hold of. (a) 
 
 *And so where an indictment stated that the defendants conspired by *693 
 false rumours to raise the funds, with "intention thereby to injure and Indictment 
 aggrieve all the subjects of the king who should on the 21st of February f n '°£f ^ r " 
 purchase or buy" any shares in the funds; and it was objected that the jure all who 
 persons to be affected by the conspiracy were not particularized, as they s ^°" ld pur " 
 ought to be, it was held that the indictment was good, for it followed shares in 
 from the nature of the charge that the persons could not be named, be- tue fun ds. 
 cause this was a charge of a conspiracy on a previous day to raise tbe 
 funds on a future day, so that it was uncertain who would be the pur- 
 chasers ; and the offence being to raise the funds on a future day, its 
 object was to injure all those who should become purchasers on that 
 day, and not some individuals in particular. (A.) 
 
 So where the first count of an indictment stated that the defendants Indictment 
 conspired to defraud " divers of her majesty's liege subjects, who should [°™° ns !? ir " 
 bargain with the defendants for the sale of goods and merchandise of tain goods 
 the said subjects" of great value, without making payment or other re- wit j^. out 
 muneration or satisfaction for the same, with intent to acquire to the payment 
 said defendants divers sums of money and other profit and emolument; for them, 
 it was held that it was no valid objection that the count did not state 
 what particular creditors the defendants meant to defraud ; for if the 
 
 (e) Rex v. Gill, 2 B. & A. 204. In this case the statements were of the most general kind 
 that have ever been held sufficient. See Reg. v. Parker, 11 Law J., N. S. 102, Mag. C. 
 Williams, J., there said, " It has been always thought that in Rex. v. Gill the extreme of 
 laxity was allowed." (/) Ante, p. 684. See also Rex v. Seward, ante, p. 685, note (I). 
 
 (g) Anonymous, 1 Chitty Rep. 698. a In Reg. v. Parker, 11 Law J., N. S. Mag. C. 102, it 
 was said that the objection in this case was that the particular goods were not specified, 
 and probably only so much as showed that was stated iu the report. 
 
 (A) Rex v. De Berenger, 3 M. & S. 68, ante, p. 679. 
 
 f [An indictment for a conspiracy to compass or promote a purpose, not in itself criminal 
 or unlawful, by the use of criminal or unlawful means, must set forth the means intended 
 to be used. Commonwealth v. Hunt, 4 Metcalf, 111. 
 
 An indictment for a conspiracy to compass or promote a criminal or unlawful purpose, 
 must set forth that purpose fully and clearly. Ibid. 
 
 An indictment for a conspiracy, if the act to be done is in itself illegal, need not set forth 
 the means by which it was to be accomplished. The State v. Bartlctt, 30 Maine, 132. 
 
 An indictment for a conspiracy should set out the means intended to be used ; and where 
 these means are insufficient to have the effect of defrauding a person of his property, the 
 alleged object of the conspiracy, the offence is incomplete. Marsh v. The People, 7 Barb. 
 Sup. Ct. 391. An indictment for a conspiracy to cheat and defraud, which does not set 
 forth the means intended to be used, is insufficient; and is not aided by averments of overt 
 acts done in pursuance of the conspiracy. Commonwealth v. Shedd, 7 Gushing, 514.] 
 a Eng. Com. Law Reps, xviii. 205.
 
 693 OF CONSPIRACY. [BOOK V. 
 
 offence went no further than the conspiracy, it could not be known 
 what particular persons fell into the snare. But it was further held 
 that the count was defective in not stating with sufficient particularity 
 what the defendants conspired to do. For obtaining goods without 
 making payment was not necessarily a fraud, as the words of the indict- 
 ment might apply to the obtaining goods to sell on commission. (i\ 
 Indictment ^he second count in the same indictment alleged that the defendants 
 racy to ob- being " indebted to divers persons in large sums of money/' conspired 
 tain goods ^ defraud the said creditors of them, the defendants, of payment of 
 uleut deed, their said debts, and in pursuance of the said conspiracy unlawfully did 
 execute a certain false and fraudulent deed of bargain and sale and 
 assignment of certain fixtures stock in trade and good will, of great 
 value, belonging to the said defendants, from two of themselves to the 
 third, for divers false and fraudulent considerations, with intent thereby 
 to procure to the said defendants divers sums of money and other emol- 
 uments ; and it was held that this count was bad for the same reasons 
 as the first ; it did not state in what respect the deed was false and 
 fraudulent, and therefore the court had only the prosecutor's general 
 opinion upon this point, not the facts upon which it was founded. (A 
 Indictment Where an indictment alleged that an issue in an action between H. 
 for conspir- f$ an d Q-, Q. was tried, and that the plaintiff recovered a verdict for 
 fraud of the the sum of 111., and that the judge certified that execution ought to 
 fruits of a i ssue forthwith, and that the defendant " did conspire falsely and fraudu- 
 "eneral. lently to cheat and defraud the said H. B. of the fruits and advantages 
 of the said verdict and certificate ; Lord Denman, C. J., held that the 
 indictment was bad, as the allegation was too general, and did not con- 
 *694 vey any specific idea which the *inind could lay hold of, to judge 
 whether any unlawful act had been done or attempted. The terms 
 used did not import in what manner the plaintiff was to be deprived of 
 the fruits and advantages of his verdict, and it was not even alleged that 
 the verdict would lead to any fruits and advantages. (7c) 
 
 So where a count of an indictment alleged that the defendants con- 
 spired "by divers false, artful, and subtle stratagems and contrivances, 
 as much as in them lay, to injure, oppress, aggrieve, and impoverish E. 
 "W. and T. W., and to cheat and defraud them of their moneys;" the 
 Court of King's Bench arrested the judgment on the ground that this 
 count was in too general a form to be supported. (A So where a count 
 charged that the defendants did " conspire to cheat and defraud the just 
 and lawful creditors" of F., Lord Tenterden, C. J., thought that the 
 count was much too general, as it did not state what was intended to 
 be done, or the persons to be defrauded, but refused to stop the case on 
 this point, as if an acquittal were directed, and the count should turn 
 out to be good, the defendants might plead autrefois acquit.(ni\ 
 An indict- An indictment for a conspiracy to obtain goods, which states that the 
 ment for g 00 ds were obtained, must state whose property the goods were, or it 
 
 coDspirinff ° it * «f • o * 
 
 to obtain will be insufficient. The first count alleged that the defendants intend- 
 goods and ' m „ ^ cheat and defraud divers of the liege subjects of the queen of 
 them n held their goods, &c, unlawfully conspired by divers false pretences to obtain 
 
 (t) Reg. v. Peck," 9 A. & E. 686. 1 P. & D. 508. 
 
 (?) Reg. v. Peck, supra. 
 
 (k) Rex v. Richardson, 1 M. & Rob. 402. (I) Rex v. Biers, b 1 A. & E. 327. 
 
 (tw) Rex v. Fowle, 4 C. & P. 592. The defendants were acquitted. 
 
 a Eng. Com. Law Reps. xvi. 240. b lb. xxviii. 98. c lb. xix. 540.
 
 CHAP. II.] INDICTMENT. 694 
 
 from divers of the liege subjects, &c, then carrying on business in the b ad for net 
 city of London, to wit, T. Tarn and D. Law, warehousemen and copart- who'sepro- 
 ners, and E. Fenuell and R. Fennell, cotton yarn manufacturers and perty the 
 copartners, &c, divers goods and merchandise of great value, to wit, g° odswere 
 &c, and to cheat and defraud the said liege subjects of the said goods 
 and merchandise. The count then set out several overt acts as to the 
 obtaining goods from the parties above named respectively, and concluded 
 by averring that the defendants did by the means aforesaid obtain from 
 the said T. Tarn and D. Law, and E. Fennell and 11. Fennell, &c, the 
 goods and merchandise aforesaid, and did cheat and defraud them thereof. 
 The second count was similar, but omitted to state the overt acts. The 
 third count stated the conspiracy to be to cause it to be believed that 
 one of the defendants, who was then an uncertificated bankrupt, was 
 not B. P., but J. P., and that he carried on an extensive shipping busi- 
 ness, and was a man of large property, and had a large capital in the 
 business, and by means of the said belief to obtain from divers liege 
 subjects (not naming them) divers goods, wares, and merchandise, and 
 to cheat and defraud the said liege subjects of the said goods, &c. The 
 fourth count charged that the defendants unlawfully combined by divers 
 false pretences to obtain from divers liege subjects (not naming them) 
 divers other goods and merchandise of great value, and to cheat and 
 defraud the said liege subjects of the said goods, &c. The defendants 
 having been convicted, a rule was obtained to arrest the judgment for 
 the insufficiency of the indictment in not stating that the goods, &c, 
 which the defendants were charged with conspiring to obtain, were the 
 property of any *person, it being consistent with the statement that *695 
 they were the goods, &c, of the defendants themselves : and the Court 
 of Queen's Bench held that the indictment was bad for not stating to 
 whom the goods belonged. That where the object charged was a con- 
 spiracy to obtain from certain persons named, divers goods, and to cheat 
 and defraud them of the same, and they were obtained, and the parties 
 defrauded, no precedent was to be found to show that an indictment 
 was good which omitted to state whose the goods were. The first 
 count, therefore, was imperfect, and the objection applied more strongly 
 to the fourth count, where the language was still more general. The 
 conspiracy charged was to obtain divers goods, and to cheat and defraud 
 certain persons named, not with intent to cheat and defraud them of 
 the same, though perhaps that would have made no difference, and as 
 there was no statement to whom the goods belonged, the charge did not, 
 of necessity, import any offence, as it was consistent with an attempt 
 by the defendants to obtain by some means their own goods unlawfully 
 detained from them ; and to hold that the use of the words " to cheat 
 and defraud" necessarily implied that the goods belonged to the parties 
 who were stated to be defrauded, would be letting in a generality, which 
 was not shown ever to be allowed. (to) 
 
 (n) Reg. v. Parker, 11 Law J., N. S., Mag. C. 102. Although there appears at first sight 
 to be some little discrepancy in the cases upon this point, perhaps they are not irreconcila- 
 ble. The correct distinction to be drawn from them appears to be this, that where there 
 has been merely a conspiracy for a particular purpose, (c. g. to raise the funds) and such 
 conspiracy has not been carried into execution, an indictment in general terms will be suffi- 
 cient; but where there has not only been a conspiracy, but such conspiracy lias been carried 
 into effect, there the indictment ought to specify precisely what has been effected, as the 
 parties injured, the property obtained, and to whom it belonged. The reason of such a 
 distinction is, that in the one case it is impracticable to state with minuteness what never 
 was carried beyond the intention, whereas in the other case what was actually effected may
 
 695 OF CONSPIRACY. [BOOK V. 
 
 An indictment for a conspiracy to conceal and embezzle the persom.1 
 estateof a baukruptrnust state the petitioning creditor's debts, the trading 
 and the act of bankruptcy, and that the party had actually become 
 bankrupt. (o\ 
 Technical The technical averment of the agreement and conspiracy, generally 
 of eonsDi nsec ^ * n ^ ie indictment, charges that the defendants " did conspire, com- 
 racy. bine, confederate, and agree together ;" but it is *said that other words 
 
 *t>96 of the same import seems to be equally proper.(g) To the counts for a 
 conspiracy may be joined such other counts as the circumstances of the 
 case may seem to require, (not charging a felony,) though they do not 
 include a charge of conspiracy. (r) 
 Place It has been holden that in an indictment for a conspiracy the venue 
 
 offencemay mus * be laid where the conspiracy was, and not where the result of such 
 be tried. conspiracy was put in execution. (s\ But in a late case it was said by 
 the court, that there seemed to be no reason why the crime of con- 
 spiracy, amounting only to a misdemeanor, might not be tried, wherever 
 one distinct overt act of conspiracy was in fact committed, as well as the 
 crime of high treason, in compassing and imagining the king's death, 
 or in conspiring to levy war.M And a case was cited in which the 
 trial proceeded upon this principle ; and in which, though no proof of 
 actual conspiracy, embracing all the several conspirators, was attempted 
 to be given in Middlesex, where the trial took place, and though the 
 individual actings of some of the conspirators were wholly confined to 
 other counties than Middlesex, yet the conspiracy as against all having 
 been proved from the community of criminal purpose, and by their 
 joint co-operation in forwarding the objects of it, in different places and 
 counties, the locality required for the purpose of trial was holden to be 
 satisfied by overt acts, done by some of them, in prosecution of the con- 
 spiracy in the county where the trial was had.rwY}" 
 
 The offence of conspiracy might formerly be tried by justices of peace 
 
 easily be stated. The case may be compared to the cases of burglary with intent to steal, 
 and burglary accompanied by an actual stealing; in the former it is sufficient to state that 
 the prisoner broke and entered the house with intent to steal the goods (without describing 
 them) of one A. B. ; and in the latter the goods stolen mu?t be particularized. So where a 
 conspiracy has been detected before it is carried into execution, so far as to ascertain the 
 parties to be injured by it. an indictment would be good without naming such parties. Rex 
 ?>. Berenger, supra, note (k). But where the conspiracy had proceeded so far as to fix the 
 parties intended to be injured, such parties should be expressly named, and if the object was 
 to defraud them of their goods, or their goods had been actually obtained thereby, the indict- 
 ment should state in the one case the intent to defraud them of their goods, and in the 
 other that they were defrauded of their goods. It may, perhaps, admit of some doubt 
 whether the possibility of the goods belonging to the defendants in the principal case neces- 
 sarily rendered the indictment bad ; for as a party may be guilty of larceny in stealing 
 his own goods, ante, p. 87, there seems no reason why parties who conspired to obtain their 
 own goods from another, and thereby to cheat and defraud him. under such circumstances 
 as did not amount to larceny, should not be indictable for a conspiracy. The better ground 
 to rest the decision upon would seem to be, that the indictment did not go to such a degree 
 of particularity as the facts enabled the prosecutor to go, and the rules of criminal plead- 
 ing require to be adopted where it is practicable. C. S. G. 
 
 (o) Rex v. Jones, 8 4 B. & Ad. 345. 1 N. & M. 78. See the case more fully stated, ante, 
 p. 231, 232. (q) 3 Chit. Crirn. L. 1143. 
 
 (r) See the judgment of Lord Ellenborough, C. J., in Rex v. Johnson, 3 M. & S. 550. In 
 B.eg. v. Murphy , b 8 C. & P. 297, counts for libel were joined. 
 
 , keg. v. Best and another, 1 Salk. 174. (t) Rex v. Brisac and Scott, 4 East, R. 171. 
 
 [u) Rex v. Bowes, K. B., Trin. T. 1787, cited by Grose, J., in pronouncing the opinion of 
 the court in Rex v. Brisac and Scott, ante, note (t). 
 
 f {4 Wend. 229, People v. Mather. Ace.} 
 a Eng. Com. Law Reps. xxiv. 71. b lb. xxxiv. 397.
 
 CHAP. II.] INDICTMENT. 696 
 
 in their quarter sessions. In a case where the question of their juris- Jurisdic- 
 diction was raised, no authority being cited either on the one side or/° s "j° esa ® 
 on the other, the court decided in favour of their jurisdiction, upon quarter- 
 general principles, saying, that a conspiracy was a trespass, and that sessions - 
 trespasses were indictable at sessions, though not committed with 
 force and arms.(i') But now by the 5 & 6 Vict. c. 38, s. 1, " neither 5 & 6 Vict - 
 the justices of the peace acting in and for any county, riding, division, c- ' s ' 
 or liberty, nor the recorder of any borough, shall, at any session of 
 the peace, or at any adjournment thereof, try any person or persons for 
 (inter alia) unlawful combinations and conspiracies, except conspira- 
 cies or combinations to commit any offence which such justices or 
 recorder respectively have or has jurisdiction to try when committed by 
 one person/' 
 
 On a prosecution against several persons for a conspiracy, the wife of Wife of one 
 one of the defendants has been holden not to be a competent witness n ^ ^ it Qe S3 
 for the others, a joint offence being charged, and an acquittal of all the for the 
 other defendants being a ground of discharge for the husband. (w)f And otners - 
 so it has been held, upon an indictment *against the wife of W. S., *697 
 and others for a conspiracy in procuring W. S. to marry, that W. S. was 
 not a competent witness in support of the prosecution. (a;) 
 
 An able writer upon the law of evidence lays down the following How far 
 doctrine with respect to the acts or words of one conspirator being evi- „ 0T ^ f 
 dence against the others. Where several persons are proved to have one con- 
 combined together for the same illegal purpose, any act done by one of a ^ r *^ r 
 the party, in pursuance of the original concerted plan, and with refer- dence 
 ence to the common object, is in the contemplation of law the act of the a g* mst tne 
 whole party, and, therefore, the proof of such act would be evidence 
 against any of the others who were engaged in the same conspiracy; 
 and, further, any declarations, made by one of the party at the time of 
 doing such illegal act, seem not only to be evidence against himself, as 
 tending to determine the quality of the act, but to be evidence also 
 against the rest of the party, who are so much responsible as if they 
 had themselves done the act. But what one of the party may have 
 been heard to say at some other time, as to the share which some of the 
 others had in the execution of the common design, or as to the object of 
 the conspiracy, cannot, it is conceived, be admitted as evidence to affect 
 them on their trial, for the same offence. (y) And, in general, proof of Proof of 
 concert and connection must be given, before evidence is admissible of concert be- 
 the acts or declarations of any person not in the presence of the ra tions of 
 prisoner.^) It is for the court to judge whether such connection has others ad- 
 been sufficiently established ; but when that has been done, the doctrine m 
 applies that each party is an agent for the others, and that an act done 
 by one in furtherance of the unlawful design, is in law the act of all, 
 and that a declaration made by one of the parties, at the time of doing 
 
 (v) Rex v. Rispal, 3 Burr. 1320. 1 Black. R. 368. Burn's Just. tit. Co?is]>iraci/, sec. 1. The 
 point was so decided in an earlier case, Rex v. Edwards and others, 8 Mod. 321. 
 
 (w) Rex v. Lockyer and others, cor. Lord Ellenborough, C. J., 5 Esp. N. P. R. 107. Rex 
 v. Frederick and another, 2 Str. 1090. 1 Phill. Evid. 74. 
 
 (z) Rex v. Serjeant," R. & M. N. P. R. 352. 1 Phill. Evid. 74. 
 
 \y) 1 Phill. on Evid. 94, 95, 7th Ed. See 9th Ed. 201. 
 
 (z) 1 East, P. C. c. 2, s. 37, p. 96. 2 Stark. Evid. 326, and 1 Phill. Evid. 477, citing the 
 Queen's case, 2 Brod. & B. 302. b 
 
 f [State v. Burlinffharn, 15 Maine, 105.] 
 a Eng. Cora. Law Reps. xxi. 453. b Ibid. vi. 123.
 
 967 
 
 OF CONSPIRACY. 
 
 [BOOK V. 
 
 such an act is evidence against the others. Thus, where Stone was 
 indicted for treason, and one of the overt acts charged was conspiring 
 with Jackson and others to collect intelligence, and to communicate it to 
 the king's enemies in France, &c, after evidence had been given to con- 
 nect the prisoner with Jackson in the conspiracy as charged, the secre- 
 tary of state for the foreign department was called to prove, that a letter 
 of Jackson's, containing treasonable information, had been transmitted 
 to him from abroad, but in a confidential way, which made it impossible 
 for him to divulge by whom it was communicated; and such letter was 
 received in evidence. (a)f So, in another case, after evidence had been 
 given of a treasonable conspiracy, in which the prisoner was concerned, 
 it was held that papers found in the lodging of a co-conspirator, at 
 a period subsequent to the apprehension of the prisoner, might be 
 read in evidence, upon strong presumptive proof being given that the 
 lodgings had not been entered by any one in the interval between the 
 apprebension of the prisoner and the finding of the papers, and al- 
 though no absolute proof had been given of their existence previous to 
 the prisoner's apprehension. (fy But it seems that if such papers had 
 not been proved to have been intimately *and immediately connected 
 with the objects of the conspiracy, they would not have been admissi- 
 ble ; as, in the same case, a paper containing seditious questions and 
 answers, and found in the possession of a co-conspirator, was not read in 
 evidence, the court doubting whether it was sufficiently connected by 
 evidence with the object of the conspiracy to render it admissible. (c) J 
 Where, upon an indictment for conspiring to annoy a broker who 
 distrained for church-rates, it was proved that one of the defendants, in 
 the presence of the other, excited the persons assembled at a public 
 meeting to go in a body to the broker's house ; it was held that evi- 
 dence was admissible to show that they did so go, although neither of 
 the defendants went with them, but that evidence of what a person, 
 who was at the meeting, said a few days after the meeting when he 
 himself was distrained on for church-rates, was not admissible, (c/j And 
 
 *698 
 
 Declara- 
 tions in 
 pursuance 
 of the con- 
 spiracy. 
 
 (a) Rex v. Stone, 6 T. R. 627. (b) Rex v. Watson, 2 Stark. C. 140. 
 
 (c) Rex v. Watson, supra. But they held that if proof were to be given that the instru- 
 ment was to be used for the purpose of the conspiracy it would clearly be admissible. 
 
 (d) Reg. v. Murphy , a 8 C. & P. 297, Coleridge, J. 
 
 f {See 6 Randolph, 285, Clayton v. Anthony. 2 Peters's S. C. Rep. 365.} 
 
 [The acts and declarations of an accomplice are evidence when they are part of the res 
 gesta and done in furtherance of the common design : but to make the acts or declarations 
 of another evidence against the prisoner, a conspiracy or common design between them 
 must be established. State v. George, 7 Iredell, N. C. 321.] 
 
 J [Where a combination of several persons for an illegal object is clearly established, the 
 acts and declarations of one of the parties in reference to the subject-matter of the combi- 
 nation which engaged in the prosecution of the joint design are admissible in evidence 
 against his associates. Waterbury v. Sturdevant, 18 Wend. 353. 
 
 When partial proof of a combination between the prisoners has been given, what has been 
 said or done by either of the prisoners in planning the plot may be proven, but what was 
 not in pursuance of the plot cannot be taken against the other conspirators. The State v. 
 Simons, 4 Strobhart, 266. 
 
 When the facts proved are insufficient to establish a conspiracy between the prisoner and 
 a third person to commit an offence, the declarations of such third person made in the ab- 
 sence of the prisoner, are not admissible in evidence against him. Wi/tiamson v. The Com- 
 monwealth, 4 Grattan, 547. 
 
 On the trial of one of the conspirators, the declarations of another conspirator made after 
 ,the offence had been committed, is incompetent evidence. The State v. Dean, 13 Iredell, 63. 
 The confessions of an accomplice in a felony, made after the commission of the offence, and 
 not in the presence of the prisoner, though a conspiracy be proven, arc inadmissible, except 
 as against the accomplice. Hunter v. The Commonwealth, 7 Grattan. 641,.] 
 a Eng. Com. Law Reps, xxxiv. 397.
 
 CIIAP. II.] EVIDENCE. 698 
 
 where an indictment charged the defendant with conspiring with Jones, 
 who had been previously convicted of treason, to raise insurrections and 
 riots, and it was proved that the defendant had been a member 
 of a Chartist association, and that Jones was also a member, and 
 that in the evening of the 3rd of November the defendant had been at 
 Jones's house, and was heard to direct the people there assembled 
 to go to the race-course, where Jones had gone on before with others; 
 it was held that a direction given by Jones in the forenoon of the 
 same day to certain parties to meet on the race-course was admissible ; 
 and it being further proved that Jones and the persons assembled on 
 the race-course went thence to the New Inn ; it was held that what 
 Jones said at the New Inn was admissible, as it was all part of the same 
 taansaction.(e) 
 
 The evidence in support of an indictment for conspiracy is gener- Proof of the 
 ally circumstantial ; and it is not necessary to prove any direct concert, cons P irao y* 
 or even any meeting of the conspirators, as the actual fact of conspiracy 
 may be collected from the collateral circumstances of the case.(/S Al- 
 though the common design is the root of the charge, yet it is not neces- II is not 
 sary to prove that the defendants came together, and actually agreed in to pTov^ 
 terms to have the common design, and to pursue it by common means, the actual 
 and so to carry it into execution, because in many cases of the most ^"TuTm " 7 ' 
 clearly established conspiracies there are no means of proving any such be inferred 
 
 thiner.^ If, therefore, two persons pursue by their acts the same ob- fr ° m * h ? 
 • A &' u *v c • i. * acts of the 
 
 ject, often by the same means, one performing one part ot an act, and parties. 
 
 the other another part of the same act, so as to complete it, with a view 
 to the attainment of the object they were pursuing, the jury are at 
 liberty to draw the conclusion that they have been engaged in a conspi- 
 racy to effect that object.^) In a case where a husband, wife, and 
 their servants, were indicted for a conspiracy to ruin the trade of the 
 prosecutor, who was the king's card-maker, the evidence against them 
 was, that they had at several times given money to the prosecutor's ap- 
 prentices, to put grease into the paste, which *had spoiled the cards; *699 
 but there was no account given that ever more than one at a time was 
 present; though it was proved they had all given money in their turns; 
 it was objected that this could not be conspiracy, on the ground that 
 several persons might do the same thing, without having any previous 
 communication with each other. But it was ruled that the defendants 
 being all of a family, and concerned in making of cards, it would 
 amount to evidence of a conspiracy. (j) And it appears also to have 
 been considered that if a banker permits a sum of money to be lodged 
 at his house, to be paid over, for corruptly procuring an appointment 
 under government, he may be indicted for a conspiracy along with 
 those who are to procure the appointment, and receive the money. (y) 
 
 Every person concerned in any of the criminal parts of the transac- Persons 
 tion alleged as a conspiracy may be found guilty, though there be uo^ft er the 
 evidence that such persons joined in concerting the plan, or that they conspiracy 
 ever met the others, and though it is probable they never did, and 1S orme ' 
 
 (e) Reg. v. SHellard, 8 9 C. & P. 277, Patteson, J. 
 (/) Rex v. Parsons and another, 1 Black. R. 392. 
 (ff) Per Coleridge, J., Reg. v. Murphy," 8 C. & P. 297. 
 (h) Per Coleridge, J. Ibid. 
 
 (i) Rex v. Cope and others, 1 Str. 144. (/) Rex v. Tollman and others, 2 Campb. 233. 
 a Eng. Com. Law Reps, xxxviii. 119. b lb. xxxiv. 397.
 
 699 OF CONSPIRACY. [BOOK V. 
 
 though some of thein only join in the latter parts of the transaction, 
 
 and probably did not know of the matter until some of the prior parts 
 
 Persons of the transaction were complete. (A;) So that if several persons meet 
 
 meeting for ^ different motives, and then ioin in effecting one common and ille- 
 
 one pur- ' J ° , . 
 
 pose after- gal object, it is a conspiracy.(?) Where, therefore, upon an information 
 wards con- f or a conS pi raC y to ruin Macklin, the actor, in his profession, it was ob- 
 another. jected that in support of the prosecution evidence should be given of a 
 previous meeting of the parties accused for the purpose of confederating 
 to carry their object into execution; Lord Mansfield, C. J., overruled 
 the objection, saying, that if a number of persons met together for dif- 
 ferent purposes, and afterwards joined to execute one common purpose, 
 to the injury of the person, property, profession, or character of a third 
 party, it was a conspiracy, and it was not necessary to prove any pre- 
 vious consult or plan among the defendants against the person intended 
 to be injured .(ni\ 
 General It appears to have been held that upon an indictment for a conspi- 
 
 the nature rac y> where, from the nature of the case, it would be difficult to prove 
 of the con- the privity of the parties accused, without first proving the existence of 
 spiraey. a conspiracy t ne prosecutor may go into general evidence of its nature, 
 before it is brought home to the defendants. The indictment charged 
 the defendants, who were journeymen shoemakers, with a conspiracy 
 to raise their wages ; and evidence was offered on the part of the prose- 
 cution of a plan for a combination amongst the journeymen shoemakers, 
 formed and printed several years before, regulating their meetings, sub- 
 scriptions, and other matters for their mutual government in forwarding 
 their designs. This evidence was objected to by the counsel for the de- 
 fendants ; but Lord Kenyon, C. J., said, that if a general conspiracy 
 existed, general evidence might be given of its nature, and the conduct 
 *700 of its members, so as to implicate men who stood charged *with acting 
 upon the terms of it years after those terms had been established, and 
 who might reside at a great distance from the place where the general 
 plan was carried on ; and his lordship, therefore, permitted a person, 
 who was a member of this society, to prove the printed regulations and 
 rules of the society, and that he and others acted under them, in execu- 
 tion of the conspiracy charged upon the defendants, as evidence intro- 
 ductory to the proof that they were members of such society, and 
 equally concerned ; but he observed, that it would not be evidence to 
 affect the defendants until they were made parties to the same conspi- 
 racy, (n) And in several important cases, evidence has been first given 
 of a general conspiracy before any proof of the particular part which 
 the accused parties have taken. (o\ 
 Either. It nas recently been held that the prosecutor may either prove the 
 
 (k) Rex v. Lord Grey and others, 9 St. Tri. 127. Reg. v. Murphy, 8 8 C. & P. 297, Cole- 
 ridge, J. 
 
 (I) Rex v. Lee, 2 Stark. Evid. 324. 
 
 (m) Lee's case, 2 M'Nally, Evid. 634, as cited Rose. Gr. Evid. 374. S. P. per Coleridge, 
 J. Reg. v. Murphy," 8 C. & P. 297. See ante, p. 675, note (/). 
 
 (n) Rex v. Hammond and Webb, 2 Esp. N. P. R. 718. Lord Kenyon referred to the cases 
 of the state trials in the year 1745, where from the nature of the charge it was necessary to 
 go into evidence of what was going on at Manchester, and in France, Scotland, and Ireland, 
 at the same time. 
 
 (o) Lord Stafford's case, 7 St. Tr. 1218. Lord W. Russell's case, 9 St. Tr. 578. Lord 
 Lovat's case, 18 St. Tr. 530. Hardy's case, 24 St. Tr. 199. Home Tooke's case, 25 St. 
 Tr. 1. 
 
 » Eng. Com. Law Reps, xxxiv. 397. b lb.
 
 CHAP. II.] EVIDENCE. 700 
 
 conspiracy which renders the acts of the conspirators admissible in evi- course may 
 dence, or he may prove the acts of the different persons, and thus prove be ado P tecL 
 the conspiracy. Where, therefore, a party met, which was joined by 
 the prisoner the next day, it was held that directions given by one of 
 the party on the day of their meeting as to where they were to go and 
 for what purpose, were admissible, and the case was said to fall within 
 Rex v. Hunt,(<7) where evidence of drilling at a different place two 
 days before and hissing an obnoxious person was held receivable. (r) 
 
 But after such general evidence has been received the parties before 
 the court must be affected for their share of it. And it seems that mere 
 detached declarations and confessions of persons not defendants, not 
 made in the prosecution of the object of the conspiracy, are not evidence 
 to prove its existence, although consultations for the purpose, and letters 
 written in prosecution of the design, but not sent, are admissible.(s) It 
 results from the principles already stated, and it has been observed as a 
 conclusion to which they lead, that it seems to make no difference as to 
 the admissibility of the act or declaration of co-conspirator against the 
 party defendant before the court, whether such co-conspirator be in- 
 dicted or not, or tried or not with the defendant.^) The evidence is 
 admitted on the ground that the act of declaration of one is the act or 
 declaration of both, when united in one common design. 
 
 In a case where the indictment charged the defendants with conspir- Cumula- 
 ing to cause themselves to be believed persons of large property, for the* 1 ^" f^ud 
 purpose of defrauding tradesmen, evidence was given of their having permitted 
 hired a house in a fashionable street, and represented themselves to one* be S lveD 
 
 ID 6V1- 
 
 tradesman employed to furnish it as people of large fortune ; and then a dence. 
 witness was called to prove that at a different time they had made a 
 similar representation to another tradesman. The evidence of this wit- 
 ness was objected to on the ^ground that it was not competent to the *701 
 prosecutor to prove various acts of this kind, and that he was bound to 
 select and confine himself to one. But Lord Ellenborough, C. J., said, 
 " This is an indictment for a conspiracy to carry on the business of 
 common cheats, and cumulative instances are necessary to prove the 
 offence, "(u) 
 
 But where a count alleged that the defendant and others did conspire i n an in- 
 to defraud J. JDonkersley and others of certain goods, and that in pur- dictment 
 suance of the said conspiracy the defendant did falsely pretend to the^^o^e- 
 said J. D. that he was a merchant of the name of Grantham, carrying fraud D. 
 on business at Leeds and Huddersfield; and in further prosecution of n '^j c ^ s ' 
 the said conspiracy, and under colour of a pretended contract with the charges the 
 said J. D., for the purchase of certain cloth of the <>;oods of the said J. obtaimn g 
 D. and others, did obtain possession of a large quantity of cloth of the f D? and 
 goods of the said J. D. and others from the said J. D., with intent to°^ er *> the 
 cheat the said J. D. and others, to the great damage of the said J. D. 
 
 means 
 
 and others j and it appeared that J. D. had partners; and evidence was partners 
 given to show an intended fraud upon that firm ; and it was also pro- eyidcnc'e of 
 posed to give evidence of attempts made by the defendant to defraud attempts to 
 
 (?) 3 B. & Aid. 5GG. 
 
 (r) Reg. v. Frost," 9 C. & P. 129, Tindal, C. J., Parke, B., and Williams, J. 
 (s) 2 Stark. Evid. 327. 
 
 (t) 2 Stark. Evid. 329. See post, book G, c. 4, s. 2, for further points as to the evidnce 
 in cases of conspiracy. 
 
 (m) Rex v. Roberts and others, 1 Campb. 399. Ante, p. G84. 
 * Eng. Com. Law Reps, xxxvii ; . 70.
 
 701 OF CONSPIRACY. [BOOK V. 
 
 defraud other persons, as well as the firm of J. D. and Co., of their goods : it 
 
 J^ so " r s t _ not was objected that the word "others" must be taken to mean others the 
 
 nersof D., partners of J. D. ; that where the goods were stated to be the goods of 
 
 is inadmis- j j) aD( j t,h erg> ft CO uld only mean others his partners, and the word 
 
 could not have one meaning at one part of the count, and another at 
 
 another part of the same count. The evidence was received; but, upon 
 
 a case reserved, the judges held the conviction wrong. (i?) 
 
 The court In the case mentioned in this chapter, of a conspiracy to raise the 
 
 will take a p r i ce f t ne public funds bv false rumours, it was holden that the court 
 
 ludicial no- r ... . . f. . . . , . . .,. , 
 
 ticeofa will take judicial notice that a war exists between tnis country and a 
 war - foreign state, such war having been recognized in different acts of 
 
 Parliament; and, therefore, that an allegation to that effect need not be 
 
 proved, (w) 
 Upon an in- "Where an indictment alleged that the defendants conspired falsely to 
 dictment accuse t ne prosecutor of having feloniously forged a check for the pay- 
 ing to ac- ment of 178?., and that in execution of such conspiracy a letter was 
 cuse of written, bv one of the defendants, in which he stated that he had been 
 
 forging a » i ■ • i • t i j> • e 
 
 check, employed to investigate the circumstances attending the forging or a 
 held unne- check for 178?., and proof was given of the letter, and also of conversa- 
 producethe tions referring in like manner to a check, which the defendants charged 
 check. the prosecutor with having forged, but the check itself was not produced. 
 It was objected that the check was so incorporated with the evidence, 
 that the prosecutor was not entitled to prove the conversations without 
 producing the check, to which they referred, which it appeared from the 
 evidence was in existence, and in the possession of the defendants. 
 Lord Tenterden, C. J., was, however, of opinion that it was not essential 
 to prove the contents of the check or to produce it, but that it was 
 *702 *enough to take the conversations as they passed. And the Court of 
 King's Bench, upon a rule obtained to show cause why there should 
 not be a new trial, held that it was not necessary to produce the check. 
 The whole of the charge against the defendants was founded on the 
 letter set out in the indictment, which was written by one of the defend- 
 ants upon the application of the other; and they having taken upon 
 themselves to treat as an existing thing a check for 178/., it was not 
 necessary on the part of the prosecutor to produce it in evidence, even 
 although it appeared that it actually existed. But it might be a fabri- 
 cation on their part, there might be no such check, and then it could 
 not be necessary to produce \t.(x\ 
 Record of When one of several defendants charged with a conspiracy has been 
 acqm a . ^^ftt^^ the record of acquittal is evidence for another defendant sub- 
 sequently tried. (,y) 
 Proof of Where in an indictment for conspiracy, the bankruptcy of one of the 
 
 ^ankrupt- d e f en dants was stated in a prefatory allegation, and to prove this alle- 
 gation, the proceedings under the bankruptcy were put in ; Lord Ten- 
 
 (i>) Reg. v. Steel, a 1 C. & Mars. 337. No ground for the decision is stated, but Lord 
 Abinger said at the close of the argument, "I think the counsel for the defendant is right in 
 saying that the word ' others' must have the same meaning in the earlier part of the count 
 as in the latter part of it ; and with respect to the property of the goods, it must mean that 
 they were the goods of J. D. and his partners." 
 
 («•) Rex v. De Berenger, 3 U. & S. 67. Ante, p. 679. 
 
 \x) Rex v. Aldridge," 1 N. & M. 776. 
 
 (y) Rex v. Home Tooke, Old Bailey, 1794. 1 Chitty Burn. 823. 
 
 a Eng. Com. Law Reps. xli. 187. i> lb. xxviii. 332.
 
 CHAP. II.] EVIDENCE. 702 
 
 terden, C. J., held, that the assignment was not admissible, without call- 
 ing the subscribing witness to prove the execution of it.(z) 
 
 Where an indictment charged that the defendant with divers others 
 did conspire to prevent the workmen of one J. Gr. from continuing to 
 work in a colliery; Patteson, J., held that a conspiracy, to procure the 
 discharge of any of the workmen would support the indictment, which 
 did not necessarily lay the intent as to all the workmen. (a) 
 
 Two persons were indicted for felony, in attempting to poison A. B., 
 by administering certain poisonous ingredients, as set forth in the in- 
 dictment. At the same time, an indictment was found against them for 
 a conspiracy to poison the same individual by the same means. On the 
 trial of the first indictment, the prisoners were acquitted, there being no 
 proof that the ingredients were poisonous. Parke, J., thereupon directed 
 an acquittal for the conspiracy also, there being no other proof of a con- 
 spiracy to poison than that by which it was attempted to establish the 
 felony, viz, that the ingredients were poisonous. (&) 
 
 Where an indictment against A., B., C, and P., charged that they Averment 
 conspired together to obtain, » viz., to the use of them the said A., B., a ^ *? one 
 
 of the con.- 
 
 and C, and certain other persons, to the jurors unknown," a sum of spirators 
 money for procuring an appointment under government; and it appeared not proved, 
 that P., (although the money was lodged in his hands, to be paid to A. 
 and B. when the appointment was procured,) did not know that C. was 
 to have any part of it, or was at all implicated in the transaction ; it 
 was holden, that the averment concerning the application of the money 
 was material, though coming under a viz ; and that as to P. the con- 
 spiracy was not proved as laid.(c) 
 
 *Where an indictment for a conspiracy to procure false witnesses on *YQ3 
 the trial of an ejectment, at the great sessions for the county of G la- Variance, 
 morgan, stated that at the general sessions of our Lord the King, holden, 
 &c, an action of ejectment was depending, in which action J. Poe, on 
 the demise of W. Rees and P. Terry was the plaintiff, and R. Thomas 
 and T. Beaven the defendants, and it appeared that the ejectment was 
 brought on a joint and two several demises of Rees and Terry; it was 
 held, first, that the description of the sessions was erroneous, as it 
 should have been at the great sessions ; secondry, that there was a vari- 
 ance between the action described in the indictment and the action 
 proved to have, been pending.(c2) 
 
 Where an indictment for a conspiracy stated in the indictmenmt that Misde- 
 the defendants knew that the parties conspired against were the pro- scri P tion of 
 prietors of certain licensed stage carriages, and as such proprietors liable an indict- 
 to certain penalties, in which the drivers, of such carriages should be ment f or 
 convicted of any offence committed by the said drivers against " a cer- con a 
 tain act of parliament made and passed in the second and third years of 
 the reign of his present majesty, intituled, &c./' (setting out the title 
 correctly ;) and that the defendants unlawfully conspired falsely to ex- 
 hibit a certain information, charging, &c, contrary to the form of the 
 statute in such case made and provided; the judgment was arrested, on 
 the ground that a statute cannot be pleaded as made in two years ; for 
 in law an act cannot be made in two years. (e) 
 
 (z) Rex v. Pope," 5 C. & P. 208. 
 
 (a) Rex v. Bykerdike, 1 M. & Rob. 179. (b) Maudley's case, 1 Lew. 51. 
 
 (c) Rex v. Pullman and others, 2 Campb. 231. 
 
 Id) Rex v. Thomas,'* 1 C. & P. 472, Park, J. A. J. 
 
 (c) Rex v. Biers, c 1 A. & E. 327. The correct statement is "a certain statute made and 
 a Eng. Com. Law Reps. xxiv. 283. »> lb. xi. 453. c lb. xxviii. 98.
 
 703 OF CONSPIRACY. [BOOK V. 
 
 Particulars "Where the counts in an indictment for a conspiracy are framed in a 
 
 charges in general form, the judge will order the prosecutor to furnish the defen- 
 
 tended to dants with a particular of the charges, upon which he means to rely, 
 
 be rehed aQ( j svlc y 1 particular ought to be so framed as to give the defendants the 
 upon* 
 
 same information as would be given by a special count : but it need not 
 
 state the specific acts the defendants are charged with having done, or 
 the times or places at which such acts are alleged to have taken 
 place.(/) 
 Acquittal Upon the trial of an indictment for a conspiracy, the counsel for the 
 th^dT nd P rosecut i° n has a right, before opening his case, to have any of the de- 
 ants, fendants acquitted, in order that he may call them as witnesses, and the 
 counsel for the other defendants has no power of objecting to this being 
 done.(^) 
 Election. "Where an indictment contained counts for a conspiracy and counts 
 for a libel contained in a hand-bill, and there was no evidence to affect 
 one of the two defendants as to the libel ; Coleridge, J., at the close of 
 the case for the prosecution, put the prosecutor to elect upon which 
 charge he would go, before the defendant's counsel entered upon the 
 defence, (/t) 
 *704 *The Court of King's Bench have refused to change the venue in an 
 Change of indictment for a conspiracy to destroy foxes and other vermin, on the 
 venue. ground that the gentlemen who were likely to serve on the jury to try 
 
 the indictment were much addicted to fox-hunting.(i) 
 Point re- J n a recent case, a point arose as to the extent to which the counsel 
 cross-ef- f° r t ^ ie prosecution in a case of conspiracy might cross-examine a wit- 
 amination ness, called by only one of several defendants. The indictment was 
 defendant a g a i QS t A., B., and C. ', and after the case for the prosecution had closed, 
 only calls C. only called a witness, whom he examined as to a conversation be- 
 witnesses. t ween himself and A. ; and it was ruled that the counsel for the prose- 
 cution might cross-examine such witness as to any other conversation 
 between A. and C, although the evidence should tend chiefly to crimi- 
 nate A..(lc) 
 If the jury If upon»an indictment for conspiracy, the jury find the defendants 
 so much of g u ^ty of so much of the indictment as amounts to a misdemeanor, the 
 a count as court may pass judgment upon the defendants. The defendants were 
 am ?™^ t t0 indicted for conspiring falsely to indict A. B. for keeping a gaming- 
 able of- house, for the purpose of extorting money from the said A. B., and the 
 
 fence, judg-^j-y f oun( j the defendants guilty of conspiring to indict A. B. for the 
 
 ment may J J . , . T ? • « i i i • 
 
 be passed purpose ot extorting money, but not to indict him falsely ; and it was 
 
 on the de- held that enough of the indictment was found to enable the court to 
 
 give judgment ; for in criminal cases, it is sufficient for the prosecutor 
 
 passed in a Session of Parliament held in the first and second years of the reign of King 
 William the Third." Per Patteson, J., ibid. Gibbs v. Pike, 6 M. & W\ 223. S. P. 
 
 (/) Rex v. Hamilton,* 7 C. & P. 448. Littledale. J., after consulting several of the other 
 judges. In Anonymous, 1 Chitty, 698 the Court of King's Bench refused to order such par- 
 ticulars to be given on motion, but intimated that the correct course was to apply to the pro- 
 secutor to give some information as to the particulars upon which he meant to rely in sup- 
 port of the indictment, and if he refused, then an application might be made to postpone the 
 trial, in order that the question might be more maturely discussed. From which it is to be 
 inferred that the motion had been made without any previous application for particulars to 
 the prosecutor. C. S. G. 
 
 (g) Rex v. Rowland, b R. & M. N. P. R. 491, Abbott, C. J. 
 
 (h) Reg. v. Murphy, 8 C. & P. 297. (i) Rex v. King, d 2 Chitty Rep. 121. 
 
 (k) Rex v. Kroehl and others, e 2 Stark. N. P. R, 343. 
 
 a Eng. Com. Law Reps, xxxii. 579. b lb. iii. 375. • lb. xxi. 471. 
 
 d lb. xxxiv. 379. e lb. xviii. 313.
 
 CHAP. II.] PUNISHMENT. 70-4 
 
 to prove so much of the charge as constitutes an offence punishable by 
 law ; and the jury had found the defendants guilty of conspiring to pre- 
 fer an indictment for the purpose of extorting money, and that is a mis- 
 demeanor whether the charge were or were not false. (/) 
 
 In former times, persons convicted of a conspiracy at the suit of the Punish- 
 king, to accuse another person of a capital offence, were liable to receive ment 
 what was called a villanous judgment, that is to lose their liberam 
 legem, whereby they were discredited and disabled as jurors, or wit- 
 nesses ; to forfeit their goods and chattels, and lands for life ; to have 
 those lands wasted, their houses rased, their trees rooted up, and their 
 bodies committed to prison. (m) But this judgment was not inflicted 
 upon those who were convicted only of conspiracies of a less aggravated 
 kind, at the suit of the party : and for some time past it appears to have 
 been the better opinion, that the villanous judgment is by long disuse 
 become obsolete, not having been pronounced for some ages ; and that 
 the punishment for conspiracies in general is, as in the case of other 
 misdemeanors, by fine, imprisonment and sureties for the good behaviour 
 at the discretion of the court. (n\ 
 
 *A consequence of the attaint of conspiracy, where the party was *705 
 subject to the villanous judgment, appears to have been incompetency Incompe- 
 as a witness.M A party, therefore, convicted of conspiracy to bribe ^" t ^ S g S a 
 witnesses, on an information against the revenue laws, not to appear 
 before the justices of the peace, is incompetent.^) But this consequence 
 seems not to have attached to other cases of conspiracy at the suit of 
 the party. (a) And in a late case in the Admiralty Court, which under- 
 went much discussion, Sir W. Scott determined, on great consideration, 
 that a conviction for a conspiracy to commit a fraud would not render an 
 affidavit of the convict inadmissible. (r) 
 
 In conclusion of this chapter, it may be mentioned, that, after a con- All the dc- 
 viction for a conspiracy, the defendants must be present in court when fe " da !? ts 
 a motion is made on their behalf, in arrest of judgtnent.(s) And also, present in 
 that upon a motion for a new trial, after such conviction, all the court u P on 
 defendants must be present.^) And it is not a sufficient excuse for a rrcs t of 
 absence that they are in custody on civil process ; but if they were in judgment, 
 
 (I) Rex v. Hollingberry,' 4 B. & C. 323. 6 D. & R. 345. 
 
 (m) 1 Hawk. P. C. c. 72, s. 9. 4 Bla. Com. 136. 
 
 (m) Id. ibid. The pillory was also very commonly a part of the punishment until taken 
 away by the 56 Geo. 3, c. 138. See also, ante, p. 669, note (d). In a case where the de- 
 fendants were convicted on an information for a conspiracy to take away the character of 
 one Kempe, and accuse him of murder, by pretended conversations and communications 
 with a ghost that answered by knocking and scratching in Cock-lane, &c, they received the 
 following judgment: Richard Parsons (the father of the child, who was the principal agent 
 in the pretended communication,) to stand thrice in the pillory, and be imprisoned two 
 years ; Eliz. Parsons, the mother, to be imprisoned one year ; Mary Fraser, a servant, who 
 was aiding and assisting, was sent to the house of correction, to hard labour for six months; 
 Moore, the curate of the parish, and one James, were discharged on paying the prosecutor 
 3007. and his costs, which were nearly as much more. Brown, who had published a narra- 
 tive, and one Day, the printer of a newspaper, had previously made their peace with the 
 prosecutor. 
 
 (0) Co. Lit. 6 b. 2 Hale, 277. 1 Hawk. P. C. c. 72, s. 9. 1 Phil. Evid. IT. 
 (/-) Bushel v. Barrett," R. & M. N. P. R. 434. Gaselee, J., and Littledale, J. 
 (q) 2 Hale, 277. Garth. 416. 1 Hawk. P. C. c. 72, s. 9. 
 
 (r) In the case of the Villc de Varsovie and others, 1817, 2 Dods. Adm. R. 174. 1 Phil, 
 on Evid. 18. 
 
 (*) Rex v. Spragg and another, 2 Burr. 929. 1 Bla. R. 209. 
 
 (1) Rex v. Teal and another, 11 East, 307. Rex v. Askew, 3 M. & S. 9. Rex v. Lord 
 Cochrane, 3 M. & S. 10. 
 
 a Eng. Com. Law Reps. x. 346. b lb. xxi. 483. 
 
 Vol. ii.— 46
 
 705 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 or for anew custody on civil process, the case would be different, for then they 
 might be charged with tbe conspiracy also.(w) But where an indict- 
 ment has been removed into the Court of King's Bench, after verdict, 
 but before judgment, and set down for argument, it does not appear to 
 be necessary, that the defendants should appear in court upon the argu- 
 ment, the proceeding being in the nature of a special verdict, and the 
 party not being considered as convicted, until after the court have deter- 
 mined upon the verdict, (v.) 
 
 =706 
 
 *CHAPTER THE THIRD. 
 
 OF THREATS, AND THREATENING LETTERS. 
 
 Threats at It is said, that the dispersing of bills of menace threatening destruc- 
 ••ommon tion to the lives or properties of those to whom they were addressed, for 
 the purpose of extorting money, is, at common law, a high misdemeanor, 
 punishable by fine and imprisonment. (a)f Threats directed against 
 persons immediately under the protection of a court are offences pun- 
 ishable by fine and imprisonment, as if a man threaten his adversary for 
 suing him, a counsellor or attorney for being employed against him, a 
 juror for his verdict, or a gaoler or other ministerial officer for keeping 
 him in his custody, and properly executing his duty.(&) And a prece- 
 dent is given of an indictment at common law against the attorney of a 
 plaintiff in a cause for writing a letter to the attorney of the defendant, 
 who had obtained a verdict on the evidence of his son, threatening to 
 indict the son for perjury unless the defendant gave up the benefit of 
 the verdict.(c) 
 Rex v. Sou- But it was holden in a modern case, that threatening by letter or 
 therton. otherwise to put in motion a prosecution by a public officer to recover 
 ing to penalties for selling Friar's Balsam, without a stamp, (which by the 
 charge a 42 Geo. 3, c. 56, is prohibited to be vended without a stamped label) for 
 penalties the purpose of obtaining money to stay the prosecution, was not such a 
 for selling threat as a firm and prudent man might not be expected to resist, and, 
 without a therefore, was not in itself an indictable offence at common law, although 
 stamp, hoi- it was alleged that the money was obtained, no reference being made 
 beindict^ to an y statute which prohibits such attempt. In this case Lord Ellen- 
 able, borough, C. J., said, " To obtain money under a threat of any kind, or 
 But where to attempt to do it, is, no doubt, an immoral action ; but to make it 
 is caleu- indictable, the threat must be of such a nature as is calculated to over- 
 lated to come a firm and prudent man. Now, the threat used by the defendant 
 firm and at its utmost extent was no more than that he would charge the party 
 prudent with certain penalties for selling medicines without a stamp. That is 
 indictable not suc ^ a threat as a fi™ a °d prudent man might not, and ought not, 
 
 (u) Rex v. Hollingsberry,* 4 B. & C. 329. 6 D. & R. 345. 
 (v) Rex v Nichols, 2 Str. 1227. 
 
 (a) 1 Hawk, P. C. c. 53, s. 1. Reference is made to 1 Hale, 567, but qu. the reference. 
 
 (b) 4 Bla. Com. 126. (c) 2 Chit. Crim. L. 149. 
 
 f [Threats of great bodily harm, accompanied by acts showing a formed intention to put 
 them in execution, if intended to put the person threatened in fear of their execution, and 
 if they have that effect, and are calculated to produce that effect upon a person of ordinary 
 firmness, constitute a breach of the public peace, which is punishable by indictment. State 
 v. Benedict. 11 Vermont, 236.] 
 
 a Eng. Com. Law Reps. x. 346.
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. 706 
 
 to have resisted. Then what authority is there for considering these as 
 offences at common law? The principal case relied on is that of Rex 
 v. Woodward and others,(cZ) which was where the defendants, having 
 another man in their actual custody at the time, threatened to carry him 
 to *gaol, upon a charge of perjury; and obtained money from him un- *707 
 der that threat, in order to permit his release. Was not that an actual 
 duress, such as would have avoided a bond given under the same cir- 
 cumstances ? But that is very unlike the present case, which is that 
 of a mere threat to put process in a penal action in force against the 
 party. The law distinguishes between threats of actual violence against 
 the person, or such other threats as a man of common firmness cannot 
 stand against, and other sorts of threats. Money obtained in the former 
 cases, under the influence of such threats, may amount to robbery ; but 
 not so in cases of threats of other kinds. But this is a case of threat- 
 ening, and not of deceit ; and it must be a threat of such a kind as will 
 sustain an indictment at common law, either according to one case, at- 
 tended with duress, or, according to others, such as may overcome the 
 ordinary free will of a firm man, and induce him from fear to part with 
 his money. The present case is nothing like any of those ; it is a mere 
 threat to bring an action, which a man of ordinary firmness might have 
 resisted." (e) 
 
 It appears that, according to the principles laid down in this case, an 
 indictment will lie, at common law, for extorting money by actual du- 
 ress, or by such threats as common firmness is not capable of resisting. 
 Therefore, where money is extorted from a party by the threat of ac- 
 cusing him of an unnatural crime, and from the circumstances of the 
 case the offence does not amount to robbery,(/] there seems no rea- 
 son to doubt but that it is indictable as a misdemeanor at common 
 ]&w.(g) 
 
 Demanding property with menaces, with intent to steal ; accusing, or Offences by 
 threatening to accuse of an infamous crime with an intent to extort pro- statut€S - 
 perty, and by such accusation or threat actually extorting; the sending 
 or delivering of a threatening letter, or writing to any person, thereby 
 threatening to kill or murder, or to burn or destroy, or thereby with 
 menaces demanding property; accusing, or threatening to accuse, or 
 sending or delivering a letter, &c, accusing or threatening to accuse of 
 certain crimes with intent to extort money, &c, are offences of the de- 
 gree of felony by the provisions of recent statutes. 
 
 The 4 Geo. 4, c. 54, s. 3, recites, that whereas by the 9 Geo. 1, c. 4 Geo. 4, c 
 22, s. 1, it is enacted, " that if any person or persons shall knowingly *^| * g °fa™~ 
 send any letter without any name subscribed thereto, or signed with a 1, c. 22; 
 fictitious name, demanding money, venison, or other valuable thing, or 
 shall forcibly rescue any person being lawfully in custody of any officer 
 or other person for any such offence, or shall, by gift or promise of 
 money or other reward, procure any of his majesty's subjects to join 
 him or them in any such unlawful act, every person so offending, being 
 thereof lawfully convicted, shall be adjudged guilty of felony, and shall 
 suffer death, as in cases of felony without benefit of clergy;" and -™ (1 27 Geo - 
 whereas by the 27 Geo. 2, c. 15, it is among other things enacted, "that ' 
 
 , (d) 11 Mod. 137, more fully stated in G East, R. 133, 134. 
 (e) Rex v. Southerton, 2 East, R. 126, 140. And see vol. 1, p. 133. 
 (/) Ante, vol. 1, p. 884, et seq. 
 (y) See a precedent in 3 Chit. Crim. L. 841.
 
 707 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 if any person or persons shall knowingly send any letter, without any 
 name subscribed thereto, or signed with a fictitious name or names, let- 
 *708 tor or letters, threatening to kill *or murder any of his majesty's sub- 
 ject or subjects, or to burn their houses, outhouses, barns, stacks of corn 
 or grain, hay or straw, though no money or venison, or other valuable 
 thing, shall be demanded in or by such letter or letters, or shall forcibly 
 rescue any person being lawfully in custody of any officer or other per- 
 son for the said offences, every person so offending, being thereof law- 
 fully convicted, shall be adjudged guilty of felony, and shall suffer death 
 as in cases of felony, without benefit of clergy •" and whereas by the 
 
 and30Geo. 30 Geo. 2, c. 24, s. 1, it is among other things enacted, "that all per- 
 ' c " ' sons who shall knowingly send or deliver any letter or writing, with or 
 without a name or names subscribed thereto, or signed with a fictitious 
 name or names, letter or letters, threatening to accuse any person of any 
 crime punishable by law with death, transportation, pillory, or any other 
 infamous punishment, with a view or intent to extort or gain money, 
 goods, wares, or merchandise from the person or persons so threatened 
 to be accused, shall be deemed offenders against law and the public 
 peace, and the court before whom such offender or offenders shall be 
 tried, shall, in case he, she, or they shall be convicted of any of the 
 said offences, order such offender or offenders to be fined and imprisoned, 
 or be put in the pillory, or publicly whipped, or to be transported for 
 the term of seven years, as the court, in which any such offender or 
 
 And the offenders shall be convicted, shall think fit and order ; and whereas it is 
 
 6 XPC'llGllCV 
 
 of a lesser expedient that a lesser degree of punishment should be provided for the 
 
 pumsh- offence of sending threatening letters, in the cases mentioned in the two 
 inent <fec. . 
 
 first recited acts, and that the same degree of punishment should be in- 
 flicted in the cases mentioned in the last recited act, and be extended to 
 persons accessory to the said offences;" and then enacts, that so much 
 of the said recited acts as relates to the sending and delivering letters 
 in the cases therein respectively mentioned shall be repealed, and that 
 And enacts <<if any person shall knowingly and wilfully send or deliver any let- 
 ine o^de- ter or wr iting, with or without any name or signature subscribed there- 
 livering to, or with a fictitious name or signature, (demanding money or other 
 threaten va l ua ble thing,) or threatening to kill or murder any of his majesty's 
 ing letters subjects, or to burn or destroy his or their houses, outhouses, barns, 
 or writing, stacks of corn or grain, hay or straw, (or shall knowingly and wilfully 
 felonies send or deliver any such letter or writing threatening to accuse any of 
 punishable his majesty's subjects of any crime punishable with death, transporta- 
 portation tion, or pillory, or of any infamous crime, with a view or intent to ex- 
 Ac. tort or gain money, security for money, goods or chattels, wares, or mer- 
 chandise, from the person or persons so threatening,) or shall procure, 
 counsel, aid or abet the commission of the said offences, or of any of 
 them, or shall forcibly rescue any person being lawfully in custody of 
 any officer or other person for any of the said offences : every person so 
 offending, being thereof lawfully convicted, shall be adjudged guilty of 
 felony, and shall be liable, at the discretion of the court, to be trans- 
 ported beyond the seas for life, or for such term not less than seven 
 years, as the court shall adjudge, or to be imprisoned only, or to be im- 
 prisoned and kept to hard labour in the common gaol or house of cor- 
 rection for any term not exceeding seven years. "(h) 
 
 (h) The 4 Geo. 4, c. 54, contains no express provision for the punishment of accessories
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. *709 
 
 *This statute contained other enactments, but the clause which pro- 
 vided for the punishment of persons who might send letters, &c, threat- 
 ening to accuse of any infamous crime, received a construction which 
 caused the 6 Geo. 4, c. 19, to be passed for the purpose of extending 
 the signification of those words. (/.') The latter statute was, however, re- 
 pealed by the 7 & 8 Geo. 4, c. 27, which also repeals the 4 Geo. 4, c. 
 54, " except so far as it relates to any person who shall send or deliver 
 any letter or writing, threatening to kill or murder, or to burn or de- 
 stroy as therein mentioned, or shall be accessory to any such offence, or 
 shall forcibly rescue any person being lawfully in custody for any such 
 offence." 
 
 The 7 & 8 Geo. 4, c. 29, contained several enactments relating to de- 
 mands of property or money, accompanied with menaces or force, and 
 obtaining the property or money by threatening to accuse of an infa- 
 mous crime, but these provisions were repealed by the 1 Vict. c. 87, 
 
 ■• Hj) 
 
 The 7 & 8 Geo. 4, c. 29, s. 8, which is still in force, enacts, "that if 7 & 8 Geo. 
 any person shall knowingly send or deliver any letter or writing, de-g' "gfij- 8 ' 
 manding of any person, with menaces, and without any reasonable or letters con- 
 probable cause, any chattel, money, or valuable security, (k\ or if any tamin S 
 person shall accuse or threaten to accuse, or shall knowingly send or de- demands or 
 liver any letter or writing, accusing or threatening to accuse any person threaten- 
 of any crime punishable by law with death, transportation, or pillory, cuse a pai .. 
 or of any assault, with intent to commit any rape, or of any attempt or J7 of an 
 endeavour to commit any rape, or of any infamous crime, as hereinafter C ri m ™°to S 
 defined, with a view or intent to extort or gain from such person any extort mo- 
 chattel, money, or valuable security, every such offender shall be guilty ney ' 
 of felony, and, being convicted thereof, shall be liable, at the discretion 
 of the court, to be transported beyond the seas for life, or for any term 
 not less than seven years, or to be imprisoned for any term not exceed- 
 ing four years, and, if a male, to be once, twice or thrice publicly or 
 privately whipped (if the court shall so think fit) in addition to such 
 imprisonment."(7) 
 
 The ninth section, for defining what shall be an infamous crime within *710 
 the meaning of the act, enacts, " that the abominable crime of buggery, Sect - 9 « 
 
 Wit t 1 11 
 
 committed either with mankind or with beast, and every ^assault with s 
 
 after the fact to the offence of sending threatening letters, nor any for that of principals in 
 the second degree, or of accessories before or after the fact to the offence of rescuing persons 
 in custody for any such offence ; the principals in the second degree, therefore, are punisha- 
 ble in the same manner as the principals in the first degree, and the accessories are punisha- 
 ble (under the 7 & 8 Geo. 4, c. 28, ss. 8 and 9, and the 1 Vict. c. 90, s. 5,] in the manner 
 stated in note (m), ante, p. 448. C. S. G. 
 
 (i) See Rex v. Hickman, R. & M. C. C. R. post, p. 716. 
 
 (j) This section repeals so much of the 7 & 8 Geo. 4, c. 29, and 9 Geo. 4, c. 56, (relating 
 to Ireland) " as relates to any person who shall with menaces, or by force, demand any chat- 
 tel, money, or valuable security of any person, with intent to steal the same, and so much of 
 the same acts as relates to any person who shall accuse, or threaten to accuse, any other 
 person of any infamous crime, with a view or intent to extort or gain from him, and who 
 shall by intimidating him by such accusation or threat, extort or gain from him any chattel, 
 money, or valuable security, and so much of the same acts as relates to the punishment of 
 principals in the second degree, and of accessories before and after the fact respectively, to 
 such of the felonies punishable under these acts as are hereinbefore referred to." 
 
 (Jc) See 7 & 8 Geo. 4, c. 29, s. 5, ante, p. 73. 
 
 (I) The 9 Geo. 4, c. 55, s. 8, relating to Ireland, is similar to this section. See the 7 & 8 
 Geo. 4, c. 29, s. 4, and the 1 Vict. c. 90, s. 6, ante, p. 128, as to hard labor and solitary con- 
 finement, and the 7 & 8 Geo. 4, c. 29, s. 61, ante, p. 128, as to the punishment of principal? 
 in the second degree and accessories.
 
 710 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 be deemed intent to commit the said abominable crime, and every intent or endea- 
 an mfam- your ^ colnm it the said abominable crime, and every solicitation, (m) 
 
 ous crime. . . ' J 'V, / 
 
 persuasion, promise, or threat offered or made to any person, whereby 
 to move or induce such person to commit or permit the said abominable 
 crime, shall be deemed to be an infamous crime within the meaning of 
 this act." 
 i Vic. c. The 1 Vict. c. 37, s. 4, enacts, "that whosoever shall accuse or threaten 
 *' ' s ". 4 : v to accuse any person of the abominable crime of buggery committed 
 propertyby either with mankind or with beast, or of any assault with intent to corn- 
 threat of m \i the sa j,j abominable crime, or of any attempt or endeavour to coin- 
 unnatural m ' 1 ^ the said abominable crime, or of making or offering any solicitation, 
 crimes. persuasion, promise, or threat to any person whereby to move or induce 
 such person to commit or permit the said abominable crime, with a view 
 or intent in any of the cases aforesaid to extort or gain from such per- 
 son, and shall by intimidating such person by such accusation or threat 
 extort or gain from such person any property, shall be guilty of felony, 
 and being convicted thereof shall be liable, at the discretion of the 
 court, to be transported beyond the seas for the term of his or her natu- 
 ral life, or for any term not less than fifteen years, or to be imprisoned 
 for any term not exceeding three years. (n) 
 Demand- By sec. 7, " whosoever shall with menaces or by force, demand any 
 ing v, money property of any person with intent to steal the same, shall be guilty of 
 ces . felony, and, being convicted thereof, shall be liable to be imprisoned for 
 
 any term not exceeding three years. "(o) 
 Punish- By sec. 9, " in the case of every felony punishable under this act, 
 
 ment of ac- evei y principal in the second degree and every accessory before the fact 
 shall be punishable with death or otherwise in the same manner as the 
 principal in the first degree is by this act punishable ; and every acces- 
 sory after the fact to any felony punishable under this act (except only 
 a receiver of stolen property) shall, on conviction, be liable to be im- 
 prisoned for any term not exceeding two years." 
 Offences By sec. 10, "where any person shall be convicted of any offence pun- 
 
 byTmpri- 6 i sna ^e under this act for which imprisonment maybe awarded, it shall 
 sonment. be lawful for the court to sentence the offender to be imprisoned, or to 
 be imprisoned and kept to hard labour, in the common gaol or house of 
 correction, and also to direct that the offender shall be kept in solitary 
 confinement for any portion or portions of such imprisonment, or of such 
 imprisonment with hard labour, not exceeding one month at any one 
 time, and not exceeding three months in any one year, as to the court, 
 in its discretion shall seem meet." 
 Construe- By sec. 12, " the word < property' shall throughout this act be deemed 
 tionofthe to denote everything included under the words 'chattel, money, or 
 perty." valuable security,' used in the said acts of the seventh and eighth years 
 and ninth years respectively of King George the Fourth."(o) 
 
 By sec. 13, " where any offence punishable under this act shall be 
 committed within the jurisdiction of the Admiralty of England or of 
 *711 Ireland, the same shall be dealt with, inquired of, tried, and *determined 
 in the same manner as any other felony committed within that juris- 
 diction.'^ p) 
 
 (m) These words were introduced into the 6 Geo. 4, c. 19, in consequence of the decision 
 in Rex v. Hickman, R. & M. C. C. R. 34, post, p. 716. 
 
 (») See the other sections of this statute, ante, vol. 1, p. 867. 
 (o) See the 7 & 8 Geo. 4, c. 29, s. 5, ante, p. 73. 
 (j>) By sec. 14, the act does not extend to Scotland.
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. 711 
 
 The offence to which these statutes apply seem to be, I. The sending Different 
 or delivering any letter or writing threatening to kill or murder, or to ffe n c e t 
 burn or destroy houses, &c. II. Demanding property with menaces, 
 with intent to steal. III. Accusing or threatening to accuse of an in- 
 famous crime, with intent to extort or gain, and thereby extorting or 
 gaining. IV. Sending or delivering any letter or writing demanding, 
 with menaces, and without any reasonable cause, any chattel, &c. V. 
 Accusing or threatening to accuse any person of any of the crimes 
 mentioned in the acts, with an intent to extort, &c. VI. Sending or 
 delivering any letter or writing, accusing or threatening to accuse any 
 person of any such crimes, with a like iutent.(g') 
 
 Some of the cases decided upon the repealed clauses of the 9 Geo. 1, 
 c. 22, the 27 Geo. 2, c. 15, the 30 Geo. 2, c. 24, and 4 Geo. 4, c. 54, 
 may assist in the construction of the present statutes. 
 
 The construction of the 9 Geo. 1, c. 22, was much considered, in a Robinson's 
 case where the prisoner, Michael Robinson, was indicted for sending a ?, ase ; As t( ? 
 
 tllC <{*' ill (f lit! 
 
 certain letter, dated, &c, without any name subscribed thereto, to one J. within the 
 0. Oldman, demanding of him a certain valuable thing, namely, a bank- repealed 
 note, against the form of the statute. The letter, on which the indict- tn ' e y g eo- 
 ment proceeded, was as follows : — 1» <?. 22. 
 
 « Sir, 
 " I am well pleased to find that I am not likely to be mistaken in the 
 idea I have entertained of you amongst men of a proper and liberal way 
 of thinking : an understanding on such a matter as this is the easiest 
 thing imaginable, and in repeating that you will find me a gentleman, 
 I wish you to be satisfied that I am as incapable of taking any unmanly 
 advantage as of wantonly sporting with the feelings of any one ; I have 
 ever despised and execrated the cowardly assassin, who, skulking in 
 obscurity, sends forth his malignant shafts to wound the peace and the 
 character of individuals ; and I have, therefore, uniformly resisted every 
 overture that has been made me for such a purpose. My situation as 
 a literary character has teemed with temptations, but a sacred principle 
 of honour has superseded them all. The subject on which I have 
 addressed you has long lain dormant, and it was because I thought the 
 attack of a most serious ^complexion that I hesitated for such a length *712 
 of time in giving any countenance to it, not that I ever sought for any 
 circumstances to influence my judgment or qualify my opinion, and for 
 all that has ever come to my knowledge, it may be all the moonshine 
 of the moment: I am, therefore, so far candid, and I trust, not inden- 
 ts) The recited and repealed clauses of the 9 Geo. 1, c. 22, 27 Geo. 2, c. 15, and 30 Geo 
 2, c. 24, created different offences. It was once submitted that the offence in the 30 Geo. 2. 
 c. 24, was the same as that contained in the 9 Geo. 1, c. 22 ; but the judges denied this, say- 
 ing that the 9 Geo. 1, c. 22, extended to such cases only in which there was an actual de- 
 mand, whereas the 30 Geo. 2, c. 24, applied to cases which fell short of a demand, and inclu- 
 ded the letters sent with a view or intent to extort money, though no demand were made ; 
 and, therefore, that the 30 Geo. 2, c. 24, was no repeal of the 9 Geo. 1, c. 22. RobinsonV 
 case, 2 Leach, 749. 2 East, P. C. c. 23, s. 2, p. 1110. There were, in fact, important diffe- 
 rences between these recited and repealed clauses in respect of the demand. The 9 Geo. 1 , 
 c. 22, required that there should be a demand of money, venison, or other valuable thing. 
 Under the 27 Geo. 2, c. 15, no demand of anything was necessary. And the 30 Geo. 2, c. 
 24, applied (inly to cases where the letter or writing fell short of an actual demand, and was 
 sent with a view or intent to extort or gain money, goods, wares, or merchandises. In 2 
 East, P. C. c. 23. s. 2, p. 1 115, it is said that upon the conference in Robinson's case, it was 
 agreed by all the judges that if an indictment were framed upon the 30 Geo. 2, c. 24, and a 
 demand proved there must be an acquittal.
 
 712 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 cate ; and it will at least be a satisfaction to you to be told, with a 
 solemnity becoming the character I have professed myself, that not a 
 soul but myself is in possession of a line of the MS., nor has it ever 
 been out of my hands, or perused or heard by any person living since 
 first I had it ; so that when it is committed to the flames all will neces- 
 sarily die with it. Of this you shall have a testimony so clear and 
 unequivocal that it will not be possible for you afterwards to doubt. 
 Thus much I have suggested for your satisfaction ; you will now give 
 me leave to say something on behalf of the cause I have engaged in. 
 I have not the least objection to an interview, and I readily close with 
 your proposition ; but there are a few preliminaries which 1 must first 
 heg leave to adjust. Perhaps I may be more anxious to urge them, in 
 order to have some proof of your sincerity, after which I am at your 
 service. In order to relieve a destitute and unhappy family, struggling 
 with sickness and sorrow, you will permit me to be your almoner. 
 Will you enable me to dispose of a little of your money, as I shall see 
 occasion ? It is a duty I owe to the cause of humanity to urge it. 
 Remember, sir, I am now only making my appeal to your benevolence. 
 I am holding out no delusions to exact the involuntary tribute. I am 
 asking you, as a gentleman, as a man, to give me some earnest of your 
 intention to prove what I am so strongly inclined to give you credit for. 
 Inclose a bank-note in a letter addressed to R. R., and let it be left at 
 the Cambridge coffee-house, the top of Newman-street, in Goodge-street, 
 on the side of the bar. At the entrance of the coffee-room is a bracket 
 for letters ; let it be placed there between the hours of eleven and one, 
 on Thursday next; and at five o'clock on the same day a line shall be 
 sent by a porter to your house to acknowledge the receipt ; after which, 
 if you will name any day (Friday excepted) in the following week on 
 which it will suit you, in the evening, to take a bottle of wine at the 
 King's-head tavern, in Middle-row, Holborn, or elsewhere, I will with 
 pleasure attend you. Our meeting, however, is to be private, and tete- 
 a-tete. Thus possibly, over the ashes of the MS. a phoenix may arise 
 that may prove the forerunner to friendship. I shall send to the coffee- 
 house between the hours of one and four, and I will venture to say 
 that you will have no reason to be dissatisfied with the event of this 
 correspondence. To obtain confidence it is necessary, or at least rea- 
 sonable, to expect that one should be reposed. 
 
 " I have the honour to remain, sir, 
 
 " Your obedient humble servant, 
 
 « R. R." 
 "Tuesday, 12th January, 1796.'' 
 "J. O. Oldham, Esq., 
 " Brook-street, 
 (Private.} Holborn." 
 
 It appeared that the prosecutor had served an apprenticeship with a 
 person named Dolly, by whom he was afterwards taken into partner- 
 *713 ship ;* that upon Dolly's death a report was spread that the prosecutor 
 had been the author of his death, upon which he brought an action 
 against two persons, and had judgment against them; that, before the 
 letter in question was sent, several other letters had been written by 
 the prisoner to the prosecutor, to which he returned answers, for the 
 purpose of obtaining information of the prisoner's place of abode, in
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. 713 
 
 order to bring him to justice. And all these letters were read in evi- Other let- 
 
 dence, as serving to explain the letter upon which the prisoner was e j r inevU 
 
 indicted. It was intimated in them that another person, who was a dence to 
 
 friend of the prisoner's and who was in distress, had put certain MS. i^e^o^ 110 
 
 into his hands, containing a charge of the prosecutor's having murdered which the 
 
 his former master, Dolly, and afterwards married the widow, his ac- indlctment 
 ,. , ', ,, •" . .... . ,. , ', _,„ was found- 
 
 comphce; but that the prisoner was unwilling to publish the Mb. e d. 
 
 containing so serious a charge without giving a previous intimation to 
 the prosecutor, and hearing what he had to propose upon the subject. 
 A subsequent correspondence between the prosecutor and the prisoner 
 was also given in evidence ; in the course of which the prisoner com- 
 municated a few pages of the supposed MS. in verse, from which the 
 charge alluded to was to be plainly inferred. Upon this evidence the 
 learned judge before whom the prisoner was tried left the case to the Direction 
 jury to say whether the prisoner sent the letter above set forth, and ° ejury " 
 whether it contained a threat to publish a libel on the prosecutor, im- 
 puting to him the death of Dolly, unless he would send the prisoner a 
 bank-note ; and in case they were of that opinion they were directed to 
 find the prisoner guilty. The jury found him guilty, and also found 
 specially that the prisoner sent the letter in the indictment, and that it 
 contained a threat to publish a libel, imputing to the prosecutor the 
 murder of his master, in order to extort money from him. Several Objections, 
 objections were taken to this conviction, and amongst others it was 
 objected that the letter did not contain a threat or demand, so as to 
 bring the case within the 9 Geo. 1, c. 22. But the twelve judges, after 
 hearing the point argued, all agreed in overruling the objection. Buller, 
 J., in delivering their opinion, after adverting to the preamble of the 
 statute, (upon which the counsel for the prisoner had founded his argu- 
 ment, by contending that it necessarily so far restrained the enacting 
 clause that the demand contained in a letter must be subscribed and 
 peremptorily accompanied with a threat of bodily harm,) said : — 
 « Where the enacting clause of a statute refers to such offences only as Judgment. 
 are contained in the preamble, it may be restrained by the preamble ; 
 but in this case it would be doing violence to very plain words, and 
 repealing some of the obvious provisions of the statute, if it were so 
 restrained. It is no uncommon thing for the preamble of a statute to 
 recite a particular mischief, as the cause of making it, and yet for the 
 enacting part to embrace more general objects, and to extend to other 
 cases which the legislature thought within the mischief. If the enact- 
 ing clause in this case were to be restrained by the preamble the statute 
 would apply only to cases where several persons had joined together in 
 confederacy ; where the letter was signed with a fictitious name only, 
 and where venison or money was demanded; and not to a letter without 
 a name, nor to a demand of any other valuable thing than money or 
 venison, nor to any demands by such letters, whether accompanied with 
 a threat of bodily harm *or not. But the enacting clause expressly *714 
 applies to a single offender ; to a letter sent without a name, as well as 
 to one signed with a fictitious name; and to a demand of any valuable 
 thing as well as of money or venison ; and also to all demands by such 
 letters, whether accompanied with a threat of bodily harm or not. I 
 agree that a mere request, such as asking charity without imposing any 
 conditions would not come within the sense or meaning of the word 
 1 demand,' but here the demand was made under a threat that if it was Demand.
 
 714 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 not complied with, the prisoner would publish a libel against the prose- 
 cutor, imputing to him the death of his master : for this is the con- 
 struction which the jury by their verdict have expressly put upon the 
 letter. Now, whether the letter does amount to such a demand or not 
 is a question for the judges to determine, upon reading it as it is 
 stated in the record ; and they are all clearly of opinion that this! s 
 a demand within the true intent and meaning of this statute. It 
 is a demand of money or money's worth (which a bank-note is,) 
 by holding out a threat to impute murder to the prosecutor, and to 
 injure his fame and his character ; and not a request of voluntary cha- 
 rity."^) 
 Girwood's j n tj ie following case, upon the 27 Geo. 2, c. 15, it was holden that 
 tion left to ^e construction of the letter, namely, the question whether it contained, 
 the jury, in the terms of it, an actual threatening to kill or murder, was properly 
 letter con- ^^ *° tne J ur y -^ ne nrs ' coun t °f * ne indictment charged the prisoner 
 tained an generally with feloniously sending to the prosecutor a certain letter in 
 
 actual writing; with the fictitious letters J. W. thereunto subscribed, threat- 
 threaten- o ' 
 ing to kill ening to kill and murder the prosecutor, (s) In the second count the 
 
 or murder, \ e n er was se t ou f, i n th e following form : 
 
 within the ° 
 
 repealed 
 
 clause of u gj^ it February 9, 1776. 
 
 c# 15# ' "I am sorry to find a gentlemen like you would be guilty of taking 
 Mac Allester's life away for the sake of two or three guineas ; but it 
 will not be forgot by one who is just come home to avenge his cause. 
 This you may depend upon, whenever I meet you, I will lay my life 
 for him in this cause. I follow the road, though I have been out of 
 London ; but on receiving a letter from Mac Allester before he died, 
 for to seek revenge, I am come to town. I remain a true friend to 
 Mac Allester." "J. W." 
 
 The learned judge before whom the prisoner was tried left it to the 
 jury to consider whether this letter contained in the terms of it an 
 actual threatening to kill or murder, directing them to acquit the pri- 
 soner if they thought that the words might import anything less than 
 to kill or murder. The jury found the prisoner guilty, but judgment 
 was respited to take the opinion of the twelve judges upon this point, 
 (amongst others) viz., whether the letter purported to be a letter threat- 
 ening to kill or murder? And ten judges, who were present at the 
 conference were all clearly of opinion that the conviction was right, 
 and that the construction of the letter was properly left to the jury.(^) 
 *715 It was holden, however, in a subsequent case, by the majority of 
 Jepson and t] ie judges, that as the letter in question did not, by necessary con- 
 case^upon struction, import a threat to burn the prosecutor's farm-house, and 
 the same buildings, a conviction upon the 27 Geo. 2, c. 15, was wrong. The 
 
 State letter WaS aS f0ll0WS : ~ 
 Holden 
 
 lettered 8 " Mr - WooDGATE > Sir > " March 3d > 1798 - 
 
 not by ne- "1 am very sorry to acquaint you that we are determined to set your 
 cessarycon- m {\\ on nrGj an( } likewise to do all the public injury that we are able to 
 
 (r) Robinson's case, 1796. 2 Leach, 749. 2 East, P. C. c. 23, s. 2, p. 1110. 
 (s) See post, p. 721, as to the necesssity of setting out the letter in the indictment. 
 (0 Girdwood's case, cor. Hotham. B., 0. B., 1776, and East. T. 1776. 1 Leach, 142. 2 
 East, P. C. c. 23, s. 4, p. 1120. The prisoner was executed.
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. 715 
 
 do you, in all your farms and seteres(u\ which you are in possession of, Amotion, 
 without you on next(w) day release that Ann Wood which you put in \^^ t t * 
 confinement. Sir, we mention in a few lines that we hope if you have bum, &c. 
 any regard for your wife and family, you will take our meaning with- * io c ° n ™^ 
 out any further; and if you do not we will persist as far as we possi- that stat- 
 bly can, so you may lay your hand at your heart, and strive your utter- tute was 
 most ruin. I shall not mention nothing more to you until such time 
 as you find the few lines a fact, with our respect. So no more at this 
 time from me, "R. R." 
 
 Upon the trial, Mr. Woodgate, the prosecutor, swore that he had had 
 a share in a mill three years before this letter was written, but had no 
 mill at that time ; but that he held a farm when the letter was written 
 and came to his hands, and still held it, with several buildings upon it. 
 It was objected that this was not such a letter as comprehended the 
 offence in the act of parliament; and the prisoner having been convict- 
 ed, the point was submitted to the consideration of the judges, who 
 agreed (except Eyre, C. J., who was absent) that as the prosecutor had 
 no such property at the time as the mill which was threatened to be 
 burnt, that part of the letter must be laid out of the question. As to 
 the rest of the letter, Lord Kenyon, C. J., and Buller, J., were of 
 opinion that it must be understood as also importing a threat to burn 
 the prosecutor's farm-house and buildings; but the other judges not 
 thinking that a necessary construction, the conviction was holden wrong, 
 and a pardon recommended. (w) 
 
 It has since been held that upon the trial of an indictment for send- On an in- 
 ing a letter to the prosecutor, threatening to burn his house, etc., it may y^™. 6 ^ 
 be left to the jury to say whether the letter amounted to such a threat. 4 Geo. 4, c. 
 The indictment charged that the prisoners feloniously did send to J. 54 ' ?: 3 ' for 
 Belcher a writing, without name or signature, directed to the said J . letter 
 Belcher, by the name and description of " Starve Gut Belcher," threat- tbreaten- 
 ening to kill and murder him, which said writing is as follows, viz : — &0> w hi c h' 
 « Starve Gut Belcher if you dont go on better great will be the conse- js set out, 
 quence; what do you think you must alter an (or) must be set fire; this lef^f^the 
 came from London; i say your nose is as long rod gffg sharp as a flint, jury to say 
 1835. You ought to pay your men." A second count set out the let- th^letler 
 ter as threatening to burn and destroy *his houses, outhouses, barns, sent 
 stacks of corn and grain, hay and straw. Lord Denman, C. J., asked amou ° ted 
 the jury in the terms of the statute, whether this was a letter threat- threat, 
 ening to put J. Belcher to death, or to burn and destroy his houses, *716 
 outhouses, barns, stacks of corn and grain, hay and straw? The jury 
 negatived the threat to put him to death, but found that the letter 
 threatened to fire his houses, outhouses, barns, stacks of corn and grain, 
 hay and straw. Lord Denman, C. J., had some doubts whether this 
 question ought to have been left to the jury, and whether the letter 
 could be in point of law a threatening letter, to the effect found ; but 
 
 (u) It is said that by this was understood "settings or lettings," and that the whole letter 
 was evidently the production of an illiterate person, being falsely spelt nearly throughout. 
 2 East, P. C. c. 23, p. 1115, note (a). 
 
 (r) In 2 East, ibid., the learned writer says, that the word at this point was unintelligible 
 in his copy. 
 
 (w) Rex v. Jepson and Springett, cor. Lord Kenyon, C. J., Essex Sum. Ass. 1798, and con- 
 sidered by the judges in Mich. T. 1798. 2 East, P. C. c. 23, s. 2, p. 1115.
 
 716 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 upon a case reserved, the judges held the conviction good after ver- 
 dict, (as) 
 Under the A letter threatening to accuse the prosecutor of having made over- 
 c 54°'s 3 tures to the prisoner to commit sodomy with him, did not threaten to 
 such crimes charge such an infamous crime as to be within the 4 Geo. 4, c. 54, s. 3. 
 onlywereto Q Qe coun t f an indictment charged that the prisoner feloniously did 
 infamous as send to J. Fabling a certain letter threatening to accuse the said J. Fab- 
 subjected a jj Q g f £h e g" eilce f making overtures to him, the prisoner, to commit 
 famous sodomy with the said J. Fabling, being an infamous offence and crime, 
 punish- with a view to extort money from the said J. Fabling. The letter set 
 capacitated out m this count contained the following passage : — « You well know 
 him from you have several times made overtures to me, of which I can indite you 
 witness °f sodomy." The jury having found the prisoner guilty, Littledale, J., 
 reserved for the consideration of the judges the question, whether the 
 count should not have averred that an overture by the prosecutor to 
 commit sodomy with the prisoner was an infamous crime; and secondly, 
 if it were necessary so to aver, whether the words " being an infamous 
 offence and crime," must not be considered as relating to the words 
 describing the complete offence which immediately preceded them, and 
 not the overtures to commit the crime. The judges were of opinion 
 that a charge of making overtures to commit sodomy was not an infam- 
 ous crime within this act, and they held that they were bound to take 
 the word "infamous" in its legal sense, and that such overtures, how- 
 ever they would disgrace and lead to detestation, would not subject the 
 person making them to an infamous punishment, or prevent his being a 
 witness, and therefore the conviction was wrong. (y\ 
 A letter A letter intimating that some persons had conspired to burn or other- 
 
 stating that w j ge destroy the property of the prosecutor, and offering to make a dis- 
 had over- closure if a certain sum of money was placed in a certain spot for the 
 heard per- wr it e r, is not within the 7 & 8 Geo. 4, c. 29, s. 8, though it mav create 
 
 sons agree ' . . ,.,.„.,' . J , . 
 
 to injure apprehension in the owner s mind, it it does not contain a menace. (#.?/) 
 the proper- The prisoner was indicted under the 7 & 8 Geo. 4, c. 29, s. 8, for sending 
 prosecutor, the following letter to Mr. Young, demanding money with menaces : — 
 
 and if he 
 
 would lay q. 
 
 thirty ou > 
 
 sovereigns " As you are a gentleman and highly respected by all who know 
 
 717 *you, I think it my duty to inform you of a conspiracy. There is a few 
 
 tain place V0UD £ men wno nave a g ree d among themselves to take from you per- 
 
 the writer sonally a sum of money, or injure your property. I have overheard all 
 
 would give £ ue affair, I mean to say, your building property, in the manner they 
 
 tiontofrus-have planned this dreadful undertaking, would be a most serious loss. 
 
 trate the They have agreed to commence this upon an appointed time in the 
 
 emp ' course of this winter, which would be a most dreadful sight. Sir, I 
 
 could give every particular information how you may preserve 3-our 
 
 property and your person, and how to direct and secure the offenders. 
 
 Sir, if you will lay me a purse of thirty sovereigns upon the garden 
 
 edge, close to Mr. Tatler's garden gate, I will leave a letter in the place, 
 
 to inform you of the night this is to take place. I can also inform you 
 
 (z) Rex v. Tyler, R. & M. C. C. R. 428. 
 
 \y) Rex v. Hickman, R. & M. C. C. R. 34. The word " solicitation'' was introduced in the 
 6 Geo. 4, c. 19, the 1 & 8 Geo. 4, c. 29, s. 9, and the 1 Vict. c. 87, s. 4, to meet this case. 
 Another point on which the judges were equally divided, was whether the letter supported a 
 count for sending a letter demanding money from the prosecutor. 
 
 (yy) MSS. Bayley, J. 3 Burn. J. D. & Wins. 506.
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. 717 
 
 how you could be sure to secure the offenders ; but you must keep all 
 this quite secret, and not make a talk of it, as it would come to their 
 ears, and then they would put it off to another time. Sir, I hope you 
 will not attempt to seize upon me, when I come to take up the money 
 and lay down the note of information. Sir, you will find I am doing 
 you a most serious favour. You will please excuse me in not describing 
 my name, but I will make myself known the day after you have taken 
 them, and be a witness against them. I shall come to lay down my 
 letter on -the 1st of December if I find the money. Sir, I am your un- 
 known friend. " 
 
 It appeared that the prisoner had written the letter, and had done so 
 with an intention of getting the thirty sovereigns to leave the country. 
 For the prosecution it was contended that the letter contained a suffi- 
 cient demand of money, as the request was accompanied by a condition, 
 namely, to discover persons going to do a certain act, and Robinson's 
 case(z) was cited. And with respect to the menaces, to hold that the 
 letter contained none, would be equivalent to holding that, whenever 
 the menaces came from one person, and the letter from another, neither 
 could be indicted ; and, at all events, it was a question for the jury 
 whether the letter did contain menaces. Garwood's case. (a) Bolland, 
 B., thought that he ought to decide whether the letter contained menaces 
 or not ; but he consulted Littledale, J., who thought the question should 
 be left to the jury; and Bolland, B., then left it to the jury to say ; 
 whether the letter contained menaces, and they convicted the prisoner ; 
 but, upon a case reserved, the judges were of opinion that the convic- 
 tion was wrong. (6) 
 
 An indictment on the 4 Geo. 4, c. 54, for sending a letter threatening Letter con- 
 to kill and murder R. Collier, set out the letter as follows : — taming a 
 
 ' threat to 
 
 murder. 
 " Sir, # 
 
 " You are a rogue, thief, and vagabond, and, if you had your deserts, 
 you should not live this week out ; I shall be with you shortly, and then 
 you shall nap it, my banker. Have a care, *old chap, or you shall dis- *718 
 gorge some of your ill-gotten gains, watches, and cash that you have 
 robbed the widows and fatherless of. Don't make light of this, or I'll 
 make light of you and yours. I am your 
 
 " Cut-thro at." 
 "March 15th, 1831." 
 
 It was objected that there was nothing in the letter which imported a 
 threat to kill and murder Mr. C. ; it was all hypothetical, and the signa- 
 ture " Cut-throat" could not be called in aid, for by the statute the 
 threat must be in the letter and not in the signature. And as the words 
 were of ambiguous meaning there ought to have been an innuendo to 
 explain them. But Patteson, J., held that the letter very plainly con- 
 veyed a threat to kill and murder, as no one who received it could have 
 any doubt as to what the writer meant to threaten. (c) 
 
 (z) Ante, -p. 111. (a) Ante, p. 714. 
 
 [b) Rex v. Pickford,« MSS. C. S. G., and 4 C. & P. 227. S. C. 3 Burn's J.,D. & Wma. 506, 
 Tindall, C. J., Garrow, R., Park, J. A. J., and Bosanqnet, J., thought this a letter demanding 
 money with menaces. The other eight judges inclined to a contrary opinion. MS. Bayley, J, 
 
 (c)"Rex v. Boucher," 4 C. & P. 562. 
 
 a Eng. Com. Law Reps. xix. 357. b lb. xix. 527.
 
 718 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 Threaten- The prisoner was indicted under the 4 Geo. 4, c. 54, s. 5, for having 
 curewU-°" feloniously and maliciously, with intent to extort money, charged and 
 nesses to accused A. B. with having committed the horrible and detestable crime, 
 ? "PP ort '? &c, and that he feloniously and maliciously did menace and threaten to 
 ready made prosecute the said A. B. The evidence was, that he had threatened to 
 was not a p rocure witnesses to support a charge already made. It was objected 
 ing to ac- for the prisoner that the statute applied only to the threatening to ac- 
 cuse within cuse prospectively, and that this was at most a threat to support such a 
 4 c. 54 s°5. charge by evidence. Bailey, J., " Threatening to procure witnesses to 
 support a charge already made is not within the act of parliament, 
 which makes it felony to extort money by threatening to accuse of an 
 indictable offence. It is one thing to accuse, but another to procure 
 witnesses in support of an accusation already made."(c?) 
 Sending a The two first counts of the indictment charged the prisoner with felo- 
 threaten- ' n i° us ly sending a letter to one G. Ley, threatening to burn and destroy 
 ing to burn a certain house belonging to and the property of the said Gr. Ley. The 
 a bouse of ^hird and fourth counts described the house as a certain house in the 
 
 which he is 
 
 the owner, possession of one T. Elliott, and then belonging to and being the property 
 
 but let by f fae said Gr. Ley. . It appeared that the house was the property of Gr. 
 
 occupied Ley, and inhabited by T. Elliott as his tenant, and that the letter was 
 
 by a tenant received by G. Ley. It was objected that the two first counts were not 
 
 offence proved, as the term " his" in the 4 Geo. 4, c. 54, s. 3, must have a pos- 
 
 within the sessory meaning, and according to the analogy of the rule of law in arson 
 
 54 s°3 ' C * an< ^ burglary, the house must be laid as that of the party actually 
 
 Sending a dwelling therein. And as to the two last counts the offence charged 
 
 letter to A., wag ^ e se nclirig the letter to G. Ley, threatening to burn the house of 
 
 ing to bum T. Elliott, which was held not to be an offence within the repealed clause 
 
 thehouseof f the 27 Geo. 2, c. 15, Rex v. Paddle :(e) and Maule, J., was of 
 
 opinion that the offence was not within the meaning of the statute. It 
 
 must otherwise be admitted that if a party should have any interest 
 
 whatever in a house, such as a reversion expectant on the determination 
 
 of a particular estate, however remote or contingent, the house would be 
 
 *719 ^sufficiently described as " his." As to the other counts, the offence 
 
 charged was that of sending a letter to A., threatening to burn the 
 
 house of B., which, according to the case cited, was not within the 
 
 act.(/) 
 
 Meaning of The word " accuse" in the 7 & 8 Geo. 4, c. 29, s. 7, meant to charge 
 
 "accl™" the prosecutor before any third person, and " threatening to accuse," 
 
 and * meant threatening to accuse before any third person. The first count 
 
 "threaten f t\ ie indictment was for extorting monev bv threatening to accuse the 
 
 to accuse" o j J J 
 
 in the 7 & prosecutor of an unnatural offence ; the second count for extorting it by 
 oq Ge °V 4 ' °' accus ^ n 9j & c - The prisoner accosted the prosecutor, and after intimating 
 to him that he and another person had seen him in the act of commit- 
 ting the offence alluded to, added, " Well, Sir, we don't want to say 
 anything about it; give us our allowance money, and we will say 
 nothing about it." The prosecutor gave him five shillings. It was ob- 
 jected that the words proved did not amount to a threat to accuse, or an 
 accusation within the 7 & 8 Geo. 4, c. 29, s. 7. That the word "accuse" 
 
 (d) Gill's case, 1 Lew. 305. The learned Judge seemed to think that a threat to prosecute 
 would amount to a threat to accuse within the meaning of the act. See Rex v. Abgood, a 2 
 C. & P. 436, post, p. 722. 
 
 (e) Post, p. 721. (/) Reg. v. Burridge, 2 M. & Rob. 296. 
 
 a Eng. Com. Law Reps. xiv. 209.
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. 719 
 
 imported a charge made before a magistrate, or some judicial tribunal. 
 But Patteson, J., was clearly of opinion that the words spoken by the 
 prisoner did bring the case within the act. By the former law it was a 
 felony to extort money by threatening to accuse the prosecutor to any 
 third party; and it was not necessary that the threat should be that of 
 accusing by course of law; and the 7 & 8 Geo. 4, c. 26, s. 7, being de- 
 claratory of the former law, could hardly be construed as less extensive 
 in its operation; neither was it necessary to construe the term "accuse" 
 in two different senses; the term "accuse," throughout the act, meant 
 to charge the prosecutor before any third person; and "threatening to 
 accuse" meant to charge before any third person. (#) 
 
 It was decided that the sending a letter signed with initials only, A letter 
 was sending; a letter without a name, within the 6 Geo. 1, c. 22, si £? e< f . 
 
 -i* • • • ' j» i • 'with tni- 
 
 Buller, J., in delivering the opinion of the judges on this point, said, tials only, 
 " Whether the letter be with or without a name is a simple fact appear- ™. a * con ~ 
 ing on the face of the letter itself. It is signed with two letters, R. R., a letter 
 which are so far from being a name, that no man on looking at the without a 
 letter only, can tell whether it meant to refer to any name, or what that w ithin the 
 name was.'YA) 9 Geo. 1, c. 
 
 In a case where the indictment, which was framed upon the 30 Geo. ' 
 2, c. 24, charged the prisoner with sending a threatening letter, in- an i nte nt to 
 tending "to extort and gain money" it was holden not to be supported extort mo- 
 by evidence of a letter threatening to accuse the prosecutor of an unna- supported 
 tural crime, if he did not give up a certain bill drawn by the prisoner, by proof of 
 and of which the prosecutor was the holder.(t) Stort J'*" 
 
 In a case where a question arose where there was sufficient evidence bill of ex- 
 of the prisoner's having sent the letter in question, knowing its con-° han ? e - 
 tents, the facts were that the prosecutor proved the receipt of the letter, lettter 
 by the penny post, at his house, in a street near Berkley-square, in the knowing 
 county of Middlesex; and in his tracing it up to one Elizabeth Robin- tent8> n " 
 son, who swore that she was employed in *going errands for the pri- *720 
 soners in Newgate, and that having received this letter from the pri- 
 soner's hands at the grate at Newgate, she immediately carried it to the 
 post-office in Newgate-street. And the servant of the office-keeper 
 confirmed her account, and both swore to the identity of the letter, the 
 direction being in a remarkable hand. The case was left to the jury, 
 with a direction to consider whether, from the prisoner's delivering the 
 letter, she knew the contents of it; and the jury, having found the pri- 
 soner guilty, the question was submitted to the consideration of the 
 judges, whether there were sufficient evidence to be left to the jury of 
 the prisoner's sending the letter knowing the contents ? The judges 
 held that the conviction was right. (f\ 
 
 The prisoners, who were husband and wife, were indicted on the 9 where the 
 Geo. 1, c. 22, and the 27 Geo. 2, c. 15, for feloniously sending a threat- wife wrote 
 ening letter to their master, demanding 101. The wife wrote the letter, ing lotteT" 
 and it was delivered to the prosecutor by the husband, who said he found and the 
 it in the prosecutor's garden ; but there was no evidence that he had ca l r s r |^ it 
 any knowledge of its contents. It was objected on behalf of the pri- to the par- 
 
 (ff) Rex v. Robinson, 2 M. & Rob. 14. 2 Lew. 273. 
 
 \h) Robinson's case, 2 Leach, 749. 2 East, P. C. c. 23, s. 3, p. 1110. Ante, p. 711. 
 
 \i) Major's case, 0. B. 1706, and Mich. T. 1796. 2 Leach, 772. 2 East, P. C. c. 23, s. 3, 
 p. 1118. 
 
 (j) Girdwood's case, 0. B. 1776, Easter T. 1776. 1 Leach, 142. 2 East, P. C. c. 23, s. 
 4, p. 1120. Ante, p. 714.
 
 720 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 ty threat- soners that the offence described by the statutes on which the indict- 
 
 t'hatthe men * was founded, was "knowingly sending a threatening letter," 
 
 husband, whereas the evidence only showed that the wife had written the letter, 
 
 ""."' L ''' and that the husband had delivered it, and that there was no proof of 
 
 privy to 
 
 the writ- its having been sent to the prosecutor. The court (Ashurst, J., and 
 ing, was Perryn, B.,) agreed that merely writing a threatening letter would not 
 the 9 Geo. constitute the offence within these acts of parliament; that carrying a 
 1, c. 22, or letter could not be comprehended under the word " send," in the sta- 
 
 27 Ceo 2 
 
 c. 15 nor' tutes j that the legislature had it not in contemplation that any person 
 could the would be the carrier of a threatening letter which he himself had writ- 
 be 1 convict ^ en or contrived, and that the act of delivering a threatening letter was 
 ed unless not the offence described in those statutes. That if any doubt could be 
 she wrote en tertained upon that point the legislature itself had removed it, for by 
 without the the subsequent act, 30 Geo. 2, c. 24, the offence of delivering as well 
 husband as sending a threatening letter was made a misdemeanor, punishable at 
 to the con- the discretion of the court, according to the circumstances of the case, 
 tents. But the court further observed, that there was still a question for the 
 
 consideration of the jury, for though M. H. were the wife of the other 
 prisoner, yet if the jury were of opinion that she wrote the letter herself 
 without any intervention of her husband, and sent it by him, without 
 his knowing anything of the contents, to the prosecutor, she alone 
 might be found guilty ; but that otherwise both the prisoners must be 
 acquitted. Ue\ 
 Sending In a case where the prisoners were indicted for sending a letter, the 
 
 by the post P ro °f was that the letter was of the handwriting of some of the prisoners, 
 or by in- and that it was thrown by the other prisoner into the yard of the prose- 
 cutor, from whence it was taken by a servant of the prosecutor, and 
 
 means 
 
 delivered to him, (7) And in another case the proof was that the letter 
 in question was in the handwriting of the prisoner who sent it to the 
 *721 post-office from whence it was sent in *the usual manner to the prose- 
 cutor.(m) In another case, where it was proved that the prisoner 
 dropped the letter into a vestry-room, which the prosecutor frequented 
 every Sunday morning, before service began, from whence the sexton 
 had picked it up, and delivered it to him, the learned judge said that 
 it seemed to be very immaterial whether the letter were sent directly to 
 the prosecutor, or were put into a more oblique course of conveyance, 
 by which it might finally come to his hands. (n) And in a subsequent 
 case it was holden that dropping a letter in a person's way, in order 
 that such person might pick it up, was a sending of the letter to such 
 
 (k) Rex v. John and Mary Hammond, 1 Leach, 444. 
 
 (/) Rex v. Jepson and Springett, cor. Lord Kenyon, C. J., Essex Sum. Ass. 1T98, and 
 Michaelmas T. 1798. 2 East, P. C. c. 23, s. 2, p. 1115. Ante, p. 715. 
 
 (m) Heming's case, cor. Chambre, J., Warwick Sum. Ass. 1799. 2 East, P. C. c. 23, s. 2, 
 p. 1116. 
 
 (n) Lloyd's case, cor. Yates, J., Hereford Spr. Ass. 1767. 2 East, P. C. c. 23, s. 5, p. 1122. 
 The case was submitted to the consideration of the judges on another point, on which the 
 indictment was holden to be defective [see post, p. 722), so that it became unnecessary for 
 them to give any opinion on the point above stated. In 2 East, P. C. ubri supra, the learned 
 writer in note (a) says, u Qu. whether, if one intentionally put a letter in a place where it is 
 likely to be seen and read by the party for whom it is intended, or to be found by some other 
 person, who it is expected will forward it to such party, and the letter do accordingly reach 
 its intended destination, this may not be said to be a sending to such parti/, supposing such an 
 ullegation to be necessary upon the true construction of the acts? The same sort of evidence 
 was given in Springett's case, (ante, p. 720,) in support of the allegation of sending a 
 threatening letter to the prosecutor and no objection was made on that ground. And the 
 general current of precedents is in the same form.''
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. 721 
 
 person. (o) In a case upon the repeal clauses of the 27 Geo. 2, c. 15. The letter 
 it was decided, that in order to bring the offence within that clause it ™ n f t J e tlie 
 was necessary to prove that the letter was sent to the person threatened ; person 
 and also that sending it to A., in order that he might deliver it to B., th ^ reaten - 
 was a sending it to B., if it were so delivered. A letter threatening to 
 burn the house of Rodwell, and the stacks of Brook, was sent to Kirby, 
 and the indictment charged the sending it to Kirby. Upon a case re- 
 served, the judges held that a sending to Kirby, as Kirby was not 
 threatened, was not within the statute ; and upon that account the 
 judgment was arrested ; but they intimated, that if Kirby had delivered 
 it to Rodwell or to Brook, and a jury should think that the prisoner in- 
 tended he should so deliver it, this would be a sending by the prisoner 
 to Rodwell or Brook, and would support a charge to that effect. (p) 
 
 Where a prisoner was indicted under the 4 Geo. 4, c. 54, for sending Evidence 
 a threatening letter to the prosecutor, and the only evidence against him of i S ?^ dmg 
 was his own statement that he should never have written the letter but 
 for W. Goodes ; Lord Abinger, C. B., held that there was no evidence 
 of the prisoner having sent the letter; as upon this evidence Goodes 
 might have taken the letter or might have sent it himself, having made 
 the prisoner write it ; and there was no evidence of the prisoner having 
 directed Goodes to take it.(j) 
 
 It was decided, upon reference to the judges, that it was necessary to The indict- 
 set forth the threatening letter in the indictment, in order that the court ^t I forth USt 
 might see whether it fell within the purview of the respective statutes, the letter. 
 It was contended in support of the indictment, upon which the point 
 was raised, that it pursued the words of the 9 Geo. 1, c. 22, (now re- 
 pealed) that the defendant was charged with *sending the letter " felo- *722 
 niously and contrary to the form of the statute ;" and that those words 
 imported that the letter was of such a nature as the statute had in view. 
 But the judges were of opinion that the indictment was bad in not setting 
 forth the letter itself : and that if the words " feloniously and contrary 
 to the form of the statute," were allowed to supply the place of the 
 letter, it would be leaving it to the prosecutor to put his own interpre- 
 tation upon it, and to the jury the construction of the matter of law.(r) 
 
 An indictment on the 4 Geo. 4, c. 54, s. 5, charged that the prison- Indict- 
 ers did feloniously with intent to extort money, charge and accuse J. N. J£ r eate°n- 
 with having committed the horrible and detestable crime, &c, and did ing to pro- 
 feloniously with intent to extort, &c, menace and threaten to prosecute the s ® cute a 
 said J. N. for the said pretended offence ; it was objected that the charge already 
 contained in the indictment was not within the terms of the 4 Geo. 4, ma J* e > in - 
 c. 54, s. 5, which applied only to threatening to accuse prospectively, 
 and not to a threat to prosecute a charge antecedently made; and Garrow, 
 B., after consulting Burroughs, J., held that the objection must prevail. 
 If the indictment had followed the terms of the statute, and it had 
 been proved that the prisoners had threatened to prosecute J. N., the 
 case would have been left to the jury to say whether that was not a 
 
 (o) Rex v. Wagstaff, Mich. T. 1819, Russ. & Ry. 398. 
 
 (p) Rex v. Paddle, East. T. 1822, Russ. & Ry. 484. And it seems from this case, that it 
 must appear upon the indictment that the letter was sent to the party threatened. See Reg. 
 v. Burridge, ante, p. 719. 
 
 (q) Rex v. Howe,' 1 C. & P. 268. 
 
 (r) Lloyd's case, ante, note (n). And the law of this case was recognized by Grose, J., in 
 delivering the opinion of the twelve judges in Hunter's case, 2 Leach, 031. 
 » Eng. Com. Law Reps. xxii. 50G. 
 
 Vol. ii.— 47
 
 722 OF THREATS AND THREATENING LETTERS. [BOOK V. 
 
 threatening to accuse him. But the offence laid in the indictment was 
 not sufficiently charged under the statute. (s) 
 
 We have seen that it has been held that an indictment under the 4 
 Geo. 4, c. 54, s. 5, (now repealed) for demanding money with menaces, 
 must have stated from whom the money was demanded, and that an in- 
 dictment on the same section for threatening to accuse, &c, must have 
 stated who was threatened. (d) 
 The intent It was also held to be necessary that the indictment should allege the 
 of the writ- i n terit of the writer in sending the letter consistent with and deducible 
 
 er should . o _ .... 
 
 be alleged from the letter itself. In a case already mentioned, where the indict, 
 correctly. m ent charged that the letter was sent to extort money, and it appeared 
 upon the face of the latter that it was sent with the view of inducing 
 the prosecutor to give up a bill of exchange, the judges held the alle- 
 gation not to be sustained. (tt) 
 Variance If the indictment state the offence of which the prisoner threatened 
 crime al- *° accuse * ne prosecutor, it must state it correctly. There were several 
 leged to counts in an indictment, charging the prisoner with threatening to ac- 
 th^t'd cuse ^ e P rosecu t° r of the crime of sodomy, and it appeared to Little- 
 dale, J., that the letter written by the prisoner only imputed to the pro- 
 secutor that he had solicited the prisoner to permit him to commit that 
 crime, he therefore directed the jury to acquit the prisoner on those 
 counts, (v) 
 Place The 9 Geo. 1, c. 22, provided that offences against that act might be 
 
 offence tried in any county in England ; but no such provision being made with 
 may be respect to offences within the other repealed statutes, the trial of such 
 n *793 offences was governed by the * general rule. Upon this rule the trial 
 might be in the county in which the prosecutor received the letter by 
 the post, though delivered by the prisoner and put into the post in 
 another county.(ic) And it seems that the offender might be tried in 
 the county in which he sent the letter, though the prosecutor received 
 it in another county. The offence of sending a threatening letter, would 
 seem to be complete, as far as depends on the offender, by his putting 
 the letter into the post-office to go into another county ; though the party 
 to whom it is sent afterwards receives it in the latter county, (x) The 
 Post-office post-office marks in town or country, proved to be such, are evidence 
 that the letters on which they appear were in the office to which those 
 marks belong at the dates which the marks specify ;(y) but a mark of 
 double postage paid on any such letter is not of itself evidence that the 
 letter contained an inclosure.(z) 
 
 (s) Rex v. Abgood,* 2 C. & P. 436. See Gill's case, 1 Lew. 305, ante, p. 718. 
 
 (t) Rex v. Dunckley, R. & M. C. C. R. 90, ante, vol. 1, p. 768. 
 
 (u) Major's case, ante, p. 719. (v) Rex v. Hickman, R. & M. N. C. C. R. 34. 
 
 (w) Girdwood's case, 1 Leach, 142. 2 East, P. C. c. 23, s. 4, p. 1120, ante, p. 714, where 
 the letter was received by the prosecutor in Middlesex, and the trial had in that county, 
 though the letter was delivered by the prisoner to a woman in London, and by her put into 
 the office, which was also in London. Esser's case, 2 East, P. C. c. 23, s. 7, p. 1125, where the 
 offence was laid in Middlesex, though the letter was dated from Maidstone, in Kent, and 
 sent by the post from Maidstone ; and Lord Mansfield held that as the letter was directed to 
 the prosecutor in Middlesex, where it was delivered, that was a sending in Middlesex, and 
 that the whole was to be considered as the act of the defendant to the time of the delivery 
 in that county. 
 
 (x) 2 East, P. C. c. 23, s. 7, p. 1125. Burn's Just. tit. Letter. And see now the 7 Geo. 4, 
 C. 64, s. 12, ante, p. 120. 
 
 (?/) Perkin's case, 1 Lew. 99, Park, J. A. J. Rex v. Burdett, b 4 B. & A. 95. 
 
 (z) Rex v. Plumer, Russ. & Ry. 264. 
 
 8 Eng. Com. Law Reps. xli. 209. •> lb. vi. 358.
 
 CHAP. III.] OF THREATS AND THREATENING LETTERS. 723 
 
 The prisoner was tried for feloniously sending to J. S. Tucker the fol- °. n an in- 
 lowing letter with intent to extort money from the said J. S. Tucker : — forsending 
 
 a threaten- 
 
 agir in g letter » 
 
 the priso- 
 
 " You perhaps did not expect to hear from me so suddenly : but when ner's de- 
 you turned me away from Laytonstone for a mere trifle, (that too at a claratl0Ils 
 time when by the late failures many scores of clerks were out of em- meaning of 
 ploy) you forgot that I had you in my power through your transactions the letter, 
 with me five nights following, (I have the dates and circumstances on ^^^ in 
 paper written at the time) and that from your conduct to me before I evidence. 
 went to live with you, you could expect no mercy from me. Did you ment'on 
 not, however, let it pass ? In a few words, I have taken advice upon the 4 Geo. 
 the subject, and know that if you are obstinate, it is in my power to t' c " b S- 
 
 , . - * ' . , , J , . , ' ^ ^ for sending 
 
 bring down ruin on your head and lntamy on your name. However, 1 a letter 
 will be merciful ; allow me to return to L. in the same manner as before, t nreaten - 
 I will never mention it again, as if I did I should lose everything, and cuse f an 
 gain nothing ; but it is impossible for me to get any situation in town at infamous 
 present. It is not true that Mrs. T. advertised, as you said j she is in not tave 
 great distress, and she is my mother, therefore I would wish to afford specified 
 her a little relief, if possible ; so send me five pounds to my address ; ^ thespe- 
 which, with the other you lent me, I will I. 0. U. for, and pay when Icified 
 get a place. If I do not hear from you by Saturday morning, you will cn . metlie 
 hear of it (enclosing five pounds.) Now, consider ruin and beggary on threatened 
 one side, and wealth and comfort on the other; remember that, if you to . c ^ ar S e 
 are obstinate, it will cost you all ; do as I say, it will cost you ^nothing, tentionally 
 I wait your answer before I proceed. As yet, I have given Mr. Norris °e left in 
 no names. On Saturday night (if you are silent) I will go too far to °%n'od. 
 retract." 
 
 " Yours obediently, 
 
 (Signed) " James Tucker, Junr." 
 
 The second count charged the prisoner with threatening to accuse the 
 said J. S. Tucker of a certain infamous crime, viz., with attempting and 
 endeavoring to commit the abominable crime of sodomy with the said 
 J. S. Tucker, with the same intent. The third count charged him with 
 threatening to accuse the said J. S. Tucker of an infamous crime with 
 the same intent. The fourth, fifth, and sixth counts were the same as 
 the former, except that the latter was called a paper-writing, and the 
 direction omitted. The third and sixth counts did not describe the spe- 
 cific crime, but alleged, generally, an infamous crime. All the counts 
 concluded against the statute, &c. The prosecutor, after proving the 
 letter in question, said, that on the Saturday following the Thursday 
 on which he received the letter, he 6aw the prisoner at a public house 
 in the Strand, and that he, the prosecutor, asked him what he meant 
 by sending him that letter, and what he meant by " transactions five 
 nights following." The prisoner said that the prosecutor knew what 
 he meant. The prosecutor denied it ; and the prisoner afterwards said, 
 " I mean, by taking indecent liberties with my person." The prisoner, 
 in cross-examination, asked the prosecutor whether on his oath he could 
 deny that he did take indecent liberties with his (prisoner's) person. 
 
 (a) This is the marginal note in the case of R. & M. C. C. R., but it does not appear that 
 any such point was reserved or decided, although such a point might have arisen on the 
 third and sixth counts. C. S. G.
 
 724 OF TIIREATS AND THREATENING LETTERS. [BOOK V. 
 
 The prosecutor said lie never did. Alexander, C. B., submitted the 
 
 following question to the judges, whether parol evidence to explain the 
 
 letter was properly received ? Adding, that without it, the prisoner 
 
 could not have been convicted, and that by his cross-examination he in 
 
 effect repeated the charge. And all the judges (except Littledale, J., 
 
 who was absent) were unanimously of opinion that such evidence was 
 
 properly received, and that the conviction was proper.(a) 
 
 Prior and From a case which was cited in a former part of this chapter, it 
 
 lTtter^may appears that prior and subsequent letters from the prisoner to the 
 
 be given in party threatened, may be given in evidence as explanatory of the rnean- 
 
 evi ence. -^ an( j j n ^ en ^ f ^he particular letter on which the indictment is 
 
 framed.(fr) 
 
 The court will, after the bill is found, upon the application of the 
 prisoner order the letter to be deposited with an officer, in order that 
 the prisoner's witnesses may inspect it.(c) 
 
 (a) Rex v. Tucker, R. & M. C. C. R. 134. We have seen that it has been held, on the 
 trial of an indictment for threatening to accuse a person of an abominable crime, that the 
 jury need not confine themselves to the consideration of the expressions used before the 
 money was given, but may, if those expressions are equivocal, connect with them what was 
 afterwards said by the prisoner when taken into custody. Reg. v. Kain, a 8 C. & P. 187, ante, 
 vol. 1, p. 898. 
 
 (b) Robinson's case, b ante, p. 713. 
 
 (c) Rex v. Harris, 6 C. & P. 105, Littledale, J., and Bolland, B. 
 
 a Eng. Com. Law Reps, xxxiv. 347. b lb. xxtf. 302.
 
 CHAP. I.] OF EVIDENCE. *725 
 
 BOOK THE SIXTH. 
 
 OF EVIDENCE. 
 
 CHAPTER THE FIRST. 
 
 OF WHAT NATURE EVIDENCE MUST BE — OF PRESUMPTIVE EVIDENCE. 
 
 Or THE RULE THAT THE BEST POSSIBLE EVIDENCE MUST BE 
 
 PRODUCED. AND OF HEARSAY EVIDENCE. 
 
 Before entering upon the subject of presumptive evidence, to which 
 the following section will be appropriated, it may be proper to pay 
 attention to a few points applicable to the law of evidence in criminal 
 prosecutions generally. 
 
 There is no difference as to the rules of evidence between criminal Rules of 
 and civil cases. What may be received in one case may be received in evidence . 
 the other : and what is rejected in the one ought to be rejected in the criminal as 
 other.(a) A fact must be established by the same evidence, whether it civil cases * 
 is -to be followed by a criminal or civil consequence. (b\ 
 
 It is doubtful whether a bill of exceptions lies in any criminal case.(c) Bill of ex- 
 In one case Lord Hardwicke mentioned it as a point not settled ; and ce P* lons t0 
 said that a bill of exceptions had never been determined to lie in mere 
 criminal proceedings, though he had known it allowed in informations 
 in the Court of Exchequer.^) If the judge who presides at the trial Case re- 
 shall be of opinion that there is a doubt whether he may not have ad- seryed - 
 mitted some evidence or witness improperly, or whether the facts proved 
 constitute the crime charged, he may, in his discretion, forbear to pass 
 sentence, or he may respite the judgment until the opinion of the fifteen 
 judges be obtained upon a case reserved. (e) If the case were clearly 
 made out by proper evidence in such a way as to leave no doubt of the 
 guilt of the prisoner in the mind of any reasonable man, such a con- 
 viction ought not to be set aside because some other evidence was given 
 *which ought not to have been received ; but if the case without such *726 
 improper evidence were not so clearly made out, and the improper evi- 
 dence might be supposed to have had an effect on the minds of the jury, 
 
 (a) By Abbott, J., in Rex v. Watson," 2 Stark. R. 155. 
 
 (b) Lord Melville's case, 29 How. St. Tr. 763. 
 
 (c) Sir H. Vane's case, 1 Lev. 68, S. C. Kel. 15. 1 Sid. 85. Hawk. P. C. b. 2, c. 46, s. 210. 
 Rex v. Lord Paget and others, 1 Leon. 5. Rex v. Nutt, 1 Barnardist. 307. 2 Phil. Ev. 
 465. 
 
 (d) Rex v. Inhabitants of Preston, Cas. temp. Hardw. 249. 
 
 (e) The proper course to raise objections to the insufficiency of the indictment is bv 
 demurrer, motion in arrest of judgment, or writ of error, and in recent cases the judge's 
 seem strongly disposed not to allow cases to be reversed on such objections. Reg. v. Pur- 
 chase, b 1 C. & Mars. 617. Reg. v. Overton, ibid. 655. 
 
 * Eng. Com. Law. Reps. iii. 291. >> lb. xli. 335.
 
 726 OF EVIDENCE. [BOOK VI. 
 
 it would be otherwise. (ee) But as it has since been determined, and 
 seems now to be settled, that where evidence, objected to on the trial of 
 a cause, is received by the judge, and is afterwards thought by the court 
 to be inadmissible, the losing party has a right to a new trial, on the 
 ground that it is impossible for the court to say what effect such evi- 
 dence may have produced on the jury,(/) it may well be doubted 
 whether, if the judges were of opinion that any evidence had been im- 
 properly admitted or rejected in a criminal case, the conviction would be 
 supported. 
 New trial. Whether the defendant hadbeen convicted on an indictment for felony, 
 there can be no new trial ; but after a conviction for a misdemeanor, a 
 new trial may be granted, at the instance of the defendant, where the 
 justice of the case requires it:(g}~f though inferior jurisdiction cannot 
 grant a new trial upon the merits, but only for an irregularity. (/;) Where 
 several defendants are tried at the same time for a misdemeanor, and 
 some are acquitted, and others convicted, the court may grant a new 
 trial, as to those convicted, if they think the conviction improper.(i) 
 And it is a rule that all the defendants convicted upon an indictment 
 for a misdemeanor, must be present in court when a motion is made for 
 a new trial on behalf of any of them, unless a special ground be laid 
 for dispensing with their attendance.^) No new trial can be had when 
 the defendant is acquitted, although the acquittal was founded on the 
 
 (ee) Rex v. Ball, Russ. & Ry. C. C. R. 132. Rex v. Oldroyd, ibid. 88, but see Rex v. 
 Harling, R. & M. C. C. R. 39. 
 
 (/) Crease v. Barrett, 5 Tyrw. 458. Wright v. Doe d. Tatham, 8 7 A. & E. 313. De Rut- 
 zen v. Farr, b 4 A. & E. 53. 
 
 (g) Rex v. Mawbey, 6 T. R. 638. Tidd, 942, 943. As to the grounds on which the appli- 
 cation may be made, see 1 Chit. Cr. L. 654. 
 
 (A) See the cases collected on this point in note (b) to Rex v. Inhabitants of Oxford, 13 
 East, 416. The Court of King's Bench, in that case refused a certiorari to remove an 
 indictment for a misdemeanor and proceedings thereon at the assizes, after conviction and 
 before judgment, which was prayed for the purpose of applying for a new trial, on the 
 judge's report of the evidence, on the ground of the verdict being against evidence and the 
 judge's direction. 
 
 (i) Rex v. Mawbey, 6 T. R. 619. 
 
 (k) Rex v. Teal, 11 East, 307. Rex v. Askew, 3 M. & S. 9. 
 
 -j- {In the United States, a new trial is granted to the prisoner, in capital cases, for any 
 cause which would be sufficient in a civil action, or on a conviction for a misdemeanor. 3 
 Dallas, 515, U. States v. Fries. 1 Bay, 372, State v. Hopkins. 17 Mass. R. 515, Common- 
 wealth v. Green.} 
 
 [For offences greater than a misdemeanor a new trial cannot be granted. In misdemea- 
 nors, there may where there has been a conviction, but not where there has been an acquit- 
 tal. People v. Comstock, 8 Wend. 549. 
 
 On an indictment where a jury can convict a defendant of a lesser offence, then an acquit- 
 tal for the major crime is a bar to a subsequent indictment for the minor offence. The State 
 v. Standifer § al., 5 Porter, 523. As if one be indicted for murder and acquitted, he could not 
 be again indicted for manslaughter. So where one is indicted on a charge of burglary he 
 cannot be tried again for larceny. The same individual, however, may at the same time, 
 and in the same transaction, commit two or more distinct crimes, and an acquittal of one 
 will not be a bar to punishment for the other; thus, to an indictment for an assault on J. 
 L. with intent to murder, it cannot be pleaded in bar that defendants had previously been 
 acquitted on an indictment for the murder of L. L. The transactions inducing the indict- 
 ment being averred to, have been identical. Ibid. 
 
 To entitle the prisoner to the benefit of the plea of autrefois acquit, it is necessary that the 
 crime charged in the last bill of indictment, be precisely the same with that charged in the 
 first, and also that the first indictment be good in point of law. Bite v. The State, 9 Yerger, 
 357. 
 
 Where judgment is arrested for a defect in the indictment the prisoner is not entitled to 
 his discharge, but may be remanded for trial upon a new indictment for the same offence. 
 State v. Iloiley, 1 Brevard, 35.] 
 
 •Erig. Com. Law. Reps, xxxiv. 95. b Ib. xxxi. 20.
 
 CnAP. I. § I.] OF PRESUMPTIVE EVIDENCE. 726 
 
 misdirection of the judge ;(t) or where a verdict is found for a defendant 
 on a plea of autrefois acquit, although that raises a collateral issue, 
 which may have been found in favour of the defendant on sufficient 
 evidence. (m\ 
 
 SECTION I. 
 
 Of Presumptive Evidence. 
 
 When a fact itself cannot be proved, that which comes nearest to the Presump- 
 proof of the fact is, the proof of the circumstances that necessarily or eumsfen- 11 " 
 usually attend such facts, and are called presumptions, not proofs, for tial evi- 
 they stand instead of the proofs till the contrary* be proved. (re) In de ° c i ! " _ 
 criminal cases, from the secret manner in which guilty actions are gene- 
 rally perpetrated, it is seldom possible to give direct evidence of the 
 commission of the offence charged, i. e. to produce a witness who saw 
 the act committed ; and, therefore, recourse must necessarily be had to 
 presumptive (or, as it is often called circumstantial) evidence, i. e. the 
 direct evidence of circumstances, from which the commission of the act 
 may be presumed by the jury.(o)"f" 
 
 (I) Rex v. Cohen and Jacob, a 1 Stark. N. P. C. 516. Rex v. Sutton, b 5 B. & Ad. 52. In 
 a prosecution for not repairing a highway, judgment has been suspended under very special 
 circumstances after an acquittal, see vol. 1, p. 371, in the notes. 
 
 (m) Rex v. Lea, 2 Moo. C. C. R. 9, S. C. 7 C. & P. 836. 
 
 (re) Gilb.Evid. 142. As if a man be found suddenly dead in a room, and another be found 
 running out in haste with a bloody sword ; this is a violent presumption that he is the mur- 
 derer; for the blood, the weapon, and the hasty flight, are all the necessary concomitants to 
 such horrid facts ; and the next proof to the sight of the fact itself, is the proof of those cir- 
 cumstances that do necessarily attend such fact. Ibid. Unless the wound was in such a 
 part of the body that the deceased could not have inflicted it himself, and it was shown that 
 no other person had been in the room, it is conceived that such a presumption ought not to 
 be considered as conclusive. In Ashford v. Thornton, 1 B. & Aid. 428, where the subject of 
 presumption in cases of murder was much discussed, Abbott, J., said, "A case might be put 
 where a person should come up and find another lying wounded with a dagger in his body, 
 and should draw it out, or should, in assisting the wounded man, wrench the knife out of 
 the murderer's hand : then if the murderer escaped, leaving him with the body, according to 
 this law [Bracton], he would be considered guilty of the murder, and be immediately 
 hanged without trial." And, " in the history of the law, several presumptions, which were 
 at one time deemed conclusive by the courts, have, by the opinions of later judges, acting 
 upon more enlarged principles, become conclusive only in the absence of proof to the con- 
 trary, or have been treated as wholly within the discretion of juries." 1 Phill. Ev. 441. 
 C. S. G. 
 
 (o) Presumptions are often divided into three sorts, — violent, probable, and light. Co. 
 Lit. 6, b. 3 Bla. Com. 371. But such a classification seems altogether useless, and the dis- 
 tinction to amount to nothing more than in one case the presumptive evidence may be very 
 strong, in another less so, and in another very weak. 
 
 | [Proof that a person conspired to commit a murder subsequently perpetrated, is not in 
 itselt to be taken as a legal presumption of his having aided; but it is to be weighed as evi- 
 dence tending to prove that fact. 
 
 But if it is proved that there was a conspiracy, and that one of the conspirators was in a 
 situation in which he might, have given aid to the perpetrator at the time of the murder, it 
 is a legal presumption that he was there to carry into effect the preconcerted crime; and it 
 is for him to rebut the presumption by showing that he was there for a purpose unconnected 
 with the conspiracy, 9 Pick. 496. Commonwealth v. Knapp.j 
 
 [On the trial of criminal cases, mathematical or metaphysical certainty, or direct and 
 irrefragable evidence is not necessary ; all that the law requires is moral certainty; that 
 the jurj r , whether the evidence be positive or presumptive, should be satisfied of the 
 defendant's guilt. Giles v. The Stale, 6 Georgia, 276. 
 
 Eng. Com. Law Reps. ii. 491 Mb. xxvii. 31. c lb. xxxii. 761.
 
 727 OP EVIDENCE. [BOOK VI. 
 
 What eir- "Where an indictment for murder was supported entirely by circum- 
 cumstan- s j an ^ a i evidence, and there was no fact which, taken alone, amounted 
 denco is to a presumption of guilt, Alderson, B., told the jury that before they 
 suffieientto could find the prisoner guilty, they must be satisfied " not only that those 
 conviction, circumstances were consistent with his having committed the act, but 
 they must also be satisfied that the facts were such as to be inconsistent 
 with any other rational conclusion then that the prisoner was the guilty 
 person •" and he then pointed out to them the proneness of the human 
 mind to look for, and often slightly to distort the facts in order to esta- 
 blish such a proposition, forgetting that a single circumstance, which is 
 inconsistent with such a conclusion, is of more importance than all the 
 rest, inasmuch as it destroys the hypothesis of guilt. (j9) 
 
 There is no difference between civil and criminal cases, with reference 
 to the modes of proof by direct or circumstantial evidence, except that 
 in the former, where civil rights are ascertained, a less degree of proba- 
 bility may be safely adopted as a ground of judgment, than in the latter, 
 which affect life and liberty. (j)"}" 
 *728 One of the most usual presumptions in criminal prosecutions occurs 
 Instances in cases of larceny, where upon proof of the felony having *been coni- 
 Bumptions m itted, and of the property stolen having been shortly afterwards found 
 in the possession of the prisoner, it is presumed that he actually stole 
 
 (p) Hodge's case, 2 Lew. 227. See the very able observations on this subject, 1 Stark. 
 Ev. 558, et seq. 
 
 (q) 1 Phil. Ev. 196, 7 edit. Perhaps strong circumstantial evidence in cases of crimes, 
 committed for the most part in secret, is the most satisfactory of any from whence to draw 
 the conclusion of guilt ; for men may be seduced to perjury by many base motives, to which 
 the secret nature of the offence may sometimes afford a temptation ; but it can scarcely 
 happen that many circumstances, especially if they be such over which the accuser could 
 have no control, forming altogether the links of a transaction, should all unfortunately 
 concur to fix the presumption of guilt on an individual, and yet such a conclusion be erro- 
 neous. 1 East, P. C. c. 5, s. 9, p. 223. 
 
 Circumstantial evidence has been received in every age of the common law, and is to be 
 acted on after it has generated full conviction ; everything calculated to elucidate the trans- 
 action should be admitted, since the conclusion depends on a number of links, which alone 
 are weak, but taken together are strong and able to conclude. McCann v. The State, 13 
 Smedes & Marshall, 471.] 
 
 f [On the trial of an indictment the jury were instructed, that when the government have 
 made out a prima facie case, it is incumbent on the defendant to restore himself to that pre- 
 sumption of innocence in which he was at the commencement of the trial. It was held, 
 that this was erroneous, and that the jury should have been instructed that the burthen of 
 proof was upon the Commonwealth to prove the guilt of the defendant ; that he was to be 
 presumed innocent unless the whole evidence in the case satisfied them that he was guilty. 
 Commonwealth v. Kimball, 24 Pick. 366. A recent possession of stolen goods makes out a 
 prima facie case of guilt, and a conviction must follow in the absence of explanatory or 
 contradictory proof. Hughes v. The State, 8 Humphreys, 75. 
 
 After evidence of a larceny has been given, on the trial of an indictment for stealing a 
 package of bank bills in December, it was held that evidence that two of the bills (which 
 were identified) each of the denomination of one hundred dollars, were in the defendant's 
 possession, one of them in March, and the other in April following, might be submitted to 
 the jury, and that they might infer therefrom, and from accompanying circumstances, that 
 he stole the whole package. Held also, that although none of the stolen bills were identi- 
 fied, yet that evidence was admissible to prove that the defendant, after the larceny, was in 
 possession of two one hundred dollar bills, like those that were proved to have been stolen, 
 and also a large amount of other bank bills; and that such evidence, together with evidence 
 that the defendant was destitute of money before the larceny, might be submitted to the 
 jury, to be considered by them in connexion with other accompanying circumstances indi- 
 cative of his guilt. Commonwealth v. Montgomery, 10 Metcalf, 534. Conduct exhibiting 
 satisfactory indications of guilt is not sufficient to sustain a conviction, unless there be also 
 satisfactory evidence that a crime has been committed ; as in case of alleged larceny that 
 the property had been feloniously taken and carried away. Tynerw The State, 5 Humphreys, 
 383. Carey v. The State, 7 Humphreys, 499.]
 
 CHAP. I. § I.] OF PRESUMPTIVE EVIDENCE. 728 
 
 it, unless he proves how he came by it.(r) So also on an indictment for 
 the crime of arson, proof that property, which was taken out of the 
 house at the time of the firing, was afterwards found secreted in the 
 possession of the prisoner, raises a presumption that the prisoner was 
 present, and concerned in the arson. (s) So also proof that clothes, 
 weapons, or implements, which are shown to have been previously in 
 the possession of the prisoner, were found at or near to the spot where 
 a felony was committed, is frequently adduced in order to raise a pre- 
 sumption that the prisoner was present at the time when the felony was 
 committed. (t) The buying goods at an under value is said to be pre- 
 sumptive evidence that the buyer knew they were stolen. (u) Upon an 
 indictment for perjury, in falsely taking the freeholder's oath at the 
 election of a knight of the shire, in the name of J. W., it appearing by 
 competent evidence, that the freeholder's oath was administered to a 
 person who polled on the second day of the election, by the name of J. 
 W., and who swore to his freehold and place of abode; and that there 
 was no such person, and that the defendant voted on the second day, and 
 was no freeholder, and some time afterwards boasted that he had done 
 the trick, and was not paid enough for the job, and was afraid he should 
 be pulled for his bad vote ; and it not appearing that more than one false 
 vote was given on the second day's poll, or that the defendant voted in 
 his own name, or in any other than the name of J. W. j it was *held, *729 
 that there was sufficient evidence for the jury to presume that the defend- 
 ant voted in the name of J. W. ', and consequently, to find him guilty 
 of the charge as alleged in the indictment. (v\ 
 
 (r) Where two prisoners were indicted for stealing two horses, and the case against them 
 consisted entirely of evidence to show that both the horses were found soon after the rob- 
 bery, in the joint possession of the prisoners, and it appeared that the horses had been 
 stolen on different days, and at different places ; Littledale, J., compelled the prosecutor to 
 elect on which of the two stealings he would proceed; and his lordship observed that the 
 possession of stolen property soon after a robbery is not in itself a felony though it raises 
 a presumption that the possessor is the thief; it refers to the original taking, with all its 
 circumstances. Rex v. Smith, a Ry. & Mood. N. C. P. 295. Where the only evidence against 
 the prisoner was that three sheets were found upon his bed in his house, three calendar 
 months after they had been stolen, and it was urged that this was too long a time after the 
 larceny to call on the prisoner to give any account how he had become possessed of them ; 
 and Rex v. Adams, ante, p. 123, was relied on ; Wightman, J., held that the case must go 
 to the jury, as it seemed to him that it was impossible to lay down any definite rule as to 
 the precise time which was too great to call upon the prisoner to give an account of the pos- 
 session, and that in this case there was some evidence, although very slight, for the jury to 
 consider. The prisioner was acquitted. Reg. v. Hewlett, Salop Spr. Ass. 1843, MS. C. S. G. 
 Mr. Starkie observes, that " the recent possession of stolen goods is recognized by the law 
 as affording a presumption of guilt, and therefore, in one sense, is a presumption of law 
 but it is still in effect a mere natural presumption ; for although the circumstances may 
 weigh greatly with the jury, it is to operate solely by its natural force, for a jury are not to 
 convict unless they be actually convinced in their consciences of the truth of the fact. Such 
 a presumption is, therefore, essentially different from the legal presumptions in fact where a 
 jury are to infer that a bond has or has not been satisfied, as a few days, or even hours 
 more or less, have elapsed, when the twenty years are expiring." 3 Stark. Evid. 933. 
 
 (s) Rex v. Hickman, 2 East, P. C. 1935. 
 
 (t) In Reg. v. Stonyer and others, Stafford Spr. Ass. 1843, cor. Wightman, J., on an indict- 
 ment for burglary in the house of Keeling, evidence was given of the finding of a crow-bar 
 in the house of one Bladon, which was near Keeling's, and was broken into the same night 
 it being proved that the crow-bar had been previously seen in possession of the prisoners 
 and a chest of drawers in Keeling's house having been broken open by such an instrument. 
 Such is the inference of guilt drawn from the discovery of a broken knife in the pocket of 
 the prisoner, the other part of the blade being found sticking in the window of a house 
 which by means of such an instrument had been burglariously entered. Greenl. Ev. 49. 
 
 (u) Ante, p. 251. 
 
 (v) Rex v. Price, 6 East, 323. The following is an example of a case of circumstantial 
 6 Eng. Com. Law Reps. xxi. 443.
 
 729 OF EVIDENCE. [BOOK VI. 
 
 From good A very common presumption is made by a jury in favour of a defen- 
 charaeter. ^^ f rom t ^ e goodness of his character; -which subject, together with 
 the presumption as to the intent of a prisoner, or his guilty knowledge, 
 respecting the act which is the subject of the indictment, raised upon 
 the proof of prior acts unconnected with it, will be considered in a sub- 
 sequent chapter, where the rule as to evidence being confined to the 
 points in issue is discussed. (?'-')f 
 Conduct. Most important presumptions are derivable from the conduct of the 
 parties, as well in civil as in criminal proceedings. If circumstances 
 induce a strong suspicion of guilt, and where the accused might, if he 
 were innocent, explain those circumstances consistently with his own 
 innocence, and yet does not offer such explanation, a strong natural pre- 
 sumption arises that he is guilty. And in general, where a party has 
 the means of rebutting and explaining the evidence adduced against 
 him, if it does not tend to the truth, the omission to do so furnishes a 
 forcible inference against him.(a;)| 
 
 Presumptions from a man's conduct operate in the nature of admis- 
 sions, for as against himself it is to be presumed that a man's actions 
 and representations correspond with the truth. (^j And admissions may 
 be presumed, not only from the declarations or acts of a party accused, 
 but even from his acquiescence or silence. («)§ 
 Suppres- Where a person is proved to have suppressed any species of evidence, 
 dence. " or to have defaced or destroyed any written instrument, a presumption 
 
 evidence too weak for conviction. Two women were indicted for colouring a shilling and 
 sixpence, and a man (Isaacs) as counselling them, &c. The evidence against him was, that 
 he visited them once or twice a week ; that the rattling of copper money was heard whilst 
 he was with them : that once he was counting something just after he came out ; that on 
 o-oing to the room just after the apprehension, he resisted being stopped, and jumped over 
 a wall to escape ; and that there were then found upon him a bad three-shilling piece, five 
 bad shillings, and five bad sixpences. Upon a case reserved the judges thought the evidence 
 too slight to convict him. Rex v. Isaacs, MS. Bayley, J. ante, Vol. I, p. 61. See also ante, 
 Vol. I, p. 209, as to presuming consent of parents to a minor's marriage, on a prosecution 
 for bigamy. 
 
 (w) See also as to the presumption that a ship never heard of has foundered, Green v. 
 Brown, 2 Str. 1199. Twemlow v. Oswin, 2 Camp. 85. Houstman v. Thornton, Holt, 242. 
 Koster v. Reed, 6 B. & C. 19. So where a lettter, fully and particularly directed to a person 
 at his usual place of residence, is proved to have been put into the post-office, this is equi- 
 valent to proof of delivery in the hands of that person ; because it is a safe and reasonable 
 presumption that it reaches its destination. Per Lord Tenterden, Walter v. Havnes," 1 R. 
 & M. N. P. C. 149. {6 Mass. 316. 1 Pick. 409. 2 Stark. Evid. 269.} 
 
 (x) 3 Stark. Evid. 937. 
 
 (y) 3 Stark. Evid. 937. (z) 3 Stark. Evid. 26. 
 
 ■}• [When a prisoner, to rebut the effect of evidence tending to show his guilt, relies upon 
 a good character, he must introduce evidence of such good character, and it is not sufficient 
 to rely upon the general presumption of innocence. The State v. Ford, 3 Strobhart, 517. 
 
 t A party accused, is not bound, in order to avoid a presumption against him arising from 
 circumstantial evidence, to produce as witnesses persons who may by possibility have 
 knowledge on the subject. He need only produce those who are proved to have been so 
 circumstanced as to justify the conclusion that they must have knowledge which, if divulged, 
 would throw light on the subject. The People v. M' Whartcr, 4 Barbour's Sup. Ct. Rep. 
 438.] 
 
 \ [The offer of the prisoner to bribe the person who has him in custody to permit him to 
 escape, and his attempts to escape may be given in evidence against him ; though the offer 
 and the attempts were made when the prisoner had been committed on a charge of a differ- 
 ent offence from that for which he was tried, the charges for both offences being founded 
 on the same fact. Dean v. The Commonwealth, 4 Grattan, 541. On an indictment, evidence 
 that the prisoner attempted to escape by the use of a false key, is admissible. Fanning v. 
 The State, 14 Missouri, 386. 
 
 In an indictment for a criminal offence, it is admissible to prove that after the defendant 
 was arrested upon a charge of the alleged crime, he left the country and forfeited his recog- 
 nizance. Porter v. The State, 2 Carter, 435.] 
 
 a Eng. Com. Law Reps. xxi. 402.
 
 CHAP. I. § I.] OF PRESUMPTIVE EVIDENCE. 729 
 
 will arise that if the truth had appeared, it would have been against his 
 interest, and that his conduct is attributable to his knowledge of this 
 circumstance, (a) 
 
 So the fabrication of evidence is calculated to raise a presumption Falsifica- 
 against the party who has recourse to such a practice, not less than tion of evi " 
 when evidence has been suppressed or withheld. Legal experience, 
 however, has shown that false evidence has sometimes been resorted to 
 for proving facts that are true. (6) 
 
 *Other presumptions are founded on the experienced continuance or *730 
 permanency, of longer or shorter duration, in human affairs. When, Presump- 
 therefore, the existence of a person, a personal relation, or state f t| onof con - 
 
 ,. . ii-iii nil . , tinuanee. 
 
 things, is once established by proot, the law presumes, that the person, 
 relation, or state of things, continues to exist as before, till the contrary 
 is shown, or till a different presumption is raised from the nature of the 
 subject in question. Thus, where the issue is upon the life or death of Oflifeand 
 a person, once shown to have been living, the burden of proof lies upon deatn - 
 the party who asserts the death. (c) But after the lapse of seven years, 
 without intelligence concerning the person, the presumption of life 
 ceases, and the burden of proof is devolved on the other party. (d\ But 
 there is no legal presumption as to the time of the death within the seven 
 years, and the fact of the party having been alive or dead at any par- 
 ticular period during the seven years must be proved by the party rely- 
 ing on it.(e) In one case where the presumption of life conflicted with 
 that of innocence, the court seem to have considered that the presump- 
 tion of law was, that the party was not alive, when the consequence of 
 his being so was that another person had committed a criminal act.(/) 
 But in a subsequent case, the court held that there was no rigid pre- 
 sumption of law on such questions of fact without reference to the 
 accompanying circumstances ; such, for instance, as the age or health 
 of the party; and that the proper question in such cases was what in- 
 ference might fairly be drawn from the evidence. (g\ 
 
 (a) 1 Phill. Evid. 447, citing Harwood v. Goodwright, Cowp. 87. 
 
 (6) 1 Phill. Evid. 448. Referring to 3 Institute, 232, where a case is mentioned of an 
 uncle, who was hanged for the murder of his niece, and who produced on the trial a child 
 as like unto her, both in person and years, as he could find, but which upon examination 
 was found not to be the true child, and it afterwards appeared that the niece had run away, 
 and was alive. And also the Douglass Peerage case, Appendix to Evans's Pothier. "The 
 fabrication of evidence does not, however, furnish of itself any presumption of law against 
 the innocence of the party ; but is a matter to be dealt with by the jury. Innocent persons, 
 under the influence of terror from the danger of their situation, have been led to the simul- 
 tation of exculpatory facts." Greenl. Ev. 43. 
 
 (c) Greenl. Ev. 46, 47, citing Throgmorton v. Walton, 2 Roll. R. 461. Wilson v. Hodges, 
 2 East, R. 312. Battin v. Bigelow, 1 Pet. C. 0. R. 452. See 3 Stark. Ev. 937. 
 
 (d) Greenl. Ev. 47, citing Hopewell v. De Pinna, 2 Campb. 113. See 1 Phil. Ev. 449. Doe 
 d. George v. Jesson, 6 East, R. 80. Doe d. Lloyd v. Deakin," 4 B. & Ad. 433. Watson v. 
 King, b 1 Stark. R. 121. It has been held in America not to be necessary that the party be 
 proved to be absent from the United States; it is sufficient if it appears that he lias been 
 absent for seven years from the particular state of his residence, without having been heard 
 from. Greenl. Ev. 47, note 5, citing Newman v. Jenkins, 10 Pick. 515. Innis v. Campbell, 
 1 Rawle, 373. Spurr v. Trimble, 1 A. K. Marsh. 278. Wambough v. Skenk, 1 Penningt. 
 107. Woods v. Woods, 2 Bay, 476. 1 New York Rev. Stat. 749, s. 6. 
 
 (e) Doe d. Knight v. Nepean," 5 B. & Ad. 86. 2 M. & W. 894. 
 (/) Rex v. Twyning, 2 B. k Aid. 386, post, p. 732, note (v). 
 
 (t/) Rex v. Harbone, d 2 A. & E. 540, ante, vol. 1, p. 219. Upon an issue of the life or death 
 of a party, the jury may find the fact of death from the lapse of a shorter period than seven 
 years if other circumstances concur : as if the party sailed on a voyage, which should long 
 since have been accomplished, and the vessel has not been heard of. Greenl. Ev. 47, 
 referred to In re Hutton, 1 Curt. 595. 
 
 » Eng. Com. Law Reps. vi. 476. b lb. ii. 322. « lb. xxvii. 42. d lb. xxix. 161.
 
 730 OF EVIDENCE. [BOOK VI. 
 
 On the same ground a partnership or other similar relation, once 
 shown to exist, is presumed to continue till it is proved to have heen dis- 
 solved.^) So where an indictment alleged that the defendant made 
 his warrant of attorney directed to A. and B., "then and still heing 
 attorneys of the King's Bench," it was held that as the defendant by 
 executing the warrant, admitted them to be attorneys at that time, it 
 must be presumed that they continued to be so at the time when the 
 indictment was found. (i\ 
 *731 *So where a thing is proved to have been in a particular state at one 
 time, it is presumed to have been in that state at a former time, unless 
 there be evidence that at some previous time it was in a different 
 state. (7) 
 Opinions The opinions also of individuals once entertained and expressed, and 
 an^stateof^ e g(ate Q j- mi - nc ^ once p roV ed to exist, are presumed to remain un- 
 changed till the contrary appears. Thus all the members of a Christian 
 community being presumed to entertain the common faith, no man is 
 supposed to disbelieve the existence and moral government of God, till 
 it is shown from his own declarations. In like manner, every man is 
 presumed to be of sane mind till the contrary is shown; but if derange- 
 ment or imbecility be proved or admitted at any particular period, it is 
 presumed to continue till disproved. (&) 
 Presump- Besides the presumptions which a jury may make from circumstantial 
 law? ° evidence, there are also presumptions of law. Thus, on every charge 
 of murder, the fact of killing being first proved, the law presumes it to 
 Of malice, have been founded on malice till the contrary appear; and therefore all 
 circumstances alleged by way of justification, excuse, or alleviation, 
 must be proved by the prisoner, unless they arise out of the evidence 
 produced against him. (A 
 Of the pro- Indeed it is a universal principle, as Lord Ellenborough observed, in 
 sequence 1 " * ne case °^ -^ ex V " Dixon, (m) that when a man is charged with doing 
 of an act. an act, of which the probable consequences may be highly injurious, the 
 intention is an inference of law resulting from the doing the act. In the 
 case of Rex v. Sheppard,(n) uttering a forged stock receipt to a person 
 who employed the prisoner to buy stock to that amount, and advanced 
 the money, was held sufficient evidence of an intent to defraud that per- 
 son : and it was further held, that the oath of the person to whom the 
 receipt was uttered, that he believed the prisoner had no such intent, 
 would not repel the presumption of an intention to defraud. So where 
 the prisoner was indicted (under the repealed statute, 43 Geo. 3, c. 58,) 
 for setting fire to a mill, with intent to injure the occupiers thereof, it 
 was held, that an injury to the mill being the necessary consequence of 
 setting fire to it, the intent to injure might be inferred ; for a man must 
 be supposed to intend the necessary consequence of his own act.(o) So 
 in prosecutions for forgery, a jury ought to infer an intent to defraud the 
 
 (A) Greenl. Ev. 48. 3 Stark. Ev. 937. Alderson v. Clay," 1 Stark. R. 406. 
 
 h) Rex v. Cooke, b 7 C. & P. 559, Patteson, J. 
 
 (/) Rex v. Burdett, 4 B. & Aid. 124, per Best, J. In this case a letter was delivered to a 
 person, unsealed, in Middlesex, and it was held that it must be presumed that it was sent 
 in that state from Leicestershire, there being no evidence to the contrary. 
 
 (k) Greenl. Ev. 48. Attorney General v. Parnther, 3 Bro. Ch. C. 443. 
 
 (I) Fost. 255. 1 East, P. C. c. 5, s. 106, p. 340. 
 
 (m) 3 M. & S. 15. See also ante, p. 362, 545. 
 
 (n) Russ. & Ry. C. C. R. 169. Ante, p. 362. 
 
 (0) Rex t>. Farrington, Russ.& Ry. C. C. R. 207. Ante, p. 563. 
 
 a Eng. Com. Law Reps. ii. 445. b lb. xxxii. 629. c lb. vi. 364.
 
 CHAP. I. § I.] OF PRESUMPTIVE EVIDENCE. 731 
 
 person who would have to pay the instrument if it were geuuine, 
 although, from the manner of executing the forgery, or from that per- 
 son's ordinary caution, it would not be likely to impose on him, and 
 although the object was general to defraud whoever might take the in- 
 strument and the intention of defrauding in particular the person who 
 would have to pay the instrument, if genuine, did not enter into the 
 prisoner's contemplation.^) 
 
 *In the case of Res v. Fuller and another,^) the twelve judges were *732 
 of opinion, that the having in possession a large quantity of counterfeit 
 coin unaccounted for, and that without any circumstance to induce a 
 belief that the defendants were the makers, was evidence of having pro- 
 cured it with intent to utter it.(r) 
 
 It seems to be a presumption not admitting of proof to the contrary, Presump- 
 that a person under the age of fourteen is unable to commit the crime of tl0ns Wlth 
 rape ;(s) and also that an infant under the age of seven cannot be guilty age. 
 of felony ;(<) and it is a prima facie presumption of law that a person 
 under the age of fourteen is not guilty of a felonious intention, until 
 evidence be produced to show that he is doli capax ; for then it is said, 
 malitia supplet cetatem.{u\\ 
 
 In general, however, a presumption of law arises in favour of inno- Presump- 
 cence until the contrary is proved ;(v) and it arises not only in matters tlons of in " 
 
 \ * D0C6UC6 
 
 essentially criminal, but in every instance the rule is, that illegality is 
 never to be presumed, but that the presumption always is, that a party 
 complies with the law.(?«) So it is a legal maxim, that " omnia pr w- Omnia esse 
 sumuntur esse rite et solemniter acta donee probetur in contrarium ;" nte acta " 
 and, therefore, it is a general presumption of law, that a person acting 
 in a public capacity, as a peace officer, justice of the peace, constable, 
 &c, is duly authorized to do so;(x) and that even in a case of mur- 
 der.^)! 
 
 (p) Rex v. Mazagora, Russ. & Ry. C. C. R. 291. Ante, p. 366. 
 
 (q) Russ. & Ry. C. C. R. 308. Ante, vol. 1, p. 48. 
 
 (r) See further as to the primary intention, including the collateral one imputed in the 
 indictment, and the necessary proof of the particular intent laid. Ante, vol. 1, p. 735, et 
 seq. 2 Stark. Ev. 573. 
 
 (s) 1 Hale. P. C. 630. Rex v. Groombridge," 7 C. & P. 582. Rex v. Eldershaw, b 3 G. & 
 P. 386, ante, vol. 1, p. 3. 
 
 (t) 1 Hale, P. C. 27, ante, vol. 1, p. 2. 
 
 (u) 1 Phill. Evid. 443, citing Rex v. Owen,* 4 C. & P. 236. 
 
 (v) Rex v. Twyning, 2 B. & A. 386, in which case, a woman having married again within 
 the space of twelve months after her husband had left the country, the presumption that she 
 was innocent of bigamy was held to preponderate over the usual presumption of the contin- 
 uance of life. But see Rex v. Harbone, ante, p. 730, note (g). 
 
 (w) Sissons v. Dixon, d 5 B. & C. 758. See also Bennett v. Clough, 1 B. & A. 461, which 
 was an action against a carrier for losing a parcel containing some bank notes, stamps, and 
 a letter. For the defendant it was said, that the 42 Geo. 3, c. 81, s. 5, made it illegal to 
 send a letter in a parcel, and that the plaintiff therefore could not recover. But there is a 
 proviso in that section, that it shall not extend to any letter concerning goods, sent by a 
 common carrier of goods, to be delivered with the goods to which it relates; and the court 
 held, that as illegality is never presumed, the defendant should have given prima facie evi- 
 dence that the letter did not concern the stamps with which it was sent. See also Rodwell 
 v. Redge, e 1 C. & P. 220. {1 Pick. 50. Dwight v. Brewster.} 
 
 (x) Rex v. Verelst, 3 Campb. 432. Gordon's case, 1 Leach, 515. S. C. 1 East, P. C. c. 
 312, 315. 
 
 0/) By Buller, J., in Bcrryman v. Wise, 4 T. R. 366. See also Rex v. Reese/ 6 C. & P. 606 . 
 
 f [Children between the ages of seven and fourteen are presumed to be incapable of com- 
 mitting crime; but this presumption may be disproved. The Statex. Goin,'J Humphrey, 175.] 
 
 % [JJenn v. Gridlcy, 10 Wendell, 254. So the presumption is that an oflicer has done his 
 duty. Window v. Bcall, 6 Call, 44.] 
 
 a Eng. Com. Law Reps, xxxii. 641. b lb. xiv. 367. c lb. xix. 362. d lb. xii. 371. 
 e lb. xi. 374. f lb. xxv. 559.
 
 732 
 
 BEST POSSIBLE EVIDENCE MUST BE PRODUCED. [BOOK VI. 
 
 Caution of It may be proper here to mention the two well known cautions of 
 to re- 6 -^ord Hale respecting presumptive evidence, viz., 1. That a person 
 
 sumptions, should never be convicted for stealing the goods cnjusdam ignoti, be- 
 cause he cannot give an account of how he came by them, unless there 
 be due proof made that a felony was committed of these goods. 2. Tnat 
 a person should never be convicted of murder or manslaughter, unless 
 the fact were proved to be done, or at least the body found dead.(a) 
 
 733 
 
 *SECT. II. 
 
 The best jjossible Evidence must be produced. 
 
 General 
 rule that 
 the best 
 possible 
 evidence 
 must be 
 produced. 
 
 What is 
 primary 
 evidence. 
 
 Contents o 
 will. 
 
 Execution 
 of will. 
 
 It is a general rule that you must give the best evidence that the 
 nature of the thing is capable of :(6) the true meaning of which rule is, 
 not that in every matter there must be all that force and attestation that 
 by any possibility might have been gathered to prove it, and that nothing 
 under the highest assurance possible shall be given in evidence ; but 
 that no such evidence shall be brought that ex naturd rei supposes still 
 greater evidence behind in the party's possession or power ; for such 
 evidence is altogether insufficient, and proves nothing, as it carries a 
 presumption with it contrary to the intention for which it is produced. 
 For if the other great evidence did not make against the party, why 
 did he not produce it to the court ? As if a man offer a copy of a deed 
 or will where he ought to produce the original, this carries a presump- 
 tion with it, that there is something more in the deed or will that makes 
 against the party, or else he would have produced it ; and, therefore, the 
 proof of a copy in this case is not evidence :(c) but if he prove the ori- 
 ginal deed or will in the hands of the adverse party, or to be destroyed 
 without his default, a copy will be admitted, because then such copy is 
 the best evidence : the presumption of greater evidence behind in the 
 party's possession being overturned by positive proof.(d) 
 
 Hence it appears that evidence of an inferior quality, or, as it is 
 called, secondary evidence, cannot be received until it be shown that no 
 evidence of a superior quality, or, as it is termed, primary evidence, can 
 be produced. It becomes necessary, therefore, to consider, 1st, What 
 is primary evidence. 2ndly, What is sufficient ground for the admission 
 of secondary evidence. 3dly, What is good secondary evidence. 
 
 1. What is primary evidence. It has already appeared that it is the 
 quality and not the quantity which the rule requiring the best possible 
 evidence regards. Thus, if a will of lands is to be proved, the primary 
 f proof of the contents is the will itself; and neither an exemplification 
 under the great seal, nor the probate in the spiritual court, will be ad- 
 missible,^) but one of the three subscribing witnesses will be sufficient, 
 without calling the others to prove the execution, if he can speak to all 
 
 Rex v. Borrett. a 6 C. & P. 124. Butler v. Ford, 3 Tyrw. 677 ; 1 C. M. & R. 662. Reg. v. 
 Murphy , b 8 C. & P. 297. 
 
 (a) 2 Hale, P. C. 290. (6) Bull. N. P. 293. 
 
 (c) Bull. N. P. 293. Gilb. Ev. 13. (r/) Bull. N. P. 293. 
 
 (e) Bull. N. P. 246. But the probate is the best evidence as to personalty. 
 a Eng. Com. Law Reps. xxv. 312. b lb. xxxiv. 39T.
 
 CIIAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 733 
 
 the requisites of attestation, and the jury believe him.(/) So if there 
 are several subscribing witnesses to a deed, and all are proved to be 
 dead, proof of the signature of one will be sufficient ; for the proof is, as 
 fas as it goes, complete and not inferior in its kind to any that can be 
 *produced.(<7) So for the purpose of proving handwriting, where it *734 
 happens to be a case where there would be no objection to the compe- Primary 
 
 n • i • in • • 11 i • • • rr ■ ± evidence of 
 
 tency of the writer himself, it is not necessary to call him : it is sumcient handwrit- 
 to prove it by the evidence of some one acquainted with the general iu g- 
 character of his writing, who, on inspection, can say he believes it to be 
 the handwriting of the party. Thus, where the signature of a magistrate 
 to a deposition is to be proved, it is usually done by a witness acquainted 
 with the general character of his writing, without calling the magistrate 
 himself. The evidence of such a witness is not in its nature inferior or 
 secondary ; and though it may generally be true that the writer is best 
 acquainted with his own handwriting, and, therefore, his evidence will 
 in general be thought the most satisfactory, yet his knowledge is ac- 
 quired precisely by the same means as the knowledge of other persons 
 who have been in the habit of seeing him writcf/A And it seems, that Of disprov- 
 
 ... ., n i v ' ■ ^ • ln S hand- 
 
 On the same principle, the evidence of such persons is as much primary wr i t i ng . 
 
 evidence to disprove his handwriting as to prove it.(i') On an indict- 
 ment for unlawfully assembling, it was held, that a paper which had 
 been delivered by Hunt to the witness at a meeting, as a copy of certain Other in- 
 resolutions about to be proposed and read, and which correspond with pr ; mary 
 what the witness heard read from a written paper, was admissible as evidence, 
 evidence of those resolutions, without giving the defendant notice to 
 produce the original. (j) And in the same case it was decided that 
 parol evidence of inscriptions, or devices on banners and flags displayed 
 at the meeting, was admissible without producing the originals, though 
 it appeared that they had been seized by the police officers, and there- 
 fore might have been produced on the part of the prosecution.^) 
 
 The contents of a written instrument can only be proved by the in- Written in- 
 strument itself, unless it be lost, or in the hands of the other party : and 
 the declarations of the party against whom it is to be proved were once 
 held inadmissible for this purpose, unless the non-production of the 
 instrument were accounted for.(7) And generally speaking, parol evi- 
 dence is secondary in its nature to written evidence ; and where a written 
 instrument is required by law, or made by private compact to express 
 the intention of the parties, it possesses a force and authority superior to 
 any other evidance.(m) Thus, when an agreement has been reduced 
 into writing, the writing itself must be produced ;(n) and if not properly 
 
 (/) Bull. N. P. 264. So the execution of a will has been held to be proved by evidence 
 of the testimony of one of the subscribing witnesses, who was dead, given on a trial between 
 the same parties, although another attesting witness was present and not called. Wright v. 
 Doe d. Tatham, a 1 A. & E. 3 See also Doe d. Spilsbury v. Burdctt, b 4 A. & E. 1. 
 
 (ff) 1 Phil. Ev. 418. (h) 1 Phil. Ev. 223, 7th edit. Ante, p. 303. (z) Ante, p. 392. 
 
 (/) Rex v. Hunt,' 3 B. & A. 566. Ante, vol. 1, p. 288. 
 
 (k) Ibid. Abbott, C. J., said, "If we were to hold that what was inscribed on a banner 
 could not be proved without the production of the banner, I do not know upon what rea- 
 son the witness should be allowed to mention the colour of the banner, or even to say he 
 saw the banner displayed; for the banner itself may be said to be the best possible evidence 
 of its existence and of its colour." 
 
 (I) Bloxam v. Elsie, d 1 R. & M. N. P. C. 187. Abbott, C. J. But scepost, p. 749. 
 
 (m) 1 Stark. Ev. 504. 
 
 (n) Brewer v. Palmer, 3 Esp. 213, cor. Lord Eldon, C. J. Sinclair v. Stevenson, e 1 C. & P. 
 582, cor. Best, C. J. 
 
 »Eng. Com. Law. Reps, xxxviii. 11. b Ib. xxxi. 11. c lb. v. 377. 
 
 d Ib. xi. 468. e Ib. xi. 480.
 
 734: OF EVIDENCE. [BOOK VI. 
 
 Parol evi- stamped, the plaintiff must be nonsuited. But, in many instances, the 
 ahvavs^se- mere existence of written evidence will not exclude independent parol 
 condary to evidence to prove the same fact. Thus, where upon letting premises to 
 written. a t enan ^ a memorandum of agreement was drawn up, the terms of 
 *735 which were read over and assented to by him, and it was *then agreed 
 that he should on a future day bring a surety, and sign the agreement, 
 it was held that the existence of this memorandum did not preclude 
 parol evidence of the terms of the letting. (o) So where a verbal con- 
 tract is made for the sale of goods, and it is put into writing afterwards 
 by the vendor's agent, for the purpose of assisting his recollection, but 
 not signed by the vendor, the terms of the contract may be given in 
 evidence on the part of the vendor, without producing the writing.(^>) 
 Where a party paying money has taken a receipt, the circumstance of 
 the payment having been acknowledged in writing does not make such 
 writing exclusively primary evidence of the fact ; but he may show the 
 payment by a person who saw the money paid, or by the admission of 
 the other party to that effect, (g-) If several persons be witnesses of the 
 same fact, and one of them to assist his memory makes a memorandum 
 of it, this circumstance would not exclude the testimony of the other 
 witnesses. (r\ So parol evidence of what a person said on the hearing 
 of an information for a trespass in pursuit of game, under the 1 & 2 Win. 
 4, c. 32, is admissible, although there be a deposition which is not pro- 
 duced, as there is no act of parliament requiring the magistrates to take 
 down the evidence in such a case; but it is otherwise in the case of 
 felony, where the depositions must be produced, because by statute, 
 magistrates are bound to take down what the witnesses say.M So 
 though an entry of a marriage may have been made in the parish 
 register according to the marriage act, such entry does not become the 
 only primary evidence of the marriage, but it may also be proved by 
 any one who witnessed it ; and, indeed, in all cases except actions for 
 criminal conversation, and indictments for bigamy, by reputation. (f) 
 Where, in in order to prove a demand, for the purpose of bringing an 
 action of trover for a lease, a witness stated that he had verbally re- 
 quired the defendant to deliver up the lease, and at the same time 
 served a notice in writing on him to the same effect; Lord Ellenborough, 
 C. J., held that the written notice need not be produced; for the notices 
 being concurrent and independent, either might be proved as evidence 
 of the conversation. (u\ 
 
 (o) Doe v. Cartwright,* 3 B. &. 325. See also Wilson v. Bowie, b 1 C. & P. 8. 
 
 (p) Dalison v. Stark, 4 Esp. 163. 
 
 (q) Rambert v. Cohen, 4 Esp. 213. Jacob v. Lindsay, 1 East, R. 460. And if the receipt 
 were on unstamped paper, it may be used by a witness, who saw it given, to refresh his 
 memory, 4 Esp. 213. 
 
 (r) 1 Stark. Ev. 504. So in Layer's case for high treason, Mr. Stanley, an under secre- 
 tary of state, gave evidence of L.'s confessions, upon his examination before the council, 
 which, though taken in writing, was not produced. 12 Vin. Abr. 76, tit. Evidence, A. b. 
 632, pi. 7. 
 
 (s) Robinson v. Vaughton, 8 C. & P. 252, Alderson, B. 
 
 (t) Morris v. Miller, 1 W. Bl. 632. It may also be observed that in order to make the 
 production of the writing necessary, it must appear to relate to the matter in question. 
 Thus where the parol evidence is offered to prove a tenancy, it is not a valid objection, that 
 there is some written agreement relative to the holding, unless it should also appear that 
 it was made between the parties as landlord and tenant, and that it continues in force to 
 the very time to which the parol evidence applies. Doe v. Morris, 12 East, 237. Doe v. 
 Pearson, 12 East, 239 n. 
 
 (u) Smith v. Young, 1 Campb. 439. 
 
 a Eng. Com. Law. Reps. v. 306. b lb. si. 299. c lb. xxxiv. 376.
 
 CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 735 
 
 The above are instances of modes of proof which, notwithstanding Instances 
 the existence of other evidence which might be more satisfactory, are ^ ^ t -^ IS 
 yet in their nature primary, and consequently, available. It may be best possi- 
 useful to mention also some examples of what is not the best possible ^ evi " 
 evidence, and therefore inadmissible. Upon an ^indictment for having *73(3 
 set fire to a house, with intent to defraud an insurance company, the Insurance, 
 policy is the best evidence to prove that the house was insured, and an 
 entry to that effect in the books of the insurance office is but secondary 
 evidence. (j/m) To prove the oaths required by the Toleration Act, 
 parol evidence was held secondary and inadmissible; because they 
 were matters of record in the court where they were sworn. (v\ Courts Matters of 
 of record speak by means of their records only; and, therefore, the acts reeord - 
 of a court can be proved in no other manner. Thus parol evidence is Acts of a 
 inadmissible to show the day on which a trial at nisi prius took place ; court * 
 for it should be proved by the production of the nisi prius record. (w\ 
 So if it be necessary to prove that a trial took place, as in the case of a 
 prosecution for perjury committed on the trial of a case at nisi prius, 
 that cannot be done by parol evidence, but the record should be pro- 
 duced, or at least, the postea.(a;) And even where the transactions of 
 courts, which are not technically speaking, of record, are to be proved, 
 if such courts preserve written memorials of their proceedings, those 
 memorials are the only authentic means of proof which the law recog- 
 nizes.^) On an indictment on the 8 & 9 Wm, 3, c. 26, (for high 
 treason by having a mint die in possession,) it was incumbent on the Commence- 
 prosecutor to show that the prosecution was commenced within three ment of 
 months, and parol evidence that the prisoner was apprehended fortion. 6 
 treason respecting the coin within three months, (the offence appearing 
 to have been committed above three months before the indictment pre- 
 ferred,) was held by the twelve judges to be insufficient, the warrant to 
 apprehend or to commit not being produced. (s) Parol evidence is notExamina- 
 admissible of the declaration of a prisoner before a magistrate, where * l( ^j s ° re 
 the examination has, conformably to the statute, been taken in writ-trate. 
 ing.(a) In the case of Williams v. The East India Company, (J) the Ne g ativ e 
 question was, whether the agent of the defendants, who were the^™ ° n0 " 
 freighters of the plaintiff's ship, had apprized the plaintiff or his officers, 
 of the inflammable and dangerous nature of a quantity of roghau which 
 had been stored in the ship, and which ultimately occasioned its destruc- 
 tion. It was the duty of the conductor of military stores to convey 
 goods on board the ship, and of the chief mate to receive them ; the 
 chief mate was dead, and no evidence was given of what had passed be- 
 tween him and the conductor of the stores : but the captain and second 
 mate proved that no communication had been made to them. Upon this 
 evidence, the plaintiff, who, it was held, was bound to prove the nega- 
 tive, was nonsuited by Lord Ellenborough, C. J., on the ground that 
 
 (mm) Rex v. Doran, 1 Esp. 127, ante, p. 567. And therefore, if the policy cannot be 
 received in evidence for want of a proper stamp, the indictment cannot be supported. Rex 
 t\ Gilson, Russ. & Ry. 138, ante, p. 567. 
 
 (v) Rex v. Hube, Peake, N. P. C. 132. Ante, vol. 1, p. 302. 
 
 (w) Thomas v. Ansley, 6 Esp. 80, by Lord Ellenborough. Rex v. Page, 6 Esp. 83, bv 
 Lord Kenyon. Tidd. Prac. 869. 
 
 (x) Ante, p. 662. But see Rex v. Coppard, ante, p. 624. 
 
 (y) 3 Stark. Ev. 786. (z) Rex v. Phillips and another, Russ. & Ry. 369. 
 
 (a) Jacob's case, 1 Leach, 308. (b) 3 East, R. 193. 
 
 Vol. ii.— 48
 
 736 OF EVIDENCE. [BOOK VI. 
 
 the best evidence possible of the want of notice had not been produced, 
 viz., the evidence of the conductor of stores. The court afterwards 
 *737 affirmed the nonsuit; and Lord Ellenborough, *in delivering their 
 opinion said, "The best evidence should have been given of which the 
 nature of the case was capable. The best evidence was to have been 
 had by calling, in the first instance, upon the persons immediately and 
 officially employed in the delivering, and in the receiving of the goods 
 on board, who appear in this case to have been the first mate on the one 
 side, and the military conductor, the defendant's officer, on the other ; 
 and though the one of those persons, the mate, was dead, that did not 
 warrant the plaintiff in resorting to an inferior and secondary species of 
 testimony, (namely, the presumption and inference arising from a non- 
 communication to the other persons on board,) as long as the military 
 conductor, the other living witness, immediately and primarily con- 
 cerned in the transaction of shipping goods on board could be resorted 
 to ; and no impossibility of resorting to this evidence, the proper and 
 primary evidence on this subject, is suggested to exist in this case." 
 Negative In a case on an indictment on the 42 Geo. 3, c. 107, s. 1, (repealed by 
 
 proof of t ] ie 7 ^ g Q eo 4 c 27 ; ) which made it felony to course a deer in an 
 consent. , . ' ■ T 
 
 inclosed ground, without the consent of the owner of the deer, Law- 
 rence, J., thought it necessary to call the owner of the deer, for the pur- 
 pose of disproving his consent, and the owner not being called, the jury 
 were directed to find a verdict of acquittal. (c) But this decision has 
 been overruled by subsequent authorities of the greatest weight : and 
 the rule may now be considered settled, that in cases where it is neces- 
 sary to prove the non-consent of the owner of the property which is the 
 subject of the charge in the indictment, the testimony of the owner him- 
 self is not exclusively primary evidence of the non-consent ; but it may 
 be inferred from the conduct of the prisoner, and the circumstances under 
 which the act was done. Where the prisoners were indicted on the 6 
 Geo. 3, c. 36, (repealed and re-enacted with alterations by the 7 & 8 
 Geo. 4, c. 27 and c. 26,) for lopping and topping an ash timber tree, 
 " without the consent of the owner," the owner, Sir J. Aubrey had died 
 before the trial. The offence was committed at eleven o'clock at night, 
 on the 18th of February. Sir J. Aubrey died on the first of March 
 following, having given orders for apprehending the prisoners on suspi- 
 cion. The land steward was called to prove, that he himself never gave 
 any consent, and from all he had heard his master say, he believed that 
 he never did. Bayley, J., told the jury that they must be perfectly 
 satisfied that the prisoners had not obtained the consent of the owner of 
 the tree, namely, Sir J. Aubrey, that they might lop and top it ; and 
 left it to them to say, whether they thought there was reasonable evi- 
 dence to show that in fact he had not given any such permission. His 
 lordship adverted to the time of night when the offence was committed, 
 and to the circumstance of the prisoners running away when detected, 
 as evidence to show that the consent required had not in fact been 
 given. (rZ) And in three cases, reserved at once for the opinion of 
 the twelve judges, it was held, that though there must be some evi- 
 dence to negative the owner's consent, his non-consent may be inferred 
 from the circumstances, or proved by his agents. The first of the three 
 cases was Rex v. Allen, an indictment for killing a fallow deer in the 
 
 (c) Rex v. Rogers, 2 Caropb. 654. (d) Rex v. Hazy," 2 C. & P. 458. 
 
 * Eng. Com. Law Reps. xii. 215.
 
 CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. *738 
 
 park of the forest of Waltham, ^without the consent of the owner, the 
 king; the second, Rex v. Argent, for entering a yard adjoining and 
 belonging to the dwelling-house of John Greenwood, a Quaker, and 
 taking fish out of a pond there without the consent of the owner; and 
 the third, Rex v. Chamberlain, for taking fish in Claremont Park, be- 
 longing to Prince Leopold, without his consent. The offence in each 
 case was committed under circumstances which the learned judge, who 
 tried it, thought quite sufficient to warrant the jury in finding the 
 non-consent of the owner, admitting the onus of proving such non- 
 consent to lie on the prosecutor ; but in consequence of the decision in 
 Rex v. Rogers, above-mentioned, further evidence was gone into, by 
 calling the persons engaged in the management of the property, but 
 not the owners. The judges held the conviction in each of these cases 
 right, (e) 
 
 2dly, What is a sufficient ground for the admission of secondary evi- 2. What is 
 dence. If the primary evidence be lost or destroyed, or if it be in the troundfbr 
 hands of the adverse party, then upon proof of the loss or destruction the admis- 
 in the former case, and of the fact of its being in such possession, and slon of S6 - 
 of reasonable notice to produce it at the trial having been given to the evidence. 
 other party, in the latter case, secondary evidence is admissible. (/)f 
 Where secondary evidence is offered, in consequence of the loss of the Where thej 
 primary evidence, in order to establish such loss, it must be proved that ^dTi^ce is 
 diligent search has been made in those quarters from which the primary lost, 
 evidence was likely to be procured. The case of Kensington v. Inglis(y) What is) 
 affords an example of what is considered a sufficient search for such a p " 00 e f ' ^ 
 purpose. There it was incumbent on the plaintiff to prove the loss of a loss. 
 license to trade ; and a witness who had been secretary to the governor 
 of a colony, said it was his practice to destroy, or put aside such licenses 
 among the waste papers of his office, as not being of further use, and he 
 supposed he had disposed of the license in question, (which after having 
 been granted by the governor, was returned to the witness,) in the same 
 manner as other licenses for ships whose voyages had been performed : 
 but he was not sure it was destroyed. He further stated, that he had 
 
 («) R. & M. C. C. R. 154. 
 
 (/) Besides these two instances of the loss or destruction of the primary evidence, and 
 its being in the hands of the adverse party, it should seem that secondary evidence is admis- 
 sible in all cases where it is apparent that such secondary evidence is the best, which the 
 party, without any default, has it in his power to produce ; for then the presumption of a 
 fraudulent suppression of the better evidence, which is the foundation of the rule must 
 cease. Thus, if an attesting witness to a written instrument after his attestation becomes 
 incompetent from interest, proof of his hand-writing is admissible. Godfrey v. Norris, 1 
 Str. 34. So if he becomes incompetent from infamy, Jones v. Mason, 2 Stra. 833. The 
 defendant, in an action of trespass for breaking hatches, offered in evidence articles of agree- 
 ment, dated in 1745, between persons standing in the respective situations of the plaintiff 
 and defendant. To produce this deed the defendant's attorney was called, who said he had 
 received it from the son of the owner of the defendant's land. This evidence was objected 
 to as insufficient ; then the son of the owner was called, who said he had received it from 
 his father that morning ; this being also objected to, the father was called ; upon which the 
 plaintiff examined him on the voire dire, and objected that he could not be a witness, being 
 interested ; whereupon Holroyd, J., held, that as the father was objected to, the next best 
 evidence had been given, and admitted the deed. Card v. Jeans, Dorchester, 11th March, 
 1819, Manning's Dig. 375. If a deed be in possession of a third person, who is not by law 
 compellable to produce it, and he refuses to do so, secondary evidence is admissible, for the 
 original is then unattainable by the party offering such evidence. Doe v. Ross, 7 M. & 
 W. 102. (ff) 8 East, 273. 
 
 •j- It is the province of the court to determine whether the loss of a paper is sufficiently 
 proved to admit secondary evidence. Vaughn 7. Biggers, 6 Georgia, 188. J
 
 738 OF EVIDENCE. [BOOK VI. 
 
 been applied to for the license, and had searched for it : but he did not 
 *739 recollect whether he found it *or not ; though he did not think that he 
 had found it. Lord Ellenborough, C. J., in delivering the judgment 
 of the court/^.) said, <<,We are of opinion, that this evidence satisfies 
 what the law requires in respect of search ; and establishes with reason- 
 able certainty the fact of the license being lost. It was not to be ex- 
 pected that the witness should be able to speak with more confident 
 certainty to a fact, to which his attention would not be particularly drawn 
 at the time, on account of any importance being supposed to belong to 
 Brewster v. it." So where it became necessary to account for the non-production of 
 Sewell. a policy^ and it was proved that it had been effected about seven years 
 before, and having become useless on account of a second policy being 
 effected, it had probably been returned to the plaintiff; and the clerk 
 of the plaintiff's attorney proved, that a few days before the trial of the 
 action, he had searched for it in the plaintiff's house, not only in every 
 place pointed out by the plaintiff, but in every place which he thought 
 likely to contain a paper of this description ; it was held that this was 
 sufficient evidence to entitle the plaintiff to give secondary evidence of 
 the contents of the policy. In this case, Abbott, C. J., observed, that 
 where the loss or destruction of an instrument may almost be presumed 
 very slight evidence of its loss or destruction will be sufficient. (?) 
 Loss of a Where a tithing-man went to a house to execute a warrant, and read 
 warrant to ^ e warra nt under the window of the house, where the party who was 
 ' to be apprehended under the warrant then was, and an affray then took 
 place between the tithing-men and the inhabitants of the house, during 
 which the tithing-man stated that he lost it; that he had it in his hand 
 when he read it under the window ; and that he never saw it afterwards ; 
 that he searched his pocket for it after he had gone about a mile and a 
 half from the house, and could not find it; and that he directed a boy 
 to look carefully for it, on the road between the house and the place 
 where he first missed it; and the boy swore that he had made careful 
 search, and could not find it ; it was held, on a case reserved, that sec- 
 ondary evidence of the warrant was properly received, although notice 
 had not been given to the prisoner to produce it.f/) 
 Whatisnot But if it be proposed to give secondary evidence of a written instru- 
 
 sufficient m ent, and such instrument is traced into the possession of a particular 
 
 proof of . . . i i- i -i • i ii. i - • 
 
 1 0SB , person, the loss cannot be established without calling him as a witness ; 
 
 for it will not be enough to prove that he was applied to for the instru- 
 ment, and upon such application, said that he could not find the same, 
 nor did he know where it was. Thus, where it was proved that an in- 
 denture of apprenticeship was of two parts, that one had been destroyed, 
 and that the other had come to the hands of a Miss Taylor, who when 
 asked for it, said she could not find it ; but she was not subpoenaed ; 
 So should this was ^ e ^ insufficient evidence of the loss.(A-) The same principle 
 
 (A) East, 289. 
 
 (i) Brewster v. Sewell, a 3 B. & A. 296. See also Freeman v. Arkell, b 2 B. & C. 494, 
 where Bayley, J., expressed himself to the same effect. And for further examples of suffi- 
 cient searches, see Rex v. North Bedburn, Cald. 452. Rex v. Johnson, 7 East, 65. Rex v. 
 Morton, 4 M. & S. 48. Bligh v. Wellesley, c 2 Carr. & P. 400. Rex v. East Farleigh, 1 * 6 D. 
 & R. 147. Rex v. Stoorbridge, e 8 B. & C. 96. 
 
 (./ ) Rex v. Hood, R. & M. C. C. R. 281. 
 
 (/<•) Rex v. Castleton, 6 T. R. 246. See also Williams v. Younghusband/ 1 Stark. 139, 
 and Parkins v. Cobbett,e 1 C. & P. 282. In Rex v. Denio, h 7 B. & C. 620, the pauper, who 
 9 Eng Com. Law Reps. v. 291. b lb ix. 159. <> lb. xii. 189. d lb. xvi. 258. 
 c lb. xv. 155. ' lb. ii. 328. « lb. xi. 394. »» lb. xiv. 102.
 
 CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. *740 
 
 applies *with respect to the person who has the legal custody of an the person 
 instrument: if it is proposed to establish its loss for the purpose of J^ °j e US _ e 
 secondary evidence of its contents, the person who has the legal custody tody. 
 of it should be called as a witness, or steps should be taken to make 
 evidence of his conduct admissible.^) And where the instrument in 
 question is the appointment to an office, the legal custody is in the 
 officer, who is the person most interested in the instrument, and who 
 requires its production as a sanction for those acts, which he may be 
 called upon to do under its authority. (m) If the individual to whose 
 possession the instrument is traced be dead, an inquiry should be made 
 of his executors, or such persons as must be presumed to have it in their 
 possession. (n) But if the papers of the deceased were searched during 
 his lifetime, it is unnecessary to apply to the executors or other persons 
 to whose possession such papers may have come.(o) If two or more Where two 
 parts of a deed have been executed, the loss or destruction of all titeP"^ 8 *^ e 
 parts must be proved, in order to lay a ground for admitting secondary cuted. 
 evidence of its contents. (jd) 
 
 The court must be satisfied that due diligence has been used to find What is 
 the document in question ; but it is not necessary to negative every pos- 
 sibility, it is enough to negative every reasonable probability, of any 
 thing being kept back. Where an officer or an attorney is applied to 
 
 had served as an apprentice, proved that the indenture was kept by his master, and when 
 the apprenticeship expired, he asked his master for the indenture, who said he had no got 
 it, but that it was with the overseers of the parish by which the pauper was bound appren- 
 tice, and proof was given of search among the papers of the parish for the indenture, and 
 that it could not be found ; and that all the books and papers about that date were missing ; 
 and it was held, that as the master was living, and might have been called as a witness, and 
 his declarations were clearly not admissible in evidence, there was not sufficient evidence to 
 show that due search had been made so as to let in parol evidence of the indenture. In 
 Rex v. Rawden, a 2 A. & E. 156, the widow of an apprentice stated that, a short time before 
 her husband died, she asked him what had become of his indentures, and he said he had 
 got them away from his master after the end of his apprenticeship, and had worn them in 
 his pocket till they were all to pieces, and it was held that evidence of this conversation was 
 inadmissible, there being no further proof either of the indenture having been in the 
 possession of the apprentice, or of other inquiry after it. But when, in order to establish a 
 settlement by apprenticeship, it was proved that the indenture was only of one part, and that 
 upon application to the pauper, who was then ill, and died soon afterwards, to know what 
 had become of it, he declared that when the indenture expired it was given to him, and he 
 had burnt it long since; and it was also proved, that inquiry was made of the executrix of 
 the master, who said that she knew nothing about it, it was held that this proof was suffi- 
 cient to let in parol evidence of the contents of the indenture. Rex v. Morton, 4 M. & S. 48. 
 The court distinguished this case from Rex v. Castleton, inasmuch as there was no proof 
 that the indenture ever existed in the possession of the pauper, unless his declaration were 
 taken as evidence, and if it was, in the same breath he declared it no longer existed ; whereas 
 the evidence in Rex v. Castleton, showed that a further search was necessary. 
 
 (I) Rex v. Stoke Golding, 1 B. & A. 173. 
 
 (m) Rex v. Stoke Golding, supra. The law presumes the appointment of officers to be in 
 the custody of some of the overseers, per Holroyd, J., ibid. 
 
 (n) 1 Phil. Ev. 456, 7th edit. 
 
 (o) Rex v. Piddlehinton," 3 B. & Ad. 460. The master of an apprentice took away the 
 indenture after it was executed, and failed in business after the apprentice had served about 
 a year. Upon the failure, an attorney had the custody of all the papers and books of the 
 master, and looked over them after the failure, and did not find any indenture, and it was 
 held that this was sufficient to allow the admission of secondary evidence, though the mas- 
 ter's widow was living, and no inquiry had been made of her; for, after the evidence of the 
 attorney it was useless to inquire as to her possession of the indenture. In Bitz v. Rabbits, 
 2 M. & Rob. 60, Patteson, J., held that it was not necessary that the search should be recent, 
 or for the purpose of the cause ; and that a search for the paper three years before the trial 
 was sufficient. 
 
 (p) Bull. N. P. 254. Doxon v. Haigh, 1 Esq. 409. Alivon v. Furnival, 4 Tyr. 751. 
 a Eng. Com. Law Reps. xxix. 54. b lb. xxiii. 121.
 
 *741 OF EVIDENCE. [BOOK VI. 
 
 for the inspection of documents, the court *will assume, until the con- 
 trary appear, that the officer or attorney produces all the documents re- 
 lating to the subject. (5) 
 2. M'here There is no distinction between criminal and civil cases with respect 
 rvevidence *° secon ^ ar y evidence of documents in the possession of the defendant. 
 i^ : in the It has been solemnly determined, that notice may be given to the de- 
 P f ,S v ess '? n fendant in a criminal prosecution to produce a paper in his possession, 
 party. and in case he neglects to produce it, other evidence may be given of 
 it.(r) Where secondary evidence is sought to be given, on the ground 
 that the primary evidence is in the possession of the adverse party, in 
 the first place, the fact of such possession must be proved. The degree 
 of evidence which may be necessary to prove that fact, will depend so 
 much on the nature of the transaction, and the particular circumstances 
 of each individual case, that it is scarcely possible to lay down a gene- 
 ral rule on the subject. (s) Where an original instrument belongs ex- 
 clusively to a party, or regularly ought to be in his possession accord- 
 ing to the course of business, slight evidence is sufficient to raise a pre- 
 sumption that it is in his possession. Thus, where the solicitor to a 
 commission of bankruptcy proved that he had been employed by the 
 defendant to solicit his certificate under the commission, and that on 
 looking at his entry of charges, he had no doubt the certificate was al- 
 lowed, this was held sufficient proof of the certificate having come to 
 Possession the defendant's possession. (?) Where an instrument has been delivered 
 ot privy. £ Q a ^jjj r( j party, between whom and the party to the suit there exists a 
 privity, the possession of the privity is considered the possession of the 
 party, for the purpose of letting in secondary evidence. Thus, in an 
 action against the owner of a vessel, for goods supplied to the use of the 
 vessel, a notice to the defendant to produce the order for the goods 
 which he had given to the captain, was held sufficient to let the plain- 
 tiff into secondary evidence of the contents of the order, though the 
 order itself appeared to be in the possession of the captain ; on account 
 of the privity between the owner and the captain. (u\ So in an action 
 of trover against the sheriff, a notice to the sheriff's attorney was, on 
 account of the privity between him and his under-sheriff, held sufficient 
 to let in secondary evidence of a writ, which was proved to have come 
 to the possession of the under-sheriff, by having been returned to him 
 during the time the sheriff remained in office. {y) So notice to a de- 
 fendant to produce a check drawn by him, and paid by his banker, is 
 *742 sufficient to entitle the ^plaintiff to give secondary evidence of its con- 
 tents, though the check remains in the banker's hands, for the posses- 
 
 (q) M'Gahey v. Alston, 2 M. & W. 206. In this case a check, which had been drawn on 
 the account of a parish, had been delivered to the paying clerk of the parish, and the bank- 
 ers of the parish on the same day paid a check of the same amount, and their custom was 
 to return the checks when paid to the paying clerk. The cancelled checks were kept in a 
 room in the workhouse, used by the paying clerk as an office for that purpose, and applica- 
 tion was made to the succeeding paying clerk for an inspection of the checks he had in his 
 office, and the paying clerk handed to the witness several bundles, which the witness 
 looked through without finding the check in question, but looked at no other. The paying 
 clerk was not called, and it was held that this was such reasonable search for the check as 
 to render parol evidence of it admissible. 
 
 (r) Per Buller, J., Rex v. Watson, 2 T. R. 201. Attorney-General 0. Le Merchant, 2 T. R. 
 201, note (a). Cates v. Winter, 3 T. R. 306. 
 
 (3) 2 Phill. Ev. 216. (t) Henry v. Leigh, 3 Camp. 502. 
 
 (u) Baldney v. Ritchie, 8 1 Stark. N. P. C. 333. (v) Taplin i>. Atty, 3 Bing. 164. 
 
 a Eng. Com. Law Reps. ii. 416.
 
 CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 742 
 
 sion of the banker is the possession of his customer. (w\ So where a 
 forged deed was produced by the prisoner's attorney on the trial of an 
 ejectment, in which the prisoner was the lessor of the plaintiff, and 
 after the trial it was returned to the prisoner's attorney, it was held 
 that secondary evidence might be given of it, after notice to the prisoner 
 to produce it, without calling the attorney to prove what he had done 
 with the deed.(x) 
 
 In order to let in secondary evidence, the instrument need not be in 
 the actual possession of the party • it is enough if it is in his power, 
 which it would be if it were in the hands of a party, in whom it would 
 be wrongful not to give up possession to him. But he must have such 
 a right to it, as would entitle him not merely to inspect but to retain it. 
 Where, therefore, a written contract had been deposited in the hands of 
 the common agent of the defendant and the person with whom he had 
 contracted, and notice to produce had been given to the defendant, it 
 was held that secondary evidence was not admissible, because even if 
 the document were given to the defendant for the purpose of the cause, 
 it must be returned.^) And where a paper is in the hands of a person 
 acting in an independant character, and who has a right to the posses- 
 sion of it, notice to the party is insufficient : and this is so, although the 
 party justifies under the authority of that person. (s) 
 
 A letter which had been in the possession of the defendant was Instrument 
 proved on the part of the defendant to be then filed in Chancery, pur- party'spos 6 
 suant to an order of that court; Abbott, C. J., was of opinion, that the session but 
 plaintiff, upon proof of notice to produce, was not entitled to give se- smce P art - 
 condary evidence of the contents ; for the letter was as much in the 
 possession of the one party as the other. Either party might, on appli- 
 cation to the Court of Chancery, have obtained permission to produce 
 it.(a) But where a document was traced to the possession of the defen- 
 dant, upon whom notice to produce it had been served, but he proved 
 that it was then in the stamp-office, (where it had been delivered to have 
 some duties allowed,) Best, C. J., held, that as he had not informed the 
 plaintiff of that *circumstance when serving the notice, secondary evi- *743 
 dence was allowable. (fy 
 
 (w) Patridge v. Coates, a Ry. & Mood. N. P. C. 156, per Abbott, C. J. S. P. Burton v. 
 Payne, b 2 Carr. & P. 520, per Bayley, J. See also Sinclair v. Stevenson, 1 Carr. & P. 
 582, where Best, C. J., held that it was enough to trace the primary evidence to the posses- 
 sion of an agent. But there is no such privity between the defendant and a third person 
 under whom he justifies, so as to make proof of the possession of such third party equivalent 
 to the possession of the defendant. Evans v. Sweet, d Ry. & Mood. N. P. C. '83, per Best, C. 
 J. And Lord Kenyon held, on the trial of an information for a libel, that proof of the de- 
 livery of a paper to the servant of the defendant was not proof of the fact of the paper being 
 in the defendant's possession, so as to let in parol evidence of its contents, upon notice to 
 the defendant to produce it. Rex v. Pearce, Peake, N. P. C. 76; but see contra, Pritchard 
 v. Symonds, Bull, N. P. 254. Rose. Ev. 7, and Colonel Gordon's case, 1 Leach, 300, note (a) 
 to Aickle's case. 
 
 (x\ Rex v. Hunter, e 4 C. & P. 128, Vaughan, B. Some counts of the indictment charged 
 that certain persons made the deed, and that the prisoner fraudulently altered it, and it was 
 objected that previously to the receiving secondary evidence the attesting witness ought to 
 be called, but Vaughan, B., overruled the objection. 
 
 (y) Parry v. May, 1 M. & Rob. 279, Littledale, J. 
 
 (z) Phill. Ev. 218, citing Evans v. Sweet, f R. & M. 83. Rex v. Pearce, Peake, 76. Pritchard 
 v. Symonds, B. N. P. 254. Whitford v. Tutin, 10 Bing. R. 395. 
 
 (a) Williams v. Munnings,s 1 R. & M. N. P. C. 18. 
 
 (b) Sinclair v. Stephenson, h 1 C. & P. 582. 
 
 11 Eng. Com. Law Reps. xi. 401. b lb. xii. 243. c lb. xi. 480. d lb. xxi. 38G. 
 
 e lb. xix. 306. f Ib. xix. 386. 8 lb. xxi. 372. h lb. xi. 480.
 
 743 OF EVIDENCE. [BOOK VI. 
 
 Notice to After the possession of the primary evidence is proved to be in the 
 
 produce. at ] verse party, the party offering secondary evidence must prove that 
 
 he has given notice to the other side to produce the primary evidence. 
 
 Its form. Such notice may be by parol as well as in writing, and if both a parol 
 
 and written notice have been given, proof of either is sufficient.(c) It 
 
 should be properly entitled ;(d\ and must not be general, but should 
 
 specify the document to be produced. Thus, a notice " to produce all 
 
 letters, papers, and documents touching a bill of exchange mentioned in 
 
 the declaration, and the debt sought to be recovered," was held too 
 
 vague. (e) So a notice " to produce letters and copies of letters, also 
 
 all books relating to the cause," was held insufficient to let in secondary 
 
 "When and evidence of a letter alleged to have been written nine years before. (/) 
 
 upon whom j fc g^Q^j a ] so b e served in reasonable time.fr/) In civil cases, the rule 
 
 to be serv- . . \° I ... 
 
 ed. is, that notice to produce should be served belore the commission day, 
 
 when the party lives away from the assize town, in order that he may 
 have an opportunity of bringing the paper required, (/t) And a fortiori, 
 in a criminal case, where the party is in prison at a distance from his 
 home, ought the notice to be served before the commission day.(i') In 
 town causes, service of notice on the attorney in the evening before the 
 *744 trial is in general sufficient. (_/) *But where in a town cause the ser- 
 vice was at seven o'clock the evening before the trial, upon the attor- 
 
 (c) Smith v. Young, 1 Campb. 440, Rose. Ev. 7. 
 
 (d) Harvey v Morgan, 8 2 Stark. R. 17, where an action by the plaintiffs as the assignees 
 of C. v. E., a notice to produce was entitled A. and B., assignees of C. & D. v. E., and 
 held insufficient by Lord Ellenborough, though A. and B. were in fact the assignees of C. 
 and D. 
 
 (e) France v. Lucy* Ry. & Mood. N. P. C. 341. 
 
 (/) Jones v. Edwards, M'Clel. & Y. 139. In Morris v. Hauser, 2 M. & Rob. 492, Lord 
 Denman, C. J., held a notice to produce " all letters, written to and received by the plain- 
 tiff between the years 1837 and 1841, both inclusive, by and from the defendants, or either 
 of them, or any person in their behalf," sufficient to let in secondary evidence of a letter. 
 And in Jacob v. Lee, 2 M. & Rob. 33, Patteson, J., held a notice to produce " all and every 
 letters written by the plaintiff to the defendant relating to the matters in dispute in this 
 action," sufficient, and distinguished the case from France v. Lucy and Jones v. Edwards, 
 supra, on the ground that the notice mentioned the parties by whom and to whom the letters 
 were addressed. 
 
 (g) As to what is considered a reasonable notice, see Doe v. Grey, c 1 Stark. R. 283, Bryan 
 v. Wagstaff, Ry. & Mood. d N. P. C. 327. Drabble v. Donner, e ibid. 47. 
 
 (h) Trist v. Johnson, 1 M. & Rob. 259, Park, J. A. J. S. P. George v. Thompson, 4 Dowl. 
 k R. 656, where it was served on the commission day, at 5 p. m., at the attorney's residence 
 after he had left home for the assize town. Doe d. Curtis v. Spitty, f 3 B. & Ad. 182. Har- 
 gest v. Fothergill,e 5 C. & P. 303, Taunton, J. In Howard v. Williams, 9 M. & W, 725, a 
 notice was served on the defendant's attorney at his residence, twenty miles from the place 
 of trial before ^the under-sheriff, at 8 p. m., on the night before the trial; the defendant re- 
 sided in the same town with the attorney, but was not at home until 12 that night ; and the 
 notice was held insuficient. 
 
 (»') Rex v. Ellicombe, 1 M. & Rob. 260, Littledale, J. This was an indictment for setting 
 fire to a house with intent to defraud an insurance company, and notice was served on the 
 prisoner in gaol on Monday, the assizes having commenced on the Friday previous, and the 
 trial being on the Wednesday following. The prisoner's residence was ten miles from the 
 assize town. The notice was held insufficient. 
 
 (j) Per Gurney, B., Atkins v. Meredith, 4 Dowl. P. R. 658. 2 Phill. Ev. 219. Gibbons 
 v. Powell, 11 9 C. & P. 634, Gurney, B. Leaf v. Butt, 1 1 C. & Mars. 451. Meyrick v. Woods,'' 
 ibid. 452. But where notice to produce a receipt was served on the defendant on Saturday, 
 the cause coming on for trial on the Monday, Gurney, B., held the service too late, and that 
 the notice should have been served on the attorney. Housman v. Roberts,* 5 C. & P. 394. 
 Where the party and his attorney both lived in Worcester, Williams, J., held that service on 
 the Saturday during the assizes for the Monday following was sufficient. Firkin v. Ed- 
 wards, 1 1 C. & P. 478. 
 
 a Eng. Com. Law Reps. iii. 222. b lb. xxi. 452. « lb. ii. 391. d lb. xxii. 450. 
 
 e lb. xi. 361. f lb. xxiii. 51. s lb. xxiv. 331. h lb. xxxviii. 264. 
 
 1 lb. xli. 248. i lb. xli. 248. " lb. xxiv. 376. i lb. xxxviii. 192.
 
 CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 744 
 
 ney, who resided in Loudon, between two or three miles from the 
 tradesman, whose books were required to be produced, the Court of 
 Exchequer held the notice insufficient, as the books could not be pre- 
 sumed to be in the possession of the attorney. (k) The notice may be 
 served either on the party himself or his attorney. There is no differ- 
 ence in this respect between criminal and civil cases. (A 
 
 Notice to produce is unnecessary, when, from the nature of the pro- Notice to 
 ceedings, the party in possession of the instrument has notice that he is P roduce 
 charged with the possession of it, as in actions of trover, for bonds or necessary. 
 bills of exchange. (m) So in a prosecution for stealing a promissory 
 note or other writing described in the indictment, parol evidence of the 
 contents will be admissible, without any formal notice to the prisoner to 
 produce the original. On an indictment for stealing a bill of exchange, 
 all the judges held, that such evidence had been properly admitted, 
 though it was proved in that case, that the bill had been seen, only a 
 few days before the trial, in a state of negotiation, in the hands of a 
 third person, who had been served with a subpoena, and did not ap- 
 pear ;(n) and if it had been in the custody of the prisoner, parol evidence 
 might have been given of its contents without notice to produce. (o) So 
 in Spragge's case, who was tried before Buller, J., on an indictment 
 for forging a note, which the prisoner afterwards got possession of and 
 swallowed, parol evidence was permitted to be given of the contents of 
 the note, though no notice to produce it had been given. (p) But there 
 might be said, that such a notice would be nugatory, as the thing itself 
 was destroyed.^) And it has since been held, on an indictment for 
 forging a deed of release, that notice to produce the deed must be proved 
 to have been given ; but it appearing that the prisoner had stated that 
 after he had obtained possession of the deed he had burnt it, it was held 
 that secondary evidence of its contents was admissible, (r) In *Layer's *745 
 case,(s) on an indictment for high treason, where it was proved, that the 
 prisoner had shown a person the paper, containing the treasonable mat- 
 
 (k) Atkins v. Meredith, 4 Dowl. P. L. 658. In Rex v. Haworth, a 4 C. & P. 254, Parke, J., 
 held a notice to produce a forged deed served on the prisoner after the commencement of 
 the assizes too late, saying it should have been served a reasonable time before the assizes; 
 but it does not appear whether the prisoner resided in the assizes town or not. InRoyston's 
 case, 3 Lew. 267, Bolland, B., held a notice to produce a note served on Monday, the trial 
 being on the Wednesday following, insufficient, but the report does not state on what 
 ground. 
 
 (I) The Attorney-General v. Le Marchant, 2 T. R. 201, in note (a) to Rex v. Watson. 
 
 (m) How v. Hall, 14 East, 274. Scott v. Jones, 4 Taunt. 865. Tidd's Prac. 853. The 
 practice used to be otherwise, per Gibbs, J., 4 Taunt. 368. 
 
 (n) Aickles's case, 1 Leach, 294. (o) 1 Leach, 297, per Heath, J. 
 
 (p) Cited by Lord Ellenborough, C. J., in How v. Hall, 14 East, 975. 
 
 (q) Per Lord Ellenborough, C. J., ibid. 
 
 (r) Rex v. Harworth, b 4 C. & P. 254, Parke, J. See Foster v. Pointer, 9 C. & P. 718, 
 where Gurney, B., held that a statement by the defendant's attorney that a paper was not 
 in existence made secondary evidence admissible although a notice to produce had been 
 served too late. In Doe d. Phillips v. Morris, d 3 A. & E. 46, the court seem to have been 
 of opinion that notice to produce was necessary, although there might be some evidence 
 that the instrument was destroyed, "for although a witness might be called to say it had 
 been destroyed, it might be in the hands of the adverse party notwithstanding," per Lord 
 Denman, C. J., and the defendant might dispute the fact of its destruction, and say : " I have 
 the document, but will not produce it, because I have not been served with notice," perPat- 
 teson, J. Mr. Starkie, Ev., vol. 1, 398, after citing this case, adds, "lamen quccre, for after 
 destruction of the instrument it is no longer in the possession of any one." It is conceived, 
 however, that the observations of the court are perfectly accurate with reference to a case 
 where the destruction of the document is disputed. C. S. G. 
 
 (s) 6 St. Tr. 263. 
 
 a Eng. Com. Law Reps. xix. 370. b lb. xix. 370. ■ lb. xxxviii. 303. d lb. xxx. 22.
 
 745 OF EVIDENCE. [BOOK VI. 
 
 ter laid in the indictment, and then immediately put it into his pocket, 
 that person was permitted to give parol evidence of the contents of the 
 paper. And in the case of De la Motte,(7) on an indictment for a trai- 
 torous correspondence with the French government, where the question 
 was, whether examined copies of the treasonable papers, which had been 
 secretly opened at the post-office, and copied, and then forwarded to 
 their place of destination, were admissible in evidence ; the court held, 
 that they might be admitted, after proof that the originals were in the 
 handwriting of the prisoner. So on the trial of an indictment for ad- 
 ministering an unlawful oath, it was held that a witness might prove 
 that the prisoner read an oath from a paper, without giving him notice 
 to produce it.(u\ But an indictment for setting fire to a house, with 
 intent to defraud an insurance office, does not convey such a notice that 
 the policy of insurance will be required upon the trial, as to dispense 
 with the necessity of a notice to produce it.(i?) So where on an indict- 
 ment for stealing from out of a canal boat, it appeared that the boat had 
 been weighed at a lock, and a ticket of the weight given to the prisoner, 
 and it was proposed to give secondary evidence of its contents, although 
 no notice to produce it had been given ; Parke, J., held that this was 
 not allowable, because the rule which requires notice to be given ex- 
 tends to criminal as well as civil cases, except where the nature of the 
 indictment itself expressly shows the prisoner that the deed or paper in 
 question will be wanted at the trial. (w) 
 Necessary, It seems to be the better opinion, that neither party will be allowed, 
 though either in an examination in chief, or in a cross-examination, to inquire 
 is in court. in to the contents of a deed, merely because the opposite party has the 
 original deed in his possession in court, at the time of the trial ; and 
 that the opposite party may object to parol evidence of the contents, on 
 account of his not having received a notice to produce the original. (x) 
 *746 *A party called upon to produce a paper, must either produce it 
 
 when called upon, or not at all : he cannot avail himself of it in a sub- 
 sequent stage of the case. (3/) Where, therefore, notice had been given 
 
 (l) Coram, Buller and Heath, J., 1 East, P. C. c. 2, s. 58, p. 124. 
 
 («) Rex v. Moors, 6 East, 419, note to Rex v. Nield. See also Rex v. Hunt," 3 B. & A. 
 566, ante, p. 734. And see the same case as to proving inscriptions on banners, &c, with- 
 out notice to produce, ibid. So the principle of the rule requiring notice to produce does 
 not extend to a case where a party to the suit has fraudulently got possession of a written 
 instrument belonging to a third person ; as where a witness was called on the part of the 
 defendant, to produce a letter written to him by the plaintiff, and it appeared that, after the 
 commencement of the action he had given it to the plaintiff; in this case, though a notice 
 to produce had not been given, parol evidence was admitted, because the paper belonged to 
 the witness, and had been secreted in fraud of the subpoena. Leeds v. Cook, 4 Esp. N. P. 
 C. 256. Tidd, Pr. 853. 
 
 (v) Rex v. Ellicombe, b 5 C. & P. 522. 1 M. & Rob. 260, Littledale, J. There were other 
 counts laying the intent differently. In ordinary cases of felony it is not only the very 
 nature of the indictment, but the charge before the magistrate which gives notice to the pri- 
 soner at a sufficient time before the trial to be prepared with the particular document, and 
 that is always the case in civil suits. But if an indictment were preferred without any pre- 
 vious examination before a magistrate, it may be questionable whether such indictment 
 ought to be considered as giving sufficient notice to the prisoner, unless, indeed, he had in- 
 formation of the precise nature of the charge contained in it at such a period before the 
 trial as would be sufficient for the service of a notice to produce. C. S. G. 
 
 (w) Rex v. Humphries, Stafford, Spr. Ass. 1829. MS. C. S. G. 
 
 (x) 2 Phill. Ev. 226. 1 Stark. Ev. 404. And see Doe v. Grey, 1 Stark. 283. Roe v. 
 Harvey, 4 Burr. 2484. Rose. Ev. 6. 
 
 (y) 2 Phil. Ev. 220. Doe d. Higgst*. Cockell, d 6 C. & P. 525. Jackson v. Allen, 9 3 Stark. 
 R. 74, Lewis v. Hartley,' 7 C. & P. 405. 
 
 a Eng. Com. Law Reps. v. 377. b lb. xxiv. 436. ° lb. ii. 391. 
 
 d lb. xxv. 524. e lb. xiv. 165. ' lb. xxxii. 558.
 
 CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 746 
 
 to the defendant to produce certain receipts for rent, which the defend- 
 ant refused to produce ; it was held, that the defendant could not after- 
 wards, as part of his case, put in the receipts for the purpose of show- 
 ing that the rent was paid to the lessor of the plaintiff and another 
 jointly.(z) 
 
 The regular time of calling for the production of papers and books, Timetocall 
 is not until the party who requires them has entered into his case; till^ ort ^ e P ro " 
 that period arrives, the other party may refuse to produce them, and 
 there can be no cross-examination as to their contents, although the 
 notice to produce them is admitted. (a) 
 
 If ur»on a notice to the adverse party to produce primary evidence in Conse- 
 his possession, he refuses to produce the instruments required, it has g^n^no- 
 been held that no inference is to be drawn from such refusal; but thattiee topro- 
 the only consequence is, that the other party who has done all in his duce " 
 power to supply the best evidence, will be allowed to go into secondary 
 evidence. (aa) If the party, giving due notice, declines to use the papers 
 when produced, this, though matter of observation, will not make them 
 evidence for the adverse party, (b\ though it is otherwise when the papers 
 are inspected. (c\f Secondary evidence of papers, to produce which 
 notice has been given, cannot be entered into till the party calling for 
 them has opened his case, before which time there can be no cross- 
 examination as to their contents. (c?) Where a party, after notice, re- 
 fuses to produce an agreement, it is to be presumed as against him that 
 it is properly stamped. (e) 
 
 3. It remains to be considered what is good secondary evidence. (/) 3. What is 
 It must be observed, that previous to giving any such evidence of the f°° da r y ~ 
 contents of a deed, the original deed ought to be proved to have been evidence. 
 
 Of 1 A 
 
 duly executed. (#) So where an original note of hand is lost, a copy UI a aeea: 
 cannot be read in evidence unless the note *is first proved to be genu- *747 
 
 (z) Doe d. Thompson v. Hodgson,* 12 A. & E. 135. 
 
 (a) Phil. Ev. 221. Graham v. Dyster, b 2 Stark. R. 23. Sideways v. Dysan, c ibid., 49. 
 
 1 Stark. Ev. 403. 
 
 (aa) Cooper and another v. Gibbons, 3 Campb. 363. That was an action for the value of 
 a pipe of wine : notice had been given by the defendant to the plaintiffs to produce their 
 books, but they were not produced. It was insisted for the defendant, that the jury were 
 bound to draw an inference against the plaintiffs from such non-production. But Gibbs, C. 
 J., said, " I have considered this subject a good deal, and am of opinion, that the jury are 
 not authorized to draw any such inference from the circumstances relied on. The non- 
 production of the plaintiff's books, after a notice to produce them, merely entitles the 
 defendants to give parol evidence of their contents." See the observations of Mr. Phillips, 
 
 2 vol. 222. 
 
 (b) Sayar v. Kitchen, 1 Esp. N. P. C. 210. 
 
 (c) Wharam v. Routledge, 5 Esp. N. P. C. 235. Rose. Ev. 9, S. P. if they are at all mate- 
 rial to the case. Wilson v. Bowie, d 1 C. & P. 10, cor. Park, J. A. J. Calvert v. Flower, 6 7 
 C. & P. 386. 
 
 (d) Graham v. Dyster, f 2 Stark. 33. Rose. Ev. 9. 
 
 (e) Crisp v. Anderson,* 1 Stark. N. P. C. 35, but the party refusing is at liberty to prove 
 the contrary, ibid. 
 
 (/) Where secondary evidence is let in, it is subject to the same rules as the best evidence 
 which the case admits of: the evidence as to the contents of written instruments, when they 
 cannot be produced themselves, must be of a nature which the law would receive in other 
 instances. Per Lord Ellenborough, in Fisher v. Samuda, 1 Campb. 193. 
 
 [g) Bull. N. P. 254. Rex v. Culpepper, Skin. 673. 
 
 f {See 1 Stark. Ev. 379, [New ed. 348,] note (2) that in New York and Pennsylvania, call- 
 ing for and inspecting a paper do not make it evidence.} 
 
 8 Eng. Com. Law Reps. xl. 44. •> lb. iii! 224. ° lb. xxxvi. 550. d lb. xi. 299. 
 
 e lb. xxxvi. 550. lb. iii. 224. s lb. ii. 283.
 
 747 OF EVIDENCE. [BOOK VI. 
 
 Original in- ine.(/t) In secondary evidence there are no degrees, that is no prece- 
 iuu't'be deuce or superiority in point of admissibility. An attested copy of a 
 proved to written instrument is not of a superior order of proof to an examined 
 have been gopy^ nor j s aa examined copy superior to parol evidence of the con- 
 futed, tents. (/) As soon, therefore, as a party has accounted for the absence 
 No degrees f t jj e original document, he is at liberty to give any kind of secondary 
 ary evi- evidence. (&) The evidence of any one who recollects the contents of 
 dence. a letter, is good secondary evidence of it,(Z) although it is in the party's 
 ' power to produce the clerk who wrote the letter. (??i) If it be necessary 
 Of a license to prove the contents of a license to trade granted from the crown, 
 ra e ' proof of its loss is not enough to let in parol evidence of them, because 
 there must be some register of it at the secretary of state's office, and 
 that register would be better than parol evidence, (w) So where it was 
 Of an affi- proposed to prove that defendant was owner of a ship, by means of his 
 ownership affidavit, sworn for the purpose of obtaining a certificate of register, 
 of ship. and a proper ground for the reception of secondary evidence has been 
 laid, Lord Ellenborough held, that an entry in the register-book of the 
 Custom-house, stating that the certificate had been granted on an affi- 
 davit of the defendant that he was owner, was not admissible as second- 
 ary evidence. The collector's clerk, or some person who had seen the 
 affidavit, and knew that it was made by the defendant, ought to have 
 Of lost a- been called. (o) Where there are two parts of a written agreement, 
 greement, D0 tk executed at the same time, the one stamped and the other unstamped, 
 stamped the unstamped part is admissible as secondary evidence of the contents 
 counter- f the stamped parfc.(p) So where there was a properly stamped agree- 
 par ' ment under seal, and a counterpart of it unstamped, and the plaintiff 
 
 proved the loss of the deed itself, and proposed to read a draft copy in 
 evidence, it was held that the unstamped counterpart, which was pro- 
 duced after notice by the defendant, might be read as secondary evidence 
 of the contents of the lost deed. (5) 
 
 A copy of a copy of a document in the possession of the defendant, 
 
 who had received notice to produce the document, was offered as se- 
 
 *748 condary evidence of the contents, being produced by a witness, *who 
 
 stated that he had compared it with the first copy, which he had com- 
 
 (h) By Lord Hardwicke, C. J., in Goodier v. Lake, 1 Atk. 246. 
 
 (/) 2 Phill. Ev. 236. It was formerly thought the next best evidence of a deed was a 
 counterpart. Bull. N. P. 254, and see Munn v. Godbold, a 3 Bing. 292, and if there were no 
 counterpart, an examined copy, 1 Phill. Ev. 438, 6th ed. 
 
 (k) Per Parke, B., Doe d. Gilbert v. Ross, 7 M. & W. 102. In that case on the trial of an 
 ejectment by the same lessors of the plaintiff against a different defendant, a deed was given 
 in evidence on the part of the defendant, and it was held that the short-hand writer's notes 
 of the contents of the deed were admissible in evidence, although there was an attested 
 copy, which being unstamped was rejected. In Browne v. Woodman, 6 6 C. & P. 206, Parke, 
 J., held that parol evidence of the contents of a letter was admissible, although a copy of 
 the letter existed. In Doe d. Morse v. Williams, 1 C. & Mars. 615, Patteson, J., held that 
 parol evidence of the contents of a notice to quit was admissible, although no notice had 
 been served to produce the copy of the notice served on the defendant. In Hall v. Ball, d 3 
 M. & Gr. 242, in trover for an expired lease by the lessor, the lease or counterpart executed 
 by the lessor not being produced by the defendant upon notice, it was held that the lessor 
 might give parol evidence of the contents without producing the counterpart executed by 
 the lessee. 
 
 (I) Liebman v. Pooley, e 1 Stark. N. P. C. 167, by Lord Ellenborough. But a copy of the 
 original copy of a letter, is not good secondarv evidence, ibid. 
 
 (m) Rex v. Chadwick, f 6 C. & P. 181, Tindal, C. J. 
 
 (n) Rhind v. Wilkinson, 2 Taunt. 237. Eyr.e 0. Palsgrave, 2 Campb. 605. 
 
 (0) Teed v. Martin, 4 Campb. 99. (p) Waller v. Horsfall, 1 Campb. 501. 
 
 \q) Munn v. Godbold,« 2 Bing. 292. See also Garnons v. Swift, 1 Taunt. 507. 
 a Eng. Com. Law Reps. xi. 108. » lb. xxv. 358. " lb. xl. 334. d lb. xlii. 133. 
 * lb. ii. 340. f lb. xxv. 344. s lb. xi. 10S.
 
 CHAP. I. § II.] BEST POSSIBLE EVIDENCE MUST BE PRODUCED. 748 
 
 pared with the original document, Alderson, B. ; rejected the proposed 
 proof. (r\ 
 
 There are some particular cases, where the rule that the best possible Cases 
 evidence must be produced, has been relaxed. Where it is necessary ^ukTis re- 
 to prove an entry in a public book, the original book need not be shown, laxed. 
 but from a principle of general convenience, an examined copy will be ? ub J lc 
 admitted (s) The post-office marks in town or country, proved to be Post-office 
 such, are evidence that the letters, on which they are, were in the office marks - 
 to which those marks belong at the dates those marks specify ;(t) but a 
 mark of double postage on such a letter is not in itself evidence that the 
 letter contained an inclosure,(w) and it has been held that the post- 
 mark is not evidence for the purpose of proving that the letter was put 
 into the post-office at the place mentioned by such post-mark. (v) The Muster- 
 muster-books of the king's ships, documented in the navy-office, to books- 
 which returns are regularly made by the commanders, of the names, &c, 
 of their respective crews, may be admitted as evidence of the persons 
 therein named having served on board the several ships in the capacity 
 there mentioned. (w) So in case of all peace officers, justices of the p ersons 
 peace, constables, &c, it is sufficient to prove that they acted in those acting in a 
 characters without producing their appointments;^) and that even in a p " bl t lc ca " 
 case of murder.(,y) A witness may be examined on the voire dire as On the 
 to the contents of a written instrument, without notice having been votre dtre% 
 given to produce it.(z) And where a witness is cross-examined for the On cross- 
 purpose of impeaching his credit, such cross-examination is sometimes e . xamina - 
 allowed to be conducted without regard to the rule under consideration, peach a 
 Thus, an accomplice or other witness, who appears for the crown on a witn . ess ' 3 
 criminal prosecution, is often asked on the part of the prisoner, without cn 
 any objection, whether he has not himself been tried for some offence, 
 although if the rule were strictly applied, that fact could only be proved 
 by the best possible evidence, viz., the record. (a) So it had been argued 
 by a very eminent writer, that a witness may be asked on cross-exami- 
 nation for the purpose of trying his credit and veracity, whether he has 
 not given an account in a letter different from his present testimony, 
 without regard to the objection that the letter itself is the best evidence, Rule ap- 
 and therefore the parol evidence of the witness inadmissible ;{b\ for the plie ^ 01lly - 
 general rule, that the best evidence is to be produced which the nature f the 
 
 ie issue. 
 
 of the thing admits, is to be understood as applying only to the proof or of some 
 of the issue, or of some fact material to the issue. (c) ria l t0 tlie " 
 
 * Whatever a party says, or his acts amounting to admissions, are evi- issue - 
 dence against himself, though such admissions may involve what must ' *" 
 
 (r) Everingham v. Roundell, 2 M. & Rob. 138, as cited 2 Phill. Ev. 239. " This evidence 
 was manifestly defective, it did not appear that the witness had compared the copy produced 
 with the original document. After the rejection of this second copy, parol evidence of the 
 original document would have been admissible." Ibid. 
 
 (s) 1 Phill. Ev. 233. (/) Rex v. Plumer, Russ. & Ry. 264. Ante, vol. 1, p. 259. 
 
 (u) Ibid. 
 
 (v) Rex v. Watson, 1 Campb. 215. Ante, vol. 1, p. 259, and Fletcher v. Braddyll, a 3 
 Stark. N. P. C. 64. 
 
 (w) Ante, p. 483, Rhodes's case, 1 Leach, 24. And see Aickles's case, 1 Leach, 390, where 
 it was held that the daily book of a prison is good evidence to prove the time of a prisoner's 
 discharge. 
 
 (x) 1 Phill. Ev. 432. Ante, p. 732. 
 
 (y) By IJuller, J., in Berryman v. Wise, 4 T. R. 366. 
 
 (z) Howell v. Locke, 2 Campb. 15. (a) 2 Phill. Ev. 428, et seq. 
 
 (b) 1 Phill. Ev. 299, 1 Ed. (c) 1 Phill. Ev. 301, 1 Ed. 
 
 a Eng. Com. Law Reps. xiv. 1G4.
 
 749 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Statements 
 respecting 
 writings. 
 
 Fact of 
 tenancy. 
 
 Inscrip- 
 tions on 
 walls, &c. 
 
 necessarily be contained in some deed or writing. (tZ) The reason why 
 such parol statements are admissible, without notice to produce, or ac- 
 counting for the absence of the written instrument, is that they are not 
 open to the same objection which belongs to parol evidence from other 
 sources where the written evidence might have been produced, for such 
 evidence is excluded from the presumption of its untruth, arising from 
 the very nature of the case, where better, evidence is withheld; whereas, 
 what a party himself admits to be true, may reasonably be presumed to 
 be so.(e) 
 
 If the fact of the occupation of land is alone in issue, without respect 
 to the terms of the tenancy, this fact may be proved by any competent 
 oral testimony, such as payment of rent, or declaration of the tenant, 
 notwithstanding it appears that the occupancy was under an agreement 
 in writing ; for here the writing is only collateral to the fact in ques- 
 tion. (f\ But if any of the terms of the tenancy, as for example, who 
 is the lessor, or what is the rent, are in issue, and it appears that there 
 was a written contract for the tenancy, such contract must be pro- 
 duced.^) 
 
 Inscriptions on walls, and fixed tables, mural monuments, gravestones, 
 surveyors' marks on boundary trees, as they cannot be conveniently pro- 
 duced in court, may be proved by secondary evidence. (A) Such excep- 
 tions are in cases where the material on which the document is written 
 is not easily removed ; as in case of things fixed to the ground or to 
 the freehold, for the law does not expect a man to break up his freehold 
 for the purpose of bringing a notice into court. But that ground for 
 exception does not apply to the case of a notice painted on a board, fast- 
 ened by a string to a nail in a wall, as there could be no difficulty or in- 
 convenience in removing the board from the nail on which it was hung, 
 and producing it in court.(i) 
 
 (d) Per Parke, B., Slatterie v. Pooley, 6 M. & W. 664. 
 
 (e) Per Parke, B., ibid. In Earle v. Ricken, 5 C. & P. 542, Parke, B., held that a witness 
 might be asked whether he had not heard the defendant say that a person had agreed to 
 give a certain sum for an estate. In Slatterie v. Pooley, after a composition deed and sche- 
 dule had been produced and the latter not being duly stamped rejected, evidence of a verbal 
 admission by the defendant that the debt mentioned in the declaration was the same with 
 one entered in the schedule, was held admissible, for the purpose of proving the said issue 
 in the cause. Bloxam v. Elsie, a R. & M. N. P. R. 187, was expressly overruled in this case. 
 In Howard v. Smith, b 3 M. & Gr. 254, the question in an action of replevin was, whether 
 the plaintiff held under a demise at the rent of 20^., payable quarterly, and evidence of 
 verbal statements of the plaintiff that he so held were held sufficient, although it appeared 
 that the tenancy was created by adopting the terms of a former demise in writing, which 
 was not produced. 
 
 (/) Greenl. Ev. 100. Rex v. The Holv Trinity, Kingston upon Hull, 7 C. & P. 611; 1 
 M. & R. 444. 
 
 (ff) Rex v. Rawden, a 8 B. & C. 708. Rex v. Jlerthyr Tidvil, e 1 B. & Ad. 29. Doe v. Har- 
 vey , f 8 Bing. R. 239. 
 
 (h) Greeul. Ev. 106, citing Doe d. Coyle v. Cole,s 6 C. & P. 359, Patteson, J. Rex v. Fur- 
 sey, h 6 C. & P. 71, Parke, J., and Gaselee, J. ; where the contents of a paper notice affixed 
 to a wall were proved by a copy. Parol evidence, however, is admissible in such cases. 
 Doe v. Cole. 
 
 (i) Jones v. Tarleton, 1 Dowl. P. R. (N. S.) 625, 9 M. & W. 675. 
 
 <"• Eng. Com. Law Reps. xi. 468. b lb. xlii. 139. c lb. xiv. 101. d lb. xv. 329. 
 « lb. xx. 337. ' lb. xxi. 286. e lb. xxv. 438. h lb. xxv. 293.
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. *750 
 
 *SECT. III. 
 
 Of Hearsay Evidence. 
 
 There is no rule in the law of evidence more important or more fre- General 
 quently applied than the general one, that hearsay evidence of a fact is hearsay* 
 not admissible. If any fact is to be substantiated against a person, it evidence is 
 ought to be proved in his presence by the testimony of a witness sworn madmissi - 
 to speak the truth ; and the reason of the rule is, that evidence ought 
 to be given under the sanction of an oath, and the person who is to be 
 affected by the evidence may have an opportunity of interrogating the 
 witness as to his means of knowledge, and concerning all the particulars 
 of his statement. (_/) There are, however, certain instances which it will 
 be the object of this section to point out, where hearsay evidence is ad- 
 missible, because either the objection does not apply, or from the neces- 
 sity of the case the rule is relaxed. 
 
 When hearsay is introduced, not as a medium of proof in order to Hearsay 
 establish a distinct fact, but as being in itself a part of the transaction t^nsac- ° 
 in question, it is then admissible ; for to exclude it might be to exclude tion, or res 
 the only evidence of which the nature of the case is capable.(&)f Thus s,este * 
 in Lord George Gordon's case, on a prosecution for high treason, it was 
 held that the cry of the mob might be received in evidence as part of 
 the transaction. And generally speaking, declarations accompanying 
 acts are admissible in evidence as showing the nature, character, and 
 objects of such acts. Thus where a person enters into land in order 
 
 (/) 1 Phill. Ev. 229, 7 ed. ; 206, 9 ed. 
 
 \k) Rose. Ev. 30. (I) 21 How. St. Tr. 535. 
 
 ■j- [Thus the declarations of the prisoner may be admitted to account for his silence, 
 where that silence would operate against him. The U. States v. Craig, 4 Wash. C. C. Rep. 
 729. So it has been held, that in an action against a voluntary bailee, for the loss of goods 
 by carlessness and negligence, he may give in evidence his own acts and declarations, 
 immediately before and after the loss, to repel the charge. Tompkins v. Sallmarsh, 14 Serg. 
 & R. 275. 
 
 Whenever the conduct of a person at a given time becomes the subject of inquiry, his 
 expressions, as constituting a part of his conduct and indicating his intention, cannot be 
 rejected as irrelevant, but are admissible as part of the res gestse. Tenney v. Evans, 14 New 
 Hamp. 353. 
 
 The declarations of a party are admissible in his favour where they are so connected with 
 some material act as to explain or qualify it, or show the intent with which it was done. 
 Russell v. Frisbie, 19 Connecticut, 205. 
 
 Where several persons came to a house from which another came out, and a fight ensued, 
 which resulted in the death of one of the former, it was held, that on the trial of the party 
 thereupon indicted for murder, a witness might be asked to state what conversation took 
 place just before the affray, whilst the deceased, the witness, and others were together, in 
 relation to the subject-matter of an existing dispute between the defendant on one side, and 
 the deceased or another person, or either of them, on the other, in relation to their going 
 together to the house, and their purpose in going there. Steivarl v. The State, 19 Ohio, 302. 
 
 Three brothers, Nicholas, John and William, were indicted for murder, Nicholas as 
 accessory before the fact, John and William as principals. Upon the trial of John and 
 William, the court held, that the government, without having shown any conspiracy or 
 confederacy between the said John and Nicholas, his brother might be permitted to present 
 to the jury evidence of expressions of hostility towards the deceased, uttered by the said 
 Nicholas, in the presence of John, but not responded to or acquiesced in by him, as testi- 
 mony, which, taken in connection with the friendly and fraternal relations existing between 
 the said John and Nicholas, might go to prove a motive on the part of John for committing 
 the crime. Held further, that evidence having passed of expressions of hostility on the part 
 of Nicholas, uttered in the presence of John, evidence might further be admitted of a cause 
 for hostile feelings on the part of said Nicholas towards the deceased. The Slate v. Gordon, 
 1 Rhode Island, 179.]
 
 750 OF EVIDENCE. [BOOK VI. 
 
 to take advantage of a forfeiture, to foreclose a mortgage, to defeat a 
 disseisin or the like ;(m) or changes his actual residence, or is upon a 
 journey, or leaves his home, or returns thither, or remains abroad, or 
 secrets himself; or, in fine, does any other act material to be under- 
 stood ; his declarations made at the time of the transaction, and expres- 
 sive of its character, motive, or object, are regarded as "verbal acts 
 indicating a present purpose and intention," and are therefore admitted 
 in proof like any other material facts. They are part of the res geslce.(n} 
 Thus, where a constable, who was indicted for a forcible entry into a 
 house, had searched the house, having a warrant in his hand, Lord Ten- 
 terden, C. J., held that what he said at the time as to who he was search- 
 ing for, was admissible, although the question was asked by his counsel, 
 and the answer might be in his favour.(o) 
 *751 *In an action by a husband and wife for wounding the wife, Lord C. 
 Complaints J, Holt allowed what the wife said immediately upon the hurt received, 
 lnjune . ^^ before she had any time to devise anything for own advantage, 
 to be given in evidence as part of the res gestce.(p) So on an indict- 
 ment for manslaughter, in killing a party by driving a cabriolet over 
 him, it has been held that a statement made by the deceased imme- 
 diately after the accident, as to the cause of the accident, is admissi- 
 ble.^) And Lawrence, J., said, in Aveson v. Lord Kinnaird,(r) that 
 it is in every day's experience, in actions of assault, that what a man 
 has said of himself to his surgeon is evidence, to show what he suffered 
 by the assault. Inquiries of patients by medical men, with the answers 
 to them, are evidence of the state of health of the patients at the time ; 
 and what were the symptoms, what the conduct of the parties them- 
 selves at the time, are always received in evidence upon such inquiries, 
 and must be resorted to from the very nature of the thing.(s) So, on 
 Robbery a prosecution for robbery, it has been held, that the fact of the party 
 and rape, robbed making complaint to a constable shortly after the robbery, and 
 mentioning the name of a person, as the name of one of the persons 
 
 (m) Co. Litt. 49 b, 245 h. Robinson v. Swett, 3 Greenl. 316. 3 Bla. Com. 174, 175. 
 
 (n) Greenl. Ev. 130, citing Bateman v. Bailey, 5 T. R. 512. Rawson v. Haigh, a 2 Bingh. 
 R. 99, Newman v. Stretch, b M. & M. 338. Ribley v. Gyde, c 9 Bingh. 349. Smith v. Cra- 
 mer, 3 1 Bingh. N. C. 585. Gorham v. Canton, 5 Greenl. 266. Fellowes v. Williamson," 5 M. 
 
 6 M. 306. Vacher v. Cocks, f M. & M. 353. 1 B. & Ad. 145. 
 
 (o) Rex v. Smyth,e 5 C. & P. 201. And see 1 Stark. Ev. 62, 350, 351. Walters v. Lewis," 
 
 7 C. & P. 344. Where an agent paid money into a bank, Littledale, J., held, that what he 
 said about the money at the time he paid the money into the bank, was admissible. Reg. 
 v. Hall, 1 8 C. & P. 359. The learned judge admitted the evidence, on the ground that it 
 was a declaration by an agent acting within the scope of his authority ; but it seems equally 
 admissible as a declaration accompanying the act of payment, and explanatory of the pur- 
 pose of the payment. C. S. G. 
 
 (p) Thompson v. Trevanion, Skin. 402, cited by Lord Ellenborough, C. J., in Aveson v. 
 Lord Kinnaird, 6 East, 193. 
 
 (q) Rex v. Foster," 6 C. & P. 325, Park, J. A. J., Patteson, J., and Gurney, B. 
 
 (r) 6 East, 193. 1 Phill. Ev. 191. 
 
 (s) By Lord Ellenborough, 6 East, 195. "When a patient enters into a history of his 
 complaint, and relates some earlier symptoms experienced at a former period, he is giving 
 a narrative from memory, rather than yielding to the impressions forced upon him by his 
 situation ; and it would seem, upon principle, that what he (so) says ought not to be 
 received in evidence." 1 Phill. Ev. 191, and "although it is now settled that what a patient 
 sa3 r s to a medical man about his sufferings is receivable in evidence, it should seem that a 
 statement by him respecting the particular cause of his sufferings, (as for example, the cir- 
 cumstance of an assault which he had received,) would be open to a greater objection." 1 
 Phill. Ev. 192. 
 
 ft Eng. Com. Law Reps. ix. 335. b lb. xxii. 330. " lb. xxiii. 304. d lb. xxvii. 498. 
 
 e lb. xxii. 316. f lb. xxiv. 332. « lb. xxiv. 279. •> lb. xxxii. 535. » lb. xxxvii. 437. 
 
 k lb. xxv. 421.
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. 751 
 
 who had robbed him, is admissible, but not the name so mentioned. (/) 
 So, on a prosecution for a rape, it has been held, that the prosecutor 
 may prove that the woman made a complaint recently after the in- 
 jury ;(it)t so it has also been considered allowable, on an indictment 
 for an assault on an infant of five years old, with intent to ravish her, 
 to give evidence of the child's having complained of the injury recently 
 after it was received. («) But the particulars of such a complaint are 
 not admissible in evidence on the part of the prosecution. hv) It is 
 not, therefore, competent, on the part of the prosecution, to ask what 
 name the prosecutrix mentioned at the time she made such a com- 
 plaint.^) And although what the prosecutrix said at the time of the 
 committing the offence would be receivable in evidence, on the ground 
 that the prisoner was present, and the violence going on, yet, if the 
 violence was over, and the prisoner had ^departed, and the prosecutrix *752 
 had gone on running away, crying out the name of the person, it would 
 not be evidence. (y) 
 
 The fact of the prosecutrix having made a complaint is only admis- 
 sible for the purpose of confirming her testimony; in case, therefore, of 
 her death, or absence from any cause, neither the particulars of the 
 complaint, nor the fact of such complaint having been made, are admis- 
 sible in evidence.(z);{; 
 
 On a charge of larceny, where the proof against the prisoner is, that 
 the stolen property was found in his possession, it would be competent 
 
 (t) Rex v. Wink,* 6 C. & P. 397, Patteson, J. It was also held that the constable might 
 be asked whether in consequence of the prosecutor mentioning a name to him, he went in 
 search of any person, and who that person was; but in Reg. v. Osborne, b 1 C. & Mars. 622 
 this point was questioned by Cresswell, J., who said, " it seems to me to be rather too refined 
 a distinction to prevent the name from being mentioned, and yet permit it to be asked 
 whether in consequence of what was said the witness apprehended a particular person. I 
 think you ought not to go so far as that." 
 
 (u) Rex v. Clarke, 2 Stark. N. P. C. 242. Such evidence is now considered quite essen- 
 tial in order to support the statement of the prosecutrix. C. S. G. 
 
 (v) 1 P. C. c. 10, s. 5, p. 444. Ante, vol. 1, p. 695. 
 
 («.•) 1 Phill. Ev. 193, ante, vol. 1, p. 689, note (c). 
 
 (x) Rex v. Osborne, d 1 C. & Mars. 622, Cresswell, J. But the counsel for the prisoner may, 
 if he thinks fit, ask the prosecutrix as to the term of the complaint, and if he does so the 
 counsel for the prosecution has a right to examine as to all that was said by her in the same 
 conversation. C. S. G. (?/) Per Cresswell, J., Reg. v. Osborne, supra. 
 
 (z) Reg. v. Megson, e 9 C. & P. 420, Rolfe, B. Reg. v. Guttridges/ 9 C. & P. 471, Parke 
 B., ante, vol. 1, p. 690; 1 Phill. Ev. 193. 
 
 f [In a prosecution for a rape, the statement made by the female immediately after the 
 transaction, may be given in evidence to corroborate her testimony given in court. Laugh- 
 lin v. The State, 18 Ohio. 99.] 
 
 X [Upon the trial of an indictment for rape, the declarations of the injured female made 
 immediately after the alleged offence, are not admissible evidence for the prosecution to 
 prove the offence committed ; and the rule is the same though it appear that she is incom- 
 petent to testify on account of immature age, idiocy, or other mental defect. The People v. 
 M'Gee, 1 Denio, 19. 
 
 Such declarations are only competent when the party injured has given evidence as a 
 witness, and then only upon the question of her credibility. Ibid. 
 
 When an act is done to which it is necessary to ascribe a motive, it is always considered 
 that what ia Baid at the time, from which the motive may be collected, is a part of the res 
 gestae. Monroe v. The Stale, 5 Georgia, 85. 
 
 Previous threats may In: given in evidence on a trial for an assault with intent to murder, 
 either asa justification or to rebut the presumption of malice. Howellr. The Stale, 5 Georgia, 48. 
 
 For the purpose of proving a bargain and sale the declaration of the parties thereto at the 
 time are a part of the resgestce, and competent evidence for the accused to rebut the inference 
 of guilt arising from the possession of stolen property. Leggelt v. The Stale, 15 Ohio, 283.] 
 
 a Eng. Com. Law Reps. xxv. 456. b lb. xli. 338. c lb. iii. 333. d lb. xli. 338. 
 
 e lb. xxxviii. 173. f lb. xxxviii. 188. 
 
 Vol. ii.— 49
 
 752 OF EVIDENCE. [BOOK VI, 
 
 to show, on behalf of the prisoner, that a third person left the property 
 in his care, saying he would call for it again afterwards ; for it is mate- 
 rial in such a case to inquire under what circumstances the prisoner 
 first had possession of the property. (a} 
 Testimony If there has been a previous criminal prosecution between the same 
 ceased wit- P al *ties, and the point in issue was the same, the testimony of a deceased 
 neaa at a witness given upon oath at the former trial is admissible on the subse- 
 former tn- q uen £ trial, and maybe proved by one who heard him give evidence ;(b) 
 but the witness must speak to the very words, and not merely swear to 
 the effect of theni.(c) " He ought," said Lord Kenyon, <« to recollect the 
 very words ; for the jury alone can judge of the effect of words," (<Z)"j" in 
 Deposi- what case the depositions of a witness before a committing magistrate 
 tlon3, may be read in evidence at the trial, will be hereafter considered. 
 
 Dying de- Besides the usual evidence of guilt in general in cases of felony there 
 is one kind of evidence peculiar to the case of homicide, which is the 
 declaration of the deceased after the mortal blow as to the fact itself, 
 and the party by whom it was committed. (e) The general principle on 
 which this species of evidence is admitted is, that they are declarations 
 made in extremity, when the party is at the point of death, and when 
 every hope in this world is gone ; when every motive to falsehood is 
 silenced, and the mind is induced by the most powerful considerations 
 
 i a) 1 Phill. Ev. 234, 7th ed. 
 
 (b) Rex <>. Carpenter, 2 Shaw, 47 ; 2 Hawk. P. C. c. 46, s. 29 ; 1 Phill. Ev. 337, and Mr. 
 Starkie's note to Rex v. Smith, in the second volume of his Reports, p. 211. 
 
 (c) Lord Palmerston's case, cited by Lord Kenyon, in Rex v. Joliffe, 4 T. R. 290. 
 
 (d) Ennis v. Donisthorne, MS., 1 Phill. Ev. 231, 7th ed. By this it is conceived his lord- 
 ship meant, not that the witness's testimony would go for nothing, unless he could swear 
 positively they were the very words used by the deceased, and no other; but that the pre- 
 sent witness ought to say, "To the best of my recollection these were the very words used." 
 
 (e) 1 East, P. C. c. 5, s. 124, p. 353. 
 
 f {Mr. Starkie questions "whether so great exactness is necessary," as to require the 
 'very words "of a former witness. 1 Stark. Ev. 280, note (n). — [New ed. 279, note (A:).] — 
 Parker, C. J., in Melvin v. Whiting, 7 Pick. 81, says, " to swear to the very words of a 
 deceased witness in most cases is impossible; and so the rule is nearly useless." In Cornell & 
 al. v. Green, 10 Serg. & Rawle, 14, Gibson, J., says, "the rule applied with that degree of strict- 
 ness would be altogether useless in practice ; for there is no man, be his powers of recollec- 
 tion what they may, who could, in one case picked out of ten thousand, be qualified to give 
 such evidence ; and if he should undertake to swear positively to the very words, the jury 
 ought, on that account alone, to disbelieve him." And it was accordingly decided, in that 
 ea-e, that a witness may state the substance of what was sworn by a witness on a former 
 trial, and is not obliged to testify to the very words. 
 
 In Bowie v. O'Neale, 5 Harris & Johnson, 231, it was held that the evidence given by a 
 deceased witness must be proved, and that it is not sufficient that the witness should give 
 his own inference, or depose to its legal effect. No intimation was made, however, that the 
 very words must be given. 
 
 Nor is there any allusion to such a rule in 2 Johns. 17, Jackson v. Bailey ; 8 ib. 450, Beale 
 v. Guernsey; 11 ib. 128, White & Kibbling; where evidence of this kind was admitted. 
 Nor in 3 Taunt. 262, where Mansfield, C. J., recognizes the admissibility of a deceased wit- 
 ness's testimony, as stated from the notes or memory of a hearer. 
 
 But the person who undertakes to prove the evidence of a former witness must be able to 
 state the substance of the whole of what was said on the particular subject which he is 
 called to prove. If he can only prove what was sworn by the deceased on his examination 
 in chief, without giving the cross-examination, it cannot be received. 11 Serg. & Rawle, 
 149, Wolfe v. Wyeth, Ib. 337, Watson v. Gilday. 
 
 In Chess v. Chess & al., 17 Serg. & Rawle, 109, it was decided that a counsel may give 
 evidence of what a deceased witness swore on a former trial, from his notes, though he does 
 not recollect the evidence independently of his notes, nor whether there was a cross-exami- 
 nation — and gives only the substance of the former testimony. 
 
 When it is proposed to introduce the testimony of a deceased witness given on a former 
 trial between the same parties, it is not necessary to prove the exact words of such 
 deceased witness. It is sufficient if the substance of all he said on the examination ami 
 cross-examination, in relation to the subject-matter in controversy be proved. Kcmhick v. 
 The State, 10 Humphreys, 479.
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. 752 
 
 to speak the truth ; a situation so solemn, and so awful, is considered 
 by the law as creating an obligation equal to that which is imposed by 
 a positive oath administered in a court of justice.(/) It is therefore 
 evident that declarations, though proved to have been made by a person Deceased 
 in a dying state, are not admissible, unless it also appears that the de- must ,. be 
 ceased himself apprehended that he was in such a state of mortality as of ap- 
 would inevitably oblige him soon to answer before his Maker for the P roachin S 
 truth or falsehood of his assertions. (c/\\ " It is to be proved by the ea ' 
 
 (/) Per Eyre, C. B., in Woodcock's case, 1 Leach, 500. (g) Per Eyre, C. B., ibid. 
 
 See 3 Taunt. 262, Mayor of Doncaster v. Day. 4 Serg. & Itawle, 263, Lightuer v. Wike. 
 4 Binney, 108, Miles v. O'Hara. 
 
 Evidence of what a witness swore on a former trial of the same cause seems generally to 
 be confined to cases where the witness is since dead. 
 
 It is not allowed where the witness has since become incompetent, by being convicted of 
 an infamous offence. 14 Mass. R. 234, Le Baron v. Crombie & al. Nor where he is living 
 within the process of the court. Chess v. Chess & al., ubi sap. 
 
 In Green v. Gatewick, Bui. N. P. 243, however, such proof is said to have been received, 
 where a witness who had been subpoenaed by the defendant, and his charges given him, did 
 not appear — " for the court said they would presume that he was kept away by the plain- 
 tiff's practice;" as he was produced by the plaintiff at the former trial. In 1 Root, 76, Rex v. 
 Barber, where a prisoner had procured a witness to go away, evidence of what he testified 
 before the grand jury was admitted. But this seems erroneous, as the prisoner had not an 
 opportunity to cross-examine the witness. Besides, it is by no means clear that evidence of 
 what is testified before the grand jury can be legally received. See Ante, 616, and note (1). 
 2 Stark. Ev. 400. [New ed. 232, 908.] [New ed. 490.] 
 
 In order to render evidence admissible of what a deceased witness swore in a former 
 action between the same parties, it is not sufficient that the action is on the same general 
 subject, but the point in issue must be the same. 7 Pick. 79, Melvin v. Whiting. So evi- 
 dence of what a deceased witness swore on a question of bail is inadmissible on the trial of 
 the cause. 4 Dallas, 206, Jackson & al. v. Winchester.} [Roscoe's Dig. Cr. Ev. 50. «.] 
 
 [In a criminal case the public prosecutor will not be allowed to use the testimonj' given 
 by a witness at a former trial of the same indictment, though he be absent from the State. 
 The People v. Newman, 5 Hill, 294. 
 
 It is not necessary to prove the exact language used by a deceased witness on a former 
 trial or examination ; it is sufficient if the substance of his testimony as then given be 
 detailed. State v. Hooker, 17 Vermont, 658.] 
 
 f [The declaration of the 10th section of the Bill of Rights (of Mississippi) that the 
 accused shall be confronted by the witnesses against him, does not abrogate the common 
 law principle, that the declarations in extremis of the murdered person as to the murder, are 
 admissible in evidence. Woodsides v. The State, 2 Howard, 656. 
 
 Evidence of dying declarations is not admissible without preliminary proof that the 
 deceased was conscious of his condition when making them. Montgomery v. The State, 11 
 Ohio, 424. 
 
 See also on the subject of dying declarations, Dunn v. The State, 2 Arkansas Rep. 229. 
 Lewis v. The State, 9 Smedes & Marshall, 115. The Stale v. Arnold, 13 Iredell, 184. McLean 
 v. The State, 16 Alabama, 672. Oliver v. The State, 17 Ibid. 587. Johnson v. The Slate, 
 Ibid. 618. The Stale v. Cameron, 2 Chandler, 172. Campbell v. The State, 11 Georgia, 353. 
 As to the credit to be given to dying declarations Lambeth v. The State, 23 Mississippi, 
 322. Green v. The State, 13 Missouri, 382. 
 
 The dying declaration of one deceased, made under the belief of impending death, is 
 competent proof to go to the jury, either to show who is the guilty agent, or disclose the 
 circumstances under which the crime was committed. Moore v. The State, 12 Alabama, 764. 
 
 On a trial for murder the declarations of the deceased are not evidence to establish the 
 insanity of the accused. The Stale v. Spencer, 1 New Jersey, 196. 
 
 On a trial for murder the dying declarations of the deceased arc admissible as to the 
 cause and extent of the injury received, and are open to remark before the jury, in connec- 
 tion with general evidence of his intemperate habits and low state of health. The Stale v. 
 Thawlcy, 4 Harrington, 562. 
 
 On a trial for murder the substance of the dying declarations of the deceased may be 
 proved. Ward v. The State, 8 Blackford, 101. 
 
 When a witness gives the exact words of a dying declaration, it is incompetent to ask him 
 if it was not an opinion of the deceased: for the jury arc to judge, having the exact words, what 
 the declaration was, and for this purpose they should have all the facts affecting the decla- 
 ration : therefore it was held improper to exclude a previous conversation on the same sub- 
 ject between the deceased and the witness. Nclms v. The State, 12 Smedes & Marshall, 500.
 
 *753 OF EVIDENCE. [BOOK VI. 
 
 The deela- party offering them in evidence, that they were *»iWe under a sense 
 rations of ~ ;, n p Cn <]; n ,j death ; hut it is not necessary that they should be stated 
 made under at the time to be so made; it is enough if it satisfactorily appears, in 
 a sense of an „ moc | e th a t they were made under that sanction, whether it be 
 
 I 1 11] 'L'llU 1 11 tr 
 
 death. ° directly proved by the express language of the declarant, or be inferred 
 from his evident danger, or the opinions of the medical or other attend- 
 ants, stated to him, or from his conduct, or other circumstances of the 
 case ; all of which are resorted to in order to ascertain the state of the 
 declarant's mind. The length of time which elapsed between the decla- 
 ration and the death of the declarant furnishes no rule for the admission 
 or rejection of the evidence, though, in the absence of better testimony, 
 it may serve as one of the exponents of the deceased's belief that his dis- 
 solution was or was not impending. It is the impression of almost imme- 
 diate dissolution, and not the rapid succession of death in point of fact, 
 that renders the testimony admissible. Therefore, where it appears that 
 the deceased, at the time of the declaration, had any expectation or hope 
 of recovery, however slight it may have been, and though death actually 
 ensued in an hour afterwards, the declaration is inadmissible. (#) 
 As to the "With respect to the interval of time which may have elapsed be- 
 tini^be ° tween the dying declarations and the moment of death, there appears 
 tween the to be no rule founded on this circumstance alone, nor is it consistent 
 declaration ^{^ ^ e principle with which dying declarations are received in evi- 
 death. dence, (which, as we have seen, depends on the state of the declarant's 
 mind,) that such declarations should be excluded, if not made within 
 any precise limit of time. It ought, however, to appear that the de- 
 ceased believed his dissolution impending. And unquestionably the 
 length of time may be a material consideration in forming an inference 
 as to the state of the mind of the deceased with respect to his expecta- 
 tion of death at the time of making a declaration, especially if the de- 
 ceased has not expressed his sense of his own situation. "(A) 
 Welbonrn's Upon a trial of Welbourn/*) for the murder of Page by poison, a 
 Where it witness deposed that the deceased and the prisoner lived with her as 
 
 (g) Greenl. Ev. 189. 
 
 (h) 1 Phill. Ev. 285. In Woodcock's case, ante, p. 752, the declarations were made forty- 
 eight hours before the death. In Tinkler's case, 1 East, P. C. 354, some of them were made 
 ten days before the death. In Rex v. Mosley, post, p. 757, they were made eleven days before 
 the death. In Rex v. Bonner, post, p. 758, they were made three days before death, and were 
 all received. In Rex v. Van Butchell, post, p. 755, they were made seven days before the 
 death and rejected. (i) 1 East, P. C. c. 5, s. 124, p. 358. 
 
 Evidence of dying declarations should not be admitted against a prisoner, unless they 
 were made under the consciousness of almost immediate dissolution. Smith v. The State, 9 
 Humph. 9. Logan v. The State, ibid. 24. 
 
 When the evidence of dying declarations is offered, it is the province of the court to 
 determine the fact, whether the declarant was in articulo mortis at the time they were made, 
 and to exclude them if he was not. Smith v. The State, 9 Humphrey, 9. 
 
 When a man, who was fatally wounded by another, declared, just before he died, while 
 under a sense of impending dissolution, that the person who was arrested for the murder 
 had killed him, and in reply to a remark of his wife said, " save me if you can ;" it was 
 held, that to make a declaration admissible as a dying declaration, it was not necessary 
 that the person be in articulo mortis, if he be under an apprehension of impending death : 
 that in this case the remark to his wife did not show in the deceased such a hope of life as 
 rendered his declaration incompetent, for a declaration which is competent evidence when 
 made, will not be rendered incompetent by a subsequent revival of strength in the dying 
 person ; and further in determining the condition of a dying person, the opinion of a witness 
 that the deceased did or did not think he should die of his wounds, is not admissible, but 
 the facts are to be given, and the court is to decide what he thought of his condition. The 
 State v. Tilghman, 11 Iredell, 513.]
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. 758 
 
 her servants ; that perceiving the deceased alter and appear very ill. she did not 
 taxed her with being with child, which she owned, and the next day appeartfiat 
 continuing very ill, she confessed she had taken something, at which the de- 
 time the witness believed that the deceased was sensible of her situation ? ease<i 
 
 knew she 
 
 and danger, though she did not say so. But when the apothecary came was in a 
 to see her the same evening, she said that she was very bad, and did d y in S state - 
 not know if she should get the better of it. The apothecary deposed, 
 that when he first saw the deceased she was then apparently dying, but 
 he believed that she was not sensible of her danger ; that after he had 
 been with her some time he made her sensible of her danger, in order 
 that he might get from her what she had done. She desired him to 
 give her something to ease her pain. He told her her he must first know 
 what she had done ; and *that she would not live twenty-four hours *754 
 unless proper relief were afforded (she did not in fact live above an 
 hour afterwards.) The witness had no other reason for thinking that 
 she knew her danger from anything that she said, except that on his 
 telling her of her danger, she told him what was the cause, which she 
 had before refused to do. She then described to him the symptoms of 
 pain which she had felt, and again repeated that she wished he would 
 give her something to compose hor. The witness then again urged the 
 necessity of knowing the cause of those symptoms, and she told him 
 with reluctance, that she had been three or four months gone with child, 
 and that during the last fortnight she had been constantly prevailed 
 upon to take bitter apple in order to procure an abortion, but that not 
 producing the desired effect, the person had prevailed on her to take a 
 white powder, (which was the day before she was taken ill,) and that 
 the symptoms came on in about three or four hours after. The witness 
 then urged her to say by whom she had been prevailed upon, when with 
 increased reluctance and hesitation she told him, it was by her fellow 
 servant Welbourn, and that he had prevailed upon her by assuring her 
 that there was no crime in procuring an abortion whilst the child was 
 so young. At this moment she was free from pain, and the witness 
 thought that a mortification had taken place. From the deceased's de- 
 scription of the white powder, and from the inspection of the body 
 afterwards, the witness believed it to be arsenic. On his cross-exami- 
 nation he said, that at the time she made this declaration he believed 
 that she thought she was getting well, from being so free from pain. 
 The declaration was received and the prisoner was found guilty. But 
 a doubt afterwards occurring to the learned judge, whether though in 
 the first part of the apothecary's evidence he swore that he made the 
 deceased sensible of her danger before she made the declaration, yet, as 
 he afterwards said, that at the time she made the declaration, she be- 
 lieved that she was getting better from the pain ceasing, he should not 
 have rejected the evidence; the prisoner was respited to take the opinion 
 of the judges on the case, a majority of whom were of opinion that it 
 did not sufficiently appear that the deceased knew or thought she was 
 in a dying state when she made the declaration ; on the contrary, she 
 had reason to think that if she told what was the matter with her, she 
 might have relief and recover. But as to what the apothecary had said 
 on his cross-examination, they laid no stress on it, being mere opinion, Ch .. .. . 
 unwarranted by fact. So in the case of Bex v. Christie,?/) 0. B. 1821, case. 
 
 (j) MS. Oarr. Supp. 202.
 
 754 OF EVIDENCE. [BOOK VI. 
 
 the deceased asked his surgeon if the wound was necessarily mortal, and 
 
 on being told that recovery was just possible, and that there had been 
 
 an instance where a person had recovered after such a wound, he said, 
 
 "I am satisfied;" and after this he made a statement; this statement 
 
 was held by Abbott, C. J., and Park, J. A. J., to be inadmissible as 
 
 a declaration articulo mortis, as it did not appear that the deceased 
 
 thought himself at the point of death, for, being told that the wound 
 
 was not necessarily mortal, he might still have had a hope of recovery. 
 
 *755 Any hope of recovery, however slight, existing in the mind at the 
 
 Any hopo *tinie of the declarations made, will render the declarations inadmissible. 
 
 however 6 ' y Upon an indictment for murder, it was proposed to give in evidence a 
 
 slight, ren- declaration of the deceased, and a surgeon proved that he had told the 
 
 ders a de- (j ecease( j t] ia t s h e would not recover, and that she was perfectly aware 
 
 elaration , ' i i 1 
 
 inadmissi- of her danger. She said she hoped the surgeon would do what he could 
 We - for her for the sake of her family; he told her there was no chance of 
 
 her recovery. Bosanquet, J., "This shows a degree of hope in her 
 mind. To render a declaration of this kind admissible, the deceased 
 Hayward's must have had the impression on her mind of an almost immediate dis- 
 case * solution. This will not do."(&) So where upon an indictment for 
 
 murder it appeared that after the surgeon had examined the wound, the 
 deceased inquired whether he was in danger, to which the surgeon 
 answered that he was, and the only chance of his living was keeping 
 himself quite quiet ; upon which it was contended that the declarations 
 made by the deceased were not made at a time when every hope in this 
 world was gone, and when the party was aware that he must inevitably 
 answer soon for the truth or falsehood of his statements, but that upon 
 the surgeon's statement he must be taken to have had some hope of 
 recovery. On which Tindal, C. J., observed that any hope of recovery, 
 however slight, existing in the mind of the deceased at the time of the 
 declarations made, would undoubtedly render the evidence of such de- 
 clarations inadmissible. But upon further examination of the surgeon 
 it appeared that before the declarations were made on the following- 
 evening, the deceased knew that he must die, and that the magistrate, 
 previous to his receiving his declarations, desired him as a dying man 
 to tell the truth, and that the deceased replied that he would. Upon 
 this further evidence the declarations were held admissible. (l\ So where 
 Van upon an indictment for manslaughter, it was proposed to give in evidence 
 
 Butchell's a declaration of the deceased, and a surgeon was called, who stated 
 lief that he that ne saw ^ ie deceased on the evening of the day on which the injury 
 will not re- was inflicted, and that the deceased appeared to think that he should 
 never recover. He said, " I feel that I have had such an injury in 
 the bowels that I think I shall never recover ;" the surgeon endeavoured 
 to encourage him, as his symptoms were not then such as to lead the 
 surgeon to consider him in danger of dying ; but his expression was 
 that he felt satisfied that he should never recover. This was on the 10th 
 of May, and the deceased died on the 17th. Hullock, B., "The prin- 
 ciple on which declarations in articulo mortis are admitted in evidence, 
 
 (k) Rex ». Crockett, a 4 G. & P. 544. 
 
 (/) Rex v. Hayward, b 6 C. & P. 157. It is not stated in this case -when the deceased died. 
 Where the deceased said, "I never thought I should recover ; I have no great hopes of it 
 now," Littledale, J., thought that it expressed some hope, though not a very great one, and 
 inclined to disallow the reading of the declaration ; but before he decided, the prosecutor's 
 counsel waived it, as a dying declaration. Wilson's case, 1 Lew. 78. 
 
 a Eng. Com. Law Reps. xix. 518. b lb. xxv. 331
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. 755 
 
 is, that they are made under an impression of almost immediate disso- 
 lution. A man may receive an injury from which he may think that 
 he shall ultimately never recover, but still that would not be sufficient 
 to dispense with an oath. I must reject the evidence. "(m) 
 
 *In order to render a dying declaration admissible, it must be shown *756 
 to have been made under such circumstances as necessarily exclude the Every hope 
 supposition that the deceased might at the time entertain some hope of of recover y 
 recovery. On an indictment for murder, the clerk of the magistrates, cessarily be 
 who had taken down a statement made by the deceased while at an excluded - 
 infirmary, a short time previous to his death, proved that he asked the 
 deceased how he was, and he answered, " I think myself in great dan- 
 ger;" and Simpson's case,(n) being cited, Patteson, J. said, " No man can 
 have a higher respect for the opinion of Mr. J. Bayley than I have, but I 
 have always considered that in order to a statement being received as a 
 dying declaration, it must be shown that at the time the deceased made 
 it, not merely that he considered himself in danger, but that he was 
 without hope of recovery. It does not appear to me that the words < I 
 think myself in danger/ necessarily exclude the supposition that the 
 deceased might have, nevertheless, entertained some hope.'Yo) 
 
 The absence of any settlement of affairs — of directions as to his fune- Absence of 
 ral — of taking leave of his friends and relations, and such like, tends to settling af - 
 show that all hope of recovery is not vanished from the mind, and may i ng i ea ve of 
 sometimes exclude a dying declaration. Upon an indictment for mur- relations 
 der, it was proposed to give in evidence a declaration of the deceased, ^ uen s ' 
 and his widow stated that she went to fetch the deceased home after he 
 was hurt. He took to his bed the day after, and on that evening she 
 asked him how he was, and he said he was worse, and that he should 
 die this time. He died on Sunday, seven days after that. He was at 
 some times light-headed, and at some times not. He several times had 
 his children in to take leave of them before the Saturday. The brother 
 proved that the deceased at times thought that he should recover, and 
 at other times thought that he should not. Another witness proved 
 that on the day before he„died he said he thought he should not recover; 
 he was delirious at times on that day. On the Wednesday before his 
 death he said he thought he should recover ; he was then very ill, but 
 sensible ; on the day before he died, he was not sensible when the wit- 
 ness first saw him ; he became sensible at twelve, and remained so for 
 an hour. The witness asked him if he thought he should recover, and 
 how he was; he said he thought he should not recover; he was so very 
 ill. He did not take leave of his wife or give any orders about his 
 funeral or his will, nor did he say any prayers. The surgeon proved 
 that he was delirious from Thursday, but was sensible on Friday. The 
 surgeon considered him in danger on the Thursday, but his opinion was 
 not communicated to the deceased. Coleridge, J., "It is an extremely 
 painful matter for me to decide upon ; but when I consider that this 
 
 (m) Rex v. Van Butchell, a 3 C. & P. 629. The learned Baron also said, " I must hear all 
 that the deceased said, and I must judge from what he said whether he had that impression 
 on his mind which will make his declarations admissible in evidence." 
 
 (n) 1 Lew. 78. In this case the doctor said, " You are in great danger;" the deceased 
 said, " I fear I am." He soon recovered so much as to be out of danger, or to think himself 
 so. Bayley, J., admitted the declaration, under the above circumstance, without a question. 
 This is the whole report. C. S. G. 
 
 (o) Errington's case, 2 Lew. 148. 
 
 a Eng. Com. Law Reps. xiv. 493.
 
 756 OF EVIDENCE. [BOOK VI. 
 
 species of proof is an anomaly, and contrary to all the rules of evidence, 
 and that if received it would have the greatest weight with the jury, I 
 think I ought not to receive the evidence, unless I feel fully convinced 
 that the deceased was in such a state as to render the evidence clearly 
 *757 admissible. It appears from the evidence of the witness that the *de- 
 ceased said that he thought he should not recover. Now, people often 
 make use of expressions of that kind, who have no conviction that their 
 death is near approaching. If the deceased in this case had felt that 
 his end was drawing very near, and that he had no hope of recovering, 
 I should expect him to be saying something of his affairs, and of who 
 was to have his property, or giving some directions as to his funeral, 
 or as to where he would be buried, or that he would have used expres- 
 sions to his widow importing that they were soon to be separated by 
 death, or that he would have taken leave of his friends and relations in 
 a way that showed that he was convinced that his death was at hand. 
 As nothing of this sort appears, I think that there is not sufficient proof 
 that he was without any hope of recovery, and that I, therefore, ought 
 Megson's to reject the evidence. "(p) So where on an indictment for murder it 
 case. was p r0 p 0S ed to give in evidence a declaration made by the deceased, 
 
 and the surgeon proved that on the day but one before her death she 
 complained of her chest, and was suffering from inflammation of the 
 lungs ; she was extremely ill, and he then told her she was in a very 
 precarious state : and on the day before her death she was much worse, 
 and in his judgment in imminent danger; she then made a statement to 
 him ; immediately before she made the statement she said that she 
 found herself growing worse, and that she had been in hopes she 
 should have got better, but as she was getting worse, she thought it her 
 duty to mention what had taken place. She died the next day. 
 Rolfe, B., "I think that it does not sufficiently appear that the de- 
 ceased was without hope of recovery. I think that I ought not to 
 receive the evidence. "(gr) 
 Mosley's The ease of Rex v. Mosley(>-) affords an example of what is such a 
 
 sufficiently consciousness of danger as will render a declaration admissible ; and 
 appear that further shows, that if it sufficiently appear that such a consciousness 
 ceased was ex i stie d, it * s immaterial that death did not ensue until a considerable 
 impressed time after the declarations were made. Upon an indictment for murder, 
 with the a question arose respecting the admissibility of certain declarations, 
 
 conviction /* ■ , . ., , , . J , , n •, ■, 
 
 that he which were received in evidence, as the dying declarations ot the de- 
 should soon ceased, as to the circumstances attending the commission of the crime, 
 
 die the de- ° 
 
 clarations aQ d as to the number of persons by whom he had been attacked. The 
 
 are admis- injury that caused the death was done on the 30th of September, in 
 
 though the consequence of which he was brought home and put to bed, and a sur- 
 
 death does p-eon was sent for on that evening; to attend him. When the surgeon 
 1 1- i . . . . . . . 
 
 1 t'll arr i ye d, the deceased immediately complained to him of great pain in 
 
 some days his chest, and particularly of his side, and of great difficulty of breath- 
 
 afterwards, j n g rp^ sur g eon continued to attend him until his death on the even- 
 
 the surgeon ing of the 10th of October following. The surgeon in his evidence 
 
 does not gai^ "I think the deceased did not speak to me of his prospects of 
 
 ci^ehope- dying during that time ; I thought his state dangerous ; I thought his 
 
 (]>) Rex v. Spilsbury, a 7 C. & P. 1ST. The report does not state at what time the pro- 
 posed declaration was made. 
 
 (q) Reg. v. Megson, b 9 C. & P. 418. (;•) R. & M. C. C. R. 97. 
 
 ■ Eng. Com. Law Reps, xxxii. 487. b lb. xxxviii. 17:2.
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. 757 
 
 complaint was of that nature that it might terminate in death. The less, and 
 last day that I saw him, the 10th of October, I was certain he would to'tell'thc 
 die that forenoon ; I communicated to him his state, I told him the deceased so 
 case was hopeless ; I made no communication to him till then ; I did a" 11 ^^ 
 not consider the *case quite hopeless till then ; I always told him there death. 
 was danger, but I hoped he would be better; I held out hopes to him *758 
 of his recovery ; I do not know whether he entertained hopes or not ; 
 he never expressed any opinion either of hope or apprehension to me ; 
 I thought there was a probability of his recovering the day before he 
 died ; I at first thought the probabilities were against him ; I did not 
 communicate that to him." In consequence of this evidence of the 
 surgeon, the learned judge confined the counsel for the prosecution, in 
 their examination of the witnesses, to inquiries whether any and what 
 declarations were made by the deceased on this subject, after the 
 time the surgeon made the above communication to him of his 
 hopeless state ; but no such subsequent declarations could be proved. 
 This failing, it became material to inquire further as to the prior 
 hopeless state of the deceased, and his consciousness of it from the 
 commencement of, or during his illness, in order to ascertain whether 
 declarations alleged to have been made by him during his illness, but 
 prior to the above communication to him by the surgeon, were admis- 
 sible in evidence or not. To this point a witness of the name of Anne 
 Newton, stated, "That she was sent for to the deceased on the evening 
 of the 30th September, near eight o'clock ; that he was in a very ill 
 state indeed ; that he said he was robbed and killed ; that he should not 
 get the better of it ; that she assisted in putting him to bed, and con- 
 tinued to attend him till his death ; that during that time he spoke of 
 dying, and said he would not continue long, a few days would finish 
 him ; this he said about Tuesday ; that he complained all along he was 
 sure he would not get better ; that he all along said he never would get 
 better; that he never missed saying so one day before the latter end." 
 The witness also stated, " That the deceased was sixty-eight years of 
 age, and was in a very good state of health considering his years ; that 
 she was a nurse accustomed to attend sick people, and very often found 
 them low spirited, and had known many persons say they should never 
 get better, who have got better ; that the deceased talked in that way ; 
 that about the Tuesday before his death he said he should not continue 
 many days; that it was before that he told her all about it; that the 
 first night he said he should not get better, and he continued to say so 
 till the last day." The learned judge was not disposed to receive on 
 this evidence the declarations of the deceased, made previous to the 
 surgeon's notifying to him his hopeless state as above mentioned ; but 
 on its being intimated that the proof would be otherwise insufficient 
 for the conviction of the prisoners, he allowed them to be given in 
 evidence, and reserved the question as to the propriety of his doing so 
 for the consideration of the judges. Accordingly evidence was received 
 of the deceased's declarations made by him after he was on the Thursday 
 evening brought home, and had said that he was robbed and killed, 
 and should not get the better of it ; and also at different times after- 
 wards during his illness, and previous to the surgeon's communications 
 to him of his hopeless state, as above mentioned ; and upon that and 
 other evidence the prisoners were convicted of the murder. The 
 judges, upon considering the case reserved, were unanimously of opinion
 
 758 OF EVIDENCE. [BOOK VI. 
 
 that the dying declarations of the deceased were properly received in 
 
 evidence. 
 *759 Upon an indictment for manslaughter it appeared that the accident* 
 Bonner's which occasioned the death, occurred early on Sunday morning, and the 
 ojaration surgeon stated that he saw the deceased on Sunday, when he found him 
 heldadmis- with six ribs broken, and other injuries ; he explained to him the nature 
 sibleupon f j^g case an( j ^g danger he was in, and that he could not expect to 
 tionofall recover; the deceased said he was perfectly convinced of the state he 
 the circum- wag j Q an( j ga jj j ie thought it soon would be over with him, and that 
 
 StflDCCS 
 
 the de-' be must go out of the world unless he were relieved by medicine. He 
 ceased was better on Monday, but worse that evening, and continued to get 
 he was in a worse ^H ^ ne Saturday following, when he died. After the Sunday he 
 dying state, frequently told the surgeon that he thought it would soon be over with 
 edtoit. ~bi m > without any Qualification ; and the surgeon never heard him after 
 Sunday express any hope that his skill would do anything for him. A 
 brother and son-in-law of the deceased proved that they were sent for 
 by him, and saw him on the Wednesday, and that he told them he could 
 not live long, and could not recover. On that day the deceased told his 
 brother that he wished to see him on account of his family, as he could 
 not live long; and he said he wished his brother to take the manage- 
 ment of his affairs and family, for he could not stop in this world long. 
 A clergyman also proved that he saw the deceased on the Wednesday, 
 and told him he thought he would not recover, the deceased shook his 
 head and said it was a bad job. The clergyman said, " Remember you 
 are a dying, I hope you will state nothing but the truth." He said " I 
 freely forgive the man. I fear I am dying." After that the deceased 
 made a declaration. The deceased had previously asked the clergyman 
 to make his will, and he had done so. It was objected that the decla- 
 ration made on the Wednesday was not admissible. The observation 
 made on the Sunday showed that the deceased entertained some hope, 
 and therefore the declaration was inadmissible, and such declaration 
 must be made under the firm belief of almost immediate death, which 
 was not the case here, as he lived till the Saturday.^ Patteson, J., " I 
 am of opinion that the declaration is admissible. The surgeon states 
 that he told the deceased, on the Sunday, that he had no chance of re- 
 covery, and he then said he thought he had not, unless he could be 
 relieved by the surgeon ; but on the Wednesday, it appears from the 
 evidence of the brother and son-in-law, tbat he wanted to see his brother 
 on account of his family, and said he could not live long, and had no 
 hopes of recovery. The clergyman said he told him he was a dying 
 man, and he shook his head, and said he feared he was dying. Now it 
 has been held that it is not necessary that the deceased should express 
 any apprehension that he is a dying man, but that you may gather it 
 from the circumstances. That was held in John's case.(«) It has also 
 been held that it is not necessary to prove expressions of apprehension 
 of immediate danger. Rex v. Mosley(v) seems to me to go the whole 
 length of this case. Taking all the circumstances together, and the de- 
 Smith's ceased being told that he was a dying man, and assenting to it, I think 
 case. the evidence is admissible. "(?«) So where a wound was inflicted on 
 
 (t) Rex v. "Woodcock, ante, p. 752 ; Rex v. Welbourn, ante, p. 753; Rex v. Christie, ante, 
 754 ; and Rex v. Van Butchell, ante, p. 755, were cited. 
 
 (m) Post, p. 761. (v) Ante, p. 757. 
 
 (to) Rex v. Bonner, a MSS. C. S. G. Hereford Spr. 1834, S. C. but not so fully reported. 6 
 C. & P. 386. 
 
 a Eng. Com. Law Reps. xxv. 451.
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. *760 
 
 Tuesday, and the surgeon stated that he *thought it mortal from the 
 first, and that the deceased became aware of his great danger on the 
 Sunday; but he had no conversation with the deceased on the subject 
 of his danger; and his widow stated that the morning after the injury, 
 he thought he should recover; but after dinner he thought he should 
 not, and should not live ; and on the Thursday morning he said that he 
 thought he should not get better; and appeared, from all that passed 
 between them, to believe that he should die. A statement was made by 
 the deceased after his wife left him, on the Thursday, and he died on the 
 Sunday following. Gurney, B., said, that upon the evidence of the sur- 
 geon alone he should have doubted; but taking it in conjunction with 
 that of the widow, he thought, and Alderson, B., agreed with him, that 
 enough had been shown to render the evidence admissible. (x\ So where Ashton'a 
 on an indictment for manslaughter, it appeared that the deceased said to case - 
 the surgeon, " Shall I recover?" the surgeon said "No ;" and at that 
 time he thought as he said. The patient grew better; the surgeon 
 changed his opinion, and thought she might. The patient then had a 
 relapse, and again asked the surgeon if she should recover ; the surgeon 
 said, " I think you will not recover." The patient replied, " I think so 
 too." After this conversation, but not immediately, a declaration, which 
 was proposed to be given in evidence, was made. The surgeon had in 
 the meantime attended the deceased, but not regularly. The question 
 was not repeated by the patient on any of his subsequent visits. Aider- 
 son, B., after consulting Patteson, J., held the declaration admissible as 
 a dying declaration. (y\ So where upon an indictment for manslaughter, Fagent's 
 it appeared that on the Saturday of the week preceding the death of case " 
 the deceased, she expressed an opinion that she should not recover, and 
 that she made a declaration ; but it also appeared that after she had made 
 this declaration, she, on the same day, asked her nephew if he thought 
 she would « rise again ;" but it was proved that, on a subsequent day, 
 she made other declarations, at times when she was convinced that she 
 was dying. Graselee, J., after conferring with Lord Denman, C. J., held 
 that the declaration made on the Saturday was not admissible, but that 
 the other declarations, made when she believed her recovery hopeless, 
 might be received. (z) And so where the prisoner was tried for the rape Minton's 
 and murder of a girl of sixteen, who lived only a few days after the case - 
 perpetration of the offence, the particulars of which she communicated 
 to her aunt, but did not intimate that she considered herself in a dying 
 state, or that she had any apprehension of immediate death. It appeared, 
 however, that previous to making this declaration, she had confessed, 
 been absolved, and had received extreme unction from a priest, and 
 that these are considered the last rites administered in the Catholic 
 Church, and are esteemed sacraments by its disciples, Lord Kilwarden, 
 C. J., with the concurrence of Kelly, J., admitted these declarations in 
 evidence. (a) 
 
 *It is not necessary that the deceased should express any apprehcn- *761 
 
 (x) Smith's case, 1 Lew. 81. In Craven's case, 1 Lew. 77, a person who had been con- 
 fined to his bed for weeks, said to a surgeon, "I am afraid, doctor, I shall never get better," 
 and shortly afterwards died. Ilullock, B., held, that an account given by the deceased to 
 the doctor after this declaration, was receivable as a dying declaration, although several 
 weeks before his death, and stated that the subject had been lately before the judges, and 
 his mind was made up about it. 
 
 (y) Ashton's case, 2 Lew. 147. (z) Hex v. Fagent, a 7 C. & P. 238. 
 
 (a) Minton's case, 1 M'Nally Ev. 386. Rose. Cr. Ev. 30. 
 
 a Eng. Com. Law Reps, xxxii. 501.
 
 761 OF EVIDENCE. [BOOK VI. 
 
 Tho do- sicm of danger ; for his consciousness of approaching death may be 
 ceased inferred, not only from his declaring that he knows his danger, but from 
 
 need not > •> ° i_ • • 
 
 express ap- the nature of the wound, or state of illness or other circumstances ot 
 prehension tne case> ^ n( j jf j t ma y rea sonably b e inferred from the nature of the 
 
 ot liilIl ,r Cr. 
 
 wound, the state of illness, and other circumstances, that the deceased 
 His con- was sensible of his danger, his declarations are admissible. (6) All the 
 sciousness j uc jo- es agreed at a conference in Easter Term. 1790, that it ought not to 
 
 is a ques- J o o ' . 
 
 tion for the be left to the jury to say, whether the deceased thought he was dying 
 judge. or no f.. f or th a t must be decided by the judge before he receives the 
 evidence. (c) And such has been the uniform practice in all the recent 
 cases. " The question whether any particular piece of evidence be ad- 
 missible is, upon principle, always to be determined by the judge. But 
 in the case under consideration that question depends on a difficult pre- 
 liminary investigation of fact, much more within the province of juries 
 than of judges ; and where the evidence is admitted it is scarcely to be 
 expected that juries will pay implicit obedience to the decision of the 
 judge, founded as it is on a conclusion of fact, a subject on which the 
 constitution regards them as peculiarly competent to form a right 
 opinion, "(d) 
 As to what The circumstances under which the declarations were made, are to be 
 matters the g ^ 0WQ tQ ^g judge, and he will hear all that the deceased has said rela- 
 inquire. tive to his situation, and will inquire into the state of illness in which 
 he was ; the opinions of medical and other persons as to his state, and 
 whether they were known to the deceased ; the conduct of the deceased 
 in settling his affairs ; in making his will ; giving directions as to his 
 funeral or family ; and whether he had recourse to those consolations 
 and rights of religion, which are appropriate to the last sad hours of de- 
 parting mortality; in a word, into every fact and circumstance, which 
 may tend to throw light upon the state of mind of the deceased at the 
 time when the declaration was made ; in order the better to enable him 
 to arrive at a satisfactory determination as to whether the evidence be 
 admissible or not.(e)f 
 Only ad- It i s a general rule that dying declarations, although made with a full 
 
 (b) John's case, 1 East, P. C. c. 5, s. 124, p. 357, by the decision of all the judges in 1790. 
 Woodcock's case, 1 Leach, 500. Dingler's case, 2 Leach, 561. Rex v. Bonner, a 6 C. & P. 
 386, Patteson, J. Reg. v. Perkins, 2 Moo. C. C. R. 135, post, p. 766. 
 
 (c) John's case, I East, P. C. c. 124, p. 357. Welbourn's case, ibid, 358, S. P. resolved, 
 by all the judges in Mich. Term, 1792. Rex v. Bucks," 1 Stark. N. P. C. 523. In Wood- 
 cock's case, tried in 1789, Eyre, C. B., left it to the jury to consider whether the deceased 
 thought she was dying or not. 
 
 (d) 1 Phill. Ev. 291. It has frequently occurred to the editor that in this and similar 
 cases, where a particular independent fact is to be ascertained, it would be an expedient 
 course to take the opinion of the jury separately as to that fact alone. At one time it was 
 the practice in cases of indictments for a subsequent felony, first to leave the question of the 
 subsequent felony to the jury, and afterwards that as to the identity of the party. This 
 practice might afford a precedent for establishing such a practice as that suggested; which 
 it is submitted, would be advantageous, as it would relieve the judge from the painful 
 responsibility of deciding on a question of fact ; and the more so as it is conceived the jury 
 are not bound by the decision of the judge that the declarations are admissible to give 
 credit to the testimony of the witness who proves them. C. S. G. 
 
 (e) See Rex v. Van Butchell, ante, p. 755, per Bolland, B. Rex v. Spilsbury, ante, 757, per 
 Coleridge, J. 
 
 f [In case of dying declarations, the proof of the deceased's expectations of death is not 
 confined to his declaration, but the fact may be satisfactorily established by the circumstances 
 of the case. JIUVs case, 2 Grattan, 594.] 
 
 a Eng. Com. Law Reps. xxv. 451. •> lb. ii. 494.
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. 761 
 
 consciousness of approaching death are only admissible in evidence missible 
 where the death of the deceased is the subject of the charge, and the Je^thofth 
 circumstances of the death the subject of the dying declaration^ / )*f *762 
 In a late case the defendant having been convicted of perjury, a rule deceased is 
 nisi for a new trial was obtained whilst that was pending, the defend- ^e subject 
 
 ® 01 tll6 
 
 ant shot the prosecutor : and on showing cause against the rule, an charge, and 
 affidavit was tendered of the dying declaration of the latter, as to the the circu m- 
 transaction out of which the prosecution for perjury arose. It was held thTdeath 
 according to the rule above stated that the affidavit could not be read.fa) the subject 
 In the case of Rex v. Hutchinson, (A) tried before Bayley, J., the priso- cLration" 
 ncr was indicted for administering savin to a woman pregnant, but not 
 quick with child, with intent to procure abortion. The woman was dead, 
 and for the prosecution, evidence of her dying declaration upon the sub- 
 ject was tendered. The learned judge rejected the evidence, observing 
 that although the declaration might relate to the cause of the death, still 
 such declarations were admissible in those cases alone where the death 
 of the party was the subject of inquiry. 
 
 But where two persons died from the same act of poisoning, the de-Declara- 
 claration of one was held admissible on the trial of the prisoner for the h f on of one 
 murder of the other. On an indictment for poisoning King, it appeared sons dying 
 that the poison was administered in a cake, which the deceased eat for from the 
 breakfast, immediately after which he was taken ill, and his maid ser- 
 vant, who was present, and had made the cake, said that she was not 
 afraid of it, and thereupon eat of it, and was in consequence poisoned 
 and died. Her dying declarations (made after she knew of her master's 
 death, and was conscious of her own approaching death,) as to the man- 
 ner in which she had made the cake, and that she had put nothing bad 
 in it, and that the prisoner was present eating his breakfast at one end 
 of the table while she was making the cake at the other end of it, were 
 tendered in evidence, and objected to on the ground that the only person 
 whose dying declarations could be received in evidence was the person 
 whose death formed the subject of inquiry at the trial; and the preced- 
 ing case was relied upon. But Coltman, J., after consulting Parke, B., 
 expressed himself of opinion that, as it was all one transaction, the de- 
 clarations were admissible, and accordingly allowed them to go to the 
 
 (/) By Abbott, C. J., Rex v. Mead," 2 B. & C. 605. In trials for robbery, the dying decla- 
 rations of the party robbed were held inadmissible by Mr. Justice Bailey, on the Northern 
 Spring Circuit, 1822, and by Mr. Justice Best, on the Midland Spring Circuit. 1822. And in 
 Rex v. Lloyd, b 4 C. & P. 233, by Bolland, B. In Rex v. Mead, infra, in the argument for the 
 admissibility of the evidence, the counsel cited the case of Wright v. Littler, 4 Burr. 1244, 
 in which evidence of a dying confession of the subscribing witness to a deed was held ad- 
 missible, and a case mentioned by Lord Ellenborough, C. J., in 6 East, 195, in which Heath, 
 J., received the confession of an attesting witness to a bond, who, in his dying moments, 
 begged pardon of Heaven for having been concerned in forging the bond ; Abbott, C. J., 
 remarked that these cases were peculiar, inasmuch as the declarations amounted to a con- 
 fession by the parties themselves of heinous offences which they had committed. See the 
 observations of the Court of Exchequer, in Stobart v. Dryden, 1 M. & W. 015, which render 
 it at least very doubtful whether dying declarations would, at the present day, be admissible 
 in any civil suit. 1 Phill. Ev. 280. 
 
 (g) Rex v. Mead, 2 B. & C. 605. (h) 2 B. & C. 608, in note to Rex v. Mead. 
 
 f [Dying declarations are admissible from the necessity of the case, to identify the prisoner, 
 and establish the circumstances of the res gestae, or direct transactions from which the death 
 results ; when they relate to former and distinct transactions they do not seem to come 
 within this principle of necessity. Kelson v. The State, 1 Humphreys, 542.] 
 
 • Eng. Com. Law Reps. ix. 190. h lb. xix. 360. ° lb. ix. 190.
 
 762 OF EVIDENCE. [BOOK VI. 
 
 jury; but he said lie would reserve the point for the opinion of the 
 judges.(»") 
 
 The declarations of the deceased are admissible only to those things 
 
 to which he would have been competent to testify, if sworn in the case. 
 
 *763 They must, therefore, in general speak to facts only, and not *to mere 
 
 matters of opinion, and must be confined to what is relevant to the 
 
 issue, (j )f 
 
 Dying de- The declaration of a convict at the moment of execution cannot be 
 
 claration of • en j a gyidence as a dying declaration: for as an attainted convict he 
 
 a convict. ° ■, • , 
 
 could not have been admitted to give testimony upon oath, and the dy- 
 ing declarations of such a person cannot, consistently with the principles 
 of justice, be considered as better evidence than his testimony on oath 
 Of an ac- would have been if he had been alive. (&) The dying declaration of an 
 complice, accomplice is admissible ;(Z) but this can only happen where the pri- 
 soner is charged with assisting in the self-destruction of the accomplice : 
 for it has already appeared that dying declarations are never admissi- 
 ble, except where the death of the person who made them is the subject 
 of the indictment. 
 A parol It is no objection to the admission of a dying declaration, that the 
 
 ciarifionis d ecease d made a subsequent statement to a magistrate, which was taken 
 admissible, down in writing, and is not produced. In the case of Rex v. Reason 
 though a an( j Tranter.fm") three several declarations had been made bv the de- 
 
 subsequent '\ 1 , 1 «• 
 
 one was ceased in the course ot the same day at the successive intervals ot an 
 made and hour each; the second had been made before a magistrate, and reduced 
 writing. ^° writing, but the others had not; the original written statement 
 taken before the magistrate was not produced, and a copy of it was re- 
 jected. A question then arose, whether the first and third declarations 
 could be received ; and Pratt, C. J., was of opinion that they could not, 
 since he considered all three statements as parts of the same narrative, 
 of which the written examination was the best proof; but the other 
 judges held that the three declarations were three distinct facts, and that 
 the inability to prove the second did not exclude the first and third; and 
 evidence of those declarations was accordingly admitted. (n\ 
 When in But if the statement of the deceased was committed to writing, and 
 
 writing, signed }>y hi m a t the time it was made, it has been held essential that 
 the writing should be produced if existing, and that neither a copy nor 
 parol evidence of the declaration could be admitted to supply the omis- 
 sion, (o) 
 When tak- If the statement of the deceased had been taken on oath before a 
 en on oat . ma gi s trate, but is inadmissible as a deposition, in consequence of the 
 
 (i) Rex v. Baker, 2 M. & Rob. 53. The prisoner was acquitted. 
 
 (/) Greenl. Ev. 190. 1 Phill. Ev. 291. Rex v. Sellers, Carr. Supp. 233. 
 
 (k) Drummond's case, 1 Leach, 337, cor. Eyre, B., and Gould, J. 
 
 (I) Tinkler's case, 1 East, P. C. 354. 
 
 (m) 1 Stra. 149. 6 St. Tr. 502. 2 Stark. Ev. 366. 
 
 (n) According to the report in the State Trials, the Chief Justice and Mr. Justice Powys, 
 deemed the evidence inadmissible. At all events, it appears the evidence was received. 
 Sir John Strange was one of the counsel in the cause. 
 
 (o) Greenl. Ev. 190, citing Rex v. Gay, a 7 C. & P. 230. Trowter's case, 12 Vin. Abr. 118, 
 119. Leach v. Simpson, in Scac. Pasch. 1839, 1 Law & Eq. Rep. 58. 
 
 f [The dying declaration of a husband is competent evidence against the Avife, to show 
 her guilt. Moore v. The State, 12 Alabama, 764. 
 
 On the trial of an indictment for the murder of a wife by her husband, the declarations 
 of the deceased, made in extremis, as to the cause of her death, are competent evidence 
 against the prisoner. The People v. Green, 1 Denio, 614.] 
 
 » Eng. Com. Law Reps, xxxii. 499.
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. 763 
 
 prisoner not having been present when it was taken ; it is admissible 
 as a declaration in articulo mortis, if taken under such circumstances 
 as would render such a declaration receivable in evidence. (p\ 
 
 It is not necessary that the examination of the deceased should be *764 
 conducted after the manner of interrogating a witness in the *case ; As to tne 
 though any departure from this mode may affect the value and credi- Xciting 
 bility of the declarations. Therefore, it is no objection to their admis-the state- 
 sibility that they were made in answer to leading questions, or obtained ments - 
 by pressing and earnest solicitation. (q)f Where a surgeon, in a case of 
 murder, was called to prove a dying declaration, and stated that he put 
 questions to the deceased for the purpose of ascertaining whether it 
 would be necessary for a magistrate to come to her house to take her 
 examination, and it was objected that the statement being in answer to, 
 could not be received ; it was held that the declaration was admissible. (r) 
 
 But whatever the statement may be, it must be complete in itself; 
 for if the declarations appear to have been intended by the dying man 
 to be connected with and qualified by other statements, which he is pre- 
 vented by any cause from making, they will not be received. (s\ 
 
 The dying declarations of the deceased are not only admissible against In favour of 
 a prisoner, but also in his favour. J Upon an indictment for manslugh- prin- 
 ter, a surgeon stated, that the deceased seemed perfectly sensible of the 
 dangerous state he was in, and said he knew he would not get better, 
 and afterwards said, " I don't think he would have struck me if I had 
 not provoked him;" Coleridge, J., at first expressed some doubt whe- 
 ther he ought to receive the statement; but afterwards received the 
 evidence, observing that it might have an influence on the amount of 
 punishment. (<) 
 
 As the declarations of a dying man are admitted, on a supposition Prisoner in 
 that in his awful situation on the confines of a future world he had no his de [ ence 
 
 may snow 
 
 motives to misrepresent, but, on the contrary, the strongest motives to the state of 
 speak without disguise and without malice, it necessarily follows, that D ? ind or 
 the party against whom they are produced in evidence may enter into f the de- 
 the particulars of his state of mind and of his behaviour in his last mo- ceased, 
 ments, or may be allowed to show, that the deceased was not of such a 
 character, as was likely to be impressed by a religious sense of his ap- 
 proaching dissolution. (u\ 
 
 (p) Rex v. Dingier, 2 Leach, 561. Rex v. Callahan, M'Nally, Ev. 385, Rose. Cr. Ev. 33. 
 
 (q) Greenl. Ev. 190, citing Rex v. Fagent, infra, Commonwealth v. Vass, 3 Leigh, R. 786. 
 Rex v. Reason, 1 Str. 499. Rex v. Woodcock, 2 Leach, 561, and see Rex v. Welbourn, ante, 
 p. 753. • (r) Rex v. Fagent, a 7 C. & P. 238, Gaselee, J. 
 
 (s) Greenl. Ev. 190, citing Commonwealth v. Vass, 3 Leigh, R. 797. 
 
 (t) Rex v. Scaife, 1 M. & Rob. 551. The ground upon which dying declarations are 
 admissible being that they are tantamount to statements made upon oatli in the presence of 
 the prisoner, and such statements being clearly admissible if in favour of the prisoner, there 
 seems no reason to doubt the propriety of admitting a dying declaration which is in favour of 
 the prisoner. Indeed almost every case of manslaughter, in which such declarations have 
 been admitted, is an authority to that effect, as the prima facie presumption is, that the pri- 
 soner had murdered the deceased. And, moreover, a declaration in favour of a prisoner must 
 ever be taken to be more likely to be true; and it is not probable that a person should make 
 a statement favourable to the person who has inflicted a mortal injury upon him, but rather 
 the contrary. C. S. G. 
 
 (w) 1 Phil. Ev. 989. In Reg v. Macarthy, Gloucester Sum. Ass. 1842, the case on the part 
 
 f [It is no objection that the questions put to the dying person are leading ; but the decla- 
 rations should be distinct and full, not partial and left unfinished. Vass v. The Common- 
 wealth, 3 Leigh, 786.] 
 
 | {Moore v. The State, 12 Alabama, 764.] 
 
 B Eng. Com. Law Reps, xxxii. 501.
 
 *765 OF EVIDENCE. [BOOK VI. 
 
 If a child *If a child be too young to be capable of feeling the religious obliga- 
 
 oun to tions of an oath, his declarations are inadmissible. Upon an indictment 
 
 be capable for the murder of a child aged four years, a statement made by the child 
 
 of under- ^ Q ner mo ther shortly before her death, as to the manner in which she 
 
 standing 1 1 • 
 
 the religi- had been treated by the prisoners, was offered in evidence. Park, J. A. 
 ous obliga- j ^ <<"\y e allow the declaration of persons in articulo mortis to be given 
 oath his de- in evidence, if it appear that the person making such declaration was 
 clarations then under a deeep impression that he was soon to render an account to 
 sible. " h^ s Maker. Now, as this child was but four years old, it is quite im- 
 possible that she, however precocious her mind, could have had that idea 
 of a future state, which is necessary to make such a declaration admissi- 
 ble. In the deposition of the mother, I find it stated, that the deceased 
 asked the deponent to lie down by her, which she did, and that on the 
 child's asking her how long she would lie by her, the mother replied, 
 that she would lie by her till she got up ; and that upon her saying this, 
 the deceased said that she should never get up any more; and then went 
 on to tell her mother of something that had happened. Now, this, 
 though it shows that the deceased thought that she was dying, does 
 not show that she had any idea of a future state ; indeed, I think, 
 that from her age we must take it that she could not have had any idea 
 of that kind."(w) 
 But if a But if a child be of intelligent mind, and fully comprehends the nature 
 
 child does f an g^h^ ano > the consequences, in a future state, of telling a falsehood, 
 derstand his declarations, made under the apprehension and expectation of im- 
 the nature me diate death, are admissible in evidence. Thus, where upon a trial 
 his decla- f° r murder, it appeared that the deceased, who was a little more than 
 rations are ten years old, received a severe wound from a gun on one day, of which 
 if madeun-h e died the following morning : and in order to show his state when 
 der theap- certain declarations were made on the evening after he was wounded, a 
 of ^mmedi sur g eon was examined who said, " I was of opinion the boy could not 
 ate death, survive many days. I said to him, < My good boy, you must know you 
 are labouring now under a very severe injury, which in all probability 
 you will not recover from, and the effects of it will most likely kill you.' 
 My father asked him if he was perfectly conscious where he should go 
 if he told a lie, and where he should expect to go if he told the truth on 
 the subject. In answer to the first he said he should expect to go to 
 hell ; and to the latter that he should go to heaven. My father said 
 nearly similar words to what I said myself. When he was told that he 
 was not likely to recover, I could not see a change in the expression of his 
 countenance. The appearance of tears came into his eyes, and an ap- 
 pearance, such as it is difficult to describe — an appearance of distress; 
 but he said nothing, that I can remember, expressing either assent or 
 dissent. My father said to him, < You may recover, though in all pro- 
 bability you will not.' " The father, also a surgeon, said, " I said to the 
 deceased, after feeling his pulse and examining the wound, ' My little 
 man, you appear to me to be much more sensible than, from the nature 
 
 of the prosecution was that the prisoner had assaulted the deceased, and that the deceased 
 followed the prisoner along several streets for the purpose of giving him into the custody of 
 the police; and Erskine, J., permitted the counsel for the prisoner to cross-examine the -wit- 
 nesses for the prosecution as to the bad character of the deceased, in order to show that 
 the prisoner might have had a reasonable ground for supposing that the deceased followed 
 him for the purpose of robbing him. C. S. G. 
 
 (i) Rex v. Pike," 3 C. & P. 598. Park, J. A. J., had consulted Parke, J., before the case 
 was tried, and he quite agreed with the view of the case stated in the text. 
 a Eng. Com. Law Reps. xiv. 473.
 
 CIIAP. I. § III.] OF HEARSAY EVIDENCE. 765 
 
 of the accident you have received, I should have expected. It is impos- 
 sible for me to say *whether you may survive the injury or not. I think *766 
 it more than probable that you will not, and that you may be dead 
 before morning.' I then asked him if he was aware of the nature of an 
 oath. He made no reply. I then said, < If you don't tell the truth, and 
 how this accident occurred, where do you expect to go V He then said, 
 <to hell.' 'If you do speak the truth, I suppose you expect to go to 
 heaven.' He made no reply. I then told him, < I put these questions 
 to you, that, in case of your death, the truth of the accident may be 
 ascertained,' or words to that effect. I don't think he made any reply. 
 He expressed no opinion as to his state." On cross-examination he 
 said, " I said you may recover ; it is impossible for me to say, but I don't 
 think it likely that you will be alive by the morning." The child ap- 
 peared at the time in a very debilitated state from the injury, but he 
 appeared to be a very quick, intelligent child. Upon a case reserved, it 
 was contended that there was not sufficiently strong proof to show that 
 there was a perfect belief in the mind of the deceased of approaching 
 death, and that the apprehensions of death in a child were not enough 
 to render his declarations admissible, unless he was shown to be aware 
 of the nature of an oath; but the judges were unanimously of opinion 
 that the statements were receivable if made under the apprehension and 
 expectation of immediate death, and they all, (except Bosanquet, J., 
 Patteson, J., and Coleridge, J.,) thought that : they were so made, and 
 receivable. (?«) 
 
 With respect to the effect of dying declarations, is to be observed, of the 
 that though such declarations, when deliberately made, under a solemn effects of 
 and religious sense of impending dissolution, and concerning circum- cianiiions 
 stances, in respect of which the deceased was not likely to have been 
 mistaken, are entitled to great weight(a;) if clearly and distinctly proved, 
 yet it is always to be recollected that the accused has not had the oppor- 
 tunity of cross-examination — a power quite as essential to the eliciting 
 of the whole truth, as the obligation of an oath can be, and without 
 which no statement made on oath, however solemnly administered, is 
 admissible under any other circumstances ; and that where the deceased 
 had not a deep and strong sense of accountability to his Maker, and an 
 enlightened conscience, the passion of anger and feelings of revenge 
 may, as they have not unfrequently been found to do, affect the truth 
 and accuracy of his statements, especially as the salutary and restraining 
 fear of punishment for perjury is, in such cases, withdrawn. And it is 
 further to be considered that the particulars to which the deceased has 
 spoken, were in general likely to have occurred under circumstances of 
 confusion and surprise, calculated to prevent their being accurately ob- 
 served, and leading both to mistakes as to the identity of the persons and 
 to the omission of facts essentially important to the completeness and 
 truth of the narrative.^) Whon a party comes to the conviction that 
 he is about to die, he is in the same practical state as if called on in a 
 court of justice under the sanction of an oath, and his declarations as to 
 the cause of his death are considered equal to an oath, yet they are 
 nevertheless open to ^observation. For though the sanction is the sam \, *767 
 
 (w) Reg. v. Perkins," 2 Moo. C. C. R. 135. 9 C. & P. 395, S. C. 
 (z) See per Coleridge, J., Rex v. Spilsbury, ante, p. 757. 
 (y) Greenl. Ev. 192. 1 Phill. Ev. 292. 
 
 ■ Eng. Com. Law Reps, xxxviii. 163. 
 
 Vol. ii.— 50
 
 767 OF EVIDENCE. [BOOK VI. 
 
 the opportunity of investigating the truth is very different, and there- 
 fore the accused is entitled to every allowance and benefit that he may 
 have lost by the absence of the opportunity of more full investigation 
 by the means of cross-examination. (z) It may be added also, that the 
 deceased in many cases is labouring under injuries which may affect the 
 brain, and prevent the possibility of reason guiding the words that may 
 be uttered, and yet the means of ascertaining the state of his mind may 
 be such as to render it in the highest degree difficult to discover whether 
 a statement has been made under a morbid delusion of the mind, or in 
 the tranquil exercise of calm reason, operated upon alone by the awful 
 consciousness that he must almost immediately render an account to an 
 all-knowing Creator. 
 Hearsay Hearsay evidence is also admissible for the purpose of proving public 
 
 OT1< f f nc f e m rights, and rights in the nature of public rights. (a) Thus in questions 
 public concerning the boundary of parishes or manors, traditionary reputation 
 rights, j g evidence :(b) and the declarations of old persons deceased have been 
 
 boundaries •,.-,. v ' , -ii i, .,. i 1 • i 
 
 of parishes, admitted in such cases, although they were parishioners and claimed 
 Ac - rights of common on the wastes which their evidence had a tendency to 
 
 enlarge. (c) But although general reputation is evidence on a question 
 of boundary or custom, yet the tradition of a particular fact, (as that 
 turf was dug or a post put down in a particular spot,) is not admis- 
 sible.^) 
 Hearsay Declarations or statements made by deceased persons, where they 
 evidence of appear to be against their own interests, have in many cases been ad- 
 persons mitted : as entries in their books charging themselves with the receipt 
 making f money on account of a third person, (e) or acknowledging the pay- 
 ogairist nient of money due to themselves. (/) Thus a written memorandum 
 their own by a deceased man-midwife, stating that he had delivered a woman of 
 interest. a c j 1 j] ( j on a cer t a in day, and referring to his ledger in which a charge 
 for his attendance was marked as paid, was thought by the Court of 
 King's Bench to have been properly received in evidence, upon an 
 issue as to the child's age.(#) So where the point in issue was whether 
 a certain waste was the soil of the defendant, entries by a steward, 
 since deceased, of money received by him from different persons in 
 *768 satisfaction of trespasses *committed on the waste were admitted in 
 evidence to show that the right to the soil was in his master, under 
 
 (2) Ashton's case, 2 Lew. 147, per Alderson, B. A striking instance of the danger of 
 trusting to statements made after a mortal wound had been inflicted, occurred in Rex v. 
 Macarthy, Gloucester Sum. Ass. 1842. The prisoner was indicted for murder, and the 
 deceased had been stabbed by the prisoner whilst he was pursuing him in order to give him 
 into custody for an assault, and the deceased expressly stated that the prisoner had knocked 
 him down, but two companions of the deceased, who were present during the whole time, 
 distinctly proved that the deceased was not knocked down at all. C. S. G. 
 
 (a) 1 Phill. Ev. 238. But to prove prescriptive rights strictly private, it is doubtful 
 whether hearsay evidence is admissible, see 1 Phill. Ev. 241. 1 Stark. Ev. 33. Rose. Ev. 28. 
 
 (6) Nicholls v. Parker, 14 East, 331, in note to Outram v. Morewood. 
 
 (c) Ibid. But such declarations must not have been made^os^ litem motam, that is, after 
 the very same point or question has become the subject of controversy. Rex v. Cotton, 3 
 Oampb. 444. 1 Phill. Ev. 260. 
 
 (d) Weeks v. Sparke, 1 M. & S. 680. Ireland v. Powell, Peake's Ev. 15, cor. Chambre, 
 J., Chatfield v. Frier, 1 Price, 256. 1 Phill. Ev. 245. 
 
 (e) 1 Phill. Ev. 293. Middleton v. Melton,* 10 B. & C. 317. (/) Ibid. 
 
 Iff) Higham v. Ridgway, 10 East, 109. Entries in the land-tax collector's books, stating 
 A. B. to be rated for a particular house, and his payment of the sum rated, were held by 
 Abbott, C. J., admissible evidence to show that A. B. was in the occupation of the premises 
 tt the time mentioned. Doe v. Cartwright. b Ry. & Mood. N. P. C. 62. 
 » Eng. Com. Law Reps. xxi. 84. >> lb. xi. 373.
 
 CHAP. I. § III.] OF HEARSAY EVIDENCE. 768 
 
 whom the plaintiff claimed. (/<) Ou the same principle, entries in the Entries iu 
 books of a tradesman by his deceased shopman, who thereby supplies ^ a ^ g es " 
 proof of a charge against himself, have been admitted in evidence, as books by 
 proof of the delivery of the goods, or of other matter there stated within deceased 
 his own knowledge.(i) But where the effect of the entry is not to 
 charge the servant, it is not evidence. Thus, in an action for the hire of 
 horses, an entry by the plaintiff's servant since dead, stating the terms 
 of the agreeament with the defendant, is not evidence, (J ) There seems, Entries in 
 however, to be more reason for considering that a rule exists which the course 
 allows of declaration of deceased persons being received in evidence, 
 even though not made against their interest, provided that in addition 
 to a peculiar knowledge of the facts, and the absence of all interest to 
 pervert them, the declarations appear to have been made in the ordinary 
 course of official, professional, or other business or duty, and to have 
 been immediately connected with the transacting or discharging of such 
 business or duty, and to be contemporaneous, or nearly contemporaneous, 
 with the transaction to which they relate. (A;) In all these cases, the Death, of 
 person who made the entry must be proved to be dead : if he be living, P erson 
 he ought to be produced as a witness, to explain the circumstances un- the entry 
 der which the entry was made.(/) Where it appeared that an entry was must be 
 in the handwriting of a banker's clerk, who was then in the East Indies, prov 
 it was held inadmissible. (m) 
 
 In some cases, also, the declarations of a person deceased are admit- Hearsay of 
 ted on the mere around that he had a peculiar knowledge, and no inte- P ers ° ns 
 rest to misrepresent. Thus, though the survey of a manor made by the interest to 
 owner is not evidence against a stranger in favour of a succeeding misstate. 
 owner ;{n\ yet where A., seised of manors, of B. and C, causes a survey 
 to be taken of the manor of B., which is afterwards conveyed to E., 
 and after a long time there is a dispute between the lords of the manors 
 of B. and C. about their boundaries, this old survey may be given in 
 evidence. (o\ So entries by a deceased rector or vicar as to the receipt 
 of ecclesiastical dues are admissible for his successor, on the ground that 
 he had no interest to misstate the fact.(p) 
 
 There are other exceptions to the general rule against the reception Other cases 
 of hearsay evidence, such as the admission of declarations in cases f of hearsay, 
 pedigree, and of old leases, rent-rolls, surveys, &c, which can occur so 
 seldom in criminal proceedings, that it is thought unnecessary to take 
 further notice of them in this treatise. (q\\ 
 
 (h) Barry v. Bebbington, 4 T. R. 514. 
 
 ft) Phill. Ev. 319. Price v. Lord Torrington, 1 Salt. 285. 
 
 (j) Calvert v. Archbishop of Canterbury, 2 Esp. 646. Rose. Ev. 34. 
 
 (k) 1 Phill. Ev. 317. See the cases there collected, and Doe d. Patteshall v. Turford," 3 
 B. & Ad. 890. Poole v. Dicas, b 1 Ping. N. C. 649. Chambers v. Bernasconi, 1 Tyrw. 335. 
 4 Tyrw. 531. 
 
 (I) Cooper v. Marsden, 1 Esp. 2, by Lord Kenyon, C. J. 
 
 (m) Ibid. (n) Anon. 1 Stra. 95. 
 
 (o) Bridgman v. Jennings, Ld. Ray. 734. Rose. Ev. 33. 
 
 (p) Le Gros v. Lovemoor, 2 Gwill. 529. Armstrong v. newit, 4 Price, 218. Lord Arun- 
 del's case, 2 Gwill. 620. Pringal v. Nicholson, Wightw. 63. Walter v. Holman, 4 Price, 171. 
 Parsons v. Bellamy, 4 Price, 190. 1 Phill. Ev. 307, et seq. 
 
 (q) See post, p. 784, as to evidence of character. 
 
 j- [The existence of a bank whose paper is alleged to have been counterfeited, may be 
 proved by reputation. Read v. The State, 15 Ohio, 217. 
 
 Neither the fact of living in adultery nor its openness or notoriety, can be proved by the 
 rumour and talk of the neighbourhood. Belcher § al. v. The State, 8 Humphreys, 63.] 
 a Eng. Com. Law Reps, xxiii. 212. >> lb. xxvii. 529.
 
 *769 OF EVIDENCE. [BOOK VI. 
 
 ♦CHAPTER THE SECOND. 
 
 THE PROOF OF NEGATIVE AVERMENTS. THE RULE THAT THE EVI- 
 DENCE MUST BE CONFINED TO THE POINT IN ISSUE. WHAT ALLEGA- 
 TIONS MUST BE PROVED, AND WHAT MAY BE REJECTED, AND 
 
 THEREWITH OF SURPLUSAGE AND OF VARIANCE. 
 
 SECT. I. 
 
 Of the Proof of Negative Averments. 
 
 General It is a general rule of the law of evidence, in criminal as well as in 
 
 rule that c j v jj proceedings, that it lies on him who asserts the affirmative of a 
 
 woo ci c scrts * 
 
 theaffirma- fact to prove it, and not on him who asserts the negative, unless under 
 
 tive must peculiar circumstances where the rule does not apply. (a) Thus, on an 
 
 indictment for bigamy, where the first marriage was by license, and the 
 
 prisoner appeared to be under age at the time, it was held that it lay on 
 
 the prosecutor to prove the consent of parents, required by the 26 Geo. 
 
 2, c. 33, in order to show the marriage valid, and not on the prisoner to 
 
 prove the negative in his defence, (b) 
 
 The pre- In criminal proceedings, however, where negative averments usually 
 
 sumption im p ute a breach of the law to the defendant, tbe operation of this rule 
 
 of law in ia- _ r # ' r 
 
 vour of in- is sometimes counteracted by the presumptiou ot law in favour of in- 
 nocence nocence ; which presumption, making, as it were, prima facie case in 
 drives the the affirmative for the defendant, drives the prosecutor to prove the ne- 
 prosecutor gative.(c) Thus, on an information against Lord Halifax, for refusing 
 the P nee;a- to deliver up the rolls of the Auditor of the Exchequer, the Court of 
 tive aver- Exchequer put the plaintiff upon proving the negative that he did not 
 men s ' deliver them ; for a person shall be presumed duly to have executed his 
 *770 office till the contrary appear.(cZ) On an *indictment for obtaining 
 money, &c, under false pretences, the prosecutor must prove the aver- 
 ments negativing the pretences. In an action for the recovery of pen- 
 alties under the hawkers and pedlers' act against a person charged with 
 having sold goods by auction in a place in which he was not a house- 
 holder, some proof of this negative, namely, of the defendant not being 
 a householder in the place, would be necessary on the part of the plain- 
 tiff.(e) On the trial of an indictment on the 42 Geo. 3, c. 107, s. 1, 
 (repealed by the 7 & 8 Geo. 4, c. 27,) which made it felony to course 
 deer on an inclosed ground, « without the consent of the owner of the 
 deer," it ought to have appeared from the evidence produced on the 
 part of the prosecution, that the owner had not given his consent.(/) 
 
 (a) Gilb. Ev. 131. Bull. N. P. 298. 
 
 (b) Rex v. Butler, Russ. k Ry. 61. Rex v. Morton, ib. 19, in note to Rex v. James, ante, 
 vol. 1, p. 209. But since the 4 Geo. 4, c. 16, a marriage by a minor -without consent, is 
 valid. Rex v. Birmingham, ante, vol. 1, p. 210. 
 
 (c) The same rule applies in civil proceedings. The principal cases on the subject are, 
 Monke v. Butler, 1 Roll. Rep. 83. 3 East, 199. Rex v. Hawkins, 10 East, 211. Powell v. 
 Millbank, 2 W. Bl. 851. S. C. 3 Wils. 356. Williams v. East India Companv, 3 East, 193. 
 Rex v. T-wyning, 2 B. & A. 386. Doe v. Whitehead," 8 A. & E. 571. 
 
 (d) Bull. N. P. 298. (e) 1 Phill. Ev. 494. 
 
 (/) Rex v. Rogers, 2 Campb. 654. See also Rex v. Hazy and Collins, b 2 C. & P. 458, and 
 a Eng. Com. Law Reps. xxxv. 458. b Ib. xii. 215.
 
 CHAP. II. § I.] OF THE PROOF OF NEGATIVE AVERMENTS. 770 
 
 But where the affirmative is peculiarly within the knowledge of the But this 
 party charged, the presumption of law in favour of innocence is not ^™^ 
 allowed to operate in the manner just mentioned; but the general rule not oper- 
 as above stated applies, viz.. that he who asserts the affirmative is to fJ^ e ' « hen 
 
 , , , . theaffirma- 
 
 prove it, and not he who avers the negative. tive is pe- 
 
 Thus, upon a conviction under the 5 Anne, c. 14, s. 2, against a car- culi 'Y ly . 
 rier for having game in his possession, it was held sufficient that the knowledge 
 qualifications, mentioned in the 22 & 23 Car. 2, c. 25, were negatived in of the party 
 the information and adjudication, without negativing them in the evi-R e ^y1 
 dence.A?) " The question is," said Lord Ellenborough, in that case, Turner. 
 " upon whom the onus probandi lies ; whether it lies upon the person 
 who affirms a qualification, to prove the affirmative, or upon the informer 
 who denies any qualification, to prove the negative. There are, Ithink, 
 about ten different heads of qualification enumerated in the statute, to 
 which the proof may be applied ; and according to the argument of to- 
 day, every person who lays an information of this sort is bound to give 
 satisfactory evidence before the magistrates to negative the defendant's 
 qualification upon each of those several heads. The argument really 
 comes to this, that there would be a moral impossiblity of ever convict- 
 ing upon such an information. "(h) 
 
 In the more recent case of Rex v. Hanson, (t\ the rule was again con- Rex v. 
 sidered and laid down by the Court of King's Bench. In that case anson - 
 there had been a conviction by two justices for selling ale without an 
 excise license. The information negatived the defendant's having a 
 license ; but there was no evidence to support this negative averment ; 
 the only evidence to support the conviction being that the defendant had 
 in fact sold ale. The question was, whether the informer was bound 
 to give evidence to negative the ^existence of a license. In support of *771 
 the conviction it was contended that such evidence was unnecessary, 
 and that it lay upon the defendant to prove that he had a license ; for 
 it is a rule, both of the civil and the common law, that a man is not 
 bound to prove a negative allegation ; Rex v. Turner was cited as an 
 express authority on the point. Abbott, C. J., said, "I am of opinion 
 that the conviction is right. It seems to me that this case is not distin- 
 guishable from Rex v. Turner. It is a general rule, that the proof of 
 the affirmative lies upon the party who is to sustain it. The prosecu- 
 tor, in general, is not called upon to prove negatively all that is stated 
 in the information as matter of disqualification. In Rex v. Turner, all 
 the learned judges concur in that principle. I concur in all the obser- 
 vations upon which the judgment of the court in that case was founded ; 
 and I think every one of them is applicable in principle to this. The 
 
 Rex v. Argent, Ry. & Moo. C. C. R. 154, ante, p. 738, the former of which cases was an in- 
 dictment for lopping and topping an ash tree without the consent of the owner, and the 
 latter an indictment for taking fish out of a pond without the consent of the owner. Ac- 
 cording to the report of the case of Rex v. Rogers. Mr. Justice Lawrence seems to have 
 thought it necessary to call the owner of the deer for the purpose of disproving his consent, 
 and the owner not being called, the jury were directed to find a verdict of acquittal. But 
 this decision has been overruled ; and it is now established that the non-consent may be in- 
 ferred from the circumstances under which the act was done, or proved by the agents of the 
 owner. Ante, p. 737. 
 
 0) Reg. v. Turner, 5 M. <te S. 206. See also Spieres v. Parker, 1 T. R. 140, and Jels v. 
 Ballard, 1 B. & P. 4C8, by Heath, J. In Rex v. Stone, 1 East, 639, the Court of King's 
 Bench were equally divided on the point. 
 
 (h) 5 M. & S. 209. 
 
 (i) MS. Paley on Conviction, by Dowling, p. 45, n. (1). {S. P. Gallison, 499. United 
 States v. Hayward.}
 
 771 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 general principle, and the justice of the case, is here against the defen- 
 dant. It is urged, that if we decide against the defendant, we shall 
 open the door to a great deal of inconvenience ; that by no means fol- 
 lows ; this man might have produced his license without any possible 
 inconvenience, which would at once have relieved him from all liability 
 to penalties. Probably the whole inquiry before the magistrates was 
 as to the fact of selling the ale, and that nothing was said about the 
 license ; but, however, I think by the general rule, the informer was not 
 bound to sustain in evidence the negative averment, that the defendant 
 had not a license. I do not mean to say that there may not be cases 
 which may be fit to be considered as exceptions to that general rule ; 
 there is no general rule to which there may not be exceptions ; all I 
 mean to say is, that this is not one of those exceptions. The party thus 
 called upon to answer for an offence against the excise laws, sustains not 
 the slightest inconvenience from the general rule, for he can immedi- 
 ately produce his license ; whereas, if the case is taken the other way, 
 the informer is put to considerable inconvenience. Discussions may 
 arise before the magistrates, whether the evidence produced is proper 
 to sustain the negative ; whether a book should be produced, or an ex- 
 amined copy, and many other questions of that sort, whereas none can 
 arise when the defendant himself produces his license. This, therefore, 
 not being one of the excepted cases, but a case falling directly within 
 the general rule, I am of opinion that judgment must be given for the 
 crown. "(./)f 
 
 In Willis's case it is said to have been agreed that, although an in- 
 dictment states that the prisoner, "then or at any time before not being 
 a contractor with or authorized by the principal officers or commission- 
 ers of our said lord the king, of the navy, ordnance, &c, for the use of 
 our said lord the king, to make any stores of war, &c," yet, that it is 
 not incumbent on the prosecutors to prove this negative averment, but 
 that the defendant must show, if the truth be so, that he is within the 
 exception in the statute.^) 
 
 Upon the same principal a very late case, the Apothecaries' Company* 
 v. Bentley,(«) was decided. That was an action for a penalty on the 
 55 Geo. 3, c. 194, for practising as an apothecary without having ob- 
 v. Bentley. tained the certificate required by that act. All the counts in the decla- 
 ration contained the allegation that the defendant did act and practice 
 as an apothecary, &c, without having obtained such certificate as by the 
 said act is directed. No evidence was offered by the plaintiffs to show 
 that the defendant had not obtained his certificate. The plaintiffs hav- 
 ing closed their case, the counsel for the defendant submitted that there 
 must be a nonsuit. But Abbott, C. J., said, "I am of opinion that 
 the affirmative must be proved by the defendant. I think that it being 
 a negative, the plaintiffs are not bound to prove it ; but that it rests with 
 the defendant to establish his having a certificate." 
 
 Willis's 
 case. 
 
 *772 
 
 Apothe- 
 caries' 
 Company 
 
 (/) So in Rex v. Smith, 3 Burr. 1475, which was a conviction for trading as a hawker 
 and pedlar without a license, it was held that the onus of proving the license lay on the de- 
 fendant. 
 
 (k) 1 Hawk. P. C. c. 89, s. 17, by the editor, ante, p. 268. 
 
 (a) Ity. & Mood. a N. P. C. 159. S. C, 1 C. & P. 538. 
 
 f [On an indictment for selling liquor without license, it is not necessary on the part of 
 the State to prove that the accused had no license. If he would avail himself of that defence 
 it is incumbent on him to prove that he was licensed. State v. Croiccll, 25 Maine, 171 ; 
 Shearar v. The State, 7 Blackford, 99.] 
 
 a Eng. Com. Law Reps. xi. 4C2.
 
 CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 772 
 
 SECT II. 
 Evidence Confined to the Point in Issue. 
 
 No evidence can be admitted which does not tend to prove or disprove Evidence 
 the issue joined. In criminal proceedings the necessity is stronger, if l " '^con- 
 possible, than in civil, of strictly enforcing the rule, that the evidence point in 
 is to be confined to the point in issue ; for where a prisoner is charged issue - 
 with an offence, it is of the utmost importance to him, that the facts laid 
 before the jury should consist exclusively of the transaction which forms 
 the subject of the indictment, which alone he can be expected to come 
 prepared to answer. It is, therefore, a general rule, that the facts proved Evidence 
 must be strictly relevant to the particular charge; and have no reference mu !* a PP'. v 
 to any conduct of the prisoner unconnected with such charge. There- s i n c-i e 
 fore, it is not allowable to show, on the trial of an indictment, that the transaction 
 prisoner has a general disposition to commit the same kind of offence as ' s 
 that for which he stands indicted. Thus, in a prosecution for an infa- 
 mous crime, an admission by the prisoner, that he had committed such 
 an offence at another time, and with another person, and that he has a 
 tendency to such practices, ought not to be received in evidence. (6)f 
 Where upon an indictment for a burglary and stealing goods, the pro- 
 secutor failed to prove any nocturnal breaking, or any larceny, subse- 
 quent to the time when the prisoners entered the house, which must have 
 been after three o'clock in the afternoon of the day on which the offence 
 was charged to have been committed, it was proposed to abandon the 
 charge of burglary, and to give evidence of a larceny by the prisoners, 
 of some of the articles mentioned in the indictment, though committed 
 before three o'clock on the day on which they were charged to have en- 
 tered the house; but the court refused *to receive the evidence, on the *773 
 ground that it was a distinct transaction. (c) The prisoners were, there- Acts of 
 fore, acquitted on this charge; but were afterwards indicted again for j,^^ j_ 
 the other offence and convicted. In treason, no overt act amounting to indiotmpnj 
 a distinct and independent charge, though falling under the same head ^ orie oa » 
 of treason, shall be given in evidence, unless it be expressly laid in the 
 indictment ;(d\ but still, if it conduce to the proof of any of the overt acts 
 which are laid, it may be admitted as evidence of such overt acts.(^) 
 With this view the declaration of the prisoner and seditious language 
 used by him are clearly admissible in evidence, as explaining his con- 
 duct and showing the nature and object of the conspiracy.(/) 
 
 So, though it is not allowable in general, to inquire into any other where 
 stealing of goods, besides that specified in the indictment, yet, for the larc o«y of 
 
 « .. ... r . „ , . . c . . goods not 
 
 purpose of ascertaining the identity oi the person, it is orten important \^ j n j n . 
 
 (b) Rex v. Cole, Mich. T. 1810, by all the judges, MS. 1 Phill. Ev. 477. In an action 
 against the acceptor of a bill of exchange, where the defence was that the acceptance was 
 forged, evidence that the party who negotiated the bill had been guilty of other forgeries, 
 was held inadmissible. Viney v. Barss, 1 Esp. 292. See also Balcetti v. Serani, Peake, N. 
 P. C. 142. Graft v. Bertie, Peake's Ev. 104. 
 
 (c) Rex v. Vandercomb and Abbott, 2 Leach, 708. Ante, vol. 1, p. 839. 
 
 (d) Fost. 245. (e) Ibid. 
 
 (/) 1 Phill. Ev. 471, citing Rex v. Watson, 2 Stark. R. 134. 
 
 f [In a prosecution for perjury, proof of the general bad character of the defendant for 
 truth and veracity would be inadmissible. Devrit v. Greenfield, 5 Ohio, 127. See Common- 
 wealth v. Hopkins, 2 Dana, 418.]
 
 773 OF EVIDENCE. [BOOK VI. 
 
 diotment to show that other goods, which had been upon an adjoining part of the 
 
 proved premises, were stolen in the same night, and afterwards found in the 
 
 prisoner's possession. This is strong evidence of the prisoner having 
 
 been near the prosecutor's house on the night of the robbery ; and in 
 
 that point of view it is material. (</) Thus also, on an idictment for 
 
 the crime of arson, it may be shown, that property, which had been 
 
 taken out of the house at the time of the firing, was afterwards found 
 
 secreted in the possession of the prisoner.^ 
 
 Acts of Where several are proved to have been engaged in the same design, 
 
 sons r en- " the ac * s anc ^ declarations of one in furtherance of that design may be 
 
 gaged in received in evidence against another, though not present ;(*) and it seems 
 
 aegj^n^ay to make no difference as to the admissibility of the act or declaration of 
 
 be proved* a conspirator against a defendant, whether the former be indicted or 
 
 whether nQ ^ or ^ r j e( j or no + ^{fa the latter ; for the making one a co-defendant 
 
 the}' are in- ' ' '. ° . 
 
 dieted or does not make his acts or declarations evidence against another, any 
 noU more than they were before ; the principle upon which they are admis- 
 
 sible at all is, that the act or declaration of one is, that both united in 
 one common design, a principle which is wholly unaffected by the con- 
 sideration of their being jointly indicted. (/) Neither does it appear to 
 be material what the nature of the indictment is, provided the offence 
 involve a conspiracy. Thus, upon an indictment for murder, if it ap- 
 peared that others, together with the prisoner, conspired to perpetrate 
 the crime, the act of one done in pursuance of that intention, would be 
 evidence against the rest. (A;) So where in a case of forgery, several 
 persons had been shown to be connected together in respect of the charge 
 contained in the indictment, it was held that what was said by one of 
 them to a witness, when they were met together, on the subject of the 
 present forgery, was evidence against the others, although the person 
 who said it was not upon his trial. (7)f 
 
 Where several different felonies are alleged in the same indictment, 
 *774 *or evidence appears to refer to more than one distinct unconnected 
 Prosecutor felony, it is usual for the judge, in his discretion, to call upon the coun- 
 y.roof of one se ' ^ or tne prosecution to select one felony, and to confine the evidence 
 felony. to that particular charge. (m) Thus, on an indictment against a receiver 
 for receiving several articles, if it appear that they were received at dif- 
 ferent times, the prosecutor may be put to his election, (h) though on an 
 indictment for stealing several articles, it is no ground for confining the 
 prosecutor's proof to some one of the articles, that, they might have been, 
 and probably were stolen at different times, if they might have been 
 stolen all at once.foYj; 
 
 (g) 1 Phill. Ev. 160, 7 ed. See per Littledale, J., in Rex v. Rooney, 8 7 C. & P. 517, post, 
 p. 776, note (x). 
 
 (h) Rickman's case, 2 East. P. C. c. 21, s. 11. p. 1035. 
 
 (?) Rex v. Stone, 6 T. R. 527. See also for examples of this rule, Rex v. Standley and 
 others, Russ. & Ry. 305. Rex v. Gogerly and others, ibid., 343. Rex v. Bingley and others, 
 ibid., 446. 
 
 (/) 2 Stark. Ev. 329. Ante, p. 700. (k) Ibid. 
 
 (I) Rex v. Stansfield, 1 Lew. 118. Littledale, J. 
 
 (;«) Young v. The King, 3 T. R. 106, by Duller, J. Rex v. Jones, 3 Campb. 132. Rex p. 
 Kingston. 8 East, 41. But this rule does not extend to misdemeanors. Rex v. Finance, 6 5 
 0. &P. 551. (n) Rex v Dunn, R. & M. C. C. R. 146. (o) Ibid. 
 
 t [The acts or declarations of a supposed agent or joint conspirator, cannot be received 
 in evidence until proof has been first given to establish the agency or combination. The 
 People v. Parish, 4 Denio, 153.] 
 
 J [Upon an information for adultery, charging but one offence and that in a single count, 
 a Eng. Com. Law Reps, xxxii. 608. b lb. xxiv. 452.
 
 CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 774 
 
 Generally speaking, it is not competent to a prosecutor to prove a man Proving 
 guilty of one felony by proving him guilty of another unconnected by showing 
 felony ;"j" but where several felonies are connected together, and form prisoner 
 part of one entire transaction, then the one is evidence to show the 1™*^,° 
 character of the other, (p) On an indictment for stealing six shillings, the felony, 
 following facts were proved : — The prisoner was a shopman in the em- J^y 01 ? the 
 ploy of the prosecutrix, and his honesty being suspected, on a particular are con- 
 day the son of the prosecutrix put seven shillings, one half-crown, and nected. 
 one six-pence, marked in a particular manner, into a till in the shop, in Em s . ' 
 which there was no other silver at that time, and the prisoner was 
 watched by the prosecutrix's son, who from time to time went in and 
 out of the shop, occasionally looking in and examining the till, while 
 customers came into the shop and purchased goods. Upon the first 
 examination of the till it contained lis. Qd. ; after that, the son of the 
 prosecutrix received one shilling from a customer and put it into the 
 till; afterwards "another person paid one shilling to the prisoner, who 
 was observed to go with it to the till, to put his hand in, and withdraw 
 it clenched. He then left the counter, and was seen to raise his hand 
 clenched to his waistcoat pocket. The till was examined by the wit- 
 ness, and lis. Qd. were found in it instead of 13s. Qd., which ought to 
 have been there. The prosecutrix was proceeding to prove other acts 
 of the prisoner, in going to the till and taking money, when Wilde, 
 Serjt., objected, that evidence of one felony had already been given, and 
 that the prosecutrix ought not to be allowed to prove several felonies. 
 The learned judge overruled the objection, and the son of the prosecu- 
 trix proved that, upon each of several inspections of the till after the 
 prisoner had opened it, he found a smaller sum than ought to have been 
 there. The prisoner having been found guilty, application was made to 
 the Court of K. B. for a rule for staying the judgment, on the ground 
 that the prosecutor ought to have been confined in proof to one felony ; 
 but the court was of opinion that it was in the discretion of the judge to 
 confine the prosecutor to the proof of one felony, or to allow him to 
 give evidence of other acts, which were all part of one entire trans- 
 action.^) 
 
 So where on an indictment for stealing pork, a bowl, some knives, and Birdseye's 
 a loaf of bread, it appeared that the prisoner entered a shop, and ran case- 
 away with the pork, and returned in about two minutes, replaced the 
 *pork in a bowl, which contained the knives, and took away the whole *775 
 together; in about half-an -hour after he came back to the shop, and took 
 
 (p) Per Baylcy, J. Rex. v. Ellis,* 6 B. & C. 145. 
 
 (q) Rex v. Ellis, supra. The indictment had been removed into that court by certiorari 
 from the City Court of Exeter. 
 
 the public prosecutor, having given evidence of one act of adultery, will be confined to that 
 act and not permitted to introduce proof of other acts committed with the same person at 
 different times and places. The Slate v. Bates, 10 Conn. 372. 
 
 On an indictment for adultery evidence of improper familiarities between the parties 
 accused, a short time previous to the act charged, is admissible in corroboration of other 
 evidence. State v. Wallace, 9 N. Hamp. 515.] 
 
 f {On the trial of an indictment for larceny of a watch, evidence of another larceny of a 
 clock by the prisoner, at another time, is inadmissible for any purpose. 1 Leigh, 574. 
 Walker v. The Commonwealth.] 
 
 [Evidence of a distinct substantive offence shall not be admitted in support of another 
 offence ; <l fortiori, shall not evidence of an intention to commit another offence be received. 
 Kinchelow v. The State, 5 Humphreys, 9.] 
 
 8 Eng. Com. Law Reps. xiii. 123.
 
 775 OF EVIDENCE. [BOOK VI. 
 
 away the loaf of bread. Littledale, J., said, " This taking away the loaf 
 cannot he given in evidence upon this indictment. I think that the pri- 
 soner's taking the pork and returning in two minutes, and then running 
 off with the bowl, must be taken to be one continuing transaction : but 
 I think that half-an-hour is too long a period to admit of that construc- 
 tion. The taking of the loaf therefore is a distinct offcnce."(r) 
 Cases cited In the case of Rex v. Wylie,(s) Lord Ellenborough said, he reniem- 
 in Rex v. bered a case where a man committed three burglaries in one night : he 
 took a shirt in one place, and left it at another ; and they were all so 
 connected that the court went through the history of the three different 
 burglaries. 
 Several So where three burglaries were committed in the town of Uttoxeter, 
 
 burglaries at j£ ee ii n g's an( j another at Bladon's, between twelve and three 
 
 in the same <= _ > 
 
 night. o'clock of the same night, and at Bladon s a crow-bar was tound, which 
 fitted some marks on a chest broken open at Reeling's, and which was 
 proved to have been in the possesssion of the prisoners previously to the 
 night in question ; Wightman, J., on the authority of the preceding case, 
 allowed evidence to be given of the finding of the crow-bar at Bladon's, 
 and also of the finding goods stolen the same night from Bladon's in the 
 possession of the prisoners, as such evidence tended to show that the 
 prisoners had been at Bladon's, and that they might have left the crow- 
 bar there. (<) 
 Where Where several felonies are all parts of the same transaction, evidence 
 
 fekmies are °f a ^ * s admissible upon the trial of an indictment for any of them. 
 all parts of Thus upon an indictment against two prisoners, charging each in differ- 
 the same enfc counts as principals in the first degree in committing a rape, and 
 tion, evi- also as principals in the second degree in other counts, evidence has been 
 dence of all j-jgij admissible that the prisoners, together with three other men, com- 
 ble upon mitted at the same place and time, the one after the other successively, 
 the trial of ra pes upon the body of the prosecutrix, the others aiding and abetting 
 merit for" m turn.(w) So where there were three indictments against the prisoner 
 any of for setting fire to three ricks belonging to three different persons, and it 
 1 em ' appeared that the ricks, which were in sight of each other, were set on 
 
 fire one immediately after the other, but the strongest evidence being as 
 to the last, that indictment was tried first ; the confession of the prisoner 
 relating to all the three ricks, and the evidence of an accomplice to 
 all, was admitted, as the whole constituted part of the same transac- 
 tion.^-) And where an indictment for arson contained five counts for 
 setting fire to five different houses, which were all in one row, and the 
 fire from the one first on fire had communicated to the others, it was 
 *776 held that, as it was ail one transaction, the evidence as *to all -the houses 
 was admissible. (w) So where upon an indictment against the prisoners 
 for robbing Woodward, there being another indictment against them for 
 
 (r) Rex v. Birdseye," C. & P. 386. 
 
 (s) 1 New Rep. 94, S. C. 2 Leach, 983. Ante, p. 404. 
 
 (t) Reg. v. Stonyer and others, Stafford Sum. Ass. 1843. MSS. C. S. G. 
 
 (w) Rex v. Folkes, R. & M. C. C. R. 354. And the same was held in Rex v. Lea, b 2 Moo. 
 C. C. R. 9. 7 C. & P. 836. Three several rapes committed in one boat were given in evi- 
 dence ; but other rapes committed in another boat, to which the prosecutrix was carried 
 from the first boat, was not offered in evidence, as they were the subject of another indict- 
 ment. C. S. G. 
 
 (v) Rex v. Long, 6 C. & P. 179, Gurney, B. 
 
 (w) Reg. v. Trueman, d 8 C. & P. 727. Erskine, J., refused to put the prosecutor to elect, 
 as to which count he would proceed. 
 
 a Eng. Com. Law Reps. xix. 433. b lb. xxxii. 7G1. c lb. xxv. 43. d lb. xxxiv. 605.
 
 CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 776 
 
 robbing Urwick of a watch, it appeared that Woodward and Urwick 
 were travelling in a gig, when they were stopped and robbed ; Little- 
 dale, J., held, that evidence might be given that Urwick lost his watch 
 at the same time and place that Woodward was robbed, but that evi- 
 dence was not admissible of the violence that was offered to Urwick. 
 One question in the case was, whether the prisoners were at the place 
 in question when Woodward was robbed; and as proof that they were 
 so, evidence was admissible that one of them had got something which 
 was lost there at that time. (a:) But where upon an indictment for rob- 
 bing George and Henry Pritchard, it appeared that the prisoners at- 
 tacked and robbed George and Henry Pritchard when they were walk- 
 ing together, Tindal, C. J., held that the prosecutor was not bound to 
 elect as to which robbery he would proceed. It was all one act, and 
 one entire transaction ; the two prosecutors were assaulted and robbed 
 at one and the same time, and there was no interval of time between 
 the assaulting and robbing of the one and the assaulting and the rob- 
 bing of the other. If there had been, the felonies would have been 
 distinct, but that was not so in the present case.(y) So where the pri- 
 soner was indicted under the 8 & 9 Wm. 3, c. 26, s. 1, for having in 
 his possession an edger, contrived for marking money round the edges, 
 and proof being offered that the prisoner had used the instrument for 
 graining the edges of counterfeit half-crowns, it was objected that the 
 act of coining being a species of treason higher in degree than the one 
 the prisoner was charged with, the greater offence ought not to be given 
 in evidence to prove the less; but Burroughs, J., held that the evi- 
 dence was admissible, as whatever went to prove that the prisoner was 
 guilty of the offence he was charged with, was evidence, however it 
 might also go to show him guilty of another offence, (z\ 
 
 It was formerly considered that if there were separate indictments for Where 
 offences which constituted parts of the same transaction, evidence of an nie g' ar e the 
 offence which was the subject-matter of one indictment was not admis- subject- 
 sible upon the trial of another, (a) But it has been since held in seve- ^"^5 
 ral cases that there being another indictment pending makes no differ- dictments. 
 ence.(7<) And it has been laid down by a very learned judge that the ^c^tion 6 
 correct rule in such cases is, that it is in the discretion of the judge to f thejudge 
 admit or reject evidence of other felonies which form the subject of to . admit 
 other indictments, and that such discretion will be guided by the evi- ot h er f e i - 
 dence appearing to be necessary or unnecessary in support of the in- nies in such 
 dictment on which the prisoner is being tried. (c) Thus, where there c&s ^„„ 
 were three indictments against a prisoner* for stealing notes from three 
 letters, and- it appeared that the prisoner stole notes out of one letter, 
 and then opened another letter, and took out of it the notes it contained, 
 and substituted for them notes to an equal amount out of the first letter, 
 
 (x) Rex v. Rooney, a 7 C. & P. 517. Littledale, J., added, " I think it makes no difference 
 that Urwick's watch is the subject of another indictment." " Suppose Mr. Urwick had not 
 been there at all, and that when Woodward was robbed, a watch had been under the seat 
 of his gig, and that after the robbery he had discovered that the watch was missing, I have 
 no doubt that evidence might be given of the loss of the watch at the place." 
 
 (y) Reg v. <;iddings, b 1 0. & Mars. 634. (z) Rex v. Moore, 2 C. <fe P. 235. 
 
 (a) Rex v. Smith,' 1 2 C. & P. 633. 
 
 (b) See the cases, ante, p. 407, and/>er Littledale, J., Rex. v. Rooney, ante, note (z). 
 
 (c) Per Patteson, J., Rex v. Salisbury, 6 MS. C. S. G. S. C. 5 C. & P. 155. 
 
 a Eng. Com. Law Reps, xxxii. 608. b lb. xli. 344. c lb. xii. 235. d lb. xii. 295. 
 
 c lb. xxiv. 253.
 
 777 OF EVIDENCE. [BOOK VI. 
 
 it was held on the trial for stealing the notes, out of the first letter, that 
 the notes stolen out of the second letter might be traced to the prisoner 
 because such evidence was essential to the chain of facts necessary to 
 make out the case.(d) But where on an indictment for night-poach- 
 ing in order to prove the identity of one of the prisoners, it was pro- 
 posed to prove that a coat lost by one of the keepers on the occasion in 
 question had been found in the possession of the prisoner, there being a 
 separate indictment for stealing the coat ; Patteson, J., refused to receive 
 the evidence, unless the prosecutor consented to an acquittal on the in- 
 dictment for larceny. (e) 
 Evidence Where it becomes necessary to prove a guilty knowledge on the part 
 ° f t° th f the °f tne P r i soner > evidence of other offences committed by him, though not 
 prisoner as charged in the indictment, is admissible for that purpose. Thus, upon an 
 proof of his i n( Ji c ttnent for uttering a forged bank-note, knowing it to be forged, 
 knowledge, evidence may be given of other forged notes having been uttered by the 
 prisoner, in order to show his knowledge of the forgery. (A So on a 
 prosecution for uttering counterfeit money, it is the practice, for the pur- 
 pose of showing a guilty knowledge, to receive proof of more than one 
 uttering committed by the party about the same time, though only one 
 uttering be charged in the indictment. (#)"j" So, though on an indictment 
 against a receiver for receiving several stolen articles, if it be proved 
 that they were received at several times, the prosecutor may be put to 
 his election, yet evidence may be given of all the receipts for the pur- 
 pose of proving guilty knowledge. (A) 
 
 (d) Rex v. Salisbury, supra. 
 
 (e) Rex v. Westwood, a 4 C. & P. 547. In Rex v. Salisbury, supra, Patteson, J., stated 
 that he refused to admit the evidence in this case on the ground that he did not think it 
 necessary in support of the offence charged. 
 
 (/) See ante, p. 404, et seq. and the cases there cited, viz., Wylie's case, 1 New Rep. 92. 
 S. C. 2 Leach, 983. Rex v. Ball, Russ. & Ry. 132. 1 Camp. 324. So the possession of 
 other forged instruments may be proved as evidence of a guilty knowledge. Ante, p. 404. 
 Rex v. Hough, Russ. & Ry. 120 ; but there must be regular proof that they are forged, ante, 
 p. 407. Rex v. Millard, Russ. & Ry. 245. It has been questioned whether it may be proved 
 that the prisoners had uttered forged bills or notes of a different kind. Bayley on Bills, 4th 
 ed. 450. But see ante, p. 405. Where the second uttering was made the subject of a dis- 
 tinct indictment, Vaughan, B., held, that it could not be given in evidence to show a guilty 
 knowledge. Rex v. Smith, 2 C. & P. 633, but see the cases, ante, p. 406. 
 
 (g) Ante, vol. 1, p. 81. (h) Rex v. Dunn, R. & M. C. C. R. 146. 
 
 •j- {If a second uttering be made the subject of a distinct indictment, it cannot, as a 
 general rule, be given in evidence to show a guilty knowledge in the first uttering. 2 Car. 
 & Payne, 633. [Eng. Com. Law Reps. xii. 295.] Rex v. Smith. But it seems that if the 
 false paper be precisely similar to that for uttering which the prisoner is indicted, and 
 which might therefore have been concocted at the same time, and for the same fraudulent 
 purpose — a subsequent uttering is admissible evidence to prove guilty knowledge. Carr. 
 Supp. 194, Rex v. Taverner, 4 Car. & Payne, 411, [Eng. Com. Law Reps. xix. 448,] Rex. v. 
 Smith. Evidence of the prisoner's false representations, relating to a forged bank-note 
 uttered by him, are admissible to evince his guilty knowledge. 5 Day, 175, State v. Smith. 
 Evidence of a prisoner's endeavours to engage a person to procure for him counterfeit 
 money — of his declared intention to become acquainted with a counterfeiter, and to remove 
 to a place near his residence — is admissible, on a prosecution for passing a counterfeit 
 note, to prove the scienter. 5 Randolph, 701, Finn v. Commonwealth.} [Rose. Dig. Cr. Ev. 
 67, n.] 
 
 [On the trial of an indictment for passing a counterfeit bank-note or check, after evi- 
 dence that the prisoner passed the note and that it was counterfeit, evidence that the prisoner 
 had in his possession and attempted to pass other counterfeit notes of the same kind to 
 other persons the day after he passed these in the indictment mentioned, is admissible to 
 prove the scienter. Hendrick v. The Commonivealth, 5 Leigh, 70S.] 
 a Eng. Com. Law Reps. xxiv. 520.
 
 CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 777 
 
 If it be material to show the intent with which the act charged was Proof of 
 done, evidence may be given of a distinct offence not laid in the indict- of h t ^ r e act - s 
 ment. Thus, upon an indictment for maliciously shooting, if it be ques- soner as 
 tionable whether the shooting was by accident or design, proof may be £Y lden .^ e of 
 given that the prisoner at another time intentionally shot at the same intent. J 
 person. (i) So where upon an indictment for robbery it appeared that 
 the prisoners went with a mob to the prosecutor's house, and one of the 
 mob went up to him, and very civilly, and, as the prosecutor then be- 
 lieved, with a good intention, advised him to give them something to 
 get rid of them, and prevent mischief, upon which the prosecutor gave 
 them the money laid in the indictment ; it was held that for the pur- 
 pose of showing that this *was not bond fide advice, but, in reality, a *778 
 mere mode of robbing the prosecutor, evidence was admissible of other 
 demands of money made by the same mob at other houses, before and 
 after the particular transaction at the prosecutor's house, but in the 
 course of the same day, and when any of the prisoners were present. (j) 
 So upon an indictment for administering sulphuric acid to horses with 
 intent to kill them, it has been held that the prosecutor is not confined 
 to the proof of a single act of administering, but that other acts of ad- 
 ministering may be given in evidence to show whether it was done with 
 the intent charged in the indictment. (A-) So where upon an indictment 
 for robbing the prosecutor of his coat, the robbery having been com- 
 mitted by the prisoner's threatening to charge the prosecutor with an 
 unnatural crime, Holroyd, J., received evidence of a second ineffectual 
 attempt to obtain a 1/. note the following evening by similar threats, 
 and upon a case reserved the judges were of opinion that the evidence 
 was admissible to show that the prisoner was guilty of the former trans- 
 action.^) On a prosecution for a libel, the publication of other libels, 
 by the defendant, not laid in the indictment, may be given in evidence, 
 to show quo animo the defendant published that in question. (m\ On 
 the trial of an indictment for murder, former grudges and antecedent 
 menaces are admitted to be given in evidence as proof of the prisoner's 
 malice against the deceased. (n^ And it has been considered, in a case 
 where three persons were charged with uttering a forged note, that 
 other acts done by all of them jointly, or any of them separately, shortly 
 before the offence, may be given in evidence to show the confederacy 
 and common purpose, although such acts constitute distinct felonies. (o) 
 On an indictment for sending a threatening letter, prior and subsequent 
 letters, from the prisoner to the party threatened, may be given in evi- 
 
 (i) Rex v. Voke, Russ. & R. 531. 
 
 (j) Rexi>. Winkworth, a 4 C. & P. 444, Parke, J., Alderson, J., and Vaughan, B., and Lord 
 Tenterden, C. J., afterwards concurred in opinion. 
 
 (/c) Rex v. Mogg, b 4 C. & P. 364, Park, J. A. J. 
 
 (I) Rex v. Egerton, Russ. & Ry. 375, S. C. mentioned by Holroyd, J., in Rex v. Ellis, ante, 
 p. 774, note (q). 
 
 {m) Ante, vol. 1 p. 2G1. Stuart v. Lovell, 2 Stark. N. P. C. 95. So subsequent letters 
 relating to the same subject, although libellous themselves, are admissible in an action for 
 a libel, and although such libel needs no explanation. Pearson v. Lemaitre, in C. P., May 
 11, 1843. 
 
 (n) 1 Phill. Ev. 476. So the declarations of the prisoner, and the seditious language 
 used by him, are clearly admissible in evidence on an indictment for high treason, explain- 
 ing his conduct, and showing the nature and object of the conspiracy. Rex v. Watson, d 2 
 Stark. N. P. (J. 134. 1 Phil. Ev. 471. 
 
 (o) Rex v. Tattersall, MS. Bayley, J. Ante, vol. 1, p. 27. 
 
 * Eng. Cora. Law Reps. xix. 465. b lb. xix. 420. c Jb. iii. 261. d lb. iii. 273.
 
 778 OF EVIDENCE. [BOOK VI. 
 
 dence, as explanatory of the meaning and intent of the particular letter 
 
 on which the indictment is framed. (_p)f 
 Evidence Evidence of the murder of one person may be given upon the trial 
 ofonemur-£ ^ mur( j er f another person, if such evidence tends to show that 
 
 der to show , . * '. 
 
 the motive the prisoner might have had a motive arising out of the other murder 
 for commit- £ or committing the murder with which he is charged. Upon an indict- 
 
 tmcr ano- . 
 
 ther. ment for the murder of one Hemmings, it was opened that great enmity 
 
 subsisted between Parker, the rector of a parish, and his parishoners, 
 and that the prisoner had used expressions of enmity against the rector, 
 and had said he would give oOl. to have him shot, and that the rector 
 was shot by Hemmings, and that the persons, who had employed him, 
 fearing they should be discovered as having hired him to murder the 
 *779 rector, had themselves *murdered Hemmings; and that Hemmings's 
 bones had been found in a barn occupied by the prisoner at the time of 
 the murders. After evidence had been given of declarations of the pri- 
 soner, showing that he entertained malice against the rector, it was pro- 
 posed to show that Hemmings was the person by whom the rector 
 was murdered; it was objected that this was not admissible, as the rec- 
 tor's death was not the subject of the present inquiry. Littledale, J., 
 " I think that I must receive the evidence. On the part of the prose- 
 cution it is put thus, — that the prisoner and others employed Hem- 
 mings to murder Mr. Parker, and that he being detected, the prisoner 
 and others then murdered Hemmings, to prevent a discovery of their 
 own guilt; now to ascertain whether or not that was so in point of fact, 
 it is necessary that I should receive evidence respecting the murder of 
 Mr. Parker." (q) 
 Of other So evidence may be given of other wounds inflicted by the prisoner 
 
 wounds. on Q^gj. persons at the same time and place for the purpose of identi- 
 fy) Robinson's case, 2 Leach, 749. 2 East, P. C. c. 23, s. 2, p. 1110. Ante, p. 724. 
 (q) Rex v. Clewes,* 4 C. & P. 121. 
 
 •j- [On the trial of an indictment for having in possession a counterfeit bank bill with 
 intent to pass it as true, knowing it to be counterfeit, evidence that the defendant had passed 
 other counterfeit bills, is admissible to show his knowledge that the bill mentioned in the 
 indictment was counterfeit ; but his conversation respecting a bill which he had passed, if 
 made after he passed it, is not admissible to prove the fact that such bill was counterfeit, 
 without the production of the bill itself, or proof that it is destroyed or is in the possession 
 or control of the defendant. Commonwealth v. Bigelow, 8 Metcalf, 235. 
 
 On the trial of a person charged with passing counterfeit bank-notes, it is competent to 
 prove he has passed other counterfeit paper without producing such paper, if it be out of 
 the jurisdiction of the court. Eeedv. The State, 15 Ohio, 217. 
 
 On the trial of an indictment for uttering and publishing as true a forged bank bill, to 
 prove the scienter, it is admissible to show that the prisoner had passed other forged bills for 
 which indictments were pending against him. State v. Williams, 2 Richardson, 418. 
 Commomvealth v. Steam, 10 Metcalf, 256. 
 
 Where there is a question of intent or of guilty knowledge, proof of other acts of a simi- 
 lar nature with those constituting the principal charge, with a view to establish such intent 
 or knowledge, are sometimes, admissible. The People v. Hopson, 1 Denio. 574. 
 
 On the trial of an indictment containing a single count for an offence of assault and bat- 
 tery, and resisting an officer in the execution of process, the prosecution, after proving an 
 assault and one act of resistance cannot give evidence of a similar offence committed at 
 another time. The People v. Hopson, 1 Denio, 574. 
 
 On an indictment for an assault with intent to commit a rape, evidence of previous 
 assaults on the prosecutrix are admissible to show the intent with which the assault in 
 question was committed. Williams v. The State, 8 Humphreys, 585. 
 
 When an indictment alleges that a party attempted to set fire to a dwelling-house, with 
 intent to burn it by attempting to set fire to another building, the jury are authorized to 
 infer the alleged intent from the evidence respecting the attempt to set fire to the other 
 building. Commonwealth v. Harney, 10 Metcalf, 422.] 
 
 a Eng. Com. Law Reps. xix. 354.
 
 CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 779 
 
 fying the instrument used. On an indictment for maliciously stabbing, 
 it appeared that the prisoner stabbed both the prosecutor and Redman 
 at the same time and place, and it was held that evidence might be 
 given of the shape of the wound inflicted upon Redman for the purpose 
 of identifying the instrument with which the wound was inflicted on 
 the prosecutor.(r) 
 
 If a prisoner call evidence to prove an alibi, evidence may be given To rebut an 
 in reply, for the purpose of rebutting the alibi, that the prisoner com- a 
 mitted another robbery near the place where the offence charged was 
 committed. On an indictment for robbery the defence was an alibi, 
 and in order to show that the prisoner was near the place of the rob- 
 bery at the time it was committed; Alderson, B., held that a witness 
 might be examined to show not merely that he had beeen accosted 
 by the prisoner on the road shortly before the prosecutor was robbed, 
 but that he had also been in fact robbed by the party who accosted 
 him.(s) 
 
 As other acts and declarations of the prisoner, besides those charged Proof of 
 
 in the indictment, may be given in evidence on the part of the prosecu- an^decla- 
 
 tion, so he himself in his defence may in some cases prove other acts rations of 
 
 and declarations of his own, as evidence of his innocence. Thus, on a P r !^ oner as 
 
 charge of murder, expressions of goodwill and acts of kindness, on the for him of 
 
 part of the prisoner towards the deceased, are always considered im- hls inno " 
 
 . i ,. ,. .... cence. 
 
 portant evidence, as showing what was his general disposition towards 
 
 the deceased, from which the jury may be led to conclude that his 
 intention could not have been what the charge imputes, ft) So in the 
 case of Rex v. Lambert and Perry,(2t) where the supposed libel, which 
 was the subject of prosecution, was contained in a paragraph of a news- 
 paper, of which the defendants were the printer and proprietor, it was 
 held by Lord Ellenborough, that the defendants had a right to have 
 read in evidence any other paragraph in the same newspaper, connected 
 with the subject of the passage charged as libellous, (although disjointed 
 from it by extraneous matter, and printed in a different *character,) for *780 
 the purpose of showing the intention and mind of the defendants with 
 respect to the specific paragraph laid in the indictment. And as, in 
 trials for conspiracies, whatever the prisoner may have done or said, at 
 any meeting alleged to be held in pursuance of the conspiracy is 
 admissible in evidence against him, on the part of the prosecution; so, 
 on the other hand, any other part of his conduct at the same meetings 
 will be allowed to be proved, on his behalf; for the intention and design 
 of the party, at a particular time, are best explained by a complete view 
 of every part of his conduct at that time, and not merely from the proof 
 of a single and insulated act of declaration, (v) In the case of Walker Walker's 
 and others, who were tried for a conspiracy to overthrow the govern- case " 
 ment, and evidence was produced, on the part of the prosecution, to 
 show that the conspiracy existed, and was brought into overt act at 
 meetings in the presence of Walker, the counsel for the prisoners was 
 
 (r) Rex v. Fursey, a 6 C. & P. 81, Parke, J., and Gaselee, J. 
 
 («) Reg. v. Briggs, 2 M. & Rob. 199. (t) 1 Phill. Ev. 470. 
 
 \u) 2 Campb. 400, and see Thornton v. Stephen, 2 M. & Rob. 45. The same was done in 
 Newton v. Rowe, Gloucester Spr. Ass. 1843, cor. Erskine, J. MSS. 0. S. G. So subsequent 
 letters, relating to the same subject, are admissible in an action. Pearson v. Lemaitre, in C. 
 P.May 11, 1843. 
 
 (t>) 1 Phill. Ev. 478. 
 
 * Eng. Com. Law Reps. xxv. 293.
 
 780 OF EVIDENCE. [BOOK VI. 
 
 allowed to ask a witness, whether, at any of these times, he had ever 
 heard "Walker utter any word inconsistent with the duty of a good sub- 
 ject? The question was opposed, but held by Mr. J. Heath to be 
 admissible. The prisoner's counsel were also allowed in the same case, 
 to inquire into the general declarations of the prisoner at these meetings, 
 whether the witness had heard him say anything that had a tendency 
 to disturb the peace of the kingdom; and questions to the same effect 
 were put to many other witnesses in succession. (w) 
 Hardy's On the trial of Hardy for high treason, where the overt act charged 
 
 was that the prisoner, for the purpose of accomplishing the treason of 
 compassing the king's death, did conspire with others, to call a conven- 
 tion of the people, in order that the convention might depose the king; 
 the counsel for the prisoner were allowed to ask a witness, whether, 
 before the time of the convention, which was imputed to the prisoner, 
 he had ever heard from him what his objects were, and whether he had 
 But such at all mixed himself in that business. (x^ But the better opinion seems to 
 acts and j^ ^ a ^ [ n or( j er to make such other acts or declarations of the prisoner 
 tions of the applicable to his defence, it must be shown that they are in some way 
 prisoner connected with the facts proved against hini.fy) In the case of Home 
 connected Tooke and others, however, for high treason, several publications 
 with the having been given in evidence on the part of the crown, containing re- 
 facts prov- p U b]j can doctrines and opinions, the distribution of which had been pro- 
 him. moted by the prisoners, during the period assigned in the indictment for 
 
 the existence of the conspiracy, the prisoner was allowed to read, in his 
 defence, various extracts from works which he had published at a for- 
 *781 mer period of his life; and *these the jury were permitted to carry 
 along with them when they retired to consider of their verdict.(z) But 
 the propriety of allowing such a defence has been questioned by very 
 high authority. (a) 
 Evidence It may also happen, that from the nature of the offence charged, it is 
 of several impossible to confine the evidence to proof of a single transaction. 
 
 transac- ml • -,• • 11^1 /» 
 
 tions when Thus, on an indictment against several defendants for a conspiracy to 
 cumulative cause themselves to be believed persons of large property, for the 
 
 instances > 
 
 are neces- purpose of defrauding tradesmen, Lord Ellenborough allowed the pro- 
 sary to secutor to prove various instances of their giving false representations 
 offence °^ their circumstances ',(aa) observing that the indictment was for a con- 
 charged, spiracy to carry on the business of common cheats, and cumulative 
 instances were necessary to prove the offence. The same sort of evi- 
 
 (iv) Ibid, and 23 St. Tr. 1121. See the observations of Alderson, B., in Reg. v. Vincent,* 
 9 C. & P. 91. 
 
 (x) 24 How. St. Tr. 1097. On an indictment for conspiracy against the defendant and 
 Brown, (who was gone to America) with intent to defraud Sir C. C. of a sum of money 
 advanced by him by way of annuity, some letters between the defendant and Brown were 
 put in evidence on the part of the prosecution, and the defence was that the defendant had 
 been made a dupe by Brown, and was not himself a participator in the fraud, and Lord Ten- 
 terden, C. J, held that, under the peculiar circumstances of the case, the whole of the corres- 
 pondence between the defendant and Brown, on both sides, previously to the execution of 
 the annuity deeds, was admissible, but that all letters subsequent to that time were inad- 
 missible. Rex v. Whitehead, 1 * 1 Carr. & P. 67. D. & R. N. P. R. 61. S. C. 
 
 (y) Rex v. Lambert and Perry, 2 Campb. 400. Lord George Gordon's case, 21 How. St. 
 Tr. 542. Hanson's case, 31 How. St. Tr. 4281. 1 Phill. Ev. 480. 
 
 (z) 1 East, P. C. c. 11, s. 8, p. 61. 25 How. St. Tr. 545. 
 
 (a) Bv Lord Ellenborough in Rex v. Lambert and Perry, 2 Campb. 400. 
 
 (act) Rex v. Roberts, 1 Campb. 400, ante. p. 701. But see Reg. v. Steel, 1 C. & Mars. 337, 
 ante, p. 701. 
 
 ■ Eng. Com. Law Reps, xxxviii. 48. b lb. xi. 316. c lb. xli. 187.
 
 CHAP. II. § II.] EVIDENCE CONFINED TO TOINT IN ISSUE. 781 
 
 deuce said his lordship, is allowed on an indictment for barratry ;(M 
 and in a prosecution for high treason itself, the gravest of all offences. 
 
 The rule is clear and general, that no question can be put which is Cases as to 
 not relevant to the issue, (unless for the purpose of impeaching the the rele " 
 credit of a witness ;) but the applicability of the rule must obviously evidence. 
 depend upon the particular circumstances of each individual case, and 
 will not admit of a general demonstration. It may, however, be useful 
 to state some criminal cases, where questions as to the relevancy of 
 evidence have arisen and been decided. On the trial of an indictment 
 against several persons for a conspiracy, in unlawfully assembling for Unlawful 
 the purpose of exciting discontent and disaffection, it would be irrele- assembly. 
 vant to inquire, on behalf of the defendants, what the conduct of those case- 
 employed to disperse the meeting may have been, at the time of the 
 dispersion, if no evidence has been previously offered, on the part of the 
 prosecution, as to the conduct of the meeting at the time or subse- 
 quently ; for the conduct of the dispersers of the meeting can have no 
 bearing on the intention and object of the meeting itself; in other words, 
 it is irrelevant to the matters in issue. (c) In such a prosecution, as the 
 material points for the consideration of the jury are, the general character 
 and intention of the assembly, and the particular case of each defendant 
 as connected with that general character, it would be relevant to prove, 
 on the part of the prosecution, that bodies of men came from different 
 parts of the county to attend the meeting, arranged and organized in 
 the same manner, and acting in concert. It would be relevant also to 
 show, that early on the day of the meeting, in a spot at some distance 
 from the place of meeting, (from which very spot a body of men came 
 afterwards to the place of meeting,) a great number of persons, so 
 organized had assembled, and had there conducted themselves in a dis- 
 loyal, riotous or seditious manner. (d\ Further, it would be relevant, 
 on such a trial, to produce in evidence certain resolutions, which had 
 been proposed, by one of the defendants, at a *large assembly in ano- *782 
 ther part of the country, very recently held for the same professed object 
 and purpose, as were avowed by the meeting in question, that defend- 
 ant having acted at both meetings as president or chairman ; in a ques- 
 tion of intention, as this is, it is most clearly relevant to show, against 
 that individual that, at a similar meeting, held for an object professedly 
 similar, such matters had passed under his immediate auspices. (e) 
 
 In cases of treason and felony, it may be proved that articles were Articles 
 found secreted in the prisoner's house, after his apprehension. In Wat- foun ' 1 in , 
 
 r . . . c ill prisoner s 
 
 son's case, evidence was admitted that a quantity of pikes had been house after 
 found secreted in the prisoner's house subsequently to his apprehen- ^ 1S appre- 
 
 • liGiision * 
 
 sion.(/) With respect to writings found after the prisoner's apprehen- writings 
 
 (b) The prosecutor must, before the trial, give the defendant a note of the particular cast 
 of barratry he intends to prove against him ; and will not be at liberty to give evidence of 
 any other. Ante, vol 1, p. 184. 
 
 (c) Rex v. Hunt,* 3 B. & A. 566, 577. 1 Phill. Ev. 476. See also Redford v. Burley,'> 3 
 Stark. N. P. C. 87,88, 91. 
 
 (d) Ibid. 
 
 \ej Rex v. Hunt, 3 B. & A. 566, 577. 1 Phill. Ev. 477. See also Redford v. Burlev,<< 3 
 Stark. N. P. C. 87, 88, 91. 
 
 (/) 2 Stark. N. P. C. 137.° Lord Ellenborough, in giving his opinion on this point, cited 
 from recollection, -where a butler to a banker at Malton, had been taken up upon suspicion 
 of having committed a great robbery; the prisoner had been seen near the privy, and this 
 
 a Eng. Com. Law Keps. v. 377. b lb. xiv. 106. c lb. v. 377. d lb. xiv. 160. 
 
 e lb. iii. 273. 
 
 Vol. ii. — 51
 
 782 OP EVIDENCE. [BOOK VI. 
 
 found after gion it appears to have been laid down in Hardy's case,(#) that papers 
 't'l'ii-Xen f° un d * n * ne possession of conspirators with the prisoner, but subse- 
 sion. quently to his apprehension, ought not to be read against him, unless 
 
 there was evidence to show their previous existence ; for otherwise there 
 was no evidence that the prisoner was a party to it. And on a prose- 
 cution against Hevey, Beatty, and M'Carty, for a conspiracy, it was 
 held that some letters which were directed to the prisoners, and inter- 
 cepted at the post office after their apprehension, were not admissible in 
 evidence against them, as they had never been in the custody of the 
 prisoners or in any way adopted by them. ( A) So on an indictment for 
 uttering a forged bank note, knowing it to be forged, it was held that 
 a letter purporting to come for the prisoner's brother, and left by the 
 postman pursuant to its direction at the prisoner's lodgings, after he was 
 apprehended, and during his confinement, but never actually in his 
 custody, could not be read in evidence as proof of his knowledge that 
 the note was forged. (i) But in Watson's case,(_/) it was held that 
 papers found in the lodgings of a conspirator at a period subsequent to 
 the apprehension of the prisoner, might be read in evidence, although 
 no absolute proof was given of their previous existence, where strong 
 presumption existed that the lodgings had not been entered by any one 
 in the interval between the apprehension and the finding, and where the 
 papers were intimately connected with the objects of the conspiracy as 
 *783 detailed in evidence. (&) Writings found in the ^prisoner's possession, 
 Writings but not published, if plainly connected with the treasonable design 
 trisoner's cnar g e( ^> are evidence of such design upon an indictment for treason, 
 possession, though not published. (£) But it seems, that if it be doubtful whether 
 ,hou s|? not they are so connected, they are not admissible. (ni\ In Watson's case, 
 may be ' one of the objections made to the admission of a paper found in the 
 read, if house of a co-conspirator was, that there was no proof that it had been 
 
 rclcvuiifc to • «• 
 
 the charge published ; and Sidney's case was cited ; but the court distinguished 
 in the in- that case from the present, and Abbott, J., said that he had always 
 men . un( jerstood the ground of objection in Sidney's case was, not that the 
 papers had never been published, but that they had no relation to the 
 treasonable practices charged in the indictment, and he referred to 
 1 East's P. C. 119, where it said, "writings plainly applicable to some 
 treasonable design in contemplation, are clear and satisfactory evidence 
 of such design, although not published." If, say Mr. J. Foster and Mr. J. 
 Blackstone, " the papers found in Sidney's closet had been plainly rela- 
 
 circumstance having excited suspicion in the minds of the counsel, who considered the case 
 during the assizes at York, at their instance search was made, and in the privy all the plate 
 was found. The plate was produced, and the prisoner was, in consequence, convicted ; he 
 had been separated from the custody of the plate, since he had been confined in York Castle, 
 for some time ; but no doubt was entertained as to the- admissibility of the evidence. 
 Abbott, C. J., also observed, that an assize had scarcely ever occurred, where it did not 
 happen that part of the evidence against a prisoner consisted of proof that the stolen pro- 
 perty was found in his house after his apprehension. See Reg. v. Courvoisier," 9 C. & P. 362. 
 
 (g) 24 How. St. Tr. 452. 
 
 \h) Hevey, Beatty, and M'Carty's case, 1 Leach, 235. 
 
 (i) Huet's case, 2 Leach, 820. (/) 2 Stark. N. P. C. 140.° 
 
 (k) A letter found upon the prisoner may be read, but it is no evidence of the facts it states. 
 Thus, on an indictment against a person employed in the post-office for secreting a letter 
 containing a bill of exchange, the contents of the letter, which was found upon him, were 
 held inadmissible to prove that the bill was enclosed in it. Rex v. Plumer, Russ. & Ry. 264. 
 
 (1) Rex v. Watson, 2 Stark. N. P. C. 141. ( m ) Ibid. 
 
 a Eng. Com. Law Reps, xxxviii. 155. b lb. iii. 273. ° lb. iii. 273.
 
 CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 783 
 
 tive to the other treasonable practices charged in the indictment, they 
 might have been read in evidence against him." That was the objection 
 which had constantly been made to the reception of the evidence in 
 Sidney's case. The paper there was not only an unpublished paper, 
 but appeared to have been composed several years before the crime 
 charged to have been committed.^) 
 
 If the papers found in the prisoner's custody be plainly relative to Without 
 the design charged, they may be read in evidence without any proof of £™° f °^ 
 the handwriting being that of the prisoner.(o) prisoner's 
 
 On an indictment against a county for not repairing a public bridge, handwrit - 
 the defendants may show under the general issue that the bridge had 0n ' in _ 
 been repaired from time to time by private individuals : for one ques- dictment 
 tion is, whether the bridge is a public bridge ; and upon that question it a s aiast » 
 
 ., . • 11 i- l •!?, county for 
 
 is material to inquire by whom and in what manner it had been re- not repair- 
 paired, with a view of ascertaining whether those repairs were adapted j°? a 
 to the service of the public, or merely to the purposes of ornament or dence may 
 private convenience.(p) It is one medium of proof to show that the be given 
 bridge has been repaired by individuals, though that one alone would dualshave 
 be of very little weight.^) repaired it. 
 
 In a question put by the House of Lords to the judges, in the course Whether a 
 of the proceedings in the Queen's case, it was assumed, that proof of the P r ^ soner 
 existence of a conspiracy between the prosecutor and others to suborn defence 
 witnesses against the accused, is a legitimate ground of defence. Lord S ive evi " 
 Chief Justice Abbott, in delivering their opinion, observed, that the a conspira- 
 iudges understood that such an assumption had been made in the ques- c y t0 sub - 
 
 . . orn wit- 
 
 tion put to them, and that the House did not ask their opinion on that negS es 
 point ;(r) from which it may perhaps be inferred, that their lordships against 
 had doubts whether such a defence is allowable. 
 
 In civil suits, as the evidence is to be confined to the points in issue, 
 the character of either party cannot be inquired into, unless *it is put in *784 
 issue by the nature of the suit itself.(s) In criminal proceedings, the Evidence 
 prosecutor being usually also a witness, his character may be attacked ter 
 in the prisoner's defence, in the same way as is applicable to the im- Character 
 peachment of the credit of witnesses generally. In the particular " ut ^ ose " 
 instance of an indictment for a rape, or for an assault with an intent to 
 commit a rape, evidence is admissible on the part of the prisoner, not 
 merely, as in the case of an ordinary witness, that from her general 
 bad character the prosecutrix ought not to be believed on her oath, but 
 her character as to general chastity may be impeached by general 
 evidence. (<)f And although evidence of particular facts to impeach 
 her chastity was once held inadmissible, (m) Yet it has since been held 
 that the prosecutrix may be cross-examined as to particular discredita- 
 ble transactions;^) and as to her having had connexion with the pri- 
 soner previously to the alleged rape;(«>) and if she deny such con- 
 nexion, the prisoner may show that she has been previously connected 
 
 (n) 2 Stark. N. P. C. 147. a (o) 1 East, P. C. c. 11, s. 56, p. 119. 
 
 (p) Rex v (Inhabs.) Northamptonshire, 2 M. & S. 262. (q) 1 Phill. Ev. 170, 7th ed. 
 
 (r) The Queen's case, 1 * 2 Brod. & Bing. 910, 911. (*) 1 Phill. Ev. 17(3, 7th edit. 467. 
 
 (t) Ante, vol. 1. p. GOO. (u) Rex v. Hodgson, Buss. & Ry. C. C. 211. Ante, vol. 1, 690. 
 (v) Rex v. Barker," 3 C. & P. 589, ante, vol. 1, p. 691. 
 (w) Rex v. Martin,* 6 C. & P. 562, ante, vol. 1, p. 691. 
 
 •j- [In bastardy cases the general character of the prosecutor for chastity may be inquired 
 into. Short v. The State.] 
 
 » Eng. Com. Law Reps. iii. 273. b lb. vi. 129. « lb. xiv. 467. d lb. xxv. 544.
 
 784 OF EVIDENCE. [BOOK VI. 
 
 with him. (a;) And in actions for seducing it has been held that the 
 daughter of the plaintiff may be cross-examined as to her having had 
 connexion with particular persons, at particular times and places, and 
 if she deny it, witnesses may be called to contradict her as to such par- 
 ticular facts. (^) 
 Evidence In all criminal prosecutions the prisoner is always permitted to call 
 of P ns °- witnesses to speak of his general character, (z) who are usually ex- 
 okaraeter : amined in his behalf, as to how long they have known him, and what 
 his general character for honesty, humanity, or peaceable conduct, (ac- 
 cording to the nature of the offence charged) has been during that time. 
 mustbeap-The inquiry ought manifestly to bear some analogy and reference to 
 plicable to t k e nature f the charge against the prisoner. On a charge of stealing 
 eharge; it would be irrelevant and absurd to inquire into his loyalty or 
 humanity ; on a charge of high treason, it would be equally absurd to 
 inquire into his honesty and punctuality in private dealings. (a) The 
 must not inquiry must also be made with reference to the general character of 
 refer to ^he prisoner ; for it is general character alone which can afford any 
 partieu ai ^ gt ^ general conduct, or raise a presumption that the person who 
 had maintained a fair reputation down to a certain period, would not 
 then begin to act an unworthy part ; and, therefore, proof of particular 
 transactions, in which the prisoner may have been concerned, are not 
 admissible. (&)"}" 
 *785 I* i s not tne practice to cross-examine witnesses to character, *unless 
 
 there be some definite charge against the prisoner, to which to cross- 
 examine them.(c) 
 
 (x) Rex v. Aspinall, 3 Stark. Ev. 952, ante, vol. 1. p. 691. 
 
 (v) Verry v. Watkins,* 7 C. & P. 308, Grinnell v. Wells, Gloucester Sp. Ass. 1843, Erskine, 
 J., MS, C. S. G. And see Andrews v. Askey, b 8 C. & P. 7, ante, vol. 1, p. 691. 
 
 (z) Formerly evidence of the prisoner's good character was admitted in capital cases only, 
 infavorem vitce. Rex v. Harris, 2 St. Tr. 1038. The evidence is now admitted in all prosecu- 
 tions which subject a man to corporal punishment ; but not in actions or informations for 
 penalties, though founded on the fraudulent conduct of the parties. Peake's Ev. 7. The true 
 line of distinction, C. B. Eyre observed, is this : in a direct prosecution for a crime such evi- 
 dence is admissible ; but where the prosecution is not directly for the crime, but for the 
 nenalty, it is not. Attorney General v. Bowman, cited 2 Bos. & Pul. 582. 
 
 (a) 1 Phill. Ev. 469. {See 2 Overton, 94, Wallace v. Clark.} (b) Ibid. 
 
 (c) Rex v. Hodgkiss, 7 C. & P. 398, Alderson, B. It sometimes, however, is proper to 
 ascertain from the witnesses whether they have had sufficient opportunities of knowing the 
 
 f [If on the trial of an indictment, the defendant introduces evidence of his good character 
 prior to the alleged commission of the crime charged, it is competent to the government to 
 prove that subsequently to that time his character had been bad. Commonwealth v. Sachet, 
 22 Pick. 394. Good character is available only in doubtful cases. Bennett v. The State, 
 8 Humphreys, 118. 
 
 In criminal cases the prisoner's character cannot be put in issue by the State unless he open 
 the door by giving testimony to it. But it is not a conclusion of law, that from his silence 
 the jury are to believe he is a man of bad character. State v. O'Neil, 7 Iredell, R. C. 251. 
 
 Where no evidence of general character has been given, the subject of character is not one 
 for the consideration of the jury. Therefore, when on the trial of an "indictment for murder, 
 the evidence was circumstantial, and the judge instructed the jury that fair character was 
 important to the prisoner, and that they were to inquire why it was that she had given no 
 evidence of her general character.'" Held, that such instruction suggested the inference 
 that her character was bad, and was erroneous. The People v. Bodine, 1 Davis, 281. 
 
 On a trial for murder, evidence of the character of the deceased as a violent man, is not 
 admisssible for the defendant. State v. Hawley, 4 Harrington, 562. 
 
 In a criminal prosecution the defendant cannot prove particular acts of his good conduct, 
 neither can the State prove particular acts of his bad conduct; but proof of general char- 
 acter is alone admissible. Engleman v. The State, 2 Carter, 92. See as to evidence of defen- 
 dant's character, Commonwealth v. Webster, 5 Cushing, 295. Ackley v. People, 9 Barbour, 
 Sup. Ct. 609. Schaller v. The Slate, 14 Missouri, 502.] 
 
 » Eng. Com. Law Reps, xxxii. 520. b lb. xxxiv. 270. • lb. xxxii. 515.
 
 CHAP. II. § II.] EVIDENCE CONFINED TO POINT IN ISSUE. 78f) 
 
 Soon after the passing of the G & 7 Wm. 4, c. 114, the allowing per- 
 sons indicted for felony to make their defence by counsel or attorney, 
 the judges promulgated, amongst others, the following rule of practice 
 in cases of felony ; that, " if the only evidence called on the part of the 
 prisoner, is evidence to character, although the counsel for the prose- 
 cution is entitled to the reply, it will be matter for his discretion whe- 
 ther he will use it or not. Cases may occur in which it may be fit and 
 proper so to do."(<Z) And it has been held since in a case of felony 
 that the counsel for the prosecution has in strictness the right to reply,(e) 
 on the whole case and not merely on the evidence to character//) 
 although the counsel for the prisoner only calls witnesses to character ; 
 but this is not a right which in practice ought to be exercised, except 
 under very special circumstances.^) 
 
 The practice in cases of misdemeanor has uniformly been that when 
 witnesses have been called, on the part of the accused, to character only, 
 and for no other purpose, the counsel for the prosecutien has not ad- 
 dressed the jury in reply,(A) but it seems that in strictness the right 
 exists in cases of misdemeanor, though it ought rarely, if ever, to be 
 exercised, (i) 
 
 The 6 & 7 Wm. 4, c. Ill, expressly provides that " if upon the trial 6 & 7 Wm. 
 of any person for any subsequent felony, such person shall give evidence ' c- . ' 
 of his or her good character, it shall be lawful for the prosecutor in an- conviction, 
 swer thereto, to give evidence of the indictment and conviction of such 
 person for the previous felony before the verdict of guilty of such sub- 
 sequent felony shall have been returned, and the jury shall inquire con- 
 cerning such previous conviction for felony at the same time that they 
 inquire concerning the subsequent felony." If a prisoner cross-examines 
 the witnesses for the prosecution as to his character, he " gives evi- 
 dence" within the meaning of this section, and the previous conviction 
 may be proved. (iV) 
 
 It has been usual to treat the good character of the party accused as Method of 
 evidence to be taken into consideration only in doubtful cases. Juries Ie ^ ins , 
 
 i Hi i t i i i ,. i i evidence of 
 
 have generally been told that where the tacts proved are such as to prisoner's 
 satisfy their minds of the guilt of the party, character however excellent cuai " acter 
 is no subject for their consideration ; but that when they entertain any 
 doubt as to the guilt of the party, they may properly turn their atten- 
 tion to the good character which he has received. It is, however, sub- 
 mitted with deference that the good character of the party accused, 
 satisfactorily established by competent witnesses, is an ingredient which 
 ought always to be submitted to the consideration of the jury, together 
 with the other facts and circumstances of the *case. The nature of the *786 
 charge and the evidence by which it is supported, will often render 
 such ingredient of little or no avail ; but the more correct course seems 
 to be, not, in any case, to withdraw it from consideration, but to leave 
 
 prisoner's character ; as whether they have lived near him or known him, down to the. 
 time of the commission of the offence. C. S. G. 
 
 (d) Rules of Practice in cases of felony, promulgated by the judges before the Spring 
 Circuit of 1837. 7 C. & P. 6l6*post, p. 815. 
 
 (f) Rex v. Stannard, b 7 C. & P. 673, Patteson, J., and Williams, J. 
 
 (/) Reg v. Whiting, 7 C. & P. 771, Bolland, P. (g) Rex v. Stannard, supra. 
 
 (h) Per Patteson, J., in Rex v. Stannard, d 7 C. & P. 673. 
 
 (i) Rex v. Stannard, supra, per Patteson, J., and Williams, J. 
 
 («) Reg. v. Gadbury, 8 C. & P. 676, ante, p. 130. 
 
 a Eng. Com. Law Reps, xxxii. 682. b lb. xxxii. 681. c lb. xxxii. 728. 
 
 d lb. xxxii. 681. e lb. xxxiv. 270.
 
 786 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 the jury to form their conclusion, upon the whole of the evidence, whe- 
 ther an individual whose character was previously unblemished, has or 
 has not, committed the particular crime for which he is called upon to 
 answer. {fft 
 
 The prosecutor cannot enter into the defendant's character, unless the 
 defendant enable him to do so, by calling witnesses in support of it : 
 and even then the prosecutor cannot examine to particular facts, the 
 general character of the defendant not being put into issue, but coming 
 in collaterally.^//)! 
 
 Prosecutor 
 csiunot 
 show t ho 
 prisoner's 
 bad cha- 
 racter. 
 
 SECT. III. 
 
 What Allegations must be Proved, and what may be Rejected. 
 
 lit. What 
 
 proved. 
 
 Surplu- 
 sage. 
 
 In the present section it is proposed to consider, 1st, What allega- 
 tions in an indictment must be proved to support it, and what may be 
 disregarded in evidence ; and, therewith, of the subjects of surplusage, 
 and the divisibility of averments. 2dly, With what precision those 
 allegations, which cannot be disregarded in evidence, must be proved ', 
 and, therewith, of the subject at variance. 
 
 1st. What allegations must be proved, and what may be disregarded 
 allegations j n eyjjjence. In order to convict a man of an offence, all the material 
 
 must be ' 
 
 facts which constitute the offence, and which are necessary to enable the 
 parties to avail themselves of the verdict and judgment, should the same 
 charge be again brought forward, must be stated upon the indictment ; 
 and all these requisite allegations must be satisfied in evidence, and 
 proved as laid. But allegations not essential to such a purpose, which 
 might be entirely omitted, without affecting the charge against the pri- 
 soner, and without detriment to the indictment, are considered as mere 
 surplusage, and may be disregarded in evidence. (k\ Thus, where the 
 
 (./) In Rex v. Stannard," 7 C. & P. 673, Patteson, J., said, "I cannot in principle make 
 any distinction between evidence of facts and evidence of character; the latter is equally 
 laid before the jury as the former, as being relevant to the question of guilty or not guilty; 
 the object of laying it before the jury is to induce them to believe, from the improbability 
 that a person of good character should have conducted himself as alleged, that there is some 
 mistake or misrepresentation in the evidence on the part of the prosecution, and it is strictly 
 evidence in the case." And per Williams, J., " It is evidence to be submitted to the jury to 
 induce them to say whether they think it likely that a person with such a character would 
 have committed the offence." 
 
 (jj) Bull. N. P. 296, citing Martyn v. Hind, Cowp. 43*7. The ordinary course, however, is 
 to ask the witness whether he has not heard that the prisoner has been tried for a particular 
 offence. C. S. G. 
 
 (k) Rex v. Holt, 2 Leach, 593. 1 Phill. Ev. 598. 
 
 f {See Coxe's (N. J.) Rep. 424. State v. Wells. 2 Mass. Rep. 317, Commonwealth v. Hardy. 
 2 Stark. Ev. 365, et seq.} [New ed. 214.] 
 
 X [On a trial for murder, the character of the deceased as a violent man, is not admissible 
 in evidence. The State v. Thawley, 4 Harring. 562. 
 
 The reputation of a man who has been killed as to his being quarrelsome and quick tem- 
 pered, cannot be admitted in evidence on the trial of the murderer, except the evidence of 
 the killing be wholly circumstantial. The State v. Barfield, 8 Iredell, 344. 
 
 It is not competent on the trial of a white man for the murder of a slave, to prove that the 
 Blave was generally insolent and impudent to white persons, though not so at the time of his 
 death to the prisoner who caused it. Tally v. The State, 13 Smedes & Marshall, 223. 
 
 The general reputation of a kidnapper is evidence of the intent with which the defendant 
 aided such kidnapper in carrying off a free negro. The Slate v. Harten, 4 Harrington, 58 2.] 
 a Eng. Com. Law Reps, xxxii. 681.
 
 CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 786 
 
 prisoner was charged with robbery near the highway, in a case tbat Examples 
 occurred soon after the 3 W. & M. c. 9, (which took away clergy from age?* 1 ^ U& 
 all robberies, whether near the highway or elsewhere,) and a robbery 
 in a house was the offence proved, all the judges were of opinion that 
 the prisoner was ousted of the benefit of the clergy.(Z) So upon an in- 
 dictment which charged the *prisoners with robbing a person in a field, *787 
 near the highway, where the jury found a verdict, "guilty of the rob- 
 bery, but not near the highway," it was holden by all the judges, that 
 the prisoners were ousted. (m) So where Pye was convicted upon an 
 indictment, which charged him with robbing Fernhough in the dwelling- 
 house of Aaron Milday, and it was proved that the robbery was com- 
 mitted in a house, but it did not appear who was the owner of it ; on 
 reference to the judges, they all held the conviction proper, (n) In Min- 
 ton's case, the indictment charged, that she feloniously, &c, in the night 
 time, set fire to the barn of P. G., and burned the same. The jury 
 found the prisoner guilty of setting fire to and burning the barn, but 
 not in the night time. And the judges held that she was properly con- 
 victed, (o) Upon an indictment on the 8 & 9 Wm. 3, c. 26, s. 1, (now 
 repealed,) for having a die made of iron and steel in possession, with- 
 out lawful authority, the judges, on a case reserved for their opinion, 
 held that as it was immaterial to the offence of what the die was made, 
 proof of a die, either of iron or of steel, or both, would satisfy this 
 charge. (p) So where the indictment was upon the repealed statute 4 
 Geo. 2, c. 32, "for stealing so much lead belonging to the Rev. G. C. 
 W., and then and there fixed to a certain building called "Hendon 
 Church;" Buller, J., thought the charging the lead to be the property 
 of any one was absurd and repugnant, property (in this respect) being 
 only applicable to personal things ; that it should only have been charged 
 to be lead affixed to the church ; and that therefore the allegation as to 
 property ought to be rejected as surplusage. (§■) 
 
 In Rex v. Holt, which was an ex officio information for a libel, the 
 information stated, that before the publishing of the libel, the king had 
 issued a proclamation ; that after the said proclamation had been issued, 
 divers addresses on the occasion of such proclamation had been pre- 
 sented to his majesty by divers of his subjects ; it then proceeded to state 
 that the defendant, well knowing the premises, &c, but intending to 
 bring the said proclamation into contempt, &c, and to stir up sedition, 
 &c, publishes the libel in question, entitled " a letter addressed to the 
 addressers on the late proclamation," which was averred to mean his said 
 majesty's proclamation, after which followed the proclamation. After 
 conviction, it was objected, on behalf of the defendant, that there was 
 no legal evidence at the trial to prove that the addresses had been pre- 
 sented to the king. Buller, J., after stating his opinion that the fact 
 
 (I) Ante, vol. 1, p. 904. Summers's case, 2 East, P. C. c. 16, s. 168, p. 785. 
 
 (to) Ante, vol. 1, p. 904. Wardle's case, Russ. & Ry. C. C. R. 9. S. C. 2 East, P. C. c. 
 16, s. 168, p. 785. 
 
 (n) Pye's case, 2 East, P. C. c. 16, s. 168, p. 785, 786. Ante, vol. 1, p. 904, S. P. by all 
 the judges in Johnstone's case, ibid. 
 
 (o) Minton's case, 2 East, P. C. c. 21, s. 5, p. 1021. 
 
 (p) Rex v. Oxford, Russ. & Ry. C. C. R. 332. Rex v. Phillips, ibid. 3G9. 
 
 (q) Rex v. Hickman, 1 Leach, 318. S. C. 2 East, P. C. c. 16, s. 31, p. 593. On the 
 authority of this case, Holroyd, J., doubted whether, on an indictment on the repealed stat. 
 3 Wm. & M., c. 9, s. 5, for stealing in a lodging let to the prisoner, the allegation of the 
 person by whom the lodging was let, might not be rejected as surplusage. Rex v. Healey, 
 R. & M. C. C. R. 1.
 
 787 OF EVIDENCE. [BOOK VI. 
 
 had been sufficiently proved, observed, " However, on this information^ 
 I do not think the prosecutor need have given any evidence at all o 
 these addresses ; the averment respecting these addresses seems unne 
 *788 cessary; for the information, after stating the proclamation and *the 
 addresses, charges the defendant with a seditious intent to bring the said 
 proclamation into contempt, without noticing the addresses again. The 
 distinction between material and immaterial averments is perfectly well 
 settled ; if the averment be material, that is, if it be connected with the 
 charge, it must be proved ; but if it be totally immaterial, and if the 
 libel be not connected with the averment, it need not be proved. "(r) 
 Deserip- In considering the subject of surplusage, it must always be remem- 
 
 ments VCr bered, that it is a most general rule, that no allegation, whether neces- 
 Xo allega- sary or unnecessary, which is descriptive of the identity of that which 
 uon can j g i eg . a ]iy essential to the charge in the indictment, can ever be re- 
 be reacted i mi •/» ll i-l 1" 
 
 which is jected.(s) Thus, if a man were to be charged with stealing a black horse, 
 descriptive t] ie allegation of colour, although unnecessary, yet being descriptive of 
 of any that which is material, could not be rejected. (t) So where the prisoner 
 thing es- was indicted on the Black Act for maliciously shooting at H. Sandon in 
 the charge. tne dwelling-house of James Brewer and John Sandy ; and it appeared 
 upon the evidence, that it was in the dwelling-house of John Brewer 
 and James Sandy; the court held the variance fatal, and said that the 
 prosecutor had thought proper to state the names of the owners of the 
 house where the fact was charged to have been committed, and that 
 although perhaps that averment was not necessary, (the statute saying 
 who shall maliciously shoot at any person in any dwelling-house or other 
 place,} yet having averred that it was the house of James Brewer and 
 John Sandy, he was bound to prove it as laid.(w) So upon an indict- 
 ment under the 57 Geo. 3, c. 90, (now repealed,) for being found armed 
 with intent to destroy game in a certain wood " called the old walk of, 
 and belonging to, and then in the occupation of, John James, Earl of 
 Waldegrave," it was proved that the wood in question was in the occu- 
 pation of the Earl of Waldgrave ; but it was also proved that the wood 
 had always been called the long walk, and had never been called or 
 known by the name of the old walk. And upon a case reserved for the 
 opinion of the judges, it was held, that though it is not necessary, where 
 the name of the owner or occupier of the close is stated, to state 
 the name of the close also, yet that the averment could not be rejected, 
 and the variance was fatal, (w) So where the indictment was for 
 breaking, &c, the house of J. Davis, "with intent to steal the goods 
 of J. Wakelin, in the said house being, and there was no such person 
 who had the goods in the house, but J. W. was put by mistake for J. 
 D. : the prisoner was held entitled to an acquittal ; and it was ruled, 
 that the words " of J. W." could not be rejected as surplusage, for the 
 words were sensible and material, it being material to lay truly the pro- 
 perty in the goods; and without such words the description of the 
 
 (r) Rex v. Holt, 5 T. R. 436. S. C. 2 Leach, 593. See also Rex v. Phillips, 3 Camp. 74. 
 Ante, vol. 1, p. 672. 
 
 (*) 1 Stark. Ev. 433. 
 
 (t) 1 Stark. Ev. 434. So upon an indictment for stealing four live tame turkeys, the 
 judges held that the word " live," being a description of the quality of the thing stolen, could 
 not be rejected as surplusage. Rex v. Edwards and Walker, Russ. & Ry. C. C. R. 497. 
 
 (u) Duroure's case. 1 East, P. C. 415. S. C. 1 Leach, 351 : but see Pye's case, and 
 Johnstone's case, ante, p. 787. 
 
 (r) Rex v. Owen, R. & M. C. C. R. 118.
 
 CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 788 
 
 offence would be incomplete. (zc) This is not like the case of laying a 
 robbery* in the dwelling-house of A., which turns out to be the dwelling- *789 
 house of B., because that circumstance is perfectly immaterial in rob- 
 bery.^) Where an indictment for stealing a bank-note, described it 
 as signed by A. Hooper, for the Governor and Company of the Bank 
 of England, it was held by the judges, on a case reserved, that there 
 could be no conviction without evidence of the signature being by A. 
 Hooper. (y\ 
 
 So the name of the person in whom the property which is the sub- Name of 
 ject of the charge is laid, or on whom the offence is stated to have been the P art y- 
 committed, cannot be rejected as surplusage, but must be proved, both 
 as to Christian and surname, according to the indictment, for if the 
 names there stated are not his real names, or the names by which he is 
 usually known, the prisoner must be acquitted. (z\ But if there be a 
 sufficient description of the person and degree of the owner of the pro- 
 perty, which is supported in evidence, any subsequent addition may, it 
 seems, be rejected as surplusage. Thus, where in an indictment for 
 larceny, before the Irish Union, the goods stolen were stated to be the 
 property of " James Hamilton, Esq., commonly called Earl of Clan- 
 brassil, in the kingdom of Ireland," and it appeared in evidence, that 
 the prosecutor was an Irish peer, viz., Earl of Clanbrassil, in Ireland, 
 the judges on a case reserved, were of opinion that, though the correct 
 mode of describing the person of the prosecutor would have been 
 "James Hamilton, Esq., Earl of Clanbrassil, in the kingdom of Ire- 
 land/' yet as "James Hamilton, Esq.," was a sufficient description of 
 his person and degree, the subsequent words " commonly called Earl 
 of Clanbrassil, in the kingdom of Ireland," might be rejected as sur- 
 plusage, (a) 
 
 Although it be true, as above stated, that in order to convict a man Conviction 
 of an offence, that offence must be completely averred in the indictment, P ro tant0 - 
 and the evidence must correspond with and support the whole of the 
 material averments, yet it by no means follows that it is necessary to 
 prove the offence charged in the indictment to the whole extent laid, for 
 it is fully settled, that in criminal cases, it is sufficient for the prosecu- 
 tor to prove so much of the charge as constitutes an offence punishable 
 by law. (b) *" The distinction," said Lord Ellenborough, in the case *790 
 
 (w) Jenks's case, 2 East, P. C. c. 15, s. 25, p. 514. So also on an indictment for burglary, 
 where the name of the owner of the dwelling-house is mis-stated, the error is fatal. Ante, 
 vol. 1, p. 826. 
 
 (x) Ibid. 
 
 (?/) Rex v. Craven, Russ. & Ry. C. C. R. 14. 
 
 (z) See post, p. "795, as to variances in respect of the name of the party injured. 
 
 (a) Rex v. Graham, 2 Leach, 547. From what is said in the latter part of the opinion of 
 the judges, as delivered by Perryn, B., it is not clear whether their lordships thought the 
 words stated above should be rejected as surplusage, or only the words "commonly called." 
 In a case before Mr. Burroughs, where the prisoner was indicted for stealing goods, laid to 
 be the property of Andrew Wm. Gother, Esq., and it appeared on the cross-examination of 
 the prosecutor, that he was not an esquire, whereupon it was objected that it was a fatal 
 variance; the learned judge overruled the objection, and held that the addition of esquire 
 to the name of the person in whom the property was laid, was mere surplusage, Rex v. 
 Ogilvie, a 2 C. & P. 230. It has been said, however, that where the person injured has a name 
 of dignity, as a peer, baronet, or knight, he should be described by it; and that if he be 
 described as a knight, when he is in fact a baronet, or the contrary, the variance would be 
 fatal ; because a name of dignity is not merely an addition, but is actually part of the name, 
 Archb. Cr. P. 30. 
 
 (b) Rex v. IIollingberry, b 4 B. & C. 329. This rule, however, must be understood, as it 
 
 a Eng. Com. Law Reps. xii. 103. b lb. x. 34G.
 
 790 OF EVIDENCE. [BOOK VI. 
 
 It is suffi- of Rex v. Hunt,(c) " runs through the whole criminal law, and it is in- 
 dent to var i a "bly enough to prove so much of the indictment as shows that the 
 much of defendant has committed a substantive crime therein specified. "(^)f 
 the indict- q q a c b ar g e of petit treason, if the killing with malice were proved, but 
 constitutes no circumstances of aggravation were proved to make the offence trea- 
 a crime sonable, the prisoner might have been found guilty of the murder. (e) 
 byTaw? 6 If A. be charged with the murder of B., i. e. with feloniously killing 
 B. of malice prepense, and all but the fact of malice prepense be proved, 
 A. may clearly be convicted of manslaughter, for the indictment con- 
 tains all the allegations essential to that charge ; A. is fully apprised of 
 the nature of it, the verdict enables the court to pronounce the proper 
 judgment, and A. may plead his acquittal or conviction in bar of any 
 subsequent indictment founded on the same facts. (/) 
 
 On an indictment for burglary and stealing goods, if it appear that no 
 burglary was committed, as where the breaking and entering were not 
 in the night, or on a charge of robbery, where the property was not 
 taken from the person by violence, or by putting in fear, the prisoner 
 may be found guilty of the simple larceny only.(^) 
 
 On an indictment for stealing in a dwelling-house, persons being 
 therein and put in fear, the prisoner may be convicted of simple lar- 
 
 should seem, with this qualification ; that if a prisoner be indicted for murder or felony, he 
 cannot be convicted of a misdemeanor, except in the case of felonies including assaults. 
 See vol. I. p. 778, et seq. Thus, where upon the facts stated upon a special verdict upon an 
 indictment for felony, the Court of King's Bench was of opinion that the prisoner could not 
 be convicted of felony, the Chief Justice (Sir Wm. Lee,) started a question, whether, as the 
 case amounted undoubtedly to a great misdemeanor, they could not give judgment as for a 
 trespass: and the counsel for the crown, in support of the power of the court to do so, cited 
 2 Hawk. P. C. c. 440, and Cro. Jac. 497. Martin Leeser's case, 1 And. 351. Kel. 29. Dalt. 
 331. E contra, it was insisted that by this means a defendant would be deprived of many 
 advantages: for if he was indicted properly, he might have counsel, a copy of his indict- 
 ment, and a special jury. The court ordered the prisoner to be discharged ; and said, that 
 in the cases cited pro rege, the judges appear to have been transported with zeal too far. 
 Eex v. Westbeer, 2 Stra. 1133. S. C. 1 Leach, 12. {See also 7 Mass. R. 249, Common- 
 wealth v. Newill & al.{ 
 
 (c) 2 Campb. 585. 
 
 (d) The same distinction applies to the averments in the indictment. If an offence suffi- 
 cient to maintain the indictment be well laid, it is enough, though other matters, which 
 would increase the offence, are ill averred. In a civil action, where one part of the declara- 
 tion is ill, and the jury find entire damages, the judgment must be arrested, because the 
 court cannot apportion them ; but in indictments the court assesses the fine, and they will 
 set it only according to those facts which are well laid. Reg. v. Ingram, 1 Salk. 384. 
 
 (e) Case of Swan and Jeffreys, Fost. 104. 1 Phill. Ev. 501. 
 
 (/) Mackalley's case, 9 Rep. 67 b. Co. Litt. 282 a. Gilb. Ev. 232. 
 
 (ff) 2 Hale, P. C. 302. 1 Phill. Ed. 501. So where the prisoners were acquitted of the 
 burglary, upon an indictment for a burglary and larceny, and found guilty of stealing in the 
 dwelling-honse to the amount of forty shillings, it was holden that they were excluded from 
 their clergy, though there was no separate and distinct count in the indictment on the 
 statute 12 Anne, c. 7, now repealed by the 7 & 8 Geo. 4, c. 27, and the judges were of 
 opinion that the indictment contained every charge that was necessary in an indictment 
 upon that statute. Ante, vol. 1, p. 839. Rex v. Withal, 1 Leach, 88. 
 
 f [On an indictment for an assault with intent to murder, there may be a conviction of 
 an assault simply. State v. Coy, 2 Aik. 181. Stewart v. State, 5 Ohio, 242. But on an 
 indictment for murder there cannot be a conviction of an assault with intent to murder, nor 
 vice versa. Com. v. Roby, 12 Pick. 496. Nor upon an indictment for stealing can there be 
 a conviction of receiving, &c. Ross v. The State, 1 Blackf. 391. Proof of a rape will sus- 
 tain an indictment for an attempt to commit a rape. Stale v. Shcpard, 7 Conn. 54. See 
 State v. Taylor, 2 Bailey, 49. 
 
 A defendant indicted for an assault and battery, with intent to commit murder, may be 
 convicted of a simple assault and battery, though there be no count in the indictment to 
 that effect. Greater offences embrace the lesser of a kindred character. The State v. 
 Sledman, 7 Porter, 495.
 
 CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 790 
 
 ceny.(A) And in all complicated larcenies, the prisoner may be acquitted 
 of the circumstances of aggravation, as the fear of violence, and found 
 guilty of simple larceny, (i) So upon an indictment for horse-steal- 
 ing, which is bad for not describing the animal by any term used in the 
 statute, there may be a conviction for simple larceny. (J\ So if a man 
 had been indicted upon the statute *of 1 Jac. of stabbing contra formam *791 
 statuti, the jury might acquit him upon the statute, and find him guilty 
 of manslaughter at common law.(/t) And if a man had been indicted 
 of stealing goods of the value of ten shillings, the jury might find him 
 guilty only of goods to the value of sixpence, and so guilty only of petit 
 larceny. {l\\ If an indictment for treason charge several overt acts, it is 
 sufficient to prove one.(m) If the indictment charges, that the defend- Instances 
 ant did, and caused to be done, a particular act, as "forged, and caused of divisible 
 to be forged," it is enough to prove either one or the other, (n) If the 
 defendant is charged with composing, printing, and publishing a libel, 
 he may be convicted only of the printing and publishing. (o\ So where 
 the prisoner was indicted for having published a libel of and concerning 
 certain magistrates, with intent to defame those magistrates, and also 
 with a malicious intent to bring the administration of justice into con- 
 tempt; Bayley, J., informed the jury, that if they were of opinion that 
 the defendant had published the libel with either of those intentions, 
 they ought to find the prisoner guilty. (p\ Where the indictment charged 
 the prisoner with having assaulted a female child, with intent to abuse 
 and carnally to know her; and the jury found that the prisoner as- 
 saulted the child with intent to abuse her, but negatived the intention 
 charged carnally to know her; Holroyd, J., held that the averment of 
 intention was divisible, and that the prisoner might be convicted of an 
 assault with intent to abuse simply. (cj) On an indictment on the 7 Geo. 
 3. c. 50, s. 1, (now repealed) stating the prisoner to have been employed 
 in two branches of the post-office, proof of his having been employed 
 in either, was held sufficient. (r) And in the same case, the letter em- 
 bezzled having been described in the indictment as having contained 
 several notes, proof of its having contained any one of them was held 
 sufficient. (s\ Upon an indictment for obtaining money under false pre- 
 tences, it is not necessary to prove the whole of the pretence charged, 
 proof of part of the pretence, and that the money was obtained by such 
 
 (A) Reg v. Etherington, 2 Leach, 671. S. C. 2 East, P. C. 635, ante, vol. 1, p. 851. 
 
 (i) 2 East, P. C. 184. But where upon an indictment for robbery from the person, a special 
 verdict was found, stating facts which in judgment of law did not amount to a taking from 
 the person, but showed a larceny of the party's goods ; yet as the only doubt referred to the 
 jury was, whether the prisoners were or were not guilty of the felony and robbery charged 
 against them in the indictment, the judges thought that judgment as for larceny could not 
 be given upon that finding; but they remanded the prisoners to be tried upon another 
 indictment for that offence. Ibid. 
 
 (j) Rex v. Beany, Russ. & Ry. 416. (k) 2 Hale, P. C. 302. 
 
 (I) 2 Hale, P. C. 302. The distinction between grand and petit larceny was abolished by 
 the 7 & 8 Geo. 4, c. 39. 
 
 (m) Fost. 194. 
 
 (n) By Lord Mansfield in Rex v. Middlehurst. 1 Burr. 400. 
 
 (o) Kex v. Hunt, 2 Campb. 583. Rex v. Williams, Ibid. G46. 
 
 (p) Rex v. Evans, 11 3 Stark. N. P. C. 35. 
 
 \q) Rex v. Dawson," 3 Stark. N. P. C. 62. 
 
 (V) Rex v. Ellins, Russ. & Ry. C. 0. R. 188. Ante, p. 216. And soe Shaw's case, ibid. 
 
 («) Ibid. 
 
 f [Ace. Poindexter's case, 6 Rand. 668.] 
 a Eng. Com. Law Reps. xiv. 154. b lb. xiv. 163.
 
 791 OF EVIDENCE. [BOOK VI. 
 
 part, is sufficient.(f) So an indictment for embezzling need not specify 
 the exact sum embezzled; as where the indictment charged the prisoner 
 with embezzling, among other things, notes for one pound each, and 
 evidence was given that there were one pound notes in the sum of 
 money embezzled; this was held to support the indictment.(tt) Where 
 an information for publishing a malicious and seditious libel, contained 
 an averment that outrages had been committed in and in the neighbour- 
 hood of Nottingham ; it was held that such averment was divisible, and 
 *792 that it need not be proved that they had been *committed in both 
 places. (tA But if it be necessary to state a prescription in an indictment 
 such prescription must be proved to the whole extent laid, otherwise 
 the consequence might be, that the record would be evidence of a right 
 which had been expressly disproved at the trial, (w) 
 Joint of- Where the indictment charges several with a joint offence, any one 
 
 fence f t nem a i one ma y b e found guilty. But they cannot be found suilty 
 
 charged J ° J \ . 
 
 against separately of separate parts of the charge, and if two be so found guilty 
 
 several and separately, a pardon must be obtained, or nolle prosequi entered, as to 
 convicted, the one who stands second upon the verdict, before judgment can be 
 given against the other. Thus, where two persons, Hempstead and 
 Hudson, were indicted upon the statute of Anne for stealing in a dwell- 
 ing-house to the value of 6^. 10s., and the jur} T found Hempstead guilty 
 as to part of the articles of the value of 6^., and Hudson guilty as to 
 the residue, the judges (upon a case reserved) held, that judgment could 
 not be given against both, but that upon a pardon or nolle prosequi as 
 to Hudson, it might be given against Hempstead. (a:) 
 2dly. With 2dly. It is to be considered with what precision of proof those allecra- 
 
 what preci- .. •. . ■,■,.. 
 
 sion of tions, which cannot be disregarded in evidence, must be supported'; or, 
 proof the in other words, what is a fatal variance between a material averment in 
 which can 3 - an indictment, and the evidence adduced in support of it. The general 
 not be dis- rule on this subject is, that a variance between the indictment and the 
 regarded in ev j ( j enee j g not ma t e rial provided the substance of the matter be 
 
 evidence r 
 
 must be found. (y) 
 
 supported, Upon this principle, where an indictment for the murder of a serieant 
 
 and herein * * ■ » T i i i i i • «• «• t t 
 
 ofvariance. a t mace or the city oi London supposed that the sheriff of London, 
 Ruled that upon a plaint entered, made a precept to the Serjeant at mace to arrest 
 it will be tne defendant, and it appeared that there was not any such precept 
 prove the made, and that, by the custom of London, after the plaint entered, any 
 substance serjeant ex officio, at the request of the plaintiff, might arrest a defend- 
 'ant, absque aliquo pr&cepto, ore tenus vel aliter, it was holden that this 
 statement of the precept was but circumstance not necessary to be sup- 
 ported in evidence, and that it was sufficient if the substance of the 
 matter were proved without any precise regard to circumstance. (z\ In 
 an indictment for perjury in an answer to a bill in Chancery, the bill 
 
 (t) Rex v. Hill, Russ. & Ry. C. C. R. 190. Ante, p. 310. 
 
 («) Carson's case, Russ. & Ry. C. C. R. 303. So on an indictment for extortion, 
 alleging that the defendant extorted twenty shillings, it is sufficient to prove that he 
 extorted one shilling. Per Holt, J., Rex v. Burdett, Lord Raym. 149. See also Rex v. 
 Gillham, 6 T. R. 265. Serjeant v. Tilbury, 16 East, 416. Rex v. Hill and others, 8 1 Stark. 
 N. P. C. 359. 
 
 (») Rex v. Sutton, 4 M. & S. 532. 
 
 (m>) Rex v. Marquis of Buckingham, 4 Campb. 189. 
 
 (x) Rex v. Hempstead, Russ. & Ry. C. C. R. 344. Ante, vol. 1 p. 858. 
 
 (y) 1 East, P. C. c. 5, s. 115, p. 345. 
 
 (r) Rex v. Mackally, 9 Co. 67 a. Ante, vol. 1, p. 569. 
 
 s Eng. Com. Law Reps. ii. 426.
 
 CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 792 
 
 was stated to have been filed by A. against B. (the present defendant) 
 and another, it appeared in evidence that it was filed against B., C. and 
 D., but the perjury was assigned on a part of the answer which was 
 material between A. and B. ; and Lord Ellenborough held this not to 
 be a fatal variance. (a) 
 
 And with respect to the proof of the offence charged the rule is uni- Proof of 
 versal, that it is sufficient if the evidence agree in substance with the charged 
 averments in the indictment. Thus on an indictment for murder, it will 
 be sufficient if the manner of the death proved agree in substance with 
 that which is charged. Therefore if it appear that the party were killed 
 by a different weapon from that described,* it will maintain the indict- *793 
 inent, as if a wound or bruise alleged to have been given with a sword 
 be proved to have been given with a staff or axe, or a wound or bruise 
 alleged to have been given with a wooden staff, be proved to have been 
 given with a stone. So if the death be laid to have been by one sort 
 of poisoning, and it turn out to have been by another, the difference 
 will not be material. (b\ But if a person be indicted for one species of 
 killing, as by poisoning, he cannot be convicted by evidence of a species 
 of death entirely different, as by shooting, starving, or strangling.(c) So 
 where upon an indictment for murder, which charged that the prisoner 
 with a certain piece of brick, which he then and there held in his right 
 hand, struck and beat the deceased, thereby giving to him, with the 
 piece of brick aforesaid, one mortal wound and fracture, of which he 
 died ; it appeared probable upon the evidence, not that the prisoner 
 struck with the piece of brick, but that he struck with his fist, and that 
 the deceased fell from the blow upon the piece of brick, and that the fall 
 upon the brick was the cause of the death. The jury found that this 
 was the case. As the indictment contained no charge of throwing the 
 deceased down, the learned judge who tried the prisoner inclined to 
 think the evidence did not correspond with the charge, and reserved the 
 point for the consideration of the judges, who were unanimously of 
 opinion that the means of death were not truly stated, and that the va- 
 riance was fatal. (c?) So where the indictment stated that the prisoner 
 assaulted the deceased, and struck and beat him on the head, and then 
 and there gave him divers mortal blows and bruises of which he died ) 
 and the evidence was that the prisoner knocked the deceased down by 
 a blow on the head, and that in falling down upon the ground he re- 
 ceived the injury which caused his death ; the judges, on a case reserved, 
 held that, the cause of death not being truly stated, the prisoner could 
 not be convicted. (c\ If the indictment charges that A. gave the mor- 
 
 (a) Rex v. Benson, 2 Campb. 508. S. P. by Abbott, C. J. Rex v. Powell," R. & M. N 
 P. C. 101. 
 
 (b) Ante, vol. 1, p. 557. So where an indictment on the 43 Geo. 3, c. 58, s. 2, charged 
 the prisoner with having administered to a woman a decoction of a certain shrub called savin ■ 
 and it appeared upon the evidence that the prisoner prepared the medicine which he ad- 
 ministered, by pouring boiling water on the leaves of a shrub; the medical men who were 
 examined, stated that such a preparation is called an infusion, and not a decoction, (which 
 is made by boiling the substance in the water) : upon which the prisoner's counsel insisted 
 that he was entitled to an acquittal, on the ground that the medicine was misdescribed. 
 But Lawrence, J. overruled the objection, and said that infusion and decoction are ejusdem 
 generis, and that the variance was immaterial ; that the question was, whether the prisoner 
 administered any matter or thing to the woman to procure abortion. Rex v. Phillips 3 
 Campb. 74. 
 
 (c) See the cases on this subject collected, ante, vol. 1, p. 557. 
 
 (d) Rex v. Kelly, R. & M. C. U. R. 113, ante, vol. 1, p. 557. 
 
 (e) Rex v. Thompson, R. & M. C. C. R. 139, ante, vol. 1, p. 557. 
 
 a Eng. Com. Law Reps. xxi. 390.
 
 induce- 
 ment. 
 
 793 OF EVIDENCE. [BOOK VI. 
 
 tal blow, and that B. and C. were present, aiding and abetting, &c, but 
 on the evidence it appears that B. struck, and that A. and C. were pre- 
 sent, aiding, &c., this is not a material variance, for the stroke is ad- 
 judged in law to be the stroke of every one of them, and is as strongly 
 the act of the others, as if they all three hid held the weapon, and had 
 all together struck the deceased. The identity of the person, supposed 
 to have given the stroke, says Mr. Justice Foster, is but a circumstance, 
 and in this case a very immaterial one.(/) 
 *794 " The cases which relate to the necessity of proving particular *aver- 
 
 Matters of ments," said Mr. J. Chambers in the case of Turner v. Eyles,(#) " only 
 distinguish between that which is material, and that which is imperti- 
 nent, but make no distinction between that which is inducement, and 
 that which is the immediate cause of action." The same learned judge 
 in Smith v. Taylor,(7i) observed that " the rules of evidence, as appli- 
 cable to the allegations of a declaration, depend upon the way in which 
 the facts alleged are introduced ; if they be mere matters of inducement 
 they do not require such strict proof as those allegations which are pre- 
 cisely put in issue between the parties." And Mr. J. Buller, in Gwin- 
 net v. Phillips,(*') laid down that averments which are merely induce- 
 ment need not be precisely proved. The result of these authorities ap- 
 pears to be, that there is no difference between substantive averments 
 and those which are only inducement, as to the necessity of proving 
 them in some degree ; but that the latter do not require such strict proof 
 as the former. (j) 
 Instances But any difference in substance between the statements in the indict- 
 of fatal va- ment an j ^ e evidence, as to the offence charged, will be fatal. Thus 
 where an indictment for obtaining money under false pretences stated 
 that the defendant pretended he had paid a sum of money into the 
 Bank of England, and it appeared in evidence that he said generally, 
 the money had been paid into the Bank of England, Lord Ellenbo- 
 rough, C. J., held it a fatal variance, and acquitted the defendant. (A-) 
 Where the prisoner was indicted (on the repealed statute 15 Geo. 2, c. 
 34) for stealing a cow, and it appeared in evidence that the animal stolen 
 was a heifer, it was holden a fatal variance by the twelve judges, who 
 were of opinion that as the statute mentioned both heifer and cow, it 
 must be considered as using one term in contradistinction to the 
 other.(Af Upon the same principle, where two prisoners were tried on 
 
 (/) Ante, vol. 1, p. 410. Rex v. Mackally, 9 Rep. 67, q. Fost. 351. 1 Phill. Ev. 502. 
 
 (g) 3 B. & P. 463. (A) 1 N. R. 210. 
 
 (i) 3 T. R. 646. 
 
 (/) See ace. 1 Phil. Ev. 498. But Mr. Starkie, vol. 1, Ev. 459, note (I), observes that, 
 the distinction between the gist, and that which is the inducement is not always clear. If 
 by inducement such averments only be meant as are not material, but which, if struck out, 
 would leave a valid charge behind, there is no question; but if the term include essential 
 and material averments, then proof being necessary, legal proof is essential, and that must, 
 it should seem, depend upon the nature of the allegation itself, and not upon its mere order, 
 or connection in point of time, or otherwise, with other material averments. On the other 
 hand it is certain that whenever an allegation is material and essential, whether it fall 
 within the scope of the term inducement, or not, whatever its connection may be in the 
 order of time, or otherwise with the other essential averments, it must be proved according 
 to the precise and particular, though superfluous, description with which it is encumbered. 
 Ibid. 
 
 (k) Rex v. Plestow, 1 Campb. 494. 
 
 (I) Cook's case, 1 Leach, 105. 2 East, P. C. c. 16, s. 48, p. 616, ante, p. 138. 
 
 f [In larcenv of a gray horse, proof that it was & gray gelding, the variance is fatal. Hooker 
 v. The State, 4 Ohio, 350.]
 
 CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 794 
 
 the above mentioned statute, on a charge of stealing five sheep, and 
 upon the evidence they appeared to be lambs, the judges held that the 
 prisoners could not be convicted, as the statute mentioned both sheep and 
 lambs. (m) So where on an indictment under Lord Ellenborough's act 
 the prisoner was charged with cutting I. S., and the evidence was that 
 the wounds were inflicted by stabbing and not by cutting, the judges 
 held that as the statute used the alternative "stab or cut," the variance 
 was fatal. («) If, on an indictment for perjury, the oath is stated to have 
 been taken at the assizes, before justices assigned to take the said assizes, 
 it will be a fatal variance* if the oath was administered when the judge *795 
 was sitting under the commission of oyer and terminer, and gaol de- 
 livery.(o) In an indictment on the 43 Geo. 3, c. 58, the intent laid was 
 to murder, to disable, or do some grievous bodily harm; the intent found 
 by the jury was to prevent being apprehended; it was held by the 
 judges on a case reserved, that a conviction could not be supported. (p) 
 Where the prisoner was charged with being at large after an order for 
 his transportation, and the indictment stated that his majesty extended 
 his mercy to him upon condition of his being transported for life beyond 
 the seas; and it appeared in evidence that the condition upon which he 
 received the royal mercy was not general, as the indictment stated, but 
 specific, that he should be transported to New South Wales or some of 
 the islands adjacent, the judges held the conviction wrong.(<?)t 
 
 The name of any party whose existence is essential to the charge Misnomer 
 must be proved in conformity to that laid in the indictment, for a misno- ^hosei exis- 
 mer of him is usually fatal. (r) And if such person be described as atence is es- 
 certain person to the jurors unknown, and it appear in evidence that his ff 11 * 1 ?: 1 to 
 name clearly was known, the prisoner cannot be convicted. (s) Where 
 a person is described by name simply, without addition, proof that there 
 are two persons of that name is no variance, for the allegation is still 
 
 (m) Rex v. Loom, R. & M. C. C. R. 160, ante, p. 138. But see Reg. v. M'Cully, ante, p. 
 139. 
 
 (n) Rex v. M'Dermot, Russ. & Ry. C. C. R. 356. See also Rex v. Douglas, ante, 301. 
 
 (o) Rex v. Lincoln, Russ. & Ry. 421. But in an indictment for perjury alleged to have 
 been committed on the trial of a cause before one of the judges of the King's Bench, without 
 &prout patent per recordam, it is no variance that the postea alleges the trial to have taken 
 place before the Lord Chief Justice, the cause having, in fact, been tried before the judge 
 specified. Rex v. Coppard, a M. & Malk. 118. Lord Tenterden, C. J. So where the indict- 
 ment alleged that the cause came on to be tried before E. W., one of the judges, &c, and it 
 was stated in the nisi prius record in the usual form that the cause was tried before the two 
 judges of assize, one of whom was E. W., it was held no variance. Rex v. Alford, 14 East, 
 R. 218. 
 
 (p) Rex v. Duffin and Marshall, Russ. & Ry. 365. 
 
 (q) Fitzpatrick's case, Russ. & Ry. 512. 
 
 (r) 1 Stark. Ev. 470. See ante, p. 788, as to the misnomer of the person stated to be the 
 owner of the dwelling-house, in burglary, and on an indictment under the Black Act. On 
 an indictment for stealing in a dwelling-house to the value of bl., the name of the owner of 
 the house must be proved as laid. Ante, vol. 1, p. 857. So on an indictment for robbing a 
 dwelling-house in the daytime, some persons being therein, the name of some person who 
 was in the house at the time must be correctly stated. Rex v. Kelly, Carr. Suppl. 42. The 
 7 Geo. 4, c. 64, extends only to remedy the misnomer of the defendants, when pleaded in 
 abatement. 
 
 («) 1 East, P. C. 651. Rex v. Robinson, Holt, N. P. C. 595. Rex v. Walker, 3 Campb. 264. 
 Rex v. Deakin and Smith, 2 Leach, 863. But if the charge against an accessory is that the 
 principal felony was committed by persons unknown, it is no objection that the same grand 
 jury have found a true bill imputing the principal felony to I. S. Rex v. Bush, Russ. & Ry. 
 372. See ante, p. 97. 
 
 f [A charge that the defendant set up and kept a faro Hank, at which money was bet, 
 lost and won, is not sustained by proof that bank-notes were bet, lost and won. Pryor v. 
 The Commonwealth, 2 Dana, 298.] 
 
 a Eng. Com. Law Reps. xiv. 210.
 
 795 OF EVIDENCE. [BOOK VI. 
 
 true. Upon an indictment for an assault upon Elizabeth Edwards, it 
 appeared that there were two of that name, mother and daughter, and 
 that in fact, the assault had been made on the daughter; but the convic- 
 tion was held to be good.(<) So where an indictment laid the property 
 of a horse in Joshua Jennings, it was held to be supported by proof of 
 property in Joshua Jennings the younger. (u) So where an indictment 
 *796 f° r perjury alleged a suit to have been between Peacock and *R. Miles, 
 and the proceedings stated the suit to have been between Peacock and 
 R. Miles the elder, it was held no variance. M The prosecutor maybe 
 described by the name he has assumed, though it is not his right name; 
 Name as- thus, where the goods stolen were laid to be the property of Mary 
 sumed. Johnson, and the prosecutrix stated that her original name was Mary 
 Davies, but that she had been called and known by the name of Mary 
 Johnson, and not Mary Davies, for the last five years, and had not taken 
 the name of Johnson for any purpose of concealment or of fraud; the 
 judges, on a case reserved, were of opinion that the time the prosecutrix 
 had been known by the name of Johnson, warranted her being called 
 By which a so in the indictment.(w) And so a person is well described by the name 
 person is ^y -which he is generally known. Thus where a count for offering a 
 known. bribe to an officer of the customs stated his name as Thomas Dabbs, and 
 he proved that his true name was Thomas Tyrrel Dabbs, but that he 
 generally went by the name of Thomas Dabbs, and signed his name 
 Thomas Dabbs without Tyrrel; it was held that this was no variance. (a?) 
 So where an indictment for robbery laid the property in John Hancox, 
 and it appeared that his name was John Walter Hancox, but that he 
 was generally known by the name of John Hancox; Parke, J., held 
 that this was sufficient.^) So where in an indictment a boy was called 
 Edward Dobson, and he stated that his right name was Dobson, but that 
 most persons who knew him called him Peach, and that his mother had 
 married two husbands, the first named Peach and the second Dobson, 
 and that he was told by his mother that he was the son of the latter, and 
 that she always used to call him Dobson; it was held that the evidence 
 that the boy's mother had always called him Dobson must be taken to 
 be conclusive as to his name, and that, therefore, he was rightly described 
 
 (t) Rex v. Peace, a 3 B. & A. 579. The court said, " The question here is, not whether the 
 party has been rightly described, but who the party is who is described in the indictment as 
 having been assaulted." But generally if the father and son be both named A. B., by A. B. 
 simply the father shall be intended. Wilson v. Stubs, Hob. 330. Lepiot v. Browne, 1 Salk. 
 7. Sweeting v. Fowler, b 1 Stark, N. P. C. 106. 1 Stark. Ev. 472. 
 
 (u) Hodgson's case, 1 Lewin, 236, Parke, J. S. P. Bland's case, ibid., Bolland, B. 
 
 \v) Rex v. Bailey, 7 C. & P. 264. Williams, J., who cited a MS. case where it was alleged 
 that there was an indictment against A. B. and C. D., at a former time, and on the record 
 being produced it appeared that it was an indictment against A. B. and C. D. the younger, 
 and Lawrence, J-, held it a fatal variance; on which it was observed, that that must have 
 been on the ground that if a person was named simply, it meant the elder. 
 
 (iv) Rex v. Norton, Russ. & Ry. 510. 
 
 (x) Attorney-General v. Hawkes, 1 Tyrw. 3, and per Alexander, C. B., "By the aid of an 
 averment of the identity of Thomas Dabbs and Thomas Tyrrel Dabbs, the defendant might 
 plead an acquittal on this information, by way of autrefois acquit to another information for 
 offering a bribe to Thomas Tyrrel Dabbs on this occasion." 
 
 (y) Rex v. Berriman," 3 5 C. & P. 661. Rex v. Sheen, e 2 C. & P. 634. And see Rex v. , f 
 
 6 C. & P. 408, where an indictment for stealing a whip, the property of Richard Pratt, was 
 held to be sustained by evidence that the prosecutor was generally known by that name, 
 although his proper name was Richard Jeremiah Pratt. And see Williams v. Bryant, 5 M. 
 & W. 477, where the defendant executed a bond in the name of William Bryant, being known 
 at that time by that name, his real name being William Francis Bryant, and the court hold 
 that the proof was sufficient upon the plea of non est factum. 
 
 a Eng. Com. Law Reps. v. 384. b lb. ii. 316. « lb. xxxii. 505. 
 
 i lb. xxiv. 473. e lb. xii. 295. I f b. xxv. 460.
 
 CHAP. II. § III.] WHAT ALLEGATIONS MUST BE PROVED. 796 
 
 in the indictment. (2) But where, on the indictment of Francis Clark, Of bas- 
 for the murder of " George Lakemen Clark, a base-born infant male tar s * 
 child," it appeared in evidence that the deceased child was a bastard 
 son of the prisoner, and that she murdered it, as charged in the indict- 
 ment, but that the child was christened George Lakeman, being the 
 names of its reputed father, and that it was called George Lakeman, and 
 not by any other name known to the witnesses, and that the prisoner 
 called it George Lakeman ; the judges held that as the child had not 
 obtained his mother's name by reputation, he *was improperly called *797 
 Clark in the indictment, and as there was nothing but the name to 
 identify him in the indictment, the conviction could not be supported. (a) 
 And so where an illegitimate child, three weeks old, had been baptized Walter's 
 by the name of " Eliza," but no surname was mentioned at the time f case- 
 baptism, and neither the register, nor any copy of it, was produced at 
 the trial, and an indictment for murder described her as " Eliza Waters," 
 Waters being the name of her mother ; it was held upon a case reserved, 
 that the child had not acquired the name of Waters by reputation, and 
 that the conviction was wrong.(i) Where, however, an indictment Evans's 
 charged the murder of Emma Evans, and it appeared that the deceased ^^ e h 
 was an illegitimate child born in a workhouse, and baptized on the 9th reputation, 
 of September, by the name of Emma, and drowned on the 11th of the 
 same month, when about six weeks old, and that up to the time of the 
 baptism she was not called by any name, but that from the 9th to the 
 11th of September she was called Emma Evans, Evans being the 
 mother's name; it was held that there was sufficient evidence of repu- 
 tation for the consideration of the jury, and that this case was dis- 
 tinguishable from the last, because there was no evidence there that the 
 child was ever called Waters at all.(c) And where, on an indictment Smith's 
 for the murder of "a certain female child whose name to the jurors was case ' 
 unknown," it appeared that the child had not been baptized, but the 
 prisoner had said she should like it to be called "Mary Ann," and had 
 called it "her Mary Ann" at one time, and "Little Mary" at another; 
 the father was a Baptist, and the child was a bastard, and twelve days 
 old ; and, upon a case reserved, it was held that the child had not gained 
 a name by reputation, and therefore the indictment was right. (d\ Where 
 an indictment for larceny laid the goods stolen to be the property of 
 Victoria Baroness Turkheim, and the prosecutrix proved that Baroness 
 Turkheim was her title only, and no part of her proper name, but that 
 she was not only reputed to possess that title, but did actually possess 
 it in right of an estate inherited from her father, and that she had con- 
 stantly and uniformly acted in and been known by that appellation, but 
 that her name without her title was Selina Victoria; the judges held 
 the description sufficient.(e) 
 
 (z) Rex v. Williams," 7 C. & P. 298, Williams, J., after consulting Alderson, B. 
 
 (a) Rex v. Clark, Russ. & Ry. 0. C. R. 358. 
 
 (b) Rex v. Waters," R. & M. C. C. R. 457. S. C. 7 C. & P. 250. 
 
 (c) Reg. v. Evans, 8 C. & P. 705, Brskine, J., after consulting Patteson, J. 
 
 (d) Rex v. Smith,- 1 R. & M. C. C. R. 402. S. C. 6 C. & P. 151. 
 
 (e) Hull's case, 2 Loach, 801. And indictment for a robbery on an unmarried woman in 
 her maiden name is good, although she marry before the indictment is found. Rex v. Turner, 
 1 Leach, 536. Where an indictment charged the prisoner with the manslaughter of Mark 
 Robinson, and a witness stated that the deceased stayed three days and nights at his inn, 
 and that he asked the deceased his name, and that letters came direct in that name, which 
 
 a Eng. Com. Law Reps, xxxii. 515. " lb. xxxii. 503. ° lb. xxxiv. 625. 
 
 d Ib. xxv. 327. 
 
 Vol. 11.— 52
 
 797 OF EVIDENCE. [BOOK VI. 
 
 Idem so- But if the name proved be idem sonans with that in the indictment, 
 " <l " 8 ' and different in spelling only, the variance will be immaterial. Thus 
 
 Segrave for Seagrave is no variance,^/) nor is Benedetto for Beniditto.(A) 
 So on an indictment for committing an offence on one John Whyneard, 
 *798 it appeared that his name was spelt Winyard, *but it was pronounced 
 Winnyard ; and the judges on a case reserved, held that the prisoner 
 had been rightly convicted. (i\ But an indictment charging the prisoner 
 with having personated " Peter M'Ca/m" is not supported by evidence 
 that he personated " Peter M'Carn"(y) So it has been decided that 
 " Shakespeare" cannot be considered as idem sonans with " Shake- 
 pear."^-) 
 Variance Many fatal variances have arisen in cases where it is necessary to 
 between s t a t e a record, deed, or other writing in the indictment, between such 
 
 writings, ' ' o ' m 
 
 Ac, stated statement, and the record, deed ,or writing, when produced in evidence. (Z) 
 in indict- ■\y nere the matter of a written instrument is introduced in pleading by 
 
 ment and , . » _ iT 
 
 producedin the words " according to the tenor following, or " of the tenor lollow- 
 evidence. ing," or " in the words and figures following," or " the words and mat- 
 ters following," or in fact any words which imply that a correct recital 
 is intended, any the slightest variance between the instrument set out, 
 and that produced in evidence is fatal. (m) But a most salutary statute 
 9 Geo. 4, 9 Geo. 4, c. 15, has recently passed to provide against variances of this 
 amending description, in cases of misdemeanors, which, after reciting that "great 
 variances expense is often incurred, and delay or failure of justice takes place at 
 
 between trials, by reason of variances between writings produced in evidence, 
 matters in ' J , -, i • i i • i 
 
 writing or and the recital or setting forth thereof upon the record on which the trial 
 
 print, and j s nac ^ [ n matters not material to the merits of the case, and such record 
 in cases cannot now in any case be amended at the trial, and in some cases can- 
 of misde- not be amended at any time," enacts that, "it shall and may be lawful 
 for every court of record holding plea in civil actions, any judge sitting 
 at nisi j>rius, and any court of oyer and terminer and general gaol deli- 
 very in England, Wales, the town of Berwick-upon-Tweed, and Ire- 
 land, if such court or judge shall see fit so to do, to cause the record 
 on which any trial may be pending before any such judge or court in 
 any civil action, or in any indictment or information for any misde- 
 meanor, when any variance shall appear between any matter in writing 
 or in print produced in evidence, and the recital or setting forth there- 
 of upon the record whereon the trial is pending, to be forthwith amended 
 in such particular by some officer of the court, on payment of such 
 costs (if any) to the other party as such judge or court shall think rea- 
 sonable, and thereupon the trial shall proceed as if no such variance had 
 appeared ; and in case such trial shall be had at nisi prius, the order 
 for the amendment shall be indorsed on the postea, and returned to- 
 gether with the record; and thereupon the papers, rolls, and other 
 records of the court from which such record issued, shall be amended 
 accordingly." 
 
 letters were delivered to the deceased, and received by him ; Patteson, J., held that the wit- 
 ness might be asked what name the deceased told him, as it was evidence to show the name 
 by which he usually went. Rex v. Timmins,* 7 C. & P. 499. 
 
 (g) Williams v. Ogle, 2 Stra. 889. (h) Abitbol v. Beniditto. 2 Taunt. 401. 
 
 (i) Rex v. Foster, Russ. & Ry. 412. (/) Rex v. Tannet, Russ. & Ry. 351. 
 
 (k) Rex v. Shakespeare, 10 East, 83. So Tarbart for Tabart is a fatal variance in a bail 
 piece. Bingham v. Dickie, 5 Taunt. 14. 
 
 (I) See the cases collected in 1 Stark. Ev. 431, et seq. 
 
 (to) 2 East, P. C. 976. Arch. Gr. PI. 46 and 99. 
 
 » Eng. Com. Law Reps, xxxii. 600.
 
 CHAP. II. § III. J WHAT ALLEGATIONS MUST BE PROVED. 798 
 
 It has been held in two cases of perjury that amendments ought to be Amend- 
 made very sparingly under this statute, and it seems they ought not to d^ttri™" 
 be made where the variance might have been avoided by ordinary care statute 
 in comparing the indictment and the instrument.^) *In the first case *T99 
 the indictment alleged that a judgment was entered up " in or as of j* u ^, ht to 
 Trinity Term, iu the 5 Wm. 4," and in the margin of the copy of the ingly made 
 record when produced was entered "June the 26th, 5 Wm. 4," pursu- in criminal 
 ant to the rule H. T., 4 Wm. 4, s. 3, and it was held that the judgment ° a 
 was not properly stated, and an amendment refused. (o) And in the 
 second the indictment in stating the commission to examine witnesses on 
 interrogatories alleged that the commissioners were commanded to ex- 
 amine the witnesses, and the commission commanded the commissioners 
 or any three or two of them to examine the witnesses, and the variance 
 was held fatal, and an amendment refused. (p) But where an indict- 
 ment for perjury alleged that the defendant produced an affidavit en- 
 titled in the Court of Chancery, and in the suit therein at the suit of E. 
 J. Christian, and in the suit therein at the suit of the Commissioners of 
 Charitable Donations and Bequests in Ireland, and the affidavit when 
 produced was entitled "In Chancery between the Commissioner of 
 Charitable^ Donations and Bequests in Ireland," &c, Lord Denman, 
 C. J., ordered the record to be amended by striking out the word "en- 
 titled."^) 
 
 (n) In Jelf v. Oriel, a 4 C. & P. 22, Lord Tenterden, C. J., refused to amend the declara- 
 tion, on the ground that the mistake arose from want of common care in drawing it ; but in 
 many instances it has been the want of common care that caused the mistake, and to pre- 
 vent the failure of justice through such carelessness or ignorance, was one of the objects of 
 the legislature in passing the act. 1 Phill. Ev. 518. 
 
 (o) Rex v. Cooke, b 7 C. & P. 559, Patteson, J., and Littledale, J., ante, p. 629. 
 
 (p) Reg. v. Hewins, 9 C. & P. 786, Coleridge, J., ante, p. 629. 
 
 (q) Reg. v. Christian, 3 1 C. & Mars. 388. Where in a civil suit the declaration stated as 
 matter of inducement a judgment recovered in the Queen's Bench, and the examined copy 
 of the judgment being produced turned out to be a judgment in the Common Pleas, Lord 
 Tenterden, C. J., allowed the record to be amended, as the act allows the amendment where 
 any variance appears between any matter in writing produced in evidence and the recital or 
 setting forth thereof on the record, and the examined copy of the judgment was a matter in 
 writing so produced, and the statute thereof authorized the amendment, Briant v. Eicke, e 
 M. & M. 359. So an amendment in the date of a bill of exchange has been allowed. Bentz- 
 ing v. Scott, a 4 C. &P. 24, Parke, J. And where a declaration stated that the plaintiff caused 
 to be kept with the defendant a copy of a writ of subpcena, and it appeared that the original 
 writ was directed to the defendant and two others, while the copy was directed to him and 
 John Doe, the latter name not appearing in the original subpoena at all ; Lord Tenterden, C. 
 J., allowed the allegation to be altered into "a copy of so much of the said writ of subpoena 
 as related to the said defendant;" and the Court of Common Pleas held the amendment was 
 properly made. Masterman v. Judson/ 8 Bing. R. 224. And upon the authority of this 
 case the Court of King's Bench held that the statement of a contract in the declaration, 
 might be amended so as to agree with the written contract produced at the trial, as to the 
 time for the performance of it, though it did not appear in the declaration whether the con- 
 tract was in writing or not. Lamey v. Bishop, s 4 B. & Ad. 479, arid per Tauriton, J. " If 
 the plaintiff' had declared upon a contract in writing the act would apply ; then it is absurd 
 to say that it does not apply, because the plaintiff' has omitted the words ' by agreement in 
 writing,' which in pleading are unnecessary." This case seems to overrule Ryder?'. Malbon, 11 
 3 C. & P. 594, where Park, J. A. J., held that a statement in an avowry of the terms of the 
 holding could not be amended so as to make them conformable with the lease produced at 
 the trial. In Smith v. Brandram,' 2 M. & (Jr. 244, a material variance in point of Legal effect 
 between a contract of guarantee produced in evidence, and the contract set out in the decla- 
 ration was held amendable under this statute. In Brooks v. Blanshard, 3 Tyrw. 844, 1 C. 
 & M. 779, which was an action for a libel contained in a letter, the letter having lien burnt, 
 the Court of Exchequer held that a variance between the libel as set out in I lie declaration 
 and the parol evidence of the contentsof the letter, could not be amended, as this act only 
 
 a Eng. Com. Law Reps. xix. 257. b lb. xxxii. 629. c lb. xxxviii. 336. d lb. xli. 314. 
 e lb. xxii. 333. f lb. xxi. 281. 8 lb. xxiv. 106. h lb. xiv. 470. ' lb. xl. 353.
 
 799 OF EVIDENCE. [BOOK VI. 
 
 Proof of On the trial of indictments for offences which are not local in their 
 
 ; , 1; \ u !' nature, generally speaking, it will be sufficient to show that the offence 
 offcn.c is was committed in some place within the county or other division ; and 
 not Local. •(. seems t b e agreed, says Mr. Serjeant Hawkins,(r) that a mistake of 
 the place, in which an offence is laid, will not be material upon the evi- 
 dence, on the plea of not guilty, if the fact be proved at some other 
 place in the same county. Although the offence must be proved to have 
 *800 *been committed in the county, where the prisoner is tried, yet, after 
 such proof, the acts of the prisoner in any other county, tending to esta- 
 blish the charge against him, are properly admissible in evidence. (s) 
 This has been determined to be the rule in cases of high treason, and 
 must equally apply to cases of conspiracy and felony.^) Upon the trial 
 Prosecutor or " an indictment for a transitory felony the prosecutor need not prove 
 need not affirmatively that there is such a parish as that laid in the indictment. 
 I! Ltivelv F " ^ n indictment for highway robbery laid the offence in the parish of St. 
 that there Thoinas, Pensford, in the county of Somerset, and it was objected by 
 is such a ^ e counse i f or the prisoner, that there was no proof that there was any 
 in the such parish in the county, all the witnesses swearing to the parish of 
 county. Pensford, and not St. Thomas, Pensford; Littledale, J., said the objec- 
 tion was not valid, and that he once reserved a case from the Oxford 
 circuit on that ground, and a great majority of the judges held, that it 
 was not necessary to prove affirmatively in the case for the prosecution, 
 that such a parish as that laid in the indictmant exists within the 
 county, and that they expressed a doubt how they should hold, even 
 where it was proved negatively for the prisoner that there was no such 
 parish, (w) 
 Nor is it And it is no objection in the case of a transitory felony on the plea 
 
 fence on °^ n0 * S u ^ty> tna * t nere * s no sucn place in the county as that in which 
 not guilty the offence is stated to have been committed. An indictment stated 
 
 that there ^^ ^ Q p r j soner a ^ th e parish of Norinanton in the Woulds, in the 
 
 :s no such . . . 
 
 parish. county of N., maliciously set fire to a stack of beans, on not guilty 
 pleaded it appeared that there was no such parish, and two points were 
 saved for the consideration of the judges; one, whether the offence was 
 local; the other, whether there being no such parish was an objection 
 or not guilty ; and the judges were unanimous that the offence had 
 nothing of locality in it, and that there being no such place in the 
 county could only be taken advantage of on a plea in abatement.(r) So 
 where an indictment for larceny laid the stealing " at the parish of Hales 
 Owen in the county of Worcester," and it appeared that that parish was 
 situate partly in Worcestershire and partly in Shropshire, if was held 
 sufficient. (?f) 
 Exceptions To the above rule, as to the parish and place being immaterial, there 
 as to proof are some exceptions ; as, if the statute upon which the indictment is 
 
 applies where the variance is between some matter in writing or in print produced in evidence, 
 and its recital on the record. It may be added that in Prudhomme v. Fraser, 1 M. & Rob. 435, 
 Lord Denman, C. J., refused to order superfluous averments and innuendoes in a declaration 
 for libel to be struck out at the trial under the 3 & 4 Win. 4, c. 42, s. 23. Mr. Starkie, 1 Ev. 
 495, treats this as a decision under the 9 Geo. 4, c. 15, but that is an error, and that statute 
 seems clearly not to apply to such a case. C. S. G. 
 
 (r) 2 P. C. c. 25, s. 84. (s) 1 Phill. Ev. 206, 6th ed. 
 
 (/) Ibid. (w) Rex v. Dowling, 8 R. & M. N. P. R. 433. 
 
 | v Rex v. Woodward, MS. Bayley, J. 3 Burn. J. D. & Wms. 384. S. C. R. & M. G. C 
 R. 323, ante, p. 568. 
 
 <:■) Rex v. Perkins," 4 C. & P. 363, Park, J. A. J. 
 
 a Eng. Com. Law Reps. xxi. 483. t> lb. xix. 419.
 
 CHAP. II. § III.] WHAT ALLEGATIONS xMUST BE PROVED. 00 
 
 framed give the penalty to the poor of the parish in which the offence of place 
 was committed, the offence must be proved to have been committed in aid " 
 the parish laid in the indictment.fa;) 
 
 But if the offence be in its nature local, and there be no such *place *801 
 as that laid in the indictment, the prisoner must be acquitted of such Where the 
 local offence ; if, however, the indictment contain a charge of a transi- 1 offer j ce , iJ 
 tory offence, as larceny, the prisoner may be convicted of such transitory parish 
 offence, although he is acquitted of the local offence. The indictment must be 
 stated that the prisoners " late of the parish of St. Peter the Great in f^id in the 
 the county of W.," on, &c, "at the parish aforesaid, in the county indict- 
 aforesaid, the warehouse of H. Webb, there situate," feloniously did ment " 
 break and enter and stole certain goods therein, and it appeared that 
 the parish of St. Peter the Great was partly in the county of W., and 
 partly in the county of the city of W., but that the warehouse was in 
 that part of the parish which was in the county of W. ; and Patteson, 
 J., held that this was a local description of the place where the ware- 
 house was situate, and that the indictment was not supported as to the 
 breaking and entering the warehouse, but that the prisoners might be 
 convicted of the simple larceny. (y\ So the offence of stealing in the 
 dwelling-bouse to the value of five pounds is local, and, therefore, if the 
 house be stated to be situate in a parish and county, it must be proved 
 that the whole of such parish is in such county, and if it be not so 
 proved the prisoner cannot be convicted of stealing in the dwelling- 
 house to the value of five pounds, but he may be of the simple larceny. 
 The indictment charged that the prisoner, " late of the parish of St. 
 Catherine, in the county of Gloucester," stole divers articles to the 
 value of five pounds in the dwelling-house of M. D. G. Muirhead, 
 " there situate," and it was proved that the parish of St. Catherine was 
 partly in the county of Gloucester and partly in the county of the city 
 of Gloucester, but that the house was situate in that part which was in 
 the county of Gloucester; and Cresswell, J., on the authority of the 
 preceding case, held that the prisoner could not be convicted of steal- 
 ing in the dwelling-house, but that he might be convicted of simple 
 larceny, (z) 
 
 So on an indictment against a parish for not repairing a highway, the 
 part of the road out of repair must be proved to be within the parish. (a) 
 So it has been held, that where an injury is partly local and partly 
 transitory, and a precise local description is given, a variance in proof 
 of the place is fatal to the whole, for the whole being one entire fact, 
 the local description becomes descriptive of the transitory injury. (6) 
 
 (z) Arch. Cr. PI. 05. See Rex. v. Glossop,* 4 B. & Aid. 616. 
 
 (y) Reg. v. Brookes and others," Worcester Spr. Ass. 1842, MS. C. S. G. S. C. 1 C. & 
 Mars. 543. (z) Reg. v. Jackson, Gloucester Spr. Ass. 1842, MS. C. S. G. 
 
 (a) Ante, vol. 1, p. 364. 
 
 (&) 1 Stark. Ev. 466, citing Rex v. Cranage, 1 Salk. 385. In this case the indictment 
 stated that the defendant with others riotously assembled, etquoddam cubiculum cujusdam S. 
 S., in domo mansionali cujusdam David James f regit et intravit, and thirty yards of stuff took 
 and carried away ; upon evidence it appeared to be the house of David Jameson, and Par- 
 ker, C. J., held that this did not maintain the indictment, for part is local and part not loi I 
 the cubiculum is local, the taking and carrying away is not local, but then all is put together 
 as one entire fact under one description, and you cannot divide them. So if there lie an 
 indictment for acting a play and speaking obscene words in such a parish, in a play-In i 
 in Lincoln's-lnn-Fields; if there be no play-house in Lincoln's-Inn-Fields the defendant 
 must be acquitted ; for though the words are not local, yet they are made so. One may 
 make a trespass local that is not so. If the speaking had been alleged in Lincoln's-Inn- 
 a Eng. Com. Law Reps. vi. 539. b lb. xvii. 296.
 
 ><u 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 <S02 
 
 Proof that the place is usually and commonly known by the descrip- 
 tion used is sufficient. (c) And where premises are described to *be 
 situate in a particular parish, it is sufficient to prove that the parish is 
 usually known by the name of description, (rf) And although there be 
 two parishes of the general name, the general description will be suffi- 
 . cient.(e) And where an indictment stated that the prisoner committed 
 a burglary " at the parish of Woolwich/' and the prosecutor stated that 
 the correct name of the parish was " St. Mary, Woolwich," but the 
 parish is called " the parish of Woolwich," in the Central Criminal 
 Court Act, 4 & 5 Wm 4, c. 36, s. 2 ; it was held that this was sufficient, 
 as the statute showed that this parish is known by the name of " the 
 parish of Woolwich. "(f) 
 
 Where it is doubtful whether the allegation be merely formal, or it 
 be descriptive, the allegation will be referred to venue, rather than to 
 description, even though the action be of a local nature, and the existence 
 of such a parish will be immaterial. (</) 
 
 An allegation that A. B. was constable of the parish of St. Paul, 
 Covent Garden, is not satisfied by evidence that he was presented as a 
 fit person to serve as constable for that parish, but sworn in for West- 
 minster generally. (A) 
 
 In criminal prosecutions, from the highest offence to the lowest, it is 
 unnecessary to prove the time of committing the offence precisely as 
 laid, uuless that particular time is material ; and the facts may be proved 
 to have occurred on any day previous to the finding of the bill by the 
 grand jury.(f) In high treason, evidence maybe given of an overt act, 
 either before or after the day specified in the indictment; the particular 
 day is not material in point of proof, and is merely matter of form.(y) 
 And where an indictment for a misdemeanor contained several counts, 
 stating several misdemeanors of the same kind, and alleging the same 
 day in each count as the day on which they were committed, the pro- 
 secutor was allowed to give evidence of such misdemeanor on different 
 days.(&)f 
 
 It is immaterial, in general, whether the value ascribed to property in 
 
 Proof of 
 time. 
 
 Proof of 
 
 value. 
 
 Fields, then it had been laid as venue ; but here it is otherwise ; for here it is alleged as a 
 description where the play-house stood. Per Parke, C. J., ibid. 
 
 (c) 1 Stark. Ev. 468. 
 
 (d) 1 Stark. Ev. 468, citing Kirtland v. Ponsett, 1 Taunt. 570. Goodtitle v. Walter, 4 
 Taunt. 671. Per Mansfield, C. J., in Vowles v. Miller, 3 Taunt. 140. 
 
 (e) 1 Stark. Er. 469, citing Doe d. James v. Harris, 5 M. & S. 326. Taylor v. Williams, 8 
 3 Bing. R. 449, as where lands are described as situate in Westbury, there being both West- 
 bury-on-Trym and Westbury-on-Severn, in the same county. So where an indictment 
 stated that a highway alleged to be out of repair led to the parish of Langwm, in the county 
 of Monmouth, and it appeared that there were two parishes in the county, Langwm lsha 
 and Langwm Ucha, and that the highway led to the former ; Bosanquet, J., held the descrip- 
 tion sufficient. Rex v. Lantrissent, Monmouth Sum. Ass. 1832, MSS. C. S. G. 
 
 (/) Reg. v. St. John, b 9 C. & P. 40, Parke, B., and Bosanquet, J. 
 (g) 1 Stark. Ev. 465, citing Jefferies v. Duncombe, 11 East, R. 226. 
 (h) Goodes v. Wheatley, 1 Campb. R. 231, as stated in 1 Stark. Ev. 470. 
 (*) 1 Phill. Ev. 514. See also ante, p. 623. (/) Ibid. 
 
 (k) Rex v. Levy and others, cor. Abbott, C. J., 2 Stark. R. 458. 
 
 f [Though it is necessary that time should be alleged, it is not requisite to prove that the 
 act was done on the precise day alleged. The State v. Baker, 34 Maine, 52. 
 
 Where the time of the commission of the offence charged is averred in an indictment 
 under a videlicet, the prosecutor is not held to proof of it as laid ; but he may prove that the 
 offence was committed at any time before the finding of the indictment, within the period 
 prescribed as a bar. MDade v. The State, 20 Alabama, 51. Wingard v. The State, 13 
 Georgia, 396.] 
 
 a Eng. Com. Law Reps. xiii. 46. b lb. xxxviii. 28. c lb. iii. 431.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 802 
 
 the indictment be proved or not, especially since the 7 & 8 Geo. 4, c. 28, 
 has abolished the distinction between grand and petit larceny. Where 
 value is essential to constitute an offence, as where a bankrupt is in- 
 dicted for concealing property to the amount of 20£.,(Z) and the value is 
 ascribed to many articles collectively, the offence must be made out as 
 to every one of tbose articles ; the grand jury having ascribed that value 
 to those articles collectively.(m) 
 
 In has been considered a rule, that the want of a videlicet will in some *803 
 cases make an averment material that would not otherwise be so ; as, if Videlicet, 
 a tbing which is not material is positively averred without a videlicet, 
 though it was not necessary to be so, yet it is thereby made material and 
 must be proved, and that, therefore, where a party does not mean to be 
 concluded by a precise sum or day stated, he ought to plead it under a 
 videlicet, for if he do not, he will be bound to prove the exact sum or 
 day laid, it being a settled distinction, that where any thing which is not 
 material is laid under a videlicet, the party is not concluded by it, but 
 he is where there is no videlicet. (») But it is by no means generally 
 true, that the omission of a videlicet will make it necessary to prove the 
 particular sum or day, &c, strictly, as laid,(o) for the want of a vide- 
 licet will njsver do harm where, from the nature of the case, the precise 
 sum, date, magnitude, or extent is immaterial. (p) 
 
 ^CHAPTER THE THIRD. *804 
 
 OF WRITTEN EVIDENCE. 
 
 SECT. I. 
 
 Of the Proof and Effect of — 1. Public Documents. — 2. Private 
 Documents. 
 
 1st. Of the proof and effect of public documents. Acts of parliament Public 
 are either public or private. The printed statute-book is evidence of a m • 
 public statute, not as an authentic copy of the record itself, but as hints 
 of that which is supposed to be lodged in every man's mind already.(a) 
 A private act of parliament is usually proved by a copy examined with Statutes. 
 the parliament roll. (6) A private act may contain clauses of a public 
 nature, and then the act, as far as those are concerned, is to be regarded 
 as a public act. Thus, a clause relating to a public highway, occurring 
 in a private inclosure act, has been holden provable in the same way 
 as a public act.(c) In some acts of parliament not relating to the king- 
 dom at large, a special clause is often inserted declaring them to be 
 public acts, and that they shall be taken notice of as such, without being 
 specially pleaded ; in which case they are to be proved in the same 
 
 (I) Altered to 10Z. by 6 Geo. 4, c. 16, s. 112. 
 (m) Rex v. Forsyth, Russ. & Ry. C. C. R. 274. 
 (re) 2 Saund. 291, c. in note (1) to Dakin's case, 
 (o) 1 Phill. Ev. 213, (re), 7th ed. 
 
 (p) Ibid. 1 Stark. Ev. 454. Rex v. Gillham, 6 T. R. 265. 
 (a) Gilb. Ev. 10. 2 Phill. Ev. 127, 128. (b) Bull. N. P. 225. 
 
 (c) Rex v. Utterby, 2 Phill. Ev. 128, per Ilolroyd, J. And see Hob. 227. 
 * Eng. Com. Law Reps. xxv. 183.
 
 S04 
 
 OF EVIDENCE. 
 
 [book VI. 
 
 *805 
 
 Preamble 
 proof of 
 facts re- 
 cited. 
 
 Journal 
 of the 
 Houses of 
 Parlia- 
 ment. 
 
 Gazette. 
 
 manner as public acts ; it is not necessary to prove then by an examined 
 copy, or to show that the printed copy was printed by the Queen's 
 printer.(rZ) The clause referred to was intended for the facility of proof; 
 it will not give the act the effect of a public act for other purposes, as 
 with regard to the recital of facts contained in it.(e) A clause was often 
 formerly inserted in private acts, providing that they shall be printed by 
 the king's printer, and that a copy so printed shall be admitted as evi- 
 dence of the act. In such cases a copy, purporting to be printed by the 
 king's printer will be admissible in evidence : it is not necessary to prove 
 that the act was purchased at the king's printer.(/) By the 41 Geo. 3, 
 c. 90, s. 9, *copies of the statutes of Great Britain and Ireland prior to 
 the Union, printed by the printer duly authorized, shall be received as 
 conclusive evidence of the several statutes in the courts of either king- 
 dom, (e) 
 
 The preamble of an act of parliament, reciting that certain outrages 
 had been committed in particular parts of the kingdom, was adjudged 
 by the Court of K. B. to be admissible in evidence, for the purpose of 
 proving an introductory averment in an information for a libel, that out- 
 rages of that description had existed. (^f) 
 
 The journals of the House of Lords or of the House of Commons are 
 evidence in criminal cases as well as civil, and may be proved by ex- 
 amined copies; but the printed journals are not evidence. (<?) An un- 
 stamped copy of the minutes of the reversal of a judgment in the House 
 of Lords, without more of the proceedings, is evidence of the re- 
 versal. (A)f 
 
 The public acts of government, and acts by the king in his political 
 capacity, are commonly announced in the Gazette, published by the 
 authority of the crown ; and of such acts announced to the public in the 
 Gazette, the Gazette is admitted in courts of justice to be good evi- 
 dence.^') A proclamation for reprisals published in the Gazette, is evi- 
 Proclama- dence of an existing war.(_/) Proclamations for a public peace, or for 
 tion. t ne performance of a quarantine, and any act done by or to the king in 
 
 his regal character, may be proved in this manner ; and upon the same 
 Articles of principle, articles of war, purporting to be printed by the king's printer, 
 war> are allowed to be evidence of such articles. (7c) A Gazette, in which it 
 
 was stated, that certain addresses had been presented to the king, has 
 been adjudged to be proper evidence to prove an averment of that fact 
 in an information for a libel ;(7) for they are addresses, said Lord Kenyon, 
 
 (d) 2 Phill. Ev. 128, citing Beaumont v. Mountain," 10 Bingh. R. 404. 1 M. & Sc. 177. 
 Woodward v. Cotton, 1 C, M. & R. 44. 4 Tyrw. 689. 
 
 (e) 2 Phill. Ev. 129, citing Brett v. Beales, b M. & M. 421. 
 
 (/) 2 Phill. Ev. 1 29, Lincoln Sum. Ass. 1632, by Park, J. A. J. "Where the copy of an act 
 is incorrect, the government will be governed by the Parliament roll. Rex v. Jeffries, 1 Str. 
 446. Spring v. Eve, 2 Mod. 240, and 2 Phill. Ev. 129, and the case cited there, in note (5). 
 
 (e) Rose. Ev. 73. (ff ) Rex v. Sutton, 4 M. & S. 532. 
 
 ((/) Lord Melville's case, 24 How. St. Tr. 683. Rose. Ev. 73. 
 
 (h) Jones v. Randall, Cowp. 17. But a resolution of either house is not evidence of the 
 truth of the facts there affirmed ; and therefore, in the case of Titus Gates, who was charged 
 with having committed perjury on the trial of persons suspected of the popish plot, a resolu- 
 tion in the journals of the House of Commons, asserting the existence of the plot, was not 
 allowed to be evidence of that fact. 4 St. Tr. 39. 1 Phill. Ev. 406, 7th ed., but see 2 Phill. 
 Ev. 106, last ed. 
 
 (i) 2 Phill. Ev. 107, 108. (j) Ibid. (k) Ibid, and 109. 
 
 (1) Rex v. Holt, 5 T. R. 436. S. C. 2 Leach, 593. 
 
 f [Historical books which have been generally received as authentic are admissible as 
 furnishing evidence of remote transactions. Commonwealth v. Alben/cr, 1 Whart. 469.] 
 a Eng. Com. Law Reps. xxv. 183. b lb. sxii. 344.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 805 
 
 C. J., of different bodies of the king's subjects, received by the king in 
 
 his public capacity, and they thus become acts of state. And in Rex v. 
 
 Forsyth,(m) the twelve judges seemed to think that the production of 
 
 the Gazette, would be sufficient, without proof of its being bought of 
 
 the Gazette printer, or where it came from. In Rex v. Sutton, (n) the 
 
 Court of King's Bench determined, that the king's proclamation, (which Recital in 
 
 recited, that it had been represented that certain outrages had been com- P. roclama : 
 
 , . „ • tion prooi 
 
 mitted in different parts of certain counties, and offered a reward for the of facts 
 discovery and apprehension of offenders,) was admissible in evidence, rec i te( l. 
 as proof of an introductory averment in an information for a libel, that 
 acts of outrage of that particular description had been committed in 
 those parts of the country. 
 
 *Records are proved either by producing the record itself, or by an *806 
 exemplification, or by a copy. When nul tiel record is pleaded, the Proof of 
 record, if a record of the same court, is produced and inspected by t ne on an issue 
 court; if a record of an inferior court, it is proved by the tenor of the of nul tiel 
 record certified under a writ of certiorari, issued by the superior court; record - 
 if a record of a concurrent superior court, it is proved by the tenor cer- 
 tified under a writ of certiorari, issued out of Chancery, and transmitted 
 thence by. a writ of mittimus. (o\ The issue of nul tiel record seldom 
 occurs in criminal cases, except in the instance of a plea of autrefois 
 acquit, kc.(p) 
 
 Wherever it is necessary to prove the finding or the trial of an indict- Where it 
 ment, the record must be regularly drawn up, and either produced, or 1S neces - 
 an examined copy of it produced and proved. Where, therefore, an pr0 ve in- 
 indictment for a conspiracy alleged that at a court of quarter sessions dictments. 
 an indictment was preferred against A. B., and found by the grand jury, 
 the Court of King's Bench held that the indictment indorsed a true bill, 
 but without any caption to it, and the minutes made by the clerk of the 
 peace containing the style of the sessions, and the minutes of the busi- 
 ness done at it, were not sufficient evidence of the finding of the bill, and 
 that the record itself or an examined copy was the only legitimate evi- 
 dence to prove it.(j) And so it has been held that a plea of autrefois 
 convict cannot be supported by the indictment with the finding of the 
 grand jury upon it.(r) Where on an indictment for the non-repair of 
 certain highways, upon the trial of which the question was, whether a 
 parish was bound to repair all the highways in it as a parish, or the 
 several townships the highways situate in each of them, in order to 
 
 (m) Russ. & Ry. C. C. R. 274. Ante, p. 231. (n) 4 M. & S. 532. 
 
 (o) Tidd, 801, 804, Rose. Ev. 73. Where a record of a court of Quarter Sessions is plead- 
 ed in a court of Oyer and Terminer, or the converse, it ought in strictness to be proved as 
 above stated ; but the practice, it is said, is to apply simply to the clerk of the peace, or 
 clerk of assize, who will make it out for you without writ, or will attend with the record 
 itself at the trial. Arch. Cr. PI. 124. 
 
 (p) Upon this plea the proof of the issue lies on the defendant, and he will have to prove 
 the record of acquital : and also it has been said, the averments of identity in his plea. 1 
 Arch. Cr. PI. 79. But this seems doubtful, for if the replication is nul tiel record, it should 
 seem to admit the identity. The principal decisions regarding the plea of autrefois acquit, 
 belonging rather to the law of criminal pleading than of evidence, will be found, vol. 1, p. 
 829, el seq., and ante, p. 388, 648. (q) Rex v. Smith, a 8 B. & C. 341. 
 
 (r) Rex v. Bowman, 1 ' G G. & P. 101. See the cases collected in note («'), vol. 1, p. 837, and 
 Porter v. Cooper, 6 C. & P. 354, and Rex v. Thring, d 5 C. & P. 507, where Gurney, B., held 
 that the minute book of the court of Quarter Sessions was not admissible in evidence on an 
 indictment for perjury to prove the trial on which the perjury was alleged to have been 
 committed ; and Rex v. Rellamy, R. & M. N. P. R. 171. 
 
 a Eng. Com. Law Rep3. xv. 332. * lb. xxv. 300. c lb. xxv. 435. 
 
 d lb. xxiv. 430. e lb. xxi. 406.
 
 806 OF EVIDENCE. [BOOK VI. 
 
 prove the conviction of the parish upon a similar indictment in 1806, a 
 witness proved that he went to the house of the clerk of assize for the 
 Oxford Circuit in London, and there saw him and his son, and asked 
 for the record, and received a written paper, which he produced, which 
 he and the son of the clerk of assize compared with a document then 
 produced as the record, and which the witness stated he thought was 
 on paper, but he was not sure whether it was on paper or parchment, 
 but it was much torn, and the son of the clerk of assize stated that he 
 could not recollect the particular transaction ; but the practice was, when 
 a record was required, to make it out from the minutes and the indict- 
 ment on an original parchment roll, which was signed by the clerk of 
 *807 assize, and a copy was then made *on paper and compared with the 
 roll, and stamped with the Oxford circuit stamp, which copy was given to 
 the party applying for it, and that, as far as his own experience went, 
 the roll was drawn up from the indictment and minutes, without any paper 
 draft in the first instance being made, and that he never knew of a paper- 
 copy having been kept. And that the paper produced was signed by 
 his father and stamped with the circuit stamp. Coleridge, J., held that 
 the paper was admissible as an examined copy of the record. (s) 
 Trials of But although it was once held, on the trial of an indictment for per- 
 appea s. j m ,y a ]j e ged to have been committed on the trial of an appeal against 
 an order of removal, that the sessions book produced by the clerk of the 
 peace was not sufficient to prove the trial of the appeal. (/) Yet where 
 on an appeal against an order of removal the book containing the pro- 
 ceedings at the sessions was proved to be the original sessions book, 
 regularly made up and recorded after each sessions by the clerk of the 
 peace, from minutes taken by him in court, and the minutes of each ses- 
 sions were headed by an entry containing the style and date of the ses- 
 sions, and the names of the justices in the usual form of a caption, and 
 no other record was kept of the proceedings of the sessions than the said 
 sessions book, and it had always been received in evidence in the court 
 of quarter sessions, for the purpose of proving them ; the court of 
 Queen's Bench held, that such book was properly received in order to 
 prove the quashing of an order of removal on the trial of a former ap- 
 peal between the same parishes. (u) 
 Minutes The minutes of a court of oyer and terminer may be received, where 
 
 during t h e the matter to be proved by the minutes has occurred before the same 
 same as- court sitting under the same commission ; as upon the trial of Home 
 Tooke, where the minutes of the court were received as proof of the 
 trial of Hardy.(v) So the indictment with the officer's note upon it of 
 a verdict of not guilty is sufficient evidence during the same assize upon 
 a plea of autrefois acquit, that the prisoner was acquitted upon such in- 
 dictment.^) 
 In other When nul tiel record is not pleaded, but it is necessary to prove a 
 record in support of some allegation in the pleadings, the record may 
 
 (s) Reg. v. The Inhabitants of Pembridge, a 1 C. & Mars. 157. 
 
 (t) Rex v. Ward," 6 C. & P. 366, Park, J. A. J. The clerk of the peace stated that he should 
 have drawn up a record on parchment, if he had been applied to so to do, and the case does 
 not state what the form of the entry in the book was. See the observations of the court on 
 this case, in Reg. v. Yeovely, 8 A. & E. 806, infra. 
 
 (u) Reg. v. Yeovely, 4 8 A. & E. 806, and see per Patteson, J., in Rex v. Nottingham Old 
 Water Works Company, e 6 A. & E. 355. 
 
 (v) 2 Phill. Ev. 135, citing 25 St. Tr. 466. 
 
 (w) Rex v. Parry/ 7 C. & P. 836, Bolland, B. 
 
 a Eng. Com. Law Reps. xli. 90. b lb. xxv. 440. c lb. xxxv. 536. d lb. 
 
 e lb. xxxiii. 90. f lb. xxxii. 761.
 
 CHAP. III. § I.] OP WRITTEN EVIDENCE. 807 
 
 be proved either by an exemplification or a copy. Exemplifications are 
 either under the great seal or under the seal of the court in which the 
 record is produced, and are admissible without proof of the genuineness 
 of the seal. (a;) A record may also be proved by an examined copy, 
 except upon the issue of nul tiel record. The copy must be proved by 
 some witness who has examined it line for line with the original, or 
 who has examined the copy while another held the original. (#) It ought 
 to appeal-, that *the record from which the copy was taken was seen in *808 
 the hands of the proper officer, or in the proper place for the custody of 
 such records. (z) So an office copy in the same court, in the same cause, 
 is equivalent to a record ; but in another court, or in another cause in 
 the same court, the copy must be proved. (a) In order to prove a ver- 
 dict a copy of the whole record, including the judgment is necessary, for 
 otherwise it would not appear but that the judgment had been arrested, 
 and a new trial granted. (b") Where an indictment for perjury alleged 
 that Burraston was convicted upon an indictment for perjury, upon the 
 trial of which the perjury in question was alleged to have been com- 
 mitted ; and it appeared by the record when produced that Burraston 
 had been convicted, but the judgment against him reversed upon error 
 after the finding of the present indictment, it was held that the record 
 produced supported the allegation in the indictment. (c\ Records pro- Effect of 
 perly produced in evidence are conclusive against those who are parties re( ; ord s in 
 
 CVH1CHCG. 
 
 to them : — thus, a record of conviction of a parish for not repairing a 
 road, is for ever afterwards evidence of their liability to repair ;(d\ but 
 it is not conclusive as against other parties, except as to the fact that 
 the persons charged have been convicted, (e) therefore an accessory may 
 not only controvert the guilt of his principal, notwithstanding the record 
 of his conviction ;(/) but the record of the conviction of the principal 
 upou a plea of guilty is not admissible where such principal might be 
 called as a witness,^) and it seems extremely doubtful whether such 
 record be admissible against the accessory in any case.(A)f 
 
 (z) Rose. Ev. 74. Tooker v. Duke of Beaufort, Sayer, 297. 
 
 \y) Reid v. Margison, 1 Camp. 469. It is not necessary for the person examining to 
 exchange papers, and read them alternately. Gyles v. Hill, ibid., n., Rose. Ev. 75. 
 (z) Adamthwaite v. Synge, a 1 Stark. 183. 4 Catnpb. 372. S. C. Rose. Ev. 75. 
 
 (a) Rosc.Ev. 75. Burnand v. Nerot, b 1 C. & P. 578. 
 
 (b) Bull. N. P. 234. But the nisiprius record, with the poslea indorsed, is sufficient evi- 
 dence that the cause came on to be tried. Pitton v. Walter, 1 Str. 162. 
 
 (c) Reg. v. Meek, 9 C. & P. 513, Williams, J., ante, p. 603. 
 
 (d) Rex v. St. Pancras, Peake, N. P. C. 219: but see 2 Saund. 160. Ante, vol. 1. p. 369. 
 
 (e) See Rex v. Shaw and others, Russ. k Ry. 526, where, upon an indictment for delivering 
 instruments to a prisoner to facilitate his escape from gaol, it was held that the record of 
 his conviction being produced by the proper officer, no evidence was admissible to dispute 
 what is stated. 
 
 (/) Rex v. Smith, 1 Leach, 288. 
 
 (g) Rex v. Turner, R. & M. C. C. R. 347, ante, vol. 1, p. 43. In Keable v. Paine, d 8 A. & 
 E. 555, Patteson, J., said, " On an indictment for receiving goods feloniously taken, the 
 felony must be proved, and neither a judgment against the felon, nor his admission, would 
 be evidence against the receiver." 
 
 (h) Ibid. 
 
 f [On the trial of an indictment for manslaughter, the record of the previous conviction 
 of the defendant, for an assault and battery on the person of the deceased, and judgment 
 thereon before the death, is admissible evidence to prove the fact of such conviction ; but it 
 is not evidence of an assault committed on the deceased, as alleged in the indictment for 
 manslaughter, or that the assault stated in the record of such conviction is the same. The 
 Commonivealth v. McPike, 3 Cushing, 181.] 
 
 a Eng. Com. Law. Reps. ii. 348. b Ib. xi. 479. ° lb. xxxviii. 201. 
 
 d Ib. xxxv. 454.
 
 808 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Several statutes afford facilities for proving a previous conviction by 
 means of a certificate of the clerk of assize, or clerk of the peace ; but 
 these provisions are made for the more easy proof of such convictions, 
 and do not prevent the proof of the previous conviction by an examined 
 copy of the record. (i\ In order to give evidence of a writ, if it is the 
 gist of the proceedings, it must be proved by a copy of the record after 
 its return ; but where the writ is only inducement, the fact of taking 
 out the writ may be proved without a copy, because possibly the writ has 
 not been returned, and then it is no record.^') An answer in Chancery 
 is proved by the production of the bill and *answer, or of examined 
 copies of them;(/t) but on proof by the proper officer that the bill has 
 been searched for in the office, and not found, the answer may be read 
 without the bill.(Z) Depositions in a suit in Chancery are not in general 
 admissible without proof of the bill and answer unless so ancient that 
 no bill or answer can be found ;{m\ but an examined copy is admissible 
 for the purpose of contradicting the testimony of the deponent when 
 produced afterwards as a witness. (n) The proceedings in the ecclesias- 
 tical courts are proved in the same way as those in equity ; and their 
 sentences are received in the temporal courts as conclusive evidence of 
 the facts adjudged, upon questions within their jurisdiction ; but in a 
 suit of jactitation of marriage a sentence against the marriage is not 
 conclusive, as it decides not directly, but only collaterally, on the vali- 
 dity of the marriage, (oj When it is necessary to show a title to person- 
 alty, under a will, or that a particular person is executor, the will cannot 
 be read in evidence without some indorsement for the purpose of authen- 
 tication ; but the probate must be produced. (p ) The seal of the ecclesi- 
 astical court on the probate proves itself. (^j Generally speaking, a 
 probate unrepealed is conclusive evidence of the validity of the will ; 
 but on an indictment for forging a will, probate of that will unrepealed 
 is not conclusive evidence of its validity, so as to be a bar to the prose- 
 cution.^-) To prove a probate revoked, an entry of the revocation in 
 the book of the ecclesiastical court called the " assignation book," in 
 which all causes are officially eutered, is good evidence. (s\ Administra- 
 tion is proved by the production of the letters of administration, or 
 a certificate or exemplification thereof, granted by the ecclesiastical 
 
 Proof of 
 writ. 
 
 *809 
 
 Proceed- 
 ings in 
 Chancery. 
 
 Proceed- 
 ings in the 
 ecclesias- 
 tical courts, 
 
 Proof of 
 will. 
 
 Probate. 
 
 Proof ofad- 
 ministra- 
 tion. 
 
 (i) Rex v. Henry Saunders, Gloucester Spr. Ass. 1829, MS. C. S. G. The prisoner was 
 indicted under the 15 Geo. 2, c. 28, s. 2, for uttering base coin after a previous conviction, 
 and Parke, J., held that an examined copy of the record of the previous conviction was 
 sufficient evidence thereof; for the statute, by giving an easier means of proof under sec. 9, 
 did not exclude the proof by means of an examined copy. C. S. C. 
 
 (/) 2 Phill. Ev. 150. 
 
 (k) 2 Phill. Ev. 139. The recital in the jurat in the place where the answer purports to 
 be sworn, is sufficient proof that the oath was administered at the place sworn. Rex v. 
 Spencer,* R. & M. N. P. C. 97. 
 
 (I) Gilb. Ev. 49. See as to the proof of the identity of the parties, ante, p. 661. An 
 answer offered in evidence merely as an admission of the party on oath, is sufficiently proved 
 by an examined copy, without proof of a decree, or the party's handwriting. Lady Dart- 
 mouth v. Roberts, 16 East, 334. Rose. Ev. 78. See also Ewer v. Ambrose," 4 B. & C. 25. 
 
 (m) Bull. N. P. 240. Gilb. Ev. 62. Rose. Ev. 79. 2 Phill. Ev. 149. 
 
 («) Highfield v. Peake, c Mood. & Malk. N. P. C. 109. 
 
 (o) Dutchess of Kingston's case, 11 St. Tr. 262. Ante, vol. 1, p. 188. 
 
 (p) Rex v. Barnes, d 1 Stark. N. P. C. 243. 2 Phil. Ev. 170. 
 
 (q) Kempton v. Cross, Cas. Temp. Hardw. 108. Rose. Ev. 82. 
 
 (r) Rex v. Buttery and Macnamara, Russ. & Ry. 342. 
 
 (s) Rex v. Ramsbottom, 1 Leach, 25, in note to Rhodes's case. 
 
 a Eng. Com. Law. Reps. xi. 384. 
 
 f lb. x. 271. 
 
 c lb. xxii. 263. 
 
 a lb. ii. 3T4.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 809 
 
 court,(<) or by the original book of acts, directing the grant of letters, 
 or an examined copy of it.(w) 
 
 Judgments in a court-baron, county-court, or other inferior court, Judgments 
 may be proved by the production of the book containing tbe proceed- courts" 01 
 ings of the court from the proper custody, and if not made up in form, 
 the minutes of the proceedings will be evidence, or an examined copy 
 of such proceedings or minutes will be evidence.(y) The judgment of a Foreign 
 foreign court must be proved by evidence of the handwriting of the JU gmen ' 
 judge of the court who subscribed it and the authenticity of the seal 
 affixed. In the case of Henry v. Adey,(w) *the plaintiff, who sued *810 
 here on a judgment obtained in the island of Granada, was nonsuited, 
 because he could not prove the seal affixed to be the seal of the island. 
 And on a motion to set aside the nonsuit, the court said, they could not 
 take official notice, that the seal affixed was the seal of the island, which 
 was necessary to be shown, in order to prove the judgment which it pur- 
 ported to authenticate; and that proving the judge's handwriting could 
 not advance the proof of the seal, unless by considering him in the na- 
 ture of a witness to it, which was not pretended. (wio) If a colonial court 
 possess a seal it ought to be used for the purpose of authenticating its 
 judgments > although it may be so much worn as no longer to make any 
 impression. (a;) If it is clearly proved, that the court has not any seal, 
 so that the document cannot be clothed with the form of a legal exem- 
 plification, it must be shown to possess some other requisites to entitle 
 it to credit; as, by proving the signature of the judge upon the judg- 
 ment.^) An exemplification of a foreign judgment, that is, a copy 
 authenticated under the seal of the court, is evidence of the judgment 
 in the courts of this country ;(z) but a document purporting to be a copy 
 of a judgment made by the officer of the court, is not admissible. (a) 
 The written law of a foreign state must be proved by a copy duly 
 authenticated. (6)f Thus, where to prove the law of France, as to mar- Proof of 
 riage, the French vice-consul produced a book, which he said contained i°™ s lgn 
 the code of laws upon which he acted at his office ; that it was printed 
 at the office for the printing of the laws of France ; and that it would 
 have been acted upon in any of the French courts ; it was ruled by 
 Abbott, C. J., to be sufficient proof of the law.(c) The unwritten law 
 
 (t) Kempton v. Cross, Cas. Temp. Hardw. 107. Rose. Ev. 82. 2 Phill. Ev. 173. 
 
 (u) Ellen v. Keddel, 8 East, 187. Davis v. Williams, 13 East, 232. 
 
 (v) Rex v. Haines, per Holt, Comb. 337. 12 Vin. Ab. Ev. A. b. 26, p. 99. Rose. Ev. 80. 
 
 (w) 3 East, 221. 2 Phil. Ev. 143. See also Buchanan v. Rucker, 1 Camp. 63. Flindt v. 
 Atkins, 3 Camp. 215, in a note. 
 
 (to) The 6 Geo. 4, c. 133, s. 7, enacting that the common seal of the society of apothe- 
 caries of the city of London shall be received as sufficient proof of the authenticity of the 
 certificate to which such seal is affixed, does not make such certificate evidence without 
 proof that the seal affixed is the genuine seal of the society, Chadwick v. Bunning, a R. & M. 
 N. P. C. 306. 
 
 (x) Cavan v. Stewart, 1 Stark. N. P. C. 525. 
 
 (y) Alves v. Bunbury, 4 Camp. 28. 2 Phill. Ev. 143. 
 
 (z) Black v. Lord Baybrook, b 2 Stark. N. P. C. 11, 12. 
 
 la) Appleton v. Lord Baybrook, 2 Stark. N. P. C. 6, 7. 6 M. & S. 34. 2 Phill. Ev. 143. 
 
 (fj) Clegg v. Levy, 3 Camp. 166. Rose. Ev. 82. (c) Lancon v. Higgins, 3 Stark. 178. 
 
 f {See 1 Stark. Ev. 103, [New ed. 196,] note (2). 2 ib. 569, notes. 2 Wend. 411, Pack- 
 rrd v. Hill. Ry. & Mood. N. P. C. 190, National Bank, &c. v. De Barnales, Ace. 
 
 The laws of the other States in the Union are foreign laws, in this respect. 3 Pick. 293. 
 9 ib. 130, 6 Connect. Rep. 489, Hempstead v. Raed. 1 Rawle,386, Ripple v. Ripple. 5 Har. 
 & Johns. 86, Bapiste v. De Volunbrun.} 
 
 a Eng. Com. Law Reps. xxi. 447. b Ib. iii. 218. c Ib. iii. 217.
 
 810 OF EVIDENCE. [BOOK VI. 
 
 of a foreign state may be proved by the parol evidence of witnesses 
 possessing professional skill. ((7) So a person of experience in the pro- 
 fession of the law of another country may state his opinion what, 
 according to the law of that country, would be the legal effect of the 
 facts previously spoken to by the witnesses, taking the facts to be ac- 
 curate. Thus a gentleman at the Scotch bar has been allowed to state 
 his opinion, whether a marriage, as proved by the witnesses would be 
 valid according to the Scotch law.(e) And where, on an indictment for 
 bigamy, it was proved that the prisoner had been married to a soldier 
 of the name of Dent, and afterwards to one Wall, and the defence was 
 that Dent had been legally married in Scotland, previous to his marriage 
 with the prisoner, and a witness proved that Dent being with his regi- 
 ment in Scotland, the witness, Dent, a female, and several others went 
 to a house, to which they were directed after inquiring for the house of 
 the clergyman of the place, where a gentleman performed a ceremony 
 *811 *somewhat similar to the marriage service of the Church of England, 
 between Dent and the female, and that they afterwards lived together 
 as man and wife ; Wightman, J., held that a gentleman, who had lived 
 in Scotland until he was twenty, and who had frequently been there 
 since, and who was possessed of very considerable literary attainments, 
 and stated that he was well acquainted with the law of marriage in 
 Scotland, although he was not a lawyer, was competent to prove that 
 the marriage in question was a valid marriage according to that law.(/) 
 Irish judg- A judgment obtained in one of the superior courts in Ireland, since the 
 Conviction Union, is not a record in England. (^7) Convictions before justices of the 
 before jus- peace are either produced in court, and the handwriting of the magis- 
 tices °f the ^ ra j. eg ^ t\ iem proved, ((/</) or they may be proved by examined copies, 
 Public which the clerk of the peace of the proper county will make out, upon 
 books. an application for that purpose. (A) In many instances, public books 
 are admitted in evidence to prove the facts recorded in them. The 
 muster-book in the navy-office has been admitted in evidence, to prove 
 the death of a sailor;(/) the book from the master's office in the Court 
 of King's Bench, to prove a person one of the attorneys of that court;(J) 
 and the log-book of a man-of-war, which convoyed a fleet, to prove the 
 time of the convoy's sailing. (k\ Bank-books are good evidence to prove 
 the transfer of stock ;(?) and on a prosecution for a libel published con- 
 cerning a person in his office of treasurer of a parish, an entry in a 
 vestry-book, stating that he was elected at a vestry duly held in pur- 
 suance of notice, has been considered sufficient evidence, to support an 
 allegation in the indictment, that he was duly elected treasurer.^???) The 
 day-book of a public prison, containing a narrative of the transactions 
 of the prison, has been received upon the same principle, as proof of 
 the time of a prisoner's commitment or discharge :(n\ but it would not 
 
 (d) Per Gibbs, C. J., Miller v. Kenrick, 4 Camp. 155. Rose. Ev. 82. 
 
 (e) Rex v. Wakefield and others, Murray ed., p. 238. 
 
 ( f) Reg. v. Dent, Monmouth Spring As's. 1843, MSS. C. S. G. See ante, vol. 1, p. 212. 
 (g) Harris v. Saunders, a 4 B. & C. 411. 
 
 (gg) Massey v. Johnson, 12 East, 67. Gray v. Cookson, 16 East, 13. Mason v. Barker, 
 Gloucester Spr. Ass. 1843, Erskine, J. MSS. C. S. G. 
 (h) Archb. Cr. P. 126. (i) Bull. N. P. 249. Rhodes's case, 1 Leach. 24. 
 
 \j) Rexv. Cropley, 2 Esp. N. P. C. 524. (k) D'Israeli v. Jowett, 1 Esp. N. P. 0. 127. 
 (I) Breton v. Cope, Peake, N. P. C. 30. Marsh v. Colonet, 2 Esp. N. P. C. 665. 
 (m) Rex v. Martin, 2 Campb. 100. (n) Rex v. xlickles, 1 Leach, 391. 
 
 a Eng. Com. Law Reps. x. 273.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 811 
 
 be admissible to prove the cause of bis commitment. (o) So on an in- 
 dictment for forging a seaman's will, an entry in a book called the assig- 
 nation book, in which all cases are officially entered, was admitted to 
 prove the probate revoked, (p) So the poll-books taken at an election 
 for members of parliament, or at an election of a mayor, are evidence. (q) 
 The registers of christenings, marriages, and burials, preserved in Registers, 
 churches, are good evidence :(r) and in order to prove the register of a 
 marriage, it is not necessary to call the attesting witnesses ; but as the 
 register affords no proof of the identity of the parties, some evidence of 
 that fact must be given, as by calling the minister, clerk, or attesting 
 witnesses, if they were acquainted with the parties ; or the bell-ringers 
 may be called to prove that they rung *the bells, and came imme- *812 
 diately after the marriage, and were paid by the parties ; or the hand- 
 writing of the parties may be proved ; or persons may be called who 
 were present at the wedding dinner, &c.(s) Whenever an original is of Proof of 
 a public nature, and admissible in evidence, an examined copy is also P ub l 1C y. 
 admissible, (f) Thus examined copies of the entries in the council-book, examined 
 or of a license preserved in the Secretary of State's Office,^) of entries C0 P ies - 
 in the bank-books,(v) of entries in the books of the East India Com- 
 pany,^) or in the books of the commissioners of the land-tax, (a:) or of 
 excise,(y) are allowed to be read in evidence. So an examined copy of 
 a parish register is evidence :(z) but not an examined copy of the register 
 of a marriage in the Swedish ambassador's chapel in Paris, (a) It 
 seems, however, that the book of the King's Bench or Fleet prisons, 
 which, as it has been just mentioned, are evidence of the time of a 
 prisoner's discharge, are not such public documents, that a copy of 
 them may be given in evidence. (6) 
 
 The judicial records of the King's Court are safely kept for public inspection 
 convenience, that any subject may have access to them for his necessary of records. 
 use and benefit; which was the ancient law of England, and is so de- 
 clared by an act of parliament in the 46th year of Edward III.(c) But 
 in the case of an acquittal on a prosecution for felony, a copy of the Copy of in- 
 indictment cannot be regularly obtained without an order from the a ft e ^ac- 
 court.(cZ) This rule proceeds from an *anxiety to protect prosecutors *813 
 
 (0) Salte v. Thomas, 3 B. & P. 188. 2 Phil. Ev. 164. 
 
 (p) Ramsbottom's case, 1 Leach, 25, in note. It would have been no bar to the convic- 
 tion had the probate been unrepealed. Rex v. Buttery and another, Russ. & Ry. 342. 
 (q) Mead v. Robinson, Willes, 224. (?•) Bull. N. P. 247. 
 
 (a) Birt v. Barlow, Dougl. 171. Rose. Ev. 84. 
 
 (1) Rose. Ev. 83. Lynch v. Clerke, 3 Salk. 154. 
 
 (?<) Eyre v. Palsgrave, 2 Campb. 606. (v) Marsh v. Colnett, 2 Esp. 665. 
 
 (w) Dougl. 593, n. (x) Rex v. King, 2 T. R. 234. 
 
 (y) Fuller v. Fotch, Carth. 346. (a) Bull. N. P. 247. 
 
 (a) Leader v. Barry, 1 Esp. 353. 
 
 lb) Salte v. Thomas, 3 B. & P. 190. 2 Phill. Ev. 164. (c) 2 Phill. Ev. 174. 
 
 (d) This practice originated with an order made in the 16 Car. 2, by Hyde, Chief Justice 
 of the King's Bench; Bridgman, Chief Justice of the Common Pleas; Twisden, J., Tyril, J., 
 and Kelyng, J., "to to observed by the justices of the peace and others at the sessions in 
 the Old Bailey," as follows : — " That no copies of any indictment for felony be given with- 
 out special order, upon motion made in open court, at the general gaol delivery upon 
 motion, for the late frequency of actions against prosecutors (which cannot be without 
 copies of the indictments) deterreth people from prosecuting for the king upon great occa- 
 sions." Kcl. 3. The jurisdiction of these judges to make this order appears extremely 
 questionable, and has been frequently doubted. See Browne v. Cumming, a 10 B. & C. 70, 
 and the authorities there referred to. In Rex v. Brangan, 1 Leach, 27, the prisoner having 
 been acquitted, applied fur a copy of the indictment; but Willes, C. J., admitting that the 
 prosecution bore the strongest marks of being malicious, refused the application, because 
 a Eng. Com. Law. Reps. xxi. 27.
 
 813 OF EVIDENCE. [BOOK VI. 
 
 quitted, from being harrassed by unfounded actions for malicious prosecutions, 
 
 how ob- w hi c h actions cannot be maintained without proving tbe fact of the*pro- 
 
 In case of secution by tbe record or an examined copy of it, and it is therefore not 
 
 felonies. usua l to grant a copy of the record of acquittal, where there is any the 
 
 least probable cause for the prosecution. (e) But the copy is admissible 
 
 without proof of the order of the court allowing a copy of the record ; 
 
 for though it be the duty of the officer, charged with the custody of the 
 
 records of the courts, not to produce a record, or give a copy of it but 
 
 upon competent authority, yet if the officer, in neglect of his duty shall 
 
 have given a copy, or produces the original, the evidence in itself is 
 
 In cases of unobjectionable, and must be received. (/) The rule is confined to cases 
 
 misde- £ f e i 0D y : j n prosecutions for misdemeanors, the defendant is entitled 
 
 meanor. « i » • 1 • 1 • i» 
 
 Inspection to a copy of the record, as a matter or right, without a previous apph- 
 of deposi- ca tion to the court. (g\ Formerly a defendant on a criminal charge was 
 not entitled to an inspection of the grounds upon which the prosecution 
 was instituted ;{Ji\ and, therefore, neither in cases of treason nor of 
 felony had he any right to a copy of the depositions of the witnesses 
 who were to appear against hini.(i') 
 6& 7 Wm. But now the 6 & 7 Wm. 4, c. 114, "an act for enabling persons 
 
 4, e. 114, s. i n di e ted of felony to make their defence by counsel or attorney," by 
 of deposi- sec. 3, enacts "that all persons who after the passing of this act shall 
 tions to be ^ e hgjd to bail or committed to prison for any offence against the law, 
 
 it was not necessary that he should grant it, declaring that by the laws of this realm every 
 prisoner, upon his acquittal, had an undoubted right and title to a copy of the record of 
 such acquittal, for any use he might think fit to make of it, &c. ; and that after a demand 
 of it had been made the proper officer might be punished for refusing to make it out. In 
 Browne v. Cumming, the court expressed no opinion as to the authority of the judges to make 
 the order, but refused to restrain the plaintiff from using a copy of an indictment alleged 
 to have been improperly obtained, on the ground that taking all the facts together they did 
 not think there had been a mistake or misrepresentation of such a nature as to call upon 
 the court to interfere. The order in question, if not expressly overruled, is much shaken by 
 Rex v. The Justices of Middlesex,* 5 B. & Ad. 1113. In that case Bowman had been tried 
 and convicted of larceny at the Clerkenwell sessions, after that session had lapsed for want 
 of an adjournment, and being indicted for the same offence afterwards, at the Old Bailey, 
 he proposed to plead autrefois convict, and the court adjourned the case to give time for an 
 application for a copy of the record ; Rex v. Bowman, b 6 C. & P. 101 ; and application was 
 afterwards made to the clerk of the peace for a copy of the record, which was refused. 
 And the Court of the Queen's Bench granted a mandamus to make up the record of the pro- 
 ceedings against Bowman, on the ground that " the prisoner had a right to have the record 
 of the proceedings, which passed at sessions correctly made up, and to make any use of it 
 he could." The report in Rex v. The Justices of Middlesex, erroneously states the applica- 
 tion for the mandamus to have been after the prisoner had pleaded his former conviction. 
 See Rex v. Bowman, 15 6 C. & P. 101, and 337. This case seems to overrule Rex v. Vender- 
 comb and Abbott, 2 Leach, 708, and Rex v. Perry , c 7 C. & P. 836, where the court refused 
 to grant the prisoners copies of their indictments, in order to enable them to plead autrefois 
 acquit, and seems to establish the position that the prisoner is entitled, as of right, to a copy 
 of the indictment for such a purpose; and, if for such a purpose, it is difficult to see why 
 he should not have the same right for the purpose of instituting a civil suit to seek repara- 
 tion for the injury which he has sustained by the malicious conduct of the prosecutor. C. 
 
 5. G. 
 
 (e) Tidd, 747. (/) Legatt v. Tollervev, 14 East, 302. 
 
 (g) Morrison v. Kelly, 1 Bla. Rep. 385. Evans v. Phillips, MS. Selw. N. P. 952. 2 Phil. 
 Ev. 176. 
 
 (h) 2 Phil. Ev. 178. 
 
 (i) 2 Phil. Ev. 178. In some species of treason the prisoner is entitled to a copy of the 
 indictment, ibid. Rex v. Holland, 4 T. R. 691. In that case an information had been filed 
 against an officer of the East India Company, on charges of delinquency founded upon a 
 report of a board of inquiry in India : and the Court of King's Bench were of opinion that he 
 had no right to have an inspection of that report, and that the court had no discretionary 
 power to grant it. 
 
 a Eng. Com. Law Reps, xxvii. 2S1. b lb. xxv. 300. c lb. xxxii. 761.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 811 
 
 shall be entitled to require and have, on demand (from the person who allowed to 
 shall have the lawful custody thereof, and who is hereby required to P nsoners - 
 deliver the same) copies of examinations of witnesses respectively upon 
 whose depositions they have been so held to bail, or committed to prison, 
 on payment of a reasonable sum for the same, not exceeding three-half- 
 pence for each folio of ninety words; provided always, that if such de- 
 mand shall not be made before the day appointed for the commencement 
 of the assize or sessions at which the trial of the person on whose be- 
 half such demand shall be made is to take place, such person shall not 
 be entitled to have any copy of such examination of witnesses, unless 
 the judge or other person to preside at such trial, shall be of opinion 
 that such copy may be made and delivered without delay or inconve- 
 nience to such trial: but it shall nevertheless be competent for such 
 judge or other person so *to preside at such trial, if he shall think fit, *814 
 to postpone such trial on account of such copy of the examination of 
 witnesses not having been previously had by the party charged." 
 
 By sec. 4, "all persons under trial shall be entitled, at the time of 
 their trial, to inspect, without fee or rewards, all depositions (or copies 
 thereof) which have been taken against them, and returned into the 
 court before which such trial shall be had."(j»') 
 
 (/) Sec. 1 of this act, reciting that "it is just and reasonable that persons accused of 
 offences against the law should be able to make their full answer and defence to all that is 
 alleged against them," enacts that, after the 1st of October, 1836, "all persons tried for 
 felonies shall be admitted, after the close of the case for the prosecution, to make full answer 
 aud defence thereto, by counsel learned in the law, or by attorney, in courts where attorneys 
 practise as counsel." Sec. 2, declares and enacts, " that in all cases of summary conviction, 
 persons accused shall be admitted to make their full answer and defence, and to have all 
 witnesses examined and cross-examined by counsel or attorney." As to the practice which 
 has prevailed since this statute passed, it has been held that a prisoner's counsel cannot be 
 permitted to tell the jury any facts which he has heard from the prisoner, but which he is 
 not in a condition to prove. If the prisoner does not employ counsel, he is at liberty to make 
 a statement for himself, and tell his own story, which is to have such weight with the jury 
 as, all circumstances considered, it is entitled to ; but if he employs counsel, he must submit 
 to the rules which have been established with respect to the conducting cases by counsel. 
 Reg. v. Beark, a 8 C. & P. 142, Coleridge, J. And the same learned judge held, that after the 
 prisoner's counsel had addressed the jury for him, the prisoner himself was not at liberty 
 also to address them. Reg. v. Boucher, b 8 C. & P. 141. But where, on an indictment for 
 maliciously wounding the prosecutor when no other person was present, the prisoner had 
 made a statement before the magistrate, which was not put in by the counsel for the prose- 
 cution ; Alderson, B., permitted the prisoner to make a statement before his counsel addressed 
 the jury, and then his counsel addressed the jury, and commented on the prisoner's state- 
 ment, as according with the evidence, and only supplying what was otherwise deficient in 
 it. The learned baron said, " I think it is right that a person should have an opportunity 
 of stating such facts as he may think material, and that his counsel should be allowed to 
 comment on that statement, as one of the circumstances of the case. On trials for high 
 treason the prisoner is always allowed to make his own statement after his counsel has 
 addressed the jury. It is true that the prisoner's statement may often defeat the defence 
 intended by his counsel, but if so, the ends of justice will be furthered ; besides, it is often 
 the genuine defence of the party, and not a mere imaginary case invented by the ingenuity 
 of counsel." Reg. v. Malings, 1 8 C. & P. 242. And at the same assizes, Gurney, B., after 
 conferring with Alderson, B., allowed a similar course to be adopted, but said that he thought 
 it ought not to be drawn into a precedent ; and the prisoner read a written statement. Reg. 
 v. Walking, 8 C. & P. 243. The report does not state what the particular ('acts were in this 
 case. Bui where, on an indictment for child-murder, the two previous cases were cited, 
 and permission asked for the prisoner to make a statement, Patteson, J., said, "The general 
 rule certainly ought to be, that a prisoner defended by counsel, should be entirely in the 
 hands of his counsel, and that the rule should not be infringed on, except in very special 
 cases indeed. If the prisoner were allowed to make a statement, and stated as a fact any- 
 thing which could not be proved by evidence, the jury should dismiss that statement from 
 their minds ; but if what the prisoner states is merely a comment on what is already in evi- 
 a Eng. Com. Law Reps, xxxiv. 328 b lb. xxxiv. 371. ° lb. xxxiv. 372. 
 
 Vol. ii.— 53
 
 *815 or EVIDENCE. [book VI. 
 
 Rules as *At a meeting of the judges after the passing of this statute for the 
 
 'u -H-tiec purpose of choosing the Spring Circuits of 1837, (Littledale, J., Bosan- 
 after the quet, J., and Coleridge, J., being absent from indisposition,) a discus- 
 passing of g j on too ^ p] ace as to some points which were thought likely to occur at 
 bnte. the assizes, in consequence of the recent act for allowing prisoners in- 
 
 dicted for felony to make full defence by counsel; and the following 
 seemed to be the course of practice which the judges present thought 
 it would be most advisable to adopt. 
 
 1. That where a witness for the crown has made a deposition before 
 a magistrate, he cannot, upon his cross-examination by the prisoner's 
 counsel, be asked whether he did or did not, in his deposition, make 
 such or such a statement, until the deposition itself has been read, in 
 order to manifest whether such statement is or is not contained therein; 
 and that such deposition must be read as part of the evidence of the 
 cross-examining counsel, (/i) 
 
 2. That, after such deposition has been read, the prisoner's counsel 
 may proceed in his cross-examination of the witness, as to any supposed 
 contradiction or variance between the testimony of the witness in court 
 and his former deposition; after which the counsel for the prosecution 
 may re-examine the witness, and after the prisoner's counsel has ad- 
 dressed the jury, will be entitled to the reply. And in case the counsel 
 for the prisoner comments upon any supposed variance or contradiction, 
 without having read the deposition, the court may direct it to be read, 
 and the counsel for the prosecution will be entitled to rely upon it. 
 
 3. That the witness cannot, in cross-examination, be compelled to 
 answer, whether he did or did not make such or such a statement before 
 the magistrate, until after his deposition has been read, and it appears 
 that it contains no mention of such statement. In that event the counsel 
 for the prisoner may proceed with his cross-examination : and if the 
 witness admits such statement to have been made, he may comment 
 upon such omission, or upon the effect of it upon the other part of the 
 testimony; or if the witness denies that he made such statement, the 
 counsel for the prisoner may then, if such statement be material to the 
 matter in issue, call witnesses to prove that he made such statement. 
 But in either event, the reading of the deposition is the prisoner's evi- 
 dence, and the counsel for the prosecution will be entitled to reply. 
 
 4. If the only evidence called on the part of the prisoner, is evidence 
 
 dence, his counsel can do that much better than he can." The prisoner did not make any 
 statement. Keg. v. Rider, a 8 C. & P. 539. And where, on an indictment for a misdemeanor, 
 in uttering base coin, a prisoner wished to make a statement of facts to the jury before his 
 counsel addressed them, and it was said that Lord Denman, C. J., had allowed it to be done ; 
 Bosanquet, J., refused to permit it, and observed that he was not informed of the circum- 
 stances of the cases decided on this act, which he thought could only be meant to put pri- 
 soners in the same situation in felonies as they were in before in misdemeano'rs, and in those 
 cases, certainly a defendant could not be allowed the privilege of two statements, one by 
 himself, and one by his counsel. Reg. v. Burrows, 2 M. & Rob. 124. Soon after the passing 
 of this statute, a very learned judge desired it to be understood, that wherever there was 
 counsel for the prisoner, the case should always be opened. Per Parke, B., in Rex v. 
 Gascoine, b 7 C. & P. "772. The practice, however, has been, since the statute, as before, 
 only to open the case where the facts have some peculiarity in them, or the nature of the 
 charge itself is such as to require an opening, in order to direct the jury's attention to the 
 particular points for their consideration ; and as the case in which the learned baron is said 
 to have made the observation, was one of stealing and receiving stolen hay, he may, per- 
 haps have thought that the latter charge required some explanation, under the circum- 
 stances of the case, before the evidence was adduced. C. S. G. 
 
 (k) See post, in the section, "How the credit of witnesses may be impeached." 
 « Eng. Com. Law Reps, xxxiv. 521. b lb. xxxii. 729.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 815 
 
 to character, although the counsel for the prosecution is entitled to the 
 reply, it will be a matter for his discretion whether he will use it or 
 not. Cases may occur in which it may be fit and proper so to do.U) 
 
 5. In cases of public prosecutions for felony, instituted by the crown, 
 the law officers of the crown, and those who represent them, are, in 
 strictness, entitled to the reply, although no evidence is produced on the 
 part of the prisoner. (m) 
 
 *A prisoner is not entitled under the act to a copy of his own exa- *816 
 mination, taken before the committing magistrate, which has been re- Cases de- 
 turned with the depositions, but only to a copy of the depositions of £his staT™ 
 the witnesses against him.(?i) This decision, observes Mr. Phillips, (ran..) tute. 
 is founded on the express language of the act, which speaks of deposi- 
 tions of witnesses, and says nothing of the examinations of prisoners. 
 Yet it may in some cases be as necessary for the full defence of the 
 prisonor, that he should be furnished with a copy of his own statement 
 taken in writing before the magistrate, as it is to have a copy of the 
 depositions, especially where a part of the case for the prosecution con- 
 sists of evidence intended to disprove or contradict the prisoner's state- 
 ment. In such a case, if it were necessary for the ends of justice, the 
 judge, by virtue of his judicial authority, might allow the prisoner to 
 inspect his written examination. (o) 
 
 Where the prisoner was committed for receiving iron, knowing it to 
 have been stolen, and a person, who had been committed as having 
 stolen the iron, was admitted as a witness for the crown, Patteson, J., 
 allowed the prisoner's counsel to inspect the depositions which had been 
 returned against the person charged as the thief.(p) 
 
 "Where a true bill was found against a prisoner for the murder of a 
 person, on the investigation of whose death the coroner's jury returned 
 a verdict of "wilful murder against some person or persons unknown," 
 and the depositions taken before the coroner were in possession of the 
 officer of the court before whom the prisoner was to be tried ; it was held 
 that, although the coroner could not have been compelled to return the 
 depositions under the 7 Geo. 4, c. 64, s. 4; yet the judges had power 
 by their general authority as a court of justice, if they thought it es- 
 sential to the interests of justice, to order a copy of them to be given 
 to the prisoner.^) 
 
 Where civil rights are depending, a party has a right to inspect, and Inspection 
 take copies of such books, &c, as are of a, public nature, wherein he has of P ublic 
 an interest ;(/•) but a rule for inspecting a public writing is never Never 
 granted, where the party who has them in his custody would, by pro- granted in 
 ducing them for inspection, disclose any evidence of a criminal nature, cases" 11 
 
 (I) See ante, p. 785. 
 
 (m) 7 C. & P. a 676. The statute and the rules as to the practice under it have been in- 
 serted all together here, in order that the whole may be seeen at one view. C. S. G. 
 
 (n) Reg. v. Aylett," 8 C. & P. 669, Littledale, J., and Parke, B. 
 
 (nn) 2 Phill. Ev. 181. 
 
 (o) See per Coleridge, J., in Ex parte Greenacre, note (q), infra. 
 
 (p) Reg. v. Walford, 8 C. & P. 767. The report docs aot state whether these depositions 
 were taken in the presence or absence of the prisoner. 
 
 (q) Ex parte Greenacre, 3 8 C. & P. 32, Littledale, J., and Coleridge, J. and per Coleridge, 
 J. " Supposing these depositions had been against some other person tried a year ago for 
 an offence witli which this particular prisoner had nothing to do ; yet if we had them, have 
 we not authority as a court of justice, if we think it essential to the interests of justice, to 
 order a copy of them to be given him? I think that we have." 
 
 (r) Tidd, 647. 
 
 a Eng. Com. Law Reps, xxxii. 682. b lb. xxxiv. 577. ° lb. xxxiv. 626. d lb xxxiv. 280.
 
 816 OF EVIDENCE. [BOOK VI. 
 
 or expose himself to a criminal prosecution ; for it is a constant and in- 
 variable principle that in criminal cases the party shall never be com- 
 pelled to furnish evidence against himself.(s) 
 2. Of the 2dly. Of the proof of private documents. The execution of all written 
 proof of instruments which are attested, whether under seal or not, must be 
 documents, proved by the subscribing witness, if he can be produced, and is capable 
 of being examined. Thus, not only bonds and other deeds, but attested 
 *817 notices to quit,(^) attested warrants to distrain, (?/)* attested bills of ex- 
 change, or promissory notes, must be proved by the attesting witness. (y) 
 And so strictly is this rule observed, that the testimony of the attesting 
 witness cannot be dispensed with, though an acknowledgment of the 
 obligor himself be proved, admitting that he executed the bond,(?«) or 
 the defendant has admitted the execution in his answer to a bill in 
 Chancery ;(x\ for though the party may acknowledge the bond, yet he 
 may not know every circumstance attending the execution ; " a fact 
 may be known to the subscribing witness, not within the knowledge or 
 recollection of the obligor, and he is entitled to avail himself of all the 
 knowledge of the subscribing witness relative to the transaction."^) 
 And although it was once held that if an attesting witness had become 
 blind, he need not be called, but it was sufficient to prove his hand- 
 writing ;(z\ and this course was adopted in another case. (a) Yet it has 
 since been held that a bond cannot be proved without calling the attest- 
 ing witness, although he is blind, as he may from his recollection of the 
 transaction, give most important evidence respecting it.(6) But where 
 the attesting witness is dead,(c) or insane, (d) or infamous,(e) or has be- 
 come interested after the execution of the deed,(y) or absent in a 
 foreign country, or not amenable to the process of the superior court, (^) 
 as where he is in Ireland, (A) or where he cannot be found after diligent 
 inquiry,({) evidence of the witness's handwriting is admissible. (wVf In 
 these cases the proof of the subscribing witness's handwriting is evi- 
 dence of the execution of the instrument by the party therein named, 
 whose signature the instrument purports to bear; and for the purpose 
 
 (s) Tidd, 649. 
 
 (t) Doe v. Durnford, 2 M. & S. 62. And it makes no difference that the party, upon whom 
 the notice was served, read it and made no objection. Ibid. 
 
 («) Higgs v. Dixon, a Stark. N. P. C. 180. (») 2 Phill. Ev. 202. 
 
 .(«>) Abbott v. Plumbe, 1 Doug. 216. (z) Call v. Dunning, 4 East, 53. 
 
 (y) By Le Blanc, J., 4 East, 53. 
 (z) Wood v. Drury, 1 Lord Raym. 734, Holt, C. J., at Warwick Assizes. 
 
 (a) Pedler v. Paige, 1 M. & Rob. 258, Park, J. A. J. 
 
 (b) Cronk v. Frith, b 9 C. & P. 197. Lord Abinger, C. B. 
 
 (c) Anon., 12 Mod. 607. (d) Currie v. Child, 3 Camp. 283. 
 (e) Jones v. Mason, 2 Stra. 833. (/) Godfrey v. Norris, 1 Stra. 34. 
 
 (g) Prince v. Blackburn, 2 East, 250. (A) Hodnett v. Forman, c 1 Stark. N. P. C. 90. 
 (i) Cunliffe v. Sefton. 2 East, 183. 
 
 (it) 2 Phill. Ev. 210, et seq. See also what will be considered a diligent inquiry so as to 
 let in such evidence, ibid., 212, et seq. 
 
 f [When the subscribing witness to a deed or other instrument of writing, is out of the 
 jurisdiction of the court, proof of his handwriting is sufficient evidence of the execution of 
 the instrument, without any proof of the handwriting of the parties therein named. The 
 People v. Rowland, 5 Barbour's Sup. Ct. Rep. 449. 
 
 The declarations of a subscribing witness in respect to his place of residence, are compe- 
 tent evidence to show that he is beyond the jurisdiction of the court, so as to let in proof of 
 his handwriting. Hid. 
 
 When a contract in writing comes incidentally in question upon the trial of a suit, its 
 execution may be proved by other testimony than that of the subscribing witness. Curtis 
 v. Belknap, 21 Vermont, 433.] 
 
 a Eng Com. Law Reps. iii. 304. b lb. xxxviii. 76. c lb. ii. 309.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 817 
 
 of proving the execution, that is, that the instrument was executed by 
 the party so named, it will not be necessary to prove the handwriting 
 by the party. (A But with a view to establish the identity of the party, 
 and to show that the person who executed the instrument is the party 
 to the suit, or the party charged, proof of the party's handwriting may be 
 important and most satisfactory evidence. (J) And it seems to be settled 
 that where a written instrument is attested by a subscribing witness, 
 who is dead, or abroad, or out of the reach of the process of the court 
 at the time of the trial, or cannot be found, it is requisite to give some 
 evidence that the party who signed the instrument is the defendant 
 sought to be charged under it, as well as to prove the handwriting of 
 the subscribing witness. Where, therefore, the attesting witness to a 
 promissory note was in Canada, and his handwriting was proved by his 
 nephew, who did not know where either the defendant or the plaintiff 
 lived, or anything about the defendant, or about his making his mark 
 to the note, the Court of Exchequer held that this was insufficient; for *818 
 although proof of the attestation would be evidence of everything on 
 the face of the instrument, viz., of everything he as attesting witness 
 asserted, yet by his attestation he does not assert that this defendant 
 signed the note ; but that some F. M. did ; that F. M. is left unidentified 
 and unconnected with the person sued ; but the issue to be proved is 
 that this F. M. executed.^-) Evidence that the defendant was present 
 when the instrument was prepared, (I) or that he had made acknowledg- 
 ments respecting it,(m) would be sufficient to connect him with the in- 
 strument. And if an instrument describes a party on the face of it by 
 name, place of abode, and trade, (as F. M. of R. in the county of Y., 
 carpenter,) the cases establish that proof of the handwriting of the sub- 
 scribing witness would be sufficient to show that it was signed by a per- 
 son truly described as being of that name and place ; but still the plain- 
 tiff must show that the defendant corresponds with that description. (n\ 
 The handwriting of a party may be proved by a witness who has seen Handwrit- 
 him write ; and, if a witness states that he has only seen him write once, in & ho . w 
 
 Drovci. 
 
 but thinks the signature is his handwriting, it is evidence to go to the jury, 
 although he says he can form no belief on the subject. (o) A written 
 correspondence with the party, although the witness has never seen him 
 write will be sufficient to enable him to speak to the handwriting ; for 
 when letters are sent directed to a particular person, and on particular 
 business, and an answer is received in due course, a fair inference arises, 
 that the answer was sent by the person whose handwriting it purports 
 to be.(p) So where a witness who had never seen the defendant, but 
 had corresponded with a person of defendant's name living at Plymouth 
 dock, where the defendant resided, and where, according to other evi- 
 dence, there was no other person of the same name, stated that the 
 
 (/) 2 Phill. Ev. 214. 
 
 (*) Whitlock v. Musgrave, 3 Tyrw. 541. 1 C. & M. 521. 
 
 (I) Nelson v. Whittall, 1 B. & A. 19. (m) Whitlock v. Musgrave, supra. 
 
 (n) Whitlock v. Musgrave, supra, per Bayley, J. 
 
 (o) Garrels v. Alexander, 4 Esp. 37. The signature of a person may be proved by a wit- 
 ness who has seen him write his surname only. Lewis v. Sappio, a M. & Malk. N. P. C. 39, 
 by Abbott, C. J., overruling Powell v. Lord," 2 Stark. R. 164. 2 Phill. Ev. 249. A witness 
 may prove the identity of a mark from having seen the person make it on several occasions. 
 Ceorge v. Surrey, M. & M. 516. 
 
 (p) Per Lord Kenyon, Cary v. Pitt, Peafee Ev. App. 85. 
 
 a Eng. Com. Law Reps. xxi. 242. b lb. iii. 296. c lb. xxii. 371.
 
 818 OF EVIDENCE. [BOOK VI. 
 
 handwriting in question was the handwriting of the persons with whom 
 he corresponded, the evidence was held sufficient. (j)f So where, on 
 an information for a libel, in order to show that certain letters were in 
 the handwriting of the defendant, a witness proved that he had never 
 seen the defendant write, but he had seen a number of letters, which 
 purported to have come from him on the subject of a cause, in which 
 he was engaged on one side, and the witness on the other side, and the 
 witness had acted upon those letters in the course of the cause ; Lord 
 Tenterden, C. J., held that the witness was competent to prove the 
 defendant's handwriting. (r) 
 
 It is an established rule, that handwriting cannot be proved by com- 
 paring the paper with any other papers acknowledged to be genuine. Mt 
 
 (g) Harrington v. Fry, a 1 Ry. & Mood. 90. 
 
 (r) Rex v. Slaney," 5 C. & P. 213. (s) Ante, p. 393. 2 Phill. Ev. 251. 
 
 f {As to the knowledge required of a witness, in order to make his testimony competent 
 to prove another's handwriting — see 1 Pennsylv. Rep. 216, Slaymaker v. Wilson, 3 Wend. 
 102, Utica Ins. Company v. Badger. 1 Hawks. 6, State v. Allen. 3 Halsted, 87, Goldsmith 
 v. Bane, 2 Stark. Ev. 651, [new ed. 372,] et seq. 
 
 In Hammond's case, 2 Greenleaf, 33, a witness was held competent to testify to his belief 
 of the genuineness of handwriting, from having seen and " critically examined " writings 
 which the party acknowledged to be his, though the witness had never seen him write, nor 
 corresponded with him. 
 
 And in Jackson v. Woodruff & al., 9 Cowen, 140, where there was a dispute as to the iden- 
 tity of a witness to a deed, there being several persons of the same name, a witness, in order 
 to identify him, was allowed to compare the handwriting, subscribed as an attestation to the 
 deed, with another writing long in his possession, and reputed to be the handwriting of a 
 man of the name subscribed, though he had never seen that man write. The evidence was 
 received without objection ; and the court inclined to think it would have been admissible 
 for the purpose of identity, even if it had been objected to.} 
 
 [When a witness to the signature of a firm did not know the handwriting of either mem- 
 ber of the firm, but had presented notes to the firm, signed in the same hand, and they had 
 been paid by the firm, he was held to be a competent witness, and his evidence was admit- 
 ted to the jury, who were left to find whether the firm did sign the bill in suit. Gordon v. 
 Price, 10 Iredell, 355.] 
 
 J {There is great confusion in the books, English and American, on the subject of " com- 
 parison of hands." When it is said, as in the text, " that handwriting cannot be proved by 
 comparing the paper" in dispute, " with any other papers acknowledged to be genuine," — 
 the cursory reader is liable to be misled. The proposition is true, in England, only with 
 reference to witnesses. A witness cannot be permitted to give his opinion to the jury, 
 whether a disputed paper is genuine or spurious, by comparing it with another acknow- 
 ledged or proved to be genuine. But the jury are allowed to compare disputed with undis- 
 puted signatures, &c, for the purpose of assisting their judgment respecting the genuineness 
 of the former. 6 Mod. 167, Osbourne v. Hosier, Holt, 194, S. C. 1 Esp. Rep. 351, Alles- 
 brook v. Roach. In a very recent case in the Exchequer, the court says — " Where two 
 documents are in evidence, it is competent for the court or the jury, to compare them. The 
 rule as to the comparison of handwriting applies to witnesses, who can only compare a 
 writing, to which they are examined, with the character impressed upon their own minds ; 
 but that rule does not apply to the court or jury, who may compare the two documents, 
 when they are properly in evidence." And a new trial, moved for because the jury had 
 taken out and compared other undisputed writings with that in question was refused. 1 
 Crompton & Jervis, 47, Griffith v. Williams. 
 
 The rule that a witness cannot give testimony concerning disputed handwriting merely 
 by comparing it, by juxtaposition, with another writing acknowledged or proved to be the 
 party's, has seldom, if ever, been violated in England. See an elaborate note on this sub- 
 ject, 4 Esp. Rep. 273, a, (Day's ed.) 4 Car. & Payne, 1, [Eng. Com. Law Reps. xix. 247.] 
 Clermont v. Tullidge. 
 
 It is said by some English writers, that " mere comparison of hands," even by a jury, 
 " unsupported by other circumstances," is not to be received. And such is the rule adopted 
 by several of the State courts. In M'Corkle v. Binns, 5 Binney, 349, Tilghman, C. J., says — 
 •After evidence has been given in support of a writing, it may be corroborated by com- 
 paring the writing in question with other writings, concerning which there is no doubt." 
 The same doctrine is asserted in 10 Serg. & Rawle, 110, Farmers' Bank v. Whitehill, and 1 
 Pennsylv. Rep. 161, Bank of Pennsylvania v. Jacobs's Adm'rs. In these two last cases, 
 a Eng. Com. Law Reps. xxi. 388. b lb. xxv. 285. c lb. xxxi. 382.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 818 
 
 But upon the question respecting the identity of handwriting the jury 
 may be allowed to take other papers, which have been proved to be 
 the writing of the party whose handwriting is *disputed — provided they *819 
 are part of the proofs in the cause, — and may compare them with the 
 disputed writing, for the purpose of forming their opinion whether the 
 disputed writing is genuine. (/) But it is an established qualification of 
 this rule that documents, irrelevant to the issues on the record, are not 
 to be received in evidence at the trial, in order to enable the jury to in- 
 stitute such a comparison. (w) Upon an indictment for sending a threat- 
 ening letter, there being no proof that the prisoner sent it, except from 
 its being supposed to be in his handwriting, and the evidence of hand- 
 writing being very slight; Bolland, B., held that the counsel for the 
 prosecution could not put in a document undoubtedly written by the 
 prisoner, but unconnected with the charge in the indictment, that the 
 jury might inspect it, and compare it with the letter in question. (i>) 
 And it cannot be permitted to introduce writings irrelevant to the mat- 
 ters in issue, in order to enable a witness to institute such a compari- 
 son. (io\ Neither can a witness be cross-examined as to other docu- 
 ments which are not in evidence in the case. In an action on a bill of 
 exchange against the acceptor, the defendant's witnesses swore that 
 they believed that the acceptance was not in his handwriting, and it 
 was held that a paper purporting to be signed by the defendant could 
 not be laid before each of the defendant's witnesses in cross-examina- 
 tion, in order to ask them whether they believed the signature to be 
 that of the defendant, for the purpose of testing their knowledge of his 
 handwriting by the agreement or disagreement of their testimony on 
 this point, (ic)-j" 
 
 (t) 2 Phill. Ev. 256. Griffith v. Williams, 1 Cr. & J. 47. Doe d. Perry v. Newton," 5 A. & 
 E. 514. 1 Nev. & P. 4. Solita v. Yarrow, 1 M. & Rob. 133. Eaton v. Jervis, b 8 C. & P. 273. 
 
 (u) 2 Phill. Ev. 256. Bromage v. Rice, 7 C. & P. 548, Littledale, J., and Patteson, J. 
 Griffith v. Williams, supra. Doe d. Perry v. Newton, supra. 
 
 (v) Rex v. Morgan, 1 M. & Rob. 134, note. (w) 2 Phill. Ev. 256. 
 
 (z) Griffits v. Ivery, d 11 A. & E. 322, 3 P. & D. 179. And Lord Denman was of opinion 
 that the objection would not be removed by independent proof that the paper was in fact 
 written by the defendant. In Hughes v. Rogers, 8 M. & W. 123, Parke, B., stated that he 
 had acted in conformity with this decision in a case at Stafford. 
 
 however, the court of Pennsylvania held that a witness may give his opinion, (by way of 
 corroborating other evidence,) on comparison of the writing in question with other writings 
 not disputed. 
 
 In South Carolina and New Hampshire, it is held that comparison by the jury is allow- 
 able in aid of doubtful proof, but that it is not evidence per se. 2 M'Cord, 518, Administrator 
 of Bowman v. Plunkett. 3 N. Hamp. R. 47, Myers v. Toscan. 
 
 In Virginia, it has recently been decided that even the jury shall not be allowed to com- 
 pare a genuine with a disputed paper, in any case. 1 Leigh, 216, Rowt's Administratrix < 
 Kile's Administrator. See also 6 Randolph, 316, Bedford's Administrator v. Peggy. 
 
 In Massachusetts, the English rule, as above stated, has been adopted. 11 Mass. R. 300, 
 Homer v. Wallis. The evidence received in this case was corroborative — but the court give 
 no intimation that it must be thus confined. See Stark. Ev. 651 to 658, (new ed. 272 to 
 376,) and notes. 
 
 In cases of public officers, and perhaps of other persons also, who have been so long dead 
 that better proof cannot be expected — it seems there is an exception to the rule confining the 
 admission of evidence by comparison of hands to corroborate merely. In such cases it seems 
 to be evidence alone. See 7 East, 282, note (a), 14 East, 327, Moorewood v. Wood. 8 Price, 
 653, Taylor v. Cooke. 14 Serg. & Rawle, 373, Vickroy v. Skelley &al. Per Tilghman, C. J. J 
 
 -j- [When handwriting is to be proved by comparison, the standard used for the purpose 
 must be a genuine and original writing, and must first be established by clear and un- 
 doubted proof. Impressions of writings taken by means of a press and duplicates made by 
 a copying machine, are not original, and cannot be used as standards of comparison. Com- 
 monwealth v. Eastman, 1 Cushing, 189. 
 
 Documents, the genuineness of which is admitted or established by clear, direct, and 
 
 a Eng. Com. Law Reps. xxxi. 382. b lb. xxxiv. 387. c lb. xxxii. 625. d lb. xxxix. 104.
 
 819 OF EVIDENCE. [BOOK VI. 
 
 Know- Questions have several times arisen whether a witness may speak to 
 
 wrifTne handwriting, not from direct comparison, but from a standard in his 
 acquired own mind, where that standard has been obtained by the inspection of 
 1 7 ins J >e0 " papers which have been shown to him purposely with a view to a par- 
 iloeuiuents. ticular cause. (3/) Where a witness had seen the alleged writer of a 
 disputed signature write several times for the purpose of showing the 
 witness his manner of writing; Lord Kenyon, C. J., rejected the evi- 
 dence, as the defendant might write differently from his common 
 writing through design. (z) "Where, however, a witness had observed 
 a name signed to an affidavit, which had been used by the plaintiff's 
 counsel in answer to an application to postpone the cause, and in the 
 affidavit it was sworn that the party signing it was the plaintiff's wife ; 
 Park, J. A. J., held that the witness might speak to that person's name 
 as the attesting witness to an agreement, purporting to be signed by the 
 plaintiff.(a) 
 Doer. Where a defendant in an ejectment produced a will, and one day of 
 
 bucker- ^ ^ r j a j ca jj e( j aD attesting witness, who swore that the attestation was 
 
 more. , . ... 
 
 #g20 bis, and on his cross-examination two signatures to depositions Res- 
 pecting the same will in an ecclesiastical court, and several other sig- 
 natures were shown to him, (none of these being in evidence for any 
 other purpose of the cause,) and he stated that he believed them to be 
 his, and on the following day the plaintiff tendered a witness to prove 
 the attestation not to be genuine ; the witness was an inspector at the 
 Bank of England, and had no knowledge of the handwriting of the sup- 
 posed attesting witness, except from having, previously to the trial and 
 again between the two days, examined the signatures admitted by the 
 attesting witness, which admission he had heard made in court; and 
 the court of Queen's Bench were equally divided, Lord Denman, C. J., 
 and Williams, J., holding that the evidence of the witness was receiv- 
 Hughes v. able, and Patteson, J., and Coleridge, J., that it was not.(6) And 
 Rogers. where the plaintiff called the son of an attesting witness to a bond who 
 stated that the signature was not his father's handwriting, and the coun- 
 sel for the plaintiff then put into his hands another paper, not in evi- 
 dence in the cause, and asked him if that was in his father's handwri- 
 ting, to which he replied in the negative ; it was held that witnesses 
 could not be called on the part of the plaintiff to prove that this second 
 paper had been actually signed by the father in their presence, on the 
 ground that their evidence if received would have had the effect of 
 raising a collateral issue. (c\ 
 
 (y) 2 Phill. Ev. 259. (z) Stranger v. Searle, 1 Esp. 14. 
 
 (a) Smith v. Sainsbury," 5 C. & P. 196. 
 
 (6) Doe d. Mudd v. Suckermore, b 5 A & E. 703. 2 Nev. & P. 16. See 2 Phill. Ev. 260, 
 et seq., where the learned author considers this case with much ability, and contends for the 
 admissibility of the evidence. 
 
 (c) Hughes v. Rogers, 8 M. & W. 123. Alderson, B., said, "This case is very different from 
 that where a party denies one document to be in his handwriting, and admits others put 
 into his hands ; there it has been made a question whether these documents may not be 
 looked at by the jury in order to see whether they have really been written by the same 
 person ; on that point there has been some difference of opinion, but the real question there 
 is, does it enable the jury to appreciate the testimony given by the witness ?" 
 
 positive testimony in evidence in the case, may yet be permitted to go to the jury for the 
 purpose of comparison of handwriting. Adams v. Field, 21 Vermont, 256. 
 
 On a criminal trial, an expert in handwriting may testify whether, in his opinion anonymous 
 letters, written in a disguised hand, and calculated to divert suspicion from the defendant. 
 are in the defendant's handwriting, and may give his reasons for his opinion. Common- 
 wealth v. Webster, 5 Cashing, 295.] 
 
 a Eng. Com. Law Reps. xxiv. 2T5. b lb. xxxi. 406.
 
 CHAP. III. § I.] OF WRITTEN EVIDENCE. 820 
 
 A written instrument, which requires a stamp, in criminal as well as Stamps. 
 civil cases, is inadmissible in evidence, unless it be duly stamped, and 
 no parol evidence will be received of its contents. Thus, where the 
 prisoner, being a clerk, receiving money on his master's account, gave 
 to the debtor a receipt, on plain paper; the receipt was held, by Bayley, 
 J., not to be evidence against the prisoner on an indictment for embez- 
 zling the money so received. (<i) But in certain cases unstamped writ- Unstamp- 
 ten instruments have been received in evidence, when produced merely ed inst ™- 
 to prove something collateral, and not for the purpose of being enforced collateral 
 between the parties, and when it is not material to consider whether the purposes- 
 instruments are good or available in law.(e) Thus a paper, purporting 
 to be a bill of exchange, or promissory note, may be given in evidence 
 to support an indictment for forgery, or for uttering with a knowledge 
 of the forgery. (/) So on an indictment on the 7 Geo. 4, c. 50, s. 2, 
 for stealing a letter, where it appeared that the check or draft which 
 the prisoner had taken out of the letter was drawn on unstamped paper, 
 it was objected, on behalf of the prisoner, that it could not be received 
 in evidence, even as a medium to show that he had stolen the letter, but 
 the court overruled the objection, being of opinion that the draft, though 
 unstamped, might be received in evidence for collateral purposes, though 
 not for the purpose of Recovering the money contained in it.(#) *821 
 Upon an indictment for conspiracy, where it was alleged that a part 
 of the intended fraud was the setting up of a fraudulent assignment of 
 a mortgage, it was holden that, for the purpose of showing this, an un- 
 stamped written agreement in the handwriting of one of the defendants 
 was admissible, for if a written instrument is charged to be part of a 
 fraud or other crime, it is immaterial whether it is stamped or not.(/i) 
 If a party were indicted for stealing certain goods, he might give in 
 evidence an unstamped assignment to him of the goods; for there the 
 allegation would be that the accused took the goods feloniously, and by 
 showing that he had executed something which he supposed gave him 
 a right to take them, the assignment is not made available in law or 
 equity; but it is merely shown that the prisoner took the goods, think- 
 ing the deed gave him the right, when in truth it did not.(i) So in a 
 case of embezzlement, if the party accused had paid away the money on 
 unstamped promissory notes, they would be evidence to show the mis- 
 take under which he had paid it away.^') 
 
 In all cases where the question is, whether an agreement is void at 
 common law or by statute, and the party introduces it, not to set it up 
 and establish it, but to destroy it altogether, there is no objection to 
 its admissibility for want of a stamp. (7c) A party, therefore, who sets 
 up an usurious contract, may give in evidence an unstamped agreement 
 for the purpose of proving usury.(/) So where a petition having been 
 
 (d) Rex v. Hall,* 3 Stark. N. P. C. 67. («) Ante, p. 347. (/; Ibid. 
 
 (ff) Pooley's second case, 2 Leach, 900. S. C. 1 East, P. C. Addenda, xvii. Ante, p. 
 221. The prisoner had been previously tried on the first section of the act, which makes it 
 a capital felony for any servant of the post-office to secrete any letter containing a bank- 
 note, or any warrant or draft for the payment of money; and it was held that a draft which 
 required a stamp, but was unstamped, was not a draft for the payment of money within the 
 act. Pooley's case, 2 Leach, 887. Ante, p. 214. 
 
 (//) Rex v. Fowle, b 4 C. & P. 592, Lord Tenterden, C. J. 
 
 (/) See per Rolfe, B. Williams v. Gerry, infra. (J) Per Rolfe, B., ibid. 
 
 \k) Per Lord Abinger, C. B., Coppock v. Bower, 4 M. & W. 361. 
 
 (I) Nash v. Duncomb, 1 M. & Rob. 104, Lord Tenterden, C. J. 
 
 a Eng. Com. Law Reps. xiv. 105. b lb. xix. 540.
 
 821 OF EVIDENCE. [BOOK VI. 
 
 presented to the House of Commons against the return of a member on 
 the ground of bribery, the petitioner entered into an agreement in con- 
 sideration of a sum of money, and upon other terms, to proceed no 
 further with the petition, it was held that the written agreement was 
 admissible in evidence for the purpose of insisting on the illegality of 
 the transaction, in answer to an action for the sum so agreed to be paid, 
 without its being stamped. (in) So where in an action for goods sold 
 and delivered the plaintiff's case was, that the defendant had received 
 them from a person who had fraudulently obtained them from the 
 plaintiff by a check drawn on a party who would dishonour the check, 
 it was held that the check was admissible in support of this case, though 
 not duly stamped ; for if it be necessary in a civil action to show that 
 there has been a felony, or an obtaining by false pretences, the same 
 evidence is admissible as if the case were that of an indictment for 
 felony or fraud ; and it was clear that if the party who drew the check 
 had been indicted the check would have been admissible. (n) 
 *822 I u a recent case Lord Abinger, C. B., pointed out the distinction in 
 The cor- these cases as follows: — "The stamp act for the sake of the ^revenue 
 
 rectdis- wag intended, to exclude the reception in evidence of the instruments 
 
 tmction in . . r 
 
 these] therein mentioned, unless stamped, whenever they are introduced for 
 
 cases. th e purpose of making them available; that is, of setting them up and 
 giving effect to them. Therefore, in every case where a question arises 
 between the parties in a cause as to the evidence which may be given ; 
 for instance, in the case of an agreement which is the subject of the 
 action, or has some collateral relation to it, the moment it appears to be 
 in writing, no other evidence than the written document being produci- 
 ble, if it proves to be unstamped, it must be rejected. So with regard 
 to promissory notes and bills of exchange, and matters which are the 
 subject of the stamp acts, unless they are stamped when they are pro- 
 duced, they must be rejected, wherever they are produced, to show that 
 they have, or ever had, any validity. But the case is different when the 
 purpose is not to give them effect, but to defeat them, and to show that 
 they were entered into for the purpose of fraud and conspiracy. Thus, 
 if there were a conspiracy, and the parties intended, inter se, to take 
 certain measures to gain an advantage from an agreement, although it 
 be not stamped, it is received in evidence to show a guilty mind. There 
 it is used not with a view to set it up, but to show that it was absolutely 
 void, and as evidence of a fraud, and of the guilty purpose in which the 
 parties to it were engaged. (oj Where, therefore, upon the trial of an 
 issue whether certain goods were the property of the plaintiff or Davies, 
 the plaintiff claimed to be entitled to the goods by virtue of a bill of 
 sale dated the 2nd of January, 1840, from Davies, as a security for the 
 repayment of 300?., therein stated to have been advanced at different 
 times by the plaintiff to Davies; the defendant alleged that the trans- 
 action was a fraudulent one; and the plaintiff, in order to show that it 
 was not, proposed to give in evidence a former assignment of the same 
 goods, dated the 18th of October, 1839, as a security for the sum of 
 180?., being a portion of the 300?., which had been then advanced, on 
 which the word "cancelled" was written; but this assignment was not 
 
 (m) Coppock v. Bower, supra. 
 
 (n) Keable v. Payne, a 8 A. & E. 555. See Bex v. Parker, b 2 Moo. C. C. R. 1. V C. & P. 
 825, where it was so held. (o) Per Lord Abinger, C. B., in Williams v. Gerry, infra. 
 
 a Eng. Com. Law Reps. xsxv. 454. b lb. xxxii. 7i5.
 
 CHAP. IV. § I.] OF WRITTEN EVIDENCE. 822 
 
 stamped ; the Court of Exchequer held that it was not admissible in 
 evidence without a stamp, as the object was not to show that the instru- 
 ment was void in law, but to use it as evidence of a binding contract 
 between the parties, which they then meant to act upon, available, 
 though not availing, and which, upon payment of the duty, would have 
 become good.(p) 
 
 And where in the case of an indictment for feloniously setting fire to 
 a house with intent to defraud an insurance company, a policy of insur- 
 ance was given in evidence on the part of the prosecution, by which the 
 prisoner's goods, in a house described in the policy, were *insured *823 
 against fire, and upon which a memorandum was indorsed stating, that 
 the goods insured had been removed from the house described in the 
 policy to another house mentioned in the memorandum. In this house, 
 so mentioned in the memorandum, the prisoner was charged with hav- 
 ing committed the felony. The policy was properly stamped, but the 
 memorandum had no stamp ; and upon this circumstance, an objection 
 was taken on behalf of the prisoner, that it was essentially necessary to 
 show, in support of the charge, that there subsisted a legal effective 
 contract ; and that, by the express provisions of the stamp acts, the 
 memorandum in question, not being stamped, could not be given in 
 evidence, or be good or available in any manner whatever. The point 
 being reserved for the consideration of the twelve judges, was argued 
 before them; and the conviction was held to be wrong. (q) 
 
 As to other points respecting the proof and effect of public and private 
 documents, since they are of rare occurrence in criminal proceedings, it 
 is thought more advisable to refer the reader to the general treatises on 
 the law of Evidence, than to encumber this work with any notice of 
 them. 
 
 *CHAPTER THE FOURTH. 
 
 *824 
 
 OF CONFESSIONS AND ADMISSIONS. — OF EXAMINATIONS BEFORE MA- 
 GISTRATES. AND OF DEPOSITIONS. 
 
 SECT. I. 
 
 Of Confessions and Admissions. 
 
 A free and voluntary confession of guilt made by a prisoner, whether Confes- 
 
 in the course of conversation with private individuals, or under ex- S1 . 0n , s ^ ffi " 
 
 .,..,,. . . cient for 
 
 animation before a magistrate, is admissible in evidence as the highest conviction 
 
 (p) Williams v. Gerry, 10 M. & W. 296. "On the other hand, supposing that the defend- 
 ant had taken upon himself the onus probandi, in the first instance, that the whole transac- 
 tion was a fraud, I do not say that he might not have given this assignment in evidence, 
 and shown that it originated in a fraudulent conspiracy, and that it was merely colourable, 
 being intended by and by, to be used for the purpose it was used for before the jury, or that 
 the parties were hatching up evidence from time to time, to be used only when the imme- 
 diate necessity arose, and the time came for the fraud to be practised. It might, I think, be 
 evidence of such a corrupt agreement, and to show such a conspiracy. It was, therefore, 
 an instrument which might be evidence for the party who sought to attack it, but not for a 
 party whose object was to support it." Per Lord Abinger, C. B. ibid. 
 
 (q) Gillson's case, 2 Leach, 1007. Russ. & Ry. C. C. R. 138. Ante, p. 567. Lord Ellen- 
 borough, Mansfield, C. J., Wood, B., Grose, J., and Heath, J., were of opinion the conviction 
 was right. The Lord Chief Baron, Thompson, B., Lawrence, J., Le Blanc, J., Chambre, J., 
 and Graham, B., were of the contrary opinion.
 
 824 OF EVIDENCE. [BOOK VI 
 
 without and most satisfactory proof, because it is fairly presumed that no man 
 
 p jj. j would make such a confession against himself, if the facts confessed were 
 
 *825 not true. (a)f And the highest authorities have *now established, that 
 
 a confession, if duly made, and satisfactorily 'proved, is sufficient alone to 
 
 warrant a conviction without any corroborating evidence aliunde.(b}\ 
 
 (a) Gilb. Ev. 123. Lambe's case, 2 Leach, 552, 4th edition. Mr. J. Blackstone, and Mr. J. 
 Foster, entertained a different opinion. (See Fost. 243.) The former, in the fourth volume 
 of his Commentaries, p. 357, says, in speaking of confessions made to persons not in autho- 
 rity as magistrates : " Even in cases of felony at common law, they are the weakest and 
 most suspicious of all testimony, very liable to be obtained by artifice, false hopes, promises 
 of favour, or menaces, seldom remembered accurately, or reported with precision ; and in- 
 capable in their nature of being disproved by other negative evidence." A distinction may 
 be properly made in the weight to be attached to confessions. If a confession be reduced 
 into writing, either by the prisoner, or by some one else, and read over to him, and if it be 
 clearly shown that the confession was the spontaneous and voluntary act of the prisoner, 
 such a confession would be entitled to great consideration. But if a confession were proved 
 by a witness, and rested upon his capability of understanding what was said by the prisoner, 
 his competency to remember the very words used, and his fidelity and accuracy in relating 
 them to the jury, it ought to be received with very great caution. "For," as has been well 
 observed, (Greenleaf's Evid. 247,) "besides the danger of mistake, from the misapprehension 
 of witnesses, the misuse of words, the failure of the party to express his own meaning, and 
 the infirmity of memory, it should be recollected that the mind of the prisoner himself is 
 oppressed by the calamity of his situation, and that he is often influenced by motives of 
 hope or fear, to make an untrue confession. The zeal, too, which so generally prevails to 
 detect offenders, especially in cases of aggravated guilt, and the strong disposition in the 
 persons engaged in pursuit of evidence to rely on slight grounds of suspicion, which are 
 exaggerated into sufficient proof, together with the character of persons necessarily called 
 as witnesses in cases of secret and atrocious crime, all tend to impair the value of this kind 
 of evidence, and sometimes lead to its rejection where, in civil actions, it would have been 
 received. The weighty observation of Mr. J. Foster, is also to be kept in mind, that " this 
 evidence is not in the ordinary course of things, to be disproved by that sort of negative 
 evidence by which the proof of plain facts may be and often is confronted." Fost 243. Mr. 
 B. Parke has on several occasions observed, that " too great weight ought not to be attached 
 to evidence of what a party has been supposed to have said ; as it very frequently happens, 
 not only that the witness has misunderstood what the party has said, but that by uninten- 
 tionally altering a few of the expressions really used, he gives an effect to the statement 
 completely at variance with what the party really did say." Earle v. Picken, a 5 C. & P. 542, 
 note. So where one of two witnesses, called to prove the same statement of the prisoner to 
 his wife, said that the words were, " keep yourself to yourself, and don't marry again ;" and 
 the other, "keep yourself to yourself, and keep your own counsel:" Alderson, B., said, 
 " One of these expressions is widely different from the other. It shows how little reliance 
 ought to be placed on such evidence." Rex v. Simons, b 6 C. & P. 540. 
 
 (b) Wheeling's case in note 1 Leach, 311. Rex v. Eldridge, Russ. & Ry. C. C. R. 440. Rex 
 v. Falkner, ibid. 481. In Greenleaf's Evid. 251, it is observed, " in each of the English cases 
 usually cited in favour of the sufficiency of this evidence, there was some corroborating cir- 
 cumstances. Wheeling's case, seems to be an exception, but it is too briefly reported to be 
 relied on. In the United States the prisoner's confession, when the corpus delicti is not other- 
 wise proved, has been held insufficient for his conviction ; and this opinion certainly best 
 accords with the humanity of the criminal code, and with the great degree of caution applied 
 in receiving and weighing the evidence of confessions in other cases, and it seems counte- 
 nanced by approved writers on this branch of the law," citing Guild's case, 5 Halst. 163, 
 
 ■j- {In a prosecution for bigamy, the confession of the defendant is adequate evidence of the 
 marriage. 1 Ashmead, 272, Commonwealth v. Murtagh. See 2 Stark, Ev. 36, [Xewed. 20,] 
 435, [New ed. 251,] 939, note (1), [New ed. 510.] 2 Phill. Ev. 151.} [Upon an indictment 
 for living in adultery, the confessions of the party of a previous marriage, are admissible to 
 prove the fact of the marriage. Cameron v. The State, 14 Alabama, 546.] 
 
 [In an indictment charging a father with living in adultery with his daughter, his con- 
 fessions that she is so, are admissible in evidence. Morgan v. The State, 11 Alabama, 289. 
 
 Upon the trial of one for murder, it is not competent to prove the declarations of a third 
 person, tending to the conclusion that he was guilty of the murder and not the prisoner, as 
 evidence in exculpation of the prisoner. If such third person examined as a witness, had 
 implicated the prisoner by his testimony, it might have been received for the purpose of dis- 
 crediting him, but was not competent testimony to establish the innocence of the prisoner, 
 by fixing the crime upon the declarant. Smith v. The State, 9 Alabama, 990] 
 
 \ [A prisoner may be convicted on his own confession, uncorroborated, provided the 
 a Eng. Com. Law Reps. xxiv. 448. b lb. xxv. 532.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. *826 
 
 *But a confession, in order to be admissible, must be free and volun. Must be 
 tary : that is, must not be extracted by any sort of threats or violence ^1° *{** 
 
 185. Long's case. 1 Hayw. 521, (455). 2 Hawk. P. C. c. 45, s. 36. The whole statement in 
 1 Leach, 311, of Wheeling's case, is that " it was determined that a prisoner may be convicted 
 on his own confession when proved by legal testimony, although it is totally uncorrobo- 
 rated by any other evidence." This statement may mean that where the commission of a 
 felony is proved by independent evidence, a prisoner may be convicted on his confession, 
 though there be nothing to corroborate that confession as to his being the party who com- 
 mitted such felony; and the manner in which Wheeling's case is introduced rather leads to 
 the inference that that is the meaning of the statement. In Rex v. Eldridge, on an indict- 
 ment for stealing a mare, it appeared that the mare was seen on the 9th of October, 
 in the afternoon, in the possession of one of the prosecutor's servants, who was taking it 
 towards one of his fields, but neither that servant nor the prosecutor were called as wit- 
 nesses ; the mare was not found in the prosecutor's possession on the 11th of October. The 
 prisoner had the mare in his possession on the 13th, and sold her under her value. A full 
 confession before the magistrate was proved, and the prisoner convicted. The judges held 
 " that there was sufficient evidence to confirm the confession." It is to be observed, that 
 independently of the confession, the case was complete, with the exception of proving that 
 the mare was put in the prosecutor's field by his servant. See Rex v. Yend, a 6 C. & P. 176, 
 ante, p. 122. and Rex v. Fellows, ante, p. 123. In Rex v. Falkner and Bond, on an indict- 
 ment for robbing one Halliday, he was called on his recognizances but did not appear, and 
 the prisoner, Falkner, had been desirous to send a message to Halliday to keep him from 
 appearing. The only other evidence was that Bond had confessed the offence to the con- 
 stable who apprehended hirn, and that both the prisoners, on hearing the depositions read 
 over to them, which contained the charge, had admitted that the}- were guilty; the depo- 
 sitions charged the prisoners with robbing Halliday of certain quantities of copper. The 
 prisoner was found guilty, and the judges held the conviction right, but no reason is stated 
 for the decision. If the depositions were read in evidence at the trial, as they might be if 
 the prosecutor was kept away by means of the prisoners, the case does not seem in any de- 
 gree to support the position in the text. In Rex v. White & Langdon, Russ. & Ry. 508, on 
 an indictment for stealing oats, the prosecutor proved that he had sometimes more, some- 
 times less than 300 quarts of oats in his granary, the door of which had been fastened with 
 a padlock, and was found by the prosecutor unhinged and drawn back, on the 24th of De- 
 cember. At half past two o'clock that morning, two men were seen by a witness coming 
 from the prosecutor's yard, each of them having a sack on his back, but the witness did not 
 say that the men were the prisoners. White on the same day was in possession of some 
 bags of oats, of the same kind as those in the granary of the prosecutor, who could not, 
 however, swear that he had lost any of his oats ; each prisoner made an explicit confession 
 of the offence, which were proved, and the prisoners found guilty; and the judges held the 
 conviction right. In Rex v. Tippet, Russ. & Ry. 509, which was an indictment for stealing 
 oats of the same prosecutor, the same evidence was given as in the preceding case, with the 
 addition that the prisoner was under-ostler in the prosecutor's stables, and a confession by 
 the prisoner of his having stolen the oats in company with the prisoners in the preceding 
 case was put in, and the prisoner convicted; and seven of the learned judges (all who met 
 on the occasion) were of opinion that the conviction was right, " as there was not only the 
 confession but the evidence of the prosecutor also, which made it probable that oats had 
 been stolen, as it appeared from such evidence that the door of the granary had been broken 
 open and most of the learned judges thought that, without the owner's evidence, the pri- 
 soner's confession was evidence upon which the jury might have convicted." In Rex v. 
 Tuffs, b 5 C. & P. 167, the prisoner was indicted for stealing two heifers, which were not 
 missed by the prosecutor or any other person in his service, and the only evidence against 
 the prisoner was his own statement, when questioned on the subject, that he had driven 
 away two heifers from his uncle's premises, " The World's End Dolver," the prosecutor and 
 
 corpus delicti be proved. State v. Guild, 5 Halsted, 163. And see Rose. Dig. Cr. Ev. 29, n. 
 An admission by a defendant in a criminal case, is strong evidence of guilt — but it is not 
 conclusive. He may show that it originated in mistake, or explain it by circumstances. A 
 confession, unless it be an admission by plea, is merely evidence to be determined by a 
 jury. The State v. Welch, 7 Porter, 463. 
 
 If a party indicted for wilfully giving in a vote at an election, knowing himself not to be 
 a qualified voter, admits, on his trial, that he voted at the election, it is equivalent to an 
 admission that he voted wilfully. Commonwealth v. Bradford, 9 Metcalf, 268. For other 
 ( ;i sea on the subject of confessions, see Commonwealth v. Taylor, 5 Gushing, 605. Green v. 
 The State, 13 Missouri, 382. Berry v. The State, 10 Georgia, 511. Spence v. The Stale, 17 
 Alabama, 192. Seaborn v. The State, 20 Ibid. 15. Denton v. The Stale, 1 Swan, 279. The State 
 v. Vaigneau, 5 Richardson, 391. Whaley v. The Stale, 11 Georgia, 123. Stephen v. The 
 Stale, Ibid. 225. Mitcheson v. The State, [bid. 615. Carrol v. The State, 23 Alabama, 28. Van 
 Burcn v. The Stale, 24 Mississippi, 512. The State v. Jackson, 17 Missouri, 544.] 
 a Eng. Com. Law Reps. xxv. 341. b Ib. xxiv. 359.
 
 826 OF EVIDENCE. [BOOK VI. 
 
 nor obtained by any direct or implied promises, however slight, nor by 
 the exertion of any improper influence.(c) 
 
 " The object of the rule relating to the exclusion of confessions is to 
 exclude all confessions which may have been procured by the prisoner 
 being led to suppose that it will be better for him to admit himself to be 
 guilty of an offence, which he really never committed. "(d) In deter- 
 mining, therefore, whether a confession be admissible or not, " the only 
 proper question is, whether the inducement held out to the prisoner was 
 calculated to make his confesssion an untrue one. "(e) 
 
 A confession can never be received in evidence, where the prisoner 
 has been influenced by any threat or promise ; for the law cannot mea- 
 sure the force of the influence used, or decide upon its effect upon the 
 mind of the prisoner, and, therefore, excludes the declaration, if any 
 degree of influence has been exerted. (/) It is a question for the court, 
 and not for the jury, to decide whether, under the particular circum- 
 stances of the case, the confession be admissible. (#)f 
 
 another person proved that the prosecutor's farm was called by that name, but they could 
 not undertake to say that there was not any other of that name ; Lord Lyndhurst, upon 
 this, told the jury that under the circumstances there was not any evidence of a stealing as 
 to the heifers of the prosecutor; though had it been proved that this was the only " World's 
 End Dolver," it would have been sufficient. It does not, therefore, appear that it has ever 
 been expressly decided that the mere confession of a prisoner alone, and without any other 
 evidence is sufficient to warrant a conviction. In Rex v. Edgar, Monmouth Spr. Ass. 1831, 
 MSS. C. S. G., the prisoner was indicted for obtaining money of a friendly society by false 
 pretences; the rules of the society had not been enrolled, but the prisoner, who was a mem- 
 ber of the society, had acted under them, and it was contended that he had thereby admitted 
 their validity, and the position in the text was cited as a stronger decision ; on which Pat- 
 teson, J., said, " could a man be convicted of murder on his confession alone, without any 
 proof of the person being killed ? I doubt whether he could." 
 
 (c) It is a mistaken notion that evidence of confessions obtained by promises or threat, 
 are to be rejected from regard to public faith. Confessions are received in evidence, or 
 rejected as inadmissible, under a consideration of whether they are or are not entitled to 
 credit. A free and voluntary confession is deserving the highest credit, because it is pre- 
 sumed to flow from the strongest sense of guilt ; and therefore it is admitted as proof of the 
 crime to which it refers ; but a confession forced from the mind by the flattery of hope, or 
 the torture of fear, comes in so questionable a shape, when it is to be considered as the 
 evidence of guilt, that no credit ought to be given to it ; and therefore it is rejected. Warick- 
 shall's case, cor. Eyre & Nares, Barons, 1 Leach, 263. Three men were tried and convicted 
 for the murder of Mr. Harrison, of Campden, in Gloucestershire. One of them, under a 
 promise of pardon, confessed himself guilty of the fact. The confession, therefore, was not 
 given in evidence against him, and a few years afterwards it appeared that Mr. Harrison 
 was alive. Ibid., note (a). 
 
 (d) Per Littledale, J., in Rex v. Court, a T C. & P. 486, post, p. 846. 
 
 (e) Per Coleridge, J., in Rex v. Thomas, 1 ' 7 C. & P. 345, post, p. 845. (/) 2 Stark. Ev. 36. 
 (ff) Rex v. Nute, post, p. 832. It is submitted, however, that it is a question for the jury 
 
 whether they believe the witness gives a true account of what the prisoner said, and also 
 whether the prisoner made the statement voluntarily, or was prevailed upon to make it by 
 any inducement used by the witness, although the witness may have denied that he used 
 any inducement whatever. The editor has known these questions left to the jury on several 
 occasions, and it is conceived that is the proper course, as they alone are the judges of the 
 credibility of the witnesses. C. S. G. 
 
 j- [Confessions or disclosures, made under any threat, promise, or encouragement of any 
 hope of favour, are inadmissible in a criminal prosecution. State v. Phelps, 11 Vermont, 116. 
 Evidence of the confession of a criminal made to a magistrate previous to examination, on 
 the declaration of the magistrate that it would be better for the accused to make a full con- 
 fession, is not admissible. Oakley v. Schoonmaker, 15 Wen. 226. 
 
 A confession made by a prisoner while in prison, is evidence against him, provided it be 
 the prisoner's own act, not unduly obtained by threats or promises. State v. Jefferson, 6 
 Iredell, N. C. 305. 
 
 The fact that a confession is made to an officer having the prisoner in custody is no rea- 
 son for its exclusion as evidence against the prisoner, provided that il was not induced by 
 » Eng. Com. Law Reps, xxxii. 595. b lb. xxxii. 536.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. *827 
 
 *The general principle on which the decisions on this subject seem to 
 have proceeded, seems to be this : that if, under the circumstances, there 
 be reasonable ground for presuming that the disclosure was made under 
 the influence of any promise or threat of a temporal nature, the evidence 
 ought not to be received. (#) 
 
 As to what shall be considered as a promise, or inducement, saying Promises 
 to the prisoner that it would be better for him if he did confess, is *? m " n t s 
 sufficient to exclude the confession. (7t) So a confession induced by say- 
 ing, " I am in great distress about my irons ; if you will tell me where 
 they are, I will be favourable to you," cannot be given in evidence. («) 
 Where the prosecutor asked the prisoner, on finding him, for the money Jones's 
 he, the prisoner, had taken out of the prosecutor's pack, but before the case " 
 money was produced said, " he only wanted his money, and if the pri- 
 soner gave him that, he might go to the devil if he pleased;" upon which 
 the prisoner took lis. 6%d. out of his pocket, and said it was all he had 
 left of it; a majority of the judges held, that the evidence wa3 inadmissi- 
 ble. (/) So, where a prisoner being in custody, said to the officer who Confession 
 had the charge of him, "If you will give me a glass of gin, I will tell you w hen S ° ner 
 all about it, and two glasses of gin were given to him, and he made a drunk, 
 confession of his guilt, Best, J., considered it as very improperly obtained, 
 and inadmissible in evidence. (A') But where a prisoner made a state- 
 
 (g) 2 Stark. Ev. 36. 
 
 (h) 2 East, P. 0. c. 16, s. 94, p. 659. {2 Overton, 86, State v. Doherty. 1 Hayw. (N. C.) 
 Rep. 482, State v. Moore. 5 Halsted, 163, State v. Guild.} 
 
 («') Cass's case, 1 Leach, 293, note (a). 
 
 (J) Jones's case, Russ. & Ry. C. C. R. 162, but see Rex v. Griffin, ibid. 151, post, 863. 
 
 (k) Rex v. Sexton, MS. Chetw. Burn. tit. Confession, p. 1086, Doyl.&Wms. Theauthority 
 of this case has been questioned in several books. Deac. Cr. Law, 424, Rose. Cr. Evid. 37, 
 
 improper advantages taken of the situation in which he stood. Commonwealth v. Mosler, 
 4 Barr, 264. 
 
 Where the confession of a prisoner is offered in evidence in connection with some induce- 
 ment held out to him to make it, if the confession is not so connected with the inducement 
 as to be a consequence of it, it is to be considered as voluntary, and of course admissible. 
 The Slate v. Potter, 18 Conn. 166. 
 
 When a magistrate on the examination of a prisoner accused of robbing an individual of 
 a watch on the previous night, and on whom the watch was found, told him "that unless 
 he could account for the manner in which he became possessed of the watch, he should be 
 obliged to commit him to be tried for stealing," this did not amount to such a threat or 
 influence as would prevent the introduction of the subsequent confession of the accused, 
 especially as the magistrate repeatedly warned him not to commit himself by any confession. 
 State v. Cowan, 1 Iredell, N. C. 239. 
 
 A confession obtained by temporal inducement, by threat, or by a promise or hope of par- 
 don, having some reference to the party's escape from the charge, held out by a person in 
 authority, is inadmissible. A master or mistress is considered as a person in authority, as 
 well as a magistrate, sheriff, or constable. However slight the promise or threat may have 
 been, the confession cannot be received. State v. Bostick, 4 Harrington, 564. 
 
 The examination by a committing magistrate of a prisoner under oath as to the subject- 
 matter of his offence, is sufficient, it seems, to render inadmissible evidence thus elicited. 
 Commonwealth v. Harmon, 4 Barr, 269. 
 
 When a prisoner charged with homicide was taken before a committing magistrate, and 
 there sworn to tell the truth, and told " If you do not tell the truth I will commit you ;" a 
 confession thus exacted is inadmissible as evidence against the prisoner on the trial. Com- 
 monwealth v. Harman, 4 Barr, 269. 
 
 Winn aprisoner's confession is unduly obtained, any subsequent confession given on its 
 basis is inadmissible. Commonwealth v. Harman, 4 Barr, 269. 
 
 An officer who had a prisoner in charge told him he had better tell him all about the 
 matter ; and if he would, he would not appear against him ; and that the prisoner had better 
 turn State's evidence; whereupon the prisoner made a full confession to the officer. Held 
 that the confession so obtained could not be given in evidence against the prisoner, and 
 that the proper time of objection was before the officer had given his testimouy, and not 
 during the instruction of the jury. Cowley v. The State, 12 Missouri, 462.]
 
 827 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 *828 
 
 Promises 
 and in- 
 ducement 
 
 Mills's 
 case. 
 
 ment to a constable in whose custody he was, but he was drunk at the 
 time ; and it was imputed that the constable had given him liquor to 
 cause him to be so, and it was objected that what the prisoner said 
 under such circumstances was not admissible : Coldridge, J., said, " I am 
 of opinion, that a statement being made by a prisoner while he was 
 drunk, is not, therefore, inadmissible against him ; and that to render a 
 confession inadmissible, it must either be obtained by hope or fear. This 
 is matter of observation for me, upon the weight that ought to attach to 
 this statement when it is considered by the jury."(£) 
 
 *Where, on an indictment for robbery, a witness stated that he had 
 said to one of the prisoners, " You had better split and not suffer for 
 all of them," the statement of the prisoner was rejected. (m) So where 
 a person said to the prisoner in the police barracks, "If any other per- 
 son had to do in the case, it is better you should tell ;" the statement 
 there made by the prisoner was rejected. («) So where on an indict- 
 ment for larceny, a witness proved that he said to the prisoner, " It 
 would have been better if you had told at first ;" the statement of the 
 prisoner was rejected; Gurney, B., saying " that is an inducement. It 
 amounts to this, that if it would have been better then it would 
 be better now. I think it hardly safe to admit the evidence after 
 that."(o) 
 
 Where a constable, whilst he had a prisoner in custody, on a charge 
 of larceny, asked him whether he had committed the felony, which he 
 denied, and then said, "It is of no use for you to deny it, for there is 
 the man and boy who will swear that they saw you do it ;" Gurney, B., 
 held, that this was an inducement to say something, and, therefore, what 
 Kingston's the prisoner said was not admissible. (p) So where on an indictment for 
 ease " administering arsenic, it appeared that the surgeon who was called in 
 
 saw the prisoner, and said to her, "You are under a suspicion of this, 
 
 Jov, 17, and, it seems, very unjustly. In the first place, the offer to confess was volunteered 
 onthe part of the prisoner; secondly, there was no promise or threat at all used by the 
 constable, nor was the prisoner in any way led to believe that by confessing he would escape 
 from the charge, or be let out of custody; thirdly, there was no inducement to state any thing 
 but the truth. In 1 Burn's J. Doyl. & Wms. 1081, note (a), it is said, "the authority of 
 this decision seems doubtful ; for it is not every hope of favour held out to a prisoner that 
 will render a confession afterwards made inadmissible ; the promise must have some refer- 
 ence to his escape from the charge." 
 
 (I) Rex v. Spilsbury, a 7 C. & P. 187. In a note to this case, 1 Phill. Ev. 465, it is observed, 
 " The facts of the case as reported do not warrant the marginal note, which is as follows: — 
 1 Semble, if a constable give him (the prisoner) liquor to make him drunk, in the hope of his 
 saying something, that will not render the statements inadmissible, but it will be matter of 
 observation for the judge in his summing up.' It is not to be inferred from the case that 
 a confession — so immorally, not to say criminally, extorted — would be received." The prin- 
 ciple, however, on which the decision turned, would seem to warrant the marginal note, as 
 the mere giving of liquor, without any inducement in words, could not operate as an induce- 
 ment either by exciting hope of escape or fear of punishment. It is to be observed, also, 
 that in all the cases where confessions have been excluded, there has been an anticipation 
 of benefit or injury after the confessing or non-confessing. Where liquor is given, the benefit 
 (if it can be called any) is received already, and nothing further is in expectation. C. S. G. 
 
 (m) Rex v. Thomas, b 6 C. & P. 353, Patteson, J. By such a statement as that made by 
 the witness, the prisoner might be induced to suppose that he would be more mercifully dealt 
 with if he confessed, and that he might therefore be induced to confess himself guilty of an 
 offence he never committed. See reporter's note, ibid. 
 
 (n) Moody's case, 2 Crawf. & D. C. Joy, 12. (o) Rex v. Walkley, 6 C. & P. 175. 
 
 (p) Rex v. Mills, d 6 C. & P. 146, and MSS. C. G. S. " These words seem to have been 
 construed by the learned judge as the same in effect as if the constable had said, it will be 
 better for you to confess it, for we can prove it, whether you do or not." Joy, 7. 
 
 a Eng. Com. Law Reps, xxxii. 487. b lb. xxv. 435. c lb. xxv. 340. 
 
 d lb. xxv. 324.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 828 
 
 and you had better tell all you know," it was held that a statement 
 
 made after this to the surgeon was inadmissible, (j) So where it ap- Partridge'? 
 
 peared, on an indictment for larceny, that the prisoner, being in the case " 
 
 custody of a constable, the latter said to the prosecutor, " You must not 
 
 use any threat or promise to the prisoner;" and immediately after this, 
 
 the prosecutor said to the prisoner, " I should be obliged to you if you 
 
 would tell us what you know about it; if you will not, we, of course, 
 
 can do nothing ; I shall be glad if you will." The confession was held 
 
 inadmissible; Patteson, J., saying, "I think this is a distinct promise; 
 
 what could the prosecutor mean by saying, that if the prisoner would 
 
 not tell, they could do nothing, but that if the prisoner did tell, they 
 
 would do something for him."M 
 
 *If an inducement be held out to one prisoner to make a statement *829 
 which implicates another prisoner, such statement is inadmissible ; for Induce- 
 it can only be used as evidence against the prisoner who made it, and ^pi^ate 
 then it is evidence obtained by an inducement. Upon an indictment for another 
 murder, against a man and woman, it appears that a woman who was l jris0lier - 
 placed by the constable with the female prisoner, whilst he went to the 
 inquest, to prevent her laying violent hands upon herself, and to pre- 
 vent her from going away, told her to the effect that "she had better 
 tell the truth, or it would lie upon her, and the man would go free." 
 Parke, J., (after consulting Taunton, J.,) said, "As this declaration of 
 the female prisoner can only legitimately be received in evidence to 
 affect her and no one else, we think that it is not receivable, as it was 
 made after an inducement held out by a person who had her in custody. 
 If it were to be used at all, it could only be used to criminate her; and 
 then it would be evidence obtained to criminate her by means of an in- 
 ducement."^) 
 
 Where a constable, who apprehended a prisoner for stealing a brass Shepherd'? 
 tap, asked him what he had done with the tap he had stolen from the case ' 
 prosecutor's premises, and said, " You had better not add a lie to the 
 crime of theft," and desired him to go with another constable, and show 
 him where he put the tap; Gaselee, J., after expressing some doubt, 
 refused to receive a confession made to the constable who had addressed 
 these observations to the prisoner.^) 
 
 (q) Rex v. Kingston," 4 C. & P. 398. Parke, J., after consulting Littledale, J. 
 
 (r) Rex v. Partridge, 1 * 7 C. & P. 551. Dr. Greenleaf, Evid. 256, after citing this case, and 
 Guild's case, post, p. 838, observes, "It is extremely difficult to reconcile these- and similar 
 cases with the spirit of the rule as expounded by Eyre, C. B,,in WarickshaLTs case r a?ite, p. 82G. 
 note (c), the difference is between confessions made voluntarily, and those u forced from the 
 mind by the flattery of hope, or by the torture of fear." If the party has made his own cal- 
 culation of the advantages to be derived from confessing, and thereupon has confessed the 
 crime, there is no reason to say that it is not a voluntary confession. It seems that in order 
 to exclude a confession, the motive of hope or fear must be directly applied by a third per- 
 son, and must be sufficient, in the judgment of the court, so far to overcome the mind of 
 the prisoner as to render the confession unworthy of credit." In Rex v. Green, 6 C. & P. 
 655, Taunton, J., said, "I take it no man ever makes a confession without proposing to 
 himself, in his own mind, some advantage to be derived from it," ante, p. 847. 
 
 («) Rex v. Enock, d 5 C. & P. 539. It does not appear to have been noticed, cither by the 
 counsel or by the court, that this was an inducement to tell the truth. See post, p. 846. 
 
 (t) Ilex v. Shepherd, e 7 C. & P. 579. Mr. Joy, p. 8, observes, that "the manner in which 
 these words were used may have been considered by the learned judge, who saw and heard 
 the witness, to be of a threatening nature, and calculated to lead the prisoner untruly to 
 confess himself guilty: or the words may have been deemed in effect the same, as if the 
 constable had said, 'you have committed a theft, it will be better for you not to deny it — 
 that is to confess.' The words, viewed in this light, imply an inducement rather than a 
 a Eng. Com. Law Reps. xix. 334. b lb. xxxii. 627. ° lb. xxv. 581. 
 
 d lb. xxiv. 446. e lb. xxxii. 639. 
 
 Vol. ii.— 54
 
 829 OP EVIDENCE. [BOOK VI. 
 
 Drew's If a prisoner be told that what he says would be used for him or 
 
 against him, at his trial, his statement is inadmissible. A prisoner, when 
 before a magistrate, was told by the magistrate's clerk not to say any- 
 thing to prejudice himself, " as what he said, would be taken down, and 
 would be used for him or against him at his trial." Coleridge, J., 
 « This is an inducement, and it was held out by a person in authority. 
 I am of opinion, that the prisoner's statement cannot be given in evi- 
 dence. I cannot conceive a more direct inducement to a man to make 
 a confession than telling him what he says may be used in his favour at 
 the trial. («) 
 *S30 *A confession made by the prisoner with a view and under the hope 
 Confes- of being thereby permitted to turn king's evidence, has been held inad- 
 aious with m i ss i D ] e# j n a t r i a i f or burglary, a witness was called to prove that 
 
 a view to . . . . . • i • 
 
 being ad- one prisoner had desired him to apply to the justice to admit him as a 
 mitted as witness for the crown ; for that he had not entered the house, but had 
 
 ix witness. 
 
 and receiv- only stood at the door, while the other prisoners went up stairs to com- 
 ing a par- m jt the felony j it was objected, that as this confession was made with 
 a view and under the hope of being thereby permitted to turn king's 
 evidence, it was not admissible; and Adair, Serjt. being of opinion that 
 Boswell's this was not a voluntary confession, the evidence was rejected. (r) On 
 Statements an indictment for murder, it appeared that the prisoner was taken into 
 made after custody on the charge, on the 2nd of December, and that on the 11th 
 a reward j^ ma( j e certain statements, which were sought to be given in evidence. 
 
 and pardon ' o » t 
 
 offered by To prove one of these statements, a policeman was called, who said that 
 the Secre- he held out no inducement to the prisoner to make any statement, nor 
 State re- did he know that any one else had, down to the 11th of December, when 
 jected, it the statement was made; but on the 6th of December, he knew that a 
 thaTthey 3 reward of 1007., had been offered by the government, accompanied by 
 were pro- a statement, that the Secretary of State would recommend an accom- 
 thereby P^ ce > n °t being the person who actually committed the murder, for a 
 pardon, but the witness could not state that this had come to the know- 
 ledge of the prisoner; and Cresswell, J., allowed this statement to be 
 given in evidence. In a latter part of the same case a policeman stated, 
 that soon after the prisoner had been taken into custody, and before the 
 6th of December the prisoner requested that he would let him know 
 if any reward should be offered, or any paper published concerning the 
 
 threat." " This case has been controverted," Joy, 8, note (a), but it is not stated upon 
 what occasion. It is difficult to see how the observations of the constable could induce the 
 prisoner to state what was false, especially as he desired the prisoner to go and show where 
 lie had put the tap ; and. therefore, the case seems at variance with Rex v. Court, post, p. 
 846, which seems to have proceeded on the correct principle, namely, that a confession is 
 admissible, unless it has been obtained by the prisoner being induced to suppose that it will 
 be better for him to admit himself guilty of an offence which he really never committed. 
 C. S. G. 
 
 (u) Reg. v. Drew, a 8 C. & P. 140. In the "Law Magazine," Vol. 27, p. 340, it is remarked, 
 that the ground of this decision probably was, that "the mind of man, especially the mind 
 of a prisoner, is more prone to hope than fear." If the prisoner had been told merely that 
 what he said would be used for him at his trial, it would clearly have been an improper 
 inducement to make a statement ; and it should seem that it is no less an improper induce- 
 ment to tell the prisoner that his statement u-ould be used for or against him, because he 
 would naturally make such a statement, under the influence of those words, as he conceived 
 would be beneficial to him upon his trial. C. S. G. 
 
 (») Hall's case, in note to Lambe's case, 2 Leach, 559. But where a person had been 
 admitted king's evidence, and confessed, and upon the trial of his accomplices, refused 
 to give evidence, he was convicted upon his own confession. Rex v. Burley, 2 Stark. Ev. 13. 
 a Eng. Com. Law Reps, xxxiv. 327.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 830 
 
 murder, and that he would bring any such papers to him as soon as they 
 were printed. On the Gth of December, it was generally known that 
 the Secretary of State had offered a reward and a promise of free par- 
 don to any of the offenders, except such as had struck the blow, and 
 on the 18th, the witness gave the prisoner one of the printed handbills, 
 which offered 10(M. reward to any person, who should give such infor- 
 mation as should lead to the discovery and conviction of the murderers, 
 and " a pardon to an accomplice, not being the person who actually 
 committed the murder, who shall give such information as shall lead to 
 the same result," Cresswell, J., after consulting Patteson, J., held that 
 a statement 'made by the prisoner to the witness on the 11th of Decem- 
 ber was receivable. In a still later part of the same case, it appeared 
 that on the evening of the 10th of December, the prisoner said that he 
 saw no reason why he should suffer for the crime of another, and as 
 government had offered a free pardon to any one of the parties concerned 
 who had not struck the blow, he would tell all he knew about the mat- 
 ter. Cresswell, J., — " It now appears, with sufficient clearness, that the 
 prisoner in making the statements ascribed to him, was influenced by 
 the hope of pardon held out by authorized parties. I shall, therefore, 
 reject the evidence of all statements made by him after the evening of 
 the 10th of December, *and expunge from my notes such as have already *831 
 been given in evidence. "(w) 
 
 The prisoner, who was indicted with several others for burglary, sent Confession 
 
 for a magistrate, to tell him he had something to communicate to him. by . one 
 ml . ...... ° . prisoner 
 
 The magistrate acted at the interview with great caution, and warned after 
 
 the prisoner not to say anything that would criminate himself, as what ?' n ° t j' er 
 he said would be taken down in writing, and made use of against him admitted 
 on his trial. The prisoner replied he did not care, as he knew that the Queen's 
 witness knew all. Upon cross-examination, it appeared that the priso- !^ d ^°^ a 
 ner had been confined, after his arrest, in the same cell with another caution 
 person, charged with the same crime, who had confessed and been ad- rom . * 
 mitted Queen's evidence ; the prisoner was aware of this, and it was to 
 that he alluded, when he said that the witness knew all ; and that it 
 was from the statement made by the person who had been admitted 
 Queen's evidence, that the prisoner was examined, and his confession 
 taken down. It was insisted, that under these circumstances, the con- 
 fession was not admissible, as the caution, given by the magistrate, did 
 not appear to have had the effect of removing from the prisoner's mind 
 all the influences which would have invalidated the confession, and that 
 there was a reasonable cause to lead the prisoner to believe that if he 
 made a confession, he would be put in the same situation with the other 
 person who had done so. Crampton, J., received the confession, ob- 
 serving, that the magistrate stated, that as far as he knew, the prisoner 
 came forward voluntarily ; that a mere formal caution from a magistrate 
 would not be sufficient to set up a confession, if it appeared that such 
 confession was made under the distinct impression of a previous pro- 
 mise or threat, but that it did not appear that there was any previous 
 inducement whatever. If there were any threats made use of before, 
 or any promises held out, the distinct caution given by the magistrate, 
 was sufficient to obviate them. It was in effect telling the prisoner, that 
 he would get no benefit from his confession, and that he should conse- 
 
 (w) Reg. v. Boswcll, 1 C. & Mars. 584. 
 a Eng. Com. Law Reps. xli. 318.
 
 831 OF EVIDENCE. [BOOK VI. 
 
 quently dismiss from his mind, all expectation of getting any, if any 
 such he had.(x) 
 Threats As to what shall be considered as a threat, saying to a prisoner that 
 
 and mona- | t wou j ( j ^ e worse f or hi m if h e did not confess, is sufficient to exclude a 
 confession. (#) So a confession induced by saying, " unless you give me 
 a more satisfactory account, I will take you before a magistrate," orM 
 by saying, " That unfortunate watch has been found, and if you do not 
 tell me who your partner was, I will commit you to prison as soon as 
 we get to Newcastle ; you are a damned villain, and the gallows is 
 Griffith's painted in your face,"(a) cannot be given in evidence. So where a 
 oase. prosecutrix said to her servant girl, who was in custody on. a charge of 
 
 *832 administering *poison to her, « Jane, now you see the effects of your wick- 
 edness ; you will be to go from here to-morrow morning to Stourbridge 
 to the magistrates, and not return again." The girl answered, "Sooner 
 than I will go from here or any where else, I will tell the truth ;" and 
 the prosecutrix said « that is what I want," and the prisoner then made 
 a statement j it was held that the statement was inadmissible, because 
 it was made to prevent her being taken before the magistrate. (F) 
 Where the jf t"he words used to a prisoner be such that he might consider them 
 are'ambig- as a threat a confession is not admissible. The prisoner being in cus- 
 uous. tody on a charge of arson, he was told that " he ought to tell whatever 
 
 was the truth, but he must be very careful, as he was sure to be com- 
 mitted," on which he made a statement. Taunton, J., doubted whe- 
 ther the words used might not be constructed as a threat, and having 
 consulted Littledale, J., said, » We think as the words were so ambigu- 
 ous, that they might be considered by the prisoner as a threat, the evi- 
 dence ought not to be given. "(c) 
 Under false Where a prisoner had been taken into custody by a constable without 
 men" 80 " a warrant and detained by him in durance for four days, and during his 
 confinement a confession was obtained under certain promises, and on 
 the part of the prosecution it was attempted to be shown, that the con- 
 fession was voluntary, and not made under such promises : Holroyd, J., 
 said, " Even if that were so, the fact of its having been made while in 
 unlawful custody, rendered it unavailing, and there being no sufficient 
 evidence without it, he directed an acquittal. (c/) 
 Wright's Where the prisoner was indicted for sheep stealing, and prior to his 
 Words not examination before the magistrate, his wife volunteered a confession of 
 amounting the particulars of the robbery : and on the prisoner being brought up 
 
 (x) Berrigan's case, Joy, 27. 1 Ir. Circ. Rep. 177. In this case there were similar con- 
 fessions made by all the prisoners, under circumstances precisely similar, and they were all 
 admitted. " It is not improbable," observes Mr. Joy, " that in this case the prisoner was 
 induced to make the confession, by what his fellow-prisoner had done, and by his having 
 been admitted Queen's evidence, but no promise, threat or inducement was held out by any 
 person in authority calculated to make his confession untrue." Joy, 28. 
 
 (y) 2 East, P. C. c. 16, s. 94, p. 659. (z) Thompson's case, 1 Leach, 291. 
 
 (a) Rex v. Parratt, a 4 C. & P. 570, Alderson, J. 
 
 (b) Rex v. Griffiths, MSS. C. S. G. Worcester Sum. Ass. 1832, Bosanquet, J. S. C. as 
 Rex v. Richards, 5 C. & P. 318. See this case more fully, post, p. 838. 
 
 (c) Rex v. Williams, Gloucester Spr. Ass. 1832, MSS. C. S. G. See this case, post, p. 
 870. 
 
 (d) Ackroyd's case, 1 Lew. 49. This decision has been questioned, and it has been 
 observed, that " if the prisoner were to believe the apprehension unlawful, that would make 
 him careful not to disclose anything against himself; if he should suppose it lawful, that also 
 would make him careful not to make his situation worse, nor in any respect to prejudice 
 himself.'' 1 Phill. Ev. 407, and see Rex ». Thornton, post, p. 847. 
 
 » Eng. Com. Law Reps. xix. 570.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 832 
 
 for examination, the magistrate told him that his wife had already con- to a men- 
 fessed the whole, and that there was quite case enough against him to 
 send a bill before a grand jury ; and then asked him what he had to say. 
 The prisoner immediately confessed his guilt, and stated several facts, 
 which had been previously deposed to by his wife. It was objected 
 that this confession could not be received, inasmuch as the magistrate's 
 address to the prisoner when he was brought before him to be examined, 
 was in the nature of a menace. But Parke, J., overruled the objection, 
 saying, he considered it rather as a caution. (e) 
 
 If a confession has been obtained from the prisoner, by undue means, Confes- 
 any statement afterwards made by him under the influence of that con- a f t " ™ for 
 fession cannot be admitted as evidence. nier one 
 
 In the case of Rex v. Nute,(/) the prisoner was suspected of setting u ! ia " ly , 
 fire to an outhouse ; her mistress pressed her to confess, and told her 
 among other things, if she would repent and confess, God would forgive 
 her, but she concealed from her that she would *not forgive herself: *833 
 she confessed. The next day, another person in her mistress's sight, 
 though out of her hearing, told her, her mistress said she had confessed, 
 and drew from her a second confession. Lord Eldon, C. J., allowed the 
 confessions in evidence and the prisoner was convicted. The jury on 
 having the confessions put to them, said they thought the first confes- 
 sion made under a hope of favour here, and the second under the influ- 
 ence of having made the first. On a case reserved; the judges held 
 these points were not for the jury, but if Lord Eldon agreed with the 
 jury, which he did, the confessions were not receivable; but many of 
 them thought the expressions not calculated to raise hope of favour 
 here, and if not, the confessions were evidence. So in Rex v. Sexton, {g^ Sexton's 
 a confession had been improperly obtained, by giving the prisoner two ca?e - 
 glasses of gin : the officer to whom it had been made, read it over to 
 the prisoner before the committing magistrate, who told the prisoner 
 the offence imputed to him affected his life, and a confession might do 
 him harm. The prisoner said, that what had been read to him was the 
 truth, and signed the paper. Best, J., considered the second confession, 
 as well as the first, inadmissible; and said, that had the magistrate 
 known the officer had given the prisoner gin, he would, no doubt, have 
 told the prisoner that what he had already said, could not be given in 
 evidence against him, and that it was for him to consider, whether he 
 would make a second confession. If the prisoner had been told this, 
 what he afterwards said would be evidence against him : but for want 
 of this information, he might think that he could not make his case 
 worse than he had already made it, and under this impression might 
 sign the confession before the magistrate. 
 
 When hopes of favour had been given, and the prisoner refused After pro- 
 before the magistrate to confess, except upon conditions, Mr. J. Buller J?' 86 ^,. 
 observed that there must be very strong evidence of an explicit warning there must 
 by the magistrate not to rely on any expected favour on that account, be explicit 
 and it ought most clearly to appear, that the prisoner thoroughly under- anc j ca ,7_ 
 stood such warning before his subsequent confession could be given in ^ 01 }- 
 evidence. (A) And where it appeared that, before a prisoner was asked caaBi 
 what he had to say, he was particularly cautioned by the magistrate 
 not to say anything that would injure himself, for whatever he said 
 
 (e) Wright's case, 1 Lew. 48. (/) 1 Burn, J., Doyl. & Wms. 1086. 
 
 (g) 1 Burn, J., Doyl. & Wms. 108G. (h) 2 East, P. C. c. G58.
 
 833 OF EVIDENCE. [BOOK VI. 
 
 would be taken down and given in evidence against him ; but it also 
 appeared that a constable, who had previously induced the prisoner to 
 make a confession to him by telling him it would be better to confess, 
 had been examined before the magistrate, and in his examination had 
 stated that he had told the prisoner that it would be better to confess, 
 and had also stated all the prisoner had said to him in consequence ; all 
 which had been taken down, and read over to the prisoner before he 
 made his statement ; Littledale, J., refused to allow the statement to be 
 given in evidence, as the caution given by the magistrate was not suffi- 
 cient to obviate the effect of the inducement used by the constable. (?) 
 *834 *So where the prosecutor, before the prisoner was taken before a magis- 
 Smith's trate, promised him that if he would tell the truth he would do what he 
 could for him ; and when before the magistrate, who was not informed 
 of this promise, he was cautioned not to say anything to criminate him- 
 self, Park, J. A. J., thought the confession made before the magistrate was 
 scarcely admissible, as there should have been an explicit and express 
 warning against the promise which had been made by the prosecutor. (j) 
 So where a confession had been obtained from the prisoner, after his 
 apprehension, by his master and a magistrate, by menaces and pro- 
 mises, and when the prisoner was in gaol, the witness who was also a 
 magistrate, went to him, and the prisoner in his presence signed a writ- 
 ten confession ; but it did not appear that he was cautioned, nor what 
 length of time had elapsed after the former confession; and the witness 
 stated that he believed that the written confession, taken by him from 
 the prisoner was given in consequence of the impressions previously 
 made on his mind by his master; the confession was rejected. (&) 
 Sherring- Upon an indictment for murder it appeared that the prisoner worked 
 WhenTone a * a colliery, and some suspicion having fallen on him, the overlooker 
 confession charged him with the murder. The prisoner denied having been near 
 obtained ^° tne P^ ace - Presently the overlooker called his attention to certain 
 by an in- statements made by his wife and sister, which were inconsistent with his 
 ducement, own ^ an( j add^ « There is no doubt thou wilt be found guilty ; it will 
 ought to be better for you if you will confess." A constable then came in, and 
 be strong sa }(j to the overlooker, in a tone loud enough for the prisoner to hear, 
 
 cvidcnc© ■— «. 
 
 to show " Robert, do not make him any promises." The prisoner then made a 
 that the confession. Patteson, J., " That will not do. The constable ought to 
 umier have done something to remove the impression from the prisoner's mind." 
 which it The overlooker, in about ten minutes, delivered the prisoner to the con- 
 was made g^jg f t he township. The constable stated, that when he received 
 
 was re- . * 
 
 moved be- the prisoner, the overlooker told him, (but not in the prisoner's hear- 
 fore a sub- ing,) that the prisoner had confessed. That he took the prisoner to his 
 confession house, and there said, " I believe Sherrington has murdered a man in a 
 can be re- hrutal manner." That the wife and brother of the prisoner were there, 
 and said to the prisoner, " What made thee go near the cabin ?" That 
 the prisoner in answer made a statement similar in effect to the 
 
 (i) Rex v. Smith, Worcester Spr. Ass. 1830, MS. C. S. G. It is to be observed, that not 
 only wa3 there no express caution given in this case not to rely on the promise made, but 
 that by receiving the previous confession in evidence the magistrate treated it as if it had 
 been properly obtained, and the prisoner might therefore well conceive that a subsequent 
 confession could do him no injury, and might possibly be better for him; and see the ruling 
 of the same learned judge in Rex v. Gillham, post, p. 851. 
 
 (.;) Rex v. Compson, Worcester Spr. Ass. 1829, MSS. C. S. G. The learned judge left it 
 to the jury to say whether the prisoner had sufficient warning before the justice or not. This 
 course seems to have been erroneous. See Rex v. Nute, ante, p. 832. 
 
 (k) Bell's case, Joy, 71. M'Nall. Ev. 43.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 834 
 
 one he had made before. That he used neither promise nor threat to 
 induce the prisoner to say anything. But that he did not caution him. 
 That it was not more than five minutes after he received the prisoner 
 into his charge that the prisoner made the statement. That he was not 
 aware that the overlooker had held out any inducement. That the over- 
 looker was not present when the statement was made. For the prisoner 
 it was submitted that the second confession must be taken to have been 
 made under the same influence as the first. Patteson, J., "There ought 
 to be strong evidence to show that the impression under which the first 
 confession was made, was afterwards removed, before the second confession 
 can *be received. I am of opinion, in this case, that the prisoner must be *835 
 considered to have made the second confession under the same influence 
 as he made the first; the interval of time being two short to allow of 
 the supposition that it was the result of reflection and voluntary deter- 
 mination ;" and the statement was rejected. (/) 
 
 And so where the prisoner was indicted for stealing two hams, and Meynell's 
 the constable, having a search warrant, found the hams in the prisoner's T se -' • " 
 
 ' ., p „t . fession in 
 
 house, and thereupon, in the presence of one of the prosecutors, said to the after- 
 the prisoner, " You had better tell all about it ;" the prisoner then made ?°° n after 
 a confession ; which it was admitted could not be received in evidence. meu t in 
 In the afternoon of the same day another of the prosecutors went to the * he mom- 
 house of the prisoner and entered into conversation with her about the °" 
 hams, when she repeated the confession she had made to the constable 
 in the morning, but no promise or menace was on this occasion held 
 out to her. Taunton, J., said, " I am clearly of opinion, that the con- 
 fession is not receivable ; it being impossible to say that it was not 
 induced by the promise which the constable made to her in the inorn- 
 ing."(m) 
 
 So where the prisoner was indicted for stealing money, the property Hewett's 
 of Mrs. Cooper, her mistress : the money was stolen on a Monday even- c . ase - In " 
 
 % i . • at /-i i ducement 
 
 ing, and the prisoner being suspected, Mrs. Cooper told her on that on the 
 evening that she would forgive her if she told the truth : on the next Monday 
 day, Tuesday, the prisoner was taken before a magistrate, but Mrs. confession 
 Cooper not appearing against her she was discharged and placed under °n the 
 her brother's care ; after that she made a statement. Mrs. Cooper did day w ; tn _ 
 not on the Tuesday tell the prisoner that she would not forgive her, nor out express 
 that anything she said would be given in evidence against her; and cautl0n " 
 Patteson, J., held that this statement could not be given in evidence. 
 On the Wednesday morning Houlton, a superintendent of police, went 
 with Mrs. Cooper to the Bridewell where the prisoner was, and Houl- 
 ton told the prisoner, in the presence of Mrs. Cooper, that she was not 
 bound to say anything unless she liked, and that if she had anything to 
 say Mrs. Cooper would hear her. Houlton did not know at this time 
 that Mrs. Cooper had promised to forgive her if she would tell her the 
 truth, and he did not tell the prisoner that if she had anything it might 
 be given in evidence against her. Patteson, J., after observing that 
 Meynell's casc(n) was the nearest to the present, added, " I think that 
 the statement of the prisoner is not receivable in evidence. If Mrs. 
 Cooper had not been present when the statement was made, it might 
 have been different ; but I think that as Mrs. Cooper was present, and 
 the interval of time was only from the Monday to the Wednesday, the 
 
 (I) Sherrington's case, 2 Lew. 123. (m) Meynell's case, 2 Lew. 122. 
 
 («) Supra.
 
 S35 OF EVIDENCE. [BOOK VI. 
 
 impression produced by Mrs. Cooper's promise of forgiveness on the 
 Monday evening must be considered as still operating on the prisoner's 
 rnind."(o) 
 Cooper's Where a person in superior authority holds out an inducement to a 
 
 •lu vuient prisoner to confess, a confession made to a person in inferior authority 
 by person is not admissible, especially if such person do not give the prisoner any 
 in superior eaut j on Upon an indictment for arson, it appeared that the com- 
 mitting magistrate had told the prisoner that, if he would make a dis- 
 *836 closure, he would do all that he could for *him. The prisoner, after he 
 was committed, made a statement to the turnkey of the gaol, who had 
 held out no inducement to him to confess, and had not given him any 
 caution not to confess. Parke, J., "I think I ought not to receive the 
 evidence, after what Mr. Simeon (the committing magistrate) said to the 
 prisoner, more especially as the turnkey did not give any caution to the 
 prisoner. "(») 
 Confes- B u fc although such improper inducements may have been held out to 
 
 after the ° a prisoner, as would exclude a confession made under their influence, 
 effect of iu- yet if the court, taking into consideration all the circumstances of the 
 ducements cage ^ g } lou j ( j ^e f opinion that at the time a confession was made, such 
 done away inducements had ceased to operate upon the mind of the prisoner, such 
 a .™f dmis " confession will be admissible. In determining whether an inducement 
 has ceased to operate, it will be material to consider the nature of such 
 inducement, the time and circumstances under which it was made, the 
 situation of the person making it, the time which has intervened be- 
 tween the inducement and the confession, and whether there has been 
 any caution given, and if so, whether that caution has been given gene- 
 rally, or expressly and specifically with reference to the inducement 
 When such held out. Thus, where it appeared that the prisoner, on being taken 
 are admis- j nto cus t dy, had been told by a person who came to assist the consta- 
 ble, that it would be better for him to confess, but that, on his being 
 examined before the committing magistrate on the following day, he 
 was frequently cautioned by the magistrate to say nothing against him- 
 self, a confession under these circumstances before the magistrate, was; 
 held to be clearly admissible. (00) 
 Rosier's Where it appeared that a constable told the prisoner he might do him- 
 
 self some good by confessing ; and the prisoner afterwards asked the 
 magistrate if it would benefit him to confess ; on which the magistrate 
 said he could not say it would, and the prisoner then declined confess- 
 ing ; but afterwards in his way to prison, he made a confession to an- 
 other constable ; and he confessed again in prison to another magistrate; 
 the judges were unanimous in holding, that the confessions were admis- 
 sible in evidence, on the ground that the magistrate's answer was suffi- 
 
 (0) Reg. v. Hewitt,* 1 C. & Mars. 534. 
 
 (ft) Rex v. Cooper, b 5 C. & P. 535. The reporters observe, " If a person of inferior autho- 
 rity cautions a prisoner not to confess, after an inducement held out by a person of superior 
 authority, it is important to consider whether a statement made by a prisoner under such 
 circumstances would be receivable; as it seems to be but a fair conclusion that what was 
 said to the prisoner by the magistrate would be much more likely to operate on his mind 
 than anything subsequently said by a constable." It may be added, that as the inferior can 
 have no control over the superior, it is difficult to see how any caution by the inferior could 
 do away with the effect of the inducement by the superior, as the prisoner must be aware 
 that the inferior could have no power to prevent the superior from carrying his promise into 
 effect. See the ruling of Littledale, J., in Rex v. Gilham, post, p. 851. C. S. G. 
 
 too) Rex v. Lingate, 1 Phill. Ev. 410. Bayley, J. 
 
 a Eng. Com. Law Reps. xli. 291. * lb. xxiv. 444.
 
 same ma- 
 ' gistrate. 
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 836 
 
 cient to efface any expectation which the constable might have raised. (p) 
 Nor is it any objection to a confession made before a magistrate, that 
 the prosecutor, who was present, first desired the prisoner to speak the 
 truth, and suggested that he had better speak out, provided the magis- 
 trate or his clerk immediately checked the prosecutor, desiring the pri- 
 soner not to regard him, but to say what he thought proper.(g) 
 
 Where upon an indictment for murder, it appeared that the prisoner *837 
 had sent for the coroner, desiring to make some statement; *the coro- Clewes's 
 ner told him that any confession that he made would be produced £ ase- 
 against him on the trial, and that no hope or promise of pardon could me nt by a 
 be held out to him, either by the government, or by any one else. Pre- ma g is " 
 vious to this time a magistrate had had an interview with the prisoner, removedby 
 and had told him that if he was not the man that struck the fatal blow, a subse- 
 he would use all his endeavours to prevent any ill consequences from C{Uen . t c ° m " 
 falling on him, if he would disclose what he knew of the murders, and from the 
 that there were so many persons concerned in the transaction that it \ 
 would be made known by some or other of them. The magistrate wrote 
 a letter to the Secretary of State for the Home Department, to which he 
 received an answer, stating, that mercy could not be extended to the 
 prisoner, for reasons that were therein mentioned ; which answer he 
 communicated to the prisoner : all this occurred before the prisoner sent 
 for the coroner. It was objected that, although the inducement that the 
 magistrate would interest himself with the government had been re- 
 moved, yet there were two other inducements; first, the hope that would 
 arise from the personal endeavours of the magistrate ; and, secondly 
 the fear that if the prisoner did not confess, some one else would tell 
 before him. Littledale, J., "I think that this declaration is clearly ad- 
 missible. I think that the conversation with the magistrate, after he 
 received the Secretary of State's letter, and the caution given by the 
 coroner, must be taken to have completely put an end to all the hopes 
 that had been held out."(r) So where a prisoner, when before a ma- Howes's 
 gistrate, stated that he had confessed to two constables, who were then case - 
 present and did not deny what the prisoner said, in consequence of their 
 having told him that two others had split, and that he might as well, 
 and that, if he told all, he would be acquitted ; and the magistrate told 
 him that he need not say anything before him, unless he pleased, and 
 that his confession would do him no good, but that he would be com- 
 mitted to prison to take his trial ; it was held that his confession, made 
 before the magistrate, was admissible, as it could not be said to result 
 from the same influence as his confession to the constables. (s) So where Bryan's 
 a prisoner, when in custody, said to a magistrate that he wished to see case * 
 his priest, and the priest stated that, observing that the prisoner ap- 
 peared greatly agitated, he said to him, « the evidence at the inquest 
 was so clear against you, there can be no doubt you are the guilty man." 
 The prisoner then stated something to the priest, who thereupon asked 
 the prisoner whether he had any objection to state to the magistrate 
 what he had stated to him ? The prisoner said he had not, and the ma- 
 gistrate being called in, the prisoner repeated in his presence what he 
 
 (jo) Rex v. Rosier, 1 Thill. Ev. 411. (q) Rex v. Edwards, 1 Phill. Ev. 411. 
 
 (r) Rex v. Clewes, a 4 C. & P. 221. 
 
 (s) Rex v. Howes, b 6 C. & P. 404, Lord Denman, C. J. 
 
 a Eng. Com. Law Reps. xix. 354. b lb. xxv. 459.
 
 837 OF EVIDENCE. [BOOK VI. 
 
 bad stated to the priest. It was objeectd that this could not be admit- 
 ted : whereupon the magistrate was recalled, and stated, that on the 
 evening of the day, on which he had the said interview with the pri- 
 soner, he cautioned him not to say anything to him or to the police to 
 criminate himself. The magistrate was then allowed to state what the 
 prisoner said to him on this occasion, which appeared to be in every 
 respect the same as what he had stated in the previous interview. The 
 *838 prisoner was convicted, *and eleven of the judges of Ireland held the 
 conviction right. (£) 
 Griffith's Where a prosecutrix said to her servant girl, who was in custody of 
 TiT f a P r i va te person in her house at night, on a charge of administering 
 taking be- poison, "Jane, now you see the effects of your wickedness; you will 
 fore a ma- j^g to g f rom h ere to-morrow morning to Stourbridge, to the magis- 
 done away trate's, and not return again ;" on which the girl said, " Sooner than I 
 by actually w jh g from here, or any where else, I will tell the truth ;" to which 
 thither. the prosecutrix answered, " That is all I want." A statement then 
 made was held inadmissible. On the following morning a constable 
 came to the house, and while there, without giving her any caution, 
 said to the girl, " My dear girl where did you get the stuff from that 
 you put in the tea and coffee ?" It was held that what was then said 
 must be considered as being under the influence of what was said the 
 night before, because she was still in the house, and still in the hopes 
 that she might not be taken before the magistrates. The constable 
 afterwards took her to Stourbridge, and while on the way thither she 
 made a statement without any caution having been given, or any in- 
 ducement having been held out to her, and this was held admissible, 
 because the only hope was that she should not be taken away from the 
 house, and this must have been at an end when she was taken away by 
 the constable. («) 
 Nicholls's Where prisoners were taken into custody on the 1st of October, and 
 fecTof in- oa tQat ^ a ^ tue P rosecu tor frequently told them it would be better for 
 ducement them to confess. They were taken before a magistrate on the 3d, when 
 done away they were told that they were not bound to say anything, but that what 
 time. they did say would be taken down, and used against them on their trials. 
 
 They each made a statement. It was contended that, as the prosecutor 
 did not tell them it would be better to confess to him, but generally, 
 that it would be better to confess, that the confessions to the magistrate 
 might be produced by that inducement ; Littledale, J., " It appears to 
 me that the examinations may be read. If I could see that the in- 
 fluence was continuing, I should not allow them to be read, but two 
 days elapsed between the promise and the confession. If the prisoners 
 had gone before the magistrate the same day, I should have thought 
 that the influence was continuing. I think it would make no difference 
 that the promise was made by one person, but the confession to an- 
 Guild's other."(v) And where the prisoner had been induced by promises of 
 case. favour to make a confession, which was for that cause excluded, but 
 
 about five months afterwards, and after having been solemnly warned 
 by two magistrates that he must expect death, and prepare to meet it, 
 
 (i) Bryan's case, Joy, 73. Jebb's C. & P. C. 157. 
 
 (w) Rex v. Jane Griffiths, MSS. C. S. G. S. C. but not so fully reported, Rex v. Richards," 
 5 C. & P. 818, Bosanquet, J. 
 
 (v) Rex v. Nicholls and Edwards, Monmouth Sp. Ass. 1830, MSS. C. S. G. 
 a Eng. Com. Law Reps. xxiv. 338.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 838 
 
 he agaiu made a full confession, this latter confession was admitted in 
 evidence. (w>) In this case, upon much consideration, the rule was stated General 
 to be that, although an original confession may have been obtained by lu e- 
 improper means, yet subsequent confessions of the same or of like facts 
 may be admitted, if the court believes, from the length of time inter- 
 vening, or from proper warning of the consequences of confession, or 
 from other circumstances, that the delusive hopes or fears, under the 
 influence of which the original confession *was obtained, were entirely *839 
 dispelled. (.r) In the absence of any such circumstances the influence 
 of the motives, proved to have been offered, will be presumed to con- 
 tinue, and to have produced the confession, unless the contrary is shown 
 by clear evidence, and the confession will therefore be rejected. (#) 
 
 With regard to the persons, whose inducements will prevent the As to the 
 admission of confessions, it should seem, that all who are engaged in j^"^^ 
 the apprehension, prosecution or examination of a prisoner, are consid- ducements 
 ered as persons of such authority, that their inducements will exclude ^ ll] , ex ~ 
 
 ClUClG COD.- 
 
 any confession thereby obtained. f Thus an inducement held out byfessions. 
 the prosecutor,(z) the prosecutor's wife,(a) or his attorney, (b\ or by a 
 constable or other officer,(c) or some person assisting a constable, (d\ or 
 the prosecutor(e) in the apprehension or detention of the prisoner, or by 
 a magistrate acting in the business,(/*) or other magistrate,^) or ma- 
 gistrate's clerk, (A) or by a gaoler(AA) or chaplain of a gaol,(A/t/t) or by a 
 person having authority over the prisoner, as by the captain of a vessel 
 to one of his crew,(i) or by a master or mistress to a servant,^') or by a 
 person having authority in the niatter,(&) or by a person in the presence 
 of one in authority with his assent, whether direct or implied, (/) will be 
 sufficient to exclude a confession made in consequence of such in- 
 ducement. 
 
 A person who has accompanied the prosecutor in pursuit of a pri- Person ac- 
 soner, is a person in authority, so that his inducement will exclude a c° m P^ n y- 
 confession. The prisoner when taken into custody, was told by a per- prosecutor 
 son, who had accompanied the prosecutor in pursuit of the prisoner, that in P ur suit. 
 it would be better for him to confess ; but it was urged that as he was a 
 person who had no authority to interfere, the confession was admissible. 
 Littledale, J., " That applies to mere strangers ; here the person went 
 
 (w) Guild's case, 5 Halst. 163, 168, as stated Greenl. Ev. 257. 
 (x) Greenl. Ev. 257, citing Guild's case, 5 Halst. 180. 
 (y) Greenl. Ev. 257, citing Robert's case, 1 Devereux, R. 259, 264. 
 
 (z) Thompson's case, 1 Leach, 291, ante, p. 831. Cass's case, ibid. 293, note (a), ante, p. 
 827, and many other cases. 
 
 (a) Rex v. Upchurch, R. & M. C. C. R. 465, post, p. 841. (6) 1 Phill. Ev. 407. 
 
 (c) Rex v. Sexton, 1 Burn's J., D. & Wms. 1086. (d) 1 Phill. Ev. 407. 
 
 (e) Rex v. Stacey, MSS. C. S. G. infra, note (m). (/) 1 Phill. Ev. 407. 
 
 (ff) Rex v. Clevves, a 4 C. & P. 221, ante, p. 837. 
 
 (A) Rex v. Drew, b 8 C. & P. 140, ante, p. 829. (hh) Rex v. Gilham, post, p. 848. 
 
 (AM) Rex v. Gilham, supra. (i) Rex v. Parratt, 4 C. & P. 570. 
 
 (j) Rex v. Upchurch, supra. Reg. v. Taylor, d 8 C. & P. 733. 
 
 (/<•) 1 Phill. Ev. 407. 
 
 (1) Reg. v. Taylor, supra. Rex v. Pountney,® 7 C. & P. 302. 
 
 f [Where one of the company engaged in the apprehension of a prisoner, in the presence 
 of the officer and the prosecutor, held out promises of benefit to him, under the influence of 
 which he made a confession, it was held that such confession was not admissible in evi- 
 dence. Morehead v. The Stale, 9 Humphreys, 635.] 
 
 a Eng. Com. Law Reps. xxi. 354. b lb. xxxiv. 327. ° lb. xix. 532. 
 
 d lb. xxxiv. 608. e lb. xxxii. 516.
 
 839 OP EVIDENCE. [BOOK VI. 
 
 with the prosecutor, and was acting with his authority and sanction." 
 The confession was rejected. (m) 
 Person a It has been argued, that a confession made upon the promises or 
 
 to twssess tnrcats °f a P er son erroneously believed by the prisoner to possess 
 authority, authority, the person assuming to act in the capacity of an officer or 
 magistrate, ought, upon the same principle (on which confessions to per- 
 sons having authority are rejected) to be excluded. The principle 
 itself would seem to include such a case ; but the point is not known to 
 have received any judicial consideration. "(h) 
 *840 *If a confession be obtained by means of any improper inducement 
 Induce- held out by a person who had no authority in the presence of a person 
 inThe pre- nay i n g authority, and with his consent, it is not admissible. And it is 
 senee and not necessary that the person having such authority should express his 
 with the consent in words ; for if he be silent he will be presumed, as he did not 
 
 sanction . ' . r ' .^ 
 
 of persons express his dissent, to have sanctioned the inducement. "Where the 
 in author- constable, who took the prisoner into custody, was present, and had the 
 prisoner in custody at an inn, when a confession was procured by in- 
 ducements held out by the inn-keeper, and the constable being present 
 did not caution the prisoner in any way; Alderson, B., said, " I have a 
 very strong opinion against its admissibility ; but as there are opinions 
 which I am bound to respect, opposed to my own, I think I had better 
 receive the evidence ; and if it should become necessary, I will reserve 
 Taylor's the point for the consideration of the judges. "(o) So where upon an 
 indictment for setting fire to the house of R. Lyford, it appeared that 
 
 (m) Rex v. Stacey, Monmouth Spr. Ass. 1830, MSS. C. S. G. 
 
 (n) Greenl. Ev. 258. As the question turns upon the effect produced upon the mind of the 
 prisoner, and as the effect must be the same, whether the party be an officer or not, provided 
 the prisoner believed him to be so, it should seem that a confession under such circumstan- 
 ces ought not to be admitted. In considering these questions it should be remembered that 
 every person has authority, where a felony has been committed, to arrest the party who 
 committed it, ante, vol. 1, p. 539, et seq. ; in this respect, therefore, a private individual and 
 a constable stand upon the same footing, and this may be well deserving of consideration 
 in cases where the inducement is held out in the absence of the prosecutor or an officer. 
 If a private person, after a felony had been committed, were to tell a person not in custody 
 that he suspected him of the felony, and that if he would confess he would let him go, but 
 that if he would not he would apprehend him, it might, it is conceived, be well contended, 
 that a confession obtained thereby would be inadmissible, on the ground that the party had 
 authority to apprehend, and was in effect a constable pro h&c vice. After the recent cases, 
 an inducement by a private person, it should seem, can only be considered as inoperative, 
 when it is given in the presence of a person in authority, such person expressing his dissent 
 to it, or cautioning the prisoner against trusting to it, or where it is given to a prisoner in 
 custody, no one having authority being present, as if a private person were to advise a pri- 
 soner in gaol, through the grating, to confess, or send a letter to him to the same effect. 
 "The difficulty experienced in this matter," observes Dr. Greenleaf, p. 259, "seems to have 
 arisen from the endeavour to define and settle, as a rule of law, the facts and circumstances, 
 which shall be deemed, in all cases, to have influenced the mind of the prisoner in making 
 the confession. In regard to persons in authority, there is not much room to doubt. Public 
 policy, also, requires the exclusion of confessions obtained by means of inducements held 
 out by such persons. Yet, even here, the age, experience, intelligence, and constitution, 
 both physical and mental, of prisoners, are so various, and the power of performance so 
 different in the different persons promising, and under different circumstances of the prose- 
 cution, that the rule will necessarily sometimes fail of meeting the truth of the case. But, 
 as it is thought to succeed in a large majority of cases, it is wisely adopted as a rule of law 
 applicable to them all. Promises and threats by private persons, however, not being found 
 so uniform in their operation, perhaps may, with more propriety, be treated as mixed ques- 
 tions of law and fact ; the principle of law, that the confession must be voluntary, being 
 strictly adhered to, and the question whether the promises or threats of the private indi- 
 viduals who employed them, were sufficient to overcome the mind of the prisoner, being 
 left, in the discretion of the judge, under the circumstances of the case.'' C. S. G. 
 
 (o) Rex v. Pountney, 6 7 C. & P. 302. The prisoners were acquitted. 
 a Eng. Com. Law Reps, xxxii. 516.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 840 
 
 on the morning of the fire, the prisoner, who was the servant of the 
 prosecutor, was sent for into the parlour, in which Mrs. Lyford and 
 Mr. Winders were ; and that Mr. Winders, who was not a constable, 
 or in any office or authority, said to the prisoner, » You had better tell 
 how you did it;" and that thereupon she made an answer. Patte- 
 son, J., "It is the opinion of the judges, that evidence of any con- 
 fession is receivable, unless there has been some inducement held out 
 by some person in authority ; and in this case I should have received 
 the evidence of the statement made to Mr. Winders, if the inducement 
 had been held out by him alone. But here the inducement does not 
 *rest with him alone, because Mrs. Lyford, who was the wife of the *841 
 prosecutor and also the mistress of the prisoner, was present with Mr. 
 Winders, and must, as she expressed no dissent, be taken to have sanc- 
 tioned the inducement. I think, therefore, that the inducement must 
 be taken, as if it had been held out by Mrs. Lyford, who was a person 
 in authority over the prisoner, and that therefore the evidence is inad- 
 missible, "(p) 
 
 On an indictment for a misdemeanor in attempting to set fire to her Up- 
 master's house, it appeared that the prisoner, a girl aged thirteen, was cnurcll 's 
 a domestic servant to the prosecutor, whose wife lived with him, and confession 
 took her share in the management of the house. After the attempt to obta i ned 
 set fire to the house was discovered, the prisoner's mistress, in the va nt 
 absence of the prosecutor, said to her, "Mary, my girl, if you are through 
 guilty do confess ; it will perhaps save your neck ; you will have to go threats*" 
 to prison; if William H. (another person suspected, and whom the held out 
 prisoner had charged,) is found clear, the guilt will fall on you." She ^ f * o e 
 made no answer. The mistress then said, " Pray tell me if you did the master 
 it." The prisoner then confessed. It was contended on the part of an i d P ros . e - 
 
 • i i •!• i i i i cutor is m- 
 
 the prosecution, that the wile had no authority, real or apparent, over admissible, 
 the prisoner, so as to hold out any hope which could influence the pri- 
 soner to make a false statement, in order that her life might be spared, 
 and therefore that the confession was admissible. The confession was 
 admitted, and the question as to its admissibility reserved for the con- 
 sideration of the judges, who thought the confession ought not to have 
 been received. (q) 
 
 On a trial for setting fire to a house, it appeared that the prisoner, a Simpson's 
 girl about fifteen years old,f was a servant in the prosecutor's house, case - 
 and that soon after the fire was put out, Handsley, a neighbour of the feSS j on f 
 prosecutor's, said to the prisoner, " I doubt you have set this house on a girl 
 fire by the candle between the laths." She said she did not. On the fi ^ r e g n old 
 same day, Mrs. Bowis, who lived about three hundred yards from the occasioned 
 house of the prosecutor, and who was the mother of Mrs. Blackburn, by many 
 
 r . . ' applica- 
 
 ble wife of the prosecutor, spoke to the prisoner in the prosecutor s tionsby the 
 
 house in the presence of Mrs. Blackburn, who was very deaf, and theP rosecu - 
 
 tor's rclii- 
 
 prisoner's mother, and told her she had better confess the truth, because tions ail ',i 
 she believed it was her that fired both the house and the stack, and that neigh- 
 it would be a great deal the worse for her if she did not confess. The mounting 
 prisoner said she did not. On the same day the prisoner was taken be- to threats 
 
 (p) Reg. v. Taylor,' 8 C. & P. 733. (q) Rex v. Upchurch, R. & M. C. C. R. 465. 
 
 f [Confessions admissible against a child between twelve and thirteen years of age. State 
 v. Bostick, 4 Harrington, 552.] 
 
 a Eng. Com. Law Reps, xxxiv. 608.
 
 841 OF EVIDENCE. [BOOK VI. 
 
 an.l pro- fore a magistrate at Spilsby. On the next morning, Mrs. Bowis saw the 
 ""fad 1S prisoner again on the road to her house. Mrs. Bowis said to the prisoner, 
 missible. she should not come to her house, and told her again it was her that 
 fired both the house and stack; she said she did not do it. Soon after, 
 Handsley came up and joined them, and said to the prisoner, " Don't be 
 so bold, perhaps you will have to go to Spilsby to-morrow." Spilsby 
 was the place where the magistrates met. He told her that perhaps 
 somebody will come forward to-morrow that saw you do it. She took 
 her apron up, and held it to her face and said no more. She always 
 denied it ; and when Handsley said she might have to go to Spilsby, 
 she denied it again. He said, " If you be guilty, go along with Mrs. 
 *842 Bowis, and beg your master and mistress's pardon, and *get away and 
 be better in future, and we shall not seek after you;" and he said, 
 " Never mind your wages, I'll give you a few shillings out of my 
 pocket." And Handsley also told her it would be better for her to con- 
 fess. After he went away, Mrs. Bowis went with the prisoner to Black- 
 burn's house, and talked to her about the fire all the way ; and after 
 they got there, they went out of the house, and Mrs. Bowis said to the 
 prisoner, " Now, Sarah, you lighted the bunch of matches, and put it 
 into the thatch of the house;" before she said that, she told the prisoner 
 that if she went to Spilsby again she would be a great deal worse off, 
 and she said to her several times, both going along the road to the pro- 
 secutor's house, and also in the house, and also when she spoke to her 
 out of doors, that it would be a great deal better for her if she would 
 confess, and a great deal worse for her if she did not confess. The 
 counsel for the prisoner objected to evidence being given of what the 
 prisoner said, on Mrs. Bowis charging her as before stated, on the 
 ground that after these promises and threats had been held out to her, 
 her answer could not be received unless she had a caution. For the 
 prosecution it was contended that her answer might be received, 
 because Handsley was neither a constable, nor did he stand in any 
 relation to the prosecutor; and though Mrs. Bowis was the mother of 
 the prosecutor's wife, yet that promises and threats, made by a person 
 standing in that situation, were not sufficient to exclude a confession. 
 Littledale, J., allowed the evidence to be given, but reserved the ques- 
 tion for the opinion of the judges, whether it ought to have been received. 
 On Mrs. Bowis saying to the prisoner, "Now, Sarah, you lighted the 
 bundle of matches, and put it into the thatch," the prisoner said, "Yes, 
 I did." Mrs. Bowis then told Mrs. Blackburn what had passed, and 
 Mrs. Blackburn then came out, and then Mrs. Bowis, in the presence of 
 Mrs. Blackburn, asked the prisoner what she did it for; whether it was 
 for anything against the family ? She said " No." Mrs. Blackburn 
 asked if any one persuaded her to it? She said "No;" she said she 
 had no malice. The prisoner in her defence asserted her innocence, and 
 said that Mrs. Bowis said that if she would confess to it she should have 
 her liberty, and she added that she did it on purpose to get her liberty, 
 and that they frightened her to do it. The jury said they found the 
 prisoner guilty with her own confession; but Littledale, J., told them 
 they must find her either guilty or not guilty, and then they gave a ver- 
 dict of guilty ; and all the judges, upon a case reserved, were unanimously 
 of opinion that the confession ought not to have been received, and that 
 the conviction was bad.(r) 
 
 (r) Rex v. Simpson, R. & M. C. C. R. 410. The grounds upon which this decision pro-
 
 CHAP. IV. § I.] OP CONFESSIONS AND ADMISSIONS. *843 
 
 *With regard to the persons whose inducements will not exlude a Rowe's 
 confession, the following cases may be mentioned: — While the consta- j^ ce 
 ble who apprehended the prisoner had him in custody to take him before ments by 
 a magistrate, some of the neighbours who had nothing to do with the P erso ° s n . ot 
 
 i • ,• •• «i r »,., in authori- 
 
 apprehension, prosecution, or examination of the prisoner, officiously ty. 
 interfered, and admonished the prisoner to tell the truth, and consider 
 his family, which was a large one. No answer or observation thereon 
 was made by the constable, nor did the prisoner answer them, but he 
 desired the constable to call upon him in an hour at the prison, which 
 he did, and there the prisoner made a full confession, which was re- 
 ceived in evidence, and upon a case reserved, the judges present agreed 
 that the evidence was admissible, and the conviction right, because the 
 advice to confess was not given or sanctioned by any person who had 
 any concern in the business. (s) So where the counsel for the prisoner 
 objected to a confession before a committing magistrate, and offered to 
 prove, that the wife of the constable had told the prisoner, some days 
 before the commitment, that it would be better for him to confess, Mr. 
 Baron Wood overruled the objection, and admitted the confession. (t) 
 
 In the case of Kex v. Eliz. Gibbons, (u) who was indicted for the mur- Gibbon's 
 der of her bastard child, a surgeon was called to prove certain confes- case - 
 sions made by the prisoner to him. He stated that he had held out 
 no threat or promise to induce her to confess; but a woman, who was 
 present, said that she had told the prisoner she had better tell all; and 
 then the prisoner made certain confessions to the surgeon. It was ob- 
 jected, that as the confession was made after an inducement held out, it 
 could not be received in evidence; but Parke, J. A. J., after consulting 
 
 ceeded, are not mentioned in the report, and the real import of the case does not appear to be 
 correctly abstracted in the text books, as observes Mr. Joy, p. 9, and after abstracting the 
 case he well observes, "that it was in the prosecutor's house, and in the presence of the 
 prisoner's mother, and of the prisoner's mistress, a person in authority over her, and under 
 her implied sanction, that the prisoner was told in the first instance that it would be better for 
 her to confess. So in the conversation that immediately elicited the confession, the induce- 
 ment was held out in the prosecutor's house, [this is an error, it was after "they went out 
 of the house,"] and although it does not appear distinctly whether the prosecutor or his 
 wife were then present, [it is clearly to be inferred that they were not present, for after the 
 prisoner said " I did," Mrs. Bowis told Mrs. Blackburn, and she "then came out,"] the influ- 
 ence caused by the inducement held out on the preceding morning, in the presence of the 
 prosecutor's wife, and in his house, may perhaps be considered to have continued." Joy, 10, 
 and 11, and he refers to Rex v. Upchurch, ante, p. 841, and Reg. v. Taylor, ante, p. 840, to 
 show that the mistress is a person in authority. It may be observed, also, that Patteson, 
 J., held, in Reg. v. Taylor, that an inducement held out by a person in the presence of the 
 prisoner's mistress, must be taken as if it had been held out by the mistress herself, from 
 which it may be inferred that that very learned judge considered the person holding out the 
 inducement as the agent for that purpose of the mistress. In that case, as the prosecutrix 
 expressed no dissent, she was taken to have sanctioned the inducement ; so in the present 
 case the same must be inferred as the inducement first held out in the presence of the mis- 
 tress, and as by her conduct in the latter part of the transaction the prosecutrix sanctioned 
 what Mrs. Bowis bad done in her absence, the learned judges may have thought that Mrs. 
 Bowis was the agent of the prosecutrix for the purpose of discovering the guilt of the pri- 
 soner. If a person were expressly employed by the prosecutor to discover the person who 
 had committed a felony, there seems good reason why he should be considered as a person 
 having so much to do with the apprehension and prosecution, as to render a confession 
 obtained by his inducements inadmissible. See Rex v. Stacey, ante, p. 839. C. S. G. 
 
 (s) Rex v. Row, Russ. & Ry. 153. See Rex v. Pountney, ante, p. 840, and Reg. v. Taylor, 
 ante, p. 840, and qu. whether, as the constable not only expressed no dissent to the induce- 
 ments used, but, by going to the prison, seems to have sanctioned them, there was not 
 ground for contending thai the confession was improperly obtained. C. S. G. 
 
 (0 Rex v. Hardwick, 1 Phill. Ev. 408. j5 Halsted, 1G3.J 
 
 («) 1 C. & P. a 97. 
 
 a Eng. Com. Law Reps. xi. 327.
 
 843 OF EVIDENCE. [BOOK VI. 
 
 Hullock, B., held that as no inducement had been held out by the sur- 
 geon, to whom the confession was made, and the only inducement had 
 been held out by a person having no authority, it must be presumed 
 that the confession to the surgeon was a free and voluntary one. If the 
 promise had been held out by a person having any office or authority, 
 as the prosecutor, constable, &c, the case would be different; but here, 
 some person having no authority of any sort, officiously says, you had 
 better confess. No confession follows, but some time afterwards, to an- 
 *844 other person, the prisoner, without any inducement held out, confesses. 
 The learned judge added, that he and Hullock, B., had not the least 
 doubt that the evidence was admissible. So where the counsel for the 
 prisoner, proposed to show that the prisoner, being locked up alone in a 
 room in a public house, was told by a man that another prisoner had 
 told all, and that he had better do the same to save his neck : and that 
 on this he confessed. It was held, that as the promise, (if any) was by 
 a person wholly without authority, the subsequent confession to the 
 constable, who had held out no inducement, must be considered as 
 voluntary, and was therefore admissible. (x) 
 Confession There has been a difference of opinion among the judges whether a 
 to a person confession made to a person who has no authority, after an inducement 
 "horit/af- held out Dv that person, is receivable ; some of the judges thinking it 
 ter induce- receivable, and others thinking it is not so.^) And several cases have 
 suc'hper occurred, in which confessions made to persons without authority, in 
 son. consequence of inducements held out by such persons, have been re- 
 
 jected.^) But it is said to be " the opinion of the judges that evidence 
 of any confession is receivable, unless there has been some inducement 
 held out by some person in authority. "(a) 
 Result of The result of these cases seems to be, that a confession is not inad- 
 the cases, missible, although made after an exhortation, or admonition, or other 
 
 (x) Rex v. Tyler and Finch," 1 Carr. & P. 129, Hullock, B. 
 
 (y) Per Parke, B., in Rex v. Spencer, b 7 C. & P. 776. In this case, after the prisoner was 
 in custody, he was told by a person, who was neither prosecutor nor constable, nor had any 
 authority of any kind, that it would be better for him to confess. The confession was not 
 proved, as the very learned baron offered to receive it, subject to the opinion of the judges. 
 
 (z) In Rex v. Dunn, c 4 C. & P. 543, a witness proved that the prisoner wished to sell a 
 stolen book to him, and that he told him he had better tell where he got it. Bosanquet, J.. 
 "Any person telling a prisoner that it will be better for him to confess, will always exclude 
 any confession made to that person. Whether a prisoner's having been told by one person 
 that it will be better for him to confess, will exclude a confession subsequently made to 
 another person, is very often a nice question ; but it will always exclude a statement made 
 to the same person." In Rex v. Slaughter, ibid, note (a), the same learned judge rejected a 
 confession made by the prisoner to one of his fellow-workmen, who had told him it would 
 be better for him to confess. In Rex v. Arundel, Gloucester Summer Assizes, 1830, the 
 same learned judge ruled the same way, saying, " If an unauthorised person makes a pro- 
 mise, it will not prevent a statement made to another person from being received in evidence : 
 but if the statement be made to the person who makes the promise, I think it ought not to 
 be received." The same distinction is also adverted to in a note to Rex v. Gibbons, ante. 
 p. 843. For this distinction, however, there seems no sufficient reason. The correct inquiry 
 in every case is, whether the inducement was such as to lead the prisoner to suppose that 
 it would be better for him to confess himself guilty of a crime he did not commit. If it was, 
 then a statement made under its influence, whether to the party using the inducement, or 
 to another person, would be inadmissible. At the same time, it must ever be a circum- 
 stance deserving of consideration, in conjunction with others, that the prisoner did not 
 make the confession to the party using the inducement at the time ; but made it afterwards 
 to another party ; as that tends to show that he was not under the influence of the induce- 
 ment when he confessed ; and this is the view which the court seem to have adopted in 
 Rex v. Gibbons. See also Mr. Joy's observations, p. 26, 27. C. S. G. 
 
 (a) Per Patteson, J., in Reg. v. Taylor, d 8 C. & P. 733, ante, p. 840. 
 
 a Eng. Com. Law Reps. xi. 343. b lb. xxxii. 731. <= lb. xix. 518. d lb. xxxiv. 608.
 
 CHAP. IV. § I.] OP CONFESSIONS AND ADMISSIONS. 844 
 
 similar influence, proceeding at a prior time from some one who has 
 nothing to do with the apprehension, prosecution, or examination of the 
 prisoner : for a promise made by a person who interferes without any 
 authority of this kind, is not to be presumed to have such an effect on 
 the mind of the prisoner as to induce him to confess that he is guilty of 
 a crime of which he is innoceut. 
 
 *It is no objection that the confession was made under a mistaken *845 
 supposition, that some of the prisoner's accomplices were in custody : Instances 
 not even though some artifice had been used to draw him into that sup- ble confes-" 
 position, (b) sion. 
 
 An inducement held out to a prisoner with reference to one charge, An induce- 
 
 will not exclude a confession of another offence, of which the prisoner ment as to 
 1 i i • i iii mi • one crime 
 
 was not suspected at the time the inducement was held out. ihe pn- will not 
 soner had been in the custody of several constables, one after another, exclude a 
 and it was suggested on his behalf that one of them had improperly as t0 & Q . 
 induced him to confess, and this constable was called, and stated, that other 
 the prisoner was in his custody on another charge, and was not suspected 
 at that time of the offence for which he was on his trial, and that he 
 made a statement. It was submitted that if a promise was held out to 
 him, it was immaterial what the charge was. Littledale, J., " I think 
 not. If he was taken up on a particular charge, 1 think that the pro- 
 mise could only operate on his mind as to the charge on which he was 
 taken up. A promise as to one charge will not affect him as to another 
 charge." The confession was admitted. (c\ 
 
 But where several felonies form part of the same transaction, an in- Unless 
 ducement held out as to one will exclude a statement as to another. On p ^:[ s a Jf 
 an indictment for attempting to set fire to the house of one Vidler, it the same 
 appeared that the bed and bedding of two rooms in the house were t r:insac - 
 found on fire, and soon afterwards a silver teaspoon and a broken salt- 
 spoon were found in the sucker of the pump. Vidler said to the pri- 
 soner, that if she did not tell the truth about the things that were 
 found in the pump, he would send for the constable to take her, but 
 he did not say anything to her about the fire. Coltmau, J., held that 
 this was such an inducement to confess, as to exclude anything that the 
 prisoner said respecting the fire ; as it was really all one transaction. (<7) 
 
 If what is said to a prisoner have no tendency to induce him to make The proper 
 an untrue statement, his confession is admissible. On an indictment for c i" e ; tlon 1S 
 
 ' # _ whether 
 
 cattle-stealing, a witness stated that he had had a conversation with the the induce- 
 prisoner, in Avhich the prisoner asked the witness if it would be better ment be 
 
 . calciunted 
 
 for him to confess ; upon which the witness replied that it would be to produco 
 
 better for him not to confess, but that the prisoner might say what he a fftlse 
 
 . statement. 
 
 had to say to him, for it should go no further; it was objected that the 
 
 statement made to the witness was not receivable, as it had been ob- 
 tained under a promise. Coleridge, J., '< The only proper question is, 
 whether the inducement held out to the prisoner was calculated to make 
 his confession an untrue one. I think that what was said in the pre- 
 sent case must have had a contrary tendency."(e) So if what is said to Long's 
 a prisoner contain neither a promise, threat, nor inducement to confess, ' '"'' "' '" 
 the statement of the prisoner is admissible. The prisoner having been 
 
 (/,) Rex v. Burley, 1 Phill. Ev. 40G. 
 
 (c) Rex v. Warner and Morgan, Gloucester Spring Assizes, 1832. MSS. C. S. G. 
 
 (d) Reg. v. Hearn," 1 (J. & Mars. 101). (c) Rex v. Thomas," 7 C. k P. 345. 
 
 a Eng. Com. Law Reps. xli. C5. b lb. xxxii. 536. 
 
 Vol. ii. — 55
 
 845 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 '846 
 
 Advising a 
 
 prisoner to 
 be sure to 
 toll the 
 truth. 
 
 charged on oath, by Betsy Burford, an accessory before the fact, with 
 having set fire to three hay-stacks, belonging to Organ, Nichol, and 
 Gillman, the constable went with a warrant, specifying all the three 
 charges, and stating them to have been made on the oath of *the ac- 
 cessory, and, when the prisoner was apprehended, she was told that 
 there was a very serious oath laid against her by Betsy Burford, who 
 had sworn that she had set fire to Organ's, Nichol's, and Gillinan's 
 ricks ; on which the prisoner made a statement ; which was allowed to 
 be given in evidence. (/) 
 
 If a person advise a prisoner to be sure to tell the truth, and he then 
 makes a statement, such statement is admissible, on the ground that 
 such advice cannot be supposed to induce the prisoner to confess that 
 he is guilty of a crime, of which he is really innocent. On an indict- 
 ment for forgery the committing magistrate proved that no inducement 
 was held out to the prisoner to confess ; but the prosecutor had said, in 
 the presence of the prisoner, that he considered the prisoner as the 
 tool of one Gardiner, and the magistrate then told the prisoner to be 
 sure to tell the truth ; on which he made a statement. It was ob- 
 jected that this statement was not receivable ; for though this was not, 
 in form, an inducement to confess, it was in effect so. A person in 
 authority advising a prisoner to tell the truth, conveyed to the mind of 
 the accused an intimation that it would be better for him if he confessed 
 the charge. Littledale, J., " I think I ought to receive the evidence. 
 It can hardly be said that telling a man to be sure to tell the truth, is 
 advising him to confess what he is really not guilty of. The object of 
 the rule relating to the exclusion of confessions, is to exclude all con- 
 fessions, which may have been procured by the prisoner being led to 
 suppose that it will be better for him to admit himself to be guilty of au 
 offence, which he really never committed."^) 
 
 Where a prisoner and his wife were both in custody on a charge of 
 receiving bank-notes, but in separate rooms, and a person said to him, 
 " I hope you will tell, because the prosecutrix can ill afford to lose the 
 money," and the constable said, " If you will tell where the property is, 
 you shall see your wife;" Patteson, J., said, "I think that this is not 
 such an inducement as will exclude the evidence of what the prisoner 
 said : it amounts only to this, that if he would tell where the money 
 was he should see his wife." And the statement made by the prisoner 
 was received. (A) 
 
 It is no objection to receiving a confession that the party to whom it 
 was made takes an oath that he will not reveal what is told to him. 
 After the prisoner had been committed on a charge of murder, a fellow- 
 
 Lloyd's 
 case. 
 
 Math not to 
 reveal a 
 sonfession. 
 
 i /) Rex v. Long,* 6 C. & P. 179, Gurney, B. The statement to the prisoner was nothing 
 more in substance than the statement contained in the warrant. 
 
 (.?) Rex v. Court, b 7 C. & P. 486. This case seems at variance with several other cases 
 where a confession has been rejected because the prisoner was'told it would be better for 
 him to tell the truth. See Rex v. Enock, c 5 C. & P. 539, ante, p. 829. Rex v. Williams, 
 MBS. C. S. G. ante, p. 832. Rex v. Compson, ante, p. 834. Rex v. Edwards, ante, p. 836. 
 Rex v. Griffiths, ante, p. 838. Rex v. Row, ante, p. 843, and Reg. v. Hearn, ante, p. 845. In 
 these cases, it is conceived, that although the inducement was in terms to tell the truth, yet 
 the learned judges understood it as conveying to the prisoner's mind an intimation 
 that he would gain some benefit by confessing himself guiltv, even if he were not so. C. 
 S. G. 
 
 (h) Rex v. Lloyd, 3 6 C. & P. 393. 
 
 8 Eng. Com. Law Reps. xxv. 343. b lb. xxxii. 595. c lb. xxiv. 446. 
 
 d lb. xxv. 343.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 846 
 
 prisoner said to him, "I wish you would tell me how you murdered the 
 boy ; — pray split." The prisoner said, " Will you be upon your oath 
 not to mention what I tell you?" The other prisoner went upon hia 
 oath, that he hoped, if he told, that he might never *stir out of that *847 
 place again. The prisoner then made a statement. It was held that 
 this was not such an inducement as to render the statement inadmissi- 
 ble, and that although such oaths were very wrong and wicked, still 
 they were not binding; and that every person, except counsel and at- 
 torneys, were bound to reveal what they might have heard. (A 
 
 So where a constable told a prisoner that his father had been charged Nolan's 
 with the murder. He had been previously cautioned not to criminate case - 
 himself, as the witness would bring it all against him. The prisoner 
 said he hoped no one would be charged with the murder but himself, and 
 then made a confession. Doherty, C. J., having conferred with Torrens, 
 J., admitted the confession, observing, that although such announcement 
 was likely to act upon the feelings of the prisoner, he would not be 
 warranted on that ground in refusing to receive it.//) So where the Cain's 
 prisoner was indicted for concealing the birth of her child, a medical case - 
 witness said that he examined the prisoner in custody, and found that 
 her breasts were full of milk, and asked her whether she had not 
 recently had a child, and added that if she refused to tell he would 
 examine her person more closely; the prisoner then said, "It is unne- 
 cessary to examine me, for I had a child." Torrens, J., admitted this 
 confession, on the ground that the witness was endeavouring to ascertain 
 a fact within his own province ; and not inconsistent with the prisoner's 
 innocence, and that the declaration of the witness was not a threat within 
 the rule which excludes confessions. (k\ 
 
 If the proposal to confess comes from the prisoner, it seems that his Proposal 
 confession is admissible, although the prosecutor, in consideration of his t0 confess 
 
 . . . . coming 
 
 doing so, says he will do all he can for him. Upon an indictment for f r0 m the 
 housebreaking, it appeared that the prisoner being in the shop of the prisoner- 
 prosecutor, handcuffed, some recommendations to confess had been, in 
 the absence of the prosecutor, made to him by the person who had been 
 left in charge of the house ; and the prisoner said, that if the handcuffs 
 were taken off he would tell where he put the property. He had ex- 
 pressed doubts whether, if he told where the property was, he could 
 rely on being leniently dealt with, and, after the prosecutor came in, he 
 was told that they would do all that they could for him. It was ob- 
 jected that the statement was inadmissible, as it was made under duress, 
 and to deliver himself from the confinement. Bosanquet, J., " I do 
 not think there is anything in the objection, but I will take a note of 
 it." Taunton, J., " I take it no man ever makes a confession volun- 
 tarily, without proposing to himself in his own mind some advantage to 
 be derived from it." The statement was received. (A 
 
 In a case where Miller, the chief officer of the police at Liverpool, Thornton's 
 
 stated, that on the 18th of November, the prisoner, a bov of fourteen case - 
 
 A confes- 
 years of age, was apprehended by his directions, without any warrant, s iy. n b_ 
 
 (i) Rex v. Shaw,» 6 C. & P. 372. Patteson, J. 
 
 (/) Nolan's case, Joy, 1G. 1 Crawf. & Dix. C. C. 74. 
 
 (k) Cain's case, Joy, 46. 1 Crawf. & Dix. C. C. 37. 
 
 (I) Rex v. Green, b G C. & P. G55. The statement did not amount to a confession, and 
 Bosanquet, J., desired the jury to lay it out of their consideration. See Dr. Greenleaf's 
 observations, note (r), ante, p. 828. 
 
 8 Eng. Coin. Law Reps. xxv. 448. b lb. xxv. 581.
 
 847 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 tained 
 
 without 
 
 *848 
 
 threat or 
 promise 
 from a hoy 
 fourteen 
 
 years old, 
 by ques- 
 tions put 
 by a police 
 officer, in 
 whose 
 custody 
 the boy 
 was on a 
 charge of 
 felony, 
 and when 
 he had had 
 no food for 
 nearly a 
 day, held 
 rightly re- 
 ceived. 
 
 Letter 
 from the 
 prisoner 
 in gaol. 
 
 There must 
 lie the hope 
 of temporal 
 oenefit. 
 
 ijilham's 
 case. A 
 confession 
 made in 
 conse- 
 quence of 
 jiersuasion 
 
 between twelve and one o'clock, and that he was carried to the police 
 office about one o'clock. The magistrates were then sitting *at a very- 
 short distauce, and continued sitting till between two and three, and till 
 the business presented to them was finished ; but the prisoner was not 
 carried before them, because the police officer was engaged elsewhere. 
 The officer ordered the prisoner to Bridewell on his own authority, 
 between four and five o'clock ; and between five and six o'clock, he told 
 the prisoner, that in consequence of the falsehoods the prisoner had told, 
 and the prevarications he had made, there was no doubt but he had set 
 the premises on fire ; and he therefore asked him if any person had 
 been concerned with him, or induced him to do it ? The prisoner said 
 he had not done it. The police officer replied, that he would not have 
 told so many falsehoods as he had, if he had not been concerned in it, 
 and he again asked him if any body had induced him to do it? The 
 prisoner then began to cry, and made a full confession. In speaking 
 of the falsehoods, the police officer referred to an examination of the 
 prisoner he had himself made. The prisoner was taken before he had 
 dined, and had had no food from the time he was apprehended till after 
 his confession. Bayley, J., thought it deserved consideration, whether 
 a confession so obtained, when the detention of the prisoner was per- 
 haps illegal, and when the conduct of the officer was calculated to 
 intimidate, was admissible in evidence, and reserved the point for 
 the opinion of the judges; a majority of whom held the confession 
 rightly received, on the ground that no threat or promise had been 
 used.(m) 
 
 In another case,(?A where the prisoner, while in gaol, asked the turn- 
 key if he would put a letter into the post for him, and after his promis- 
 ing to do so, the prisoner gave him a letter addressed to his father, and 
 the turnkey, instead of putting it into the post, gave it to the visit- 
 ing magistrates of the gaol, who gave it to the prosecutor; Gar- 
 row, B., held, that the letter so obtained was admissible in evidence, 
 and said, he remembered making an objection, when at the bar, to 
 evidence under the same circumstances, before Mr. J. Gould, who 
 overruled it. 
 
 If the expressions be not calculated to raise any hope of some benefit 
 or advantage of a mere temporal nature, it seems that they will not 
 exclude a confession. Upon the trial of a girl for arson, evidence was 
 offered of declarations made by the prisoner to her mistress, after her 
 mistress had told her it would be better if she would confess if she were 
 guilty, for she would never be easy in her mind till she had confessed. 
 Holroyd, J., after consulting Bayley, J., was of opinion that the 
 evidence was receivable; but it was afterwards excluded on other 
 grounds, (o) 
 
 Upon an indictment for murder, it appeared that the prisoner and 
 the deceased had been in the service of Mrs. Coxe, at Bath. The 
 deceased was murdered in the night of the 26th of January, and the 
 prisoner was apprehended on the 30th of that month, and some articles 
 belonging to Mrs. Coxe afterwards found in a room hired by him. 
 
 (m) Rex v. Silvester, Thornton, Ry. & Mood. C. C. R. 27. Best, C. J., Bayley, J. and Hol- 
 royd, J., dissent ientibus. 
 
 (n) Rex V. Derringt,on, a 2 C. & P. 418, Garrow, B. 
 (o) Rex v. Hodgson, 2 Stark. Ev. 37, note. 
 
 a Eng. Com. Law Reps. xii. 199.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 848 
 
 When in gaol, the prisoner had the Bible and the Whole Duty of Man byaclergy- 
 by him ; the gaoler pointed out several passages for *him to read in the with ' anv 
 Prayer Book, particularly the opening sentence of the service, and told view of 
 him if he wished to have a spiritual adviser, he would endeavour to get ^1^™^ 
 him one ; and after some conversation, the prisoner expressed a wish to admissible. 
 have the chaplain of the gaol. The chaplain went to the gaol and asked *849 
 the prisoner why he sent to him ; the prisoner answered, to read and pray 
 with him, as he could not do it himself, or make use of the books which 
 were lying before him, which were the Bible, Prayer Book, and Whole 
 Duty of Man. The prisoner said he knew he was a sinner and should 
 soon die. The chaplain asked him how he knew it ; he replied, he had 
 been told at the Hall he should be hanged for taking the goods of his 
 mistress ; and he then admitted that he had purloined a few things from 
 her. The chaplain saw he was in a very perturbed and distressed state 
 of mind, and asked him if there was not something still more heavy on 
 his conscience : he said he knew he was a sinner as other men, and he 
 knew he was suspected of the unhappy murder. The chaplain told 
 him, if he was innocent to maintain his innocence; but if not, his own 
 heart would tell him. The chaplain, as the minister of God, thought it 
 was his duty to warn him not to add sin to sin, by attempting to dis- 
 semble with God. The chaplain then asked him, as he confessed him- 
 self a sinner, and as he thought he should soon die, whether he would 
 not wish to repent of his sins ; he answered in the affirmative. The 
 chaplain then explained to him what he considered to be the nature of 
 true repentance ; and, amongst other things, that it was not a mere ac- 
 knowledgment of sin, but a deep search into ourselves, and by the 
 purity of the Gospel, whenever we found ourselves deep defaulters, to 
 confess the same before God, with a deep contrition on our part for 
 having violated the law of God. The chaplain told him, that before 
 God it would be better for him to confess his sins. The chaplain also 
 told him, that next to confessing his sins before God, another most im- 
 portant part of the duty of repentance was to repair, by all possible 
 means in his power, every injury of whatsoever nature he had done to 
 his fellow creatures ; he enlarged very considerably on his repairing the 
 injuries he had done his fellow creatures, as forming a branch of true 
 repentance; and he said he might say, and repairing any injury done 
 to the laws of his country. The chaplain stated that the prisoner was 
 then extremely agitated ; he read to him part of the Commination Ser- 
 vice, commenting upon it as he went along. He thought at one time 
 that the prisoner was on the point of making some immediate commu- 
 nication to him, and he asked him if he should send for Mr. Bourne, 
 (the gaoler,) meaning it with a view of the prisoner making a commu- 
 nication to Bourne, because he considered he had made a great impres- 
 sion on the prisoner. The chaplain stated the prisoner's agitation and 
 perturbed state of mind during the interview was so great, that he could 
 not help being aware that the prisoner had something pressing on his 
 mind ; and the chaplain said, while that was the case, he could tell the 
 prisoner, and the prisoner would feel, that no services of his would 
 afford him, what he wished they should do, real comfort; telling him 
 also he must be aware that he, as a minister of God, had but one object 
 in view, to bring him to a state of true repentance ; and that he could 
 not but himself feel sensible that he was more concerned in the dread- 
 ful deed than he had admitted ; that *he did not wish him to confess *850
 
 850 OF EVIDENCE. [BOOK VI. 
 
 (iiiimm's to him, but to bear in mind the subject on which he had talked to him 
 and read to him. The prisoner was evidently so worked upon by what 
 had been said, that the chaplain could not but observe it to him, and 
 asked him, whether his conscience did not bear witness to the truth of 
 what he had advanced. The chaplain soon after left him, the prisoner 
 having expressed a wish to see him again. He then went and reported 
 to the magistrates what had passed between them ; and having recov- 
 ered himself a little from the agitation he was in from so painful an in- 
 terview, went to the prisoner again a little before three on the same 
 clay, and resumed the tenor of his conversation upon repentance, and 
 confessing his sins before God, and repairing, by every possible means, 
 any injury he had done to his fellow creatures. As the prisoner had 
 himself alluded to the murder, the chaplain entreated him, if he knew 
 himself guilty, to avail himself by the means of general repentance and 
 faith in Christ, to be reconciled with God. At one time, during this 
 interview the chaplain saw so evident an impression made on his mind, 
 that he could but tell him his fear, which he had expressed to the 
 prisoner in the morning, respecting his participation in the dreadful 
 deed, was fully confirmed j and that while he was in that state of mind, 
 he (the chaplain) could not afford him the consolation by prayer, which 
 it was his earnest wish to do, and so that his prayers could be of any 
 avail to him ; and he soon after left the prisoner. The first interview 
 lasted about two hours, and the second about an hour and a quarter, 
 and during these interviews the chaplain enlarged upon the topics men- 
 tioned to the prisoner. The chaplain said he could almost take upon 
 himself to say, that he always used the terms, " confessing his sins be- 
 fore God ;" but he afterwards said that he could not say that he men- 
 tioned " before God" every time he used the word " confessing." 
 After the second interview, the gaoler saw the prisoner, and told him, 
 the prisoner, what had passed between him, the gaoler, and the pri- 
 soner's wife ; and he also told the prisoner that he was perfectly satis- 
 fied, that what he, the gaoler, said in the morning was correct. The 
 prisoner then said he would tell the gaoler all about it. The gaoler said 
 1st caution, to him, "Don't tell me anything but what you would wish the mayor 
 and magistrates to know; for whatever you tell me I must inform them 
 1st confes- of." The prisoner then related to the gaoler the particulars of the rnur- 
 sion to the (J er> an( j th e way in which he had committed it. Thegaoler then said 
 to him, " Now I shall tell all this to the mayor and magistrates." The 
 prisoner then said, " That is what I wish ;" he said he had endeavoured 
 to make up his mind to confess before, he had a great mind on Mon- 
 day. He then requested the mayor should come and hear what he had 
 to say ; and particularly wished to see the clergyman again. The next 
 morning (Saturday) the gaoler saw him again and read to him two 
 prayers and a psalm : he said he felt himself a good deal easier in his 
 mind. The mayor of Bath and town clerk came about ten o'clock. 
 The prisoner, before he saw them, told the gaoler that some part of what 
 he had stated the night before was not correct, as to what part of the 
 house he met the deceased in when he first struck her, and he said it 
 was in another part of the house. When the mayor saw the prisoner 
 in the gaoler's room, he said, " I am come to see you, as I understand 
 *851 y ou w i sa * to make some communication to me." The mayor then said 
 2nd eau- to him, « Before you say anything I think it necessary to apprise you, 
 non * as I have done several times during your examination, that it will pro-
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 851 
 
 bably be given in evidence against you. You are, therefore, to use your Gilham's 
 
 own discretion, and say little or nothing, as you may think best; and if ca 
 
 you have changed your mind since you sent to me, and do not choose 
 
 to say any thing, I will retire, and shall not feel at all angry with you 
 
 for having brought me down unnecessarily." The prisoner said some- 2nd confes- 
 
 thing; what he said was taken down in writing in his own words, it slontott 
 ° ' ~ ' mayor. 
 
 was read over to him by the town-clerk, and the clerk asked him if he 
 had any objection to sign it; he said he had not any, but his hand shook 
 so much he could not write his name, but it was all true. The mayor 
 then signed the examination, but it was not signed by the prisonei*. 
 This examination of the prisoner was read ; and it contained a confes- 
 sion of his having committed the murder, and the circumstances attend- 
 ing it. It appeared from the evidence of the mayor, that the prisoner 
 had undergone five or six examinations, including the coroner's inquest. 
 In the course of the same morning, after the mayor was gone, one of 
 the mayor's officers saw the prisoner, and in answer to a question how 
 he was, the prisoner told him he was better since he had eased his mind; 
 and in the conversation they had he told the officer that he had com- 3rd confes- 
 mitted the murder, and related some of the particulars. The next morn- S10U t0 , tb ®. 
 
 • t» mavor s 01- 
 
 ing (Sunday) the prisoner was taken from Bath to the county gaol byficer. 
 
 another of the mayor's officers, and in answer to an inquiry how he felt, 
 
 he said he felt a good deal better since he had relieved his mind ; and 
 
 in the course of their journey he told this last mentioned officer that he 4th confes- 
 
 had committed the murder, and stated some of the particulars. It was S10n to , ? 
 l -i -i mayor s oi- 
 
 contended on the part of the prosecution, that even supposing the con- ficeY. 
 
 fession made to Bourne, the gaoler, at Bath, immediately after the chap- 
 lain's interview with the prisoner, were not receivable in evidence, still 
 that the confession made to the mayor was receivable, inasmuch as the 
 mayor cautioned him against saying anything, unless he thought it 
 right, and that what he said would probably be given in evidence 
 against him. But Littledale, J., thought that, after what the chaplain Opinion of 
 had said to him, nothing that the mayor said could do away the effect littledale, 
 which the chaplain had produced in his mind, and that it differed from 
 those cases where a confession having been made under circumstances 
 which prevented its being received in evidence, if a magistrate has cau- 
 tioned a prisoner not to say any thing against himself, a subsequent con- 
 fession made before a magistrate has been admitted in evidence. The 
 learned judge received the confessions in evidence, and the prisoner was 
 found guilty. But the point was reserved for the consideration of the 
 judges; before whom it was contended, on behalf of the prisoner, that Argument 
 the confessions were all made under the influence of hopes and terrors :^ d ° r e e g t - c r 
 created on the prisoner's mind both by the gaoler and the chaplain, and the prison- 
 were therefore inadmissible ; that the hopes and fears spoken of in the er * 
 authorities were of two classes, merely worldly and religious or spiritual. 
 In this case hopes of temporal favour were created in the prisoner's 
 mind. It was not necessary that hope of pardon should be created ; 
 for any expectation of bettering his condition rendered the prisoner's 
 confession inadmissible. That the persons exerting their influence *over *852 
 the prisoner to confess were the gaoler, in whose custody he was, and 
 whose favour might lessen his coercion, and the chaplain, a person also 
 in authority, and whose good opinion and report frequently influenced 
 the fate of prisoners. But if no hopes of temporal favour existed, and 
 the inducements held out were merely religious, still they were of such
 
 852 OF EVIDENCE. [BOOK VI. 
 
 Gtilham'a a nature as to vitiate the confession. Although the chaplain for the 
 case ' most part used the term of "confessing before God," yet it was impos- 
 
 sible but that the prisoner must have understood him to mean confes- 
 sion to man, from the whole tenor of his exhortations. That the con- 
 fession was clearly made under the influence of religious hopes, terrors, 
 and menaces. In terms, therefore, it was within the principle of the 
 authorities. That in the case of a prisoner's examination on oath, the 
 only duress that could be exerted was religious duress, and the duress 
 of the religious obligation to speak even the truth, rendered the confes- 
 Argument s ion so obtained inadmissible.(/>) On the part of the crown, it was con- 
 oftho Pa,t tended that the confessions were properly received, not having been 
 crown. obtained by any hope of temporal favour, nor any species of duress. 
 The true principle of exclusion was, that confessions obtained by the 
 hopes of pardon and the fear of punishment, are made under the influ- 
 ence of a class of motives that might lead to a falsehood. But no one 
 could suppose that a man under the influence of a deep sense of reli- 
 gion, would confess an atrocious murder of which he was not guilty. 
 The motives, therefore, were of a class altogether different from those 
 which usually excluded confessions, and instead of being entitled to no 
 credit, were, from the nature of religion, of the very sort most likely to 
 produce truth ;(q) and if any hope of temporal favour had existed, 
 which was not stated, there had been ample caution given to remove 
 such impression, both by the gaoler and the magistrate. The judges 
 were of opinion that the confessions had been properly received, and 
 that the conviction was right ; upon the ground, it is understood, that 
 there were no temporal hopes of benefit or forgiveness held out ; and 
 that such hopes if referable merely to a future state of existence, are 
 not within the principles on which the rule for excluding confessions 
 obtained by improper influence is founded. (r) 
 *853 Upon an indictment for murder, it appeared that the prisoner, who 
 "Wild's case, was a boy of the age of fourteen, was taken into custody by Mr. Wragg, 
 A boy of not a CODS table, and on the same night was in the parlour of the inn, 
 
 fourteen, . ' ° .... r . , , 
 
 charged to which he was taken ; several persons, ^neighbours, but no constable, 
 with mur- -fl-ere i n t] ie room, and had been asking him questions about the children, 
 
 u.6r was ox 
 
 told by a whom he was charged with drowning. One Clark, who was present 
 man pre- -when Wragg took the prisoner up, and who was not a constable, stated 
 hewaa tak- " I told n ^ m to kneel down and tell the truth." Wragg took him into 
 en up, "now Adam's parlour, and began to question him how the children came to 
 down l°am S et * nto ^ e P^ : wnetner they fell in, or were put in ; he said he should 
 going to not tell anything about it. Wragg asked him if he would tell anyone 
 
 (p) The following authorities were cited, Rex u. Radford, at Exeter Summer Assizes, 1823, 
 where a clergyman had prevailed upon a prisoner to confess a murder, by dwelling on the 
 heinousness of the crime, and the denunciation of Scripture against it, without giving him 
 any caution that it would be used in evidence against him, and Best, C.J. , refused to allow 
 the clergyman to state the confession ; saying, that he thought it dangerous, after the confi- 
 dence thus created, which would throw the prisoner off his guard, and the impression thus 
 produced, to allow what he then said to be given in evidence against him. But, it is said 
 that this case was not determined on this ground; but that Best, C. J., thought that it was 
 improper in the clergyman to violate the confidence reposed in him by the prisoner, and 
 expressed a strong opinion to that effect, and as the evidence was not wanted for the crown, 
 if was not pressed, and the prisoner was convicted without it. Per Follett argvendo, ibid. 
 2 10. Rex v. Sparkes, cited Peake, N. P. R. 73. Williams v. Williams," 1 Hagg. 304. 
 
 (q) Rex v. Nute, 1 Burn. J., Doyl. & Wms. 1086, ante, p. 832. Rex v. Hodgson, ante, p. 
 848, and Rex v. Merceron, b 2 Stark. R. 366, post, p. 854, were cited. 
 
 (r) Rex v. Gilham, R. & M. C. C. R. 196. 
 
 a Eng. Ecc. Reps. iv. 413. b lb. iii. 385.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 853 
 
 else, if he would go out of the parlour; the prisoner said nothing ; ask you a 
 Wragg then went out. I said to the prisoner, " Now kneel you down ous ques _~ 
 by the side of me, and tell me the truth." I believe this was the first tion, and I 
 thing. He did kneel down. I said, I was going to ask him a very w aj e t ell me 
 serious question, and I hoped he would tell me the truth in the presence the truth in 
 of the Almighty. I then said, « Did these children fall into the pit 1" tbe P rc ' 
 
 ... I-, . -i i_ i sence ot the 
 
 He said he pushed one in with one foot, and the other with the other, Almighty," 
 but not purposely. Mr. Moulden asked him if he had any malice or and a state - 
 revenge ; he said no. Subsequently to this, the son of the innkeeper - in conse . 
 stated that next day the prisoner said he would tell him all about it. quenceheld 
 He neither promised nor threatened him. The prisoner then made a missiNe? 
 statement to him, which was given in evidence. Other declarations 
 also were given in evidence. An examination of the prisoner, who 
 could not write, was put in, it began, " W. Wild being cautioned, &c," 
 and the evidence being read over to him said, "I can give no other 
 account than I have already given, &c."(s) The prisoner having been 
 found guilty ; upon a case reserved as to the admissibility of the evi- 
 dence, the judges present were unanimous that the confession was 
 strictly admissible, but they much disproved of the mode in which it 
 was obtained. (<) 
 
 It has been said that a prisoner ought not to be questioned by a ma- Confes- 
 gistrate; and in Rex v. Wilson, (u) the prisoner's statement was on this S10 ? s ehcit_ 
 account rejected as inadmissible; but Mr. Starkie,(#) observes, that by tionsputby 
 the statute of Phillip and Mary(w) formerly, and now by the 7 Geo. 4, magis- 
 c. 64, s. 2, the magistrate is to take the examination of the prisoner, 
 and he cites a case where Holroyd, J., admitted the prisoner's examina- 
 tion to be read against him notwithstanding this evidence. And in a 
 still later case,(.r) Littledale, J., held that the examination of the pri- 
 soner, taken before the committing magistrate, was admissible, though 
 it appeared that part *of it had been elicited by questions put by the *854 
 magistrate. And it seems now to be settled, that a magistrate may, if Magis- 
 he think fit, put questions to a prisoner charged before him with a crime, put ques . 
 and consequently, that the statement of the prisoner in answer to ques- tions to 
 tions, so put, is admissible in evidence. A prisoner was examined seve- underex- 
 ral times before a magistrate, who took down what the prisoner said at animation, 
 each examination, no threat or promise being used, but much being in 
 answer to questions put by the magistrate. The prisoner at each ex- 
 amination had the notes read over to him, and stated them to be correct. 
 
 (s) The statement is given at length in the report, as well as the statement made to the 
 inn-keeper's son, but they are omitted, as nothing turned upon their contents. C. S. G. 
 
 {t) Rex v. Wild, R. & M. C. C. R. 452. The conviction was affirmed, but the prisoner was 
 transported for life. Lord Denman, C. J., Vaughan, J., Bolland, B., and Bosanquet, J., were 
 not present at the meeting of the judges. The grounds of this decision are not stated in the 
 report; but it should seem that the case may well be supported on the ground that the words 
 addressed to the prisoner had no tendency whatever to induce him to make a false statement, 
 but, on the contrary, were a most solemn adjuration to speak the truth. The decision seems 
 fully warranted by the principle in which Rex v. Gilham, supra, rests. The decision, how- 
 ever, could hardly be supported, on the ground that the inducement was held out by a per- 
 son without authority, as it was held out by a person present at the apprehension, and who 
 was acting in concurrence with the party who apprehended him, and they were keeping the 
 prisoner in custody, no constable being present. C. S. G. 
 
 (u) Holt, N. P. C. a 597, cor. Richards, C. B. 
 
 (v) 2 Stark. Ev. 38. 
 
 (w) Repealed, and substantially re-enacted by the 7 Geo. 4, c. 64, see post, p. 874. 
 
 (x) Rex v. Ellis," R. & M. N. P. R. 432. 
 
 a Eng. Com. Law Reps. iii. 192. b lb. xxi. 483.
 
 S54 OF EVIDENCE. [BOOK VI. 
 
 He did not sign them, and at the last examination he refused to do so, 
 saying that they were an incorrect account of the transaction. It was 
 held that a magistrate has a right to put questions to a prisoner ex- 
 amined before him on a charge of felony, and that the magistrate might 
 give evidence of what the prisoner said at each examination, he refresh- 
 Confes- i Q g his memory from his notes. (y) So a confession obtained without 
 sions ob- threat or promise from a boy fourteen years of age, by questions put by 
 questions a police officer, in whose custody the boy was, on a charge of felony, 
 put by per- was held rightly received. (z) So a confession obtained by questions 
 sons not p ut ^ ^ Q p rosecu t r's w ife/a) or by persons who are neither constables 
 trates. nor officers,(&) or by a fellow-prisoner,(c) is admissible. So in Rex v. 
 Merceronid) it was proposed on the part of the prosecution to prove 
 what had been said by the defendant in his examination before a com- 
 mittee of the House of Commons, which the defendant had been com- 
 pelled to attend; and on the part of the defendant it was objected, that 
 since this statement had been made under a compulsory process from 
 the House of Commons, and under the pain of incurring punishment as 
 for a contempt of the House, the declarations were not voluntary, and 
 could not be admitted for the purpose of criminating the defendant ; 
 ^or r but Abbott, J., overruled the objection and admitted the evidence. (cj 
 If a prison- ^ tne examination of a prisoner, taken before a magistrate, purport 
 er's exami- to have been taken on oath, it is not admissible, and evidence will not 
 nation pur- ^ e rece i ve( j to S ] 10W t h a t j n f ac t ^ was DO t taken on oath. An exami- 
 
 port to be m . 
 
 on oath, nation of a prisoner taken before a magistrate was written under the 
 evidence is following words, which except as to the name were printed, " The ex- 
 sible to animation of — Homage, taken on oath, before me, &c," and was signed 
 show that Dv the magistrate, and Le Blanc, J., rejected the examination, because 
 was not so. ^ purported to have been taken on oath, and would not permit a witness 
 
 {y) Rex v. Jones, Carr. Supp. 13, and 7 C. & P. 239, note (a). Bayley, J., Gaselee, J., 
 and Vaughan, B. And there have been many cases since, where similar examinations have 
 been held admissible. In Rex v. Bartlett, a 7 C. & P. 832, Bolland, B., admitted an exami- 
 nation which appeared as if some part of it were in answer to questions put by the magis- 
 trate, who, however, stated that he had no recollection of having put any questions ; and 
 if he had, certainly none except for the purpose of explaining what had been already said 
 by the prisoner. So in Rex v. Rees, b 7 C. &. P. 568, Lord Denman, C. J., admitted the pri- 
 soner's statement made in answer to questions put to him by the magistrate, it having been 
 afterwards read over to him, and he having said that it was iu substance correct. 
 
 (z) Rex v. Silvester Thornton, R. & M. C. S. R. 27. Ante, p. 847. Reg. v. Kerr, c 8 C. & 
 P. 176. Gibney's case, Joy, 36. Reg. v. Hughes, ibid. 39. Although there can be no doubt 
 that confessions elicited by questions put by officers are admissible, still there can be equally 
 little doubt that it is no part of the duty, or rather that it is a breach of the duty, of an 
 officer to put questions to prisoners, and learned judges have in many cases reprobated such 
 conduct in the strongest terms ; and in a recent case, where it appeared that a constable 
 was in the practice of interrogating prisoners in his custody, Patteson, J., threatened to 
 cause him to be dismissed from his office. Hill's case, Rose. Cr. Ed. 45. 
 
 (a) Rex v. Upchurch, ante, p. 841. (6) Rex v. Wild, ante, p. 852. 
 
 (c) Rex v. Shaw, ante, p. 846. 
 
 \d) 2 Stark. N. P. C. d 366. " I think there must be some mistake in that case; the evi- 
 dence must have been given without oath ; and before a committee of inquiry where the 
 witness would not be bound to answer." Per Lord Tenterden, C. J., in Rex v. Gilham, R. 
 & M. C. C. R. 203, on Rex v. Merceron being cited. 
 
 (e) So if a witness answers questions to which he might have demurred as subjecting him 
 to penalties, his answers may be used against him for all legal purposes; and therefore, in 
 an action on 5 Geo. 2, c. 30, s. 21, the defendant's examination before the commissioners 
 was allowed to be given in evidence, to show that by his own confession he had concealed 
 the property of the bankrupt. Smith v. Beadnell, 1 Camp. 30. See also Stockfleth v. 
 De Tastet, 4 Campb. 10. 
 
 a Eng. Com. Law Reps, xxxii. 759. b lb. xxxii. 633. c lb. xxxiv. 341. 
 
 d lb. iii. 385.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 855 
 
 to be examined for the purpose of showing that no oath had in fact been 
 administered to the prisoner, saying that he could not allow that which 
 had been sent in under the hand of the magistrate to be disputed. If} 
 So where the examination of a prisoner began, " The information and 
 complaint of R. Bentley, taken upon oath," &c, Gurney, B., rejected 
 the examination, and would not permit the magistrate's clerk to prove 
 that the examination was not taken upon oath, and that the statement 
 was a mistake. (a) So an examination beginning, "This deponent 
 saith," has been rejected, as that implied that the statement was made 
 upon oath.(7t) So where it appeared from the depositions, that the ma- 
 gistrate had written down that the prisoner was sworn, and made a 
 statement, which he returned as his examination, but a witness said 
 that in fact the prisoner was not sworn; Parke, B., in the presence of 
 Bosancpiet, J., said, that as the magistrate had returned that the pri- 
 soner was sworn, the statement made could not be received in evi- 
 dence. (A So where a statement made by a prisoner before a coroner 
 at an inquest, purported on the face of it to have been taken on oath, 
 but the coroner would have proved if parol evidence were admissible, 
 that in fact no oath was administered to the prisoner; Alderson, B., said, 
 " As the statement purports to be a statement on oath, I cannot receive 
 it as evidence against the prisoner; and I think, as it so purports, I can- 
 not allow parol evidence to be given to show that the statement was not 
 made upon oath.(j ) 
 
 If the examination of a prisoner is rejected on the ground that it pur- And parol 
 ports to have been taken on oath, parol evidence of the prisoner's evulen . ceof 
 statement is not admissible. A statement of a prisoner made before er 's state- 
 the committing magistrate had at the conclusion the words, « taken m ent is not 
 and sworn before me," and under those words the signature of the 
 magistrate ; the statement was rejected, and evidence that the prisoner 
 was not sworn held inadmissible; and it was also held that parol 
 evidence of what the prisoner said before the magistrate could not be 
 received. (/>•) 
 
 *The ground on which these decisions proceeded was, that the ac- *856 
 count given by a prisoner before a magistrate ought not to be upon Examina- 
 
 (/) Rex v. Smith," 1 Stark. R. 242. 
 
 (g) Rex v. Bentley, b 6 C. & P. 148, and MSS. C. S. G. The prisoner in this case was not 
 sworn, the magistrate having separate books, with printed headings on each page ; one 
 being the information book, and another the examination of prisoners' book ; the magistrate's 
 clerk had, by mistake, entered the prisoners examination in the information book instead of 
 in the prisoners' examination book. C. S. G. 
 
 (ft) Rex v. Shellwell, Oxford Spr. Ass. 1828, Park, J. A. J. MSS. C. S. G. 
 
 (i) Reg. v. Pikesley, 9 C. & P. 124. 
 
 (}') Reg. v. Wheeley, a 8 C. & P. 250. It is not expressly stated in the report that this was 
 the examination of the prisoner as a party charged before the coroner; but it is to be 
 inferred that it was so. And see Reg. v. Owen, 9 C. & P. 83, post, p. 860. 
 
 (fc) Rex v. Rivers/ 7 C. & P. 177. Park, J. A. J. The learned judge said, "I remember a 
 case in which the heading of a deposition was used, and it stated that the prisoner was 
 sworn. The written evidence was rejected, and parol evidence was offered, and that was 
 rejected also. As I see there is a writing, I cannot receive parol evidence. Mr. Phillipps, 
 vol. i., p. 403, says, "But there seems no good ground for this decision," and in vol. 2, p. 
 30, he says, "this is a strong decision, for if there was no oath imposed, and if the prisoner 
 had his choice to speak or not, as he might think right, his statement was voluntary, and 
 why should the mistake or carelessness of the magistrate, or his clerk, in making a mis- 
 statement as to the fact of swearing be an estoppel to the reception of evidence, which in 
 all other respects is unobjectionable?" 
 
 a Eng. Com. Law Reps. ii. 374. b lb. xxv. 325. ° lb. xxxviii. 67. 
 
 d lb. xxxiv. 375. e lb. xxxviii. 44. f lb. xxxii. 486.
 
 85G 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 tion on oath oath j and if the prisoner has been sworn, his statement cannot be 
 
 is not ad- • i , j\ 
 
 missible. received^ 
 
 Prisoner Upon an indictment for administering poison, it appeared that on the 
 
 examined J a y 0Q which the prisoner was committed, she and several others were 
 summoned before a magistrate, and at a time when she was under no 
 charge, and when there was no specific charge against any person, she 
 
 As a wit- 
 ness 
 against 
 another 
 prisoner. 
 
 on oath be- 
 fore a un- 
 charge 
 
 '"-•'linstany an( ^ * ue °^ er persons were examined upon oath touching this poison- 
 one, ing, and their statements taken down in writing ; but on the conclusion 
 of the examination, the prisoner was committed for trial on this charge. 
 It was proposed to put in the examination of the prisoner, and Rex v. 
 Tubby(m) was cited. Gurney, B., " This case is quite distinguishable 
 from the case cited. Under the circumstances of that case I should 
 have been disposed to agree with my brother Yaughan. I remember 
 in the case of Rex v. Walker, which was a case of forging a will, I 
 gave in evidence an affidavit made by one of the prisoners in the suit 
 in Doctors' Commons, and the prisoner was convicted and executed. 
 But this being a deposition made by the prisoner at the same time 
 as all the other depositions on which she was committed, I think it is 
 not receivable. I do not think this examination was perfectly volun- 
 tary."^) 
 
 Upon an indictment against a father and daughter for receiving stolen 
 goods it appeared that the daughter had been examined upon oath as a 
 witness before the committing magistrate, and it was proposed to ask 
 what she then said in the presence of her father. Gurney, B., " I think 
 you cannot do that. We cannot hear anything she said before the 
 magistrate when she was a witness ; if after having been a witness you 
 make her a prisoner, nothing of what was said then can be admitted in 
 evidence.'Vo) 
 
 With reference to an examination of a person charged as a prisoner 
 *taken upon oath, Mr. Phillips observes, » As an examination it is 
 irregular ; the modern statute, which regulates the proceedings of 
 magistrates on criminal charges brought before them, makes a distinc- 
 tion between the examination of a prisoner, and the informations of 
 those who make the charge ; the informations, but not the examinations 
 
 (I) Rex v. Smith," 1 Stark. N. P. C. 242. As to examinations by magistrates generally, 
 Bee post, p. 814. 
 
 (m) 5 C. & P. b 530, post, p. 858. 
 
 (n) Rex v. Lewis, 6 C. k P. 161, and MSS. C. S. G. Mr. Phillipps, vol. 1, p. 403, observes, 
 "When she was summoned to appear, suspicion attached to her; and the case bears a 
 strong resemblance to that of an individual examined on oath under a charge." This is 
 inaccurate, and neither warranted by the report in C. & P. nor my note of the case, and I 
 was counsel in it. The prisoner was summoned in the ordinary way as a person who could 
 give some evidence touching the matter, and not because any suspicion attached to her. 
 See the note to the next case. C. S. G. 
 
 (o) Rex v. Davis, d 6 C. & P. 177, and MSS. C. S. G. Mr. Phillipps, vol. i., p. 404, observes, 
 " It does not appear from the report that this individual was taken as a prisoner before 
 the magistrate; but there were circumstances sufficient to raise a suspicion of guilt, and 
 sufficient also to show that the statement was not perfectly voluntary." It should seem, 
 from the fact of her being examined as a witness, that she was not taken before the magis- 
 trate as a prisoner; and as to the circumstances sufficient to raise a suspicion of guilt, none 
 such are stated to have been proved before the magistrate, either before or at the time when 
 her examination was taken; and assuming that such suspicion might exist in the minds of 
 the magistrates or others, or even that the prisoner might be aware that there was such 
 suspicion, that was not the ground of the decision, but that the prisoner had been examined 
 on oath as a witness ; and after the decision in Reg. v. Wheater, post, p. 858, it may perhaps 
 be doubted whether this was a sufficient reason for rejecting the deposition. C. S. G. 
 a Eng. Com. Law Reps. ii. 374. h lb. xxiv. 441. ° lb. xxv. 333. 
 
 d lb. xxv. 341. 
 
 *857
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 857 
 
 of the prisoner, being especially required to be on oath. Since tbe 
 statement upon oath cannot be received as a judicial proceeding or for- 
 mal examination, is it admissible as a confession ? There are objections 
 to it also in that form ; the oath imposed on the prisoner, especially 
 whilst in custody, is likely to operate as a constraint, or as a kind of 
 compulsion, the statement therefore cannot be considered as completely 
 free and voluntary/'Qa) 
 
 If a prisoner is sworn and examined by a magistrate by mistake, and Prisoner 
 his deposition is destroyed, and an examination then taken in the reeu- exam !? e , 
 
 • -i i r\ • o on oatn by 
 
 lar way, it is admissible. On an indictment for arson against two pri- mistake, 
 soners, it appeared that when one of the prisoners was first brousht and BTro \ 
 
 corrected 
 
 before the magistrate, it was thought that he had appeared as a witness, 
 and by mistake he was sworn; but it being discovered that he was one 
 of the accused persons, the deposition, which had been commenced, 
 was torn, and the prisoner subsequently made a statement, after having 
 been cautioned by the magistrate ; and that statement was offered in 
 evidence. It was objected that the whole examination before the 
 magistrate was but one transaction, and that the oath was binding 
 during the whole inquiry. Garrow, B., "What was first taken down 
 and afterwards destroyed does not prejudice the prisoner. We do not 
 know what he said ; it is as if it never existed :" and the statement was 
 received. [q\ 
 
 The principle of these decisions does not apply to a statement made *858 
 by a prisoner, in an examination before a magistrate, when *he was not? tate ™ ent 
 
 . i i . ° . by prisoner 
 
 in custody, but examined against another person on a distinct charge ; not under 
 provided, of course, that there has been no inducement given to < ; har p® or 
 confess, and no promise of favour or of a reward for information; a noathaa 
 statement so made by one in his capacity of witness, who was perfectly witness 
 free to refuse answering any questions that had a tendency to expose another. 
 
 (p) 1 Phill. Ev. 402. Assuming that an oath may be likely to operate as a constraint, 
 there seems no reason whatever why, where a prisoner's examination has been taken upon 
 oath, that fact should operate further than to raise a. prima facie presumption that the state- 
 ment was not voluntary; and to throw the onus of showing that it was spontaneous upon 
 the prosecutor. Suppose, after the statement of a prisoner had been regularly taken with- 
 out an oath, he were himself to volunteer to swear to the truth of it, and the magistrate 
 were incautiously to permit him so to do, it would be difficult to assign any good reason 
 why such a statement should not be admissible. In Reg. v. Wheater, post, p. 858, Lord 
 Abinger, C. B., said, in the presence of all the judges, "I understand, if a prisoner's exami- 
 nation be on oath, it shall not be received in evidence without reference to a duress or 
 threat; I see no reason for it; in principle, the answer may be quite voluntary." It should 
 be remembered, that a magistrate has no authority to administer such an oath, and there- 
 fore, the prisoner has a right to refuse to take it. In Reg. v. Wheater, on Rex v. Tubby, 
 post, p. 858, being cited, Alderson, B., observed, "It does not appear that the oath was a 
 lawful one;" from which, perhaps, it may be inferred that the very learned baron consid- 
 ered that a distinction might be drawn between a lawful and an unlawful oath ; and it is 
 apprehended that such a distinction might well be drawn as in the one case the justice has 
 the power to enforce by commitment an answer to any legal questions; in the other, he has 
 no such power. And see Rex v. Shaw, ante, p. 846. The first mention of the mode of taking 
 prisoners' examinations, is in Relying, p. 2, where the judges' orders direct, " that all justices 
 of the peace do take examinations of the felons withot oath." The same is stated in B. N. 
 P. 242. The first case where an examination was rejected on the ground that it purported 
 to be on oath, is Rex v. Smith, 1 Stark. R. 242, ante, p. 855. There is no doubt that an 
 examination of a prisoner taken on oath is irregular, and therefore inadmissible as an exam- 
 ination under the statute, and, perhaps, the rejecting the examination of the prisoners on oath 
 altogether, may have originated in not distinguishing between an examination admissible 
 under the statute, and admissible as evidence at common law. The point seems to have 
 been taken for granted in all the cases, and never solemnly discussed. C. S. G. 
 
 (q) Rex v. Webb,* 4 0. & P. 5G4. 
 
 a Eng. Com. Law Reps. xix. 524.
 
 858 OF EVIDENCE. [BOOK VI. 
 
 hint to a criminal charge, seems to be clearly admissible.^) And it 
 may be laid down generally that a statement upon oath by a person 
 not being a prisoner, and when no suspicion attached to him, the state- 
 ment not being compulsory, nor made in consequence of any promise 
 of favour, is admissible in evidence against him on a criminal charge. (r) 
 Deposition Thus, where upon an indictment for forgery it appeared that before the 
 er Gainst" prisoner was either charged with or suspected of having committed any 
 another offence, one Shearer had been examined on a charge of forgery, and 
 ^charee'of that the prisoner was called as a witness against Shearer on that occa- 
 forgery. sion, and sworn to a deposition, which was proposed to be read against 
 the prisoner; and it was objected that the deposition, being a state- 
 ment made upon oath, could not be received as evidence against the 
 prisoner; Parke, J., said, "I think I ought to receive this evidence. 
 The prisoner was not, at the time he made this deposition, charged with 
 any offence ; and he might on that, as well as on any other occasion, 
 when called as a witness, have objected to answer any question which 
 might have a tendency to expose him to a criminal charge, and not 
 Tubby's having done so his deposition is evidence against him."(s) So where 
 case * on an indictment for burglary it was proposed to read a statement made 
 
 upon oath by the prisoner, at a time when he was not under any sus- 
 picion and it was objected that it was a violation of the rule of law 
 that a prisoner, should not be sworn ; Yaughan, B., said, " I do not 
 see any objection to its being read, as no suspicion attached to the 
 party at the time. The question is, is it a statement of a prisoner upon 
 oath? Clearly it is not, for he was not a prisoner at the time when he 
 made it."(^) 
 Wheater's The examination of a person taken on oath as a witness before corn- 
 case, missioners of bankruptcy is admissible in evidence against him on a 
 
 The exami- ii-i • i ini 1 1 
 
 nation on charge of forgery, he having been cautioned, and allowed to elect what 
 oath of a questions he would answer. The prisoner, who was indicted for forging 
 witness a bill of exchange, had been agent in London for his father, a cloth 
 before com- mailu f ac t U rer near Leeds, who became embarrassed, and ultimately a 
 of bank- " bankrupt. The bill in question, which, with other forged bills, was 
 rupt is ad- found in the prisoner's possession, and had been paid after dishonour, 
 having 6 ' he ^ ad keen ren " tte d by him to his father, as alleged, by way of return 
 been can- for cloths. The prisoner had been examined by the commissioners under 
 honed and tne g at touching all these bills, after the solicitor of the assignee had 
 
 allowed to ° ' . . ° 
 
 answer failed in making out such a case, on a direct charge of forging them, 
 what ques- before the Lord Mayor, as would warrant the committing him for trial. 
 
 tions he TT . •■• i ■, n i •• i i • 
 
 liked. -ti ls examination on oath before the commissioners was tendered in 
 
 evidence on the part of the prosecution, and objected to. It appeared 
 *859 that *he had been attended before them by his solicitor, and been 
 informed by them that he was at liberty to decline answering any ques- 
 tion which he thought might criminate himself; that to some questions 
 he had demurred on this ground, and those had been passed over ; to 
 others he had made objections on other grounds, which had not been 
 allowed, and he had been compelled to answer. The examination was 
 
 (qq) 1 Phill. Ev. 404. (r) 1 Phill. Ev. 404. 
 
 \s) Rex v. Haworth, a 4 C. & P. 254, Greenw. Stat. 138, n. 
 
 (t) Rex v. Tubby, b 5 C. & P. 530. The deposition was not read, but withdrawn by the 
 counsel for the crown, as it did not contain any thing material. In Reg. i>. Wheater, infra, 
 Vaughan, J., said " in Rex v. Tubby, what reason is there for saying that there was any 
 restraint on the person making the statement?'' 
 
 a Eng. Com. Law Reps. xix. 370. b lb. xxiv. 441.
 
 CHAP. IV. § I.] OP CONFESSIONS AND ADMISSIONS. 859 
 
 received in evidence, and the prisoner convicted, but it was contended, 
 upon a case reserved, that the examination was inadmissible, as it was 
 a compulsory statement upon oath. The prisoner was liable to an 
 indictment for perjury if he swore falsely, under the 6 C-eo. 4, c. 15, s. 
 99, as well as to all the consequences and penalties incurred by a refusal 
 to answer by sec. 34. The prisoner was compelled to answer some 
 questions, and it must, therefore, be taken that some part of the ex- 
 amination was compulsory. He was, therefore, under duress. The 
 answers also were on oath which rendered the deposition inadmissible, 
 the reason for which is, that it would be a species of duress. It was 
 contended, on the part of the crown, that the statement was voluntary, 
 and not procured or influenced by threats or duress ; the prisoner had 
 the liberty to object to answer, and exercised his right to do so, and 
 if he elected to answer, his answer, although he might have demurred, 
 was receivable in evidence. The cases where statements have been 
 rejected on the ground of examination having been on oath were inap- 
 plicable, as in them the examination was improperly taken, and the 
 party examined was charged as a criminal. In this case the examina- 
 tion was regular. The judges present were all of opinion that the 
 evidence was properly received, and the conviction good, except Lord 
 Abinger, C. B., and Littledale, J., who were of the contrary opinion. (u) 
 
 Upon an indictment for forging a deed the answer and deposition in Answers 
 Chancery of the prisoner were tendered in evidence against the pri- t^ QS jP 0S1 " 
 soner, and were objected to on the ground that they were upon oath, Chancery. 
 but Vaughan, B., was clearly of opinion that they were admissible, 
 being made before any charge was made against the prisoner. The 
 amended bill in the same suit in Chancery was put in and read ; it 
 contained a charge of forging the deed against the prisoner, on which 
 it was again objected that the answer and deposition of the prisoner 
 were not admissible upon the ground that the bill contained such charge of 
 forgery. Vaughan, B., " The argument would go the length of not admit- 
 ting depositions in the case of perjury. If the party chooses voluntarily 
 to answer, he is bound by it, and the answers are admissible. "(v) 
 
 A difference of opinion has existed whether the examination of a per- *860 
 son upon oath as a witness, before a coroner, be admissible in evidence Difference 
 against such person on his trial, and the point does not appear as yet to be ° g toThe 11 
 finally determined. In a case tried at Worcester, where it ^appeared that admissi- 
 a coroner's inquest had been held upon the body of A., and it not being 'j lht ^.°. f a 
 suspected that B. was at all concerned in the murder of A., the coroner made be- 
 had examined B. as a witness ; Park, J. A., would not allow the deposi- fore acor °- 
 tion of B., so taken on oath, on the coroner's inquest, to be read in evi- 
 dence, on the trial of an indictment against B. for the same rnurder.(w) 
 
 Upon an indictment for rape against Owen, Ellis, and Thomas, it Owen's first 
 
 f» Reg. v. Wheater, 2 Moo. C. C. R. 45. 2 Lew. 157. Park, J. A. J., and Gurney, B., 
 were absent. In Rex v. Britton, 1 M. & Rob. 297, the balance-sheet of a bankrupt, given on 
 oath, under his commission was held inadmissible ; but the ground of this decision was, that 
 the balance-sheet could not be given in evidence unless there were a valid commission ; and 
 therefore, the balance-sheet being part of the proceedings, could not be put in evidence to 
 prove the petitioning creditor's debt as a part of the commission ; per Patteson, J., in Reg. 
 v. Wheater. 
 
 (v) Rex v. Highficd, Stratford, Sum. Ass. 1828, MSS. 0. S. G. The prisoner was executed. 
 See Rex v. Lewis, ante, p. 85G, as to an affidavit in a suit in the Ecclesiastical Court. 
 
 (w) Anonymous, 4 C. & P. a 255, note (b). In Rex v. Clewes, reported as to other points in 
 4 C. k P. b 221, the grand jury asked Littledale, J., "Can the evidence of a prisoner who 
 a Eng. Com. Law Reps. xix. 370. b lb. xix. 354.
 
 800 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 De- appeared that an inquest had been held upon the body of the woman 
 
 positions 
 before a co 
 roner by 
 prisoners 
 
 admitted 
 on a trial 
 for a rape 
 on the de- 
 ceased. 
 
 Owen's se 
 eond case, 
 The same 
 deposition 
 
 the same 
 woman. 
 
 alleged to have been ravished, and the coroner stated that at the inquest 
 Owen made four statements ; he had been sworn before each statement; 
 each of the statements was taken down in writing, and signed by Owen. 
 Ellis made and signed a statement, and so did Thomas; they were 
 sworn before the statements were made. No inducement of any kind 
 was held out to either of the prisoners to make any statements ; neither 
 threat nor promise ; they were all three brought before the coroner in 
 custody. It was objected that the statements were not receivable in 
 evidence, as they were on oath. The persons were in custody ; and in 
 Reg. v. Wheeley,(x) Alderson, B., rejected the statement of the prisoner, 
 which had been taken at the inquest, because it was on oath, and taken 
 while he was in custody. Williams, J., « I know that my brother Al- 
 derson did so, but I also know that since that there has been a reaction 
 of opiuion (if I may be allowed the expression); I shall therefore receive 
 the evidence, and reserve the point of it should become necessary. "{y) 
 But where upon an indictment against the same prisoners for the 
 murder of the same female, whom they had been charged in the pre- 
 ceding case with ravishing, the same depositions of the prisoners, taken 
 rejected on oa th, at the coroner's inquest held on the body of the deceased,^) 
 
 a trial for ' . . * . J 'V / 
 
 murder of were tendered in evidence ; Ixurney, B., said, " 1 am not aware 01 any 
 instance in which an examination on oath, before a coroner or a magis- 
 trate has been admitted as evidence against the person making it. I 
 have known depositions before magistrates, made by prisoners on oath, 
 and they have been uniformly rejected. In my own experience I do 
 not recollect a case of a deposition before a coroner." After mention- 
 ing Reg. v. Wheater,(a\ the learned Baron added, "I confess that I do 
 not, on principle, see the distinction between that and some of the other 
 cases. Still I am of opinion that in the present case, I ought to reject 
 the evidence. (b} 
 
 Upon an indictment for the murder of Elizabeth S., it appeared *that 
 no suspicion arose that-her death had been caused by poison until after 
 positionbe- ^ ie death of Mary Ann S. ; but the. parents having insinuated that Mary 
 fore a coro- Ann had been poisoued by Riley, she was taken into custody upon the 
 P n 3r u ° n t a o 1 ^ charge, and on the examination before the coroner as to the cause of 
 the body of Mary Ann's death, the mother was examined on oath, as a witness and 
 one person j ier deposition was taken in writing;, and read over to her, and she put 
 
 read over , , . T , „ , . . . 
 
 on the in- her mark to it. In the course of that examination questions were put 
 quest on t } ier relative to the death of Elizabeth, and in consequence of her 
 body, and auswers, and other circumstances, the body of Elizabeth was disin- 
 
 was examined on oath before the coroner as a witness, be admitted as evidence against the 
 same person, when subsequently indicted for the murder of the person, on whose body the 
 inquest was held?'' Littledale, J., "Whatever any prisoner says at any time against himself 
 is evidence, and therefore, such a statement is admissible." The preceding case was then 
 mentioned, on which the learned judge seemed to entertain doubts upon the point, but di- 
 rected the grand jury to receive the evidence, and leave the point for discussion upon the 
 trial. MSS. C. S. G. 
 
 (x)Ante, p. 855. 
 
 \y) Reg. v. Owen," 9 C. & P. 83. The report then proceeds, Mr. Tooke, (the coroner) re- 
 called: "I asked Owen if he was desirous of giving his evidence, and he said, yes; he was 
 sworn and gave evidence. I asked each of the other prisoners if he wished to give evi- 
 dence, and each said that he did." Alderson, B., was the other judge at Stafford when this 
 case was tried? 
 
 (z) This is the whole statement in the report. 
 
 (a) Ante. p. 858. (b) Reg. v. Owen, b 9 C. &. P. 238. 
 
 a Eng. Com. Law Reps, xxxviii. 44. t> lb. xxxviii. 99. 
 
 *861 
 
 Sandy's 
 
 De-
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 861 
 
 tered, examined, and found to contain arsenic in the stomach. The additional 
 parents were therefore taken into custody, and brought before the then made 
 coroner in custody, separately. The mother was told that she was to it. 
 charged with having poisoned her two children, and that that was the 
 time when she might make any statement that she liked to the jury, 
 and that what she said would be taken down in writing. Her former 
 deposition made by her as a witness, was then read over to her, and she 
 said that she had a further statement to make, which she made, and 
 what she said was written down and afterwards read over to her ; she 
 was asked to sign it, and refused. The coroner signed it, and it was 
 produced and offered in evidence against the mother, together with her 
 original deposition. It was objected that as the greater part of the 
 statement had been made by the prisoner, when under examination be- 
 fore the coroner, upon oath, it could not be read in evidence against 
 her. Erskine, J., received the evidence, but reserved the point for the 
 consideration of the judges. (ft) But as the mother was acquitted, the 
 judges thought it unnecessary to determine the question. 
 
 It has been determined by the opinions of all the judges that although Discoveries 
 confessions improperly obtained are not admissible, yet that any facts, in conse - 
 which have been brought to light in consequence of such confessions confessions 
 may be received in evidence. (c) Thus, where a prisoner was indicted un . dulv ot) - 
 as an accessory after the fact for having received property, knowing it 
 to be stolen, and had, under promises of favour, made a confession : and 
 in consequence of it the property had been found in her lodgings, con- 
 cealed between the sackings of her bed : it was held that the fact of 
 finding the stolen property in her custody might be proved, although 
 the knowledge of it was obtained by means of an inadmissible confes- 
 sion. (c7)f So where a prisoner indicted for stealing a number of 
 diamonds and pearls had been improperly induced to make a confession, 
 from which it appeared that he had disposed of part of them to a cer- 
 tain person ; it was held allowable on the part of the prosecution to call 
 that person to prove that he had received the property from the pri- 
 soner, (e) As far as these cases go, there can be no difficulty as to the 
 propriety of their decisions, because the bare facts of the property being 
 *found in the possession of the prisoner in the one case, and of his *862 
 dealing with it as his own in the other, would, unconnected with any 
 confession, have been clear evidence in support of the prosecution. But 
 the causes have gone further than this, for it has been held that, on a 
 prosecution for receiving stolen goods, where a confession had been 
 
 (b) Reg. v. Sandys," 1 C. & Mars. 345. (c) 1 Phill. Ev. 411. 
 
 (d) Rex v. Warrickshall, 1 Leach, 263, 0. B. 1783. S.P. Mosey's case, 1 Leach, 265, n. 
 0. B. 1784. So in Rex v. Harris, R. & M. C. C. R. 338, post, p, 877, after the prisoners had 
 been before the magistrate, one of the prisoners went with one of the prosecutors to a field, 
 and said he could find the skin buried, and showed the place, which was dug up and the 
 skin found. So in Thurtel's case, cited in Allison's Cr. L. of Scotland, 584, and Joy, 84, 
 although a confession obtained by means of promises or hopes of impunity held out, was 
 not used in evidence against him, yet the fact that the goods were recovered, or the corpse 
 found, in consequence of the confession, at the place mentioned in the confession, was held 
 receivable in evidence. 
 
 (e) Lockhart's case, 1 Leach, 386. 
 
 f {In Commonwealth v. Knapp, 9 Pick. 496, where the prisoner's confession was excluded, 
 a witness was nevertheless permitted to testify that a weapon, used in the commission of a 
 murder, was found by him in a particular place, and that he was directed to the place by 
 the prisoner.} [State v. Crank, 2 Bailey, 67, Rose. Dig. Cr. Ev. 36, ??.] 
 11 Eng. Com. Law Reps. xli. 191. 
 
 Vol. ii.— 56
 
 862 OF EVIDENCE. [BOOK VI. 
 
 improperly drawn from a prisoner, in the course of which he described 
 the place where the goods were concealed, evidence might be given 
 that lie did so describe the place, and that the goods were afterwards 
 found there. (/) In this case it is clear that the bare fact of finding the 
 goods would be no evidence against the prisoner, unless coupled with a 
 part of the improperly obtained confession. And some have accord- 
 ingly doubted whether any part of such a confession can properly be 
 used for such a purpose. Thus in Harvey's case, Lord Eldon, C. J.,' 
 said that where the knowledge of any fact was obtained from a prisoner 
 under such a promise as excluded the confession itself from being given 
 in evidence, he should direct an acquittal, unless the fact itself proved 
 would have been sufficient to warraut a conviction without any confes- 
 What is the sion leading to it; and he so directed the jury in that case. (#) But the 
 correct rule more established rule, according to later practice and later authorities 
 perty^s™" is, that so much of the confession as relates strictly to the fact disco- 
 found in vered by it may be given in evidence; for the reason of rejecting ex- 
 ouence of Ported confessions is the apprehension that the prisoner may have been 
 a confes- induced to say what is false; but the fact discovered . shows that so 
 sion impro- muc h f the confession as immediately relates to it is true.(A)f Thus it 
 tained. is proper, and it is now the common practice, to leave to the considera- 
 tion of the jury, where a confession has been improperly obtained, the 
 fact of the witness having been directed by the prisoner where to find 
 the goods, and his having found them accordingly, but not the acknow- 
 ledgment of the prisoner having stolen or put them there, which is to 
 be collected or not from all the circumstances of the case. (i\ So where 
 on an indictment for burglary, it appears that the prisoner had made a 
 statement to a policeman, under some particular circumstances, which 
 induced the counsel for the prosecution with the approbation of the 
 court to decline offering it in evidence ; but in consequence of the state- 
 ment containing some allusions to a lantern, which was afterwards found 
 in a particular place, the policeman was asked whether in consequence 
 of something which the prisoner had said, he made a search for the 
 lantern ; Tindal, C. J., and Parke, B., were both of opinion that the 
 words used by the prisoner, with reference to the thing found, ought to 
 be given in evidence, and the policeman, accordingly, stated that the 
 prisoner told him that he had thrown a lantern into a pond in Pocock's 
 Fields. The other parts of the statement were not given in evi- 
 dence.^') 
 
 (/) Grant's case, and Hodge's case, 1 East, P. C. c. 658. 
 
 (g) At Bodmin Summer assizes, 1800, 2 East, P. C. 658. See also Mosey's case, 1 Leach, 
 265, in note to Warickshall's case. 
 
 (A) Rex v. Butcher, 1 Leach, 265, note (a) to Warickshall's case, 2 East, P. C. c. 16, s. 
 94, p. 658. 
 
 (i) East, P. C. c. 16, s. 94, p. 658. 
 
 (j) Reg. v. Gould, a 9 C. & P. 364. Mr. Phillips, vol. i., p. 412, after stating this case, 
 adds, " But the judge in such a case would direct the jury, and so it is understood, did direct 
 the jury in that case, that his statement must not be taken as proof that he concealed, but 
 merely as evidence that he knew of or was privy to the concealment, from which, together 
 with the rest of the evidence, they would consider whether it was probable that he con- 
 cealed it himself." 
 
 | [Although confessions obtained by threats and promises are not evidence, yet if they 
 are attended by extraneous facts, which show that they are true, they will be received as 
 testimony : as when the party thus confessing points out and tells where the stolen property 
 is. Hudson v. The State, 9 Yerger, 408. State v. Brick, 2 Harrington, 530.] ' 
 a Eng. Cora. Law Reps, xxxviii. 156.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. *863 
 
 *So it has been determined, after a consideration by all the judges, Acts done 
 that although a confession improperly obtained cannot be received in q„ence of 
 evidence, yet that any acts done afterwards may be given in evidence, a confes- 
 notwithstanding they were done in consequence of such confession. (f\ V. on : 
 
 And from a decision in a late case,(Z;) it should seem that what the tions ac- 
 prisoner says at the time such acts are done, may also be received in ? om P» n y- 
 evidence. In that case, the prisoner was charged with stealing a guinea ac t s ! 
 and two promissory notes. It appeared in evidence that one of the notes 
 was a Bank of England note for five pounds, and the other a Reading 
 bank-note for the like sum. The prosecutor had told the prisoner that 
 he had better confess. Chambre, J., held, that although the prosecutor 
 could not be allowed to prove a confession made after this admonition, 
 he might be permitted to give evidence that the prisoner brought to him 
 a guinea and a five pound Reading bank-note, which he gave up to the 
 prosecutor as the guinea and one of the notes that had been stolen from 
 him. The note thus produced the prosecutor could not identify, other- 
 wise than by its corresponding with the stolen note in the sum for 
 which it was given, and in being a note of the same bank. Upon a 
 conviction and a case reserved, the majority of the judges(7) agreed 
 with Chambre, J., in thinking the conviction right and the evidence 
 admissible, (m) 
 
 But not only are confessions excluded when obtained by means of Not admis- 
 improper inducements, but also the acts of the prisoner done under the sible ex- 
 influence of such inducements, unless confirmed by the finding of the confirmed, 
 property ; for the same influence which might produce a groundless 
 confession, might produce groundless conduct. A prisoner was indicted 
 for larceny, and had been induced by a promise from the prosecutor to 
 confess his guilt; and after that confession he carried the officer to a 
 particular house as and for the house where he had disposed of the pro- 
 perty, and pointed out the person to whom he had delivered it ; that 
 person however denied knowing anything about it, and the property was 
 never found ; it was held that not only the confession, but the fact of 
 the prisoner's carrying the officer to the house as above-mentioned, was 
 inadmissible in evidence. The confession was excluded, because being 
 made under the influence of a promise it could not be relied upon, and 
 the acts of the prisoner, under the same influence, not being confirmed 
 by the finding of the property, were open to the same objection. The 
 influence which might produce a groundless confession, might also pro- 
 duce groundless conduct.(n) 
 
 *The statement and confession of one prisoner, made in the absence of °^f 
 another prisoner when not before a magistrate, is only evidence against ev i,j once 
 
 (/) Waricksliall's case, 1 Leach, 265. (k) Rex v. Griffin, Russ. k Ry. C. C. R. 151. 
 
 U) Lord Ellenborough, 0. J., Mansfield, C. J., Maedonald, C. B., Heath, J., Grose, J., 
 Chambre, J., and Wood, B. 
 
 (m) Lawrence and Le Blanc, Js., were of a contrary opinion, that the production of the 
 money was alone admissible, and not his saying, at the time he produced one of the notes, 
 " that it was one of the notes stolen from the prosecutor." And sec Ilex v. Jones, Russ. & 
 Ry. C. C. R. 152. Ante, p. 827. 
 
 (n) Rex v. Jenkins, Russ. k Ry. C. C. R. 402. Mr. Phillipps, Ev. 1, vol. 413, says, "It was 
 held that the evidence of what passed between the prisoner and (lie officer ought to have 
 been received, that is, it was vol receivable as evidence against the third person." This is clearly 
 an error; there was only one prisoner indicted, and he for the larceny, and I lie only ques- 
 tion was, whether the evidence was admissible against him. If the person pointed out had 
 been indicted as the receiver, the fact of the prisoner pointing him out as the person, in his 
 presence, and his denial would undoubtedly have been admissible in evidence against such 
 person. C. S. G.
 
 864- OF EVIDENCE. [BOOK VI. 
 
 against the himself, and not against another prisoner,(») and in general, the con- 
 party con- f ess j on f one prisoner on his examination before a magistrate, is only 
 only, " evidence against the party who made the confession, and cannot be made 
 although uge f against any others, whom on his examination he confessed to be 
 fore a ma- engaged with him in committing the offence(o)'}" and even if such con- 
 gistrate in f ess i on we re made before a magistrate in the hearing of another pri- 
 of e an e a l ^ us soner, it would not be evidence against such prisoner; on the ground, 
 complice, that there is a regularity of proceeding adopted before a magistrate, 
 deny it DOt which prevents the prisoner from interposing when and how he pleases, 
 as he would in a common conversation, and the prisoner is brought to 
 answer the charge and evidence given against him, and not the state- 
 ment made by another prisoner. Thus, where the confession was made 
 before a magistrate in the presence and hearing of the accomplice, who 
 did not deny it, Holroyd, J., held,(/>) that these circumstances were 
 not evidence against the latter, and said that it had been so ruled by 
 several of the judges in a similar case, which had been tried at 
 Chester.fj) So where a confession of the principal, made before a ma- 
 gistrate in the presence of the receiver, in which she stated various facts 
 implicating the receiver, and others as well as herself, was tendered in 
 evidence; Patteson, J., refused to receive in evidence anything that 
 was said by her respecting the receiver. (r) So where upon an indict- 
 ment against Swinnerton for stealing, and Bowyer for receiving hay, it 
 appeared that when the prisoners were before the magistrate, Swinner- 
 ton made a statement in the hearing of Bowyer, which was taken down: 
 Bowyer then made the following statement : " I must beg pardon that 
 I had it, I reckon that it was not right that I took it. If I had not 
 picked it up some one else would." This statement was given in evi- 
 dence, and it was proposed also to put in the statement of Swinnerton, 
 who had pleaded guilty. Patteson, J., — " When before a magistrate a 
 
 (n) Hevey, Beatty, and M'Carty's case, 1 Leach, 232. 
 
 (o) Tong's case, Kel. 18. 
 
 (p) Rex v. Appleby," 3 Stark. N. P. C. 33. In an action of assault, the defendant offered 
 evidence of what was said by the magistrate before whom the matter had been investigated, 
 in the presence of both plaintiff and defendant ; but Best, C. J., refused to admit it : and he 
 observed, that what was said by the defendant to the plaintiff was evidence, but not what 
 was said by a third person ; or if it drew any answer from the plaintiff, that made it evi- 
 dence. And his lordship said he remembered Gibbs, C. J., making the same distinction. 
 Child v. Grace," 2C.&P. 193. 
 
 (§■) As to when the declarations of one conspirator are evidence against all his comrades, 
 see ante, p. 697. 
 
 (r) Rex v. Turner, R. & M. C. C. R. 347. 
 
 f | When one is admitted to testify against his accomplice, it seems that his testimony is 
 inadmissible evidence against himself, on account of the implied promise of the court to 
 recommeud him to pardon. 9 Cowen, 707, People v. Whipple. 
 
 Two brothers, F. and J., being indicted for murder, and F. put upon trial, a witness tes- 
 tified that P., a third brother, said to F., "J. has determined to make a confession, and we 
 want your consent.'' F. said he thought it hard that J. should have the advantage of 
 making a confession, since the thing was done for his benefit. P. said, " If J. is convicted, 
 there will be no chance for him ; but if you are convicted, you may have some chance for 
 procuring a pardon;" and P. then asked the witness if he did not think so. The witness 
 said he did not know; he was unwilling to hold out any improper encouragement. 
 
 Held, by Wilde and Morton, Js., (Putnam, J., dissenting,) that the assent would be evi- 
 dence of F. : s guilt ; that a hope of favour was held out to induce him to give his assent ; 
 and that all subsequent confessions, at the same interview, should be excluded, as being 
 made under the same influence. 
 
 But, it appearing afterwards, that the proposition had no influence on F., inasmuch as he 
 neither assented nor refused his assent, his confessions were allowed to be proved. 9 Pick. 
 496, Commonwealth v. Knapp.} 
 
 a Eug. Com. Law Reps. xiv. 152. *> lb. xii. 84.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 864 
 
 prisoner is called upon to answer the depositions taken on oath, but he 
 is not called upon to make any answer to the statement of another pri- 
 soner; I think, therefore, that the examination of Swinnerton is not 
 admissible, "(s) 
 
 Upon similar grounds also, the deposition of a witness, who has been Deposition 
 
 examined against a person before a magistrate in a case of summary awitness 
 t .,..,, T . j on a sum- 
 
 con vietion j is inadmissible. In an action for maliciously laying aumarycon- 
 
 •information against the plaintiff, it was proposed to prove what a wit- vlcfcl0n - 
 ness, called for the defendant, had said in the plaintiff's presence before 
 the magistrate on the hearing of the information, on the ground that he 
 had had the opportunity of cross-examining the ^witness, and comment- *865 
 ing on his testimony; Parke, J., said, "I think it is the safer course 
 to refuse it, and to hold that the deposition of a witness taken in a ju- 
 dicial proceeding, is not evidence, on the ground that the party against 
 whom it is sought to be read was present, and had the opportunity of 
 cross-examining. It clearly would not be admissible against a third 
 person, who merely happened to be present, and who, being a stranger 
 to the matter under consideration, had not the right of interfering: and 
 I think the same rule must apply here. It is true that the plaintiff 
 might have cross-examined or commented on the testimony; but still, 
 in an investigation of this nature, there is a regularity of proceeding 
 adopted which prevents the party from interposing, when and how he 
 pleases, as he would in a common conversation. The same inferences, 
 therefore, cannot be drawn from his silence, or his conduct in this 
 case, which generally may in that of a conversation in his presence ; 
 and as it is only for the sake of these inferences that the conversation 
 can be admitted, I think it better to refuse the evidence now offer- 
 ed."^) 
 
 But if a prisoner in his examination before a magistrate makes an Seem if re- 
 express reference to the examination of another prisoner, taken in his f erre / 1 10 . 
 presence before the magistrate, the examination of such prisoner may sone r. 
 be given in evidence against the prisoner so referring to it.(«) If a 
 prisoner, when before a magistrate on a charge of an assault, makes a 
 statement in answer to what the person charging him with the assault 
 stated, the statement made by such party and the answer of the pri- 
 soner to it are admissible. Upon an indictment for murder, it appeared 
 that the deceased made a complaint to a magistrate of the prisoner 
 
 (s) Reg. v. Swinnerton, a 1 C. & Mars. 593. 
 
 (t) Melen v. Andrews, M. & M. 336. See Finden v. Westlake, ibid., 461, per Tindall, C. J., 
 and see Child v. Grace, b 2 C. & P. 193, ante, p. 864, note (p). 
 
 (w) Several instances have occurred where this has been done, and the case is similar to 
 Rex v. John, 1 C. & P. 334, and Dennis's case, 2 Lew. 261, where the prisoners' examina- 
 tions referred to the depositions of particular witnesses, and such depositions were held to 
 be admissible in explanation of the prisoner's statement. In such a case it should seem 
 that it would depend on the manner in which the reference was made to the other prisoner's 
 examination, whether the facts stated in such examination were admitted or not. It might 
 be that the prisoner's examination stated that the other prisoner's statement was correct, 
 and if so that would be an admission of the facts stated in it; or the reference might be 
 such as merely to require the reading of the other examination as explanatory of the pri- 
 soner's statement, without admitting any fact stated in it. In 2 Stark. Ev. 40, it is said, 
 " in some instances the confession of one taken in the presence and hearing of another pri- 
 soner may be very material to explain the expressions and conduct of the latter upon that 
 occasion; for any declarations of his, by which he assented to what was confessed by 
 another, to his own prejudice, would be admissible against him. The confession of the 
 other may also, it seems, be evidence for the purpose of explaining such declaration." C. 
 S. G. 
 
 a Eng. Com. Law Reps. xii. 323. b lb. xxii. 84. ° lb. xxii. 526.
 
 865 OF EVIDENCE. [BOOK VI. 
 
 having struck him a blow, (which ultimately occasioned his death,) and 
 the prisoner was in consequence brought before two magistrates for the 
 assault, and convicted and fined. On the examination of the charge of 
 assault the deceased made a statement, and the prisoner made a state- 
 ment in answer to it.(t-) Tiudal, C. J., held that evidence of what was 
 said by the deceased on the examination, and also what the prisoner 
 said in answer, was admissible; but added, "I shall not hold that what 
 the deceased said is evidence as proving the facts he stated, as it would 
 be if it were a deposition taken under the 7 Geo. 4, c. 64, but only 
 *866 evidence as producing an *answer from the prisoner, like any other 
 conversation ; and I do not think it is the less evidence because it is on 
 oath. I shall therefore admit it as a conversation. "(w) 
 Confession And so if one prisoner were to make a confession in the presence of 
 ino-ofapri- ano * ,ner prisoner, when not before a magistrate, such confession would 
 soner not be admissible against the prisoner in whose presence it was made, 
 mVistrate a ^hough he made no observation with reference to it; for a confession 
 may be collected or inferred from the conduct and demeanor of a pri- 
 soner on hearing a statement affecting himself.(x) But as such state- 
 ments frequently contain much hearsay and other objectionable evi- 
 dence, and as the demeanor of a person upon hearing a criminal charge 
 against himself is liable to great misconstruction, evidence of this 
 description ought to be regarded with much caution. "(v) 
 Statement Not only what is said by a prisoner, but what is said to him, or in 
 thepre° n * s P resence > except when before a magistrate, is admissible in evidence, 
 sence of a and it makes no difference that what was said was said by a person who 
 prisoner by carmo t De ca U e( j as a witness. "j- On an indictment for murder, some 
 observations made to the prisoner by his wife, to which he made an 
 evasive reply, were about to be stated, when it was objected that the 
 statement ought not to be made, as the wife, if she could by law be 
 examined, would give a direct contradiction to them; but Gaselee, J., 
 and Parke, J., were both of opinion that the statement might be made 
 to the jury; and that the circumstance of the observations being stated 
 to have been made by the wife, who could not be called as a witness, 
 did not vary the general rule, that whatever was said to a prisoner on 
 the subject-matter of the charge, to which he made no direct answer, 
 was receivable as an implied admission on his part.(z) So where the 
 wife of the prisoner, who was indicted for the murder of his wife's 
 
 (v) This statement was not in writing, and objected to on that ground, but Tindal, C. J., 
 held that " this being a summary conviction is not a case in which magistrates are required 
 to take down the evidence in -writing.' 1 And see Robinson v. Vaughton, a 8 C. & P. 252. 
 S. P. 
 
 (w) Rex v. Edmunds, b 6 C. & P. 164. This decision has been doubted, 1 Phill. Ev. 400, 
 and Joy, 79, 80, but as it should seem without any sufficient reason. The decision is pre- 
 cisely in conformity with the distinction taken by Best, C. J., in Child v. Grace, 2 C. & P. 
 193, ante, note (/>),p. 864, and it is conceived that the evidence was admissible on the ground 
 that a? common law evidence of a deceased witness given upon oath in a judicial proceeding 
 between the same parties is admissible in a subsequent proceeding, the party against whom 
 the evidence is offered having had an opportunity to cross-examine in the former proceed- 
 ing. See Rex v. Carpenter, 2 Show. 47, and the cases cited, ante, p. 752. C. S. G. 
 
 (x) 1 Phill. Ev. 400. l y ) Ibid. 
 
 (z) Rex v. Smithies, 3 5 C. & P. 332. 
 
 f [Where the truth or falsehood of a material fact is known to a party to whom the fact 
 is asserted to exist, his omission to deny its existence is presumptive evidence of its truth. 
 When not known, his silence furnishes no evidence against him. Robinson v. Blcn, 20 Maine, 
 109.] 
 
 a Eng. Com. Law Reps. xxi. 376. b lb. xxv. 334. c lb. xii. 84. d lb. xxiv. 343.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 866 
 
 mother, caine into the room where he was in custody, and said to him, 
 " Oh, Bartlett, how could you do it?" He looked steadfastly at her, 
 and said, " Ah, what, you accuse me of the murder, too V She said, 
 " I do, Bartlett, you are the man that shot my mother." She then 
 turned to the witness and said, " This was done for the money." It was 
 objected, that as the wife could not be examined on oath, what she had 
 then said could not be used as evidence against him ; but the evidence 
 was held clearly admissible. (a) 
 
 The written confession of a prisoner is not admissible in evidence, Examinn- 
 unless it be in the language used by the prisoner. A prisoner made a tlie wor( j s 
 confession to an officer, who left the prisoner and afterwards wrote down of the pri- 
 from recollection what the prisoner said to him. What the *officer 1°^™^ 
 wrote was read over to the prisoner before the committing magistrate, ble. 
 and he said that what had been read over to him was the truth, and *867 
 signed the paper. Best, J., " We have not the confession of the pri- 
 soner; we have only the officer's recollection of it, put into writing 
 when the prisoner was not present, and in the language of the officer, 
 and not in the words used by the prisoner. If a confession be not taken 
 in writing, we must be content with the recollection of the witness who 
 proves it, because we cannot have any more certain account of it. I 
 will receive nothing as a confession in writing that was not taken down 
 from the mouth of the prisoner in his own words, nothing that he says 
 that has any relation to the subject being omitted, nor anything added, 
 except explanations of provincial expressions or terms of art. The 
 reading this paper to the prisoner, and the acknowledgment that it was 
 correct, does not remove the objection. By the change of language a 
 very different complexion might be given to the story from what it had 
 when it came from the mouth of the prisoner, and which he might not 
 discover when it was read over to him. The lower orders of men have 
 but few words to convey their meaning, and they know as little of ex- 
 pressions that they are not in the habit of using, as if they belonged to 
 another language. I will not receive this paper in evidence."(6) In 
 the same case it is said that Dallas, C. J., had refused to receive at a 
 former assizes, a confession, because it was not in the prisoner's own 
 words. So where it was proved that the examination of the prisoner 
 before the magistrate was read over to her, and that she signed it, but 
 there was no evidence that it was taken down from what she said, or in 
 the words she used, and in fact it was in language clearly not such as 
 she was likely to have used; Littledale, J., refused to permit it to be 
 read.(c) And where a witness having, in her examination before the Roche's 
 coroner, stated that she had slept with the prisoner, that he had given case - 
 her two black eyes, that they had seen a placard, &c, the statement of 
 the prisoner before the coroner was tendered in evidence, and was as 
 follows : " Prisoner admits sleeping with the witness, blackening her 
 eyes, seeing the placard," &c, and it was objected that the examination 
 was taken in the third person, which was not complying with the statute, 
 and did not purport to be the language of the prisoner at all, but merely 
 
 (a) Rex v. Barlett, 8 7 C. & P. 832. See Rex v. Simons," 6 C. & P. 540, where Alderson, 
 B., held that what a person is overheard saying to his wife, or even saying to himself, is 
 evidence against him. 
 
 (b) Ilex v. Sexton, 2 Burn's J., Doyl. & Wms. p. 108G. 
 
 (c) Rex v. Mallet, Gloucester Spr. Ass. 1830, MS. C. S. G. 
 
 a Eng. Com. Law Reps, xxxii. 759. b lb. xxv. 532.
 
 867 OF EVIDENCE. [BOOK VI. 
 
 the coroner's expression of what he considered the prisoner to mean. 
 The jury were to judge of the effect of the statement, and they could not 
 do that without having before them the very words in which it had been 
 made. Lord Denmau, C. J., thought the objection of considerable 
 importance. As to the mode of taking the examination of the prisoner, 
 that was a very improper way in which to do it. His lordship did not, 
 however, see how he could exclude the evidence, but he should reserve 
 the point in case it were necessary. (rZ) 
 All names Where the confession of a prisoner mentions the name of another 
 in the con- p r i sone r tried at the same time, it seems, according: to the later cases, 
 
 fession r . ... 
 
 must be that the whole of the confession, whether by parol, or in writing, must 
 mentioned. De gwen in evidence. The iudsre will, however, in such cases, *direct, 
 000 the jury that the confession is only to be taken as evidence against the 
 prisoner who made it. On the Oxford Circuit it was the constant prac- 
 tice a few years ago to omit the name of any prisoner that was men- 
 tioned in the confession of another prisoner.(e) But it has been held in 
 many cases on that circuit(/l and elsewhere, that the proper course is 
 to state or read all the names mentioned by the prisoner in his confes- 
 sion.^) A very learned judge has, however, expressed on several oc- 
 The whole casions a strong opinion that such a course is unfair. (9^) If, on the 
 fessioiTor P ai "k °^ * Qe P rosecu ti°n, a confession or admission of the defendant, made, 
 admission in the course of a conversation with a witness, be brought forward, the 
 must be defendant has a right to lay before the court the whole of what was 
 said in the same conversation ; not only so much as may explain or 
 qualify the matter introduced by the previous examination, but even 
 matter not properly connected with the part introduced upon the pre- 
 vious examination, provided only that it relates to the subject-matter of 
 the suit ; because it would not be just to take part of a conversation, as 
 evidence against a party, without giving to the party at the same time 
 
 (d) Reg. v. Roche," 1 C. & Mars. 341. Verdict, not guilty. 
 
 (e) See Rex v. Fletcher, b 4 C. & P. 250. Rex v. Limer, Stafford Spr. Ass. 1839, Bosan- 
 quet, J. MS. C. S. G. 
 
 (/) Rex v. Hearne, 4 C. & P. 215, Littledale, J. Rex v. Clewes, ibid., 221. Rex v. Daniel 
 and Garland, Monmouth Spr. Ass. 1831, MSS. C.S. G. Bosanquet, J., saying, " The ground 
 I go upon is, that I do not think I am authorized to direct the officer to read one word 
 instead of another. I cannot tell the officer to read what is not written." In Rex v. Giles and 
 Betts, Worcester Spr. Ass. 1830, MS. C. S. G., where there was a parol confession, Littledale, 
 J., said, "he was satisfied the proper way was to state the names uttered by the prisoner, as 
 to state 'another person ' instead of the name used, was not to state the truth, which a wit- 
 ness was sworn to do." In Rex v. Harding, Bailey, and Simmer, Gloucester Spr. Ass. 1830, 
 MS. C. S. G., where there was a written confession, Littledale, J., said, " Suppose two men 
 are indicted, one as principal, and the other as accessory, and the principal is named in the 
 indictment, and the accessory makes a confession admitting himself to be accessory to the 
 principal, how is it to be known that he is accessory to such principal, if the name of the 
 principal is not to be read? I have considered this case very much indeed, and I am most 
 clearly of opinion that it is to be read as the prisoner made it, because otherwise the evi- 
 dence is not read as it was given by the prisoner. I have no doubt upon it, and will not, 
 therefore, reserve the point." Rex v. Walkley, d 6 C. & P. 1G5, Gurney, B. 
 
 (g) Rex v. Fletcher, 6 4 C. & P. 250, Littledale, J., at York. S. C. 1 Lew. 107. Hall's 
 case, 1 Lew. 110, Alderson, B., at Appleby. Foster's case, 1 Lew. 110. Lord Denman, C. 
 J., at Carlisle. Rex v. Fletcher, supra, was the case of a letter written by one prisoner, and 
 implicating another. 
 
 (99) Parke, B., in Maudsley's case, 1 Lew. 110, and Barstow's case, ibid. It would be 
 
 extremely beneficial to prisoners in such cases to be tried separately, and such a course is 
 
 nothing more than expedient in cases of difficulty, as it is almost beyond the power of a 
 
 jury properly to discriminate between the evidence affecting different prisoners. C. S. G. 
 
 a Eng. Com. Law Reps. xli. 189. b lb. xix. 369. ° lb. xix. 350. 
 
 d lb. xxv. 340. ° lb. xix. 369.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 868 
 
 the benefit of the entire residue of what he said on the same occasion. (7i)f 
 It seems at one time to have been considered that if a prosecutor uses The jury 
 the declaration of a prisoner, he must take the whole of it together, and are *° & 1 ™ 
 cannot select one part, and leave another; and if there be no other evi- to any 
 dence in the case, or no other evidence incompatible with it, the deck- ? tatement 
 ration so adduced must be taken as true.(t) But the correctness of this f av0 ur of 
 position has been doubted, (7) *and it seems now to be settled that the the prison- 
 whole of the prisoner's statement must be taken into consideration by gjj^j t ^k 
 the jury, who are not bound to take what he has said in his favour to fit. 
 be true, because it is given in evidence by the prosecutor, but are to 8bJ 
 weigh it, with all the circumstances of the case, and determine whether 
 they believe it or not.(&) The jury may, therefore, believe one part of 
 the prisoner's statement and disbelieve another. (£) They may believe 
 that part which charges the prisoner, and reject that which is in his 
 favour, if they see sufficient grounds for so doing.(m) In determining 
 whether the statement be true or not, the jury should consider whether 
 it be probable or improbable in itself, and it be consistent or inconsis- 
 tent with the other circumstances of the case.(n) If what he said in 
 his own favour is not contradicted by evidence offered by the prosecu- 
 tor, nor improbable in itself, it will naturally be believed by the jury ; 
 but they are not bound to give weight to it on that account, but are at 
 liberty to judge of it like other evidence, by all the circumstances of the 
 case. To) But if, after the whole of the statement of the prisoner is 
 given in evidence, the prosecutor is in a situation to contradict any part 
 of it, he is at liberty to do so, and then the statement of the prisoner, 
 and the whole of the other evidence must be left to the jury, precisely 
 as in any other case, where one part of the evidence is contradictory to 
 another. (p\ 
 
 (h) By Abbott, C. J., in the Queen's case, 2 Brod. & Bingh. a 297. {1 Harris & Gill. 161. 
 Turner v. Jenkins. 1 Minor's (Alab.) Rep. 409, Rogers v. Wilson.} 
 
 (i) By Bosanquet, Serj., in Rex v. Jones, b 2 C. & P. 630. So where the prisoner was 
 indicted for a larceny, and in addition to evidence of the possession of the stolen goods, the 
 counsel for the prosecution put in the prisoner's statement, made before the magistrate, in 
 which the prisoner asserted that he had bought the goods ; Garrow, B., directed an acquittal, 
 saying, that if a prosecutor used a prisoner's statement, he must take the whole of it together. 
 Ibid. 
 
 (/) By Park, J. A. J., in Rex v. Lloyd, Worcester Sum. Ass. 1830, MSS. C. S. G., and 1 
 Phill. Ev. 399. 
 
 (k) Rex v. Clewes, 4 C. & P. 221, Littledale, J. Rex v. Steptoe, a 4 C. & P. 397. Rex v. 
 Higgins, e 3 C. & P. 603, Parke, J. Rex v. Jones, Monmouth Sum. Ass. 1830, MSS. C. S. G., 
 Park, J. A. J. Rex v. Locker, Stafford Spr. Ass. 1831, Patteson, J., MSS. C. S. G. 
 
 (I) 1 Phill. Ev. 399. 
 
 (m) Greenl. Ev. 253, citing Rex v. Steptoe, supra. Rex v. Clewes, supra. Rex v. Higgins, 
 supra, and Respublica v. M'Carty, 2 Dall. 86, 88. 
 
 (II) Rex v. Steptoe, supra. Rex v. Jones, supra. 
 (0) Greenl. Ev. 253. 
 
 (p) Rex v. Joncs f 2 C. & P. 630. So in a cMvil case, if a person says, " that he did owe a 
 debt, but that he had paid it," such an admission would not be received as evidence to 
 prove the debt, without being also evidence of the payment. Per Hale, C. J., Anonymous 
 case, cited in 12 Vin. Abr. tit. Ev. A. 23. What he has said in his own favour, may, per- 
 haps, weigh very little with the jury, while his admission against himself may be conclu- 
 sive ; however, it is reasonable, that if any part of his statement is admitted in evidence, the 
 
 -j- [This rule does not exclude a confession where only part of what the defendant said 
 has been overheard. Slate v. Covington, 2 Bailey, 569. 
 
 The entire confessions and statements of a party, must be given to the jury as they were 
 made, but the jury may believe a portion, and disregard the rest of such confessions and 
 statements. Cook v. The State, 13 Smedes & Marshall, 246. M'Cann v. The Slate, Ibid. 471.] 
 
 a Eng. Com. Law Reps. vi. 120. b lb. xii. 293. ° lb. xix. 354. d lb. xix. 440. 
 
 e lb. xiv. 603. ' lb. xii. 292.
 
 869 OF EVIDENCE. [BOOK VI. 
 
 As to the For the purpose of introducing a confession in evidence, it is unne- 
 ■ntroduo cessary, in general, to do more than negative any promise or induce- 
 ing oon- ment held out by the person to whom the confession was made. (5) In 
 fessionin a tr j a j f or mur( ] erj it was proposed to give in evidence a statement of 
 the prisoner, made in prison to a coroner, for whom the prisoner had 
 sent. It however appeared, that previous to this time, Mr. Clifton, a 
 magistrate, had had an interview with the prisoner ; and it was sug- 
 gested on behalf of the prisoner, that he might have told the prisoner 
 that it would be better to confess, and that, therefore, the counsel for 
 the prosecution were bound to call him. Littledale, J., " As something 
 might have passed between the prisoner and Mr. Clifton respecting the 
 confession, it would be fair in the prosecutors to call him, but I will 
 not compel them to do so. However, if they will not call him, the 
 prisoner may do so if he chooses. "(r) So where a prisoner being in the 
 custody of two constables, on a charge of arson, one Bullock went into 
 *870 the room, *and the prisoner immediately asked him to go into another 
 room, as he wished to speak to him, and they went into another room, 
 when the prisoner made a statement ; it was urged that the constables 
 ought to be called to prove that they had done nothing to induce the 
 prisoner to confess. It was evident that the prisoner acted under some 
 influence, as he first proposed going into another room ; and Rex v. 
 Swatkins,(s) was relied upon. Taunton, J., "A confession is pre- 
 sumed to be voluntary, unless the contrary is shown; and as no threat 
 or promise is proved to have been made by the constables, it is not to 
 be presumed." Having consulted Littledale, J., his lordship added, 
 " We do not think according to the usual practice that we ought to ex- 
 clude the evidence, because the constable may have induced the prisoner 
 to make the statement ; otherwise we must in all cases call the magis- 
 trates and constables, before whom or in whose custody the prisoner has 
 been."(*) 
 If there be But if there be any probable ground to suspect that an officer, in 
 any proba- wnose cus tody a prisoner has previously been, has been guilty of collu- 
 to suspect sion in obtaining a confession, such suspicion ought to be removed, in 
 that an of- ^q g rs t instance, by the prosecutor calling such officer. Upon an in- 
 improperly dictment for arson, it appeared that a constable, who was called to prove 
 obtained a a confession, went into a room in an inn, where he found the prisoner 
 suc^office r * n *^ e cus tody of another constable, and as soon as he went into the 
 ought to be room, the prisoner said he wished to speak to him, and motioned the 
 ca ed- constable to leave the room, which he did, and left them alone. The 
 prisoner immediately made a statement. The witness had not cautioned 
 the prisoner at all, and nothing had been said of what had passed be- 
 tween the constable and the prisoner before the witness entered the 
 room. It was contended, that the other constable must be called to 
 show that he had used no inducement to make the prisoner confess, 
 
 whole should be admitted. 1 Phill. Ev. 399. See also Smith v. Blandv," R. & M. N. P. C. 
 257. Rose v. Savory, b 2 B. N. C. 145. 
 
 (q) 1 Phill. Ev. 409. 
 
 (r) Rex v. Clewes, 4 C. & P. 221. The counsel for the prosecution declined to call Mr. 
 Clifton, and he was called and examined by the prisoner's counsel. See this case, ante, p. 
 836. 
 
 (s) Infra. 
 
 (t) Rex v. Williams, Gloucester Spr. Ass. 1832, MSS. C. S. G. The statement was rejected 
 on another ground. See ante, p. 832. 
 
 a Eng. Com. Law Reps. xxi. 432. b lb. xxix. 28G. c lb. xix. 354.
 
 CHAP. IV. § I.] OF CONFESSIONS AND ADMISSIONS. 870 
 
 Patteson, J., "I am inclined to think the constable ought to be called. 
 This is a peculiar case, and can never be cited as an authority, except 
 in cases where a man being in the custody of one person, another who 
 has nothing to do with the case comes in, and the prisoner motions the 
 first to go way. I think, as the witness did not caution the prisoner, 
 it would be unsafe to receive the statement. It would lead to collusion 
 between constables. "(u) 
 
 In order to induce the court to call another officer in whose custody It must ap- 
 the prisoner had been, it must appear that either some inducement had PJf ar eitb - er 
 
 ■ . iff) • tllOit S0D16 
 
 been used, or some express reterence made to such ofncer. A prisoner inducement 
 when before the committing magistrate, having been duly cautioned, has been 
 made a confession, in which he alluded to a confession, which he had some ' ex _ 
 previously made to Williams, a constable ; it was submitted that Wil- P ress refer - 
 liams ought to be called to prove that he had not used any inducement. ^madTto 
 Littledale, J. — " Although I do not *think it necessary that a constable an officer, 
 in whose custody a prisoner has been, should be called in every case, ln a ^ ?£ 5° 
 yet as in this case there is a reference to the constable, I think he ought cumbenton 
 to be called." Williams was then called, and proved that he did not the P rose - 
 use any undue means to obtain a confession ; but he had received the suc h officer. 
 prisoner from Marsh, another constable, and the prisoner had made some *871 
 statement to Marsh. It was then urged that Marsh should be called. 
 Littledale, J. — " I do not think it is necessary that a constable should 
 be called, unless it appear that some promise was given, or some express 
 reference was made to the constable. There was a distinct reference 
 made to Williams, and therefore I thought he must be called ; but there 
 is no reference to Marsh. It does not appear either that any confession 
 was made to Marsh. It only appears that a statement was made ; that 
 might be either a confession, a denial, or an exculpation. "(v) 
 
 A confession is obviously not conclusive evidence against a prisoner, Of the effect 
 and when it involves matter of law as well as matter of fact, is to be g io ^g D es ~ 
 received with more than usual caution. (ie) Thus on an indictment for 
 setting fire to a ship with intent to defraud Greenfell & Eddy, being 
 part-owners of the ship, a declaration of the prisoner that Greenfell & 
 Eddy were part-owners was received in evidence, but it was objected 
 that the bill of sale, under which Greenfell & Eddy claimed was invalid 
 in point of law ; and it was held that if by reason of the invalidity of 
 the document evidencing the transfer of their shares, their legal title to 
 them could not be established, the declaration of the prisoner could not 
 be relied upon for that purpose. (x) So where, on an indictment for 
 
 (u) Rex v. Swatkins, a 4 C. & P. 548, and MSS. C. S. G. It afterwards appeared that the 
 prisoner had gone voluntarily before the magistrates at the inn, and then run away, was 
 brought back by the constable, and detained by him in the room for the purpose of being a 
 witness, and that he was not charged with the offence till after the statement was made. 
 Patteson, J., " If he was not under any charge, that varies the case. As he was at that time 
 attending as a witness, and was not in custody on any charge, I shall receive the statement 
 in evidence, without putting the prosecutor to call the other constable." 
 
 (y) Ilex v. Warner and Morgan, Gloucester Spr. Ass. 1832, MSS. C. S. G. The prisoner's 
 counsel then proposed to call Marsh, which was objected to, as not being at the proper time, 
 but Littledale, J., said, " It is much the more convenient time to do so. If it should after- 
 wards turn out that the confessions were in consequence of what Marsh had said, they must 
 all lie struck out, but it would be very difficult to do away with the impression they might 
 have made on the minds of the jury." Marsh was then called for the prisoner, and proved 
 that when the prisoner was in his custody it was not for the offence for which he was then 
 being tried. See this case, ante, p. 845. The case was tried at the same assizes as Rex v. 
 Williams, but after that case had been tried. C. S. G. 
 
 (w) 1 Phill. Ev. 401. (z) Rex v. Philp, R. & M. C. C. R. 263. 
 
 a Eng. Com. Law Reps. xix. 520.
 
 871 OF EVIDENCE. [BOOK VI. 
 
 bigamy, the prisoner had confessed the first marriage, but it appeared 
 that the marriage was void for want of the consent of the guardian of 
 the woman, the prisoner was acquitted. (j/)f 
 Act? and As analogous to the former part of this section, concerning admissions 
 ti if o an< ^ confessions by the defendant himself, it may be proper in this place 
 oonspira- to mention the subject of acts and declarations of co-conspirators and of 
 tors and of a g. en t s _ How far the acts and words of one conspirator are evidence 
 against the others, has already been mentioned in a former part of this 
 Agent of work.(s) With respect to the statements and acts of agents, it was 
 defendant, decided, oa ^g impeachment of Lord Melville, by the House of Lords, 
 that a receipt given in the regular and official form by Mr. Douglas, 
 (who, it was proved, had been appointed by Lord Melville to be his 
 attorney, to transact the business of his office of treasurer of the navy, 
 and to receive all necessary sums of money, and to sign receipts for the 
 *872 same,) was admissible in evidence against *Lord Melville, to establish 
 this single fact, that a person appointed by him, as his paymaster, did 
 receive from the Exchequer a certain sum of money in the ordinary 
 course of business. (a) In the Queen's case, (6) it was said by Abbott, 
 C. J., in delivering the opinion of the judges, that it would not be 
 allowable on the part of the prosecution, to give evidence that an agent, 
 who had been proved to have been employed by the defendant to pro- 
 cure evidence for the defence, but who had not been examined as a 
 witness, offered a bribe to some third person, who also had not been 
 examined. This was not the question proposed by the House of Lords 
 to the judges, but the converse of it, considered by the Chief Justice, 
 for the purpose of showing the grounds of the determination of the 
 Agent of judges. The actual question proposed for their consideration was, as to 
 prosecutor. t ^ e coni petency of proving, on the trial of a criminal prosecution, cer- 
 tain acts supposed to have been done by the agent of the prosecutor. 
 And they determined that similar proof, as to the conduct of the prose- 
 cutor's agent in offering a bribe, was inadmissible. The question, the 
 Lord Chief Justice observed, regarded the act of an agent addressed to 
 a person not examined as a witness in support of the indictment, the 
 proffered proof not apparently connecting itself with any particular 
 matter deposed by the witnesses, who had been examined in support of 
 the indictment, and leaving therefore those witnesses unaffected by the 
 proposed proof, otherwise than by way of inference and conclusion. 
 His lordship concluded by observing, that notwithstanding the opinion 
 he had delivered, he was by no means prepared to say, that in no case, 
 and under no circumstances appearing at a trial, it might not be fit and 
 proper for a judge to allow proof of this nature, to be submitted for the 
 
 (y) Anonymous, 3 Stark. Ev. 894, note (m), cor. Le Blanc, J. 
 
 (z) Ante, p. 697. See also 2 Stark. Ev. tit. Conspiracy. 
 
 (a) 29 How. St. Tr. 746. 1 Phill. Ev. 386. (A) 2 Brod. & Bing. a 302. 
 
 f [It is not essential in order to constitute a statement of a party an admission, that the 
 party should have personal knowledge of the facts admitted. Where a party believes a fact 
 to be true, upon evidence sufficient to convince him of its truth, his statement of such fact, 
 if against his interest, is evidence against him ; and though of an unsatisfactory character, 
 is still competent. Span v. Wellman, 11 Missouri, 230. 
 
 On the trial of an indictment for a felony, proof of declarations which showed the incep- 
 tion in the mind of the prisoner of a scheme of villany, which was afterwards developed by 
 the act done, for which he is on trial, is competent notwithstanding- the remoteness of the 
 times when such declarations were made. The Slate v. Ford, 3 Strobhart, 317.] 
 a Eng. Com. Law Reps. vi. 124.
 
 CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 872 
 
 consideration of a jury; and that the inclination of every judge was to 
 admit, rather than to exclude, the proffered proof, f 
 
 SECT. II. 
 
 Examinations before Magistrates. 
 
 The cases in the foregoing section are applicable to confessions by Examina- 
 prisoners generally; the subject of confessions, contained in the statutory gon^t,,?."" 
 examinations of prisoners before the committing magistrate, remains to fore magis- 
 be considered in the present section. J t 1 r ^ e - p & 
 
 By the 1 & 2 P. & M., c, 13, entitled, "An act touching bailment M., c. 13, 
 of prisoners," sec. 4, " Justices of the peace, when any prisoner i s repealed by 
 brought before them for any manslaughter or felony, before any bail- 4 ; c . 64. 
 ment or mainprize, shall take the examination of the said prisoner, and 
 information of them that bring him of the fact and circumstances thereof, 
 and the same, or as much thereof as shall be material, shall put in writ- 
 ing befoi*e they make the same bailment : which said examination, 
 together with the said bailment, the said justices shall certify at the next 
 gaol delivery to be holden within the limits of their commission." This 
 statute extended only to cases where the *party accused was admitted *873 
 to bail : but it was further enacted by the 2 & 3 P. & M., c. 10, intituled 2 & 3 P. & 
 
 . . M. c. 10 
 
 "An act to take examinations of prisoners suspected of manslaughter or repealed 'by 
 
 felony," after reciting the 1 & 2 P. & M., c. 13, and that the said act doth the 7 Geo. 
 not extend to such prisoners as shall be committed and not bailed, that ' c ' 
 the justice " before he shall commit a prisoner brought before him on 
 suspicion of manslaughter or felony, shall take the examination of the 
 prisoner, and the information of those that bring him, of the fact and 
 circumstance thereof, and shall put the same, or as much thereof as shall 
 be material to prove the felony, in writing, within two days after the 
 said examination, and the said shall certify in such form and at such 
 time as he ought to do, if such prisoner so committed had been bailed." 
 Between these statutes, the difference was observable ; by the former, 
 which was confined exclusively to cases where a prisoner arrested for 
 manslaughter or felony was admitted to bail, the justices of the peace 
 must have taken the examination of the prisoner, and the witnesses 
 against him, and put the same in writing before they made the bail- 
 ment : by the latter, which applied only to cases where a prisoner 
 arrested for manslaughter or felony was committed to gaol, justices 
 were required to take the like examinations, but were not obliged to 
 put them in writing immediately, having two days given them by the 
 act for that purpose. (c) It must also be remarked that these statutes 
 did not extend to misdemeanors or high treason. (d\ But the above- 
 
 (c) Burn's Just, by Chetw. tit. Examination. 
 
 (d) Rex v. Paine, 1 Salk. 281. S. C. 1 Lord Raym. 729, cited by Lord Kenyon, in Bex v. 
 Eriswell, 3 T. R. 723. 1 Hale, 30G. They extended, however, as the new statute must be 
 considered to do, to petty treason, so far as to make examinations and informations under 
 
 f [Semble in a criminal prosecution for a libel, mere naked admissions, made by the party 
 libelled, are in general, incompetent evidence against the people even to establish facts tend- 
 ing to a justification. Otherwise, as to conversations or declarations which are a part of 
 the res gestae. Barthelemy § al. v. The People, 2 Hill, 248.] 
 
 % [As to examinations, see The People v. Restell, 3 Hill, 289.]
 
 873 OF EVIDENCE. [BOOK VI. 
 
 mentioned difference has ceased, and the defect has, as far as the not 
 comprehending misdemeanors, been remedied, by the 7 Geo. 4, c. 64, 
 *874 which by sec. 2,(e) after reciting that it is expedient *to amend and 
 7 Geo. 4, c. extend the provisions of the 1 & 2 P. & M., c. 3, and 2 & 3 P. & M., c. 
 64, s. 2. 20, enacts, " that the two justices of the peace, before they shall admit 
 tion of pri-to bail, and the justice or justices, before he or they shall commit to 
 soners m p r i sorjj any person arrested for felony, or on suspicion of felony, shall 
 take the examination of such person, and the information upon oath of 
 those who shall know the facts and circumstances of the case, and shall 
 put the same, or as much thereof as shall be material, into writing ; and 
 the two justices shall certify such bailment in writing; and every such 
 justice shall have authority to bind by recognizance all such persons as 
 know and declare anything material touching any such felony or sus- 
 picion of felony, to appear at the next court of oyer and terminer, or 
 gaol delivery, or superior criminal court of a county palatine, or great 
 session or sessions of the peace, at which the trial thereof is intended 
 to be, then and there to prosecute or give evidence against the party 
 accused; and such justices and justice respectively shall subscribe all 
 such examinations, informations, bailments, and recognizances, and 
 deliver or cause the same to be delivered to the proper officer of the 
 court in which the trial is to be."(/\ 
 7 Geo. 4, c. Sec. 3 enacts, " that every justice of the peace before whom any per- 
 64, s. 3. son shall be taken on a charge of misdemeanor, or suspicion thereof, 
 
 Misde- . . . 
 
 meanors. shall take the examination of the person charged, and the information 
 upon oath of those who shall know the facts and circumstances of the 
 
 them admissible in evidence, by reason of the offence being substantially the same as mur- 
 der, but such an information could not support a conviction for petty treason if the witness 
 were living, though unable to travel, or kept out of the way bj- the contrivance of the pri- 
 soner: the 5 & 6 Edw. 6, c. 11, s. 12, requiring the witnesses, if living, to be examined in 
 petty, no less than in high treason. Fost. 337. However, as a prisoner might be convicted 
 of murder on an indictment for petty treason, depositions or informations, even in such a 
 case, would be evidence to support a conviction for murder, though not for petty treason. 
 Radbourne's case, 1 Leach, 457. The 9 Geo. 4, c. 30, enacts that petty treason shall be 
 treated in all respects as murder. 
 
 (e) Sec. 1, enacts that " where any person shall be taken on a charge of felony, or suspi- 
 cion of felony, before one or more justice or justices of the peace, and the charge shall be 
 supported by positive and credible evidence of the fact, or by such evidence as, if not 
 explained or contradicted, shall, in the opinion of the justice or justices, raise a strong 
 presumption of the guilt of the person charged, such person shall be committed to prison by 
 such justice or justices, in the manner hereinafter mentioned ; but if there shall be only one 
 justice present, and the whole evidence given before him shall be such as neither to raise a 
 strong presumption of guilt nor to warrant the dismissal of the charge, such justice shall 
 order the person charged to be detained in custody until he or she shall be taken before two 
 justices at the least ; and where any person so taken, or any person in the first instance 
 taken before two justices of the peace, shall be charged with felony, or on suspicion of felony, 
 and the evidence given in support of the charge shall, in their opinion, not be such as to 
 raise a strong presumption of the guilt of the person charged, and to require his or her com- 
 mittal, or such evidence shall be adduced on behalf of the person charged as shall in their 
 opinion weaken the presumption of his or her guilt, but there shall, notwithstanding, appear 
 to them, in either of such cases, to be sufficient ground for a judicial inquiry into his or her 
 guilt the person charged shall be admitted to bail by such two justices, in the manner here- 
 inafter mentioned ; provided always, that nothing herein contained shall be construed to 
 require any such justice or justices to hear evidence on behalf of any person so charged as 
 aforesaid, unless it shall appear to him or them to be meet and conducive to the ends of 
 justice to hear the same." 
 
 (/) This part of the statute removes a difficulty which arose upon the statutes of Philip 
 and Mary, by reason of their directing the magistrate to certify the examination at the next 
 general gaol delivery within the limits of their commission; but as it often happened that a 
 felon was taken and examined by a magistrate in a county where the offence was not com- 
 mitted, justices, of necessity, contrary to the words of the statute, certified in the county 
 where the felon was indicted.
 
 CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 874 
 
 case, and shall put the same, or as much thereof as shall be material, 
 into writing, before he shall commit to prison, or require bail from the 
 person so charged, and in every case of bailment shall certify the bail- 
 ment in writing, and shall have authority to bind all persons by recog- 
 nizance to appear to prosecute or give evidence against the party ac- 
 cused, as in like manner as in cases of felony ; and shall subscribe all 
 examinations, informations, bailments, and recognizances, deliver or 
 cause the same to be delivered to the proper officer of the court in which 
 the trial is to be, before or at the opening of the court, in like manner 
 as in cases of felony." 
 
 Sec. 4 prescribes the duty of coroners upon inquisitions in putting Sec. 4. 
 the evidence in writing and binding over the witnesses, but contains no Duty of 
 provision as to taking the examination of any person charged with or 
 suspected of causing the death of any person, ou whose body the inqui- 
 sition is held.fa) 
 
 The proper time for taking the examination of a prisoner is after the When the 
 witnesses have been examined and he has heard what they have deposed prisoner's 
 
 , i. /7\ examina- 
 
 against him.(A) tion should 
 
 The frequent warnings given to prisoners not to say anything that be taken, 
 may criminate themselves, have, on several occasions rendered it neces- T „™°i.L 
 
 •> ' manner in 
 
 sary for learned judges to state what is the proper course of *proceed- *875 
 ing in taking the examinations of prisoners. Thus, it has been laid down which pri- 
 that "A prisoner ought to be told that his confessing will not operate ^ nei jj h 
 at all in his favour, and that if any one has told him that it will be bet- cautioned, 
 ter for him to confess, or worse for him if he does not, he must pay no 
 attention to it; and that anything he says to criminate himself will be 
 used as evidence against him on his trial. After that admonition it 
 ought to be left entirely to himself whether he will make any statement 
 or not; he ought not to be dissuaded from making a perfectly volun- 
 tary confession, because that is to shut up one of the sources of jus- 
 tice."^') A prisoner is not to be entrapped into making any statement; 
 but when a prisoner is willing to make a statement it is the duty of the 
 magistrates to receive it; but magistrates, before they do so, ought 
 entirely to get rid of any impression that may have been made on the 
 prisoner's mind that the statement may be used for his benefit, and the 
 prisoner ought to be told that what he thinks fit to say will be taken 
 down, and may be used against him on his trial. [j\ 
 
 The examination of a prisoner ought to be taken down in the precise In what 
 words used bv him ; and the language ought not to be changed ; for if manner tne 
 
 / . , , , . ,., a ' , , examina- 
 
 lt appear to be in such language as the prisoner did not use, or could tion should 
 not have used, it will not be admitted in evidence against him. (A;) be taken. 
 
 (g) See the section, post, p. 892, note (b). It seems in several cases to have been taken 
 for granted that the coroner had the same authority to take the examination of a prisoner 
 as a magi.-trate. See Rex v. Reed, a M. & M. 403, post,p. 883. Reg. v. Roche, b 1 0. & Mars. 
 341, ante, p. 867. Brogan's case, Rose. Cr. Ev. 60, post, p. 887. C. S. G. 
 
 (h) Rex v. Fagg,« 4 C. & P. 560, Garrow, B. Rex v. Bell, 3 C. & P. 162, post, p. 884. 
 Rex». Spilsbury, 7 C. & P. 187, post, p. 880. 
 
 (i) Per Gurney, B. Rex v. Green, d 5 C. & P. 312. 
 
 (/) Reg. v. Arnold, e 8 C. & P. 621, Lord Denman, C. J. 
 
 (k) Rex v. Sexton, 1 Burn's Just. Doyl. & Wms. 1085, ante, p. 867, and other cases there 
 cited. The proper course is to take the examination in the first person; e. g. "I did so 
 and so," &c, and to insert the very words the prisoner uses, whatever they may be. C. 
 S. G. 
 
 a Eng. Com. Law Reps. xxii. 341. b lb. xli. 189. c lb. six. 530. d lb. xxiv. 335. 
 
 e lb. xxxiv. 556.
 
 875 OF EVIDENCE. [BOOK VI. 
 
 Not upon The examination of a prisoner must not be taken upon oath. But 
 V? th \- although it was in one case considered otherwise, (I) it seems now to be 
 
 (jiu'stions o # iini • i_ i 
 
 may bo settled that questions may be asked of the prisoner by the magistrate, 
 asked. jf ne think fit so to do, and that the examination will not be rejected on 
 the ground that the magistrate did put questions to the prisoner, espe- 
 cially if such questions were put merely for the purpose of explaining 
 what the prisoner himself said.(wi) 
 Parol evi- As by the statute the magistrate is expressly enjoined to put the ex- 
 examina animation into writing, it will be intended that he did as the law requires; 
 tion before and parol evidence of a prisoner's statement before him ought not to be 
 magistrate rece i vec i until it is clearly shown that in fact such a statement never 
 
 is auniissi- • • / \ i * i « t i i«i 
 
 ble after was reduced into writing. (njj And in order to render parol evidence 
 clear proof f a prisoner's statement inadmissible, it is *not sufficient for a witness 
 
 that the ex- . . 
 
 animation to state that he did not see anything taken down in writing,(o) or that 
 was not no examination was taken in writing, (_p) but the magistrate's clerk must 
 writing De called to prove that he did not take down in writing what the pri- 
 *876 soner said.f^) But if in fact the examination was not taken in writing, 
 parol evidence may be given of the prisoner's declarations. At the 
 Lent Assizes for the county of Stafford, in 1790, one Hall and two 
 others were tried and convicted on an indictment for burglary. The evi- 
 dence was clear against the two others ; but excepting one or two slight 
 circumstances, certainly not sufficient of themselves to have put Hall on 
 his defence, the only evidence against him was his examination before the 
 magistrate, which was not taken in writing, either by the magistrate or 
 
 (/) Rex v. Wilson, Holt, R. 597. per Richards, C. B. 
 
 (m) Rex v. Ellis, a R. & M. N. P. R. 432. Rex v. Bartlett, b 7 C. & P. 832. Rex v. Rees, e 
 7 C. & P. 568, and see the cases, ante, p. 853. 
 
 (n) Jacobs's case, 1 Leach, 307. Fearshire's case, ibid., 202. Hinxman's case, ibid., 310, 
 note (a). Fisher's case, ibid., 311, note (a). Rex v. Hollingshead, d 4 C. & P. 242. Phillips 
 v. Wimburn, e 4 C. & P. 273. Where the law authorized any person to make an inquiry of 
 a judicial nature, and to register the proceedings, the written instrument so constructed is 
 the only legitimate medium to prove the result. 3 Stark. Ev. 786. Hence parol evidence 
 cannot be received of the declaration of a prisoner taken under the statute, where the 
 examination has been taken in writing. But if the statute had not made the taking an exam- 
 ination in writing a judicial proceeding, there is nothing, it is conceived, in the rules of evi- 
 dence, which would make the statement reduced to writing primary evidence, to the exclusion 
 of any collateral parol proof of what the prisoner declared. If several witnesses were to 
 hear a confession, not made in the course of an examination under the statute, and one of 
 them were to reduce it to writing, as it was being delivered, such writing would not exclude 
 the testimony of the other witnesses. See ante, p. 735. 
 
 (o) Phillips v. Wimburn, f 4 C. & P. 273, Tindal, C. J. 
 
 (p) Rex v. Isaac Parker, Gloucester Spr. Ass. 1829, MSS. C. S. G. In this case the wit- 
 ness stated that no examination was taken in writing, and Parke, J., said, " as all things 
 are to be presumed to be rightly done, I must have the magistrate's clerk called to prove 
 that no examination of the prisoner was taken in writing, and unless you can clearly show 
 that the magistrate's clerk did not do his duty I will not receive the evidence." So in Rex 
 v. Phillips, Worcester Sum. Ass. 1831, MSS. C. S. G., where a witness stated that he be- 
 lieved that what the prisoner said before the magistrate was not taken down in writing, but 
 he was not quite certain that that was so ; Bosanquet, J., said that the justice's clerk ought 
 to be called to show whether anything had been taken in writing, as it must be presumed 
 that he had done his duty; and the clerk was accordingly called, and proved that nothing 
 was taken in writing, and then parol evidence was received of what the prisoner said before 
 the magistrate. 
 
 (q) It should seem on the same ground that where there is no magistrate's clerk pre- 
 sent, the magistrate should be called to prove that he did not take the examination in 
 writing. See Rex v. Harris, R. & M. C. C. R. 338, infra, where this course was adopted. C. 
 S. G. 
 
 f [State v. Irwin, 1 Hayw. 112.] 
 a Eng. Com. Law Reps. xxi. 843. b lb. xxxii. 759. <= lb. xxxii. 633. d lb. xix. 365. 
 « lb. xix. 380. » lb. xix. 380.
 
 CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 876 
 
 by any other person, but was proved by the vivd voce testimony of two 
 witnesses who were present, and which amounted to a full confession 
 of his guilt. The case was referred to the consideration of the judges, 
 whether this evidence of the confession was well received ; and all the 
 judges except Gould, J., were of opinion that theconvictionwasright.fr) 
 So where it was proved that the magistrate before whom the prisoners 
 were examined was very deaf, and did not take down what they said 
 when before him ; Taunton, J., permitted parol evidence to be given of 
 their statements before the magistrate. (s) So a written examination 
 before a magistrate will not exclude evidence of a previous parol decla- 
 ration, which has not been reduced into writing.^) And in Rowland 
 v. Ashby,(r<) Best, C. J., said, " My opinion is, that upon clear and satis- 
 factory evidence, it would be admissible to prove something said by a 
 prisoner beyond what was taken down by a magistrate." 
 
 And it has since been expressly held that parol evidence is admissi- Harris's 
 
 ble to add to the written examination of a prisoner's statements made *L ase \ . 
 
 1 Parol evi- 
 
 by him while before a magistrate, and which are not contained in such dence may 
 
 examination. Upon an indictment against Butler, Harris, and Evans, ,je g iven t0 
 for stealing a ewe, the property of Bennett, it appeared that Harris, written ex- 
 Butler, and Evans, were taken before a magistrate about stealing three animation 
 sheep of Bennett, Pennell, and Price ; at the meeting Bennett, Pennell, s a er \ r aken 
 and Price, were all present. The magistrate identified the examina-byamagis- 
 tions, and said that was all that was taken *down ; that was what each tra ^o 7 fT 
 of the prisoners said ; it was all in his writing, he had no clerk ; the in- 
 formations were taken as to the three sheep before Evans and Harris 
 were examined : he took down everything that they said that he heard. 
 The papers produced contained everything as he believed that trans- 
 pired before him, and he intended to take down all that was said to him, 
 and he believed he did. The room was very full. The papers produced 
 were the depositions of Pennell, Price, and Bennett, as to the stealing 
 of their sheep respectively, and Butler's examination and confession as 
 to each offence. The following were the examinations of Harris and 
 Evans: — "J. Harris being called upon for his defence, voluntarily 
 saith that he was concerned in stealing a sheep, the property of J. Pen- 
 nell, but that J. Butler was the foreleader in the business." W. Evans 
 voluntarily saith that he did not kill the sheep, but that he helped to 
 carry it away." A witness stated that Mr. C, the magistrate, examined 
 Harris and Evans, and he wrote ; that when Harris was asked about 
 Bennett's sheep, Mr. C. was at the table with his paper and pen before 
 him, but his hand was not going. What Harris said about Bennett's 
 sheep was said to Mr. C. Mr. C. heard what Harris and also what 
 Evans said about Bennett. He took down in writing what thcv said 
 about Bennett's sheep, (v\ what they said they said to Mr. C. Harris 
 said he was connected with the taking of Bennett's sheep, Harris said 
 
 (r) Hall's case, cited by Grose, J., in Lambe's case, 2 Leach, 559. Rex v. Huet, 2 Lead) 
 821. 
 
 (.?) Rex v. Sliillock and Barnes. Stafford Spr. Ass. 1832, MSS. C. S. (!. 
 
 (t) Rex v. M'Carty, 2 Stark. Ev. 38. See also Rex v. Reason and Tranter, 1G How. St. 
 Tr. 35, by Eyre, J. {Coxe's N. J. Rep. 424, State v. Wells.} 
 
 (u) Ry. & Mood. N. P. C. a 231. 
 
 (v) Quaere, whether this should not be " Pennell's sheep?" My MSS. note has no such 
 statement of this witness, and "Bennett' might easily be printed erroneously instead ot 
 "Pennell." C. S. G. 
 
 ft Eng. Com. Law Reps. xxi. 425. 
 
 Vol. ii.— 57
 
 S77 OF EVIDENCE. [BOOK VI. 
 
 they took a neddy out of the road, and put the sheep upon him. Evans 
 said he helped to take the sheep, Bennett's sheep ; this was addressed 
 to Mr. C. Another witness said that he heard Harris say that he helped 
 to take Bennett's sheep; that he addressed Mr. C; that Harris said to 
 Evans " speak the truth, you may as well speak the truth as not ;" that 
 Evans then said he helped to do it; he helped to take Bennett's sheep; 
 what Evans said was addressed to Mr. C. The evidence of these two 
 witnesses was objected to, but received, and, upon a case reserved upon 
 the cpuestions whether as Harris and Evans had made a confession as 
 to Pennell's sheep, which had been taken down in writing by the ma- 
 gistrate, any confession as to Bennett's sheep could be supplied by parol 
 evidence ; and whether as the magistrate had taken down in writing 
 everything he heard, and he intended to take down all that was said to 
 him, and he believed he did, parol evidence could be given of anything 
 else that was addressed to the magistrate ; the judges were unanimously 
 of opinion that the evidence being precise and distinct was properly 
 received. (w\ 
 *878 *The following cases have since been decided with reference to the 
 Walter's same subject. Where, on an indictment for larceny, the prosecutor 
 ase ' stated that the prisoner, when under examination before a magistrate, 
 
 made a confession of his guilt, and was about to state it ; but, on refer- 
 ring to the depositions returned, it appeared that the prisoner was there 
 
 (w) Rex v. Harris, R. & M. C. C. R. 338, Lord Lyndhurst, C. B., Bosanquet, J., Taunton, 
 J., and Gurney, B., absentibus. Mr. Phillipps, 2 vol. Ev. 83, et seq., contends that if a pri- 
 soner's statement, taken down in writing, is given in evidence against him, as containing an 
 admission of some fact, or a confession of guilt, and the magistrate has omitted to insert 
 some other material part of his statement, the counsel for the Crown will not be allowed to 
 supply the omission by the evidence of witnesses ; and mentions as the only authority in 
 favour of this proposition Rex v. Mulvey, Lancaster Spr. Ass. 1831, Matth. Dig. 157, S. C. 
 as Rex v Maloney, Rose. C. E. 56. This case is stated immediately after Rex v . Moore, post, 
 p. 879, and the whole statement is, " but if it ought to have been taken down in writing 
 and was not, it is admissible." Whether, therefore, there was any statement in writing by 
 the prisoner, or at what time the statement proposed to be given in evidence was made, 
 does not appear. Mr. Phillipps then proceeds to allege that Rex v. Harris "will be found, 
 on an attentive perusal, not to bear upon the point in question, nor even afford an argument 
 against the proposition above maintained ; and, after stating the facts of that case adds, (in 
 a note, p. 85,) "It is not to be inferred from this decision that parol evidence can be given 
 of anything else that was addressed to the magistrate. The proposed evidence was receiv- 
 able, being distinct (that is distinct from the examination produced, and distinct from the offence 
 therein mentioned.) that is quite different from its being an addition to the examination The 
 examination produced related to another offence, and was not admissible as evidence in this 
 prosecution ; the only reason of its being produced doubtless was to show that the confes- 
 sion, which it was proposed to prove by the evidence of the two witnesses, was not included 
 in the examination, but altogether omitted; for that purpose, and that only, it was proper 
 and indispensable to produce the written examination. The point decided then was noth- 
 ing more than this, that parol evidence might be given of a confession made by a prisoner 
 before the committing magistrate, who took a written examination relating to other distinct 
 charges, but which did not in any respect relate to the offence for which he was afterwards 
 tried." It must be observed, however, that the learned author is in error in several points. 
 In the first place, the term " distinct" coupled as it is with " precise," means "plain, clear, 
 and unequivocal," and not what is suggested. In the next place, the examination of Evans, 
 which was in answer to the three charges, all heard at the same time, only mentions " the 
 sheep," without specifying which of the three. In any view of the case, therefore, the judges 
 must have held that parol evidence was admissible, to show what sheep Evans mentioned ; 
 and as the evidence of the two witnesses strongly tends to show that the statement of Evans 
 related to the sheep of Butler, the inference is that the judges held that it was allowable to 
 add to the examination of Evans that he stated that the sheep therein mentioned belonged 
 to Butler. Lastly, as the examination of each of the prisoners was a single statement "in 
 defence" of three charges, the case does decide that parol evidence is admissible to add to 
 the statement of each prisoner in answer to the charge of stealing Bennett's sheep ; and it is 
 just the same as if the statement had been, "as to Pennell's sheep I say so and so ; and as 
 to the others I decline to say anything." C. S. G.
 
 CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 878 
 
 stated to have said, "I decline to say anything;" Lord Ahinger, C. B., 
 was of opinion that the prosecutor's statement could not be received in 
 evidence, fx) 
 
 Where three prisoners were taken before a magistrate at the same Morse's 
 time on the same charge, and each made a statement, which was taken case * 
 down by the magistrate's clerk, but he had left a blank whenever either 
 of the prisoners had mentioned the name of either of the other prisoners, 
 conceiving that such mention of the name was not evidence against the 
 person so mentioned, and it was proposed to supply these blanks by the 
 parol evidence of the clerk ; Patteson J., said, " I think I ought not to 
 receive the parol evidence. I think that the rule ought not to be ex- 
 tended. In the present case the statement professes to be a complete 
 account of what took place ; and I am of opinion that supplementary 
 evidence ought not to be received. "(3/) So where an examination of a 
 prisoner on oath was not allowed to be given in evidence, and it was 
 proposed to give in evidence what the prisoner said which was not 
 taken down, and Rex v. Harris,^) cited ; Gurney, R., said, " it is very *879 
 dangerous to *admit such evidence, and I think it ought not to be done 
 in this case.'Yz) 
 
 The general rule respecting confessions is that "a free and voluntary State- 
 confession made by a person accused of an offence is receivable in evi- remarkTof 
 dence against him, whether such confession be made at the moment he the priso- 
 is apprehended, or while those who have him in custody are conducting j£ wl ^ le 
 him to the magistrate's, or even after he has entered the house of the nesses are 
 magistrate for the purpose of undergoing his examination, "(a) or even be . ln S exa - 
 whilst the witnesses are being examined against him, and it is only to against 
 the period of time during which the magistrate is taking the prisoner's him * 
 examination, that the written statement of the prisoner can apply. Any 
 remarks or statements therefore made by the prisoner after the inquiry 
 before the magistrate has begun, and whilst the witnesses are being 
 examined, may be received in evidence, although the prisoner's examina- 
 tion is afterwards taken in writing. 
 
 Thus where one of two prisoners was committed before the other was 
 apprehended, and the depositions against that prisoner were read over 
 before the magistrate to the other prisoner, and after they were read the 
 prisoner went across the room to a witness, who was called, and said 
 something to him so loud that it might have been heard by the magis- 
 trate, if he had been attending ; and the magistrate proved the exami- 
 nation of the prisoners before himself, and the statement to the witness 
 was not contained in it : Parke, J., held that what the prisoner had 
 said to the witness might be given in evidence. (6) So " an incidental 
 
 (x) Rex v. Walter,* 7 C. & P. 267. The ground of this decision is not stated, and it may 
 have been that the very learned Chief Baron considered the evidence proposed as contradict- 
 ing the statement of the prisoner returned by the magistrate, as the confession proposed to 
 be given in evidence was said to be made " when the prisoner was under examination," and 
 not during the time the witnesses were being examined against him. See the observations 
 in note (f),poxl, p. 880. 
 
 (y) Reg. v. Morse, b 8 C. & P. 605, ante, p. 856. (yy) Supra, note (w). 
 
 (z) Rex v. Lewis, 6 0. & P. 161, ante, p. 856. Assuming the rejection of the examina- 
 tion to have been correct, because it was on oath, the rejection of the parol evidence was 
 clearly correct, as that statement was on oath also. C. S. G. 
 
 (a) Per Grose, J., in delivering the judgment of the judges in Lambe's case, 2 Leach, 552. 
 
 (//) Rex v. Johnson and Spiers, Gloucester Spr. Ass. 1829, MSS. C. S. G. This case was 
 relied upon at the trial of Rex v. Harris, supra, by the counsel for the crown. MS. C. S. G. 
 » Eng. Com. Law Reps, xxxii. 506. b lb. xxxviii. 547. c lb. xxv. 333.
 
 879 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Parol evi- 
 dence of a 
 prisoner's 
 answer to 
 a magis- 
 trate's 
 question 
 while the 
 witnesses 
 were 
 
 being ex- 
 amined. 
 
 *880 
 
 observation made by a prisoner in the course of bis examination before 
 a magistrate, but which does not form a part of the judicial inquiry so 
 as to make it the duty of the magistrate to take it down in writing, and 
 which was not so taken down, may be given in evidence against him at 
 the trial. "(c) So where a man and woman were before the magistrates 
 on a charge of burglary, and in the course of the examination of a wit- 
 ness a glove was produced, wbich had been found on the man with 
 part of the stolen property in it, on which the man said, "she gave me 
 the glove but she knew nothing of the robbery ;" the depositions hav- 
 ing been put in, and the clerk of the magistrates having proved them, 
 and there being no such statement in tbe depositions or examination of 
 the prisoner; Erskine, J., held that what the man said might be proved 
 by parol evidence. (J) 
 
 Parol evidence may be given of a question asked by a magistrate in 
 the course of the examination of a witness, and of the prisoner's reply 
 to it, neither the one nor the other being taken down in writing. On 
 the examination of a prisoner on a charge of murder, one of the wit- 
 nesses stated that she had bought a pot of the prisoner, upon which one 
 of the magistrates asked what sort of a pot it was, and the prisoner, 
 although the question was not particularly addressed to him, *rnade an 
 answer. It was submitted that no evidence could be given of what 
 passed before the magistrate except the depositions. Coleridge, J., 
 " What the magistrate himself said would not be taken down. That 
 may certainly be asked." It was then submitted that the statement 
 made by the prisoner and signed by the magistrate must be put in be- 
 fore it could be asked what the prisoner said. Coleridge, J., "There 
 seems to be no necessity for putting in the written examination. It is 
 not what the prisoner says when called upon for his defence that is 
 asked, but an observation made in the course of the case, and as that 
 would not be put down as part of his statement, I am clearly of opinion 
 that it is receivable." The clerk to the magistrate then proved that he 
 took down the examination of the witnesses, and that he took down 
 what the prisoners said when they were asked what they had to say for 
 themselves, but that he did not take down anything which either of the 
 prisoners said before the witnesses had been all examined. Coleridge, 
 J., "At the close of the evidence for the prosecution, the prisoner is 
 asked if he wishes to say anything, and if he does, it is taken down, 
 and the evidence of that statement is the written examination; but if 
 a prisoner says something while the witnesses are under examination, 
 that does not stand on the same ground. I shall receive the evi- 
 dence."^) 
 Statement And so where there were two investigations by the magistrates who 
 mate »y a couani itted the prisoner, and on the first occasion two witnesses were 
 
 prisoner . 
 
 on the first examined, and a statement was made by the prisoner, and taken down 
 day of his j n wr iting, but it was not read over to the prisoner nor was he asked to 
 tion, but sign it. The depositions of the witnesses were not taken formally till 
 DOtre - the second occasion, and the magistrate did not return with them the 
 statement made by the prisoner on the first occasion ; but on the con- 
 
 (c) Rex v. Moore,, Matth. Dig. C. L. 15V, Parke, B. 
 
 (d) Reg. v. Hooper, Gloucester Sum. Ass. 1842. The clerk to the magistrates could not 
 remember the observation, and it was proved by two policemen. MSS. C. S. G. 
 
 (e) Rex v. Spilsbury,* 7 C. & P. 187. 
 
 a Eng. Com. Law Reps, xxxii. 487.
 
 CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 880 
 
 trary returned the following memorandum : " The prisoner, being ad- the magis- 
 vised by his attorney, declines to say anything." It was objected that 
 as the magistrate returned that the prisoner had declined to say any- 
 thing, it was not competent for the clerk, in contradiction of the magis- 
 trate's own account, to give in evidence that which purported to be a 
 statement made before the magistrate. But Littledale, J., and Parke, 
 B., were both of opinion that the evidence was admissible, although the 
 magistrate might have neglected his duty in not returning what the pri- 
 soner said. And Parke, B., added, " Let the effect of the evidence be 
 what it may with the jury, it is clearly admissible. What a prisoner 
 says is evidence against himself, whether the officer was right or wrong 
 in not returning the statement, or furnishing a copy of it to the pri- 
 soner.'^/) 
 
 If a written examination be produced on the part of the prosecution, 
 as the examination of the prisoner taken in writing by the magistrate 
 according to the statute, it has been said that the prisoner *is at liberty *881 
 to meet such evidence by contrary testimony, and to show that the writ- 
 ten instrument is inaccurate. (_/) 
 
 The examination of a prisoner, when reduced into writing, ought to Signing 
 be read over to him, and likewise tendered to him for his signature. by tbe t . 
 
 ' . ° magistrate 
 
 And by the late statute^) the magistrate is expressly required to sub- and the 
 scribe it ; and it was usual so to do before the statute. The signature, P nsoner - 
 however, of the prisoner is not required by the statute, and is only for 
 precaution and for the facility of further proof.(Z) In Lambe's case,(m) Examina- 
 the question referred to the opinion of the twelve judges was whether 11 . 011 n , ot , 
 
 * .... . . *? . signed by 
 
 an examination, taken in writing by a committing magistrate, contain- the prison- 
 ing a confession of the prisoner's guilt, not being signed by the prisoner eT > but ad ~ 
 or the magistrate, was admissible in evidence. The examination, after De correct, 
 being taken in writing, was read over to the prisoner, who said, "It is 
 all true enough :" but upon the clerk's requesting him to sign it, he said, 
 "No: I would rather decline that." A majority of the judges were of 
 opinion, upon principle as well as precedent, that the examination or 
 paper writing was well received in evidence. Mr. Justice Grose, in 
 delivering their opinion said, that it was clearly receivable in evidence 
 at common law, and that there was nothing in the 1 & 2 P. & M. c. 13, 
 and 2 & 3 P. & M. c. 10, to render it inadmissible. Surely, as the 
 learned judge observed, if what a man says, though not reduced into 
 writing, may be given in evidence against him, cb fortiori what he says, 
 when reduced into writing, and afterwards admitted by parol to be true, 
 is admissible. But where the clerk of the magistrate stated that he Where the 
 took down the examination from the mouth of the prisoner, and that it did not 
 was afterwards read over to him, and he was told he might sign it or s »g n . or ad - 
 
 mit it to be 
 
 not as he pleased, and he declined to sign it; Wood, B., was of opinion corroc t. 
 
 (/) Re £- v - Wilkinson, 1 8 C. & P. G02. Rex v. Walter, ante, p. 878, was cited in support 
 of the objection, and the reporters observe that the only difference between the cases is that 
 in Reg. v. Wilkinson, the statement was made oil a different day from the statement which 
 the magistrate returned, but it is conceived the true distinction between the cases is this, 
 that the statement by parol in Rex v. Walter, evidently was made at the same time as the 
 statement returned by the magistrate, and was in effect a contradiction to it. In Reg. v. 
 Wilkinson, the statement proposed to be given in evidence was made the first day, and the 
 statement returned the second, the first, therefore, could in no way contradict the latter 
 statement. C. S. G. 
 
 (j) 3 Stark. Ev. 787. (k) 7 Geo. 4, c. G4, ss. 2. 3. 
 
 (I) 2 Phill. Ev. 70. (m) 2 Leach, 552. 
 
 a Eng. Com. Law Reps, xxxiv. 574.
 
 881 OF EVIDENCE. [BOOK VI. 
 
 that the document could not be read. " In Lambe's case," said the 
 learned baron, " the prisoner when the examination was read over to 
 him, said it was true; and here, if the prisoner had said so, the case 
 might have been different, "(n) Where the solicitor for the prosecution 
 on the examination of the prisoner before a magistrate, at the desire of 
 the latter, took minutes of the examination in writing which was read 
 over to the prisoner, who said, "It is all true;" but when they were 
 read over to him again after an interval of a few hours, said that part of 
 them was not true, and refused to sign them ; it was held that these 
 minutes might be read in evidence. (o) 
 What is the The distinction in these cases appears to be, that if the prisoner admits 
 inthese 10n tne examination to be correct, the examination itself may be read in 
 eases. evidence ; but if the prisoner declines to sign it, or does not admit it 
 *882 to be correct, the written examination cannot be read in *evidence, but 
 it may be used to refresh the memory of a witness who may state what 
 the prisoner said. A statement made before a magistrate having been 
 taken down in writing and read over to the prisoner, he was asked to 
 sign it; he asked whether he was bound to sign it or not, and being 
 told that he was not, he said he had rather not sign it; and Littledale, 
 J., was clearly of opinion, both upon the cases and on principle, that 
 the examination was not admissible. (p) So where the examination of a 
 prisoner having been taken down in writing before a magistrate, he was 
 neither asked to sign it, nor was it read over to him ; Littledale, J., re- 
 fused to allow the examination to be read in evidence. (j) So where a 
 statement made by a prisoner before a magistrate was taken down by 
 the clerk, and read over to the prisoner, but not signed by him, Patte- 
 son, J., thought that it would be the more safe course that this exami- 
 nation should not be read ; but that the clerk to the magistrate by whom 
 it was taken should refresh his memory from it.(r) But where a pri- 
 soner was before the magistrate on two days, and all that he said the 
 first day was taken down in writing and read over to him, and he was 
 asked whether it was correct or not, and he said it was ; and on the 
 second day he was asked to sign this statement, but he refused to do so; 
 and it was objected that it was inadmissible, as he had refused to sign 
 the examination; Bosanquet, J., said, "if minutes only of what a pri- 
 
 (n) Rex v. Telicote,* 2 Stark. N. P. C. 483. Foster's ease, 1 Lewin, 46. Hirst's case, ibid. 
 See also Rex v. Bennett, 2 Leach, 553, note (a). In Rex v. Jones, 7 C. & P. 239, upon an 
 indictment for murder, the court allowed evidence to be given of the examination of the 
 prisoner before a magistrate, taken at several times, and reduced to writing by him : the 
 prisoner had declined to sign it, on its being completed and read over to him ; but acknow- 
 ledged it contained what he had stated, although he afterwards said there were many inac- 
 curacies in the statement he had given. The writing was not admitted as documentary 
 evidence, but as a memorandum to refresh the memory of the magistrate, who gave parol 
 evidence of the prisoner's statement. 
 
 (o) Thomas's case, 2 Leach, 637. See also Bradbury's case, ibid, 693, note (a). 
 
 \p) Rex v. John Sykes, Shrewsbury Lent Ass. 1830. Lambe's case, and Rex v. Telicote, 
 ante, p. 881, were cited. MSS. C. S. G. 
 
 {q) Rex v. Samuel Wilson, Shrewsbury Spr. Ass. 1830, MSS. C. S. G. Neither in this 
 case, nor in Rex v. Sykes, nor as far as appears in Rex v. Telicote, was it proposed to give 
 evidence by parol of what the prisoner said. The only point, therefore, decided in these 
 cases was that an examination neither assented to as correct, nor signed by the prisoner, is 
 not admissible as an examination duly taken under the statute by a magistrate. C. S. G. 
 
 (r) Rex v. Pressly, b 6 C. & P. 183. It has been well observed, that in this case, "it was 
 of no practical importance which course was adopted, but there appears no reason for 
 treating a prisoner's examination, which, although not signed by him, complies with all the 
 requisitions of the statute, as an informal document." Rose. Cr. Ev. 58. 
 
 a Eng. Com. Law Reps. iii. 442. *■ lb. xxv. 345.
 
 CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 882 
 
 soner says are taken down, and not read over to him, although they 
 could not be read as evidence against him, yet they might be used to 
 refresh the memory of the witness as to what the prisoner said. In 
 this case the prisoner admitted that the examination was correct ; where 
 that is the case I have always understood that it was a settled point 
 that the examination should be received. "(s) 
 
 Where the prisoner had been examined before the Lords of the Examina- 
 Council, and a witness took minutes of his examination, which were dowu in 
 neither signed by him, nor read over to him after they were taken ; it writing, 
 was held, that though they could not be admitted in evidence at a judi- ^" Vefresli 
 cial examination, yet the witness might be allowed to refresh his me- the wit- , 
 mory with them, and having looked at them, to state what he believed nesss 
 was the substance of what the prisoner confessed in the course of the 
 examination. (t) And if an examination before a justice of the peace 
 be taken in writing, under such circumstances of irregularity as preclude 
 the writing from being itself given in evidence, yet it may be proved, 
 as at common law, by some one who was present, as far as his recollec- 
 tion will enable him to state, that he heard the prisoner make the con- 
 fession, and if he were the person who wrote down the examination, 
 he may refresh his memory *with it. Thus, where the prisoner had *883 
 refused to sign his examination before the magistrate, or to admit its 
 truth ; Bayley, J., allowed parol evidence to be given of the prisoner's 
 statement, and permitted the magistrate's clerk to read over the exami- 
 nation to refresh his memory. (u) And in another case, Bayley, J., did 
 the same thing, and further held, that if the clerk who took it down at 
 the time could, on referring to it, recollect its contents, he might read 
 it.(v) And so where on an indictment for murder, the examination of 
 the prisoner by the coroner was inadmissible on account of an irregu- 
 larity in the mode of taking it, and thereupon, for the prosecution, it 
 was proposed to ask the coroner what the prisoner said on the occasion 
 of his examination ; and this was objected to, as being properly the 
 subject of the writing, and if that was not admissible, the inferior evi- 
 dence of the witness's recollection must be rejected ; but Tindal, C. J., 
 overruled the objection, and the coroner stated from memory so much 
 of what the prisoner said as was inquired to.(w\ 
 
 Where a prisoner had been examined before a magistrate, and his 
 examination reduced into writing by the magistrate's clerk, but nothing 
 appeared on the face of the paper to show that it was an examination 
 taken on a charge of felony, or that the magistrates who signed it were 
 then acting as magistrates; Patteson, J., is reported to have said, "the 
 clerk to the magistrates may be called to prove what the prisoner said, 
 and refresh his memory from the paper."(.x) 
 
 We have seen that the appropriate time for taking the examination Statements 
 of a prisoner by a magistrate, is after the witnesses have been examined, ™" s ° ne ^ 
 and he has heard what they have to say.(xx) A statement, therefore, before the 
 made bv a prisoner before that time, although taken in writing, is not, conclusion 
 properly speaking, an examination within the 7 Geo. 4, c. 04, and con- nidation ot 
 
 (s) Rex v. Uriah Daniel, Monmouth Spr. Ass. 1831, MSS. C. S. G. 
 
 (I) Layer's case, 16 How. St. Tr. 215. (?/,) Dewhurt's case, 1 Lew. 47. 
 
 (c) Hirst's case, 1 Lew. 47. 
 
 (w) Rex v. Reed, a M & M. 403. 
 
 \x) Rex r. T;irrant, b G C. & P. 182. (xx) Ante, p. 874. 
 
 a Eng. Com. Law Reps. xxii. 341. b lb. xxv. 345.
 
 883 OF EVIDENCE. [BOOK VI. 
 
 • > not admissible in evidence as an examination of the prisoner. 
 But, although an opinion was once intimated, that i: nothing which a 
 prisoner -fated before he knew what the evidence against him was, 
 ought to be used to criminate him."(y) Y fct il IS clearly settled that 
 any statement made by a prisoner, before a magistrate, and taken in 
 writing, though inadmissible as an examination, may be proved by the 
 person who took it down, he refreshing his memory by the written 
 paper. The prisoner and bis younger brother had been in custody since 
 the 17th of May, and various depositions had been taken between that 
 day and the 21st, on which day several depositions were taken in the 
 * ws ;4 presence of the prisoner, and the younger brother *was about to state a 
 confession made to him by the prisoner on the previous evening, when 
 the prisoner interrupted him and made a full confession of his guilt, 
 which the magistrate's clerk immediately reduced into writing, and it 
 was read over to the prisoner who put his mark to it, and it was attested 
 by the clerk : " Taken and signed by the said B., in the presence of," 
 &c. On subsequent days, other depositions were taken, some of them 
 in the presence, some in the absence, of the prisoner. It was objected, 
 that the confession was inadmissible, first because it was made before 
 all the evidence was gone through, and on this point Rex v. Fagg(^) 
 was relied upon ; secondly, that some of the depositions were taken in 
 the absence of the prisoner; thirdly, that there were interlineations and 
 erasures; fourthly, that there was a false attestation; and lastly, that as 
 the best evidence must be given, if the paper was inadmissible, the 
 parol statement of the clerk was not receivable; but Gaselee, J., having 
 asulted Lord Tenterden, ''. .[.. — r , 1*1, « Lord Tenterden agrees with me, 
 that the opinion of Mr. B. Garrow, in Bex v. Fagg, is much too general, 
 as it would go to exclude any acknowledgment of guilt made by a pri- 
 soner to a constable. He also agrees with me that the interlineations 
 and erasures are cured by the attestation, which cannot be called a false 
 attestation, though it would have been more regular to have said that 
 the prisoner put his mark, as i.~ customary in affidavits in the superior 
 court.-. We are both of opinion that it is no objection that some of the 
 depositions were taken in the absence of the prisoner. "We are also 
 both of opinion that the confession may be repeated by the magistrate's 
 clerk who heard it, and that he may refresh his memory by the aid of 
 the written paper. "(.-.j 
 
 t An examination before a magistrate must not be upon oath; and 
 " when an examination previous to committal purports to have been taken 
 upon oatli, evidence has been held inadmissible, to show that in fact it 
 was not so taken. (a \ 
 
 P< ' r - ■'■"■■•• igg,« 4 C. k P. 566. The statement of the prisoner in 
 
 ide before the evidence in support of the charge had been gone through, 
 
 v. );.. strong?/ inclined to think it was inadmissible, and after making the obf - 
 
 ted in the t< • i the taking such a- statement from the prisoner. The 
 
 ire might well have been spared, as it is undoubtedly the duty of the magistrate to take 
 
 whatever a prisoner may gay of his own accord at any time during the progress of the 
 
 ligation of I 'fore him. and cases frequently occur where the prisoners volun- 
 
 ong before the witnesses against them "have been examined. In Rex r. 
 
 rd Sum. J oftheprisoi jot before the no:.. 
 
 • ent, and npon such stafc mvicted before Gur- 
 
 ■ 8. <,. 
 
 583. Rex v. Bell,* 5 0. k P. 162. 
 
 » Eng. Com. Law Reps. xi.w *> lb. xxiv. 230.
 
 ('II A I'. IV. § II.] EXAMINATIONS IJKFORK MAGISTRATES. 884 
 
 1 1 is said by Lord Mali', (A) and upon liis authority it- is SO laid down Examine 
 
 in the subsequent (realises on die subject that an examination, taken ama _j g _ 
 before a magistrate, in order to lie read in evidence against a prisoner trate bow 
 must l»e proved on oath by the magistrate thai took it, or the clerk that pro ' 
 wioie it, to have been truly taken. 
 
 And where at (lie oloseof the case for the prosecution, the examina- 
 tion of one of the prisoners was offered in evidence against him, aud a 
 person who was present, and saw the prisoner and I lie magistrate sign 
 
 the examination, and heard the prisoner cautioned, was called to prove 
 
 these facta; it was objected, upon the authority of Lord Hale, that, this 
 
 writing was inadmissible, unless either the magistrate or his clerk proved, 
 that the examination was properly taken 5 and Patteson, J., after say- 
 ing that his own opinion was strongly opposed to such a doctrine, 
 yielded, nevertheless to the authority of Lord Hale, and refused to 
 
 admit the examination, hut added, that had it appeared that the ques- 
 tion had mainly turned upon the admission or rejection of the examina- 
 tion, he would have received the evidence, and reserved the point, and 
 that he by no means wished his present decision to be cited as a pre- 
 cedent.^-) 
 
 * Where on an indictment for larceny, it was proposed to put in the *885 
 prisoner's examination before the magistrate, and to prove it by a distinction 
 bystander] but the examination had the prisoner's mark to it only ; Xmiture 
 Lord Denman, C. J., refused to receive the evidence, unless it was and mark 
 proved by the magistrate or his clerk; lie observed that the necessity ofa i )rison " 
 of proving the deposition in this manner had been doubted, but the 
 distinction appeared to him to be, that where the examination of a 
 prisoner before a magistrate is taken down in writing and signed 
 with the prisoner's name, it need not be proved by the magistrate or 
 his olerk : but if not signed by him, or if his mark only be attached 
 to, it is necessary to be proved by the magistrate or the clerk; for 
 if the prisoner signs his name, this implies that he can read, and that 
 he has read the examination and adopted it. But if he has not signed 
 it, or has only put his mark, there are no grounds to infer that he can 
 read, or that he knows the contents, and no person can swear that the 
 examination has been correctly read over to him, except the person who 
 read Lt.(cc) 
 
 Hut where a constable swore that ho heard the prisoner make her Attesting 
 Statement, and saw the magistrate take it down, aud that it was read wltnoss- 
 over to her by the magistrate, aud she put her mark to it, after which 
 
 (/>) 2 P. 0. 52, 84. 
 
 le) Rex v. Richards, 1 M. k Rob. 39G, note. 
 
 (ec) Res v. Ohappel, I M. k Rob. 395, Aug. 11, 1834. In Smith's case, 2 Lew. 139, a 
 writing purporting to be the examination of a prisoner, and to bear his murk, was tendered 
 in evidence, and the magistrate's signature proved by a bystander, who stated that the 
 clerk was writing when the prisoner was examined, and when the examination was finished 
 he repeated to the prisoner, apparently from the paper, what the prisoner had said, and the 
 prisoner then put his mark to the paper; but whether the prisoner's statement was taken 
 down correctly, or at all, he had no means of judging. Rex ''■ Ohappel was cited, but, Parke, 
 1$., was disposed i" :i(linii the examination, as he thought there was sufficient prima facie 
 evidence that the prisoner's examination was taken down in fact, as the law requires, and 
 
 if so, that it miisl lie presumed to have been taken down correctly , and read over correctly, 
 until the contrary was proved. He conferred with Lord Denman, C. J., who entertained 
 doubts about the propriety of his former opinion, and thought it lit for the consideration of 
 the judges; hut as the examination was not essential in the present case, Parke, B., rejected 
 it. intimating that in any case in which it was necessary he would admit it, and tako the 
 opinion of the judges.
 
 885 OF EVIDENCE. [BOOK VI. 
 
 the constable put his name to it as attesting the mark, and the magis- 
 trate signed the examination as taken before him ; but the constable did 
 not see the contents of the paper which the clerk read over; Vaughan, 
 J., and Patteson, J., were of opinion that the examination was suffi- 
 ciently proved ; and Patteson, J., said that he was by no means satisfied 
 that it was in any case necessary to call either the magistrate or his 
 clerk. Some of the books did indeed so lay down the rule, and he had 
 reluctantly yielded to their authority on a recent trial on the Western 
 Circuit ;(d\ not, however, without expressing great doubt as to the pro- 
 priety of such a rule. The present case was, however, quite distinguish- 
 able from that ; here, there was an attesting witness, who had been 
 called to prove the fact which he attested. He was clearly of opinion 
 that the examination, so authenticated, was admissible in evidence against 
 the prisoner.(e) 
 *886 There are, however, many cases, some decided previously and some 
 It is not ne- subsequently to those which have been mentioned, which show that it 
 can either * s no * ne cessary to call either the magistrate or his *clerk, who took 
 the magis- down the prisoner's statement, but that it is sufficient to call a person 
 *i at k tfl hlS W ^ 10 was P resent > *° P r t* ve the taking of the examination and the signa- 
 prove the ture of the magistrate. (/) 
 takiDg of Thus, where on an indictment for murder, it appeared that the pri- 
 
 ttiG CX3.II11- 'ii x 
 
 nation. soner's examination had been taken down by the magistrate's clerk, 
 who was not present to authenticate it when produced at the trial ; and 
 it was objected, that it could not be received in evidence, although the 
 magistrate before whom it was taken had signed it, and was present to 
 prove his signature; Holroyd, J., held it to be sufficient, and it was 
 read.(</) And so where a constable, who was at the magistrate's whilst 
 the prisoner was under examination, was in and out of the room back- 
 wards and forwards, and absent at a time as much as two or three 
 minutes together, but saw the examination signed, Bolland, B., held 
 that the examination was admissible, as it must be presumed that the 
 magistrate had done his duty. (A) So where the examination produced 
 purported to be the examination of the prisoner, and was signed by the 
 magistrate and also by the prisoner; but there was no proof either that 
 it was taken from the prisoner's mouth, or that he had stated the facts 
 that were contained in it ; Parke, J., was of opinion, that the proof of 
 the two handwritings was sufficient, and he allowed the examination to 
 be read in evidence. (i) So where the only evidence in court, in addi- 
 tion to proof that it was the examination of the particular prisoner, was 
 that of a person who knew the magistrate's handwriting, by which the 
 examination was authenticated; Bosanquet, J., and Alderson, B., inti- 
 mated an opinion, that the statement might be read on proof of the 
 magistrate's handwriting, on the ground that the law required the 
 
 (d) Rex v. Richards, supra, note (c). 
 
 (e) Rex. v. Hope, 1 M. & Rob. 396, note. S. C. 7 C. & P. a 136, Feb. 4, 1834. In Rex v. 
 Taylor, 7 C. & P. 136, note. Tried before Patteson, J., a statement made by a prisoner 
 similarly proved was read without objection. 
 
 (/) It should seem that proof of the magistrate's signature alone would not be sufficient, 
 as that would only show that be had signed the examination of a person of the same name 
 as the prisoner ; but that there must be some evidence of the examination being that of the 
 prisoner's. C. S. G. 
 
 (g) Hobson's case, 1 Lew. 66, 1823. 
 
 (h) Rex v. Thomas Haines, Shrewsbury Spr. Ass. 1830, MSS. C. S. G. 
 
 (i) Priestley's case, 1 Lew. 74, 1831. 
 
 a Eng. Com. Law Reps, xsxii. 468.
 
 CHAP. IV. § II.] EXAMINATIONS BEFORE MAGISTRATES. 886 
 
 magistrates to certify that it had been duly taken ; and Alderson, B., 
 likened it to the case of an affidavit, where proof of the magistrate's 
 handwriting was evidence of the party's having been sworn. The 
 learned judges, in reference to Lord Hale's doctrine,^') said, it could 
 not be intended that the magistrate or his clerk must be called, on 
 account of their office ; but that any one who could show that the exa- 
 mination was duly taken would be sufficient. The confession, how- 
 ever, was not read, but the prisoner was convicted on other evidence. (&) 
 So where a prisoner's statement before the committing magistrate was 
 proved by a witness, who deposed to the signatures of the magistrate 
 and prisoner; Lord Denman, C. J., held that it might be given in *evi- *887 
 dence without calling the magistrate or his clerk. So where neither 
 the magistrate nor his clerk were in court, but a constable swore that 
 he was before the magistrate, and heard the statement of the prisoner 
 read over to him by the clerk, and proved the handwriting of the magis- 
 trate to the depositions returned to the court; Parke, B., allowed the 
 prisoner's statement to be read in evidence against him.(m) So where 
 on an indictment for attempting to set fire to a house, it appeared that 
 the prosecutor was present at the examination before the magistrate, 
 and proved that the prisoner made a statement, which was taken down 
 and read over to her by the magistrate, and to which she made her 
 mark, and the magistrate signed it, and the prosecutor knew the exa- 
 mination to be the same, as his own deposition, with his signature to it, 
 was on the same piece of paper ; Coltman, J., held that the statement 
 might be given in evidence, without calling either the magistrate or his 
 clerk. (n\ 
 
 In all serious cases, however, it is expedient, as a matter of caution, In serious 
 that the magistrate or his clerk should be called to prove the correctness ^Ltrate 
 of what he took down, although it is not strictly necessary.(o) or his clerk 
 
 And if there be any erasures or interlineations in the examination, the should be 
 person who took it down ought to be called to explain them. Upon an „ , ' 
 indictment for murder, it was proposed to prove the prisoner's examina- where there 
 tion before the coroner, by evidence of the handwriting of the latter, 
 and by calling a person who was present at the examination ; but it terl 
 appearing that there were certain interlineations in the examination, tions. 
 Lord Lyndhurst said he thought that the clerk who had taken down 
 the examination ought to be called, and the evidence was with- 
 drawn.^) 
 
 (/) Supra, note (b), p. 884. 
 
 (k) Rex v. Foster," 7 C. & P. 148, Aug. 20, 1835. It is not stated whether the examina- 
 tion was signed by the prisoner, or whether the witness who proved that it was the exami- 
 nation of the prisoner heard it taken or read over to her. In Rex v. Spencer, 1 C. & P. 260, 
 which was an indictment for perjury in an answer in Chancery, Lord Tenterden, C. J., said, 
 "The courts always give credence to the signature of the magistrate or commissioner; and 
 if his signature to the jurat is proved, that is sufficient evidence that the party was duly 
 sworn." The distinction between an affidavit and an examination of a prisoner consists in 
 this, that the affidavit is prepared by or on the behalf of the party making it, the examina- 
 tion of a prisoner is taken down by the magistrate or his clerk; in the one case, therefore, 
 the correctness of the statement depends on the party making the affidavit; in tho other, on 
 the magistrate or his clerk. C. S. G. 
 
 (1) Rex v. Rees, b 7 C. & P. 568, July 26, 1836. 
 
 (m) Rex v. Reading, 7 C. & P. 649, Dec. 16, 1836. 
 
 (n) Reg. v. Hearn, d 1 C. & Mars. 109, 1841. 
 
 (o) See Reg. v. Pikesley, e 9 C. & P. 124, post, p. 898, and Reg. v. Wilshaw/ 1 C. & Mars. 
 145, post, p. 898. 
 
 (p) Hrogan's case, Rose. Cr. Ev. 60, 1834. In Reg. v. Dwyers and others, tried for mur- 
 a Eng. Com. Law Reps, xxxii. 473. b lb. xxxii. 633. c lb. xxxii. 671. d lb. xli. 65. 
 e lb. xxxviii. 67. r lb. xli. 84. 
 
 are era- 
 sures or in- 
 inea-
 
 OF EVIDENCE. [BOOK VI. 
 
 As to the Where the examination of a prisoner has been regularly taken, and 
 eivinAhe * s regularly proved, it is read by the officer of the court. But where 
 examina- the written statement of a prisoner before a magistrate is inadmissible 
 tion in j^y reason of any irregularity in the taking of it;(<?) or because the pri- 
 soner neither assents to the correctness of the examination nor signs 
 it;(r) the proper course is for the magistrate, (s) or his clerk, (t) who 
 took down the statement in writing, to refresh his memory with it, and 
 state what the prisoner said. 
 
 So where a statement is made before the time for taking the prisoner's 
 examination, the proper course is for the person who took it down, to 
 give evidence of what the prisoner said, refreshing his memory with his 
 notes. (u\ 
 *888 *But if a statement is signed by a prisoner, or he makes his mark to 
 it, it is the proper course for the officer of the court to read it. (hm) 
 Where the Where the examination of a prisoner, put in on the part of the prose- 
 tion of a" cution, expressly refers to the deposition of a witness, the prisoner has 
 prisoner a right to have that deposition read in explanation of his examination. 
 thedVo ^ Q *^ e P ar * °^ ^ e P rosecut i° n > the examination of a defendant, taken 
 sition of a before a magistrate, was put in, and in it the defendant stated, that the 
 witness. deposition of a witness, which had been taken at the same time, and 
 before the same magistrate, was correct. Patteson, J., held that the 
 deposition of the witness might be put in and read as a part of the de- 
 fendant's statement, although the witness had been examined on the 
 trial as a witness for the prosecution, and although possibly his deposi- 
 tion might have the effect of contradicting his evidence on the trial. (w) 
 But unless the examination of a prisoner specifically refers to the depo- 
 sition of a particular witness, putting in the examination of the prisoner 
 on the part of the prosecution, will not entitle the prisoner to have any 
 of the depositions read, although they were all taken before the prisoner 
 made his statement, (w;) 
 
 The circumstance of some part of the prisoner's statement being omit- 
 ted by the magistrate, would not, it seems, render the examination in- 
 admissible if it had been read over to the prisoner, and he has assented 
 to its correctness. (cc) 
 
 der, Gloucester Sum. Ass. 1843, the deposition of the deceased was proved, and the name 
 of one prisoner was interlined, and the clerk who proved the deposition explained that the 
 deceased in the first instance did not speak to that prisoner, but after the examination had 
 been all taken down, on his attention being directed to that prisoner, he identified him as 
 one of the persons who had injured him. A stronger instance to show the necessity of the 
 clerk's attending could hardly be conceived. C. S. G. 
 
 (?) Rex v. Reed, a M. & M. 403, Tindal, C. J. Rex v. Bell, b 5 C. & P. 162, ante, p. 834. 
 
 (r) See the cases, ante, p. 881. 
 
 (*) Rex v. Jones, Carr. Sup. 13. 1 C. & P. 239, note (a), ante, p. 881, note («). 
 
 (t) Rex v. Watkins," 4 C. & P. 550, note (b), Bosanquet, J. 
 
 (u) Rex v. Bell, d 5 C. & P. 162, ante, p. 884. 
 
 (uu) Rex v. Swatkins, e 4 0. & P. 548, Patteson, J. 
 
 (v) Rex v. John/ 7 C. & P. 324. The report does not state at whose instance the deposi- 
 tion was put in. 
 
 (iv) Rex v. Pearson,* 7 C. & P. 671. Law, Recorder, after consulting Patteson and Wil- 
 liams, Js. 
 
 (z) Joy, 93, citing Milward v. Forbes, 4 Esp. 170. where an examination of the defendant 
 before commissioners of bankrupt was admitted in evidence by Lord Ellenborough, C. J., 
 although it was proved that the defendant had said more than was taken down, the com- 
 missioners having taken down only what they considered relevant upon the ground that the 
 party having signed it after he heard it so stated from his own words, and read over to him 
 before he signed it, it must be taken to be a statement of facts admitted by him. 
 
 a Eng. Com. Law Reps. xxii. 341. b lb. xxiv. 256. ° lb. xix. 523. d lb. xxiv. 256. 
 e lb. xix. 520. f Ib.xxxii. 526. s lb. xxxii. 681.
 
 CHAP. IV. § III.] DEPOSITIONS. 888 
 
 The prisoner is not to be precluded from showing, if he can, that 
 omissions have been made to his prejudice; for the examination has 
 been used against him as an admission, and admissions must be taken 
 as they were made, the whole together, not in pieces, nor with partial 
 omissions. Even the prisoner's signature ought not to estop him from 
 proving, if he can, such ommissions ; if the truth is, that omissions were 
 made to his prejudice, the fact should be proved, and the prejudice no 
 longer suffered to exist.(y) 
 
 *SECT. III. 
 Dejwsitions. 
 
 As examinations and depositions before magistrates originate from Deposi- 
 the same acts of parliament, and are in some respects guided by the tlons ? beforo 
 same decisions, it may be proper to consider the latter immediately after trates. 
 the former. f From what has already been mentioned, (a) respecting 
 *the examinations before magistrates, it has appeared that by the 1 & 2 *889 
 P. & M. c. 13, and 2 & 3 P. & M. c. 10, justices of the peace were l & 2 P. & 
 enabled and directed to take the depositions of witnesses in cases of 2 & 3 p. & 
 felony : and that by the 7 Geo. 4, c. 64, these statutes are repealed and M., c. 10. 
 re-enacted with an extension to misdemeanors, and the improvements g^ 0, ' 
 already pointed out. 
 
 Although there is nothing in these statutes providing that the depo- Witness 
 sitions taken under them shall in any case be evidence,(&) yet from the k gp t °^ ay 
 construction of the two former by the highest authorities, and upon by the pri- 
 general principles of evidence it may now be considered as a settled rule, 80ner - 
 that if it be previously proved satisfactorily to the court, that the witness 
 is dead(c) or that he has been keep away by the practices of the prisoner,(e£) 
 his deposition may be given in evidence on the trial of an indictment : 
 provided the deposition were duly taken upon oath(e) in the presence of 
 the prisoner, when charged before a magistrate. And it has been said Witness ill 
 that if a witness is prevented from attending by sickness or is unable to j) f th J! [j.™^ 
 travel, his deposition may be given in evidence, (ee) But it has been 
 
 (y) 2 Phill. Ev. 85. (a) Ante, p. 872, et seq. 
 
 (b) Mr. Starke in a very able note to the case of Rex v. Smith," 2 N. P. C. 211, observes 
 that the two statutes of Ph. & M. seem to have been passed without any direct intention on 
 the part of the legislature to use the examinations and depositions as evidence upon the 
 trials of felons. But the taking of them having been sanctioned by the legislature, they 
 became, it seems, admissible in evidence upon the rules and principles of evidence already 
 established ; and the effect of the statutes in point of evidence, seems to consist in removing 
 an objection which would before have occasioned the rejection of such evidence, namely, 
 that the proceeding was extra judicial. 
 
 (c) 1 Hale, P. C. 305. Bull. N. P. 242. 2 Phill. Ev. 71. 
 
 (d) Harrison's case, 4 St. Tr. 492, 5th Res. in Lord Morley's case, Kelwyn, 55. Fost. 
 Disc. 337. 
 
 (e) The statutes of Ph. & M. did not in terms require the informations to be taken upon 
 oath : though it was considered necessarily incidental to the duty of a magistrate so to 
 take them. But by the 7 Geo. 4, c. 64, ss. 2, 3, they are expressly required to be upon oath. 
 
 (ee) 2 Phill. Ev. 71. 1 Hale, P. C. 305. 2 Hale, P. C. 52. However, this was doubted, 
 upon very sensible grounds, by Mr. Starkie, 2 Evid. 383. In Lord Morley's case supra, 6th 
 Res., it was held that it was not sufficient to prove that all endeavours have been used in 
 vain to find the witness. 
 
 f [There can be no depositions in criminal cases without the consent of the defendant. 
 The People v. Restell, 3 Hill, 289]. 
 
 B Eng. Com. Law Reps. iii. 318.
 
 889 OF EVIDENCE. [BOOK VI. 
 
 since decided that if a witness be too ill to attend the trial, but there is 
 a probability that he may recover, his deposition is not admissible. The 
 prosecutrix was so near her confinement as to be unable to attend at 
 the assizes, and it was proposed to prove her depositions before the 
 magistrate, and 1 Hale, 586, Kel. 55, were relied upon ; Patteson, J., 
 " That has been doubted by Mr. Starkie,(/) and I think the evidence 
 is not admissible."^) 
 Permanent But if there be a permanent inability to attend, (A) as if the witness 
 inability to ^ e so [\\ t ]j at there is no probablity that he will ever be able to attend, 
 his deposition is admissible. The prosecutrix was an old woman bed- 
 ridden, and there was no probability that she would ever be able to 
 leave her house again, and Gurney, B., allowed her examination to be 
 read, saying, there would be no use in putting ofi" the trial till another 
 assizes, as there was no likelihood of her ever being able to attend. (i) 
 Where a witness, who was examined before the magistrate, and had 
 *890 been bound over to give evidence, had since gone to *sea, and was not 
 present at the trial, it was held that his deposition was not admis- 
 sible, but upon the counsel for the prosecution consenting that it 
 should be read, the court were of opinion that it might be given in 
 evidence. (M) 
 Witness in- Where a witness, who was examined before the magistrate, is insane 
 time of the a ^ ine ^ me °^ tne ^i&\, ne * s considered as in the same state as if he 
 trial. were dead, and his deposition may be given in evidence. (%t\ But in 
 
 such a case it should be shown that he was not insane at the time his 
 deposition was taken. Where on an indictment for murder it was 
 clearly proved that a witness who had been examined before the coroner 
 was insane at the time of the trial, and had been so for some time pre- 
 viously, but there was no evidence as to the state of the mind of the 
 witness at the time when he was examined before the coroner ; and it 
 was proposed to give his deposition in evidence, Park, A. J., said, 
 " there is one positive objection, that the witness might be insane when 
 he was examined before the coroner ;" and the deposition was re- 
 jected.^') But where on an indictment for night-poaching and assault- 
 ing W. Rickards, it appeared that he was suffering from delirium and 
 depression of spirits in consequence of a blow on the head, and his in- 
 tellects were affected by the injury, but it was probable that he would 
 recover ; it was held that if he was actually insane at the time of the 
 trial, his deposition taken in the presence of the defendant was receivable 
 in evidence, although the insanity might be temporary ; but the medical 
 witness being unable to state that he was at the time of the trial in a 
 state of insanity, the deposition was rejected. (k\ 
 
 (f) 2 Stark. Ev. 383. 
 
 (ff) Rex v. Savage," 5 C. & P. 143, and MSS. C. S. G. The proper course in such cases 
 is to move to postpone the trial upon an affidavit of the illness of the witness. Rex v. 
 Osborn, b 7 C. & P. 799, Bolland, B. C. S. G. 
 
 (h) Per Tindal, C. J. Rex v. Edmunds, 6 C. & P. 164. 
 
 (i) Rex v. Hogg, c 6 C. &. P. 176. Reg. v. Wilshaw, d 1 C. & Mars. 145, Coltman, J., post, 
 p. 898. 
 
 (hh) Reg. v. Hagan, e 8 C. & P. 167, Bolland, B. and Coltman, J. 
 
 (ii) Rex v. Eriswell, 3 T. R. 707, per Lord Kenyon, C. J., Ashurst, J., and Grose, J. 
 
 (/) Rex v. Charles Wall, Worcester Sum. Ass. 1830. See this case more fully stated, 
 post, p. 893. In Rex v. Eriswell, supra, the pauper, whose examination was in question, had 
 become insane after the examination was taken. 
 
 (k) Reg. v. Marshall,' 1 C. & Mars. 147, Ludlow, Serjt., after consulting Coltman, J. It is 
 not stated in the report when the blow on the head was inflicted. 
 
 a Eng. Com. Law Reps. xxiv. 246. b lb. xxxii. 741. e lb. xxv. 341. 
 
 d lb. xli. 84. e lb. xxxiv. 338. ' lb. xli. 85.
 
 CHAP. IV. § III.] DEPOSITIONS. 890 
 
 It has been said that the deposition of a witness beyond the sea was Witness at 
 adniissible,(Z) but it has recently been held that the deposition of a wit- t^onae 
 ness, who had been examined before the magistrate, and who had since trial, 
 gone to sea, is inadmissible. (m) 
 
 It is a general principle of evidence, that to render a deposition of any Deposi- 
 kind admissible against a party, it must appear to have been taken on * io ° s must 
 oath in a judicial proceeding, and that the party should have had an taken, 
 opportunity to cross-examine the witness. 0>i) Hence a deposition be- 
 fore a magistrate should be shown to have been taken conformably to 
 the statute, for otherwise it would be extrajudicial,^) and to have been and in the 
 taken in the presence of the prisoner, otherwise he could have had noP resence . 
 opportunity for cross-examination. f Thus in Woodcock's case, (who SO ner. P " 
 was tried for the murder of his wife,) where the magistrate, at the re- 
 quest of the overseers, visited the deceased, who had received a mortal 
 blow, and was then at the poor-house, and there in the absence of the 
 prisoner, took her examination upon oath, and reduced it into writing; 
 it was held by Eyre, C. B., that *such an examination was not admis- *891 
 sible as a deposition ; for it was not taken as the statute directs, in a 
 case where the prisoner was brought before a magistrate in custody ; 
 the prisoner therefore had no opportunity of contradicting the facts it 
 contained. (p) So in Dingler's case,^) where the magistrate, at the Dingler's 
 desire of the parish officers, went to the deceased at the Infirmary, to case - 
 which she had been taken for the purpose of receiving medical assist- 
 ance, and there in the absence of the prisoner(r) took her deposition 
 upon oath, which was reduced into writing, and her mark was set to 
 it ; the court, on the authority of Woodcock's case, held that the depo- 
 sition was inadmissible. (s) And it has also been held since the 7 Geo. 
 4. c. 64, that a deposition is inadmissible if it be taken in the absence 
 of the prisoner.(<) But where the greater part of the deposition of the 
 deceased, in a case of murder, had been reduced into writing in the 
 absence of the prisoner, but the deceased was afterwards re-sworn in the 
 prisoner's presence; and the deposition read over and stated by the de- 
 
 (l) Bull. N. P. 242, and see ante, p. 817. 
 
 (»i) Reg. v. Hagan, a 8 C. & P. 167, Holland, B., and Coltraan, J. 
 
 (re) Bv Hullock, B., in Attorney-General v. Davison, 1 M'Clel. & Y. 169. 
 
 (o) Rex v. Smith, b 2 Stark. N. P. C. 211, note (a). 
 
 (p) 1 Leach, 500. It was admitted, however, as a dying declaration. 
 
 (q) 2 Leach, 561. 
 
 (r) It may be remarked that in these two cases, independently of the absence of the pri- 
 soner, the deceased being then alive, the charge of murder could not have been preferred : 
 and as the statutes did not at that time extend to misdemeanors, the depositions might have 
 been objected to as taken extra-judicially : but in Radbourne's case, 1 Leach, 457, a depo- 
 sition of the deceased taken in the prisoner's presence was held by the twelve judges admis- 
 sible on the trial for murder. 
 
 («) In addition to these authorities may be mentioned the case of Rex v. Paine, 1 Salk. 
 281. S. C. 5 Mod. 163, cited by Lord Kenyon, in Rex v. Eriswell, 3 T. R. 722, where upon 
 a conference between the judges of the K. B. and C. P., it was held that the deposition of a 
 deceased witness was inadmissible, "the defendant not being present when they were taken 
 before the mayor and so had lost the benefit of cross-examination." It is remarkable, that 
 in the above mentioned case of Rex v. Eriswell, Grose, J., and Buller, J., were of opinion 
 that depositions taken by a justice of a person who afterwards died, though taken in the 
 absence of the prisoner, might be read, and the latter judge said it had been so determined 
 by all the judges in Radbourne's case. But on reference to the report of that case, 1 Leach, 
 457, it will be seen that the depositions were taken in the presence of the prisoner. 
 
 (t) Errington's case, 2 Lew. 142, Patteson, J. 
 
 f [The Stale Y.Webb, 1 Hayw. 105.] 
 8 Eng. Com. Law Reps, xxxiv. 338. b lb. iii. 318.
 
 SOI OF EVIDENCE. [BOOK VI. 
 
 ceased to be correct, and the rest of the deposition taken in the ordinary 
 way, in the presence of the prisoner, who was asked whether he chose 
 to put any questions; it was held by Richards, C. B., that the deposi- 
 tion was admissible, and a great majority of the judges upon a case 
 reserved were of opinion that the evidence had been properly re- 
 Russell's ceived.(w) So where upon an indictment against the prisoner as an 
 case. accessory before the fact, of inciting S. Wormsley to murder herself, it 
 
 appeared that Wormsley was sworn, and her examination taken in 
 writing; in the absence of the prisoner, but that she was afterwards re- 
 sworn in his presence, the deposition repeated, and she said it was all 
 true, and that she had made her mark to it. The prisoner then put 
 some questions to the deceased, and the magistrate's clerk swore that a 
 memorandum at the foot of the deposition contained the substance of 
 every question put and answer given : that the memorandum at the 
 foot of the deposition was 'written on the following morning by the clerk 
 *892 at bis office in the presence of *the magistrate. The examination was 
 objected to, as inadmissible under the 7 Geo. 4, c. 64, s. 2, being taken 
 upon oath; but Yaughan, B., allowed it to be read, and also the inter- 
 rogation of her by the prisoner, and her answer, which was also ob- 
 jected to. And upon a case reserved, the judges were clearly of opinion 
 that the deposition was inadmissible. (t) 
 Different In this respect there is a very striking difference between depositions 
 rule as to ^ e f ore a magistrate and before a coroner; for not only has it been set- 
 
 depositions .,',.,. . , , , -, , ,, , 
 
 before aeo-tied, that it any witnesses who nave been examined betore the coroner 
 roner. are dead or unable to travel, or kept out of the way by the means and 
 contrivance of the prisoner, their depositions may be read on the trial 
 of the prisoner,(«-) but the prevailing opinion seems to be that they are 
 equally admissible though the prisoner may have been absent at the 
 time of taking the inquisition .(j:\ The reasons given for this distinc- 
 tion usually are, that the examination before the coroner is a transac- 
 tion of notoriety to which every one has right of access ](y\ and that 
 the coroner is an officer appointed on behalf of the public to make in- 
 quiry about the matters within his jurisdiction ; and therefore the law 
 will presume the depositions before him to be duly and impartially 
 taken. (2) But these reasons and the authorities for the doctrine are 
 
 («) Rex v. Smith, Russ. & Ry. C. C. R. 339. S. C. 2 Stark. N. P. C. a 208. Holt. X. P. 
 C. 614. In a previous case, Rex v. Forbes, b Holt, N. P. C. 509, where the constable stated, 
 npon producing the deposition, that the prisoner was not present till a certain part of the 
 deposition, distinguished by a cross, at which period he was introduced and heard the re- 
 maining part of the examination ; and when it was concluded, the whole of the deposition 
 was read over to the prisoner, Chambre, J., refused to admit that part of the deposition 
 previous to the mark. 
 
 (v) Rex v. Russell, R. & M. C. C. R. 356, ante, vol. 1, p. 40. The objection to the depo- 
 sition was founded upon the fallacy of treating it as an examination of a prisoner, and of 
 applj-ing the rule that an examination of a prisoner upon oath is not admissible against 
 such prisoner, to the deposition of a prisoner taken on oath, and used as evidence against 
 another prisoner, in whose presence it was taken. C. S. G. 
 
 (w) Lord Morley's case, Kel. 55. Thatcher's case, Sir T. Jones, 53. Brownwich's case, 1 
 Lev. 180. Gilb. Ev. 124. Rex v. Stockley, 1 East, P. C. c. 5, s. 78, p. 310. ante, vol. 1, p. 
 620. 
 
 (x) 1 Phil. Ev. 372, 7th ed. Bull. N. P. 242. 
 
 (y) 3 T. R. 722. 1 Phill. Ev. 373, 7th ed., but in the case of Garnctt v. Ferrand, 6 B. & 
 C. 611 ; the court expressed an opinion that the coroner might exclude particular person?, 
 if he thought it necessary and proper so to do. 
 
 (z) Bull. X. P. 242. 
 
 • Eng. Com. Law Reps. iii. 316. t> lb. iii. 193.
 
 CHAP. IV. § III.] DEPOSITIONS. 892 
 
 certainly not at all satisfactory, and (as it has been remarked by a very 
 sensible writer,(a) who has collected and commented on the cases,) 
 since the distinction is not warranted by the language of the legislature, 
 and is unfounded on principle, it may, when the question arises, be a 
 matter of very grave and serious consideration whether it ought to be 
 admitted,(6) *and another learned writer, having formerly expressed a *893 
 different opinion, observes, in his last edition, that " there appears to 
 be no satisfactory reason why such a deposition should at the trial be 
 received in evidence, under circumstances which would render every 
 other kind of judicial depositions inadmissible. And it seems an 
 unreasonable and anomalous proposition to hold that, on a trial for 
 murder upon the coroner's inquest, a deposition taken before him in 
 the absence of the prisoner, is receivable in evidence ; but that if the 
 trial take place on a bill of indictment, a deposition so taken before 
 a magistrate is not receivable. The same principle which excludes 
 in the one case, ought, if it is just and sound, to exclude also in the 
 other." (c) 
 
 A marked distinction exists between the situation in which a prisoner Distinction 
 stands, when he is before a magistrate on a charge of felony or misde- ^position 
 meanor, and when he is present during the time a coroner is holding of a priso- 
 an inquest : and this distinction seems to have been acted upon in the ner before 
 
 1 . , . p , . ii a c o ron er 
 
 following case. Upon an indictment for murder it was proved that a and a ma- 
 witness who had been examined before the coroner, was insane at g lstrate - 
 
 (a) 2 Stark. Ev. 385. 
 
 (b) The 1 & 2 Ph. & Mary, c. 13, s. 5, enacted, "that every coroner, upon any inquisition 
 before him found, whereby any person shall be indicted for murder or manslaughter, or as 
 accessory before the murder or manslaughter, shall put in writing the effect of the evidence 
 given to the jury before him, being material, and shall certify the same evidence, together 
 with the inquisition or indictment before him taken and found at or before the time of the 
 trial thereof to be had." And by the 7 Geo. 4, c. 64, s. 4, (repealing the above mentioned 
 statute,) it is enacted, "that every coroner, upon any inquisition before taken, whereby any 
 person shall be indicted for manslaughter or murder, or as an accessory before the fact, 
 shall put in writing the evidence given to the jury before him, or as much thereof as shall be 
 material, and shall have authority to bind by recognizance all such persons as know or 
 declare anything material touching the said manslaughter or murder, or the said offence of 
 being accessory to murder, to appear at the next court of Oyer and Terminer, or gaol deli- 
 very, or superior criminal court of a county palatine, or great sessions, at which the trial 
 is to be, then and there to prosecute or give evidence against the party charged, and every 
 such coroner shall certify and subscribe the same evidence, and all such recognizances, and also 
 the inquisition before him taken, and shall deliver the same to the proper officer of the court 
 in which the trial is to be, before or at the opening of the court." It will be observed that 
 the principal alterations enacted by the latter statute are, that the coroner is to put in writ- 
 ing the evidence instead of the effect of the evidence, as directed by the former: and that 
 he is required to subscribe the evidence when taken. 
 
 (c) 2 Phil. Ev. 75. In the 7th ed. vol 1. p. 372, et seq., the learned author had contended 
 for the admissibility of such depositions. Where in an action brought by the plaintiff against 
 the defendant for running down his barge on the Thames, it appeared that a witness had 
 been examined before the coroner on the inquiry concerning the death of the plaintiff's son, 
 and since his examination had gone abroad; it was proposed on the part of the defendant 
 to read his deposition, taken on oath, before the coroner; and this was objected to on the 
 part of the plaintiff; Coleridge J., was of opinion that under the circumstances the deposi- 
 tion ought to be admitted, and being properly proved, it was read in evidence. Sills v. 
 Brown, 'J 0. & P. 601. The report does not state whether the deposition was taken in the 
 presence of the plaintiff, but probably it was, as he was the father of the deceased. It is 
 probable, also, that the witness was produced by the father as prosecutor; but even if that 
 were so, it is conceived that that would not make his deposition evidence against (he lather, 
 the distinction being that an affidavit used by a party is evidence of the lads contained in 
 it against such party, but neither the deposition nor the viva voce evidence of a witness is 
 evidence against the party calling the witness. Brickell v. Hulse," 7 A. k E. 454. Gard- 
 ner v. Moult, b 10 A. & E. 464. C. S. G. 
 
 a Eng. Com. Law Reps, xxxiv. 144. b lb. xxxvii. 147. 
 
 Vol. ii.— 58
 
 893 OF EVIDENCE. [BOOK VI. 
 
 the time the deposition was taken. Part of the deposition had 
 been taken in the absence of the prisoner, and part in his presence, 
 but the whole was read over in his presence ; and it was proposed 
 to give this deposition in evidence, and 1 Phill. Ev. 369, 373, re- 
 ferred to, in order to show that the deposition was admissible where 
 the witness had become insane ; and Rex v. Sniith,(rf) to show that 
 reading the whole over in the presence of the prisoner rendered it 
 admissible. Park, J. A. J., " There is one positive objection, that the 
 witness might be insane when he was examined before the coroner. 
 Secondly, the 7 G-eo. 4. c. 64, makes a strong distinction between ma- 
 gistrates and coroners. There is a charge made before a magistrate ; 
 but I cannot call it a charge before a coroner. In Rex v. Smith the 
 deposition was taken in a common felony, and there the question was, 
 whether a deposition taken on one charge could be evidence on 
 another. I will not receive this deposition. I think it safer not to do 
 so."(e) 
 *894 *If * ne depositions were duly taken in conformity to the statute, they 
 Deposi- are receivable in evidence, after the death of the deponent, not only 
 tions i ad- U p 0n the trial of the prisoner for the offence with which he was charged 
 upon trial at the time they were taken, but upon an indictment for any other 
 of a differ- offence. Thus a deposition was held admissible in a case of murder, 
 ' although it was taken when the prisoner had been brought before two 
 magistrates upon a charge of an assault upon the deceased, and also 
 upon a charge of robbing a manufactory which the deceased had been 
 employed to guard. (/) 
 Deposition The statute does not require that the deposition should be signed by 
 need not be ^ e p erson making it; nor is such signature necessary for its admissibility. 
 deponent. Upon an indictment for a rape, all the judges were of opinion that the 
 depositions of a girl, since deceased, upon whom the offence had been 
 committed, taken on oath before the committing magistrate, might be 
 read in evidence, although it was not signed by her.(#) 
 Must be by The magistrate himself, however, by the 7 Geo. 4, c. 64, ss. 2 & 3, 
 magistrate. j s required to subscribe the examinations and informations taken by 
 
 him. 
 One signa- Where the deposition of a prosecutor was regularly taken and read 
 t.ure to se- over - in t ^ e p resence of a prisoner, and he had an opportunity of cross- 
 sitions on examining the prosecutor, and two other witnesses were examined at 
 the same the same time, and the depositions of all three were on the same sheet 
 per. 6 P " of paper, the prosecutor's being first, and there was only one signature 
 of the magistrate, which was at the end of the last deposition, but not 
 
 (d) Infra, note (/). 
 
 x e) Rex v. Charles Wall, Worcester Sum. Ass. 1830, MSS. C. S. G. The distinction taken 
 by the learned judge seems deserving much consideration. The ground on which a deposi- 
 tion before a magistrate is admissible is that the prisoner being there to answer a charge, 
 has the right to cross-examine the witnesses. In many cases before coroners, even if the 
 prisoner be present, there is no charge, and perhaps no suspicion against him, and it may 
 be doubted whether in strictness under any circumstances he has a right to cross-examine 
 the witnesses; and if there were no charge in fact made against him, his interference would 
 be an unwarrantable interruption of the proceedings. See the observations of Parke. B., in 
 Melen v. Andrews, ante, p. 865. C. S. C. 
 
 (/) Rex v. Smith, 8 Russ. & Ry. C. C. R. 339. S. C. 2 Stark, N. P. C. 208. Eleven of the 
 judges met. Abbott, J., thought the evidence ought not to have been received. Dallas. J., 
 Graham, B., Richards, C. B., and Lord Ellenborough stated that they should have doubted 
 of the admissibility of the evidence, but for the case of Rex v. Radbourne, 1 Leach, 437. see 
 supra, p. 891, note (r). 
 
 (g) Rex v. Fleming, 2 Leach, 354, and see Rex v. Russell, ante, p. 892. 
 a Eng. Com. Law Reps. iii. 316.
 
 CHAP. IV. § III.] DEPOSITIONS. 894 
 
 in terms confined to it, being "sworn before me;" it was held that 
 after the proof by the magistrate's clerk of the manner in which it had 
 been taken, the deposition of the prosecutor was admissible. (A) But 
 where one Winter, who had been examined and cross-examined before On different 
 the magistrates, died before the trial, and his depositions were duly slieets - 
 signed by the magistrates, but the cross-examination, which had taken 
 place on a subsequent day, was not signed by the magistrates, but the 
 depositions of two other witnesses on the prisoner's behalf, which had 
 been taken at the same time with the cross-examination of Winter, were 
 pinned up along with it, and the last sheet of the whole was signed by 
 the magistrates; Alderson, B., after consulting Parke, B., said, if 
 the magistrate's clerk could state that the sheets were all pinned 
 together at the time the magistrates signed the last sheet, he thought 
 he must receive the whole in evidence, but neither the magistrate's 
 clerk nor one of the magistrates being able so to state, the deposition 
 as well as the cross-examination was rejected, although the magis- 
 trate stated that all the sheets were lying on the table when he 
 signed them. (A 
 
 *And since, as in the case of examinations, it will be intended that *895 
 the magistrate, according to his duty, took the deposition in writing, Parol evi- 
 parol evidence of the information is inadmissible, till it is shown that c j ence ° f a 
 it was not reduced to writing.^/) 
 
 "If the magistrate took the information regularly upon oath in the Evidence 
 presence of the prisoner, and subscribed it, but instead of taking all on ^ he imrt 
 that was material, as he ought to have done, in pursuance of the statute, Crown is 
 omitted some material parts of the witness's statement, parol evidence n . ot adm is- 
 of the parts omitted cannot be received : for the statement which has to or vary 
 been omitted, though upon oath, and open to cross-examination, cannot adeposi- 
 be received as part of a judicial proceeding, the magistrate not having lon " 
 proceeded in conformity with the statutes, nor can such supplemen- 
 tary evidence be received upon general principles. (k) In the case of 
 Kex v. Thornton, on a trial for murder, Mr. J. Holroyd ruled that 
 parol evidence could not be admitted, either to add to or vary a deposi- 
 tion. "(m) 
 
 Where on an indictment for perjury, alleged to have been committed 
 
 (h) Reg. v. Osborne, a 8 C. & P. 113. Coleridge, J., after consulting Lord Abinger, C. B., 
 said, " If it had been the case of an affidavit, it would have been bad, but that is on account 
 of an arbitrary rule." 
 
 (?) Reg. v. France, 2 M. & Rob. 207. 
 
 (J) Rex v. Fearshire, 1 Leach, 202. 
 
 (k) 2 Phill. Ev. 72. This paragraph was not in the 7th ed., where Rex v. Thornton is 
 cited in the same brief manner as in the last ed. C. S. G. 
 
 (I) Warwick Sum. Ass. 1817. No such point appears to have occurred on the trial, as 
 reported by Mr. J. Holroyd. 
 
 (m) 2 Phill. Ev. 72. The case of Rex v. Thornton is so briefly stated that it is hardly pos- 
 sible to ascertain with precision what the ruling of the very learned judge was. If the evi- 
 dence were offered to contradict the deposition, it would seem to be properly rejected. If it 
 were to add matters not contained in it, the decision seems questionable after the decision 
 of Rex v. Harris, ante, p. 876, which is a stronger case. As the magistrate in taking depo- 
 sitions is at liberty to put only so much in writing as shall be material, there is no pre- 
 sumption that he has put down everything that the witness may have said; and instances 
 so frequently occur, in which many things, which appeared before the magistrates perfectly 
 immaterial, prove very important on the trial, that it may well deserve further consideration, 
 if such a question were to arise, whether evidence were not admissible on the part of the 
 prosecution to add a deposition. C. S. C. 
 
 a Eng. Com. Law Reps, xxxiv. 318.
 
 895 OF EVIDENCE. [BOOK VI. 
 
 on the hearing before a magistrate of an information for sporting with- 
 out a same certificate, to prove what the defendant swore before the 
 magistrate, his deposition taken in writing before the magistrate was 
 put in; Park, J. A. J., held that a witness could not be called to 
 depose to other things stated by the defendant when he was examined 
 as a witness before the magistrate, but which were not contained in the 
 written deposition. (n) 
 *g9(3 Although the 7 Geo. 4, c. 64, s. 3, has extended the admissibility of 
 Deposi- depositions taken before a justice, so as to include those taken on a 
 tiona in ca- c h ar „. e f misdemeanor, yet as regards high treason the law remains 
 1 the same as under the statutes of Philip and Mary, and, therefore, on 
 
 son 
 
 an indictment for treason they continue inadmissible. (o) 
 maybe 1 ™ One of the objects of passing these statutes was to enable the judge 
 usedtocon- an( ] j ur y before whom the prisoner is tried, to see whether the evidence 
 nT"! 01 Wt °f tne witnesses at the trial is consistent with the account given by them 
 
 (n) Res v. Wylde, a 6 C. & P. 680. See ante, p. 666, note (n), and Rex t>. Edmunds, b 6 C. 
 k P. 164, ante, p. 886. With reference to cases where the magistrate has not taken the evi- 
 dence of a witness in writing, Mr. Phillipps observes, " If the magistrate has not taken in 
 writing the information of a witness, it is clear that no proof can be admitted after his 
 death of what he said before the magistrate ; or if the magistrate took the information in 
 writing but irregularly, as for instance, if the witness was not sworn, or the magistrate did 
 not subscribe, it is equally clear that after the witness's death parol evidence of his infor- 
 mation will not be admissible ; for such evidence would have not been admissible except by 
 virtue of the statute, nor is it admissible since the passing of the statute, the statutory regu- 
 lations not having been complied with ; the written information is the primary and best 
 proof of the information, and the irregularity of that primary evidence is not a sufficient 
 ground for receiving evidence of a secondary or inferior nature." In this passage (which 
 does not appear in the 7th edition), the observations must be taken to apply to " an exami- 
 nation taken in the presence of the prisoner," and taking them so to apply, it may admit of 
 considerable doubt whether they are well founded. The deposition of a witness is not 
 admissible because it is in writing, under the statute, but because it is taken in the presence 
 of the prisoner, and he has had an opportunity of cross-examining the witness ; and it is 
 conceived that at common law the rule is well established, that the testimony of a deceased 
 witness, who has been examined upon oath on a former occasion in a proceeding between 
 the same parties, on the same subject-matter, is admissible in a subsequent proceeding be- 
 tween the same parties relative to the same subject-matter, and may be proved by any one 
 who heard the evidence given. And this rule extends to criminal as well as civil proceed- 
 ings, see ante, p. 752. Now in all the criminal prosecutions the queen is considered as 
 the prosecutrix, both before the magistrate and on the trial. The parties, therefore, 
 before the magistrate, and on the trial, are the same, and consequently the evidence of a 
 deceased witness examined in the presence of the prisoner before the magistrate might, at 
 common law. be proved by parol on the trial of the prisoner. But the statute having 
 required the magistrate to put the evidence in writing, such writing is the best evidence of 
 what the witness said. It is submitted, however, that in case no part of the evidence were 
 taken down, parol evidence would be admissible of what the witness said. The statute 
 has directed the examination of a prisoner to be taken in writing, and yet if that be not 
 done parol evidence is admissible, because such parol evidence was admissible at common 
 law. Lambe's case, 3 Leach, 552. The observations of the judges in this case furnish a 
 strong argument, by analogy, in support of the view here contended for. It might be further 
 contended that what was said by a witness in the presence of the prisoner, before a magis- 
 trate was admissible at common law as a statement made in the prisoner's presence, to 
 which he might not only reply, but which he w r as called upon expressly to answer. See 
 Rex v. Edmunds, 6 C. & P. 164, where Tindal, C. J., admitted evidence of what a deceased 
 prosecutor swore in the presence of the prisoner on an examination before a magistrate for 
 committing the assault, from the effects of which the deceased died, " as producing an 
 answer and like any other conversation." And see the observations of Parke, B., in Melen 
 v. Andrews, ante, p. 865. C. S. G. 
 
 (o) 2 Phill. Ev. 70. Fost. 337. 1 Hale, 306. The 9 Geo. 4, c. 30, s. 2, enacts, " that 
 every offence which before the commencement of this act would have amounted to petit 
 treason, shall be deemed to be murder only, and no greater offence ; and all persons guilty 
 in respect thereof, whether as principals or accessories, shall be dealt with, indicted, tried, 
 and punished as principals and accessories in murder." 
 
 a Eng. Com. Law Reps. xxv. 447. b lb. 334. • lb. 334.
 
 CHAP. IV. § III.] DEPOSITIONS. 896 
 
 before the committing magistrate ;(p\ and therefore an information, 
 when judicially and regularly taken, may be used on the part of the 
 prisoner, when the informant gives his evidence at the trial, to contra- 
 dict his testimony. Thus it was admitted in Lord Stafford's case,(§) 
 that the depositions of a witness, taken before a justice of the peace, 
 might be read at the desire of the prisoner, in order to take off the credit 
 of the witness, by showing a variance between the deposition and the 
 evidence given in court viva, voce. And not only on the part of the 
 prisoner, but of the crown, depositions may be so used, even for the 
 purpose of impeaching the credit of a witness called for the prosecution. 
 Thus in Oldroyd's case,(Y) where the counsel for the crown, by the oldroyd's 
 direction of the judge, unwillingly called the prisoner's mother, (her case - 
 name being on the back of the indictment, as having been examined *by *897 
 the grand jury,) and her evidence was in favour of the prisoner, Gra- 
 ham, B., ordered her deposition before the coroner to be read, for the 
 purpose of affecting the credit of her testimony, by showing its variance 
 from the deposition. And the twelve judges held, that it was compe- 
 tent for the judge to do so; and Lord Ellenborough, C. J., and Mans- 
 field, C. J., thought the prosecutor also had the same right. 
 
 And where a witness for the prosecution, on being examined, gave a Boyle "s 
 different account of the transaction from what he had deposed to before case - 
 the committing magistrate, and the counsel for the prosecution proposed 
 to contradict him by proving the deposition, which was objected to on 
 the part of the prisoner ; Bayley, J., after consulting Holroyd, J., 
 admitted the proposed contradictions. (s\ And so where a witness on the Hallett's 
 trial gave a different account of the transaction from that which she case * 
 gave before the magistrate, Coleridge, J., on the application of the 
 counsel for the prosecution, allowed the two depositions made before by 
 the witnesses before the magistrate to be identified as such, and then 
 read to the witness, and she was examined upon them by the learned 
 judge, (r) 
 
 But where a witness, who had been examined before a magistrate, Tunni- 
 gave a statement in court more favourable to the prisoners than that s 
 
 ° r case. 
 
 which he had made before the magistrate, and it was proposed on the 
 part of the prosecution to put in his deposition, and Oldroyd's case was 
 
 (p) Seethe judgment delivered by Grose, J., in Lanibe's case, 2 Leach, 558. 2 Phil. Ev. 1(i. 
 
 (q) 3 St. Tr. p. 131. 2 Phill. Ev. 76. 
 
 (V) Russ. & Ry. C. C. R. 88. In Wright v. Beckett, 1 M. & Rob. 414, Lord Denman, C. 
 J., after citing this case, observed, " This decision does not incur the danger of collusion, 
 as the parties who conducted the prosecution neither called nor contradicted the witness. 
 But it proves that a former declaration may be given in evidence to contradict what the 
 same witness has sworn to on the trial, notwithstanding the danger of the declaration being 
 believed, and acted on as evidence in the cause ; and it prepares the mind for considering 
 the very question now before us. For the prosecutor would have undoubtedly been justified 
 in expecting the evidence in court to agree with that given before the coroner, and in sum- 
 moning the witness into the box with that expectation. If he had done so, and had heard 
 her with astonishment gainsay the deposition from which he examined her, could he have 
 been prevented from neutralizing the evidence, and defeating the attempted fraud, by laying 
 that deposition before the jury?" See the cases collected in the section " of impeaching the 
 credit of witnesses." 
 
 (s) Rex v. Boyle, cited in Wright v. Beckett, 1 M. & Rob. 422, by Lord Denman, C. J., 
 who added, " I am bound to add that that eminent judge has no remembrance of this deci- 
 sion, and find, on debating the mattter with him, that his present opinion is against it. But 
 I cannot help thinking that Rex v. Oldroyd, appeared to him when cited, as it does to me, a 
 conclusive authority for the principle now under controversy." 
 
 (t) Reg. v. Hallett, a 9 C. & P. 748. 
 
 a Eng. Com. Law Reps, xxxviii. 318.
 
 S97 OF EVIDENCE. [BOOK VI. 
 
 relied upon ; it was objected that the opinion there expressed was extra- 
 judicial, and that the counsel for the prosecution had no right to call 
 a witness, and in case he gave evidence against the prosecution to dis- 
 credit him. Bolland, B., said, " I do not think the case cited is an 
 express authority. I agree that I can only look at the deposition as 
 destroying the credit of the witness, and therefore I shall not allow the 
 Ball's case, deposition to be read."(w) So where a witness called for the prosecu- 
 tion contradicted the prosecutor as to the fact of the prisoner having 
 been at her house as stated by the prosecutor, and in order to do away 
 with the effect of the evidence of the witness, which, if believed, dis- 
 proved the whole case for the prosecution, it was proposed, on the part 
 of the prosecution, to prove that the statements made by the witness 
 before the magistrate, were wholly inconsistent with the account given 
 at the trial ; the evidence was rejected, and per Erskine, J., " You can- 
 not put in evidence for the purpose of discrediting your own witness. 
 You may call other witnesses to prove the facts denied by this witness, 
 and incidentally contradict her, and show her to be unworthy of credit; 
 but you cannot call a witness or give evidence not otherwise admissible 
 for the purpose of discrediting your own witness."^) 
 *898 Before depositions can be read against the prisoner, it has been *said 
 
 Deposi- that it must be proved by the justice or coroner who took them, or the 
 iustices of 6 c ^ er ^ that wrote them, that they were truly taken. (w) 
 the peace, But it has been held that a deposition may be proved by any person 
 how prov- w k was p resen t and saw it taken. The depositions in a capital case 
 were proved to have been signed by the magistrate, but it appeared that 
 not having any clerk he took them himself; and it being necessary to 
 read them in evidence to contradict a witness; Parke, B., said, that in 
 so serious a case it was very desirable that the magistrate himself should 
 be present to prove the correctness of what he took down, although in 
 point of law it was not absolutely necessary, (a*) So where the prose- 
 cutor being quite infirm and bedridden, and not likely ever to bear a 
 journey to the assizes, a constable proved that he saw the magistrate 
 take down what the prosecutor said in the presence of the prisoner, and 
 that the deposition was all in the handwriting of the magistrate, except 
 the cross at the bottom of it, which the constable saw the prosecutor 
 make ; and it was objected that the deposition ought not to be read 
 without calling either the magistrate or his clerk ; Coltman, J., "It is 
 very proper, as a matter of caution, that the magistrate or his clerk 
 should be called in all cases where it can be conveniently done, but I 
 think it is not necessary in point of law.'Vy) 
 Proof of Where it was proposed to prove the deposition of a witness in order 
 
 Reposition t cross-examine her upon it, and neither the magistrate nor his clerk 
 
 in order to ... . i ,1 • i • -i i -, , ■, 
 
 examine were at the assizes, and the witness denied her mark to the deposition; 
 
 upon it. but a constable, who was present before the magistrate when the wit- 
 ness was examined, proved the signature of the magistrate, but was 
 not sure that he saw the witness make her mark to it, though he recol- 
 
 (u) Rex v. TnnniclifFe, Stafford Spr. Ass. 1830, MSS. C. S. G. The learned baron also 
 refused to permit the clerk to the magistrate to prove that the deposition was correctly 
 taken in order to give the learned baron himself grounds for cross-examining the witness. 
 
 (v) Reg. v. Ball, a 8 C. & P. 745, Erskine, J., after consulting Patteson. J. 
 
 (w) 2 Hale, P. C. c. 52, 284. See England's case, 2 Leach, 770, as to proof of depositions 
 before coroners. 
 
 (x) Reg. v. Pikesley, b 9 C. & P. 122. (y) Reg. v. Wilshaw," 1 C. & Marsh. 145. 
 
 a Eng. Com. Law Reps, xxxiv. C16. b lb. xxxviii. G7. c lb. xli. 84.
 
 CHAP. IV. § III.] DEPOSITIONS. 898 
 
 lected seeing the pen in her hand, and heard her deposition read over 
 to her, and believed the deposition to be the same that was read over to 
 her, and his own deposition immediately followed it; Coleridge, J., 
 held that the deposition might be read to the witness to examine her 
 upon it.(s) 
 
 The 7 Geo. 4, c. 64, s. 2, provides that magistrates shall take " the As to the 
 information upon oath of those who shall know the facts and circum- ^" ner ot 
 stances of the case, and shall put the same, or as much thereof as sAa^down'the 
 be material, into writing." Consequently a magistrate is not bound by e ^' ide " et ' ° ; 
 law to return all that is stated, but only all that is material to the ne ssesbv 
 felony.(a) However, since the passing of the prisoner's counsel bill it magis- 
 has become of great importance that the depositions of witnesses should 
 be as fully and accurately taken as they conveniently may be, in order 
 that the witnesses may neither be liable to the imputation of having 
 made a different statement in court from that which they made before 
 the magistrate, nor of having stated facts in court which were not men- 
 tioned before the magistrate. In a case where several witnesses were 
 cross-examined, as to minute variances between their testimony in court 
 and their depositions taken before the magistrate ; Parke, B., observed, 
 " Magistrates are *required by law to put down the evidence of wit- *899 
 nesses, or so much thereof as shall be material. They have hitherto 
 in many cases confined themselves to what they deemed material, but, 
 in future, it will be desirable that they should be extremely careful in 
 preparing depositions, and should make a full statement of all the wit- 
 nesses say upon the matter in question, as the experience we have 
 already had of the operation of the prisoner's counsel bill, has shown us 
 how much time is occupied in endeavouring to establish contradictions 
 between the testimony of witnesses and their depositions, in the omission 
 of minute circumstances in their statements made before the magis- 
 trates, as well as in other particulars/ '(V) 
 
 Where a policeman stated a conversation between himself and a pri- 
 soner, which was material to the charge, and made against the prisoner, 
 and stated that he had told the magistrate the same conversation, though 
 it did not appear in the depositions ; and the counsel for the prisoner 
 complained of this as unfair, as it did not give the prisoner what the 
 law intended it should, viz., an account of the whole evidence against 
 him given before the magistrate; Lord Denman, C. J., said that he 
 thought the observation well founded, with respect to the omission in 
 the depositions, and that the magistrate ought to have returned all that 
 took place before him with respect to the charge, as the object of the 
 legislature, in granting prisoners the use of the depositions, was to 
 enable them to know what they had to answer on their trial. (c) 
 
 If the prisoner or his counsel cross-examine the witnesses when before 
 the magistrate, the answers of the witnesses to the cross-examination 
 ought to be taken down by the magistrate, and returned to the judge. (d\ 
 
 (z) Reg. v. Hallett,* 9 C. & P. 748. Coleridge, J., said, " Suppose there was no mark at 
 all, why should not a third person say that this was the paper that was read over to the ' 
 witness ? " 
 
 (a) Per Alderson, B., Rex v. Coveney, 8 7 C. & P. 667. 
 
 (b) Rex v. Thomas, 7 C. & P. 817. 
 
 (c) Rex v. Grady , d 7 C & P. 650. 
 
 \d) Rex v. Potter, 7 C. & P. 650, note. Gaselee, J., and Vaughan, B. 
 
 a Eng. Com. Law Reps, xxxiv. 616. b lb. xxxii. 679. ° lb. 750. 
 
 d Ib. 671.
 
 899 OF EVIDENCE. [BOOK VI. 
 
 Every de- It is the duty of magistrates to return to the court at which the pri- 
 
 r "f ltl "> u soner is to be tried, all depositions that have been taken at all the ex- 
 taken by a ' L , . . . 
 
 magistrate animations that have taken place respecting the otience which is to be 
 
 ■ i ._!Lt to be the ^1™^ of the trial. "Where a witness was examined before a ma- 
 
 returned, . J , , . . ,, „ ... ./> 
 
 whetherthe gistrate several times ; at the farst examination, no person was specin- 
 witness be ca ]] v charged with the offence, but what was said was taken down in 
 ornot_° ,Br writing; and this witness was taken into custody, and while in custody 
 as an accused person he made another statement, which was also taken 
 down by the same magistrate ; and on a subsequent day, the present 
 prisoner having been apprehended, the witness was again examined as 
 a witness; Alderson, 13., observed, "I have none of these depositions 
 but the last. Every one of them ought to have been returned to me, 
 as it is of the last importance that the judge should have every deposi- 
 tion that has been made, that he may see whether or not the witnesses 
 have at different times varied their statements, and if they have, to what 
 extent they have done so. Magistrates ought to return to the judge 
 all the depositions that have been made at all the examinations that 
 have taken place respecting the offence which is to be the subject of the 
 trial."(<?) 
 *900 And it is equally the duty of the magistrate to return the depositions 
 
 of witnesses who are not bound over; as, for instance, the depositions 
 of witnesses called by the prisoner to prove an alibi.^f) But if the de- 
 position of a witness has been taken after the prisoner has been commit- 
 ted, and in his absence, such examination ought not to be returned as 
 one of the depositions, for nothing should be returned as a deposition 
 against a prisoner, unless the prisoner had an opportunity of knowing 
 what was said, and an opportunity of cross-examining the person making 
 the deposition.^) 
 Of the ex- It is highly expedient to the furtherance of the ends of justice, that 
 periiency of w henever prisoners offer to produce witnesses before the magistrate, in 
 returning answer to the charge made against them, such witnesses should be regu- 
 the exami- ] a rly examined on oath, and their statements taken down in writing, 
 thepriso- anc ^ returned with the depositions. Whether the evidence so adduced 
 ner's wit- be true or false, it is very important that it should be received and 
 taken down. If it be true, it may be $o clear, positive and distinct as 
 to explain or contradict the evidence adduced in support of the charge, 
 in such a manner as completely to satisfy the magistrates that there is 
 " no sufficient ground for judicial inquiry" into the guilt of the party 
 charged ; in which case he ought to be discharged ; or the evidence 
 " adduced on behalf of the party charged" may, in the opinion of the 
 magistrates, " weaken the presumption" of the party's guilt, but there 
 
 (e) Rex v. Simons, 3 6 C. & P. 540. 
 
 {/) Rex v. Fuller," 7 C. & P. 269, Vaughan, J. 
 
 (g) Per Lord Denman, C. J., Reg. v. Arnold, 8 C. & P. 621. Strictly speaking, the words 
 of the very learned Chief Justice only shows that such an examination should not be 
 returned as a deposition, and it may perhaps be going too far to infer from them that such a 
 statement should not be returned at all. It is conceived if the examination, however irregu- 
 larly taken, were signed by the witness, it might be used for the purpose of contradicting 
 hiin, in the same way as any other instrument signed by him. It is conceived that magis- 
 trates have no jurisdiction to administer an oath after a prisoner has been committed, and in 
 his absence, and that it may admit of doubt whether the administering such an oath would 
 not render a magistrate liable to indictment under the 5 & 6 Win. ., c. 62, s. 13. See Reg. 
 v. Xott. d 1 C. & Mars. 288. ante, p. 673. Woodcock's case, 1 Leach. 500, and the judgment 
 of Grose, J., in Rex v. Eriswell, 3 T. R. 707. C. S. G. 
 
 a Eng. Com. Law Reps. xxv. 532. b lb. sxxii. 506. c lb. xxxiv. 556. d lb. xli. 161.
 
 CHAP. IV. § III.l DEPOSITIONS. 900 
 
 _ » 
 
 may "notwithstanding appear to thein to be sufficient ground for judi- 
 cial inquiry" into the party's guilt; in which case the magistrates 
 should admit the prisoner to bail. (A) And even in the evidence so ad- 
 duced should not produce either of these results, still it is important for 
 the sake of the prisoner, that his witnesses should be examined, and 
 their depositions returned, as he is thereby freed from the suggestion 
 often made at the trial, that the case endeavoured to be proved before 
 the jury has been concocted since the examination before the magistrate; 
 and if, as has been suggested, ft) the deposition of a witness, examined 
 on behalf of a prisoner before the magistrate, would be admissible in 
 evidence for the prisoner on his trial, in case of the death of such wit- 
 ness, it is but reasonable that the prisoner should have the depositions 
 of his witnesses taken, in order to be used in case of such an event. 
 On the other hand, if the evidence adduced be false, it is essential for 
 the ends of justice that it should be heard and taken down, in order 
 that the prosecutor may have the means before the trial of investigating 
 the facts deposed to, and the opportunity of testing the statements of 
 the witnesses, by comparing those made on the trial with those made 
 before the magistrate ; and, moreover, the taking the depositions would 
 serve as a *check upon the prisoner, against setting up a different *901 
 defence on the trial, and upon the witnesses against improving their 
 tale between the time of their examination before the magistrate and 
 the trial. (ii\ 
 
 Depositions are also sometimes taken in criminal cases, by the con-Deposi- 
 sent of the prosecutor and defendant, when a material witness is about /^."j™] 1 
 to leave the country, or resides abroad. (_/) But if the trial comes ontories by 
 before his departure, or after his return, the depositions cannot pe consent - 
 read. (A-) 
 
 Where an indictment or information is exhibited in the King's Bench, Deposi- 
 for an offence committed in India, the depositions of the witnesses may j™^ a in 
 be obtained under the provisions of the 13 Geo. 3, c. 63, s. 40, and s. 44. 
 This statute enacts, that the court may award a writ of mandamus to 
 the judges of the courts in India, as the case may require, for the ex- 
 amination of witnesses, who are to be examined publicly in the court, 
 upon oath administered according to the form of their several religions; 
 and these depositions duly taken and returned, in the form prescribed 
 by the act, are to be allowed, and deemed as good and competent evi- 
 
 (h) See the 7 Geo. 4, c. 64, s. 1, ante, p. 873, note (e), which shows what the duties of 
 magistrates are in these circumstances. 
 
 (i) See the reporter's note, 7 C. & P. 270. 
 
 (ii) Among the numerous cases which have given rise to these remarks, the following 
 may be mentioned : A prisoner was indicted for stealing a number of watches at Chelten- 
 ham ; when taken before the magistrates, he produced a number of witnesses from London, 
 and proposed to have them examined ; tins was refused; and upon the trial he produced 
 the same witnesses, and their evidence, if true, proved that at the time the watches were 
 stolen, the prisoner and the witnesses were dining at a particular house in London, keeping 
 the wedding day of the occupier of the house ; on the part of the prosecution nothing was 
 known of the witnesses or the house, and consequently there was little means for testing 
 their credibility ; the result was that the prisoner was acquitted ; and in a short time after- 
 wards it was well ascertained that the whole story was a fabrication, and might easily have 
 been proved on the trial to have been such, if it had been known that such a defence had 
 been intended, and that must have been known if the witnesses had been examined before 
 the magistrate. C. S. G. 
 
 (,/) Rex v. Morphew, 2 M. & S. 602. The court of K. B. allowed them to be read, on an 
 indictment for perjury, by consent of the defendant. Anon. 2 Chit. Ii. a 199. 
 
 (k) Tidd, 362. 2 Phill. Ev. 94. 
 
 a Eng. Com. Law P^eps. xviii. 305.
 
 901 OF EVIDENCE. [BOOK VI. 
 
 dence, as if the witnesses had been sworn at the trial, and examined 
 
 vivd voce. 
 In cases of Iq a case of a prosecution for an offence committed abroad by any 
 committed person employed in the public service, the depositions of witnesses 
 by public resident abroad may be obtained in the way pointed out by the 42 Geo. 
 S S 3,c.85. 
 
 ! 902 ^CHAPTER THE FIFTH. 
 
 Or WITNESSES. AVHAT FACTS "WITNESSES MAY DISCLOSE, AND WHAT 
 
 ARE PRIVILEGED COMMUNICATIONS. HOW WITNESSES ARE TO BE 
 
 EXAMINED. HOW THE CREDIT OF WITNESSES MAY BE IMPEACHED. 
 
 — HOW MANY WITNESSES ARE SUFFICIENT. HOW THE ATTENDANCE 
 
 OF WITNESSES IS TO BE COMPELLED AND REMUNERATED. — OF 
 
 ACCOMPLICES. AND WHAT WITNESSES ARE COMPETENT TO GIVE 
 
 EVIDENCE. 
 
 communi- 
 cations. 
 
 SECT. I. 
 
 Of privileged Communications , and other matters which a icitness may 
 
 not disclose.^ 
 
 Privileged A witness is to be sworn to speak the truth, the whole truth, and 
 nothing but the truth. But this form of oath, absolute as it seems, 
 must be taken with an implied reservation, that the witness is not to 
 disclose any facts within his knowledge, which, by the law of the land, 
 founded on considerations of justice, and of public policy, he is forbid- 
 den to make known. Of such a nature are professional communications 
 between a client and his attorney, solicitor, or counsel, and matters con- 
 nected with the government of the country. (a) 
 Between The law attaches so sacred an inviolability to communications be- 
 
 chent and tween a client and his legal advisers, tbat it will neither oblige nor suf- 
 
 attorney or e ' .9 
 
 counsel. fer persons so employed to reveal any facts confidentially disclosed to 
 them at any period of time, neither after their employment has ceased 
 *903 by dismissal or otherwise, nor after the cause *iu which they were en- 
 gaged is entirely concluded. (U) The privilege of not being examined 
 on such subjects is the privilege of the client, and not of the attorney 
 or counsel :(c) and it never ceases. "It is not sufficient," said Mr. J. 
 
 (a) It seems, however, to have once been thought necessary to vary the form of the oath 
 on an occasion of this sort. In the case of Spark v. Middleton. 12 Vin. Abr. Ev. B. a, 4, p. 
 38. 1 Keb. 505. Mr. Aylott having been counsel for the defendant, desired to be excused 
 to be sworn on the general oath as witness for the plaintiff to give the whole truth in evi- 
 dence, which the court, after some dispute, granted, and that he should only reveal such 
 things as he either knew before he was counsel, or that came to his knowledge since by 
 other persons ; and the particulars to which he was to be sworn, were particularly pro- 
 posed, viz., what he knew concerning the will in question; whether he knew anything of 
 his own knowledge. 
 
 {b) Lord Say and Seale's case, 10 Mod. 41. Wilson v. Rastall, 4 Term. Rep. 753, in the 
 judgment of Buller, J., Sloman v. Hearne, 2 Esp. N. P. C. 695. Rex v. Withers. 2 Campb. 
 578. Parkhurst v. Lowten, 2 Swanst. 194, 221. Richards v. Jackson, 18 Ves. 474. 
 
 (c) 10 Mod. 41. Bull. N. P. 284. But if the client waive his privilege, the \vitnc>? may 
 
 f {See on the subject of " Confidential Communications/' 2 Stark. Ev. 395-400, and cases, 
 American and English, there cited in notes.}
 
 CHAP. V. § I.] OF PRIVILEGED COMMUNICATIONS, ETC. 903 
 
 Buller,(^) " to say that the cause is at an end : the mouth of such a 
 person is shut for ever." And it makes no difference that the client is 
 not in any shape party to the cause before the court, (e) 
 
 The privilege is strictly confined to communications made to counsel, Rule con- 
 solicitors, and attorneys. (/) No other, however confidential, or w nat - afadvis-" 
 ever be the relation or employment of the party entrusted, are privileged, ers. 
 Therefore all other professional persons, whether physicians, surgeons, 
 or clergymen, are bound to disclose the matters confided to them. (17) 
 Thus, where the prisoner, being a Papist, had made a confession before 
 a Protestant clergyman of the crime for which he was indicted, that 
 confession was permitted by Buller, J., to be given in evidence on the 
 trial, and the prisoner was convicted and executed. (A) So a confession 
 to a Popish priest has been held not to be privileged. (/Jt)f So a banker,^') 
 steward, servant, or private friend, is bound to disclose a communica- 
 tion, however confidential. (y) And in a case where a clerk to the 
 commissioners of the property tax was required to prove the defendant 
 to be a collector, and he objected, because he had taken an oath of 
 office, not to disclose what he should learn as clerk concerning the 
 property tax, except with the consent of the commissioners, or by force 
 of an act of parliament, it was held that he was bound to give his testi- 
 mony; and that the evidence which a witness was called upon to give 
 in a court of justice, was to be considered as an implied exception in 
 the act.(&) An arbitrator cannot be permitted to disclose, in an action Arbitrator, 
 for a malicious holding to bail, what transpired before him upon the 
 examination of the parties, themselves, or on an inspection of the plain- 
 tiff's books, upon the principal that the parties themselves could not 
 have been examined in the former cause, nor the plaintiff compelled to 
 produce his books ;(l\ *but he may be called to prove what matters *904 
 
 be examined. Merle v. More, R. & M. N. P. C. 390. But he is not considered as waiving it 
 by calling his attorney as a witness. 1 Phill. Ev. 163, citing Waldron v. Ward, Styl. 449. 
 Vaillant v. Dodemead, 2 Atk. 524. 
 
 (rf) 4 T. R. 759. (e) Rex v. Withers, 2 Campb. 578. 
 
 (/) 4 T. R. 758. Rex v. Duchess of Kingston, 11 St. Tr. 246. 
 
 {</) Ibid. 
 
 (h) Rex v. Sparkes, cited in Du Barre" v. Livette, Peake, R. 78, in which latter case Lord 
 Kenyon said he should have paused before he admitted such evidence. But the point, that 
 confessions to clergymen are not privileged, has been fully established by the recent decision 
 in Rex v. Gilham, ante, p. 848. In Broad v. Pitt, a 3 C. & P. 518, Best, C. J., after recogniz- 
 ing this decision, said, " I for one, will never compel a clergyman to disclose communica- 
 tions made to him by a prisoner, but if he chooses to disclose them I shall receive them in 
 evidence." 
 
 (hh) Butler v. Moore, M'Nall. Ev. 253, as cited 1 Phill. Ev. 165. Where a witness had 
 taken an oath to a prisoner that he would not reveal what the prisoner should tell him ; 
 Patteson J., said, " These oaths are very wrong and wicked, but still they are not binding, 
 and every person, except counsel and attorneys, is compellable to reveal what they may 
 have heard; and counsel and attorneys are only excepted because it is absolutely necessary, 
 for the sake of their clients, that communications to them should be protected ;" and 
 admitted the confession. Rex v. Shaw, b 6 C. & P. 372. 
 
 (i) Lloyd v. Freshfield, 2 0. & P. 329. 
 
 (j) Valiant v. Dodemead, 2 Atk. 524. Lord Falmouth v. Moss, 11 Price, 455. 
 
 (k) Lee v. Birrel, 3 Campb. 337. 
 
 (1) Habershon v. Troby, 3 Esp. 38, by Lord Kenyon. 
 
 f [A confession made to a Roman Catholic Priest, is a privileged communication. Smith's 
 case, 2 Rogers's Record, 77. Phillip's case. See Sampson's Roman Catholic Question in 
 America. Pamph. Contra, per Gibson, C. J., in Simons' s Ex'r. v. Gratz, 2 Penn. Rep. 417. 
 But not a confession made to a Protestant divine. Smith's case, supra. See Commonwealth 
 v. Brake, 15 Mass. 161.] 
 
 a Eng. Com. Law Reps. xiv. 423. b lb. xxv. 443. ° lb. xii. 149.
 
 904 OF EVIDENCE. [BOOK VI. 
 
 were claimed before him on a reference :(m) he cannot, however, be 
 admitted or called on to give evidence of any concessions made by one 
 party during the reference for making his peace, and getting rid of the 
 suit, although, as to regular admissions by the parties, there is no ob- 
 Interpre- jection to his testimony. (/i) A person who acts as an interpreter,(o) or 
 A^ent ^is a gent,(j>) between the attorney and his client, or the attorney's 
 Clerk. clerk, (§) cannot be called on to reveal a confidential communication, for 
 they stand precisely in the same situation as the attorney himself, and 
 are considered his organs. So a barrister's clerk cannot be called to 
 prove his master's retainer. M 
 Person con- It has been held, that a person who is consulted confidentially on the 
 suited as an supposition of his being an attorney, when in fact he is not one, is com- 
 not being pellable to answer.(s) And propositions which the attorney of one party 
 one - has been professionally entrusted to make to another party, may be 
 
 proved by another witness who was present when they were delivered. (A 
 And an attorney may be called upon by a plaintiff to state a conversa- 
 tion in which the defendant proposed a compromise to the plaintiff, 
 although the witness attended on that occasion as attorney for the 
 Attorney defendant. («) And communications made to a person, by profession 
 notconsult- an attorney, but not employed as an attorney in the particular business 
 which is the subject of inquiry, are not privileged, though they may 
 have been made confidentially.^) 
 *905 Where two parties employ the same attorney, a communication by 
 Where two one to him in his common capacity is not privileged, but may be *used 
 
 (m) Martin v. Thornton, 4 Esp. 181, by Lord Alvanley. 
 
 (n) Slack v. Buchanan, Peake, N. P. C. 6. Westlake v. Collard, Bull. N. P. 236. Martin v. 
 Thornton, 4 Esp. 181. It is said in Bull. N. P. 284, thet a trustee shall not be a witness to 
 betray the trust; and a case is cited, Holt v. Tyrrell, where the defendant pleaded to debt 
 on bond, the statute of buying and selling offices, and upon the trial a witness was called 
 to give an account upon what occasion the bond was given, and Lord C. J. Holt refused to 
 admit him, because he was privately entrusted, by both parties, to make the bargain, and to 
 keep it secret. But this is contrary to the later authorities, and may be considered to 
 have been overruled by the Duchess of Kingston's case, and Wilson v. Rastall, ubi supra. 
 
 (0) Du Barre v. Livette, Peake, N. P. C. 78. (p) Parkins v. Hawkshaw, a 2 Stark. 239. 
 
 (?) Taylor v. Forster,b 2 C. & P. 195. See Webb v. Smith, 1 C. & P. 337. 
 
 (r) Foote v. Hayne, d Ry. & Mood. N. P. C. 165. 
 
 (s) Fountain v. Young, 6 Esp. 113. (t) Gainsford v. Grammar, 2 Campb. 10. 
 
 _ (u) Griffith v. Davies, e 5 B. & Ad. 502. And per Parke, J., " This is not a confidential 
 disclosure, but an open communication from one adversary to another, witnessed by the 
 attorney of one party. In Gainsford v. Grammar, the Lord Chief Justice might properly 
 reject the attorney's evidence of what his client said to him, but not his statement of what 
 he himself afterwards said to the opposite party." 
 
 (v) Wilson v. Rastall, 4 T. R. 753, 760, and see post, p. 910. In a trial at nisi prius at 
 Westminster, an attorney who had drawn an agreement between a sheriff and his under- 
 sheriff, being produced to prove a corrupt agreement between them, was not compelled to 
 discover the matter, and per Holt, C. J., it seems to be the same law of a scrivener ; and he 
 cited a case where upon a covenant to convey as counsel shall advise, et consilium non dedit 
 advisamentwm being pleaded, conveyances made by the advice of a scrivener being tendered 
 and refused, was allowed to be good evidence upon this issue ; for he is a counsel to a man 
 with whom he will advise, if he be instructed and educated in the way of practice, other- 
 wise of a gentleman, parson, &c, Anonymous, Skinn. 404. And in Turquand v. Knight, 2 
 M. & W. 98, it appeared that Knight had applied to an attorney to procure him a loan of 
 money, and it was contended that where an attorney was employed to raise money, that 
 was not such an employment as brought him within the rule ; and that here he was acting 
 as a scrivener only. Lord Abinger, C. B., said, " As to the point of this document being 
 brought to him in the character of a scrivener, Lord Nottingham laid it down that he would 
 not compel a scrivener to disclose the communications made to him." Harvey v. Clayton, 
 2 Swanst. 221, n. 
 
 a Eng. Com. Law Reps. iii. 332. b lb. xii. 85. « lb. xi. 410. 
 
 d lb. xi. 466. e Jb. xxvii. 114.
 
 CHAP. V. § I.] OF PRIVILEGED COMMUNICATIONS, ETC. 905 
 
 by the other.(?t>) And where a party employs an attorney who is parties em- 
 also employed by the other side, the privilege is confined to such p . loy th , e 
 communications as are clearly made to him in the character of his own torney. 
 attorney. (x\ 
 
 It now remains to be considered, what sort of communications made What sort 
 to an attorney, solicitor, or counsel by his client are entitled to protec- °^ co ™ mu - 
 tion. A very eminent writer on the Law of Evidence^) has laid it between 
 down, that the privilege of the client is not confined to cases only where attorn ey 
 he has employed the attorney in a suit or cause, but extends to all such ar e privi- 
 communications as are made by him to the attorney in his professional le ged. 
 character and with reference to professional business. And this opinion 
 has been confirmed by the Court of Common Pleas, in the case of 
 Cromack v. Heathcote,(z) where it was held that an attorney, to whom 
 an application had been made to draw an assignment of goods which 
 he declined to do, could not be allowed to disclose that circumstance, a 
 question having arisen whether an assignment subsequently drawn by 
 another attorney, was fraudulent. And in that case a very learned per- 
 son(a) said, that if an attorney were to be consulted on the title to an 
 estate, he would not be at liberty to disclose any information thus com- 
 municated to him to the prejudice of his client. And Sir J. Leach, Vice 
 Chancellor, in Walker v. Wildman,(6) considered the protection, to ex- 
 tend to every communication made by the client to his counsel, or at- 
 torney, or solicitor, for professional purposes. (c) And although Lord 
 Tenterden, C. J., on several occasions, both before and since the case of 
 Cromack v. Heathcote, expressed at Nisi Prius, a contrary opinion ;(d) 
 yet it is now clearly settled that the privilege of professional confidence 
 is not limited to cases, in which a suit is in contemplation, (e\ but that 
 the client's privilege extends much beyond communications in respect 
 of a suit.(_/) Thus, where it was proposed to ask an attorney whether 
 a person had not applied to him to draw a conveyance; Parke, J., re- 
 fused to allow the question to be asked, saying, "I am of opinion that 
 the privilege applies to all cases, where the client applies to the attorney 
 in his professional capacity, and an application to draw a deed is, I 
 think of that description."^) 
 
 (w) Baugh v. Cradocke, 1 M. & Rob. 182, Patteson, J. Cleave v. Powel, 1 M. & Rob. 228, 
 Lord Denman, C. J., saying, " either party has a right to the disclosure." 
 
 (a;) Perry v. Smith, 9 M. & W. 681,^er Parke, B. ; in which case it was held that the same 
 attorney having been employed upon the sale of an estate by the vendor and purchaser, a 
 communication from the purchaser to the attorney, asking him for time to pay the purchase 
 money, was not privileged. See Griffith v. Davies, per Parke, J., ante, p. 904, note (u). 
 
 (y) Phillipps on Evidence, 7th ed. 143. (z) 2 Brod. & Bing. a 4. 
 
 (a) Richardson, J. (b) 6 Madd. 47. 
 
 (c) And from the cases of Brad. v. Ackerman, 5 Esp. 120, and Robson v. Kemp, 5 Esp. 52, 
 it appears that Lord Ellenborough, C. J., was of the same opinion. 
 
 (d) Wadsworth v. Hamshaw, b 2 Brod. & Bing. 5, note (a). Manning's Dig. 374. Williams 
 v. Mundie, R. & M. N. P. C. 34. 
 
 (e) 1 Phill. Ev. 1G8. 
 
 (/) The opinion of Lord Chancellor Brougham, Tindal, C. J., Lord Lyndhurst, C. B., and 
 Parke, B., in Greenough v. Gaskell, d Mylne & K. 98, as stated 4 B. & Ad. 876, per Parke, B. 
 
 (ff) Duo d. Shellard v. IIarris, e 5 C. & P. 592. The learned Baron also held in the same 
 case that the attorney could not be asked whether the party had asked his advice for a law- 
 ful or for an unlawful purpose saying " there is a great deal of difficulty in the witness's 
 disclosing whether the conference between him and his client was for a lawful or unlawful 
 purpose, without one's being told what it was. It might be that the party asked if a par- 
 ticular thing could legally be done." The learned baron also said, that Williams v. Mundie 
 was overruled by Greenough v. Gaskell. In Howman v. Norton, 1 5 C. & P. 177, Tindal, C. 
 a Eng. Com. Law Reps. vi. 1. b lb. vi. 2. c lb. xxi. 375. d lb. xxiv. 178. 
 e lb. xxiv. 468. * lb. xxiv. 265.
 
 *906 OF EVIDENCE. [BOOK VI. 
 
 The rule is *I n a late case,(/i) Alderson, B., said, " The rule seems to be correla- 
 wklTthat 6 '* ve w * tn tna ' wn i° a governs the summary jurisdiction of the courts 
 which over attorneys." In Ex parte Aitken,(t) that rule is laid down thus : 
 governs the a "Where an attorney is employed in a matter wholly unconnected with 
 jurisdiction his professional character, the court will not interfere in a summary way 
 of the t com p e l him to execute faithfully the trust reposed in him ; but where 
 
 courts over 
 
 attorneys, the employment is so connected with his professional character, as to 
 afford a presumption that his character formed the ground of his em- 
 ployment by the client, there the court will exercise this jurisdiction." 
 So where the communication made relates to a circumstance so con- 
 nected with the employment as an attorney, that the character formed 
 the ground of the communication, it is privileged from disclosure. Thus 
 On sale of communications made in relation to the sale and purchase of estates are 
 estates. protected ; an attorney, therefore, who had been employed in the pur- 
 chase and sale of estates, cannot be asked as to a communication made 
 to him by the party who employed him. (7) So an attorney who, being 
 resorted to by a borrower to raise money for him, peruses on the part of 
 the proposed lender, the abstracts of the borrower, is not allowed to give 
 evidence concerning him.(&) 
 The privi- A communication made to a solicitor, if confidential, is privileged in 
 tends* 3 to all whatever form made ; if it would be privileged when communicated in 
 knowledge words spoken or written, it will be privileged equally when conveyed by 
 however means of sight instead of words.(£) For the privilege extends to all 
 knowledge that the attorney obtains, which he would not have obtained 
 but for his being consulted professionally by his client, (m) 
 Attorney An attorney will not be allowed to produce a deed which has been 
 to°produLe deposited with him confidentially in his professional character ; and if 
 documents, the deed has been obtained out of his hands, for the purpose of being 
 ited ith produced iu evidence by another witness, it cannot be received. Thus 
 him by his a copy of a deed which had been obtained from one who had formerly 
 client. been entrusted with the original in his professional character as an at- 
 *907 torney, is not good secondary *evidence against his client. (n) But this 
 
 J., held that a conversation between a client, who afterwards became bankrupt, and his 
 attorney's clerk, on the subject of his affairs, was a privileged communication, and could 
 not be given in evidence in an action by his assignees for the purpose of showing his mo- 
 tives. 
 
 (h) Turquand v. Knight, 2 M. & W. 98. 
 
 (i) 4 B. & Ald. a 47. See also Ex parte Yeatman, 4 Dowl. P. R. 304. 
 
 (j) Mynn v. Joliffe, 1 M. & Rob. 326, Littledale, J. 
 
 \k) Doe d. Peter v. Watkins, b 3 Bingh. N. C. 421, and per Tindal, C. J., " It would be of 
 dangerous consequence if where the same professional man is resorted to by lender and 
 borrower he is permitted to disclose the communications made to him on either side.'' And 
 see Taylor v. Blacklow, 3 Bingh. N. C. 235. 
 
 (Z) 1 Phill. Ev. 1G9, citing Robson v. Kemp, 5 Esp. R. 54, where it was held that an 
 attorney could not give evidence as to the fact of the destruction of an instrument, which 
 he had been admitted in confidence to see destroyed. In Wheatley v. Williams, 1 M. & W. 
 533, it was held that an attorney is not compellable to state when examined as a witness, 
 whether a document shown to him by his client in the course of a professional interview, 
 was then in the same state as when produced on the trial, e.g. whether it was then stamped 
 or not; and per Lord Abinger, C. B., "Suppose an attorney, when searching for a deed 
 belonging to his client, found another deed which might operate to the client's prejudice, 
 can it be said that he would be bound to produce it? If, therefore, a document be exhib- 
 ited to the attorney in pursuance of a confidential consultation with his client, all that 
 appears on the face of such document is a part of the confidential communication." 
 
 (m) Per Alderson, B., in Wheatley v. Williams, supra. 
 
 (n) Fisher v. Heming, MS. 1 Phill. Ev. 170, Bayley, J. See also Copeland v. Watts, d 1 
 Stark. N. P. C. 95. 
 
 » Eng. Com. Law Reps. vi. 344. b lb. xxxii. 287. e lb. xxxii. 100. 
 
 d Ib. ii. 311.
 
 CHAP. V. § I.] OP PRIVILEGED COMMUNICATIONS, ETC. 907 
 
 case has been doubted. (nn\ Where a vendor had a draft of conveyance Doe v. 
 made by his own attorney, from which the deeds were afterwards pre- Seaton - 
 pared, and the attorney was paid for his business by the vendor and 
 purchaser in moieties by agreement, but the latter employed an at- 
 torney on his own part to look over the draft ; which remained after- 
 wards with the vendor's attorney ; the Court of King's Bench held that 
 such draft was confidentially deposited with the latter by the purchaser 
 as well as the vendor, and could not be produced on a trial against the 
 interest of the purchaser's devisees, though with the consent of the ven- 
 dor and his attorney, (o) And even if an attorney has on one occasion Nixon v. 
 produced a deed entrusted to him by a client under the erroneous com- Ma y° h * 
 pulsion of one tribunal, he will not be bound to produce it before another 
 tribunal. An attorney who had received a deed from his client, had 
 been compelled to produce it by commissioners of bankrupt, and had 
 afterwards received it back from them under an' undertaking to produce 
 if again if required ; but Tindal, C. J., held that the production of the 
 deed had originally been improperly obtained from the witness by the 
 commissioners, and that he might refuse to produce it in action brought 
 by the assignees of the bankrupt, under whose commission he had been 
 compelled to produce it.fp) 
 
 So on a prosecution for the forgery of a promissory note, an attorney Smith's 
 who had acquired possession of the note in his professional character case - 
 from the prisoner, was not compelled or allowed to produce it, although n otf e 
 subpoenaed so to do, and although he was not employed professionally 
 for the prisoner at the trial, but was originally consulted about the note, 
 for the purpose of suing the party upon it whose name was charged to 
 be forged. (5) But this case has since been doubted. On an indictment Avery's 
 for forging a will, a solicitor stated that he was applied to by the pri- ™ se ' 
 soner to act as his solicitor in raising some money ; and that he was the win; 
 solicitor of the prisoner in raising the money as well as of Williams in 
 the advance of it ; that the prisoner made an application to him ; it was 
 objected that this was a privileged communication, as the party was the 
 solicitor for the prisoner, and the preceding case was relied upon. Pat- 
 teson, J., » I think that the case cited is not law ; and that the solicitor 
 may be examined to show what was the transaction between the parties, 
 and what led to that transaction ; but I will reserve the point for the 
 consideration of the judges, if I should hereafter think it necessary to do 
 so." The witness then stated that the prisoner proposed to mortgage 
 some land, which had been left him by his aunt, and that the prisoner 
 told him the title deeds had been burnt, but that he gave him a paper 
 which he said was his aunt's will. It was again objected that as the 
 will had been delivered to the witness by the *prisoner while he was *908 
 attorney for the prisoner, he ought not to produce it; Pattcson, J., "I 
 
 (nn) "I have always doubted the correctness of that ruling. Where an attorney, intrusted 
 confidentially with a document, communicates the contents of it, or suffers another to 
 take a copy, surely the secondary evidence so obtained may be produced. Suppose the 
 instrument were even stolen, and a correct copy taken, would it not be reasonable to admit 
 it?" per Parke, B., in Lloyd v. Mostyn, 10 M. & W. 478, where it was held that a copy 
 examined with a bond, produced for the purpose of admission under a judge's order, was 
 admissible, although the attorney who held the bond was not bound to produce it on the 
 trial. 
 
 (0) Doe d. Strode v. Seaton, a 2 A. & E. 181. 
 
 (p) Nixon v. Mayoh, 1 M. & Rob. 76. 
 
 \q) Rex v. Smith, cor. Holroyd, J., MS. 1 Phill. Ev. 171. 
 
 a Eng. Com. Law Reps. xxix. 62.
 
 908 OF EVIDENCE. [BOOK VI. 
 
 think he is bound to do it." The will was produced and read, and it 
 was the will that was alleged to be forged. (?•) 
 
 In the case of Rex v. Dixon, (sj it was held by Lord Mansfield, and 
 
 the rest of the court, that an attorney, who had been served with a 
 
 subpoena duces tecum out of the crown-office to produce certain vouchers 
 
 which his client, a Mr. Peach, had exhibited and relied upon before a 
 
 master in chincery, and which subpoena had been served on the attorney 
 
 in order to found a prosecution for forgery against his client, was not 
 
 Counsel, bound to produce these required vouchers. (?) A barrister cannot be 
 
 called to prove what was stated by hivn on a motion before the court, (m) 
 
 Attorney- And the attorney-general, if questioned as to the reason for filing an ex 
 
 General, officio information, may refuse to answer.(i') 
 
 How far the The privilege does not attach to everything which the client says to 
 privilege ^jg attorney; the test is, whether the communication is necessary for 
 and as to the purpose of carrying on the proceeding in which the attorney is em- 
 what facts ployed ; if it is necessary it becomes privileged, (iv} but if it is not it 
 may be" ex^ ma J ^ e disclosed. Thus an attorney may be examined like any other 
 amined. witness to a fact which he knew before his retainer, that is before he 
 was addressed in his professional character,(x) ®r where he has made 
 himself a party to the transaction,^) or where he is questioned to a 
 collateral fact which he might have known without being intrusted as 
 the attorney in the cause. (^) Thus he may prove his client's hand- 
 writing though the knowledge was obtained from witnessing his exe- 
 cution of the bail bond in the action. (a) And he may be called to prove 
 
 (r) Reg. v. Avery , a 8 C. & P. 596. The indictment charged the intent to be to defraud 
 Williams and the attorney in different counts. The prisoner was convicted, but no sentence 
 passed on the indictment for forgery, the prisoner being sentenced on an indictment charg- 
 ing the transaction as a false pretence. Mr. Phillipps, vol. 1, p. 171, observed, that "the 
 distinction between this case and Rex v. Smith, is obvious. In Reg. v. Avery, the prisoner 
 deposited the instrument in the hands of his solicitor, not with reference to a suit, nor with 
 reference to any transaction resting solely between themselves, but for the purpose of a 
 money transaction between himself and a third person, and to be disclosed and communi- 
 cated to that person. In the case of Rex v. Smith, on the contrary, the instrument was 
 deposited with the solicitor for the purpose of a suit in which he consulted him pro- 
 fessionally as a matter in confidence between him and his solicitor, and solely for his own 
 interest. The two cases, therefore, are not inconsistent, and the one does not overrule the 
 other." 
 
 (s) 3 Burr. 1687, cited by Lord Ellenborough, in Amey v. Long, 9 East, 485. 
 
 \l) See also Laing v. Barclay, b 3 Stark. 38, where it was held by Abbott, C. J., that a 
 solicitor under a commission of bankrupt, was not bound to produce the proceedings under 
 the commission in a collateral action, where the production might tend to the detriment of 
 his clients ; see also Harris v. Hill, c 3 Stark. N. P. C. 140. S. C. 1 Dowl. & Ry. d N. P. C. 17. 
 Rex v. Upper Boddington, e 8 Dowl. & Ry. 726. 
 
 (w) Curry v. Walter, 1 Esp. 456, cor. Eyre, C. J., who said it was at the option of counsel 
 whether he would give his testimony or not. A court of equity will compel the production 
 of a case submitted to counsel, but not his opinion on it. Preston v. Carr, 1 Younge & 
 Jervis, 175. 
 
 (v) Rex v. Home, 11 St. Tr. 283. 
 
 (w>) Per curiam, Gillard v. Bates, 6 M. & W. 547. There an attorney was sued for work 
 and labour in issuing an execution, and the defence was that he was employed by B., and 
 not by the defendant, and it was held that the plaintiff's agent, an attorney, might be asked 
 whether the plaintiff had not said, on introducing B. to him, that he, the plaintiff, had been 
 employed by B. to issue the execution in question, and that this was not a privileged com- 
 munication. 
 
 (x) Cuts v. Pickering, 1 Vent. 197. Lord Say and Seal's case, 10 Mod. 41. 1 Phill. Ev. 
 166. 
 
 (y) Duffin v. Smith, Peake, N. P. C. 108. Robson v. Kemp, 5 Esp. 52. 
 
 (z) Bull. N. P. 204. 1 Phill. Ev. 175. 
 
 (a) Hunl v. Muring/ 1 Carr. & P. 372, ruled by Abbott, C. J. 
 
 a Eng. Com. Law Reps, xxxiv. 542. b lb. xiv. 154. ° lb. xiv. 170. a lb. xvi. 416. 
 « lb. xvi. 348. f lb. xi. 425.
 
 CHAP. V. § I.] OF PRIVILEGED COMMUNICATIONS, ETC. * 909 
 
 his client's identity. (i) And if he is a subscribing *witness to a deed 
 he may be examined concerning the execution. (c) Or if the question 
 be about a razure in a deed or will, he may be examined whether he 
 had ever seen such a deed or will in other plight, for that is a fact of his 
 own knowledge ;(d) but he ought not to be permitted to discover any 
 confessions which his client may have made to him on such head.(e) 
 So if the attorney were present when his client was sworn to an an- 
 swer in Chancery, upon an indictment for perjury he would be a wit- 
 ness to prove the fact of taking the oath, for it is a fact in his own 
 knowledge, and no matter of secresy committed to him by his client. ( f ) 
 So the attorney of one of the parties may be examined as to the con- 
 tents of a written notice which had been received by him in the course 
 of a cause, requiring him to produce papers ;(<;) for the privilege only 
 extends to confidential communications from the client, and not to those 
 from collateral quarters, although made to him in consequence of his 
 character as an attorney. (A) So an attorney conducting a case in 
 court may be called as a witness by the opposite side, and asked who 
 employs him, in order to show the real party, and so let in his declara- 
 tions.^') So an attorney may be called and asked whether he has not 
 a particular document in his possession, notice to produce having been 
 given, in order to let in secondary evidence if the document is not pro- 
 duced.^/) So an attorney who prepares deeds which are granted on 
 an usurious consideration, may be called as a witness to prove the usury : 
 for that does not come to his knowledge in the character of an attorney, 
 he being as it were a party to the original transaction. (k\ And where 
 an action on a promissory note had been compromised by the defen- 
 dant's paying part of the money and giving a warrant of attorney to 
 confess judgment for the residue, and in the interval between the time 
 when the warrant of attorney was given, and the time the money 
 became due according to the defeasance thereof, the plaintiff told his 
 attorney in the suit, that he was glad it was settled, for that he had not 
 
 (b) Studcly v. Saunders, 1 2 Dow. & Ry. 347, but see Parkins v. Hawkshaw, 2 Stark. N. P. 
 C. 239. 
 
 (c) Doe v. Andrews, Cowp. 846. Robson v. Kemp, 4 Esq. 235. S. C. 5 Esp. 52. For if 
 an attorney puts bis name to an instrument as a witness, he makes himself thereby a public 
 man, and is no longer clothed with the character of an attorney ; his signature binds him 
 to disclose what passed at the execution of the instrument, but not what took place in the 
 concoction and preparation of the deed; by Lord Ellenborough, 5 Esp. 54. 
 
 (d) But see Wheatley v. Williams, 1 M. & W. 533, ante, p. 906, note, where it was said 
 that this passage must apply to a case where an attorney has his knowledge independently 
 of any communication from his client. 
 
 (e) Bull. N. P. 284. 
 
 (/) Bull. N. P. 284, 285. But he is not bound to speak to the particulars of a bill of 
 exchange intrusted to him by his client ; for the existence of such a bill is not a mere fact, 
 but ('(insists of circumstances, which he came to be acquainted with from the delivery of the 
 bill to him by his client. Braid v. Ackerman, by Lord Ellenborough, 5 Esp. 120. 
 
 (//) Spencely v. Schulenburg, 7 East, 357. 
 
 (//.) So ( semble) a Letter written by an attorney to his client produced with the client's sig- 
 nature indorsed upon it, is evidence against the client, Assignees of Meyer v. Setton, 6 2 
 Stark. N. P. G. 274. So an admission of a debt made by an attorney to the adverse party, 
 by the direction of his client is not privileged. Turner v. Railton, 2 Esp. 474. 
 
 (<) Levy v. Pope, Moo. <te Mai. 410, Parke, J. 
 
 (j) Bevan v. Waters,' 1 Moo. & Mai. 235, ISest. C. J. So an attorney's clerk may be asked 
 whether he has not received a particular paper from his client. Eicke v. Nokcs, e Moo. & 
 Mai. 303, Lord Tenterden, C. J. 
 
 (k) Duffin v. Smith, Peake, N. P. C. 108, by Lord Kcnyon. 
 
 R Eng. Com. Law Reps. xvi. 03. b lb. iii. 343. c lb. xxii. 343. d lb. xxii. 301. 
 
 e lb. xxii. 314. 
 
 Vol. ii.— 59
 
 H09 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 = 910 
 
 Brewer's 
 case. 
 
 Commu- 
 nications 
 between 
 attorney 
 and client 
 not privi- 
 leged if 
 not profes 
 sional. 
 
 given consideration for the note, and lie knew it was a lottery transac- 
 tion : it was held, that the attorney was admissible to prove his con- 
 versation in an action to recover back the money. (?) The communica- 
 tion, said *Lord Kenyon, was not made by the client in confidence as 
 instructions for conducting his cause ; on the contrary, the purpose in 
 view had been already obtained, and what was said was in exultation 
 to his attorney for having before deceived him as well as his adversary, 
 and for having obtained his suit. 
 
 Where a prisoner being in custody on a charge of forgery wrote a 
 letter to a person, desiring him to ask Mr. G. or any other solicitor, 
 whether the punishment of forging a bill is the same where the name 
 of the parties are entirely fictitious, as where the names are those of 
 real persons ; it was held that this letter was not a privileged communi- 
 cation, as the relation of client and attorney did not exist between the 
 prisoner and G-.(m) 
 
 The privilege is also confined to communications to the attorney in 
 his character of attorney; and, therefore, a communication made to 
 him, or question asked him by his client, not for the purpose of getting 
 his legal advice, but to obtain information as to a matter of fact, is not 
 privileged. As where a client asked his attorney whether he could safely 
 attend a meeting of his creditors called on the attorney's suggestions 
 and the attorney advised him to remain at his office for the present, and 
 he accordingly remained there two hours to avoid being arrested ; it 
 was held that the attorney might prove all these facts, in order to show 
 an act of bankruptcy, in an action by his client's assignees. (n\ So in 
 the case of Annesley v. Lord Anglesea,(o) it was held, that a conversa- 
 tion which passed between Lord A. and his attorney twenty years ago, 
 respecting the prosecution of the plaintiff for murder, was not privi- 
 leged, since it was not matter of professional confidence. 
 
 If an attorney or counsel be called by his own client to give evidence 
 he is not privileged from cross-examination on the same matter as to 
 which he was examined in chief, although it were a confidential com- 
 munication made professionally; but the cross-examination must not 
 extend beyond that matter. (^>) 
 
 There are, besides these professional communications, a number of 
 cases, of a particular description, in which, for reasons of public policy, 
 information is not permitted to be disclosed. Courts of justice will not 
 permit witnesses to be asked the names of those, from whom they re- 
 ceive information as to frauds on the revenue.^)f In all the trials for 
 
 (/) Cobden v. Kendrick, 4 T. R. 432. 
 
 (m) Rex v. Brewer," 6 C. & P. 363, Park, J. A. J. 
 
 (n) Bramwell v. Lucas," 2 B. & C. 745. 
 
 (o) 9 St. Tr. 391, before the Barons of the Exchequer in Ireland, 1743. 
 
 (p) Vaillant v. Dodemead, 2 Atk. 524. 
 • [q) By Dallas, 0. J., in Home v. Bentinck, c 2 Brod. & Bing. 162. Hardy's case, 24 How. 
 St. Tr. 753. But where a person officiously interferes to inform any of the constituted au- 
 thorities of alleged abuses, the communication is not privileged ; and if untrue, may be 
 considered malicious and actionable. Robinson v. May, 2 Smith, 3. 
 
 t [The officer who apprehended the prisoner, is not bound to disclose the name of the 
 person from whom he received the information which led to the prisoner's apprehension. 
 The U. States v. Moses, 4 Wash. C. C. Rep. 726. But a police officer will be compelled to 
 answer at the instance of the Commonwealth. Trial of Mina. pamph., p. 9. 
 
 In the trial of an indictment for larceny, a witness from whom the property is charged to 
 have been stolen, is not bound to disclose the names of persons in his employment who gave 
 » Eng. Com. Law Reps. xxv. 438. b lb. ix. 233. « lb. vi. 46. 
 
 Cross ex- 
 amination 
 of an at- 
 torney. 
 
 Informers.
 
 CHAP. V. § I.] OF PRIVILEGED COMMUNICATIONS, ETC. 910 
 
 high treason of late years, the same course has been adopted ; and if 
 parties were willing to disclose the sources of their information, they 
 would not be suffered to do it by the judges. (7-) "If the name of an 
 informer," said Buller, J., in Hardy's case, " were to be disclosed, no 
 man would make a discovery, and public justice would be defeated." 
 And this privilege not only protects the actual informer himself, but 
 those questions, which tend to the discovery of the channels by which 
 the disclosure was made to the officers of justice, are not permitted to 
 be asked. Thus a person who has been employed to collect secret in- 
 formation for the executive government, or for the service of the police, 
 is not *allowed to reveal the name of his employer, or the nature of *911 
 the connexion between them ;(s) or the names of any persons to whom Agent of 
 he has communicated his information for the purpose of its being ^ en e t 0T 
 transmitted, (A whether those persons were magistrates, or concerned in police, 
 the administration of government, or were merely the channel through 
 which information was conveyed to government.(?<) 
 
 Upon the same ground the Attorney-General of Upper Canada was Official 
 not allowed to be asked as to the nature of a communication made by cation" m " 
 him to the governor of the province. («) So the orders given by the go- 
 vernor of a foreign colony to a military officer under his command, 
 ought not to be produced. (w\ So Abbott, C. J., refused to admit in 
 evidence the report of a military court of inquiry, in an action of libel 
 by an officer, respecting whose conduct the court had been appointed to 
 inquire; and his decision was confirmed on error in the Exchequer 
 Chamber.(a;) And Lord Ellenborough, C. J., would not permit the 
 contents of a letter, written by an agent of government to Lord Liver- 
 pool, then secretary of state, or his lordship's answer, to be produced as 
 evidence.^) In Watson's case, an officer of the tower of London Questions 
 was not allowed to prove that a plan of the Tower, produced by the contrary to 
 defendant, was accurate.^) policy. 
 
 But a letter written by a private individual to a public officer, (the 
 chief secretary of the postmaster-general,) complaining of the miscon- 
 duct of a person under him, does not fall within the preceding cases. 
 
 They were all cases of communications made by and between minis- 
 ters and officers of government, and in the course of the discharge of a 
 public duty by the person making the communication. Here the letter 
 was written by a private individual, having no public duty in writing 
 it.(6) 
 
 In the case of the Seven Bishops, the clerk of the privy council was Transac- 
 compelled to state what passed in the council chamber, and even what ^j"® 
 was said by the king himself, although the counsel for the crown ob- council. 
 
 (r) 2 Brod. & Bing. 162. (s) 24 How. St. Tr. 753. 1 Phill. Ev. 178. 
 
 (t) 24 How. St. Tr. 811. 
 
 (w) By Abbott, J., in Rex v. Watson, a 2 Stark, 136. Stone's case, as cited by Lord Ellen- 
 borough, C. J., ibid. 
 
 (v) Wyatt v. Gore," Holt, N. P. C. 299, ruled Gibbs, C. J. 1 Phill. Ev. 181. 
 
 (w) Cooke v. Maxwell," 2 Stark. N. P. C. 185. 
 
 (x) Home v. Lord F. C. Bentick, d 2 Brod. & Bing. 130. 
 
 (y) Anderson v. Hamilton, 6 (n). 2 Brod. & Bing. 156. (z) 2 Stark. f 148. 
 
 (6) Blake v. Filfold, 1 M. & Rob. 198, Taunton, J. 
 
 the information which induced him to take measures for the detection of the persons indicted. 
 Slate v. Soper, 16 Maine, 293.] 
 
 a Eng. Com. Law Reps. iii. 283. h Ibid. ° lb. iii. 305. a lb. vi. 45. 
 
 e lb. vi. 49. f lb. iii. 289.
 
 911 OF EVIDENCE. [BOOK VI. 
 
 jeeted to it.(c) And the same evidence was allowed in Lord Strafford's 
 ease.(<7) But in Layer's case,(e) it seems to have been considered that 
 the minutes taken before the privy counsel were not to be divulged ; 
 and the two other cases above cited were decided under the strong feel- 
 ings which the circumstances of the times had produced, and the latter 
 in particular has been considered as a very unwarrantable departure 
 from law and justice. (/) 
 Grand A clerk attending upon a grand jury, shall not be compelled to reveal 
 
 J ury ' that which was given them in evidence ;(#) and the jurors themselves 
 
 are bound by oath not to disclose what passes before them ;f but it has 
 *912 been held that a grand juryman may be called *to prove who was the 
 prosecutor of an indictment ; for it is a question of fact, the disclosure 
 of which does not infringe on his oath. (A) But where the grand jury 
 returned a bill of indictment containing ten counts for forging and utter- 
 ing the acceptance of a bill of exchange with an indorsement " a true 
 bill on both counts; Patteson, J., would not allow one of the grand 
 jury to be called as a witness, after the prisoner's trial had commenced, 
 and after the grand jury had been discharged, to explain their finding,(?) 
 And the Court of King's Bench have refused to receive an affidavit from 
 a grand juryman as to the number of the grand jurors who concurred in 
 finding a bill./y) 
 Evidence But where a gentleman of the grand jury heard a witness swear in 
 ^randiurv C0VLTi y u pon the trial of a prisoner, directly contrary to the evidence 
 which he had given before the grand jury; and he immediately com- 
 municated the circumstance tothe judge, who, upon consulting the judge 
 in the other court, was of opinion that public justice in this case re- 
 quired that the evidence which the witness had given before the grand 
 jury should be disclosed ; and the witness was committed for perjury, 
 to be tried upon the testimony of the gentlemen of the grand jury. It 
 was held that the object of this concealment was only to prevent the 
 
 (c) 4 St. Tr. 346. (d) 1 St. Tr. 723. 
 
 (e) 6 St. Tr. 288. (/) 1 Phill. Ev. 182. 
 
 (ff) 12 Vin. Abr. Evidence B., a, 5. 
 
 (h) Sykes v. Dunbar, Sehv. N. P. 1059, per Kenyon, C. J. 
 
 (i) Reg. v. Cooke, a 8 C. & P. 582. (/) Rex v. Marsh, b 6 A. & E. 236. 
 
 f {In Low's case, 4 Greenleaf, 439, it was held that grand jurors may be examined, as 
 witnesses in court, to the question whether twelve of the panel actually concurred in find- 
 ing a bill of indictment. This decision was made in a case where a prisoner, on his arraign- 
 ment, filed an affidavit, stating that the indictment was not found by any twelve of the grand 
 jury, and also a motion to be allowed to prove the fact by the testimony of the foreman and 
 others of that jury, that the bill was returned under a belief that it was necessary that only 
 a majority of the panel should agree to find it. 
 
 A grand juror cannot be admitted to prove that a witness, who has been examined, swore 
 differently before the grand jury. 2 Halsted, 347, Imlay v. Rogers.} 
 
 [The attorney for the Commonwealth cannot be called upon to testify to what passes in 
 the Grand Jury Room. Commonwealth v. Tilden, 2 Starkie's Ev. New Ed. 232, n, (1). 
 
 Grand jurors being sworn to secrecy, what takes place before them cannot generally be 
 disclosed. The People v. JIulbut, 4 Denio, 133. 
 
 A grand juror may be asked who was the prosecutor of a particular individual. The 
 People v. Hulbut, 4 Denio, 133. 
 
 A grand juror on the trial of an indictment, may be compelled to disclose what was 
 given in evidence by a witness before the grand jury. State v. Broughlon, 7 Iredell, N. C. 96. 
 
 A grand juror cannot be called to impeach the conduct of the jury ; as for example, to 
 show that an indictment presented by them was found without testimony, or upon insuffi- 
 cient testimony. The People v. Ilulbut, 4 Denio, 133.] 
 
 a Eng. Com. Law Reps, xxxiv. 535. i> lb. xxxiii. GO.
 
 CHAP. V. § II.] EXAMINATION OF WITNESSES. 912 
 
 testimony produced before them from being contradicted by subornation 
 of perjury on the part of the persons against whom bills were found. 
 This was a privilege which might be waived by the crown. (&) 
 
 In Watson's case,(/) a witness was questioned by the counsel for the A witness 
 prisoner as to his having produced and read a certain writing before the m s ^ d Je 
 grand jury, and Lord Ellenborough, C. J., said, " He had considera- what he 
 ble doubt upon the subiect : he remembered a case in which a witness ff ld l3efore 
 
 tlic crr'inu 
 
 was questioned as to what passed before the grand jury, and though itj urv . 
 was a matter of considerable importance, he was permitted to answer." 
 But it has since been held that a witness for the prosecution in a case 
 of felony may be asked on cross-examination whether he has not stated 
 certain facts before the grand jury, and that the witness is bound to 
 anwser the question. (m) 
 
 A witness was not allowed by Lord Ellenborough to be asked as to House of 
 the expressions or arguments which a member of the House of Com- 
 mons had made use of in the house ; for, said his lordship, it would 
 be a breach of duty in the witness (who was a member himself,) and a 
 breach of his oath, to reveal the counsels *of the nation ;(«) but as to *913 
 the fact of the plaintiff 's having taken part in the debate, he was bound 
 to answer. (o\ 
 
 SECT. II. 
 
 How Witnesses ought to be examined, and what Questions they may be 
 Asked, and Compelled to Answer. 
 
 Before a witness is examined, he must be sworn in open court. The 
 proper method of administering the oath, and the objections which may 
 be made previous to the administration of it, will be hereafter con- 
 sidered. (p\ And the proper time and mode of objecting to the compe- 
 tency of a witness, whether on the voire dire, or at a later stage of the 
 trial, will be discussed in the last section of this chapter. (q) 
 
 After a witness has been regularly sworn, the party who has called Exaniina- 
 him proceeds to examime him in chief; respecting which examination ^J n 
 the most important rule is, that leading questions must not be put to Leading 
 the witness ; that is, questions which, being material to any of the q uestlons - 
 
 (Jc) Christian's Note, 4 Bla. Com. 126. There appears to be very little weight in the 
 reason assigned for the concealment even before the prisoner's Counsel Bill passed, because 
 the prisoner had', in far the greater number of cases, heard the evidence of the witnesses 
 before the magistrate, and there is still less weight now since the prisoner is entitled to 
 copies of the depositions. And the oath itself seems not to apply to the facts proved before 
 the grand jury ; as far as regards this subject, it is " the king's counsel, your fellows and 
 your own, you shall keep secret." 4 Chitt. Cr. L. 183. C. S. G. 
 
 (I) 32 How. St. Tr. 107. 
 
 (m) Reg. v. Gibson,* 1 C. & Mars. 672, Parke, B. It has recently been held that when 
 the grand jury have found a bill, the judge before whom the case comes on to be tried 
 ought, not to inquire whether the witnesses were properly sworn before they went before the 
 grand jury, and it seems that an improper mode of swearing them will not vitiate the in- 
 dictment, as the grand jury are at liberty to find a bill upon their own knowledge merely. 
 Reg. v. Russell,* 1 C. & Mars. 247. Gurney, B., and Wightman, J.; and Wightman, J.. 
 added, that Lord Denman, C. J., and himself, had decided the same point the same way on 
 the Northern Circuit. 
 
 (n) Plunkett v. Cobbett, 5 Esp. 137. 29 How. St. Tr. 71, 72. (o) 5 Esp. 137. 
 
 (p) Post, p. 970. (?) Post, p. 987. 
 
 » Eng. Com. Law Reps. xli. 304. b lb. xli. 139.
 
 913 OF EVIDENCE. [BOOK VI. 
 
 points of the issue, plainly suggests to him the answer he is expected to 
 make. But this objection is not allowed to be applied if the question 
 is merely introductory, and one which, if answered by Yes or No, would 
 not be conclusive on any of the points of the issue ; for it is necessary 
 to a certain extent to lead the mind of the witness to the subject of the 
 inquiry. (r)f 
 What are Thus in an action of assumpsit against two, in order to prove that the 
 
 notle . atlin S defendants were partners, the first witness was asked whether one of 
 
 questions. . r . ' 
 
 them had interfered in the business or the other. And upon this ques- 
 tion being objected to as leading, Lord Lllenborough ruled, that it 
 might properly be asked. (s) An affirmative answer to this question 
 would not have been conclusive, for the defendant might have inter- 
 fered without making himself a partner. So where the witness called 
 to prove the partnership of the plaintiffs, could not recollect the names 
 of the component members of the firm, so as to repeat them without 
 suggestion, but said he might possibly recognize them, if suggested to 
 him, Lord Ellenborough, (alluding to a case tried before Lord Mans- 
 field, in which the witness had been allowed to read a written list of 
 names,) ruled that there was no objection to asking the witness whether 
 
 Pointing certain specified persons were members of the firni.^) Upon the trial 
 
 out pn- f j) e j} eren o;er and others, before Lord EllenborouErh, at Guildhall, for 
 soners. ... . D 
 
 a conspiracy, it became necessary for a witness, (a postboy, who had 
 
 been employed to drive one of the actors in the fraud,) to identify De 
 Berenger with that person ; and Lord Ellenborough held, that for this 
 *914 purpose the counsel for the prosecution might *point out De Berenger 
 to the witness, and ask him whether he was the person. («) So in Bex 
 v. "Watson, (*.-) tried at bar, upon its becoming necessary to identify three 
 of the prisoners, it was objected that the attention of the witness was 
 too directly pointed to him ; but the court held, that the counsel for 
 the prosecution might ask in the most direct terms, whether any of the 
 prisoners was the person meant and described by the witness. So where 
 the plaintiff's son, being called as a witness for his father, was cross- 
 examined as to the contents of a letter received by him from the plain- 
 tiff, which he swore had been lost, and mentioned some particular ex- 
 pressions as part of its contents ; and witnesses were called on the part 
 of the defendant to speak to the contents of the same letter; Lord Ellen- 
 borough ruled that the defendant's counsel might ask one of them, who 
 had first exhausted his memory by stating all he recollected of the letter, 
 whether it contained the particular expression sworn to by the plaintiff's 
 son ; for otherwise, said his lordship, it would be impossible ever to 
 come to a direct contradiction. (w) 
 Leading in "When, upon cross-examination, a witness has denied having used 
 
 chief to . . 
 
 contradict particular expressions, or having made a particular statement to A. B., 
 
 (r) Nicholls v. Dowding & Kemp, a 1 Stark. X. P. C. 81. 2 Phill. Ev. 403. 
 
 (s) 1 Stark. N. P. C. 81. 
 
 (t) Accerro v. Petroni, b 1 Stark. N. P. C. 100. 
 
 (u) 1 Stark. Ev. p. 170. ( v ) 2 Stark. N. P. C. c 128. 
 
 (w) Courteen v. Touse, 1 Camp. 43. 2 Phill. Ev. 405. 
 
 f [Upon cross-examination the witness cannot be asked a leading question in respect to 
 new matter. Harrison v. Roican, 3 Wash. C. C. Rep. 580. 
 
 The questions, " state whether or not you examined the horse tracks towards Crogan's" 
 and " state whether or not you had any difficulty in following the tracks,'' are leading and 
 improper. Hopper v. The Commonwealth, 6 Grattan, 684.1 
 
 a Eng. Com. Law Reps. ii. 305. b lb. ii. 313. » lb. iii. 2T3.
 
 CHAP. V. § II.] EXAMINATION OF WITNESSES. 914 
 
 who is afterwards called on the part of the adverse party, for the pur- former 
 pose of contradicting the first witness, by proving that he actually did adverse ' 
 speak the words or make the statement to him, it is very usual in prac- party. 
 tice for the counsel of the adverse party, in examining A. B. in chief as 
 his own witness, to ask him, in the first instance, whether the former 
 witness, in conversing with him, said so and so, or made such and such 
 a statement. And accordingly, where a witness of the plaintiff's in 
 cross-examination had been asked as to some expressions he had used, 
 for the purpose of laying a foundation for contradicting him, and he had 
 denied having used them; Abbott, C. J., held, that the defendant's 
 counsel having called a person to prove that the former witness had used 
 such expressions, was entitled to read to his own witness the particular 
 words from his brief.(x) However a very able writer,(v/) has with great 
 force endeavored to show, that leading cpuestions under such circum- 
 stances are irregular. 
 
 But this rule does not apply to conversations which are evidence Where not 
 themselves. A witness who was present at the time of the apprehen- all owable. 
 sion of the plaintiff by the defendant, was asked whether he had not used 
 certain expressions in a conversation which then took place between the 
 plaintiff and defendant, which he denied; and Erskine, J., held that a 
 person who was called to prove that the witness had said what he had 
 denied, could not be examined by the counsel reading from his brief the 
 very words which the witness had so denied having used, but that the 
 examination must proceed in the usual way, by asking what had 
 passed. (s) 
 
 If a witness should appear to be in the interest of the opposite party, *915 
 
 or unwilling to give evidence, the court may deem it right *to relax the Leading an 
 
 rule against leading questions, and allow the examination in chief to as- ad / erse 
 o o i ' __ _..... witness. 
 
 sume something of the form of a cross-examination. It is entirely in the 
 
 discretion of the judge to determine how far he will allow the examina- 
 tion in chief to be by leading questions. (a) And where an issue had 
 been directed by the Court of Chancery, with power to examine the par- 
 ties; Best, C. J., held that the defendant stood in a situation which of 
 necessity made him adverse to the plaintiff, by whom he was called, and 
 that the counsel for the plaintiff might as a matter of right, cross-exa- 
 mine him.(t) But in general, the fact of a witness being an unwilling 
 or adverse witness is to be ascertained by the nature of his evidence, 
 his manner of answering, and demeanor, before the unrestricted power 
 of leading can be given ; it is not enough, for instance, in a prosecution, 
 that the witness is intimate with the prisoner, or that he has been in- 
 formed against by the prosecutor, to justify the counsel in beginning at 
 once with the cross-examination. (c) 
 
 (x) Edmunds v. Walter," 3 Stark. N. P. C. 7. 
 
 \y) 2 Phill. Ev. 494, 405. The practice, however, is perfectly well settled as stated in 
 the text. C. S. G. 
 
 (z) Hallett v. Cousen's, 2 M. & Rob. 238. 
 
 (a) 2 Phill. Ev. 403. In Bastin v. Carew, b R. k M. N. P. R. 121, Abbott, C. J., allowed 
 the cross-examination of an adverse witness, and said, " I mean to decide this, and no fur- 
 ther — that in each particular case there must, be some discretion in the presiding judge as 
 to the mode in which the examination shall be conducted, in order best to answer the pur- 
 poses of justice." Reg. v. Chapman, 8 0. & P. 558, Lord Abinger, G. B. Reg. v. Murphy, d 
 8C.& P. 297, Coleridge, J. 
 
 (6) Clarke v. Saffery," R. <fc M. N. P. R. 126. 
 
 (c) 2 Phill. Ev. 104, citing Reg. v. Ball/ 8 C. & P. 745, where a witness, called on the part 
 
 a Eng. Com. Law Reps. xiv. 145. b lb. xxi. 39G. c lb. xxxiv. 523. <* lb. xxxiv. 397. 
 c lb. xxi. 395. f lb. xxxiv. 010.
 
 915 OF EVIDENCE. [BOOK VI. 
 
 Cross-ex- After the examination in chief is closed, the other party is at liberty 
 animation. to p rocee( j to cross-examination, with regard generally to the rule re- 
 stricting examinations in chief in respect to leading questions. 
 Leading If the witness betrays a zeal against the cross-examining party, or 
 
 questions. s h ows an unwillingness to speak fairly and impartially, he cannot, it 
 should seem, be led too much.(tZ) But where the witness on the other 
 hand discovers an anxiety to serve the cross-examining party, although 
 the courts do not usually exclude the counsel on cross-examination, 
 from putting leading questions, it is obvious that evidence so obtained 
 is very unsatisfactory, and is open to much observation. (e) And, 
 although the witness may be led on cross-examination to bring him di- 
 rectly to the point as to the answer, yet if he has betrayed an inclina- 
 tion to lean, and be favourable to the cross-examining party, it is not 
 allowable to go the length of putting into the witness's mouth the very 
 words which he is to echo back.(/) 
 *916 A witness cannot be asked upon cross-examination, questions *which 
 What may are not in any way relevant to the matters in issue ;(</) neither is a 
 ou cross- question allowed to be asked, which, if answered affirmatively, would 
 examina- be wholly irrelevant to the issue, for the purpose of discrediting the 
 A 0n \- witness if he answers in the negative, by calling other witnesses to 
 
 Questions .° J , ° 
 
 must not disprove what he says ;(/») but this subject will perhaps be more con- 
 be irrele- yeniently discussed in a subsequent section,(i) concerning the modes of 
 Obligation impeaching the credit of a witness;^') in which place will also be con- 
 of a witness sidered the obligation of a witness to answer questions tending to sub- 
 where the' j ec * hi m to a criminal prosecution or degrading to his character. It is, 
 answer however, proper to mention in this place how far a witness is compella- 
 jeettoa ^le *° answer a question, whereby he may subject himself to a civil 
 penalty or action, or charge himself with a debt. Considerable doubts had been 
 Tionoi^de- enterta i ne d upon this subject, before the 46 Geo. 3, c. 37; for the set- 
 gradation, tlement of which it was thereby declared and enacted, that a witness 
 cannot by law refuse to answer any question relevant to the matter in 
 
 To a civil 
 
 suit. 
 
 issue, (the answering of which has no tendency to expose him to a 
 penalty or forfeiture of any nature whatsoever) by reason only, and on 
 the sole ground that the answering such question may establish, or tend 
 to establish, that he owes a debt, or is otherwise subject to a civil suit, 
 either at the instance of his majesty, or any other person. (k\f This 
 
 of the prosecution, contradicted the prosecutor as to the fact of the prisoner having been at 
 her house on the night when the offence -was committed, and it appeared that she was inti- 
 mately acquainted with the prisoner, and that the prosecutor had informed against her for 
 keeping her beer-house open at improper hours ; and on its being submitted that these facts 
 raised such an inference of hostility towards the prosecutor, and of bias in favour of the 
 prisoner, as to entitle the counsel for the prosecution to cross-examine her; Erskine, J., 
 said, '• I think that the situation in which the witness stands towards either party, does not 
 give the party calling the witness a right to cross-examine her, unless her evidence was of 
 itself of such a nature as to make it appear that she was an unwilling witness." 
 
 (d) 2 Phill. Ev. 406. 
 
 (fij Mr. Starkie, in his Treatise on Evidence, vol. 1, p. 188, mentions that he has heard 
 Lord Tenterden express himself to this effect more than once. 
 
 (/) By Buller, J., in Hardy's case, 24 How. St. Tr. 755, referring to a rule laid down on 
 the day before by Eyre, C. J., to the same effect. 
 
 (ff) A cross-examination as to a fact, otherwise irrelevant, is not warranted by the circum- 
 stance that the adverse counsel opened it, without any attempt at proof. Lucas v. Novosi- 
 lieski. 1 Esp. N. P. C. 296. 
 
 (A) Post, p. 936. (7) Sec. 3. 
 
 (./) Post, p. 936. 
 
 I /. ) There is a distinction between the obligation of a witness, since this statute, to answer 
 
 f {The doctrine established by this statute has been considered as the common law. by
 
 CHAP. V. § II.] EXAMINATION OF WITNESSES. 916 
 
 statute, however, does not affect the right, which the parties to a suit 
 have, of declining to give evidence for the opposite party: and, there- 
 fore, upon an appeal, a rated inhabitant of the appellant parish (being 
 considered a party to the appeal) cannot be compelled, even since the 
 statute, to give evidence when called upon by the respondents. (ty 
 And the witness is still privileged from answering any question, the 
 answer to which might subject him to a forfeiture of his estate; for 
 the statute implies, that a witness may legally refuse to answer a ques- 
 tion which has a tendency to expose him to a forfeiture of any nature 
 whatsoever, (m) f 
 
 Counsel upon cross-examination cannot assume that the witness has Assump- 
 made an assertion in his examination in chief, which was not in fact tl ,? ns n , , t 
 
 1 • 1 f • n/\ allowable 
 
 made,(n) or put a question which assumes a fact not in proof. (o) on cross- 
 
 It is not allowable upon cross-examination to ask a witness as to the examina - 
 contents of written instruments,^) although they are shown *to be in *hl 7 
 the possession of the opposite party, and notice has been given to the Cross-ex- 
 opposite party to produce them.^) Under what circumstances a cross- amination 
 examination as to the contents of a written document, for the purpose ten i ns trn- 
 of impeaching the credit of a witness, is allowable, will be considered merits ; for 
 hereafter in the fourth section of this chapter.(r) KSa! 8 
 
 Upon the trial of Kroehl, Gibson, and Koech, (v) for a conspiracy, diction. 
 where the three defendants defended separately, Koech alone called Cross-ex- 
 witnesses, and examined to a conversation between himself and Kroehl. outness 
 The counsel for the prosecution was proceeding to cross-examine as to called by 
 another conversation between Koech and Kroehl, when the counsel for one ? f d se " 
 the prisoner Kroehl objected, on the ground, that the effect might be tofendants 
 bring out a new case against Kroehl, although he had called no wit- alone - 
 nesses, and after the case for the crown was finished : but Abbot, J., 
 said, that as Koech had called witnesses, he could not prevent the cross- 
 examination as to any conversations that might affect Koech. It might 
 be a matter for future consideration, whether the counsel for Kroehl, 
 after such evidence, would have a right to address the jury upon it. 
 
 questions, though they may subject him to civil suits; and his obligation to produce writ- 
 ings, &c, under a subpoena duces tecum. For if a subpoena duces tecum is served, the party 
 must bring his deeds into court in obedience to the subpoena, although if he states that they 
 are his title deeds, no judge will ever compel him to produce them. Pickering v. Noyes, a 
 1 B. & C. 263. 
 
 (I) Rex v. (Inhab.) Woburn, 18 East, 395. But this decision was before the 54 Geo. 3, c. 
 170, and the 3 & 4 Vict. c. 26, which provide that no rated inhabitant of a parish shall be 
 deemed an incompetent witness for or against such parish. 
 
 (m) 2 Phill. Ev. 620. 
 
 (n) Hill v. Coombc, cor. Abbott, J., Manning's Digest, tit. Witness, p. 236. 
 
 (o) Doe v. Wood, cor. Abbott, J., ibid., p. 237. The objection was frequently taken and 
 allowed during the proceedings in the House of Lords in the Queen's case. See the printed 
 evidence. 
 
 (p) Sainthill v. Bound, 4 Esp. 74. Howell v. Lock, 2 Camb. 14. 
 
 (q) Graham v. Dyster, b 2 Stark. N. P. C. 23. Sideways v. Dyson, ibid. 49. 
 
 (r) Post, p. 931. (v) 2 Stark. N. P. C. d 363. 
 
 the courts in New Hampshire, (3 N. H. R. 159.) Pennsylvania, (4 Serg. & R. 397. 7 ibid. 
 192.) Maryland, (4 Har. & Johns. 348. 2 Harris & Gill, 158.) Kentucky, (3 Littell, 221, 
 226,) and Louisiana, (6 Martin, 079, overruling the decision in 1 Martin, 23.) 
 
 A contrary doctrine is held in Connecticut, (3 Conn. Rep. 528,) and in Tennessee, (1 
 Overton, 340.) 
 
 See 7 Cowen, 174, Mauran v. Lamb, where this point is left doubtful.) [Rose. Dig. Cr. Ev. 
 129, n.] 
 
 f [A witness is not protected from answering when his answers expose him merply to 
 pecuniary loss. Lowney v. Parham, 21 Maine, 235.] 
 
 a Eng. Com. Law Reps. viii. 72. b lb. iii. 224. c lb. iii. 238. d lb. iii. 375.
 
 917 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Who may 
 be cross- 
 examined. 
 
 *918 
 
 Calling 
 witnesses 
 whose 
 names are 
 
 If a witness be called merely for the purpose of producing a written 
 instrument, he need not be sworn, and unless sworn, he is not subject 
 to cross-examination. In an action for maliciously, and without pro- 
 bable cause, making a charge of felony before a justice of the peace 
 against the plaintiff, and causing him to be apprehended, the plaintiff's 
 counsel having called upon the justice to produce the information taken 
 by him, which was accordingly produced, was proceeding to prove the 
 information by the justice's clerk ; when it was insisted by the defend- 
 ant's counsel, that he should be allowed to cross-examine the justice, 
 who had produced the examination ; but Holroyd, J., held that this 
 could not be done, and that the plaintiff's counsel might proceed to 
 prove the examination in the regular manner.(u-) And so on an indict- 
 ment for perjury, where a sheriff's officer had been subpoenaed to pro- 
 duce a warrant of the sheriff; Littledale, J., ordered him to do so with- 
 out being sworn. fx\ But where upon an indictment for perjury, the 
 attorney for the prosecution was called and sworn, and produced a copy 
 of a declaration in an action brought by the defendant against the pro- 
 secutor, though he was not asked any question on the part of the prose- 
 cution; Abbott, C. J., held, that the defendant was entitled to cross- 
 examine him.(#) And if a witness be called, though it be through 
 necessity, for the purpose of the mere formal proof of a document, this 
 makes him a witness for all purposes, and he may be cross-examined 
 as to the whole of the case.(z)f So it was once held, that if a witness 
 has been called by one party, and sworn, the other may cross-examine 
 him, though no question has been asked him in chief, (a) But it has been 
 since held that if a witness be called *under a mistake, and the mistake 
 be discovered before any question is put to him by the counsel who calls 
 him, he is not liable to cross-examination, although he has been sworn, (L\ 
 And so where a witness being sworn was asked only one immaterial 
 question, and his evidence stopped by the judge, it was held that the 
 opposite party had no right to cross-examine hirn.(c) 
 
 Although the counsel for the prosecution are not bound to call every 
 witness, whose name is on the back of the indictment, it is usual for 
 them to do so, and if they decline, the judge, in his discretion, may, 
 
 (w) Simpson v. Smith, 2 Phill. Ev. 397. See also Davis v. Dale, a M. ft M. 514. Evans v. 
 Moselcy, 2 Dowl, P. R. 354. Perry v. Gibson, 6 1 A. & E. 48. Summers v. Moseley. 4 Tyrw. 
 158. 
 
 (x) Rex v. Murlis, M. & Mai. 515. 
 
 \y) Rex v. Brooke, 2 Stark. N. P. C. 472. 
 
 (z) Morgan v. Brydges, d 2 Stark. N. P. C. 314. 
 
 (a) Phillipps v. Earner, 1 Esp. 356. But where in an action of the assignees of a bank- 
 rupt, the petitioning creditor was called for the purpose of producing the bill of exchange 
 on which the action was founded and sworn; Lord Ellenborough would not allow the 
 defendant to cross-examine him, since he could not have been permitted to have given evi- 
 dence for the plaintiff. Reed v. James, e 1 Stark. N. P. C. 132. 
 
 (6) Wood v. Mackinson, 2 M. & Rob. 273, where the witness was called and sworn, and 
 the counsel said he had been misinstructed as to what the witness was able to prove, and 
 Coleridge, J., said, "the more satisfactory principle to lay down is this, that if there really 
 be a mistake, whether on the part of the counsel or the officer, and that mistake be discov- 
 ered before the examination in chief has begun, the adverse party ought not to have the 
 right to take advantage of this mistake by cross-examining the witness. Rush r. Smvth, 4 
 Tyrw. 675. 1 C. M. & R. 94. Clifford v. Hunter/ 3 C. & P. 16. 
 
 (c) Creevy v. Carr,s 7 C. & P. 64. Gurney, B. 
 
 f [Co?itra, Ellmaker v. Buckley, 16 Serg. & K. 77.] 
 a Eng. Com. Law Reps. xix. 410. b lb. xxviii. 32. c lb. iii. 437. d lb. iii. 3GI. 
 e lb. ii. 326. f lb. xiv. 189. e lb. xxxii.
 
 CHAP. V. § II.] EXAMINATION OF WITNESSES. 918 
 
 and generally will call them, and the defendant may cross-examine on tho 
 
 iT,_ / a back of the 
 
 them.(tJ) indict . 
 
 *It is reported to have been ruled by Lord Kenyon,(e) that where a ment. 
 
 witness has been examined by one party, and cross-examined by the *919 
 
 other, and the latter has afterwards occasion to call the same witness ^ ltness 
 
 1 i o l • -l • 01 one 
 
 back as part of his own case, the privilege of cross-examination con- party af- 
 tinues, and leading questions may be put to him. But it has been towards 
 very properly remarked, (/) that the mode of examination under such the other, 
 circumstances is in truth regulated, according to the disposition and 
 temper manifested by the witness, by the discretion of the presiding 
 judge, [g) 
 
 Where on an indictment for burglary, there was no counsel for the Witness 
 crown, Taunton, J., after the examination of witnesses to facts on the j^the 
 part of the prisoners, recalled a witness for the prosecution, and then, judge, 
 addressing the prisoner's counsel, inquired if he had any question to ask 
 
 (d) Rex v. Symonds," 1 C. & P. 84, Hullock, B. Rex v. Whitbread, ibid., note(a). In 
 Rex v. Beezeley, b 4 C. & P. 220, Littledale, J., said that the counsel for the prosecution ought 
 to call all the witnesses on the back of the bill ; and in many cases on the Oxford Circuit, 
 learned judges have directed the counsel for the prosecution to call every witness on the 
 back of the bill, and it has been treated as if the counsel for the prisoner had a right to 
 have them all called by the counsel for the crown, in order to enable him to cross-examine 
 them. Indeed the cases have gone further than this; as it has been held on several occa- 
 sions that witnesses, not on the back of the bill, but who were acquainted with the facts of 
 the case, ought to be called on the part of the prosecution. In Reg. v. Holden, c 8 C. & P. 
 606, on an indictment for murder, Patteson, J., directed the daughter of the deceased, whose 
 name was not on the back of the indictment, to be called, saying, " every witness who was 
 present at a transaction of this sort ought to be called, and even if they give different ac- 
 counts, it is fit that the jury should hear their evidence so as to draw their own conclusion 
 as to the real truth of the matter." And in the same case it appearing that there had been 
 a. post-mortem examination of the body of the deceased, by a surgeon who was examined, and 
 another surgeon who was in court, and that there was some difference of opinion as to the 
 cause of the death, Patteson, J., said, " as the surgeon is in court, I shall insist on his being 
 examined. He is a material witness, who is not called on the part of the prosecution, and 
 as he is in court I shall call him for the furtherance of justice." And he was called and 
 examined by the learned judge. In Reg. v. Chapman/ 1 8 C. & P. 558, Lord Abinger, C. B., 
 directed the name of the brother of the prisoner, who was present at the time when the 
 murder was alleged to have been committed, to remain on the back of the bill, and said the 
 counsel for the prosecution would best discharge his duty by calling him as a witness on 
 the trial. See also Reg. v. Orchard, ibid., note (b). In Rex v. Bodle, e 6 C. & P. 186, Gase- 
 lee, J., and Vaughan, B., held that it was in the discretion of the judge whether a witness, 
 whose name is on the back of the indictment, should be called for the prisoner's counsel to 
 examine him before the prisoner was called on for his defence ; and the father of the prisoner 
 having been examined before the coroner, and bound over to give evidence at the assizes 
 against the prisoner for murder, the learned judges held that the father ought to be called ; 
 and he was called, and asked as to statements he had made respecting the murder, with a 
 view of discrediting him and contradicting him, and thereby raising a suspicion that the 
 witness might have committed the murder himself; and it was held that as the father had 
 not been examined by the counsel for the prosecution, and had been only called at the 
 instance of the counsel for the prisoner, the latter could not be allowed to call witnesses to 
 contradict him as to the different accounts he had given respecting the murder. In Reg. v. 
 Vincent/ 9 C. & P. 91, Alderson, B., held that the calling such a witness in felony was dis- 
 cretionary, but it was a discretion always exercised, and he thought it might well be exer- 
 cised in a case of misdemeanor. It seems that where a witness is to be called and examined 
 by the counsel for the prisoner, the counsel for the prosecution has a right to examine him. 
 Rex v. Beezeley,s 4 C. & P. 220, infra, note (/). But it is said to have been decided that 
 where the counsel for the prosecution declines to call the witness, and he is called by the 
 judge, the counsel for the prosecution has not the right to examine the witness. By Clark- 
 son, in Rex v. Harris, h 7 C. & P. 581. C. S. G. 
 
 (e) Dickinson v. Shee, 4 Esp. 67. (/) 1 Stark. Ev. 188. 
 
 (ff) See also the observations of Abbott, C. J., in Bastin v. Carcw, Ry. & Mood, N. P. C. 
 127. 
 
 3 Eng. Com. Law Reps. xi. 322. » lb. xix. 353. c lb. xxxiv. 547. a lb. xxxiv. 523. 
 c lb. xxv. 347. f lb. xxxviii. 48. e lb. xix. 353. b lb. xxxii. 640.
 
 919 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Re-exami- 
 nation. 
 
 Re-exanii- 
 nation of 
 a witness 
 called by 
 the direc- 
 tion of the 
 judge. 
 
 upon it, saying, that although he as judge had recalled the witness for 
 the purpose of justice, he thought it right that the prisoner's counsel 
 should have the opportunity of cross-examining the witness again. (A) 
 
 The object of re-examining a witness being merely to explain the 
 facts stated by the witness on cross-examination, he cannot be re- 
 examined as to any facts unconnected with it; but if any material 
 question has been omitted in the examination in chief, the practice is 
 to suggest it to the court, who will put it to the witness, or decline to 
 do so, at his discretion. (A 
 
 Where a witness whose name was on the back of the indictment was 
 called by the counsel for the crown, by the direction of the judge, in a 
 case of murder, but asked no question by him, and on being cross-ex- 
 amined by the counsel for the prisoner, stated many facts in the pri- 
 soner's favour ; and the counsel for the crown proposed to ask the wit- 
 ness as to something that had occurred at an earlier part of the day on 
 which the deceased was killed ; Littledale, J., held that this c raid not 
 be allowed. This was strictly a re-examination, and no question could 
 be put which did not arise out of the cross-examination. If the prose- 
 cutor's counsel did not choose to examine in chief, he could not be 
 allowed to lie by, and see what the prisoner's counsel did on cross-ex- 
 amination, and then enter into a fresh examination of the witness, as to 
 new facts against the prisoner. (_/) 
 
 The same principle is observed with reference to the conduct of the 
 entire case, as to the restriction on the evidence in reply to the defend- 
 ant's case. After the close of the case for the defendant, the general 
 rule is, that the evidence in reply must bear directly or indirectly upon 
 the subject-matter of the defence, and ought not to consist of new mat- 
 ter unconnected with the defence, and not tending to controvert or dis- 
 pute it.(AA This is the general rule made for the purpose of prevent- 
 ing confusion, embarrassment, and waste of time ; but it rests entirely 
 in the discretion of the judge whether it ought to be strictly enforced 
 or remitted, as he may *think best for the discovery of truth and the 
 administration of justice/?) 
 
 Where on an indictment for larceny, the case for the crown rested 
 merely on the fact of the stolen property being found in the house of 
 the prisoner soon after it was lost, and a witness for the defence proved 
 that the prisoner bought the property from a third person, who was 
 called by the counsel for the crown to prove not only that the prisoner 
 did not buy the property of him, but that he saw the prisoner steal it ; 
 it was held that his evidence was only admissible as far as it went to 
 destroy the case set up on the part of the prisoner, that is to show that 
 the prisoner did not buy the property of hiin.(m) So where the defence 
 of the prisoners was an alibi, viz., that they were at a public house a 
 considerable distance from where the offence was committed, and it was 
 proposed on the part of the crown to prove in reply that the prisoners 
 
 Evidence 
 in reply 
 must be 
 confined to 
 the contra- 
 diction of 
 the evi- 
 dence for 
 the de- 
 fence. 
 
 *920 
 
 Simpson's 
 case. 
 
 Hilditch's 
 case. 
 
 (h) Rex v. Watson," 6 C. & P. 653. 
 
 (i) 2 Phill. Ev. 408. See post, p. 937, as to re-examining a witness who had been cross- 
 examined respecting his former statements and declarations. 
 
 (?) Rex i>.Beezlev, b 4 C. & P. 220. 
 
 (k) 2 Phill. Ev. 408. (I) 2 Phill. Ev. 408. 
 
 (m) Rex v. Stimpson, 2 C. & P. 415,° Garrow, B. Mr. Phillipps observes, this was 
 carrying the rule very far, as the fact of seeing the prisoner steal the goods would be 
 strong evidence that he did not buy them." 2 Phill. Ev. 410. 
 
 a Eng. Com. Law Reps. xxv. 580. b lb. xix. 353. « lb. xii. 197.
 
 CHAP. V. § II.] EXAMINATION OF WITNESSES. 920 
 
 vrere seen near the spot at which the robbery was committed, and that, 
 therefore, they could not have been in the public house; Taunton, J., 
 rejected the evidence, saying, "proving that the parties were near the 
 place at which the offence was committed is evidence in chief, and not 
 evidence in reply. Whatever is a confirmation of the original case can- 
 not be given as evidence in reply ; and the only evidence, which can be 
 given as evidence in reply, is that which goes to cut down the case on 
 the part of the defence, without being any confirmation on the case on 
 the part of the prosecution. "(n) But where, on a similar indictment, Briggs's 
 a similar defence was set up; Alderson, B., permitted a person, who case - 
 had been robbed on the road near the place where the prosecutor was 
 robbed, to prove not only that he saw the prisoner there, but the whole 
 circumstances under which he met the prisoner.(o) And so where in Brig°-s v. 
 an action for an injury occasioned by the defendant through negligently Ayns- 
 driving a carriage, the plaintiff's witnesses described the carriage as wor " 
 having been driven by the defendant when the accident occurred at 
 Layton, and other witnesses spoke to the defendant having been seen 
 in the neighbourhood of Layton about the time in question ; and the 
 defendant called witnesses to prove that, at the time in question, he was 
 at Richmond, and the plaintiff then tendered other witnesses to show 
 that the defendant was not at Richmond, but at Layton ; Lord Den- 
 man, C. J., held that it would, perhaps, have been more correct had the 
 plaintiff, in the first instance, called the witnesses then tendered, but he 
 did not think that he could, even at this period of the cause, exclude 
 the evidence from the jury, which certainly went to contradict the de- 
 fendant's alibi. (p) And where on an indictment for horse stealing, Fi nc j on ' s 
 the defence was an alibi, which went to show that the prisoner, on the case. 
 7th and 8th of March, was at places many *niiles from the place where *921 
 the horses were stolen, and on the 9th returned home; Tindal, C. J., 
 permitted a witness to be called to prove that the prisoner, when taken 
 into custody on the 10th of March, said that he had been at home ever 
 since the Wednesday before. (j) 
 
 It has already been remarked, that a witness cannot be cross-ex- Examina- 
 amined as to a written document in the possession of the party who tl ? n of 
 
 ii i • / \ i ,i i i ,i , • • i i witnesses 
 
 calls him ;(rj and the rule is general, that a witness cannot either be generally, 
 examined in chief or cross-examined, as to the contents of a written with 1- efer- 
 document, not produced ; yet, in civil cases, he has sometimes been wr itten 
 allowed to be examined as to the general result from a great number of documents. 
 documents, too voluminous to be read in court, (s) 
 
 A witness may refresh his memory by means of a written instrument, Written 
 which cannot itself be legally produced in evidence. Mr. Phillipps (ss) ^nts" 
 divides the cases in which a witness may be allowed to refresh his used to 
 
 (n) Rex v. Ililditch," 5 C. & P. 299. 
 
 (o) Reg. v. Briggs, 2 M. & Rob. 199. Rex v. Hilditch does not appear to have been cited 
 in this case. It may have been thought in this case that the evidence of the second robbery 
 was not essential on the part of the prosecution until the alibi was set up, and that that 
 rendered the proof of the second robbery essential. See the cases collected, ante, p. 774, ct 
 
 acq. C. S. G. 
 
 (p) Briggs v. Aynsworth, 2 M. & Rob. 168. See a learned note to this case by the re- 
 porters. And See Reg. v. Frost, b 9 C. & P. 159. 
 
 (q) Rex v. Findon," 6 0. & P. 132. (r) Ante, p. 917. 
 
 (s) Meyer v. Sefton, d 2 Stark. N. P. C. 276. Roberts v. Doxon, Peake, N. P. C. 83. 
 
 (ss) 2 Phill. Ev. 411. 
 
 a Eng. Cora. Law Reps. xxiv. 330. b lb. xxxvii. 70. ° lb. xxv. 317. 
 
 a lb. iii. 343.
 
 921 OF EVIDENCE. [BOOK VI. 
 
 refresh the memory into three classes. First, where the writing serves only to re- 
 memory. y j ve or aggjgj th e memory of the witness, and to bring to his mind a 
 recollection of the facts. Secondly, where the witness recollects having 
 seen the writing before, and though he has no independent recollection 
 of the facts mentioned in it, yet remembers that at the time he saw it, 
 he knew the contents to be correct. Thirdly, where it brings to the 
 mind of the witnesses neither any recollection of the facts mentioned in 
 it, nor any recollection of the writing itself, but, nevertheless, enables 
 him to swear to a particular fact, from the conviction of his mind on 
 seeing a writing which he knows to be genuine. In the first class of 
 cases, where the memory of the witness has been revived by the pre- 
 vious inspection of the writing, it is not necessary, as a condition of the 
 admission of his oral testimony, that the writing should be produced 
 in court; but the absence of it might afford matter of observation.^] 
 In the two last classes of cases the writing must be produced. («) 
 
 Where, in order to prove the taking of a tenement, witness produced 
 a book containing an entry made by him of the terms of the taking, and 
 stated that he had no memory of them but from the book, without 
 which he should not of his own knowledge be able to speak to the 
 facts, but on reading the entry he had no doubt that the facts really 
 happened ; the court held that the witness might look at the entry to 
 refresh his memory, and give parol evidence of the letting.^) So 
 where a receipt for money has been given on unstamped paper, it may 
 be used by the witness, who saw it given, to refresh his memory. (*/;) 
 And where a witness, who had received money and given a receipt for 
 it, which could not be read in evidence for want of a proper stamp, had 
 become blind, the receipt was allowed by Abbott, C. J., to be read over 
 to him in court, (he being informed that the paper was in his hand 
 writing,) in order to refresh his memory.(a;) So to prove an act of 
 *922 bankruptcy ^committed some years back, a deposition made at the time 
 by an aged witness, was allowed by Lord Kenyon, to be read to him 
 for the same purpose.^) 
 Rule as to The general rule is, that a witness, to assist his memory, may use a 
 memoran- wr itten entry, if it were made by himself shortly after the occurrence 
 refresh the of the fact to which it relates ; but if he cannot speak to the fact from 
 memory, recollection, any further than as finding it entered in a book or paper, 
 such book or paper ought to be produced, and if not evidence, the tes- 
 timony of the witness amounts to nothing.(^)f Although in general, 
 the entries ought to have been made by the witness himself, yet if 
 another wrote them, and the witness regularly examined them from time 
 
 (t) 2 Phill. Ev. 411. (u) 2 Phill. Ev. 412. Doe v. Perkins, 3 T. R. 754. 
 
 (v) Rex v. St. Martin's, 8 Leicester, 2 A. & E. 210. (w) Rambert v. Cohen, 4 Esp. 213. 
 
 (x) Catt v. Howard, b 3 Stark. N. P. C. 3. See also Jacob v. Lindsay, 1 East, 460. 
 
 (y) Vaughan v. Martin, 1 Esp. N. P. C. 440. 
 
 (z) Doe v. Perkins, 3 T. R. 749. See Henry v. Lee, 2 Chit. Rep. 124. }1 Stark. Ev. 154. 
 3 Wend. 142, Halladay v. Marsh. 5 lb. 301, Lawrence v. Barker. 12 Serg. & Rawle, 328, 
 Babb v. Clemson.} 
 
 f {In 2 Nott & M'Cord, 381, State v. Rawle, it was held that if a witness swear that he 
 made the entry at the time the facts occurred, for the purpose of perpetuating the memory 
 of them, and that he knows from the memorandum that the facts did exist — it is good evi- 
 dence, though he does not retain a distinct recollection of the facts themselves. 
 
 It is proper for a witness who swears to the correctness of his notes of a transaction, and 
 that without them his recollection of the fact is indistinct, to read those notes to the jury. 
 Peck"s R. 108, Rogers v. Burton.} 
 
 a Eng. Com. Law Reps. xxix. 78. b lb. xiv. 143.
 
 CHAP. V. § II.] EXAMINATION OF WITNESSES. 922 
 
 to time, soon after they were written, and while the facts stated in them 
 were fresh in his recollection, he may refresh his memory by referring 
 to them, as if he had written them with his own hand. (a) So where a 
 witness by looking at a written paper has his memory so refreshed that 
 he can speak to the facts from a recollection of them, his testimony is 
 clearly admissible, although the paper may not have been written by 
 him. (6) But where the witness neither recollects the fact, nor the truth 
 of the account in writing, and the writing was not made by him, his 
 testimony, so far as it is founded on the written paper, would be objec- 
 tionable as hearsay; the witness can be no more permitted to give 
 evidence of his inference from what a third person has written, than 
 from what a third person has said.(c) 
 
 It has been held that a witness will not be allowed to refresh his By a copy 
 memory with a copy of a paper, though the copy was made by himself, a P a P er - 
 and though the writing might have been used for the purpose. Thus, 
 it has been held that a witness cannot refresh his memory by a copy of 
 an original memorandum, made by him six months after he wrote the 
 original, although the original was so covered with figures as to be ille- 
 gible.^) But it is said that in analogy to the ordinary rules of docu- 
 mentary evidence, a copy may be used to refresh the memory, on proof 
 that the original is lost.(e) And two cases are reported, where it is said 
 to have been held that a witness might refresh his memory by a copy.f/) 
 And where a clerk to a tradesman entered the transactions in trade as 
 they occurred into a waste-book *from his own knowledge ; and the *923 
 tradesman copied the entries day by day into a ledger, in the presence 
 of the clerk, who checked them as they were copied ; it was held that 
 the clerk might use the entries in the ledger to refresh his memory, 
 although the waste-book was not produced, nor its absence accounted 
 for ; as the entries in the ledger were in the nature of entries made by 
 the clerk himself, fa) A witness cannot refresh his memory by extracts 
 made by another person from minutes or memoranda made by the wit- 
 ness himself, (/i) 
 
 It is not essential that the memorandum should have been contem- At what 
 
 (a) Burrough v. Martin, 2 Campb. 112. The entries were in a log-book. (1 Minor's (Alab.) 
 Rep. Beddo v. Smith.} 
 
 (b) 2 Phill. Ev. 413, citing the Duchess of Kingston's case, 20 How. St. Tr. 619, and other 
 cases. In Lawes v. Reed, 2 Lew. 152, Alderson, B., held that a witness might refresh his 
 memory from the notes of counsel taken on his brief at a former trial; and he mentioned 
 Balme v. Hutton, where a witness had been allowed to refresh his memory from a note taken 
 by Parke, B. He, however, observed that the witness must afterwards speak from a re- 
 freshed memory, and not merely from the notes. 
 
 (c) 2 Phill. Ev. 413. (d) Jones v. Stroud," 2 C. & P. 196, Best, C. J. 
 (e) 1 Stark. Ev. 179, and 2 Phill. Ev. 416. 
 
 (/) Tanner v. Taylor, cited in Doe v. Perkins, 3 T. R. 749, where a witness produced a 
 copy of the day-book which he had left at home; and Legge, B., held that if he could swear 
 positively to the delivery from recollection, and the paper was only to refresh his memory, 
 he might make oath of it; but if he could not from recollection swear any further than as 
 finding the matters entered in the book, then the original should have been produced. And 
 Anonymous, 1 Lew. 101, where Baylcy, J., is reported to have held that a witness cannot 
 give a copy of a shop-book in evidence to prove facts contained in the shop-book, but if he 
 was originally acquainted with the facts he might refer to such copy to refresh his memory. 
 
 (ff) Burton v. Plummer, b 2 A. & E. 341. In this case, Patteson, J., said, " The copy of an 
 entry, not made by the witness contemporaneously, does not seem to me to be admissible for 
 the purpose of refreshing a witness's memory. The rule is, that the best evidence must be 
 nroduced, and that rule appears to me to be applicable, whether the paper be produced as 
 evidence in itself, or used merely to refresh the memory." 
 
 (h) 2 Phill. Ev. 414, citing a case mentioned by Lord Kenyon, C. J., in Doe v. Perkins, 3 
 T. R. 722. 
 
 a Eng. Com. Law Reps. xii. 86. b Ib. xxix. 113.
 
 928 OF EVIDENCE. [BOOK VI. 
 
 time the porary with the fact ; it seems to be sufficient if it has been made by the 
 memoran- AV ; tness or by another with his privity at a time when the facts were 
 be madJ fresh in the recollection of the witness, and that the reading such me- 
 morandum restores the recollection of the fact which had faded in the 
 The ad- memory, or enables him to swear to the truth of the fact,(/) "When 
 verse party a w jtness refreshes his memory from memorandums, it is always 
 aTthe 00 ' usual, and very reasonable, that the adverse counsel should have an 
 memoran- opportunity of looking at them, when he is cross-examining the wit- 
 
 dum. l , . s 
 
 ness v) 
 
 Examina- The general rule is, that a witness must not be examined as to his 
 tion as to opinion, for his testimony must be confined to evidence of facts : but in 
 opinion. q Ues tions of skill and judgment, men of science or experience are allowed 
 Questions to give evidence of their opinion.| Thus, in a civil case, in an inquiry 
 of s 1 k . iU , as to an embankment choking up a harbour, an engineer has been ad- 
 mem" S ~ mittecl to prove, from his own experiments, what were the effects of 
 natural causes upon that particular harbour, and on other harbours 
 similarly situated on the same coast, and that the removal of the bank 
 would not, in his opinion, restore the harbour. (&) So shipbuilders have 
 been admitted to state their opinion on the sea-worthiness of a ship, 
 from examining a survey, which had been taken by others, and at which 
 they were not present. (A Where the question is whether a seal has 
 
 (i) 1 Stark. Ev. 176. 2 Phill. Ev. 414. 
 
 (/) B 7 E y re > C J., in Hardy's case, 24 How. St. Tr. 824. 2 Phill. Ev. 411. Sinclair v. 
 Stevenson, 3 1 Carr. & P. 582. But if a paper is put into a witness's hands merely to prove 
 a handwriting, the other side have no right to see it. Ibid.,^«- Best, C. J. If a counsel, in 
 cross-examination, put a paper into the witness's hands to refresh his memory, the opposite 
 counsel has a right to look at it, without being bound to read it in evidence. And he may 
 also ask the witness when it was written, without being bound to read it. Rex v. Ramsden, b 
 2 C. & P. 604, by Lord Tenterden. Howard v. Canfield, 5 D. P. R. 417. 
 
 (k) Folkes v. Chad, MS. 1 Phill. Ev. 291, 7th ed., cited by Buller, J., in Goodtitle v. 
 Braham, 2 T. R. 498. So the opinion of a person conversant with the business of insurance 
 may be asked as to whether the communication of particular facts would have varied the 
 terms of insurance, though not what his conduct would have been iu the particular case. 
 Berthon v. Loughman, 2 Stark. N. P. C. 258, cor. Holroyd, J., but see contra Durrell v. Bed- 
 erly, d Holt, N. P. C. 286, by Gibbs, C. J. 
 
 (I) Thornton v. Royal Exchange Assurance Company, Peake, N. P. C. 25. Chaurand v. 
 Angerstein, ibid., 43. Beckwith v. Sydebotham, 1 Camp. 117. 
 
 f {An experienced land surveyor may give his opinion whether certain heaps of stones, 
 and marks on trees, were intended as monuments of boundaries. 4 Pick. 156, Davis 
 v. Mason. The attesting witnesses to devise may give their opinion as to the sanity of the 
 devisor. Aliter, of other witnesses, 5 Pick. 510, Needham v. Ide. 3 Stark. Ev. 1707, note 
 (2). [New Ed. Vol. 2, 932.] See also 4 Cowen, 355, M'Kee v. Nelson. 3 N. Hamp. R. 249, 
 Town of Rochester v. Town of Chester. 6 Connect. R. 9, Morse v. The State. 14 Serg. & 
 Rawle, 137, Kellog v. Krauser.} 
 
 [A party is not entitled to ask the opinion of a professional witness upon any question 
 except one of skill or science. The People v. Bodine, 1 Denio, 281. 
 
 A witness, not a professional man, may give his opinion in evidence in connection with 
 the facts upon which his opinion is founded and as derived from them; though he could not 
 be allowed to give his opinion founded upon facts proved by other witnesses. Morse v. 
 Crawford, 17 Vermont, 499. 
 
 The opinions of witnesses that a house is a nuisance as it is kept, is incompetent to estab- 
 lish the fact that it is a nuisance. Smith v. The Commonwealth, 6 B. Monroe. 21. 
 
 As to when the opinions of experts are evidence and the effect of such evidence, see State 
 v. Clark, 12 Iredell, 151. Those who testify to these opinions must be experts. The State 
 x. Cheek, 13 Iredell, 114. M' Lean v. The State, 16 Alabama, 672. Laning v. The State, 1 
 Chandler, 178, 264. 
 
 Experts are not allowed to give their opinions on the case when its facts are controverted; 
 but counsel may put to them a state of facts and ask their opinions thereon. United States 
 v. M-Glue, 1 Curtis, C. C. 1. 
 
 An experienced physician, after having made $. post-mortem examination of the body of a 
 female, may, as an expert offer his opinion as to whether she had been pregnant, and what 
 was the cause of her death. The State v. Smith, 32 Maine, 369.] 
 
 »Eng. Com. Law Reps. xi. 480. b lb. xii. 284. «Ib. iii. 340. d Ib. iii. 104.
 
 CHAP. V. § II.] EXAMINATION OF WITNESSES. 923 
 
 been forged, seal engravers may be called to show the difference between 
 a genuine impression, and that supposed to be false. (m) So on an iu- 
 dictment for forging a will, which, together with writings *in support of *924 
 it, it was suggested had been written over pencil marks, which had been 
 rubbed out; an engraver who had examined the paper with a mirror 
 and traced the pencil marks, was held competent to give evidence of 
 what he had discovered upon such examination. (n\ So in several cases 
 where the genuineness of certain handwriting has been in question, per- 
 sons skilled in the examination of handwriting, and in the detection of 
 forgeries, as inspectors of franks, and clerks of the post-office, have 
 been allowed to state their opinion, whether a particular writing is in a 
 genuine or imitated character.(o) But the authority of these cases has 
 been shaken by the case of Gurney v. LanglandsJp). in which an issue 
 having been directed to satisfy the Court of King's Bench as to the 
 forgery of a signature to a warrant of attorney ; Wood, B., refused to 
 admit the evidence of an inspector of franks at the post-office, who, 
 having never seen the party write, was called to prove, from his know- 
 ledge of handwriting in general, that the signature in question was not 
 a genuine signature, but an imitation. On a motion for a new trial, the 
 court refused to disturb the verdict, some of the judges expressing 
 doubts, whether the evidence was admissible, and all of them consider- 
 ing it, if admissible, not entitled to any weight. (5) j - 
 
 In criminal cases, the opinions of medical men of science are very Medical 
 frequently employed as evidence. A physician who has not seen the men - 
 patient, may, after hearing the evidence of others, be called to prove on 
 his oath, the general effect of the disease described by them, and its 
 probable consequences in the particular case.(/-) The testimony of medi- 
 cal men is constantly admitted with respect to the cause of disease, or 
 of death, in order to connect them with the particular acts, and as to 
 the general sane or insane state of the mind of the patient, as collected 
 from a number of circumstances. Such opinions are admissible in 
 evidence, although the professional witnesses found them entirely on 
 the facts, circumstances and symptoms established by others, and with- 
 out being personally acquainted with the facts, (.s) Thus, where on a 
 trial for murder the medical witnesses called on the part of the prosecu- 
 tion ascribed the death to strangulation, other medical men called on 
 
 (m) By Lord Mansfield in Folkes v. Chad, ubi supra. Ante, p. 395. 
 
 (n) Reg. v. Williams, 51 8 C. & P. 434, Parke, B., after consulting Tindal, C. J. 
 
 (o) Goodtitle v. Braham, 4 Tr. 497. Rex v. Cator, 4 Esp. N. P. C. 117, 145. Stranger*. 
 Searle, 1 Esp. 14. 
 
 (p) 4 B. & A. b 330. Ante, p. 394, and see Doe d. Mudd v. Suckermore, ante, p. 820. 
 
 (q) See also the case of Gary v. Pitt, Peake, Ev. App. 84, in which Lord Kenyon refused 
 to receive the evidence of an inspector of franks at the post-office, as to whether he thought 
 the defendant's acceptance a genuine handwriting, or otherwise ; and his lordship said, that 
 though such evidence was received in Revett v. Braham, he had in his charge to the jury 
 laid no stress upon it. Mr. Baron Wood, in his report in the case of Gurney v. Langlands, 
 observed, " Opinions of skilful engineers, mariners, &c, may be given in evidence on matters 
 depending upon skill, viz., as to what effect an embankment in a particular situation may 
 have upon a harbour, or whether a ship has been navigated skilfully : because in such cases 
 the witness has a knowledg of the alleged cause, and his skill enables him to judge and form 
 a belief to that effect." (r) Peake, Ev. 190. (.s) 1 Stark. Ev. 175. 
 
 f [It seems that the rule sometimes allowed to prevail admitting experts to give an opin- 
 ion whether a signature is genuine or imitated is not well established upon authority, and 
 that such testimony is incompetent. Per Bronson, C. J., in The 1'eople v. Spooner r 1 Dcuio, 
 343. See ante, p. 393, note.] 
 
 " Eng. Com. Law Reps, xxxiv. 466. b lb. vii. 1 1.8. 
 
 Vol. ii.— 60
 
 924 OF EVIDENCE. [BOOK VI. 
 
 behalf of the prisoner were allowed to give their opinion that from the 
 evidence they had heard upon the trial the death did not arise from 
 strangulation, although they had not seen the body of the deceased and 
 had no means of forming a judgment of the cause of his death, except 
 *925 from *the evidence given in court.(A So in prosecutions for murder, 
 medical men have been allowed to state their opinion, whether the 
 wounds, described by witnesses, were likely to be the cause of death. (w) 
 So in a case of murder,(v) where the defence was insanity, the twelve 
 judges were unanimous in thinking that a witness of medical skill might 
 be asked, whether, in his judgment, such and such appearances were 
 symptoms of insanity, and whether a long fast, followed by a draught 
 of strong liquor, was likely to produce a paroxysm of that disorder in 
 a person subject to it. But several of the judges doubted whether the 
 witness could be asked his opinion on the very point which the jury 
 were to decide, viz., whether, from the other testimony given in the case, 
 the act as to which the prisoner was charged, was in his opinion an act 
 of insanity. (w\ And it has been since held that a physician who had 
 heard the whole evidence on a trial for murder might be asked whether 
 the facts and appearances proved showed symtoms of insanity. (x) 
 Opinion A person of experience in the profession of the law of another coun- 
 
 ^f t0 tiT * r y ma y ^ate hi s opinion, what, according to the law of that country, 
 country, would be the legal effect of the facts previously spoken to by the wit- 
 nesses, taking the facts to be accurate. (y\\ 
 Separate It is usual for the court, at the instance of either party, in criminal 
 tion™fw~it- as we ^ as c * v ^ cases, to make an order that the witnesses, intended to 
 nesses. be examined on either side, shall remain out of court during the exami- 
 nation of the other witnesses ){z)% and it has been held that if any per- 
 son be present contrary to that order, he cannot on any account be per- 
 mitted to be examined, (a)§ although he be the attorney in the cause. (b\ 
 But in a late case,(c) Littledale, J., said, that an attorney was not 
 
 it) Rex v. Shaw, Stafford Spr. Ass. 1834, cor. Patteson, J. S. C. 6 C. & P.* 372. 
 
 (w) 1 Phill. Ev. 290, 7th ed. {2 Halsted, 244, State v. Powell.} 
 
 («) Rex v. Wright, Russ. & Ry. C. C. R. 456. 
 
 (w) It seems that in Reg. v. M'Naughton, such questions were allowed to be asked. 29 
 LawMag. 396. 
 
 (x) Rex v. Searle, 1 M. & Rob. 75. 
 
 (y) Rex v. "Wakefield and others, cor. Hullock B., Murray's ed., p. 238, in which case a 
 gentleman at the Scotch bar was examined as to whether the marriage, as proved by the 
 witnesses, would be a valid marriage according to the Scotch law. See ante, p. 810. " 
 
 (z) The order is made, on the application of a prisoner as an indulgence, not as a matter 
 of right. 1 Chit. Cr. L. 618. 1 Burn. Just. tit. Evidence, p. 999. 
 
 (a) Attorney-General v. Bulpit, 9 Price, 4. 
 
 \b) Rex v. Webb, cor. Best, J., MS. Mann. Dig. P. 324. 
 
 (c) Pomeroy v. Baddeley, b R. & M. N. P. C. 430. And it is now the ordinary course to 
 permit, not only attorneys, but professional or scientific persons to remain in court, the rule 
 being considered as not applying to witnesses of those descriptions. C. S. G. 
 
 f {See 2 Haggard's C. Rep. 62, et seq. [Eng. Eccl. R. iv. 487.] 1 ib. 216, [Eng. Eccl. R. 
 iv. 367, et seq. 324, et seq.] [Eng. Eccl. R. iv. 422.] 4 Bing. 699, [Eng. Com. L. Rep. xv. 
 118,] Douglas v. Forrest. Ace.} [Rose. Dig. Cr. Ev. 138, m] 
 
 X -jSee 9 Pick. 496, that in a capital trial, the court will, on motion, exclude from the 
 court room all the witnesses, except the one under examination.} 
 
 \ {In Parker v. M'Williams, 6 Bing. 683, [Eng. Com. L. Rep. xix. 204,] it was held to be 
 a matter of discretion in the judge, (except in the Court of Exchequer, where he is peremp- 
 torily excluded,) whether a witness shall be examined, who remains in court after an order 
 for the witnesses on both sides to withdraw. 
 
 A bystander, or a witness not ordered to remain out of court, may be called to impeach 
 the credit of a witness who is examined separately. Peck's R. 361,' Wood v. M'Pheron.j 
 
 [See contra State v. Sparrow, 2 Murphy, 487.] 
 
 » Eng. Com. Law Reps. xxv. 443. <> lb. xxi. 482.
 
 CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 923 
 
 within the rule, and might remain, and still be admissible as a witness, 
 his assistance being in most cases absolutely necessary to the proper 
 conduct of a cause. And it appears now to be settled that it is in the 
 discretion of the judge whether he will allow the witness to be ex- 
 amined if he has been in court in defiance of an order to withdraw. ((i) 
 
 Upon the trial of a misdemeanor, the defendant is not entitled to the *926 
 assistance of counsel to cross-examine witnesses, when he reserves to Counscl 
 himself the right of addressing the jury ; but counsel *may argue for croS s-ex- 
 him any points of law that arise, and may suggest the questions to be amine if 
 
 . i . / \ defendant 
 
 put to the jury.(e) addresses 
 
 Though the counsel for the prosecution had closed his case, and the the jury, 
 counsel for the prisoner had taken an objection as to a defect in the evi- ma t ^ S<5 
 dence, the judge is at liberty to make any further inquiry of the wit- amine wit- 
 nesses he thinks fit, in order to answer the objection. In Rex v. Rem- n l sses 
 
 j, ■, . . „ „, after case 
 
 nant,(/) on a case reserved for the opinion or the judges, none of them closed and 
 
 seemed to have any doubt but that it was competent and proper for the objection 
 judge to do so. 
 
 SECT. III. 
 Sow the credit of Witnesses may be Impeached. 
 
 There are four methods by which a person may impeach the credit Method of 
 of a witness who is called against him, besides the disproval of the l^credit 
 facts stated by the witness. 1. By cross-examination. 2. By proof of witness. 
 of statements made by him previous to his examination, inconsistent 
 with his present evidence. 3. By proof of his acts and declarations 
 touching the matters at issue. 4. By general evidence of his character. 
 
 1. As to impeaching the credit of a witness by cross-examination. f 
 If a witness be asked a question, for the purpose of showing him un- l - Bv 
 worthy of credit, the answer to which has a tendency to expose him to amination 
 a penalty, or to any kind of punishment, or to a criminal charge, ^as, of the wit- 
 for instance, if he be asked whether he has been guilty of theft, fraud, his own 
 or any offence subjecting him to a penalty or criminal proceeding,) he conduct, 
 is not obliged to answer.(y)J So far has this principle been carried, that c * 
 
 (d) Parker v. M'William, a 6 Bingh. R. 683. Beamon v. Ellice," 4 C. & P. 585, Taunton, 
 J. Rex v. Colley, c M. & M. 339, where Littledale, J., after consulting Gaselee, J., said it 
 depended on the circumstances of the case whether such a witness ought to be examined. 
 In Rex v. Wylde, d 6 C. & P. 380, Park, J. A. J., rejected a witness, saying, " I will always 
 in a criminal case reject a witness remaining in court after all the witnesses on both sides 
 have been ordered to leave it." 
 
 (e) Rex v. White, 2 Campb. 98, cor. Lord Ellenborough. Rex v. Parkins," 5 R. & M. N. P. 
 C. 166, cor. Abbott. C. J. {S. P. 4 N. Hamp. R. 562.} 
 
 (/) Russ. & Ry. C. C. R. 136. 
 
 (</) See the cases collected, 2 Phill. Ev. 417. 1 Stark. Ev. 190. See also ante, p. 916, as 
 to the obligation to answer where the answer might subject to a civil suit. The protection 
 is not confined to questions where the answer would lead to an immediate conclusion of 
 
 | [A witness may be impeached by proving that he is not worthy of credit, or that the 
 facts to which he deposed, arc not true, or by cross-examination in which lie may be in- 
 volved in inconsistencies. If the witness is impeached in either of these modes, evidence 
 of his general good good character is admissible. Richmond v. Richmond, lo Yerger, 343.] 
 J [At common law, no one can be compelled to testify to facts, showing himself guilty of 
 ■ Eng. Com. Law Reps. xix. 204. b lb. xix. 537. c lb. xxii. 325. 
 
 d lb. xxv. 447. e lb. xxi. 404.
 
 Such 
 questions 
 
 •)2(t OF EVIDENCE. [BOOK VI. 
 
 Questions in an action for a libel, which was published by the defendant in a 
 
 tending to vo ] un t a ry affidavit, sworn extra] udicially before a magistrate, it was held 
 criminate J . > •' J 1 i i 
 
 that the magistrate s clerk was not bound to answer whether he wrote 
 
 the affidavit, and delivered it to the magistrate, because, as it was said, 
 the bare copying out of a libel is criminal. (A) So a witness is not bound 
 to answer whether he wrote an advertisement referring to libellous let- 
 ters which a prosecutor had received ; and though he is bound to 
 *927 answer whether he *knows in whose handwriting it is, he is not bound 
 to name the person, as it may be himself.(i) An accomplice who is 
 admitted to give evidence against his associate in guilt, though bound to 
 make a full and fair confession of the whole truth respecting the sub- 
 ject-matter of the prosecution, is not bound to answer with respect to 
 his share in other offences, in which he was not concerned with the pri- 
 soner ; for he is not protected for such offences. (/) So a witness in cus- 
 tody upon a charge of felony cannot be asked, " Have you not said 
 that you committed the offence, for which you are now in custody ?"(&) 
 But although a witness is not compellable to answer questions of this 
 description, it should seem that such questions may legally be asked. (1\\ 
 As to questions which are asked, upon cross-examination, for the pur- 
 iiiav be pose of throwing discredit on a witness, and which tend merely to dis- 
 asked. grace and degrade him, without subjecting him to a penalty or criminal 
 
 Questions .. . . . . 
 
 tending to charge, the authorities are conflicting on the point whether he is com- 
 
 guilt, but extends to all questions that tend to criminate the witness, "and the reason is 
 that the party would go from one question to another, and though no question might be 
 asked, the answer to which would directly criminate the witness, yet they would get enough 
 from him whereon to found a charge against him." Per Lord Tenterden, C. J. Rex v. 
 Slaney, a 5 C. & P. 213. Thus, where a witness in an action by the indorsee against the 
 drawer of a bill, where the defence was usury, was asked whether the bill had ever been in 
 his possession before, and the witness said he thought his answer would have a tendency to 
 convict him of the offence of usury, for which he had been indicted, it was held that he was 
 not bound to answer the question. Gates v. Hardacre, 3 Taunt. 424. 
 
 (h) Maloney v. Bartley, 3 Campb. 310. Rex v. Slaney, b 5 C. & P. 213. 
 
 (») Rex v. Slaney, 5 C. & P. 213, Lord Tenterden, C. J. 
 
 (j) West's case, MS. 2 Phill. Ev. 419. A witness who answers questions tending to crim- 
 inate himself on his examination in chief, is bound to answer on the cross-examination, 
 though his answer may criminate his life. Per Dampier, J. Manning's Index, tit. Witness, 
 pi. 222. See also East v. Chapman, 3 Mood. & Malk. 47. S. C. 2 C. & P. e 570, and in Dixon 
 v. Vale/ 1 C. & P. 278, Best, C. J., laid it down that if a witness, being cautioned that he is 
 not compellable to answer a question that may criminate him, chooses to answer it, he is 
 bound to answer all questions relative to that transaction, and cannot be allowed to object 
 that any further question has a tendency to criminate him. 
 
 (k) Rex i'. Pegler,« 6 C. & P. 521, Park, J. A. J., and Littledale, J. 
 
 (/) See the observations of the juderes in Rex v. Watson, h 2 Stark. 149, et seq .Rex v. 
 Holding and Wade, 0. B. 1821, cor. Bayley, J., MS. Archb. Crim. PI. 150. S. C. 1 Archb. 
 Pract. 193. Harris v. Tippet, 2 Campb. G37, cor. Lawrence, J. Contra, Rex v. Lewis, 4 Esp. 
 N. P. C. 225. M'Bride v. MBride, ibid, 242 ; but see 2 Phill. Ev. 426. Indeed, if the impu- 
 tation contained in a question is so connected with the inquiry and the point in issue, that 
 the fact may be proved by other evidence, and the adverse party intends to call witnesses for 
 that purpose, the witness proposed to be discredited must be asked whether he has been guilty 
 of the offence imputed, post, p. 931. 937. And Lord Tenterden has ruled that the counsel in 
 a cause have no right to object, in favour of a witness, that the answer to a particular ques- 
 tion renders him liable to punishment or forfeiture; such objection belongs to the witness 
 only. Thomas v. Newton, 1 Mood. & Malk. 48, note, (a), to East v. Chapman. 
 
 misdemeanor. Cook £ al. v. Spalding $ al., 1 Hill, 586. Ward v. The People, 3 Hill, 395. 
 Cloyes v. Thayer, ibid, 564. The State v. Douglass, 1 Missouri, 374. Ward v. The State, 11 
 Misssouri, 98.] 
 
 f {C Gowen, 254, Southard v. Rexford, and cases cited, 1 Stark. Ev. 136. note (2). Ace. 
 See also 2 M'Cord, 230, Nettles v. Harrison. J 
 
 % {See 1 Stark. Ev. 138, note (l).j- 
 
 a Eng. Com. Law Reps. xxiv. 285. b lb. xxv. 285. e ibid. d lb. xxii. 244. 
 
 e Ib. xii. 208. f Ib. xi. 391. s lb. xxiv. 436. » lb. xxii. 244.
 
 CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 027 
 
 pellable to answer them. In Cooke's case,(»i) on an indictment for degrade. 
 high treason, the prisoner, in order to challenge a juryman, asked him ties ^^ 
 if he had not said he was guilty and would be hanged. Lord Chief Jus- they need 
 tice Treby overruled the question, and said, " You may ask upon the B V™" 
 voire dire, whether he has any interest in the cause ; nor shall we deny Coke's 
 you liberty to ask, whether he be fitly qualified according to law by case> 
 having a freehold of sufficient value ; but that you may ask a juror or 
 witness every question that will not make him criminous, that is too 
 large. Men have been asked, whether they have been convicted and 
 pardoned for felony, or whether they have been whipped for petty lar- 
 ceny, but they have not been obliged to answer ; for, although their 
 answer in the affirmative will not make them criminal, nor subject them 
 to punishment, yet they are matters of infamy, and if it be an infamous 
 thing, that is enough to preserve a man from being bound to answer. 
 A pardoned man is not guilty : his crime is purged. But merely for 
 the reproach of it, it shall not be put upon him to answer a question, 
 whereon he will be forced to forswear or disgrace himself. So, persons 
 have been excused from answering, whether they have been committed 
 to Bridewell as pilferers* or vagrants, &c. ; yet to be suspected is only *928 
 a misfortune and shame, no crime. The like has been observed in other 
 cases of odious and infamous matters, which are not crimes indicta- 
 ble." 
 
 So in Layer's case,(n) the court would not allow the witness to be Layer's 
 examined on the voire dire, as to whether he had been promised a par- case " 
 don or reward for swearing against the prisoner; and Lord C. J. Pratt 
 said, "if the objection goes to his credit, must he not be sworn, and 
 his credit left to the jury? No person is to discredit himself, but is al- 
 ways taken to be innocent till it appear otherwise." In Sir John Friend's 
 case,(o) who was tried for high treason, it was held that a witness could 
 not be asked whether he was Roman Catholic, because he might sub- 
 ject himself to penalties by his answer ; and Treby, C. J., said, " No 
 man is bound to answer any questions that will subject him to penalties 
 or to infamy." The expressions of the two eminent judges mentioned 
 above are certainly very strong and direct on the point, that a witness 
 is not compellable to answer degrading questions put for the purpose of 
 discrediting him : at the same time it must be remarked, that such a 
 decision was not necessary in any one of the above cases. In the first, 
 (Cooke's case) the question was asked, not to discredit a witness, but 
 to exclude a juryman. In the second, (Layer's case,) the object of the 
 examination was not to show the witness unworthy of credit, but in- 
 competent to give evidence ; and in the last case, (Sir John Friend's) 
 there was a sufficient objection to the question, on the ground that the 
 answer might subject the witness to penalties. There are two modern 
 decisions at nisi prius, in accordance with the doctrine laid down by 
 the chief justices in the above cases. In Bex v. Lewis,(p) which was Lewis's 
 an indictment for an assault, the prosecutor, in the course of cross-ex- case " 
 amination, was asked if he had not been in the House of Correction in 
 Sussex, and Lord Ellenborough, C. J., interposed, and said, that that 
 question should not be asked; that it was formerly settled by the judges, 
 among whom were Treby, C. J., and Powell, J., both of whom were 
 
 (m) 4 St. Tr. 748. 2 Phill. Ev. 423. («) 6 St. Tr. 259. 2 Phill. Ev. 424. 
 
 (o) 4 St. Tr. 606. 2 Phill. Ev. 424. 1 Stark. Ev. 194. 
 (p) 4 Esp. 225.
 
 928 OF EVIDENCE. [BOOK VI. 
 
 great lawyers, that a witness was not bound to answer any question, 
 the object of which was to degrade, or render him infamous. M'Bride 
 M'Bride v. v. M'Bride(g') was an action of assumpsit, in which a woman being 
 M'Bnde. ca ]] e( | as a witness for the plaintiff, the counsel for defendant was pro- 
 ceeding to examine her as to her living in a state of concubinage with 
 the plaintiff, but Lord Alvanley interposed, and said, he thought ques- 
 tions as to general conduct might be asked, but not such as went im- 
 mediately to degrade the witness. His lordship added, " I do not go 
 as far as others may. I will not say a witness shall not be asked to 
 what may tend to disparage him, that would prevent an investigation 
 into the character of a witness, which it may often be of importance 
 to ascertain. I think those questions only should not be asked which 
 have a direct and immediate eifect to disgrace or disparage the witness." 
 O'Coigley On the trial of O'Coigley and O'Connor/?-) for high treason, where 
 aDd , ° Con ~ a witness was asked on cross-examination, how manv informations he 
 
 DOl' S C'tlSL 1 . 
 
 *929 had h"d, ^ or * De P ur P ose °f throwing an imputation *on him as a common 
 informer, whereupon he appealed to the protection of the court; it was 
 held that the question should not be repeated or followed up by another. 
 Hodgson's In addition to these cases must be mentioned that of Rex v. Hodg- 
 case " son,(s) which was an indictment for a rape upon Harriet Halliday. 
 
 After she had given her evidence, she was cross-examined by the pri- 
 soner's counsel, who put these questions to her, " Whether she had not 
 before had connection with other persons?" and " "Whether she had not 
 before had connection with a particular person (named)?" It was ob- 
 jected that she was not obliged to answer these questions ; and Mr. 
 Baron Wood allowed the objection, on the ground that she was not 
 bound to answer them, as they tended to criminate and degrade her. 
 And on a case reserved, the twelve judges determined that the objec- 
 tion was properly allowed. (?) But this case seems no longer a binding 
 authoi'ity.(u) 
 Authorities On the other hand, there are the following authorities in favour of 
 mustbean- ^e P ^ 011 ? that the witness is compellable to answer questions which 
 swered. merely disgrace or disparage. In Rex. v. Edwards,(t>) on an applica- 
 wards Ed " t * on to ^ a ^ *he prisoner, who was charged with grand larceny, one of 
 the bail was asked whether he had not stood in the pillory for perjury ? 
 This question was objected to, as tending to criminate him : but the 
 court overruled the objection, saying there was no impropriety in the 
 question, as the answer could not subject him to any punishment; and 
 the bail admitting the fact, he was rejected. In the case of Frost v. 
 Holloway,(?6-) the counsel in cross examining a witness, asked him whe- 
 ther he had not been tried for theft at Reading. The witness refused 
 to answer, and appealed to Lord Ellenborough, C. J., whether. he was 
 bound to answer such a question. Lord Ellenborough, C. J., said, "If 
 Holloway. y ou do not answer the question I will commit you;" adding, "you 
 
 (q) 4 Esp. N. P. C. 242. ( r ) 26 How. St. Tr. 1353. 
 
 (*) Russ. & Ry. C. C. R. 211. But see Rex v. Barker, 8 3 C. & P. 589. 
 
 f/i See also Dodd v. Norris, 3 Campb. 519. S. P. mentioned by Lord Ellenborough as 
 having been decided by all the judges. It may be observed, that besides degrading the 
 witness, her answer might have subjected her to punishment in the spiritual court. In Rex 
 v. Pitcher, which was an indictment against a female prisoner for stealing, from the person. 
 Hullock, B., would not allow the prosecutor to be asked, on cross-examination, whether an\ 
 thing improper passed between him and the prisoner at the house where he lost the pro- 
 perty. 1 C. & P. b 85. (n) See the cases, ante, p. 784. 
 
 (v) 4 T. R. 440. (w) MS. 2 Phill. Ev. 428. 
 
 a Eng. Com. Law Reps. xiv. 467. b lb. xi. 323.
 
 CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 929 
 
 shall not be compelled to say, whether you were guilty or not." This 
 occurred at the sitting after Hil. Term, 1818 ; and it would appear, 
 that his lordship had changed his opinion, as to the obligation on the 
 witness to answer, since his decision in Rex v. Lewis, as above men- 
 tioned. In Cundell v. Prutt,(x) Best, C. J., said, " Until I am told by Cundell v. 
 the House of Lords that I am wrong, the rule I shall always act on is, Pratt - 
 to protect witnesses from questions, the answers to which may expose 
 them to punishment ; if they are protected beyond this, from ques- 
 tions that tend to degrade them, many an innocent man would unjustly 
 suffer." (y\ 
 
 And in Roberts v. Allat,(z) where in an action on a bill of exchange Roberts v. 
 the defence was that the bill was drawn and accepted for the *balance Alla **• 
 of account of stockjobbing transactions, and one of the parties to the 
 transaction objected to answer the question, on the ground that his an- 
 swer might subject him to penalties under the stockjobbing acts; but 
 the transaction had taken place more than three years before the trial, 
 and the witness did not know that any proceeding had been commenced 
 against him ; Lord Tenterden, C. J., held that the witness was bound 
 to answer the questions put to him. 
 
 Assuming that a witness be not compellable to answer degrading if the wit- 
 questions, it seems allowed, (as in the case of criminating questions, see n< t ss d( r~ 
 ante, p. 927,) that the questions may legally be asked. (a) If the wit- answer, 
 ness declines answering questions tending either to criminate or degrade lfc can have 
 
 . . . . no effect on 
 
 him, it seems hardly possible to avoid coming to a conclusion almost as^^y 
 unfavourable to his credit as if he had admitted the misconduct imputed 
 to him in the question; but in the Rex v. Watson(/>) Holroyd, J., said that 
 he had understood the rule to be that if you propose a question to a 
 witness and he declines to answer it, his not answering it can have no 
 effect on the jury. And in Rose v. Blakemore,(c) where a witness for 
 the plaintiff refused to answer a question, whether he had published a 
 particular handbill, on the ground that he had been threatened with a 
 prosecution for the publication ; and the counsel for the defendant, in 
 his address to the jury, put it to them that the witness really must have 
 been concerned in the publication, for that a denial of it, if he could 
 deny it, would not injure him ; Abbott, C. J., interposed and said, that 
 no such inference ought to be drawn, and that there was an end of the 
 protection of a witness, if a demurrer to the question were to be taken 
 as an admission of the fact inquired into. And in Lloyd v. Passing- 
 ham, Lord Eldon expressed a similar opinion. (d\\ 
 
 (x) Mood & Malk. a 108. 
 
 \y) See also 1 Arch. Pract. 193. Arch. Cr. PI. 150, where a MS. case of Rex v. Holding- 
 arid Wade is cited, in which Bayley, J., held that all questions must be answered except 
 those the answer to which may subject the witness to punishment. 
 
 (z) Moo. & Malk.» 192. (a) See 1 Stark. Ev. 197. 
 
 \b) 2 Stark. N. P. C.° 157, 158. (c) Ry. & Mood. N. P. C. 382. 
 
 (d) 1G Ves. 64. See the note of the reporters in Rose v. Blakemore, in which doubts are 
 ably expressed, with deference to such high authorities, whether these dicta be not incon- 
 sistent with the general principles on which the rules concerning the right of witnesses to 
 refuse an answer to questions have been established. 
 
 f [On the trial of an indictment, the defendant has a right to ask a witness whether any 
 person, on behalf of the government, has made to the witness any offer of a reward in rela- 
 tion to the testimony which he should give in a certain class of cases, comprehending tin- 
 case on trial. Commonwealth v. Sachet, 22 Pick. 394. Upon the trial of an indictment for 
 keeping a bawdy house, the refusal of witnesses who had frequented the house to answer ques- 
 tions in reference to the conduct of the inmates and visitors, while there, upon the ground 
 * Eng. Com. Law Reps. xiv. 285. b lb. xxii. 288. c lb. iii. 293.
 
 930 OF EVIDENCE. [BOOK VI. 
 
 Witness's If the question be of a tendency to criminate or degrade, and the 
 answer witness answers it, the cross-examining party must be satisfied with the 
 answer, and it will not be allowed to falsify it by evidence ;(e) that is, 
 if the question be merely collateral to the point in issue ; for if it be 
 relevant to it, and the witness deny the thing imputed, evidence may 
 be called to contradict. f Thus where a witness for a prosecution in 
 larceny had been asked in cross-examination, whether he had not been 
 *931 charged with robbing his master, and ^whether he had not afterwards 
 said he would be revenged of him, and would soon fix him in gaol, and 
 had denied both ; Lawrence, J., ruled, that as to the former, his an- 
 swer must be taken as conclusive ; but that as the words were material 
 to the guilt, or innocence of the prisoner, evidence might be adduced 
 that they were spoken by the witness. (/) 
 Privilege The privilege of refusing to answer is the privilege of the witness, 
 nes^onl 11 anc * not °*" tne P art y > f° r tnat reason > Lord Tenterden, C. J., refused 
 to allow counsel to support, by argument, the privilege as belonging to 
 the party whom he represented. (</)| 
 
 If a witness answers any questions on cross-examination on a matter 
 rendering himself liable to forfeiture or punishment, he cannot after- 
 wards claim his privilege, but must answer throughout. (A) And so if a 
 witness voluntarily answers questions tending to degrade him on his 
 examination in chief, he is bound to answer on cross-examination, how- 
 ever penal the consequence may be.(i)§ 
 
 (e) Rex v. Watson, a 2 Stark. R. 149, 151, 158. Rex v. Clarke,* 2 Stark. R. 244, per Hol- 
 royd, J., Harris v Tippet, 2 Campb. 637, cor. Lawrence, J. For the court will not try a col- 
 lateral question whether the witness has been guilty of the misconduct imputed to him. 
 However, in this case of Harris v. Tippet, which has been relied upon by very high author- 
 ities in support of the general rule, (see Rex v. Watson, 2 Stark. 155, 158,) it may be per- 
 haps doubted whether the decision of the learned judge in this particular instance was 
 correct, although the principle laid down by him undoubtedly is so. The witness being 
 called for the defendant, was asked whether he had not attempted to dissuade a witness 
 examined for the plaintiff from attending the trial ; the question therefore, it may be argued, 
 was not altogether collateral, but so connected with the cause that other witnesses might 
 be called to contradict him. See the Queen's case, d 2 B. & B. 311, post, p. 936, and see the 
 cases where a prosecutrix in rape, and a daughter in an action for seduction have been con- 
 tradicted by other witnesses, ante, p. 784. 
 
 (/) Yewin's case, 2 Campb. 638, see also the Queen's case, e 2 Brod. & Bing. 313, and 
 post, p. 936. 
 
 (<-/) 2 Phill. Ev. 418, citing Thomas v. Newton, f M. & M. 48, n. 
 
 (h) East v. Chapman.s M. & M. 46, Lord Tenterden, C. J. 
 
 (i) Per Dampier, J., Winchester Sum. Ass. 1815, Mann. Ind. Witness, 222. 
 
 that they would degrade themselves by their answers, may be taken into consideration by 
 the jury. Clementine v. The State, 14 Missouri, 112.] 
 
 f [The witness (with the instruction of the court, when necessary) must decide whether 
 his answer will tend to criminate him : and his decision is upon oath and at the peril of 
 perjury. Poole v. Perritt, 1 Spears, 128. 
 
 A witness is not bound to answer any question that will criminate himself. Although in 
 such case the witness is his own judge, yet he is liable to an action if his refusal to testify 
 be wilful, and his excuse false. Warner v. Lucas, 10 Ohio, 336.] 
 
 J [A witness called to support a criminal prosecution, objects to giving his testimony 
 because it will criminate himself, but is nevertheless erroneously compelled to testify, and 
 the defendant is convicted, it seems that the error does not affect the rights of the witness 
 alone, but that the defendant may object that the conviction was founded upon illegal evi- 
 dence. Commonwealth v. Kimball, 24 Pick. 366.] 
 
 \ [The rule that the witness is not obliged to criminate himself, is well established. But 
 this is a privilege which may be waived ; and if the witness consents to testify to one mat- 
 ter tending to criminate himself, he must testify in all respects relating to that matter, so far 
 as material to the issue. If he waives the privilege, he does so fully in relation to that act ; 
 a Eng. Com. Law Reps. iii. 293. ° Ibid. 334. <= Ibid. 292. d lb. vi. 129. 
 « lb. vi. 130. f lb. xxii. 244. s lb. xii. 268.
 
 CHAP. V. § III.] OP IMPEACHING THE CREDIT OF WITNESSES. 931 
 
 The rule which requires the best evidence to be produced, of which Rul e that 
 the nature of the thing is capable, is it should seem in some degree re- ^ence po s- 
 laxed in regard to cross-examination for the purpose of discrediting a sible must 
 witness ; for the rule is to be understood as applicable only to the proof ^(^ppn. 
 of the issue or some fact material to the issue. (/c) Thus it is usual in cable to 
 practice to ask in cross-examination an accomplice or other witness, who cro . ss -e x - 
 
 * ... •iiii animation 
 
 appears against a person on a criminal prosecution, whether he has not to discre- 
 been tried for some offence ; although the fact of his having been tried dit J *emble. 
 for such an offence is partly matter of record, and, therefore, according 
 to the general rule, not to be proved without the record, which is the 
 highest species of proof. (I) 
 
 2ndly. The credit of a witness may be impeached by giving evidence 2. By proof 
 of his having said or written touching the cause, what is at variance and a ic c t °ry ra ~ 
 inconsistent with his testimony on the trial. (m\ But in order to lay a statement, 
 foundation for such discrediting; evidence, it is necessary first to ask the £ found a- 
 
 T T 1 /> T tl0D mUSt 
 
 witness, whom it is proposed to discredit, by proot of contradictory ver- b e laid on 
 bal statements, upon cross-examination, whether he has made the state- oross-ex- 
 ment or declaration, or held the conversation which it is intended to 
 prove. (n)f Thus, if a witness, on being examined in chief as to some 
 transaction supposed to have occurred between certain persons, should 
 admit, that he had heard of such a thing, but does not know its cause, 
 it would be irregular *to prove his having made a declaration respect- *932 
 ing the cause, in order to show his knowledge of the cause, without first 
 asking him in the cross-examination whether he had not made such a 
 declaration ; or if he had answered that he did not remember the trans- 
 action, it would be equally irregular, without such previous cross-ex- 
 amination, to prove declarations made by him respecting the transaction 
 for the purpose of showing, that he must have remembered it :(o) for 
 
 (k) 1 Phill. Ev. 301, 7th ed. 
 
 (1) 1 Phill. Ev. 301, 7th ed. 2 Phill. Ev. 428, last ed. But if the object is, not merely to 
 discredit, but to exclude the witness altogether, on the ground of his conviction for a crime, 
 the conviction must be regularly proved by the production of the record, post, p. 974. 
 
 (m) De Sadly v. Morgan, 2 Esp. N. P. C. 691. Christian v. Combe, 2 Esp. 489. See ante, 
 p. 896, as to the depositions of a witness before a magistrate being used for this purpose. 
 In order to impeach the credit of a witness for the defendant, upon an information for assault- 
 ing revenue officers, by proving that on an information before two magistrates against the 
 same defendant for having smuggled goods in his possession, he gave a different account of 
 the matter, proof of the conviction containing the testimony of the witness is insufficient ; 
 it is necessary to prove it by the testimony of those who heard what he said. Rex v. Howe, 
 
 1 Camp. 461. S. C. 6 Esp. 125. 
 
 (w) The Queen's case, a 2 Brod. & Bing. 299. Carpenter v. Wall, b 11 A. & E. 803. 
 (o) The Queen's case, 2 Brod. & Bing. 299. 
 
 but he does not thereby waive his privilege of refusing to reveal other unlawful acts, wholly 
 unconnected with the act of which he has spoken, even though they may be material to the 
 issue. Low v. Mitchell, 18 Maine, 272.] 
 
 f {This rule is not adopted in Massachusetts, 17 Mass. Rep. 160, Tucker v. Welsh.}— 
 [Ware v. Ware, 8 Greenl. 42. The credit of a witness cannot be impeached by proving 
 antecedent statements, inconsistent with his testimony upon the stand, without first inter- 
 rogating upon the subject on cross-examination that he may have an opportunity of 
 explaining what might otherwise appear contradictory. Franklin Bank v. Steam Navigation 
 Company, 11 Gill & Johns. 28. Weirzorffiin v. The Stale, 6 Blackford, 186. Regnier v. Cabot, 
 
 2 Gilmore, 34. 
 
 When a witness has made a different statement from the one made by him on trial, he is 
 not thereby discredited, unless the discrepancy is wilful. Jones v. The Slate, 4 English, 42. 
 
 When it is sought to discredit a witness by showing that he had formerly testified dif- 
 ferently from what he had sworn to at the trial, confirmatory evidence of his testimony may 
 be introduced and the witness himself may be examined to confirm his own testimony. The 
 Stale v. George, 8 Iredell, 324.] 
 
 a Eng Com. Law Reps. vi. 121. b lb. xxxix. 234. ° lb. vi. 121.
 
 932 OF EVIDENCE. [BOOK VI. 
 
 it would, in many cases, have an unfair effect upon the witness and 
 upon his credit, and would deprive him of that reasonable protection 
 which it is the duty of the court to afford to every person who appears 
 as a witness, to allow proof of his former conversation without first 
 interrogating him as to that conversation, and reminding him of it, in 
 order to call up all the powers of his memory as to the transaction. (p)f 
 Mode of And it is not enough to ask the general question, whether the witness 
 laying a j iag ever sa ^ g0 an( j g( ^ b ecause it ma y frequently happen that, upon 
 
 for proof of the general question, he may not remember having said so; but the 
 contradic- w itness must be asked as to the time, place, and person, involved in the 
 ments. supposed contradiction ; because when his attention is challenged to 
 particular circumstances, he may recollect and explain what he has 
 formerly said. Where, therefore, a witness had denied that he has 
 ever said that he was in partnership with the defendant, but had not 
 been questioned as to the particular person, or conversation ; Tindal, 
 C. J., refused to allow a witness to be asked whether on a particular 
 occasion the witness had told him that he was in partnership with the 
 defendant, (cj) 
 *933 With respect to the mode of proceeding where a contradictory state- 
 Proof of m ent formerly made by the witness in writing is proposed to be pro- 
 tory state- duced to discredit him, some important rules were laid down *in the 
 
 (p) 2 Brod. & Bing. 300. Abbott, C. J., in delivering the opinion of the judges, added, 
 that in any grave or serious case, if the counsel had on his cross-examination, omitted to 
 lay the necessary foundation, the court would, of its own authority, call back the witnesses 
 in order to give him an opportunity of doing so. Another reason why he ought to be cross- 
 examined is, that he may have an opportunity of explaining his conduct. 2 Brod. & Bing.» 
 314. 
 
 (q) Angus v. Smith, b M. & Malk. 473. The witness was allowed to be recalled, and asked 
 the particular question ; and the same rule was laid down by Parke, B., in Crowley v. Page, 
 7 C. & P. 789, post, p. 936, note (p), and in Rex v. Pearce, Gloucester Spr. Ass. 1829, MSS. 
 C. S. G. Learned judges have in many instances allowed witnesses to be recalled in order 
 to lay a foundation for the admission of such contradictory evidence. In Reg. v. Harris, 
 Salop Spr. Ass. 1842, upon an indictment for murder, the prisoner had no counsel, and in 
 his defence to the jury he alleged certain statements to have been made by the principal 
 witness for the prosecution, and imputed that his son, who could prove the statements, had 
 been prevented from attending to give evidence for him ; and Patteson, J., stopped the trial, 
 and ordered the son to be sent for, at the same time directing that no communication should 
 be made to him of the matters as to which he was going to be examined. The prisoner 
 having no attorney, and the son not having been examined by any one as to what state- 
 ments he had heard the witness make, a difficulty arose as to the mode which was best to be 
 adopted in the examination of the son, and the cross-examination of the witness, and the 
 following mode was adopted as the best under the peculiar circumstance of the case: — The 
 son was first examined by the editor at the request of the learned judge, as to what he had 
 heard the witness say, the witness being kept out of court during such examination, and 
 then the witness was called in and cross-examined by the editor as to the statements which 
 his son had sworn that he had made. The jury acquitted the prisoner, although the evi- 
 dence for the prosecution was very strong. This case has been mentioned, as it may serve 
 as a guide for the practice in cases where the prisoner wishes to call witnesses to prove 
 contradictory statements made by witnesses for the prosecution, without having laid the 
 ground for so doing in a proper manner. C. S. G. 
 
 f [Lamb v. Stewart, 2 Ohio Rep. 230. Stable v.Spohn, 8 Serg. & R. 317. A witness may- 
 object to answer as to what he testified on a former trial. Mitchell v. Hinman, 8 Wend. 0G7. 
 
 Although a witness who has given testimony is privileged from answering whether he has 
 not on a former occasion sworn differently, neither the court nor a party can object when 
 the witness does not; and when upon such a question being put, the court without any 
 objection by the witness excluded it, it was held erroneous. The People v. Bodine, 1 Denio, 
 281. 
 
 Where evidence of inconsistent statements of a witness is introduced by the adverse party, 
 it is proper to permit the party who called the witness to prove other statements conforming 
 to the testimony given on the trial. State v. George, 8 Iredell, N. C. 324.] 
 
 a Eng. Com. Law Reps. vi. 130. b lb. xxii. 360. ■ lb. xxxii. 737.
 
 CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 933 
 
 House of Lords in the Queen's case.(r) A witness named Louisa Du-ments in 
 mont, who had been called on behalf of the prosecution, was asked wn 1DS ' 
 upon cross-examination whether she had not made particular statements 
 which the counsel read to her out of a supposed letter to his sister ; it 
 was objected that the letter itself should be put in before any use could 
 be made of its contents : and thereupon the following question was pro- 
 posed to the judges : Whether in the courts below, a party, on cross- Tho wit - 
 examination, would be allowed to represent, in the statement of a ques- notbe 
 tion, the contents of a letter, and to ask the witness, whether the wit- cross-ex- 
 ness wrote a letter to any person with such contents, or contents to the j*™^ c ™_ 
 like effect, without having first shown to the witness the letter, and tents, but 
 having asked that witness whether the witness wrote that letter, and the P^P er 
 his admitting that he wrote such letter ? Tbe judges answered this in s hown to 
 the negative; and Abbott, C. J., stated their reasons to be that the con- him > a " dhe 
 tents of every written paper are to be proved by the paper itself, and by askedif itis 
 that alone, if the paper be in existence : the proper course, therefore, his writing, 
 was to ask the witness whether or no that letter was of the handwriting ^g 6 ^ jj. 
 of the witness. If the witness admits this, the cross-examining counsel may be 
 may, at his proper season, read the letter as evidence. (s) A secon dp e a ^^ the 
 question was at the same time put to the judges, part of which was, evidence on 
 
 whether the court would allow a witness in case he should not admit that th ? otl l e 5, 
 i 'i • j» sicle - If be 
 
 he did or did not write the same, to be examined to the contents ot such does not 
 
 letter. (A To which the learned judges gave an answer in the negative, admit it, he 
 
 for the same reason which led them to give the answer to the first ques- cr0S s-ex- 
 
 tion, viz., that the paper itself is to be produced, in order that the whole amined to 
 
 may be seen, and the one part explained by the other. tents. 
 
 If, however, a paper written by the witness is proved to have been Where the 
 lost or destroyed, (in which case the only mode of contradicting him P a P er 1S 
 would be by producing afterwards some secondary evidence of the con- 
 tents of the paper,) it would be reasonable and proper to allow the 
 counsel to cross-examine the witness as to the contents of such a let- 
 ter.^) 
 
 A witness, who has been examined before commissioners in a bank- 
 ruptcy, may be asked whether he had mentioned a fact, which he had 
 just mentioned, before the commissioners, without putting his examina- 
 tion into his hand, as the object is to show that he did not mention 
 the fact, and he may admit that if he chooses ; if he does not ask for 
 the examination to refresh his memory, he may answer without it if he 
 chooses. (y\ 
 
 If the counsel who cross-examines puts a paper into the witness's 
 hand, and puts questions on it, and anything comes of the questions 
 
 (r) Brod. & Bing. a 286. 
 
 (s) Brod. & Bing. 286. But if he suggests to the court that he wishes to have the letter 
 read immediately, in order to found certain questions upon its contents that cannot be well 
 or effectually done without reading the letter itself, in that case, for the more convenient 
 administration of justice, the letter is permitted to be read, but considering it as part of the 
 evidence of the counsel proposing it and subject to all the consequences of its being so 
 considered. Ibid. 289, 290. 
 
 (t) The other part of the question was, whether when a letter is produced in the court 
 below, the court would allow a witness to be asked, upon showing the witness only a part 
 or one or more lines of such letter, and not the whole of it, whether he wrote such part : 
 and the judges were of opinion that it should be answered in the affirmative. 
 
 (u) 2 Phill. Ev. 439. 
 
 \v) Ridley v. Gyde, 1 M. & Rob. 197. Tindal, C. J. 
 
 a Eng. Com. Law Reps. vi. 114.
 
 *934 OF EVIDENCE. [BOOK VI. 
 
 ^founded upon it, the opposite counsel has a right to see the paper, and 
 
 re-examine upon it; but if the cross-examination founded on the paper 
 
 entirely fails, the opposite counsel has no right to look at it.(w>) And 
 
 if the counsel in cross-examining a witness put a letter in his hands, and 
 
 after asking if he wrote it, desire him to read it, and then put questions 
 
 upon it, such counsel is not bound to have the letter read until after he 
 
 has addressed the jury.(x) 
 
 Cross-ex- We have seen,^) that by the rules of the judges, which were pro- 
 
 aTtostate- mu 'g ate( l soon after the passing of the Prisoner's Counsel Act, a wit- 
 
 mentsmade ness for the crown cannot, upon his cross-examination, be asked whether 
 
 before com- j ie jjj or ^ nofc - m ^j s d e p OS ition make such or such a statement, or 
 
 mining L ' 
 
 magis- whether he did or did not make such a statement before the magistrate, 
 trates. until after his deposition has been read. These rules have been acted 
 upon with great strictness in practice, and it seems full} 7 settled, that a 
 counsel for a prisoner can neither ask a witness as to anything contained 
 in his deposition, or anything not contained in the deposition, without 
 first putting in the deposition to show what the witness did state. (2) 
 And so strictly has this practice been adhered to, that it has been held 
 that a prisoner's counsel cannot be permitted to ask a witness whether 
 he had ever made a particular statement before, but that the question 
 ought to be qualified by adding, " except when you were before the 
 magistrate," or " the coroner," as the case may be.(a) 
 
 Where, however, a witness admitted that he had been cross-examined 
 by the prisoner's attorney when he was before the magistrate, the coun- 
 sel for the prisoner was permitted to question him as to the answers he 
 gave, it appearing to the judge that no cross-examination of the witness 
 was returned by the magistrate. {V\ 
 
 In one case it seems to have been considered a fitting course for the 
 judge to look at the depositions while the witnesses were under exa- 
 mination, and question them as to any discrepancy between them and 
 their evidence ;(c) but in other cases learned judges had refused, where 
 counsel were employed by the prisoner, to look at the depositions at 
 all.(rf) 
 *935 In a case where it was proved that the depositions had been *regu- 
 
 (w) Reg. v. Duncombe, a 8 C. & P. 369, Lord Denraan, C. J. 
 
 (z) Holland v. Reeves," 7 C. & P. 36, Alderson, B. (,y) Ante, p. 815. 
 
 (z) Reg. v. Taylor, 8 C. & P. 726, Erskine, J. Reg. v. Holden, d 8C. & P. 606, Patteson, 
 J. Rex v. Edwards, e 8 C. & P. 26, Littledale, J., and Coleridge, J., and see the cases, ibid., 
 31, note (a). 
 
 (a) Reg. v. Holden, supra. Reg. v. Shellard, f 9 C. & P. 277. Patteson, J. 
 
 (b) Rex v. Edwards, supra. 
 
 (c) Rex v. Edwards, supra. This is a course which has not unfrequently been adopted in 
 cases where the prisoner has had no counsel, and in such cases appears highly expedient, 
 as prisoners rarely have copies of the depositions unless they are defended by counsel, and 
 even if they had, probably would not be able to avail themselves of any contradictions that 
 might arise; and it is to be remembered that the depositions are returned to the judge for 
 the express purpose of enabling him to judge as to the accuracy of the witnesses. C. S. G. 
 
 (d) Rex v. Thomas,* 7 C. & P. 817, Parke, B., as stated 8 C. & P. 27," and the statement 
 is correct. Rex v. Holden, supra. In both these cases the counsel for the prisoner requested 
 the judge to look at the depositions, and the object was to avoid putting in the deposi- 
 tions, and if the judge had in those cases looked at the depositions, and questioned the 
 witnesses upon them, it would have been indirectly getting rid of the effect of the rules 
 themselves. It is a very different question whether the judge may not. in his discretion, 
 question a witness as to discrepancies which strike his mind, and either have not struck the 
 counsel for the prisoner, or if so, have been considered by him not of such importance as 
 to induce him to put in the depositions, and to give the counsel for the crown the reply. 
 C. S. G. 
 
 a Eng. Com. Law Reps, xxxiv. 432. b lb. xxxii. 426. c lb. xxxiv. 604. d lb. xxxiv. 547. 
 c lb. xxxiv. 280. f lb. xxxviii. 119. s lb. xxxii. 750. h lb. xxiv. 280.
 
 CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 935 
 
 larly taken against the prisoner before the magistrates, and returned to Deposi- 
 the proper officer, and that officer proved that he had made diligent tlons lost " 
 search after them, and could not find them ; Patteson J., held that the 
 prisoner's counsel might cross-examine from copies of them, -which were 
 proved by the magistrate's clerk to be correct. (c) 
 
 But the rules only apply to what are strictly depositions taken in the Where the 
 regular course before a magistrate. Where, on an indictment for a rape, ™ ] t e ^ d °j 
 it appeared that the prosecutrix had twice charged the prisoner with the 
 offence, and that on the first occasion the prosecutrix was sworn and 
 her statement taken down, but not read over to her or signed either by 
 the magistrate or the prosecutrix, and after this examination the pri- 
 soner was discharged, but was afterwards again apprehended, and com- 
 mitted by other magistrates; Coleridge, J., after conferring with Gur- 
 ney, B., held that the counsel for the prisoner might ask the prosecutrix 
 whether she had not said certain things on the first occasion when she 
 was so examined without producing the writing which had been taken 
 down.(/) 
 
 A very distinguished writer on the law of evidence,^) has stated his Whether 
 opinion, that the determination of these points has left the question still a Wlt f ess 
 open, whether counsel may be allowed to cross-examine a witness as to asked on 
 his having given a different account of the transaction, or as to his hav- cro ? s ~ e *~ 
 
 ..... . . ..«, , . animation 
 
 ing written a letter containing a dmerent account ; because, in the the gene- 
 queen's case, the question put to the witness related to a variety of r . al ^ ues - 
 particular expressions, and entire passages, supposed to be contained in ther'he has 
 a letter, and the letter which was supposed to contain such expressions, written a 
 had been actually produced, and shown by the counsel: whereas, the a j, c ^, e ° t 
 question, proposed above, is quite general, namely, whether the witness Quaere. 
 has given any account in his letters, or otherwise, differing from his 
 present account, and the question is proposed without any reference to 
 the circumstances, whether the letter is or is not in existence, or whether 
 it has or has not ever been seen by the cross-examining counsel. (A) And 
 the eminent author above alluded to argues with great force and ability, 
 that such a question may be asked with propriety.^?") 
 
 In order to lay a foundation for contradicting a witness, the questions Whatques- 
 asked upon cross-examination must, in some way, be relevant to thejl l0 ° S j™^ y t 
 matter in issue. Thus, in an action for usury, the person with whom lay a foun- 
 the contract, alleged to be usurious, had been made, was produced as datlon for 
 a witness for the plaintiff, and the counsel for the defendant proposed dictory evi- 
 to cross-examine him as to other contracts he had made with other per- den ce. 
 sons, which were not usurious : intending, if the witness answered in 
 the affirmative, to draw the conclusion that he had made the same con- 
 tract with the defendant, and if the witness denied the nature of those 
 other contracts, *to call evidence to prove the contrary, and thereby *936 
 destroy the witness's credit. But Lord Ellenborough refused to suffer 
 
 (e) Reg. v. Shellard, a 9 C. & P. 277. 
 
 (/) Reg. v. Griffiths, 1 * 9 C. & P. 74G. (g) 1 Phill. Ev. 299, 7th ed. 
 
 (/<) Mr. Pbillipps applies the same reasoning to another resolution of the judges, during 
 the same proceedings, viz., that if a witness be asked whether he has represented such a 
 thing, they should direct the counsel to ask whether the representation had been made in 
 writing or in words. This opinion of the judges, the above learned writer conceives to have 
 been founded on the supposition that the witness's letter was actually in the possession of 
 the cross-examining counsel, and on the circumstance of the question relating to particular 
 expressions, supposed to have been contained in the letter. See 2 Phill. Ev. 400. 
 
 (i) 1 Phill. Ev. 299, 7th ed., et seq. See also 1 Stark. Ev. 203, et seq. 
 
 a Eng. Com. Law Reps, xxxviii. 119. b lb. xxxviii. 317.
 
 936 OF EVIDENCE. [BOOK VI. 
 
 the question to be put, conceiving it to be entirely irrelevant to the issue 
 in the cause ; and the Court of King's Bench were afterwards all of 
 opinion that he had acted properly : and they laid down the rule, that 
 it is not competent for counsel on cross-examination to question the wit- 
 ness concerning a distinct collateral fact, which, if answered affirma- 
 tively, is wholly irrelevant to the matter in issue, for the purpose of 
 discrediting him, if he answers in the negative, by calling other wit- 
 In -what nesses to contradict him. (_/) It need hardly be observed, if a question 
 dence may he wholly irrelevant, and therefore improperly asked on a cross-exami- 
 be called nation, and the witness nevertheless give an answer to it, the cross- 
 to contra- exani i n j n g party may not call evidence to contradict that answer ; but it 
 is further to be remarked, that many questions may be asked with pro- 
 priety on cross-examination, which are irrelevant to the matter in issue, 
 yet are allowable because they go to the credit of the witness : but the 
 distinction is, as to the right to call evidence to contradict answers given 
 to questions put to shake a witness's credit, that if the questions go 
 merely to his credit, and are in other respects collateral to the issue, 
 evidence cannot be called to contradict the answers; if they not only 
 go to his credit, but are also connected with the subject of inquiry, then 
 it is allowable to call witnesses to contradict. Thus, if a witness be 
 asked on cross-examination, whether he has been guilty of a crime, or 
 any conduct which would discredit him as a witness, but is unconnected 
 with the matters in issue, and he denies it, his answer is conclusive j(A') 
 but if the imputed misconduct be relative to the subject of inquiry, as, 
 if a witness for the crown be asked whether he had not said that he 
 would be revenged on the prisoner, and would soon fix him in gaol,(Z) 
 or whether he had not made declarations to procure persons corruptly 
 to give evidence in support of the prosecutionJm) then evidence may 
 be called to contradict him, if he denies the words or declarations im- 
 When the puted to him ; and if the witness declines to give any answer to such 
 witness de- a question proposed to him, by reason of the tendency thereof to crimi- 
 answer° nate himself, aQ d the court is of opinion that he cannot be compelled to 
 answer, the adverse party has also, in this instance, his subsequent op- 
 portunity of tendering his proof of the matter, which is received, if by 
 law it ought to be received. («) 
 
 In one case, where a witness said on cross-examination that he had 
 no recollection of a certain declaration one way or the other, without 
 expressly denying it, Tindal, C. J., held that a person could not be 
 called to prove such declaration ; as he had never heard such evidence 
 admitted in contradiction, except when the witness had expressly 
 denied the declaration. (o) But in a later case where a witness neither 
 admitted nor denied a verbal statement, Parke, B., held that evidence 
 was admissible to show that the witness had made such a statement. (p) 
 
 (j) Spenceley v. De Willott, 7 East, 108. {2 Rep. Const. Ct. (S. C.) 171, State v. Alexan- 
 der. 2 Gallison, 53, Odiorner. Winkley. 5 Wend. 301, Lawrence v. Barker. 2 M'Cord, 230, 
 Nettles v. Harrison.} 
 
 (k) Ante, p. 930. (I) Yewin's case, 2 Campb. 638. 
 
 (w) The Queen's case, 2 Brod. & Bing. a 311. 
 
 \n) The Queen's case, 2 Brod. & Bing. b 313, 314. 
 
 (o) Paine v. Beeston, 1 M. & Rob. 20. 
 
 (p) Crowley v. Page, 7 C. & P. 789. The learned baron said, "Evidence of statements 
 
 by witnesses on other occasions, relevant to the matter at issue, and inconsistent with the 
 
 testimony given by them on the trial, is always admissible in order to impeach the value of 
 
 that testimony; but it is only such statements as are relevant that are admissible, and in 
 
 a Eng. Com. Law Reps. vi. 129. b Ibid. °Ib. xxxii. 737.
 
 CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. *937 
 
 *3dly. The credit of a witness maybe impeached, not only by giving 3. By proof 
 evidence to prove statements made by him at variance with his testi- ac "andde- 
 mony, but by calling witness to prove his declarations and acts touch- clarations 
 ing the subject-matter of inquiry. (j)f And the rules above stated, as^g ^ 1 "^ 
 to the necessity of a previous cross-examination of the witness whom it Previous 
 is proposed to discredit, apply equally to this method of discrediting him cro f s - ex - 
 as to the last. So that if it is intended to offer evidence of former de- necessary, 
 clarations of a witness, or of acts done by him, though not with a view 
 to contradict his statement upon oath in examination in chief, but with 
 a view of discrediting him as a corrupt witness : in this case also it has 
 been determined that the witness should be previously questioned to 
 such declarations, or such acts, on the cross-examination ;(?•) for in one 
 case as well as the other an opportunity must be afforded the witness 
 of explaining his conduct before evidence can be adduced to impeach 
 his credit by proof of the fact. Thus, where the witness's moral cha- 
 racter is relevant to the issue, expressions of the witness may be proved 
 without the previous inquiry, if they tend merely to disgrace the wit- 
 ness, by showing that he has made unbecoming declarations ; but even 
 if they be of such a nature the introductory question must not be dis- 
 pensed with, if they tend likewise to contradict some part of the wit- 
 ness's evidence. Therefore in an action for seducing the plaintiff's 
 daughter, which the daughter proves, the defendant cannot give evidence 
 that she has talked of another person as her seducer and the father of 
 her child, unless she be first asked on cross-examination whether she 
 ever used those expressions. (s\ 
 
 After a witness has been cross-examined respecting his former state- Re-exami- 
 ments and declarations, for the purpose of affecting his credit, the coun- natl0n - 
 sel who called him has a right to re-examine him, so as to give him an 
 opportunity of explaining such statements and declarations. Thus, if 
 
 order to lay a foundation for the admission of such contradictory statements, and to enable 
 the witness to explain them, and, as I conceive, for that purpose only, the witness may be 
 asked whether he ever said what is suggested to him, with the name of the person to whom 
 or in whose presence he is supposed to have said it, or some other circumstance sufficient to 
 designate the particlar occasion. If the witness, on the cross-examination, admits the con- 
 versation imputed to him, there is no necessity for giving other evidence of it ; but if he 
 says he does not recollect, that is not an admission, and you may give evidence on the other 
 side to prove that the witness did say what is imputed, always supposing the statement to 
 be relevant of the matter at issue. This has always been my practice, and if it were not so, 
 you could never contradict a witness who said he could not remember." 
 
 (q) The Queen's case, 2 Brod. & Bing. a 311. {4 Pick. 439, Rice v. N. E. M. Ins. Co. 5 
 lb. 560, Maxwell v. Hardy.} 
 
 (r) 2 Brod. & Bing." 311. (s) Carpenter v. Wall, supra, 11 A. & E. 803. 
 
 ■f [Witnesses who testify as to what they saw respecting a transaction after night and by 
 star-light, — aided by lamps upon the surrounding buildings, cannot be impeached by persons 
 who propose to prove that they have made experiments on other nights, between the same 
 hours and with the same degree of light, and were unable to discern objects accurately. 
 Sealy v. The State, 1 Georgia, 220. 
 
 On a trial for rape, the acts and declarations of the husband of the woman, on whom the 
 offence is alleged to have been committed, are not admissible to discredit the wife, examined 
 as a witness. State v. Jefferson, 6 Iredell, N. C. 305. 
 
 The mere fact that statements proved by one person to have been made by others who 
 were present, is not a sufficient circumstance to discredit such person who is otherwise 
 unimpeached. Clark v. The State, 8 Humphreys, G71. 
 
 It is competent to discredit a witness by proving that he was drunk at the time Hie 
 transaction he attempts to relate took place. The large quantity of liquor drank is a cir- 
 cumstance tending to prove drunkenness, and as such, is competent evidence to prove that 
 fact. Fleming v. The Stair, ."> Humphreys, 564.] 
 
 B Eng. Com. Law Reps. vi. 129. » lb. vi. 127. c lb. xxxiv. 234.
 
 937 OF EVIDENCE. [BOOK VI. 
 
 that which the witness has stated in answer to the question on his cross- 
 examination, arose out of the inquiries of the person with whom he had 
 the conversation, the witness may be asked in re-examination what those 
 inquiries were.(Y) And he may also be asked what induced him to 
 give to that person the account which he has stated in the cross-exami- 
 nation. («) 
 
 But this, it should seem, is the limit of such a re-examination. Lord 
 C. J. Abbott, in delivering his opinion in the Queen's case, said, "I 
 *938 think the counsel has a right upon a re-examination, to *ask all ques- 
 tions which may be proper to draw forth an explanation of the sense 
 and meaning of the expressions used by the witness on cross-examina- 
 tion, if they be in themselves doubtful; and, also, of the motive by 
 which the witness was induced to use those expressions : but I think he 
 has no right to go further, and to introduce matter new in itself, and 
 not suited to the purpose of explaining either the expressions or the 
 motives of the witness. "(v\ 
 
 His lordship afterwards observed, "I distinguish between a conver- 
 sation which a witness may have with a party to the suit, whether 
 criminal or civil, and a conversation with a third person. The conver- 
 sations of a party to the suit, relative to the subject-matter of the suit, 
 are, in themselves, evidence against him in the suit, and, if a counsel 
 chooses to ask a witness as to anything which may have been said by 
 an adverse party, the counsel for that part}' has a right to lay before 
 the court the whole which was said by his client in the same conversa- 
 tion; not only so much as may explain or qualify the matter introduced 
 by the previous examination, but even matter not properly connected 
 with the part introduced upon the previous examination, provided, only 
 that it relate to the subject-matter of this suit; because it would not be 
 just to take part of a conversation as evidence against a party, without 
 giving to the party, at the same time, the benefit of the entire residue 
 of what he said on the same occasion. But the conversation of a wit- 
 ness with a third person is not in itself evidence in a suit against any 
 party to the suit. It becomes evidence only as it may affect the cha- 
 racter and credit of the witness, which may be affected by his ante- 
 cedent declarations, and by the motive under which he made them ; but, 
 when once all which had constituted the motive and inducement, and 
 all which may show the meaning of the words and declarations has been 
 laid before the court, the court becomes possessed of all which can affect 
 the character or credit of the witness, and all beyond this is, in my 
 opinion, irrelevant and incompetent.'Yic) 
 
 But the reasoning and the grounds of the supposed distinction have 
 been since considered by the Court of Queen's Bench, and after full 
 consideration, that court overruled the distinction, and adopted the more 
 safe and intelligible principle that the office of re-examination is to be 
 confined to showing the true colour and bearing of the matter elicited 
 
 (t) 2 Brod. & Bing. a 295. («) Ibid. 
 
 (v) 2 Brod. & Bing. b 297. 
 
 (w) 2 Brod. & Bing. 297, 298. The other judges, except Mr. Justice Best, agreed with 
 the Lord Chief Justice ; but the Lord Chancellor and Lord Redesdale were of the same 
 opinion with Mr. J. Best, and differed from the other judges, inasmuch as thej thought that 
 the entire conversation ought to be admitted, not as evidence of any fact that might be 
 asserted in the course of it, but solely and simply as explanatory of the witness's motives, 
 and as setting his character and credit in a fair, full, and impartial point of view. 
 a Eng. Com. Law Reps, xxxiv. 120. b lb. vi. 121.
 
 CHAP. V. § III.] OP IMPEACHING THE CREDIT OP WITNESSES. 938 
 
 by cross examination, and that new facts or new statements, not tend- 
 ing to explain the witness's previous answers, ought not to be ad- 
 mitted, "(x) 
 
 *Thus where an accomplice being cross-examined with a view to *939 
 throw discredit on his testimony, confessed that he had committed two 
 robberies the same night as the one charged in the indictment, and on 
 re-examination it was proposed to ask him as to the particular circum- 
 stances attending those robberies, and the persons in whose company 
 they were committed, in order to show that the prisoners were the per- 
 sons; Littledale, J., refused to allow it, observing that the cross-exami- 
 nation having been only with a view to the witness's discredit, it was 
 not competent to the counsel for the prosecution, on re-examination, to 
 ask questions not arising out of such cross-examination, in order to cri- 
 minate the prisoners.^) 
 
 4thly. The credit of a witness may be impeached by proof of his 4. By 
 general character.! It is now completely settled with respect to this P r ° of °f 
 mode of discrediting a witness, that general evidence only, and not evi- character. 
 dence as to particular facts, can be employed 5(2) for if it were allowable 
 to give evidence of particular collateral facts to affect his credit, the in- 
 quiry might branch out into an indefinite number of issues. Besides 
 which, although a witness may be supposed capable of defending his 
 general character, no man can come prepared to give an answer to par- 
 ticular facts, which might be sworn against him to impeach his charac- 
 ter, without any previous notice given to hiin.(a)| The proper mode, 
 therefore, of examining a witness, who is called to discredit a previous 
 witness by proof of his character, is to ask whether the present witness 
 has had the means of knowing the former witness's character, and whe- 
 
 (x) 2 Phill. Ev. 443, citing Prince v. Samo, a 7 A. & E. 627, where in an action for a 
 malicious arrest, a witness called for the plaintiff, stated on cross-examination that the 
 plaintiff had instituted a prosecution for perjury against a witness examined against him 
 in the action in which he had been arrested, and that the plaintiff had said that he had 
 been remanded by the Insolvent Debtors' Court ; on his re-examination it was proposed to 
 ask him whether the plaintiff had not also on the trial of the indictment sworn, that the 
 advance in question was a gift and not a loan; and Lord Denman, C. J., ruled that the 
 question could not be put, and the court held that the ruling was right. 
 
 (y) Fletcher's case, 1 Lew. 111. 
 
 (z) Rex v. Watson, b 2 Stark. N. P. C. 149. Bull. N. P. 296. 2 Phill. Ev. 430. 1 Stark. 
 Ev. 211. {Hicke v. Lightner, 11 Serg. & Rawle, 198.} 
 
 (a) Bull. N. P. 296. 
 
 I {An indictment against a witness for perjury and forgery, without trial and conviction, 
 is not admissible to impeach his credibility. 2 Wend. 555, Jackson v. Osborn. Conviction, 
 by judgment in another State or country, (which will not render a person incompetent out 
 of that State or country,) may be shown, in order to affect his credibility. Commonwealth 
 v. Knapp, 9 Pick. 396.} 
 
 J jln Massachusetts, evidence is admissible for the purpose of discrediting a female wit- 
 ness, that she is a common prostitute. 14 Mass. Rep. 387, Commonwealth v. Murphy, 
 contra, in New York, 13 Johns. 504, Jackson v. Lewis. See 3 Pick. 194. Commonwealth 
 v. Moore. 1 Stark. Ev. 147, note (1).} [New Ed. 185.] [Roscoe Dig. Cr. Ev. 135, 11.] 
 
 [Evidence that a female witness is a common prostitute, is not admissible for the purpose 
 of impeaching her credibility. Commonwealth v. Churchill, 10 Metcalf, 538. 
 
 On a trial for rape, the prisoner may give in evidence that the woman had been his con- 
 cubine, or that he had been suffered to take indecent liberties with her. State v. Jefferson, 
 6 Iredell, N. C. 305. 
 
 Defendant on trial for rape cannot give in evidence to prove that the woman is a strum- 
 pet, that she had criminal connection with one or more particular individuals. It is a ques- 
 tion of character, and the evidence, as in other questions of character, must be of a general 
 nature. State v. Jefferson, 6 Iredell, N. C. 305. 
 
 To impeach a witness, the inquiry must be as to his character for truth and veracity, and 
 a Eng. Com. Law Reps, xxxiv. 183. b lb. iii. 273. 
 
 Vol. 11. — 61
 
 !)39 OF EVIDENCE. [BOOK VI. 
 
 . -j*» — — 
 
 ther from such knowledge he would believe hiui on his oath.(6)t In 
 order to answer this question negatively it is not necessary that the 
 witness should ever have heard such person give evidence on oath, as 
 the real question is whether the witness has such a knowledge of the 
 person's character and conduct as enables him conscientiously to say 
 that it is impossible to place any reliance on any statement that such 
 person may make.(c) It has been held upon an indictment for perjury 
 that a witness for the defendant could not be asked whether, from hav- 
 ing heard a witness for the prosecution give evidence on the trial of a 
 former cause, he considered that the testimony of that witness could be 
 relied on; nor whether he ever heard him commit perjury; nor whether 
 he would not believe the witness because he had heard him commit per- 
 jury ; as the witness must speak from the general character. (c?) 
 
 Where upon an indictment for stealing money, it was opened on the 
 part of the crown than an accomplice and one Mercer would be called 
 as witnesses; Parke, J., both before and after those persons were called, 
 allowed the prisoner's counsel to ask the other witnesses for the prose- 
 cution whether the accomplice and Mercer were not persons of very 
 bad character. (e) 
 *940 In answer to such evidence against character, the other party *may 
 
 (b) Mawson v. Hartsink, 4 Esp. N. P. C. 102. 
 c i Rex v. Bispham, a 4 C. & P. 392, Parke, J., and Garrow, B. 
 
 (d) Rex v. Henip, b 5 C. & P. 468, Lord Denman, C. J. 
 
 (e) Rex v. Nichols," 5 C. & P. 600. 
 
 no inquiry can be had whether the witnesses are common prostitutes. Stale v. Smith, 7 
 Vermont, 141. 
 
 The character for veracity of a female witness, may not be impeached by evidence of her 
 general character for chastity. Gilchrist v. J/'A'ee, 4 Watts, 380. 
 
 A witness, who is introduced to prove that another witness is unworthy of credit, should 
 be examined as to the general character of such a witness for truth and veracity. The 
 character which a witness has acquired for truth is to be proved as a fact in the case, from 
 which, combined with all the various matters in the testimony, tending to establish or 
 impair it, the jury will form their own opinion respecting the credit due to his statements. 
 The proper inquiry is, whether the witness knows the general character of the witness 
 attempted to be impeached, and if so, what is his general reputation for truth? On the 
 cross-examination the inquiry should be limited to the witness ; opportunity for knowing 
 the character of such witness ; for how long a time and how generally such unfavourable 
 reports have prevailed, and from what sources they have been derived. It is not allowable 
 to inquire of the impeaching witness whether he would believe the witness, attempted to be 
 impeached, upon oath. Phillips v. Kingficld, 19 Maine, 375. 
 
 In impeaching the testimony of a witness, his general reputation for truth and veracity 
 can only be inquired into, and no evidence of particular facts, and of his general reputation 
 in other respects can be given. Fri/e v. Bank of Illinois, 11 Illinois, 367. 
 
 A witness, called to impeach the credibility of another witness, cannot be questioned as 
 to the character of the latter in any respect, except as to veracity. Uhl v. The Common- 
 wealth, 6 Grattan, 706. 
 
 In evidence affecting the credibility of a witness, his reputation for truth and veracity, 
 and not his general moral character, should be the subject of the questions. Newman v. 
 JIackin, 13 Smedes & Marshall, 383. Carter v. Cavenaugh, 1 Iowa, 171. 
 
 A party has a right to impeach the general character of a witness for his adversary. 
 though the testimony which such witness had given related solely to the general character 
 of another witness. Starks v. The People, 5 Denio, 106. 
 
 Where a witness is impeached for previous bad character, evidence of statements, made 
 before trial consistent with those made at the trial, mav be given in his support. The State 
 v. Dove, 10 Iredell, 469.] 
 
 t {It is not essential that witnesses who state that they would not believe another per- 
 son on his oath, should ever have heard him give evidence upon oath. 4 Car. & Payne, 
 392, [ Eng. Com. Law Reps. xix. 437.] Rex v. Bispham. See 1 Pennsyl. Rep. 32. Ch( 
 Chess, et. al.} 
 
 ft Eng. Com. Law Reps. xix. 437. b lb. xxiv. 410. c lb. xxiv. 473.
 
 CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 940 
 
 cross-examine the witness as to his means of knowledge, aud the grounds 
 of his opinion; or may attack his general character. (/') 
 
 Where a witness on cross-examination stated that he had become bail 
 for a witness who had been previously examined, and he believed it 
 was on a charge of keeping a gaming-house ; in order to prevent any 
 impression being thereby made against the character of the previous 
 witness, Gaselee, J., and Taunton, J., allowed the previous witness to 
 be recalled, and asked whether the charge of keeping the gaming-house 
 was in fact a true charge or not. (y)~|- 
 
 A party cannot bring evidence to confirm the character of a witness Character 
 before the credit of that witness has been impeached, either upon cross- ° f Wltness ' 
 
 how SUD- 
 
 examination, or by the testimony of other witnesses. (/i)| Thus, in a ported, 
 case where a witness for one party asserts one thing, and a witness for 
 the other party asserts the contrary, and direct fraud is not imputed to 
 either, evidence to the good character of either witness is not admissi- 
 ble.^') But if the character of a witness has been impeached, (although, 
 according to some authorities, upon cross-examination only,) evidence 
 on the other side may be given in support of the character of the wit- 
 ness by general evidence of good conduct. (j) So in a case where two 
 attesting witnesses to a will, which was impeached on account of fraud 
 in procuring it, were dead, and a surviving attesting witness was called, 
 and spoke to a fraudulent execution, it was held allowable to call evi- 
 dence to the general good character of the deceased witness :(k\ and 
 Lord Ellenborough, in approving of that decision, observed, that if they 
 had been alive, they might have been produced, and their characters 
 would have appeared on cross-examination ; and being dead, justice 
 required that an opportunity should be given of showing what credit 
 was to be given to their attestation. (/) Whether in answer to proof of 
 statements made by a witness in variance to his testimony at the trial, 
 
 (/) 1 Stark. Ev. 212. {See 7 Cowen, 263, Lower v. Winters.} 
 
 (c/) Rex v. Noel, 6 C. & P. 336. 
 
 (A) Bishop of Durham v. Beaumont, 1 Campb. 207. 1 Stark. Ev. 221. 
 
 (i) 1 Campb. 207. 
 
 (/) 1 Stark. Ev. 221. Bate v. Hill, 1 C. & P. 100. Rex v. Clarke, 2 Stark. N. P. C. 
 241, where the prosecutrix, upon an indictment for an attempt to commit a rape, having 
 been cross-examined as to having been sent to the house of correction on a charge of theft, 
 evidence of her subsequent good conduct was admitted in support of the prosecution : cor. 
 Holroyd, J., but see Dodd v. Norris, 3 Campb. 519. {See 8 Pick. 154, Russell v. Coffin.} 
 
 (k) By Lord Eldon in Doe v. Stephenson, 3 Esp. 284. By Lord Kenyon in Doe v. Walker, 
 4 Esp. 50. Provis v. Reed, d 5 Bingh. R. 435. 
 
 (I) 1 Campb. 210. 
 
 f {Such evidence was held to be proper in 2 Hawks, 183, Johnson v. Patterson. And in 
 Cooke v. Curtis, 6 Harris & Johns. 93, prior declarations of a witness were held admissible 
 to corroborate his testimony which had been contracted by another witness.} 
 
 [Contradictory statements by a witness cannot be met by proof of others agreeing witli 
 his testimony, Ware v. Ware, 8 Greenl. 42. Jackson v. Etz, 5 Cowen, 314. Nor can the 
 witness be supported by character. Russell v. Coffin, 8 Pick. 143.] 
 
 J [A party is not entitled to give evidence of the general good character of his own wit- 
 ness unless the character of the witness has been attacked by witnesses on the other side ; 
 and it is not enough to warrant proof of good character, that the witness had been dis- 
 credited by proof contradicting portions of his testimony, and by evidence that had made 
 declarations hostile to the party against whom he was called, and that the witness in his 
 testimony had denied making such statement. Slarlcs v. The People, 5 Denio, 106. 
 
 Though, by the general rule, a witness cannot be supported by evidence of his general 
 character as to truth, except after a general impeachment of it ; yet where the witness is in 
 the situation of a stranger, such evidence is admissible without such previous impeachment. 
 Merciam v. Hartford and New Haven Rail Road Co., 20 Connecticut, 354.] 
 
 • Eng. Com. Law Reps. xxv. 427. b lb. xi. 329. ° lb. iii. 333. 
 
 d lb. xv. 490.
 
 040 OF EVIDENCE. [BOOK VI. 
 
 evidence may be given by the party who called the witness, that he 
 affirmed the same thing on other occasions, and is still consistent with 
 himself, is a point on which there are conflicting authorities, (m) The 
 better opinion seems to be that such evidence is not admissible, except 
 in cases where the counsel on the other side impute a design to misre- 
 present from some motive of interest or relationship; there, in order to 
 repel such imputation, it may be proper to show that the witness made 
 a similar statement at a time when the supposed motive did not exist, 
 or when motives of interest would have prompted him to make a differ- 
 ent statement of the facts. (n) 
 *941 If a party calls a witness to prove a fact, he cannot, when he finds 
 Party may the witness proves the contrary, give general evidence to *show that 
 tin Ms own fc h e w i tness is not to be believed on his oath :(o) for that would be to 
 witness by enable the party to destroy the witness if he spoke against him, and to 
 proof of ma k e hi m a good witness if he spoke for him, with the means in his 
 reeter; but hands of destroying his credit if he spoke against him.(p)f But if a 
 he may w itness gives evidence contrary to that which the party calling him ex- 
 case by pects, the party is at liberty to make out his own case by other wit- 
 other wit- nesses ; and to show that the facts which his own witness had stated 
 contrary to his interests were otherwise ;(y) for such facts are evidence 
 in the cause, and the other witnesses are not called directly to discredit 
 the first witness, but the impeachment of his credit is incidental, and 
 consequential only.(r) Still a party is not at liberty to set up so much 
 of his witness's testimony as makes for him, rejecting and disproving so 
 much as makes against him.(.s) 
 Whether a Whether it be competent to a party to prove that a witness called by 
 
 (m) Gilb. Ev. 135. Bull. N. P. 294. 
 
 (w) 2 Phill. Ev. 445. 1 Stark. Ex. 221. See also the opinion expressed by Bayley, J., in 
 Wihen v. Law, a 3 Stark. N. P. C. 63. See also ante, chap. 1, s. 3. Of Hearsay Evidence. 
 
 (o) Ewer v. Ambrose, 11 3 B. & C. 750. Bull. N. P. 297. [See 3 Wash. C. C. Rep. 210. 
 U. S. v. Jones.] 
 
 (p) Bull. N. P. 297. 
 
 (q) 3 B. & C. 749, 750, 751. Friedlander v. The London Assurance Company, 4 B. k 
 Ad. 193. Richardson v. Allan, d 2 Stark. N. P. C. 334. Alexander v. Gibson, 2 Campb. 555. 
 Particularly where the witness is forced on a party by law ; as, for instance, a subscribing 
 witness to a will or deed. Thus in Lowe v. Joliffe, 1 W. Bl. 365, the subscribing witness to 
 a deed swore to the testator's insanity; yet the plaintiff was allowed to examine other wit- 
 nesses in support of his case, to prove that the testator was sane. So in Pike v. Badmering, 
 cited in 2 Stra. 1096, where the three subscribing witnesses to a will denied their hands, 
 the plaintiff was permitted to contradict that evidence. 4 Pick. 194, Brown v. Bellows. 
 
 (r) Bull. N. P. 297. (s) 2 Campb. 556. 
 
 f [A party cannot discredit his own witness or show his incompetency, though he may 
 call other witnesses to contradict him as to a fact material to the issue, in order to show 
 how the fact really is. Franklin Bank v. The Steam Navigation Co., 11 Gill & Johns. 28. 
 
 A party will not be permitted to impeach the character or testimony of his own witness 
 by other testimony necessarily tending to that effect and for that purpose : but having called 
 a witness, who disproves his case, he is not thereby precluded from resorting to other evi- 
 dence to support it. A party by calling and examining a witness, accredits him as compe- 
 tent and credible, and is estopped from avowing the contrary. Stockton v. Demath, 7 Watts. 
 39. 
 
 A party cannot give evidence to confirm the good character of a witness, unless his gen- 
 eral character has been previously impugned by the other party. Braddee v. Brownfield, 9 
 Watts, 124. 
 
 A party calling a witness may show by evidence that he was mistaken in some of his 
 statements and conclusions, while in others he was correct. Heulgen v. Parks, 2 Sandf. 
 Sup. Ct. 60. 
 
 It is not competent for a party to discredit a witness called and examined by him. by 
 asking him whether he had not made statements upon another occasion contradictory to 
 the testimony which he had given. The People v. Safford, 5 Denio, 112.] 
 
 a Eng. Com. Law Reps. xiv. 163. b lb. x. 457. ° lb. xxiv. 47. d lb. iii. 371.
 
 CHAP. V. § III.] OF IMPEACHING THE CREDIT OF WITNESSES. 941 
 
 him who has given evidence against him, has made at other times a party may 
 
 statement contrary to that made by him at the trial, is a question on [rarystate- 
 
 which there has been some difference of opinion. Such a contrary ments 
 
 statement it is clear, can only be admitted, if admissible at all, for the m . ade by 
 
 ,. • ••111 • • "is own 
 
 purpose of neutralizing or raising doubt and suspicion as to those parts witness. 
 
 of the witness's testimony with which the contrary statement is at vari- 
 ance.^) In Wright v. Beckett,(«) which was an action of trespass, Wright v. 
 the plaintiff, having called four witnesses to prove that the plaintiff and Beckett. 
 his predecessors had immemorially exercised acts of ownership over 
 the place in question, called a fifth person with a view to establish the 
 same fact; he, however, contradicted the other four witnesses, and the 
 plaintiff's counsel thereupon asked him whether he had not given a 
 different account of the facts to the plaintiff's attorney two days before ; 
 this question was objected to on the ground that its obvious tendency 
 was to discredit the witness. But Lord Denman held that the question 
 might be put. The witness gave an evasive answer to the question. 
 The plaintiff's attorney was then called, and although the course was 
 objected to, proved that the witness had given him, upon the occasion 
 referred to, an account of the facts different from that given by him to 
 the court, and that he took down in writing the account so given, and 
 that he read it over to the witness, who said it was correct; and this 
 account he read to the jury. And the jury were told that they were 
 not to look upon the statement given to the attorney as evidence of the 
 facts therein stated ; but only by way of neutralizing the effect of the 
 evidence which the witness had unexpectedly given in court. And after 
 argument, on a motion for a new trial, on the ground that the evidence 
 of the attorney had *been improperly received, and time taken to de- *942 
 liberate, Lord Denman, (J. J., held that the course adopted at the trial 
 was correct; but Bolland, B., was of the contrary opinion. (?f) And in 
 an action on the warranty of a horse, where a witness, who was neces- D U nn v. 
 sarily called by the plaintiff to prove a resale of the horse, although Aslett. 
 subpoenaed by the defendant, stated a great many facts on cross exami- 
 nation tending to show that the warranty had not been broken ; Lord 
 Denman, C. J., held that the plaintiff's counsel might ask the witness 
 on re-examination whether he had not been living with the defendant, 
 and the defendant's witnesses, since he had been in the assize town ; his 
 lordship referred to the preceding case, in which he had expressed an 
 opinion, formed after much consideration, that the plaintiff might show 
 that the witness had given a different account of the matter, by which 
 different account he had been induced to call him, and stated that he re- 
 mained of the same opinion ; and thought, on the same principle, that 
 a party calling a witness might examine him as to any fact tending to 
 show that he had been induced to betray that party.(^) 
 
 But where, in order to prove a plea of fraud and covin in obtaining Holds- 
 a bond, the defendant called a witness who had taken part in giving the M ' or „ f 
 bond, who on cross examination said that the transaction of giving the Dart- 
 bond was, as far as he knew, an honest and correct transaction, and on raout * 
 re-examination the defendant's counsel was allowed to ask the witness 
 whether he had not told the defendant's attorney that it was a shameful 
 transaction, which he denied, and the counsel then proposed to call the 
 
 (l) 2 Phill. Et. 450. (ft) Wright v. Beckett, 1 M. k Rob. 414. 
 
 (w) See this case commented on with great ability, 2 Phill. Ev. 454, et seq. 
 (v) Dunn v. Aslett, 2 M. & Rob. 122.
 
 942 OF EVIDENCE. [BOOK VI. 
 
 attorney, and asked him whether he had so said; and this was objected 
 to. Parke, B., said, " Upon consideration, I think the evidence inad- 
 missible. My doubt at first was, whether, as the fact was elicited in 
 cross-examination, the witness was not made for this purpose the wit- 
 ness of the plaintiff : and whether, as to this particular fact, not asked 
 to in chief, the party calling him might not now show he had given a 
 different account. I am now satisfied that it makes no difference that 
 the fact is elicited on cross-examination. The effect and object of the 
 evidence is to discredit the witness. It goes to his general credit to 
 show that he has given a different account of the matter before; and it 
 is a clear rule that a party has no right to put a witness into the box as 
 a witness of credit, and when he gives unfavourable evidence to call 
 testimony to discredit him.' '(?'/) 
 Winter v. And so where a witness called for the plaintiff failed to prove the 
 facts expected, and on cross-examination stated very important facts for 
 the defendant, by whom she appeared also to have been subpoenaed, 
 and it was proposed in re-examination to ask her as to a statement she 
 had made to the plaintiff's attorney ; Erskine, J., said, " I am de- 
 cidedly of opinion that you cannot ask the question. Mr. B. Parke 
 has, I know, so ruled : and I recollect ruling the same way myself on 
 the Oxford circuit, with the approbation of Mr. J. Patteson, whom I 
 *943 consulted ; and I have since talked with several *of the other judges 
 on the point, and they are generally of opinion that Mr. B. Parke's de- 
 cision is right."(:r) 
 Fair's "Where a witness, called on the part of the prosecution to prove that 
 
 he received the note, with the forgery of which the prisoner was 
 charged, from the prosecutor, swore on his cross-examination that he 
 went with the prisoner to the house of the prosecutor, with a blank 
 paper, duly stamped, to get a bill accepted by the prosecutor, and that 
 the prosecutor took the paper, and returned it to the prisoner with his 
 name upon it ; but this witness, before the committing magistrate, had 
 merely stated that he received the bill from the prisoner ; the counsel 
 for the prosecution stated that he was instructed that the fresh state- 
 ment was untrue, and that he had witnesses to prove other statements 
 made by the witness, to show that it was made in order to make the 
 prosecutor pay the bill, and proposed to cross-examine the witness ; 
 Patteson, J., "I cannot allow you to do that; he is your witness, and 
 you must treat him as such.'Yy) So where a witness, called for the 
 prosecution in a case of robbery, stated on cross-examination that the 
 prosecutor had given her seven shillings, which she had previously 
 denied, it was held that the counsel for the prosecution could not ask 
 whether she had not said to A. B., that the prosecutor had not given 
 her any money, (z) 
 The judge The following case, however, shows that where a witness for the pro- 
 
 (iv) Holdsworth v. The Mayor of Dartmouth, 2 M. & Rob. 153. His lordship said he never 
 had any doubt but that the opinion of Bolland, B., in "Wright v. Beckett was right, if the 
 fact were asked to in the examination in chief. 
 
 (x) Winter v. Butt, 2 M. & Rob. 357. The same question arose in Allay i\ Hutchings, 2 
 M. & Rob. 358, and Wightman, J., ruled the same way. 
 
 (y) Reg. v. Farr, a 8 C. & P. 768. The consequence was, the prisoner was acquitted. The 
 witness was Wm. Griffiths, and he was himself convicted of forgery. Monmouth Spr. Ass. 
 1843, cor. Wightman, J. 
 
 (z) Reg. v. Clayfield. Gloucester Spr. Ass. 1840, MSS. C. S. G. Gurney. B. 
 8 Eng. Ccm. Law Reps. xxxiT. C2.
 
 CHAP. V. § IV.] HOW MANY WITNESSES ARE NECESSARY. 943 
 
 secution gives a different statement on the trial from that which he gave may put in 
 
 before the magistrate, the judge is warranted in directing his deposition ^Vofa 81 * 
 
 to be read in order to do away with the effect of the statement made on witness, 
 
 the trial. Upon an indictment for murder, the counsel for the prose- who glves 
 
 „,,., ..,. *■ a contrary 
 
 cution at first declined examining the prisoner s mother, but the judge statement 
 
 thought it right to have her examined, (her name being on the back of °° 1 j he 
 the indictment as having been examined before the grand jury,) which 
 was accordingly done, and she gave her evidence in favour of the pri- 
 soner; the judge ordered her deposition before the coroner to be read, in 
 order to show its inconsistency with her present testimony. And the 
 twelve judges afterwards were of opinion, that the judge had a right to 
 call for the deposition, in order to impeach the witness's credit ; and 
 Lord Ellenborough and Mansfield, C. J., thought that the prosecutor 
 had the same right. (a) 
 
 *SECT. IV *944 
 
 How many Witnesses are Necessary. 
 
 In general, the testimony of a single witness is a sufficient legal Single 
 ground for conviction of a crime or niisdeameanor,(«a) even though that Wltne ^ 
 single witness may have been the accomplice in guilt of the accused sufficient, 
 person. (i) But there are two exceptions to this rule, viz., the cases of 
 treason and perjury. 
 
 The evidence of one witness is not sufficient to convict the defendant in case of 
 on an indictment for perjury : as in such cases there would be only oneP er -> ur y- 
 oath against another, (c) 
 
 In high treason, no one can be convicted, unless by the oaths and High trea- 
 testimony of two Witnesses, either both to the same overt act, or one of son * 
 them to one, and the other of them to another overt act of the same 
 treason : unless the party indicted shall willingly, without violence, in 
 open court, confess the same.(r?) The confession contemplated, is a 
 confession in open court, or pleading guilty : any other confession, 
 whether made to persons in authority or not, is evidence in the case, 
 and must be proved, like other facts, by two witnesses, and it will have 
 its weight with the jury according to the circumstances, as confessions 
 have in all criminal cases. (e) However, by 39 &40 Geo. 3, c. 93, " in Two wit- 
 all cases of high treason, when the overt act alleged in the indict- nesses notr 
 
 . ■. » i , . ,. . necessary 
 
 ment is the assassination of the king, or any direct attempt against his in cases of 
 life, or against his person, the prisoner shall be tried according to the personal 
 same order of trial, and upon the like evidence, as if he stood charged the Kim.'. 
 with murder." 
 
 (a) Oldroyd's case, Russ. & Ry. 88. See the cases on this subject, ante, p. 897. 
 
 \aa) 4 Bla. Com. 357. 2 Hawk. c. 46, s. 3. 
 
 lb) Post, p. 960. (c) Ante, p. 649. 
 
 \d) By the 1 Edw. 6, c. 12, s. 22, 6 Edw. 6, c. 11, s. 12. 7 & 8 Wm. 3, c. 3. In high trea- 
 son concerning the coin, or the king's seals, or sign manual, one witness was sufficient, as, 
 at common law, before the reign of Edward the Sixth ; by the 1 & 2 Ph. k M. c. 10, s. 12. 
 and 1 & 2 Ph. & M. c. 11, s. 3, (now repealed). It was agreed by all the judges, that these 
 3tatutes extend to all offences touching the impairing of coin, which should afterwards be 
 made treason. Gahagan's case, 1 Leach, 42. I East, P. C. 129, S. C. 
 
 (e) 1 East, P. C. 131. Foster's Crown Law, 240, &c. 1 Phill. Ev. 415, 416.
 
 944 OF EVIDENCE. [BOOK VI. 
 
 Misprision In misprision of treason, as well as high treason, by the 1 Edw. 6, e. 
 easou. -^ s 22, and 6 Edw. 6, c. 11, s. 12, two witnesses are required, unless 
 the party arraigned shall willingly, without violence, confess the same. 
 
 *945 *SECT. V. 
 
 How the Attendance of Witnesses is to be Compelled and 
 Remunerated. 
 
 .Attend- There are two methods in which the attendance of witnesses in 
 
 witnesses- criminal cases maybe compelled : 1st, which is the more ordinary and 
 how com- effectual means, the justice or coroner that takes the examination of the 
 pe ec " persons accused, and the information of the witnesses, may at that time, 
 or at any time after and before the trial, bind over the witnesses to ap- 
 pear.(a) 2ndly, by process of subpoena. 
 By reeog- 1st. If a witness does not appear, according to the terms of the re- 
 mzance. cognizance in which he is bound, at the court at which the trial is in- 
 tended to be, to give evidence against the party accused, the recognizance 
 Misde- ma y De estreated, and the penalty levied. Justices have authority by 
 meanors. the 7 Geo. 4, c. 64, s. 3, to bind all persons by recognizance to give evi- 
 g 4 ' ' ' dence in cases of misdemeanors, in like manner as in cases of felony. If 
 a witness who has been examined before a justice of the peace refuses 
 Witness to be bound over, the justice may commit him.(fe) And where the wit- 
 forrefusino- ness was a marr ied woman, and therefore under a legal disability to 
 to enter enter into a recognizance, the justice was held justified in committing her 
 nizance " U P 0Q ner refusal to appear to give evidence or to find sureties for her 
 
 appearance, (c) 
 By sub- 2nd. The attendance of witnesses, if they have not entered into re- 
 
 pcena. cognizances, may be compelled by process of subpoena, which may either 
 be issued from the Crown Office,(c/) or maybe made out by the clerk of 
 45 Geo. 3, the peace of the sessions, or the clerk of assize. (e) And by the 45 Geo. 
 , s. o. g^ c Q2 ; S- 3^ the service of a subpoena on a witness in any one of the 
 parts of the United Kingdom, for his appearance upon a criminal prose- 
 cution in any other of the parts of the same, shall be as effectual as if 
 it had been in that part where he is required to appear. 
 Service of The prosecutor ought not to include more than four persons in one 
 pcena. subpoena^/) And as soon as the writ is obtained, a copy should be 
 made out for each witness, and served on him personally, and at the 
 same time the writ should be shown him. (<?) The service must be per- 
 sonal, and made a reasonable time before the day of trial ; for witnesses 
 ought to have a convenient time to put their own affairs in such order, 
 that their attendance on the court may be of as little prejudice to them- 
 selves as possible. (A) 
 
 (a) 2 Hale, P. C. 282. 7 Geo. 4, c. 64, ss. 2, 3, 4. 
 
 (b) 2 Hale, P. C. 282. Bennet v. Watson, 3 M. & S. 1. 
 
 (c) Bennet v. Watson, supra. (d) Rex v. Ring, 8 T. R. 585. 
 
 (e) 1 Chit. C. L. 608. It is more prudent to sue it out of the Crown office, if an applica- 
 tion for an attachment for non-attendance is likely to become necessary. See post, p. t'47. 
 
 (/) Doe v. Andrews, Cowp. 845. Tidd, 855. 
 
 (ff) In order to save expense, it is settled that service of a ticket, containing the substance 
 of a writ, will be as effectual as service of the writ itself. 2 Phill. Ev. 373. 
 
 (h) 2 Phill. Ev. 373.
 
 CHAP. V. § V.] HOAV ATTENDANCE IS TO BE COMPELLED. *946 
 
 *If a witness have in his possession, any deeds or writings which it Subpoena 
 is deemed necessary to produce at the trial, there should be a special e "^ e8 
 clause inserted in the subpoena, called a duces tecum, commanding the 
 witness to bring them with him.(i') The writ of subpoena duces tecum 
 is the regular and established process of the court ; and though it was 
 formerly doubted, yet it is now settled, that this process is of compulsory 
 obligation on the witness, to produce the deeds or writings, required of 
 him, which he has in his possession, and which he has no lawful or 
 reasonable excuse for withholding ; of the validity of which excuse the 
 court, and not the witness, is to judge. (/) And a person in possession 
 of any paper, who is served with a subjxxna duces tecum, is bound to 
 produce it, whether the paper belong to him or not, or though there be 
 a regular way prescribed by law for obtaining it.(&) The court, how- 
 ever, in all such cases, will exercise their discretion in deciding what 
 papers shall be produced, and under what qualifications as respects the 
 interest of the witness. (Af A person bringing papers under a subpoena 
 duces tecum may be compelled to produce them without being sworn. (m) 
 If a witness who is sworn to give evidence has a document in his pos- 
 session in court, he may be compelled to produce it; for he is just as 
 much under the control of the court, as if he had brought the docu- 
 ment under a subpoena duces tecum. (n) 
 
 In a criminal case, if a person is in court, he may be compelled to Person 
 be examined as a witness, although he has neither been bound by re- {^urt^ "* 
 cognizance nor served with a subpoena to give evidence, and an indict- 
 ment for the obstruction of a public footway is considered as a criminal 
 prosecution for this purpose. (o) 
 
 When a witness is in custody, or on board a ship under the com- Habeas 
 mand of an officer who refuses to permit his attendance, the subpoena is J s ^' can . 
 ineffectual, and a habeas corpus ad testificandum is necessary to bring dam. 
 him up; for which an application may be made to any one of the 
 Judges or Barons of the Courts of King's Bench, Common Pleas, and 
 Exchequer, in England or Ireland, who have discretionary power to 
 grant it to any part of the United Kingdom, to bring a witness before 
 any court of record, to be examined before such court, or any grand, 
 petit, or other jury, in any cause or matter, civil or criminal. (p) And 
 every justice of great session in Wales, and in the county palatine of 
 
 (t) 3 Phill. Ev. 371. (j) Amey v. Long, 9 East, 473. 2 Phill. Ev. 371. 
 
 \k) Tidd, 856. Corsen v. Dubois," Holt, N. P. C. 239. 
 
 (I) Tidd, 856. 2 Phill. Ev. 371. It will be observed, that there is a distinction between 
 the obligation of a witness to answer, though it may subject him to a civil responsibility, 
 and the obligation to produce writings under a subpoena. See ante, p. 916. If a subpoena 
 duces tecum be served, the party must bring his deeds in obedience to the subpoena ; but if 
 he states them to be his title deeds, no judge will ever compel him to produce them. Picker- 
 ing v. Noyes, b 1 B & C. 263. Rex v. Hunter, 3 C. & P. 591, and MSS. C. S. G. 
 
 (m) Davis v. Dale, d M. & Malk. 514, Tindal, C. J. Rex v. Murlis, ibid., note, Gaselee, J., 
 and Taunton, J. 
 
 (n) Snelgrove v. Stevens, e 1 C. & Mars. 508, Cresswell, J. 
 
 (o) Rex v. Sadler/ 4 C. & P. 218, Littledale, J. 
 
 ( p) 43 Geo. 3, c. 140. 44 Geo. 3, c. 102. 2 Phill. Ev. 374, 375. 
 
 f {See 5 Cowen, 153, 419, Utica Bank v. Halliard, that neither a clerk in a bank, nor a 
 cashier, is bound to produce the books of the bank, on a duces tecum, where the bank is a 
 party. The clerk has no possession of the books; and the cashier is excused, because no 
 party is obliged to furnish evidence against himself.} 
 
 » Eng. Com. Law Heps. iii. 86. t>Ib. viii. 72. c Ib. xiv. 591. d Ib. xix. 410. 
 
 «Ib. xli. 278. f Ib. xix. 218.
 
 946 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 <947 
 
 Subpoena 
 for prison- 
 
 Chester, has the like authority within the limits of his jurisdiction.^) 
 The application for this writ must be made upon an affidavit sworn to 
 *by the party applying, stating that the party is a material witness, and 
 willing to attend;(r) and if he be at a distance, it should be shown how 
 he is material. (s\ The writ being sued out, should be left with the 
 sheriff, or other officer, in whose custody the witness is detained, who 
 will bring him up, upon being paid his reasonable charges.^) If a wit- 
 ness be a prisoner of war, a habeas corjms will not lie to bring him up, 
 but an order from the secretary of state must be obtained. («) 
 
 At common law, a defendant in capital cases has no means of com- 
 pelling the attendance of witnesses without the special order of the 
 court ;(?;) although in misdemeanors the defendant has always been 
 allowed to take out subpoenas.^-) But the 7 Wm. 3, c. 3, s. 7, pro- 
 vided, that in cases of high treason, where corruption of blood might 
 be worked, the persons indicted shall have the like process of the court 
 where they shall be tried, to compel their witnesses to appear for them, 
 as is usually granted to compel witnesses to appear against them : and 
 since the 1 Anne, st. 2, c. 9, s. 3, by which it is provided that witnesses 
 for the prisoner, in case of treason or felony, shall be sworn in the same 
 manner as witnesses for the crown, and be subject to the same punish- 
 ment for perjury, the process by subpoena is allowed to defendants in 
 cases of felony as well as in other instances. (x) 
 
 If a party having been served with a subpoena, neglect to appear in 
 obedience to it, an application may be made to the Court of Queen's 
 Bench, if the subpoena issued from the Crown Office, for an attachment 
 against him; (y) and where the process is served in one part of the 
 United Kingdom for the appearance of the witness in another of the 
 parts, the court issuing the same may, upon proof to their satisfaction 
 of the due service of the subpoena, transmit a certiorari of the default 
 of the witness, under the seal of the court, or under the hand of one 
 of the justices thereof, to the Court of King's Bench if the service were 
 in England, to the court of Justiciary if in Scotland, and to the Court 
 of King's Bench in Ireland if in Ireland ; which courts are empowered 
 to punish the witness in the same way as if he had disobeyed a subpoena 
 issued out of those courts, provided the expenses have been tendered. (2) 
 It has been doubted whether in all cases, as well as in those within the 
 
 Remedy 
 against 
 person ne- 
 glecting 
 to appear 
 on subpoe- 
 na. 
 
 Expenses 
 need not 
 
 be tender- ^ ast mentioned statute, a witness may not lawfully refuse to obey a sub- 
 
 ed - poena in a criminal prosecution, as well as a civil suit, unless he has a 
 
 tender of his reasonable expenses : but the better opinion seems to be, 
 
 that witnesses making default on criminal prosecutions are not ex- 
 
 *948 empted from attachment, on *the ground that their expenses were not 
 
 tendered at the time of the service of the subpoena ; although the court 
 
 (?) Ibid. 
 
 (r) Rex v. Roddara, Cowp. 672. 2 Phill. Ev. 374. 
 
 (s) Tidd, 858. It is said in 1 Chitt. C. L. 610, that the affidavit of readiness to attend 
 only applies when the party is on board ship, and not then in all eases. 
 
 (1) 2 Phill. Ev/375. («) Furley v. Newnham, 2 Dougl. 419. 
 
 (v) 4 Bla. Com. 359. 2 Hawk. c. 46, s. 170. If they had attended they could not have 
 been sworn before the 1 Anne, st. 2, c. 9, s. 3. 
 
 (w) 2 Hawk. P. C. c. 46, s 170. (x) 2 Hawk. P. C. e. 46, s. 172. 
 
 (y) Rex v. Ring, 8 T. R. 585. And a witness who refuses, after being subpoenaed, to attend 
 to give evidence for a defendant, is liable to an attachment, in the case of being subpoenaed 
 by a prosecutor. 1 Stark. Ev. 86. 
 
 (2) 43 Geo. 3, c. 92, ss. 3, 4. 1 Chit. Or. L. 614. It is said to be doubtful whether in- 
 justices at sessions, &c, have authority to issue an attachment, and that the only mode of 
 proceeding against a witness in such a case is by indictment. Archb. C. L. 161.
 
 CHAP. V. § V.] ATTENDANCE OF WITNESSES, HOW REMUNERATED. 948 
 
 would have good reason to excuse them for not obeying the summons, 
 if in fact they had not the means of defraying the necessary expenses 
 of the journey.(a) 
 
 Formerly the law provided no means for reimbursing the witnesses on Attend- _ 
 criminal prosecutions. At length, by the 27 Geo. 2, c. 3, 18 Geo. 3, c. SSi^ 4 " 
 19, and 58 Geo. 3, c. 70, in cases of felony, certain provisions were made remunera- 
 for that purpose. These, however, did not extend to cases of misde- tecl ' 
 meanors; but now by the 7 Geo. 4, c. 64, s. 22, (repealing the above 
 mentioned statutes) it is enacted, "that the court, before which any Courts may 
 person shall be prosecuted or tried for any felony, is hereby authorized order P?y- 
 and empowered, at the request of the prosecutor, or of any other per- expensesin 
 son, who shall appear on recognizance or subpoena to prosecute or give a11 cases of 
 evidence against any person accused of any felony, to order payment e ° ny ' 
 unto the prosecutor of the costs and expenses, which such prosecutor 
 shall incur in preferring the indictment, and also payment to the prose- 
 cutor and witnesses for the prosecution, of such sums of money as to 
 the court shall seem reasonable and sufficient to reimburse such prose- 
 cutor and witnesses for the expenses they shall have severally incurred 
 in attending before the examining magistrate or magistrates and the 
 grand jury, and in otherwise carrying on such prosecution, and also to 
 compensate them for their trouble and loss of time therein; and, although 
 no bill of indictment be preferred, it shall still be lawful for the court, 
 where any person shall, in the opinion of the court, bond fide have at- 
 tended the court in obedience to any such recognizance or subpoena, to 
 order payment unto such person of such sum of money as to the court 
 shall seem reasonable and sufficient to reimburse such person, for the 
 expenses which he or she shall have bond fide incurred by reason of at- 
 tending before the examining magistrate or magistrates, and by reason 
 of such recognizance or subpoena, and also to compensate such person 
 for trouble and loss of time ; and the amount of the expenses of attend- 
 ing before the examining magistrate or magistrates, and the compensa- 
 tion for trouble and loss of time therein, shall be ascertained by the 
 certificate of such magistrate or magistrates, granted before the trial or 
 attendance in court, if such magistrate or magistrates shall think fit to 
 grant the same; and the amount of all the other expenses and compen- 
 sation shall be ascertained by the proper officer of the court, subject 
 nevertheless to the regulations to be established in the manner hereinaf- 
 ter mentioned." 
 
 *And by sec. 23, after reciting that for want of power in the court to *949 
 order payment of the expenses of any prosecution for a misdemeanor, In certain 
 
 (a) 2 Phill. Ev. 283 ; but see 1 Chit. Cr. L. 613. At York Summer Assizes, 1820, Bayley, 
 J., ruled that an unwilling witness, who required to be paid before he gave evidence, could 
 not demand it. He said, " I fear I have not the power to order you your expenses." And 
 on asking the bar if any one recollected an instance, Scarlett answered, " It is not done in 
 criminal cases." MS. 1 Chetw. Burn. 1001. In Reg. v. Cousens, Gloucester Spr. Ass. 1843, 
 Wightman, J., directed an officer of the Ecclesiastical Court, who had brought a will from 
 London under a subpoena duces tecum, to go before the grand jury, although he objected on 
 the ground that bis expenses had not been paid. In Rex v. Cooke, an indictment for a con- 
 spiracy removed into the King's Bench by certiorari, a witness called by the defendant stated 
 before he was examined, that at the time he was served with a subpoena, no money was paid 
 him ; lie therefore asked that the judge would order the defendant to pay him his expenses 
 before he was examined. Park, J. A. J., having consulted with Garrow, B., said they were 
 of opinion that the judge had no power in a criminal case to order a defendant to pay a 
 witness his expenses although subpoenaed, and though the indictment came to be tried as a 
 civil record. 1 C. & P. a 321. 
 
 a Eng. Com. Law Reps. xi. 408.
 
 949 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 cases of 
 misde- 
 meanor. 
 
 many individuals are deterred by the expense from prosecuting persons 
 guilty of misdemeanors, it is further enacted, "that where any prose- 
 cutor or other person shall appear before any court on recognizance or 
 subpoena, to prosecute or give evidence against any person indicted of 
 any assault with intent to commit felony, of any attempt to commit 
 felony, of any riot, of any misdemeanor for receiving any stolen pro- 
 perty knowing the same to have been stolen, of any assault upon a peace 
 officer in the execution of his duty, or upon any person acting in aid of 
 such officer, of any neglect or breach of duty as a peace officer, of any 
 assault committed in pursuance of any conspiracy to raise the rate of 
 wages, of knowingly and designedly obtaining any property by false 
 pretences, of wilful and indecent exposure of the person, or wilful and 
 corrupt perjury, or of subornation of perjury; every such court is hereby 
 authorized and empowered to order payment of the costs and expenses 
 of the prosecutor and witnesses for the prosecution, together with a com- 
 pensation for their trouble and loss of time, in the same manner as 
 courts are hereinbefore authorized and empowered to order the same in 
 cases of felony ; and although no bill of indictment be preferred, it shall 
 still be lawful for the court, where any person shall have bond fide at- 
 tended the court, in obedience to any such recoguizance, to order pay- 
 ment of the expenses of such person, together with a compensation for 
 his or her trouble and loss of time, in the same manner as in cases of 
 felony; provided, that in cases of misdemeanor the power of ordering 
 the payment of expenses and compensation shall not extend to the 
 attendance before the examining magistrate. "(«)f 
 
 The Central Criminal Court Act, 4 & 5 Win. 4, c. 36, s. 12, enacts 
 that "it shall be lawful for any two of the said justices and judges of 
 oyer and terminer and of gaol delivery to order and direct the costs and 
 expenses of prosecutors and witnesses, in all cases where prosecutors 
 and witnesses may be by law entitled thereto, to *be paid by the trea- 
 surer of the county, in which the offence of any person prosecuted would 
 have been tried but for this act ; and that every such treasurer, or some 
 
 (a) Sec. 24, provides that the order for the payment of the expenses shall be made out by 
 the clerk of the assizes, &c, and paid by the county treasurer ; and sec. 25, provides how 
 the expenses shall be paid in places not contributing to the county rate. Sec. 26, empowers 
 the Courts of Quarter Sessions to make regulations as to the rate of costs and expenses. 
 Sec. 27, empowers the judge of the Court of Admiralty in felonies and misdemeanors of the 
 denominations before mentioned, committed upon the high seas, " to order the assistant to 
 the counsel for the affairs of Admiralty to pay such costs, expenses, and compensation to 
 prosecutors and witnesses, in like manner as other courts, may order the treasurer of the 
 county to pay the same." The Municipal Corporation Act, 5 &6 Wm. 4, c. 76, s. 113, pro- 
 vides that all sums directed to be paid by virtue of the 7 Geo. 4, c. 64, in respect of felonies 
 and misdemeanors committed, or supposed to have been committed, in any borough in which 
 a separate Court of Quarter Sessions shall be holden, shall be paid out ofthe borough fund ; 
 and the order of the court shall be directed to the treasurer of the borough. Sec. 114, pro- 
 vides for the treasurers ofthe counties keeping accounts ofthe expenses of prosecutions of 
 offenders sent from boroughs for trial at the assizes, and for the payment of them by the 
 boroughs. As to the construction of this section, see Reg. p. Johnson, 10 A. & E. 740. The 
 2 & 3 Vict. c. 82, which provides for the trial of offenders in detached parts of counties, by 
 sec. 2, provides for the treasurers of counties keeping an account of the expenses of prose- 
 cutions, in detached parts of counties, and for the payment of the same by the county to 
 which the detached parts belong. The 5 & 6 Vict. c*. 98, ss. 18, 19, and 20, contains also 
 provisions for the payment by boroughs of the expenses of the prosecution of borough 
 prisoners, confined in county gaols, and for the manner of paying the expenses of the con- 
 veyance and maintenance of such prisoners. 
 
 f {In New York, witnesses for the defendant, in a prosecution for a misdemeanor, are not 
 bound to attend the trial unless their fees are paid as in civil causes; otherwise, as to pro- 
 secutions for felony. 4 Cowen, 49. Chamberlain's case.} 
 
 4 & 5 Wm, 
 4, c. 36, s. 
 12. 
 
 *950
 
 CHAP. V. § V.] ATTENDANCE OF WITNESSES, HOW REMUNERATED. 950 
 
 known agent, shall attend the said justices and judges of oyer and ter- 
 miner and gaol delivery during the sitting of the court to pay all such 
 orders." 
 
 The 7 Geo. 4, c. 64, contained no provision for the payment of costs 1 Vict. c. 
 in cases of disposing of the dead hodies of children with intent to con- ^ B £ 
 ceal their birth ; but now by the 1 Vict. c. 44, s. 1, it is enacted, « that i/casoTof 
 where any prosecutor or other person shall appear before anv court on indict - 
 
 • i luBnts for 
 
 recognizance or subpoena, to prosecute or give evidence against any per- concealing 
 son upon any charge of having so endeavoured to conceal the birth of the birth of 
 any child, every such court is hereby authorized and empowered, whe- C ren ' 
 ther any bill of indictment for such charge shall or shall not be actually 
 preferred, to order payment of the costs and expenses of the prosecutor 
 and witnesses for the prosecution, together with a compensation for 
 their trouble and loss of time, in the same manner as courts are now by 
 law authorized and empowered to order the same in cases of prosecutions 
 for felony." And by sec. 2, « every order for the payment of any mo- 
 ney by virtue of this act, shall be made out and delivered by the proper 
 officer of the court unto such prosecutor or other person, upon the same 
 terms and in the same manner in all respects as orders for the payment 
 of costs are now made in cases of felony ; and the treasurer or other 
 persons, when any such order shall be made, shall be and he is hereby 
 required upon sight of such order, forthwith to pay to the person therein 
 named, or to any one duly authorized in that behalf, the money in such 
 order mentioned ; and such treasurer or other person shall be allowed 
 the same in passing his accounts." 
 
 The following cases relative to the allowance of costs under these 
 statutory provisions, may properly be introduced in this place. 
 
 A party bound over by the sessions to prosecute at a superior court A binding 
 is entitled to his expenses under the 7 Geo. 4, c. 64. The prosecutor h 7 the ses - 
 was bound over by the Court of Quarter sessions for Surrey, to prose- sufficient. 
 cute for a burglary at the Central Criminal Court, and it was held that 
 he was entitled to his expenses. (6) 
 
 Where the prosecutor and his witnesses had been bound by recogni- Cases in 
 zance to prosecute and tnve evidence at the assizes, but bv a mistake which , the 
 
 costs nnvG 
 
 the prisoner had been discharged by proclamation at the adjourned ses-been al- 
 sions, which preceded the assizes ; and the prosecutor and his witnesses lowe d- 
 had appeared at the assizes and preferred an indictment, which had 
 been found by the grand jury ; Taunton, J. ; held, that as the bill had 
 been preferred and found, he might, under the word " prosecuted," in 
 sec. 22, order the expenses ; but if the witness had merely appeared at 
 the assizes according to their recognizances, and no bill had been pre- 
 ferred he should have had no authority.(c) 
 
 Where a prisoner who was committed on a charge of felony during 
 the assizes, did not reach the assize town until after the grand jury was 
 discharged ; Ilullock, B., after reference to the statute, allowed their 
 expenses. (<7) 
 
 *Where an indictment for a riot was found at one assizes, and the *951 
 trial took place at the subsequent assizes, but no person was bound over Where the 
 to prosecute at these assizes, but the witnesses were subpoenaed to ap- {^nTt 
 pear at both the assizes; the Court of King's bench were clearly of bound 
 
 (b) Rex v. Paine, a 7 C. & P. 135, Lord Dcnman, C. J., Park, J. A. J., and Bolland, Ii. 
 
 (c) Rex v. Robey, b 5 C. & P. 552. (d) Anonymous, 1 Lew. 128. 
 
 a Eng. Com. Law Reps, xxxii. 468. b lb. xxiv. 452.
 
 951 OF EVIDENCE. [BOOK VI. 
 
 by recog- opinion that the judge had authority to order the costs of the witnesses 
 mzanee. ^ o ^ Q ^ . j^ - t wag Jolted whether the judge had authority to grant 
 Sheering'a the prosecutor his costs. (e) But where the prosecutor in a case of per- 
 ca8e " jury, was not bound over to prosecute by any magistrate, but he had 
 
 included his own name in a subpoena, which he had caused to be issued, 
 the court were of opinion that the words of the act did not limit the al- 
 lowance of the expenses of the prosecutor to those which he incurred as 
 a witness, but that he was entitled to receive them in his character of 
 prosecutor; and they made an order accordingly.^/) 
 Butter- Where the prisoner had been apprehended by a bench warrant, and 
 
 WK:k ' s the prosecutor was under no recognizance to prosecute, and none of the 
 witnesses were under recognizances, but one of them had been sub- 
 poenaed; on a motion for the costs of the prosecution, Parke, B., at first, 
 thought that he could only grant the costs of the witness who had been 
 subpoenaed, but said he would consider the point ; and on the following 
 day his lordship said, that on comparing the words of the 7 Geo. 4, c. 
 64, s.22, (relating to felonies,) with those of the subsequent section re- 
 lating to misdemeanors,) it appeared to him that the court had autho- 
 rity, in prosecutions, for the former class of offences, to award the prose- 
 cutor his costs, even though he is not under any recognizance ; and his 
 lordship accordingly granted the costs of the prosecution generally in- 
 cluding the witnesses. (#) 
 Where not An indictment, charging that the defendant assaulted J. S., and un- 
 allowed. l aw f u l]y and indecently (not saying publicly) exposed his person to J. 
 S., with intent to incite J. S. to commit an unnatural offence with the 
 defendant, is not an offence within the 7 Geo. 4, c. C4, s. 23, and there- 
 fore, the court cannot allow the prosecutor his expenses under that 
 clause. (A) 
 Johnson's Where an indictment for riot was found at the quarter sessions, and 
 ^. as ] e : removed by the prosecutor into the Court of King's Bench, by certio- 
 
 for riot rari, and the record sent down for trial at nisi priue, made a remain t. 
 removedby an( j a g a i n entered at the following assizes, when the defendants were 
 eutor by convicted. No recognizance had been returned to the crown office, and 
 certiorari, the prosecutor was not bound by recognizance to prosecute in the Court 
 of King's Bench. The witnesses were subpoenaed, but their expenses 
 were not payed by them, but by the prosecutor, as having been 
 defrayed by him ; the prosecutor also had caused himself to be subpoe- 
 *952 naed. The consideration of *the judges was desired, whether, in such 
 cases, of an indictment for a misdemeanor, removed by the prosecutor 
 himself from the quarter sessions into the King's Bench, an order of 
 nisi prius might legally be made for any and what costs, or whether 
 the application must not be elsewhere ; and the judges determined that 
 no costs were allowable under the statute. (/) 
 
 (e) Rex v. Jeyes, a 3 A. & E. 416. It was contended that the words must be read reddendo 
 singula singulis ; and the statute therefore applied where the prosecutor appeared on recog- 
 nizance or the witness on subpoena. Littledale, J., said, " there is much doubt in my mind 
 as to the expenses of the prosecutor. At present I think that he is not entitled to them: it 
 seems likely that the legislature meant to give the expenses to the prosecutor only when he 
 goes before a magistrate, Avho binds him over. A magistrate, on hearing the case frequently 
 dismisses it ; if the prosecutor then goes to the grand jury. I think he ought not to be paid 
 by the treasurer." 
 
 (/) Rex v. Sheering, b 7 C. & P. 440, cor. Park, J. A. J., and Coleridge. J. 
 
 (ff) Reg. v. Butterwick, 2 M. & Rob. 196. (h) Reg. v. -,« 8 A. & E. 5S9. 
 
 (i) Rex v. Johnson, R. & M. C. C. R. 173. The same point was decided by the judges in 
 a Eng. Com. Law Reps. xxx. 130. b lb. xxxii. 57 « lb. xxxv. 466.
 
 CHAP. V. § V.] ATTENDANCE OF WITNESSES, HOW REMUNERATED. 952 
 
 Where six indictments for felony were removed by the prisoner, one Rc x v. The 
 of which only was tried, and at the trial the judge doubted whether he fjgSJt»r 
 had any power to give the prosecutor his costs ; the Court of King's 
 Bench refused to order the treasurer of the county of the city of Exeter 
 to pay the prosecutor the expenses of the prosecution ; as, if the costs 
 of the prosecution could be granted at all, they ought to be granted by 
 the judge who tried the prisoner. (k) 
 
 Where, in pursuance of a recognizance, the prosecutor at the quarter Rex v.. 
 sessions preferred an indictment for a riot, and he afterwards removed Richards, 
 it into the Court of King's Bench, it was held that the prosecutor was 
 not entitled to his costs; and Lord Tenterden, C. J., said that the 
 matter had been considered by the twelve judges, who were all of opin- 
 ion that the act did not apply to cases where the indictment had been 
 removed into the Court of King's bench by certiorari.(l\ 
 
 But where an indictment was found at the Middlesex quarter sessions, Qwxre, 
 
 and removed by the defendant by certiorari into the Queen's Bench, wh ^ ther 
 i-i i • • p i T i t* /~i t i costs can 
 
 and tried at the sittings alter term, when Lord Denman, C. J., made an be granted 
 
 order for the payment to the prosecutor or his attorney of the expenses atter a 
 
 . . removal by 
 
 of the prosecution and the witnessess, and that order was afterwards certiorari 
 made a rule of court ; upon showing cause against a rule to show cause h y tbe 
 why that rule should not be discharged, it was contended that the words 
 of the statute applied to any court, and that the reason of the decision 
 in Bex v. Jeyes,(wi) was, that the statute was passed to indemnify per- 
 sons unable to bear the expense, and that inability was not likely to 
 exist where the party voluntarily removed the indictment the supe- 
 rior court, and that the view taken by Littledale J., in Bex v. The 
 Treasurer of Exeter,(n) was incorrect. In support of the rule, it was 
 contended, that the statute ceased to apply after a removal by certiorari, 
 and that there was no distinction as to the party removing the indict- 
 ment; the court, however, did not express any opinion upon this 
 point.(o) 
 
 *Under the 7 Geo. 4, c. 64, s 22, the court upon a trial for murder *953 
 or manslaughter, has no power to allow the costs of the attendance of No cos . ts of 
 witnesses at the inquest held upon the body of the deceased ;(j9) or of c 0r e ° ™>f & 
 a surgeon for examining the body by order of the coroner.^) inquest. 
 
 Rex v. Oates, mentioned in R. & M. C. C. R. 175. In Rex v. Ellis, convicted at nisi prim, at 
 Exeter, in 1826, for a felony committed before the 7 Geo. 4, c. 64, was in operation, and 
 whilst the 58 Geo. 3, c. 70, was in force, the Court of King's Bench made a rule absolute, 
 ordering the city and county of Exeter to pay the expenses. The 7 Geo. 4, c. 64, was in 
 force at the time of the trial. R. & M. C. C. R. 175. See Rex v. The Treasurer of the County 
 of the City of Exeter, infra, where the court seems to have been of opinion that the costs 
 had been improperly allowed in this instance and to have overruled this case. 
 
 (k) Rex v. The Treasurer of Exeter, 5 M. & Ry. 167. Littledale, J., added, "even the 
 judge has no power where the case has been removed by certiorari. There is no difference 
 in substance between an indictment removed by the prisoner and an indictment removed by 
 the prosecutor." " The act only applies to indictments tried before the courts in which they 
 were found." 
 
 (1) Rex v. Richards,* 8 B. & C. 420. It is not stated that the prosecutor or the witnesses 
 attended the trial under subpoena or recognizance. 
 
 (m) Supra. (n) Supra. 
 
 (o) Reg. v. , b 8 A. & E. 589. See this case, ante, p. 951. 
 
 (p) Rex v. Rees, 5 C. & P. 302. 
 
 (a) Rex v. Taylor, 4 5 C. & P. 301. The 6 & 7 Wm. 4, c. 89, however, after, by sec. 1, pro- 
 viding that the coroner may summon medical witnesses, and by sec. 2, that a majority of 
 the jury may require the coroner to summon additional medical witnesses, if the first are 
 not satisfactory, enacted by sec. 3, that legally qualified practitioners attending in obedience 
 ■ Eng. Com. Law Reps. xv. 253. b lb. xxxv. 466. ° lb. xxiv. 331. d Ibid.
 
 953 OF EVIDENCE. [BOOK VI. 
 
 Extra ex- Where a witness was brought to bed during her attendance under a 
 
 pensesja- rec0 g n j zance a t the assizes, Parke, J., allowed her the difference between 
 
 der parti- the expenses, which would have been incurred had she been at home, 
 
 cular cir- anc | ^Qgg actually incurred in the assize town ;(r) and so where a wit- 
 
 cumstan- J . -i ' 
 
 ces. ness, who had come to the assizes at iork, under a recognizance to give 
 
 evidence in a case of forgery, became insane, and it was thought neces- 
 sary to convey him to the lunatic asylum at Wakefield; Patteson, J., 
 upon the authority of the preceding case, ordered a similar allowance 
 as to the expenses of medical attendance during the time the witness 
 remained at York after he was attacked ; and also for the expenses of 
 conveying him to the asylum at Wakefield, (.s) 
 Expenses Where, in a case of murder, it appeared that the offence was com- 
 of "other- m j tte( j j n a sma ]l township, the inhabitants of which were a small com- 
 
 wisecar- . i-iiii ,,... 
 
 rying on munity, and extremely poor, and had shown great zeal and activity in 
 the prose- getting up the case, and had been put to considerable expense in so 
 doing, which they were but ill able to afford, the court was applied to, 
 that certain expenses might be allowed over and above those usually 
 allowed by the officer of the court, and it was submitted that the words 
 " in otherwise carrying on the prosecution" were sufficiently large to 
 include the expenses applied for; Lord Denman C. J., after time taken 
 to consider, granted the application, and the clerk of assize made out 
 the order for all the expenses incurred, except the attendance of the 
 witnesses before the coroner. (^) 
 *954 *In one case it was said that when a trial for felony is postponed, the 
 Cases practice is not to allow the prosecutor his expenses, till the assize at 
 
 trial has 6 which the trial comes on, and the expenses were in that case refused at 
 been post- the assizes at which the trial was postponed. (?<) But where the coroner 
 pone ' had bound over the proseeutor and witnesses to apear at the assizes to 
 give evidence in a case of manslaughter; but the prisoner who had nei- 
 ther been apprehended, nor was under recognizance, did not appear at 
 the assizes; Alderson, B., after ordering him to be called, and directing 
 the trial to be put off till the next assizes, allowed the expenses of the 
 
 to such summons, should receive such remuneration and fees as were specified in the sched- 
 ule to that act, which were in Great Britain, to be paid out of the funds collected for the 
 relief of the poor ; but by sec. 4, no fee is to be paid if the examination takes plaee without 
 the order of the coroner; or by sec. 5, where the death was in any hospital, infirmary, &c. 
 By the 1 Vict. c. 68, s. 1, the justice of the peace at quarter sessions, and the town council 
 of any borough having a coroner, are to make a schedule of the fees to be paid by the coro- 
 ner holding an inquest (other than the fees payable to medical witnesses under the 6 & 7 
 Wm. 4, c. 89.) Sec. 2 repeals so much of the 6 & 7 Wm. 4, c. 89, as relates to the payment 
 of the fees to medical witnesses out of the funds raised for the relief of the poor, and pro- 
 vides that the coroner shall pay them ; and by sec. 3, the coroners of counties are to lay 
 their accounts before the quarter sessions, and the coroners of boroughs to lay them before 
 the town council, and the coroner is to be repaid in the former case out of the county rates, 
 and in the latter out of the borough fund. It may be proper to observe that it is the boun- 
 den duty of a coroner, wherever the death has arisen under such circumstances as lead to 
 the conclusion that the party has died from the criminal acts of another, to cause a post 
 mortem examination of the body to be made by some medical practitioner. In Reg. i\ Webb, 
 Hereford Spr. Ass. 1843, on an indictment for murder by violence inflicted upon the head, no 
 post mortem examination had taken place, and Wightman, J., commented in strong terms on 
 the great impropriety of neglecting such a course, and observed, that it was clearly the duty 
 of a coroner to order such an examination to take place. A bill is now pending in Parlia- 
 ment for the better allowance of expenses incurred upon holding inquisitions before coroners. 
 C. S.G. 
 
 (?) Anonymous, cited 1 Lew. 133. (s) In Re Mallison. 1 Lew. 132. 
 
 (/) Lewen's case, 2 Lew. 161. The depositions taken before the coroner were allowed 
 for. 
 
 (u) Rex v. Hunter," 3 C. & P. 591, Park, J. A. J. 
 
 ■ Eng. Com. Law Reps. xiv. 469.
 
 CHAP. V. § V.] ATTENDANCE OF WITNESSES, HOW REMUNERATED. 954 
 
 prosecutor and witnesses. (v) So in a case of murder, which was post- 
 poned until the following assizes, on the application of the prisoner, and 
 in which the costs of the prosecution were very heavy; Alderson, B., 
 made an order for their payment.fwA 
 
 The 7 Geo. 4, c. 64, s. 27, " for the better remuneration of persons? Geo - 4 > c. 
 who have been active in the apprehension of certain offenders," enacts, courts 
 that » where any person shall appear to any court of oyer and terminer, may order 
 gaol delivery, superior criminal court of a county palatine, or court of com P en - 
 great sessions, to have been active in or towards the apprehension of any those who 
 person charged with murder, or with feloniously and maliciously shoot- haA ' e be . en 
 ing at, or attempting to discharge any kind of loaded fire-arms at any the appre- 
 other person, or with stabbing, cutting, or poisoning, or with adminis- tension of 
 tering anything to procure the miscarriage of any woman, or with rape, fenders. " 
 or with burglary or felonious house-breaking, or with robbery on the 
 person, or with arson, or with horse-stealing, bullock-stealing, or sheep- 
 stealing, or with being accessory before the fact to any of the offences 
 aforesaid, or with receiving any stolen property, knowing the same to 
 have been stolen; every such court is hereby authorized and empowered 
 in any of the cases aforesaid, to order the sheriff of the county, in which 
 the offence shall have been committed, to pay to the person or persons, 
 who shall appear to the court to have been active in or towards the 
 apprehension of any person charged with any of the said offences, such 
 sum or sums of money as to the court shall seem reasonable and suffi- 
 cient to compensate such person or persons for his, her, or their ex- 
 penses, exertions, and loss of time in or towards such apprehension ; 
 and where any person shall appear to any court of sessions of the peace 
 to have been active in or towards the apprehension of any party charged 
 with receiving stolen property, knowing the same to have been stolen, 
 such court shall have power to order compensation to such person in 
 the same manner as the other courts hereinbefore mentioned ; provided 
 always, that nothing herein contained shall prevent any of the said 
 courts from also allowing to any such persons, if prosecutors, or wit- 
 nesses, such costs, expenses, and compensation, as courts are by this 
 act empowered to allow to prosecutors and witnesses respectively.' '(x) 
 
 By sec. 30, if any man shall happen to be killed in endeavouring to *955 
 apprehend any person who shall be charged with any of the offences H any man 
 hereinbefore last mentioned, it shall be lawful for the court *before attempt- *" 
 whom such person shall be tried to order the sheriff of the county to ing to take 
 pay to the widow of the man so killed, in case he shall have been mar-~ er J; ai " 
 ried, or to his child or children, in case his wife shall be dead, or to his the court 
 father or mother, in case he shall have left neither wife nor shild, such mav order 
 
 * , ........ , compensa- 
 
 sum of money as to the court in its discretion shall seem meet ; and tion to the 
 the order for payment of such money shall be made out and delivered family, 
 by the proper officer of the court unto the party entitled to receive the 
 same, or unto some one on his or her behalf, to be named in such order 
 by the direction of the court ; and every such order shall be paid by 
 and repaired to the sheriff in the manner hereinbefore mentioned." 
 
 The 7 Geo. 4, c. 64, s. 28, does not authorize the court to award com- Sacrilege. 
 pensation to persons who have been active in and towards the appre- 
 
 (v) Flannery's case, 1 Lew. 133, and in a similar case, Gurncy, B., allowed the costs, ibid. 
 note. (w) Bolam's case, Rose. Cr. Ev. 22G. 
 
 (x) Sec. 29 provides that such orders shall be paid by the sheriff, who may obtain imme- 
 diate repayment on application to the treasury. 
 
 Vol. ii.— 62
 
 955 OF EVIDENCE. [BOOK VI. 
 
 hension of a person guilty of sacrilege, (y) And upon the authority of 
 this case, Bolland, B., refused to allow compensation in a similar case; 
 though, in the absence of such authority, both he and Parke, J., would 
 have been disposed to put a different construction upon the statute. (z) 
 Bullock- But it has been held that a person who has been active in the appre- 
 stealmg. hension f a prisoner charged with stealing a cow, is entitled to a reward 
 under this section, as the words bullock-stealing, horse-stealing, and 
 sheep-stealing, are intended to describe the kind or class of offences, in 
 connection with which rewards were to be allowed. (a) And where a 
 Attempt to prisoner was indicted for an attempt to murder her child by suffocating 
 murder. j^ an( j an application was made to allow the extra expenses incurred 
 by the constable in apprehending the prisoner, and for his loss of time, 
 and the attention of the court was directed to the case not being one 
 within the words of sec. 28 ; Patteson, J., was of opinion that it was 
 within the spirit and intention of the act, though not within the words; 
 "Exer- and therefore allowed the expenses.(J) And where on a trial for rob- 
 tions." k er y i t appeared that the prosecutor had displayed great courage in 
 apprehending the prisoner ; Parke, B., ordered him to be paid a reward, 
 under the word " exertions."(c) 
 Where no The rewards, which may be given under this section, are not confined 
 f xpen f e or to cases where the party has been put to expense or loss of time; but 
 time. have been ordered to be paid to persons who have displayed great 
 
 courage in the apprehension of offenders, although they have neither 
 been put to expense nor loss of time. Thus they have been granted 
 where the person has apprehended the prisoner in the actual commis- 
 sion of a burglary ;{d) and also where the party came down stairs when 
 a burglary was committed, but did not apprehend the prisoners, who 
 were three in number, but was able to give such a description of them 
 as caused their apprehension. (e) 
 
 Where it does not appear upon the evidence given on the trial that 
 *956 the party has been active in the apprehension, an affidavit is *necessary 
 to be laid before the judge, in order to induce him to grant a re- 
 ward^/) 
 Protection A person subpoenaed as a witness, or bound over by recognizance, 
 of witness e j tner to p rose eute or give evidence, or attending voluntarily for the 
 arrest. bond fide purpose of giving evidence,f is privileged from arrest during 
 the necessary time occupied in going to the place where his attendance 
 is required, in staying there for the purpose of such attendance, and in 
 returning from that place. (a) And in allowing witnesses time sufficient 
 
 (y) Robinson's case, 1 Lew. 129, Hullock, B., who said that "the word 'sacrilege,' if used 
 alone in a statute, would not be construed to come within the words ' burglary,' or ' house- 
 breaking,' and that, wherever, in a penal statute, churches are intended to be included, the 
 word 'sacrilege' is introduced." 
 
 (z) Anonymous, 1 Lew. 130. 
 
 (a) Rex v. Gilbrass," 7 C. & P. 444, Law, Recorder. 
 
 (b) Durkin's case, 2 Lew. 163. (c) Womersly's case, 2 Lew. 162. 
 \d) Rex v. Barnes, b 7 C. & P. 166. Colegridge, J. 
 
 fe) Rex v. Blake, 7 C. & P. 166, Williams, J. And rewards were ordered in a similar way 
 at the Bristol Special Commission. 7 C. & P. 167. 
 
 (/) Rex v. Jones, c 7 C. & P. 167, Park, J. A. J. 
 
 (g) Meekins v. Smith, 1 H. Bl. 636. Lightfoot v. Cameron, 2 Bl. C. 1113. Hilderston v. 
 Barrett. 11 East, 439. Arding v. Flower, 8 T. R. 536. But this privilege does not extend 
 
 f {In McNeil's case, 6 Mass. Rep. 264, it was held that a witness, attending without being 
 summoned, is not privileged.}— [Rose. Dig. Cr. Ev. 93, n.] 
 
 » Eng. Com. Law Reps, xxxii. 843. b Ib. xxxii. 759. • lb. xxxii. 481.
 
 CHAP. V. § VI.] OF ACCOMPLICES. 956 
 
 for these purposes, the courts are always disposed to be liberal. (A) If 
 a witness under these circumstances be arrested, the court out of which 
 the subpoena issued, or tbe judge of the court in which the cause has 
 been or is to be tried, will, upon application, order him to be dis- 
 charged.^') 
 
 Where any offence has arisen in India, which is tried in this country, Evidence 
 the evidence of witnesses resident in India may be obtained in the man ° 
 
 lic.'s.-es resi- 
 
 ner prescribed by the 13 Geo. 3, c. 63, ss. 40, 44. (j"\ And in case of dent 
 a prosecution for any offence committed abroad by any person employed abroad - 
 in the public service, the evidence of witnesses resident abroad may be 
 obtained in the mode pointed out by the 42 Geo. 3, c. 85. 
 
 SECT. VI. 
 
 Of Accomplices. 
 
 It will appear in the investigation of the law relating to incompetency 
 from infamy, that though it be shown by a witness's own admission, 
 that he has been guilty of an infamous crime, he will not be deemed 
 incompetent without other proper proof that he has been convicted of 
 it:fj(/) from which it necessarily follows, that the testimony of an 
 avowed accomplice with the prisoner at the bar is not to be excluded 
 from being given against him ; and accordingly it has been long a set- 
 tled rule, that an accomplice may give evidence against his associates, 
 provided he has not been already convicted :(&)f so he may, indeed, Evidence 
 
 even after a conviction, if iudgnient has not passed, for it is not the con- a S ainst 
 
 i.ii i f. i •!• /rv i prisoner, 
 
 viction, but the judgment, that creates the disability. (/) And not only 
 
 if two or more persons are accomplices, may one, who is not indicted, 
 
 be a witness against the others; but he may also be so, it seems, when 
 
 he is indicted jointly with his *partners in guilt,(m) although it is not *957 
 
 usual or proper to include him in the indictment,^) provided he has 
 
 not been put on his trial at the same time with the others. (o) It was 
 
 formerly thought that an accomplice separately indicted for the same Indicted 
 
 offence, could not be a witness against his associate, unless he had se P aratelv - 
 
 first pleaded guilty to his indictment ;(p) but the rule is now other- 
 
 to arrests by his bail, for tbe purpose of being surrendered ; for he is supposed to be in their 
 custody even while attending as a witness. Ex parte Lyne," 3 Stark. C. 132. 
 
 (h) 1 Phill. Ev. 4. (i) Archb. Cr. PL 108. 
 
 (j) See ante, p. 901, as to depositions or interrogatories by consent. 
 
 (i?) Post, p. 974. 
 
 (k) 2 Hawk. P. C. c. 46, ss. 94, 95. Tong's case, Kel. 17, 18. 1 Hale, P. C. 303, 304. 
 
 (I) 1 Phill. Ev. 28. And the information of, a dead accomplice, taken by a justice of the 
 peace, may be read in evidence against the prisoner. Rex v. Westbeer, 1 Leach, 12. Rex 
 v. Russell, R. & M. C. C. R. 356. 
 
 (m) 1 Hale, P. C. 305. If A., B. and C. be indicted for perjury on three several indict- 
 ments concerning the same matter, A. pleads not guilty, B. and C. may be examined as wit- 
 nesses for A., for yet they stand unconvicted, although they are indicted. Bilmore's case, 1 
 Hale, 305. Rex v. Clark, ibid., note. 
 
 (n) 1 Hale, P. C. 305. 
 
 (o) 2 Stark. Ev. 13. The learned author adds a quxre. And see Reg. v. Lyons, 9 C. & 
 P. 555. 
 
 (p) Sir Percy Cresby's case, 1 Hale, P. C. 303. 
 
 f \Jirovm v. The Commonwealth, 2 Leigh, 769.] 
 a Eng. Com. Law Reps. xiv. 167.
 
 957 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Promise 
 of pardon 
 or reward. 
 
 Approve- 
 ment. 
 
 wise.(</)f It is also now perfectly settled, though contrary to one great au- 
 thority,(r) that no promise of pardon or reward, whether absolute or con- 
 ditional, will render an accomplice incompetent,(s) although the circum- 
 stances under which his evidence is given ought to have great weight with 
 a jury in considering the credit to which such evidence is entitled. The 
 practice of admitting the testimony of accomplices and the promise of 
 pardon, express or implied, under which they usually give their evi- 
 dence, were introduced instead of the ancient system of approvement, 
 which Lord Hale, in his Pleas of the Crown, speaks of as having been 
 already long disused. (t\ Approvement was when a prisoner, arraigned 
 for treason or felony, confessed the fact before plea pleaded, and appealed 
 or accused others his accomplices of the same crime, in order to obtain 
 his pardon. (u\ He was also bound to discover on oath, not only the 
 particular crime charged upon him, but all treasons and felonies of which 
 he could give any information.^) It was purely in the discretion of 
 the court to permit the approvement or not ; if they allowed it, the 
 party accused was put on his trial : whereon, if he was convicted, the 
 approver had his pardon ex debito just iticc : (ic\ if he was acquitted, the 
 approver received judgment of death upon his own confession of the 
 indictment^) 
 
 All the good that could be expected from this method of improve- 
 ment is now more fully provided for and secured by one of the follow- 
 ing methods :QA 1st, By special proclamation in the Gazette or other- 
 wise, pardon is sometimes promised on certain conditions. Accom- 
 plices within this class have a right to pardon. (2) 2ndly, By *the 
 practice most usually adopted, accomplices are admitted to give evidence 
 for the crown, under an implied promise of pardon, on condition of their 
 
 *958 
 
 (w) 4 Bla. Com. 330. 
 (tc) 4 Bla. Com. 330. 
 
 (g) 1 Pbill. Ev. 28. 
 
 (r) Lord Hale, 2 P. C. 280- 
 
 (s) Tong's case, Keb. 17. Layer's case, 6 St Tr. 259. 2 Hawk. P. C.c. 46, s. 135. 1 Hale, 
 P. C. 304. 1 Phill. Ev. 27. 
 
 (i) 2 Hale, 226. 
 
 (v) 2 Hale, P. C. 227. 
 
 (x) Ibid. 
 
 (y) In the case of offences relating to coining and uttering counterfeit money, the 6 4 7 
 Wm. 3, c. 17, s. 12, and 15 Geo. 2, c. 28, s. 8, enacted, that if any such offender being out of 
 prison, should discover two or more persons who had committed the like offences, so as they 
 might be convicted thereof, he should be entitled to a pardon ; but these statutes were 
 repealed by the 2 Wm. 4, c. 34, s. 1. 
 
 (z) Rexv. Rudd, Cowp. 334, by Lord Mansfield, in giving judgment. S. P. S. C. 1 Leach, 
 118, 4th ed. But the promise of a pardon by proclamation in the Gazette does not give the 
 party a legal right to exemption from punishment. Where, therefore, a prisoner convicted 
 of murder was brought up to the Court of King's Bench, and asked why execution should 
 not be awarded against him, and pleaded that the King by proclamation in the Gazette had 
 promised pardon to any person, except the actual murderer, who should give information 
 whereby such murderer should be convicted, and that he, not being the actual mnrderer, had 
 given such information, and thereby entitled himself to a pardon, the plea was held insuffi- 
 cient. Rex v. Garside, a 2 Ad. & E. 266. The proper course in such a case seems to be to 
 apply to the judge to postpone the execution, in order to make an application to the Secre- 
 tary of State for a pardon. C. S. G. 
 
 f {It is in the discretion of the court, it seems, to admit or reject the testimony of an 
 accomplice. 9 Cowen, 707, People v. Whipple.} 
 
 [On the trial of an indictment for receiving stolen goods, the principal felon is a compe- 
 tent witness on the part of the State. Stale v. Coppenburg, 2 Strobhart, 273. 
 
 An accomplice should not be admitted as a witness without a previous order of the court, 
 made on an application, showing that there is another person by whom the offence can be 
 proved, that the witness is not more guilty than the person on trial, and that his testimony 
 can be substantially corroborated. Ray v. The State, 1 Iowa, 316.] 
 » Eug. Com. Law Reps. xxix. 84.
 
 CHAP. V. § VI.] OF ACCOMPLICES. 9^8 
 
 making a full and fair confession of the truth. (a) On a strict and ample 
 performance of this condition, to the satisfaction of the judge presiding 
 at the trial, (although they are not of right entitled to pardon,) they have 
 an equitable title to a recommendation for the Queen's mercy. (b) They 
 cannot plead this in bar to an indictment against them, nor can they 
 avail themselves of it as a defence on their trial, though it may be made 
 the ground of a motion for putting off the trial, in order to give the 
 prisoner time for an application in another quarter.(c) And if an ac- 
 complice, after being received as a witness against his companions, 
 breaks the condition on which he is admitted, and refuses to give full 
 and fair information, he will be sent on trial to answer for his share of 
 guilt in the transaction. (t?) It is not a matter of course to admit an 
 offender *as a witness on the trial of his associates, not even after he *959 
 
 (a) Rex v. Rudd, supra, n. (2). 1 Phill. Ev. 82. 
 
 (6) Ibid. The equitable claim to pardon does not protect an accomplice from prosecu- 
 tions for other offences, in which he was not concerned with the prisoner, but it is entirely 
 in the discretion of the judge whether he will recommend the prisoner to mercy. Rex v. 
 Lee, Russ. & Ry. C. C. R. 361. Rex v. Brunton,Mbid. 454. S. C. MS. Burn's Just, by 
 Chetwynd, tit. Approver. With respect to such offences, therefore, he is not bound to answer 
 on his cross-examination. West's case, MS. 1 Phill. Ev. 28. If, however, the prisoner hav- 
 ing been admitted as an accomplice as to one felony, be thereby induced to suppose that he 
 has freed himself from the consequences of another felony, the judge will recommend the 
 indictment for such other felony to be abandoned. Where an accomplice made a disclosure 
 of property, which was the subject-matter of a different robbery by the same parties, under 
 the impression that by the information he had previously given as to the robbery of other 
 property, he had delivered himself from the consequences of having the property he so dis- 
 closed in his possession: Coleridge, J., recommended the counsel for the prosecution not to 
 proceed against the accomplice for feloniously receiving such property. Garside's case, 2 
 Lew. 38. The judges will not in general admit an accomplice as king's evidence, if it 
 appear that he is charged with any other felony than that on the trial of which he is to be a 
 witness. This case was stated by Park, J. A. J., in several cases on the Oxford Spring Cir- 
 cuit, 1826, Carr. Crim. L. 67. It has been held in America that if an accomplice appears 
 to have been the principal offender, he will be rejected. The People v. Whipple, 9 Cowen, 
 707, Greenl. Ev. 426; but in England principals have frequently been allowed to become 
 witnesses against accessories. See Wild's case, post, p. 960, note (m). And cases frequently 
 occur where the accessory is far the more guilty party ; as where young persons have been 
 induced to commit crimes by the procurement of old offenders, and in such cases the young 
 persons are not unfrequently admitted as witnesses for the crown. C. S. G. 
 
 (c) 1 Phill. Ev. 28. 
 
 (d) Ibid. Moore's case, 2 Lew. 37. In one instance, a prisoner who had made a confes- 
 sion after a representation made to him by a constable in gaol, that his accomplices had been 
 taken into custody, which was not the fact, and who, after having been admitted as a wit- 
 ness against his associates, on a charge of maliciously killing sheep, upon the trial denied 
 all knowledge of the subject, was afterwards tried and convicted upon his confession. Rex 
 v. Burley, cor. Garrow, B., Leicester Lent Assizes, 1818. And the conviction was afterwards 
 approved of by all the judges. MS. 2 Stark. Ev. 13. {Commonwealth v. Knapp, 10 Pick. 
 478.} So where an accomplice, when sworn, pretended that he knew nothing of the steal- 
 ing of a sheep, Coleridge, J., committed him for trial at the next assizes, when he was con- 
 victed and transported, upon proof of his statement made to a policeman, before he was 
 called as a witness. Reg. v. Smith, Gloucester Spr. and Sum. Ass. 1841. So where an 
 accomplice, who was called as a Witness against several prisoners, gave evidence which 
 showed that all, except one, who was apparently the leader of the gang, were present at a 
 robbery, but refused to give any evidence as to that one being present, and the jury found 
 all the prisoners guilty; Parke, B., thinking the accomplice had refused to state that the 
 particular prisoner was present in order to screen him, ordered the accomplice to be kept 
 in custody till the next assizes, and then tried for the robbery. Rex v. Stokes and others, 
 Stafford Spr. Ass. 1837. It has been held in America, that if an accomplice, having made 
 a private confession, upon a promise of pardon made by the Attorney-General, should after- 
 wards refuse to testify, he may be convicted upon the evidence of that confession. Com- 
 monwealth v. Knapp, 10 Pick. 477, as cited Greenl. Ev. 426. And where an accomplice, 
 who had made a full disclosure of the facts attending the commission of a burglary when 
 before the committing magistrate, refused before the grand jury to give any evidence at all, 
 Wightman, J., ordered his name to be inserted in the bill of indictment, and he was con- 
 victed on his own confession. Reg. v. Holtham and five others, Stafford Spr. Ass. 1843.
 
 959 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Mode of 
 admitting 
 an accom- 
 plice as a 
 witness. 
 
 Where he 
 is jointly 
 indicted. 
 
 has been so allowed by the committing magistrate. The practice is, 
 (where the accomplice is in custody,) for the counsel for the prosecution 
 to move that the accomplice be allowed to go before the grand jury, 
 pledging his own opinion, after a perusal of the facts of the case, that 
 his testimony is essential. (e\ And it is in the discretion of the court, 
 under all the circumstances of the case, whether the application be 
 granted or refused. (f)f 
 
 This application is usually made before the bill is taken before the 
 grand jury, and if the application is granted, the accomplice is not in- 
 cluded in the indictment; but where he has been included with his con- 
 federates in a joint indictment, he may still be used as a witness with 
 the consent of the court. (g\ Upon an indictment for conspiracy the 
 court allowed an acquittal to be taken against some of the defendants 
 in order that they might be called as witnesses for the prosecution. (A) 
 As the same course may be adopted, with the permission of the court, 
 in a case of felony. (i) Upon an indictment for rape, as soon as the 
 jury were sworn, it was proposed, on the part of the prosecution, that 
 one of the prisoners should be acquitted before the case was gone into, 
 as he was intended to be called as a witness against the other prisoners, 
 and upon this being objected to, on behalf of the other prisoners; 
 Williams, J., (having conferred with Alderson, B., said, " I had little 
 doubt as to the course I ought to take, and my learned brother entirely 
 agrees with me that this is a matter very much of ordinary occurrence. 
 In cases of this kind the court, if it sees no cause to the contrary, is in 
 the habit of relying on the discretion of the counsel who conduct the 
 
 (e) 2 Stark. Ev. 2. If, however, the accomplice be carried before the grand jury, by 
 means of a surreptitious and illegal order, the indictment so found is good. Doctor Dodd's 
 case, 1 Leach, 155. It is not usual to admit more than one accomplice. Barnsley Rioters' 
 case, 1 Lewin, 5, Parke, J. But under peculiar circumstances three have been admitted. 
 Scott's case, 2 Lew. 36, Lord Denman, C. J. In this case the accomplices spoke to different 
 facts, and no one could prove the whole. See Rex v. Noakes, a 5 C. & P. 326. 
 
 (/) 1 Phill. Ev. 29. The court usually considers not only whether the prisoners can be 
 convicted without the evidence of the accomplice, but also whether they can be convicted 
 with his evidence. If, therefore, there be sufficient evidence to convict without his testi- 
 mony, the court will refuse to allow him to be admitted as a witness. So if there be no 
 reasonable probability of a conviction, even with his evidence, the court will refuse to admit 
 him as a witness. Thus where several prisoners were committed as principals, and several 
 as receivers, but no corroboration could be given as to the receivers, against whom the evi- 
 dence of the accomplice was required: Gurney, B., refused to permit one of the principals 
 to beeome a witness. Rex v. Mellor and others, Stafford Sum. Ass. 1833. So in Reg. v. 
 Saunders and others, Worcester Spr. Ass. 1842, on a motion to admit an accomplice, Patte- 
 son, J., said, "I doubt whether I shall allow him to be a witness; if you want him for the 
 purpose of identification, and there is no corroboration, that will not do." And in Reg. v. 
 Salt and others, Stafford Spr. Ass. 1843, where there was no corroboration of an accomp- 
 lice, Wightman, J., refused to allow him to become a witness. C. S. G. 
 
 (ff) 1 Phill. Ev. 29. 
 
 (h) Rex v. Rowland, 6 R. & M. N. P. R. 401. So if an accomplice jointly indicted with 
 others, plead guilty, and is fined by the court, and pays the fine (in a case where such fine 
 may be imposed by way of punishment, and where the suffering the punishment restores 
 the competency,) he may be called as a witness by the other prisoners. 1 Phill. Ev. 29, 
 citintr Rex v. Fletcher, 1 Str. 633. See also Rex v. Sherman, C. T. H. 303. 
 
 (i) 1 Phill. Ev. 29. 
 
 f [A person accused of the crime of murder, and jointly indicted with others for that 
 offence, was not put on his trial, but was used by the State's Attorney as a witness on the 
 trial of the others, who were convicted and executed. In giving his testimony he did not 
 in any way admit that he participated in the commission of the murder. Neither did it 
 appear in his petition by him filed for a writ of habeas corpus, that ho was guilty or had 
 been convicted of any crime. Held, that he was not in a condition to avail himself of the 
 rights and privileges of an accomplice. Ex parte Bird, 3 Gilman. 134.] 
 
 » Eng. Com. Law Reps. xxiv. 342. b lb. xxi. 471.
 
 CHAP. V. § VI.] OP ACCOMPLICES. 9-59 
 
 prosecution. I shall, therefore, in this case, intrust it to the discretion 
 
 *of the counsel whether he will have the prisoner acquitted before the *9G0 
 
 case is gone into or not. I think it almost of course. "(j) 
 
 It may be proper to observe that it is the duty of magistrates in all 
 cases where there may be an intention to call an accomplice as a witness 
 for the prosecution, to commit and not to bail him.(&) 
 
 In prosecutions for a misdemeanor in receiving stolen goods, on the Principal 
 repealed statute 22 Geo. 3, c. 58, the principal felon, though not con- fe . lon a , 
 victed or pardoned, was a competent witness against the receiver.(Z) 
 So the principal felon maybe a witness under the 4 Geo. 1, c. 10, s. 4, 
 against a party indicted for taking a reward to help to stolen goods. (m) 
 So on an information under 2 Geo. 2, c. 24//i) for bribery at an election, Inform a- 
 a person who has received a bribe may be a witness against the defen- bribery- 
 dant, though in case of a conviction he would be indemnified from the 
 penalties of the act.(o) 
 
 It being established that an accomplice is a competent witness, the Accom- 
 consequence is inevitable, that if credit be given to his evidence, it re- P j lice s evi " 
 quires no confirmation from another witness. (p) And therefore, in alone suffi- 
 strictness, if the jury believe the evidence of an accomplice, they may Cle . nt in 
 legally convict a prisoner upon it, though it stands totally uncorrobo- i aW; but in 
 rated. (j) But from a consideration of the situation of an accomplice, practice 
 this doctrine has been greatly modified in practice ; and it has long been tion is al- 
 considered as a general rule of practice that the testimony of an accom- ways 
 plice ought to receive confirmation, and that unless it be corroborated gg^eritial 
 in some material part by unimpeachable evidence, the presiding judge 
 ought to advise the jury to acquit the prisoner.^*?)")" It has been laid 
 
 (/) Reg. v. Owen, a 9 C. & P. 83. At the conclusion of the opening, the prisoner was 
 asked whether he would give evidence, and refused, and the case proceeded against all the 
 prisoners. See 2 Hawk. P. C. c. 45, s. 95. 
 
 (k) Rex v. Beardmore, 7 C. & P. 497, Patteson, J. (I) Ante, p. 253. 
 
 (m) See ante, p. 262. Jonathan Wild's case, 1 Leach, 17, note (a), (n) Ante, vol. 1, p. 155. 
 
 (o) Bush v. Rawlins, cited by Lord Mansfield in Clarke v. Shee, Cowp. 199. Mead v. 
 Robinson, Willes, 422. 
 
 (p) By Lord Ellenborough, in Rex v. Jones, 2 Campb. 133. Rex v. Hastings, 6 C. & P. 
 152, Lord Denman, C. J., Park, J., and Alderson, B. 
 
 (q) Rex v. Atwood, 1 Leach, 464, also cited in Grose, J., in Jordaine v. Lashbrook, 7 T. 
 R. 609. Rex v. Durham, 1 Leach, 478. 
 
 (qq) 1 Phill. Ev. 31. Smith and Davis's case, 1 Leach, 479, in note (a) to Durham's case. 
 They were tried for robbing George Hunter. During the night the prosecutor was attacked 
 by four ruffians, whose persons he was unable to identify ; but during the scuffle he had 
 torn a piece of the coat which one of them had on, who on being discovered by this means 
 turned king's evidence, and implicated the two prisoners. But the court, although it was 
 admitted as an established rule of law that the uncorroborated testimony of an accomplice 
 is legal evidence, thought it too dangerous to suffer a conviction to take place on his unsup- 
 ported testimony, and the prisoners were acquitted. Seeder Lord Abinger, C. B., in Rex v. 
 Farler, post, p. 964. 
 
 f [It is competent for a jury to convict a person charged with the commission of a crime 
 on the testimony of an accomplice alone ; but the court will advise the jury to acquit unless 
 such testimony is corroborated by other evidence. Commonwealth v. Bosworth, 22 Pick. 
 397. The corroborative testimony in such case must relate to some portion of the testimony 
 of the accomplice which is material to the issue. Ibid. 
 
 The testimony of an accomplice will, if the jury are fully convinced of its truth, warrant 
 the conviction of the defendant, though it be uncorroborated by other testimony. 'The Peo- 
 ple v. Costello, 1 Denio. 83. 
 
 While the evidence of an accomplice is to be weighed with great jealousy and distrust by 
 a jury, yet his credibility belongs exclusively to them. Keithler v. The State, 10 Smedes & 
 Marshall, 192. 
 
 An accomplice who testifies to the defendant's guilt cannot be permitted, with a view to 
 * Eng. Com. Law Reps, xxxviii. 44. b lb. xxxii. 599. c lb. xxxii. 475.
 
 960 OF EVIDENCE. [BOOK VI. 
 
 down that this practice of requiring some confirmation of an accomplice's 
 evidence, must be considered in strictness as resting only upon the dis- 
 cretion of the judge. (r) And this, indeed, appears to be the only mode 
 in which it can be made reconcilable with the doctrine already stated, 
 that a legal conviction may take place upon the unsupported evidence 
 of an accomplice. But it may be observed that the practice in question 
 *961 nas obtained so much sanction from legal ^authority, that it " deserves 
 all the reverence of law,"(s) and a deviation from it in any particular 
 case, would be justly considered of questionable propriety. (7) This con- 
 firmation need not extend to every part of the accomplice's evidence, 
 for there would be no occasion to use him at all as a witness, if his nar- 
 rative could be completely proved by other evidence, free from suspicion. 
 But the question is, whether he is to be believed upon points which the 
 confirmation does not reach. And if the jury find some part of his evi- 
 dence satisfactorily corroborated, this is a good ground for them to be- 
 lieve him in other parts, as to which there is no confirmation. (?<) So far 
 all the authorities agree; the only point on which any difference of 
 opinion has been supposed to exist, relates to the particular part or parts 
 of the accomplice's testimony which ought to be confirmed. (v\ 
 Corrobo- In some cases it seems to have been considered that if the accomplice 
 J atlon ebut was con fi rme d as to some of the prisoners, though not as to all, it was 
 not as to sufficient to entitle the accomplice to credit, and to warrant the judge in 
 all the leaving the case to the jury without a recommendation to acquit those 
 considered prisoners as to whom there was no confirmation. Accordingly, where 
 sufficient a n accomplice was examined on the part of the prosecution, who was 
 ormer y. con g rme( } [ a t j ie testimony which he gave as to some of the prisoners, 
 
 (r) 1 Phill. Ev. 32. By Lord Ellenborough, Rex v. Jones, 2 Camp. 132. Rex v. Durham, 
 supra, note (q). 
 
 (s) Per Lord Abinger, C. B., in Reg. v. Farler, post, p. 964. 
 
 (t) 1 Phill. Ev. 32. In Greenl. Ev. 426, the learned author observes, that it is now so 
 generally the practice to advise juries not to convict without corroboration of the accom- 
 plice, "that its omission would be regarded as an omission of duty on the part of the 
 judge." It is well observed that "the substantial result appears to be the same as if the 
 practice had depended upon a rule of law, instead of being only the exercise of the discre- 
 tion of the judge." The only distinction appears to be that if the judge were to submit a 
 case of this nature to the jury without any such recommendation, and a conviction ensued, 
 or if a jury were to convict in opposition to the recommendation of the judge, it could not 
 properly be said in either case, consistently with the authorities on the subject, that the con- 
 viction would be illegal. 1 Phil. Ev. 32. 
 
 (u) 1 Phill. Ev. 34. 2 Stark. Ev. 14. (v) 1 Phill. Ev. 34. 
 
 sustain his testimony, to narrate other instances of crime proposed to him by defendant 
 though made at the same time and in the same conversation. Kinchelow v. The State, 5 
 Humphreys, 9. 
 
 The evidence of an accomplice, when submitted to the jury, with proper cautions as to 
 its credibility, is for the jury to weigh ; and they if they please may act on it without corro- 
 borative evidence. State v. Brown, 3 Strobhart, 508. 
 
 Though a parliceps criminis is not an incompetent witness, the court should instruct the 
 jury not to convict of felony on his uncorroborated testimony; and such corroboration 
 should be in facts tending to establish the guilt of the accused. 
 
 When the accused is found guilty on the uncorroborated testimony of an accomplice, it 
 affords good cause for a new trial. Ray v. The State, 1 Iowa, 316. 
 
 One charged as an accomplice was proved to have been concerned in the commission of 
 the felony for which the prisoner was indicted. After the proof corroboration of his tes- 
 timony as an accomplice, it was held competent to prove any act or declaration of his 
 which went to show that he and the prisoner did commit the felony. State v. Ford, 3 
 Strobhart, 517. 
 
 The testimony of an accomplice without corroboration, the law considers as credible in 
 some degree, and it may be sufficiently so to produce conviction, which is a matter exclu- 
 sively for the jury to determine. The State v. Woleott, 21 Connecticut, 272.]
 
 CIIAP. V. § VI.] OF ACCOMPLICES. 961 
 
 but not as to the rest ; Bayley, J., told the jury, that if they were satis- 
 fied by the confirmatory evidence which had been given, that the ac- 
 complice was a credible witness, they might act upon that testimony 
 with respect to others of the prisoners, although as far as his evidence 
 affected them it had received no confirmation ; and all the prisoners 
 were convicted. (w) To the same effect is a case mentioned by Lord 
 Ellenborough, in Rex v. Jones,(x) as having been within a few years 
 referred to the twelve judges, where four men were convicted of bur- 
 glary on the evidence of an accomplice, who received no confirmation 
 concerning any of the facts which proved the criminality of one of the 
 prisoners; but the judges were unanimously of opinion, that the con- 
 viction of all four was legal, and upon that opinion they all suffered the 
 sentence of the law.(y) So in the report of the York trials under a 
 special commission, it was laid down by Thompson, C. B., that " confir- 
 mation need not be of circumstances, which go to prove that the accom- 
 plice speaks truth *with respect to all the prisoners, when several are *962 
 tried, and with respect to the share they have each taken in the trans- 
 action; for if the jury are satisfied that he speaks truth in those parts 
 in which they see unimpeachable evidence brought to confirm him, that 
 is a ground for them to believe that he speaks also truly with regard to 
 the other prisoners, as to whom there may be no confirmation."^) 
 Upon these cases it has been well observed, that it would be difficult 
 to assign a satisfactory ground for requiring confirmation as to a prisoner 
 indicted alone, and dispensing with confirmation as to prisoners jointly 
 indicted ; the same reasons, which render confirmation necessary in the 
 former case, appear to require it in the latter : if a distinction between 
 the two cases were to be allowed, a prisoner's acquittal or conviction 
 upon an accomplice's testimony might depend upon the mere accident 
 of his being indicted alone or jointly with others. "(a) 
 
 Upon an indictment for larceny, the counsel for the prosecution, in Hastings's 
 stating the case, said that he should call an accomplice as a witness, and 
 admitted that he should not, according to the depositions, be able to 
 confirm his testimony as to the particular prisoners charged ; yet he 
 could confirm him as to the general circumstance of the case, and as to 
 the mode in which the robbery had been committed. Lord Denman, 
 C. J., said, in the presence of Park, J. A., and Alderson, B., "I con- 
 sider, and I believe my learned brothers agree with me, that it is 
 altogether for the jury, and they may, if they please, act upon the evi- 
 dence of the accomplice without any confirmation of his statement. 
 But one would not, of course, be inclined to give any great degree of 
 credit to a person so situated." The accomplice was examined and 
 several other witnesses, but the other witnesses rather contradicted than 
 confirmed him in anything, and the prisoners were acquitted. (b\ 
 
 (w) Rex v. Dawber," 3 Stark. N. P. C. 34 ; in note (a) to which the learned reporter re- 
 marks, that in judging of the credit due to the testimony of an accomplice, it seems to be a 
 necessary principle, that his testimony must be wholly received as that of a credible witness, 
 or wholly rejected. (x) 2 Camp. 133. 
 
 (y) So in Birkett's case, Russ. & Ry. C. C. R. 251, the judges were of opinion "That an 
 accomplice did not require confirmation as to the person he charged, if he was confirmed in 
 the particulars of his story." This is the whole statement in the report. C. S. G. 
 
 (z) Rex v. Swallow, report of the trials at York, in 1814, cited 1 Phill. Er. 35. 
 
 (a) 1 Phill. Ev. 37,8th ed. 
 
 (6) Rex v. Hastings, 6 7 C. & P. 152. This case is stated to be "distinct decision" to the 
 ft Eng. Com. Law Reps. xiv. 153. b lb. xxxii. 145.
 
 962 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 But the But it is now well established by the current of recent authorities, 
 
 that where tna * ^ * s n0 *' sumc i en t to corroborate an accomplice as to the facts of 
 there is one the case generally, but that he must be corroborated as to some mate- 
 prisoner r j a j £ ac ^ or f ac ^ s w hi c h g to prove that the prisoner was connected with 
 be confir- the crime charged. And where several persons are jointly indicted, 
 mation as an( j fag accomplice is corroborated as to some of them, although the 
 
 to him, and . .*,.,,. , , , i • «■ 
 
 •where j ur y ma y g lve credit to him as those to whom the corroboration applies, 
 
 there are 
 several as 
 to each. 
 Webb's 
 case. 
 Corrobora- 
 
 they ought to be directed to pay no attention to the evidence of the 
 accomplice as to those against whom there is no corroboration. 
 
 Upon an indictment for breaking into a warehouse and stealing a 
 quantity of cheese, an accomplice proved that the thieves took a ladder 
 tion*as"to from certain premises, and it was proved by a witness that the ladder 
 *963 
 
 the cir- 
 cumstan- 
 ces of the 
 case insuf- 
 ficient. 
 
 Dyke's 
 case. 
 
 was so taken away, and it was proposed to call other ^witnesses to con- 
 firm the accomplice, as to the mode in which the felony was committed. 
 Williams, J., " You must show something that goes to bring home the 
 matter to the prisoners. Proving by other witnesses that the robbery 
 was committed in the way described by the accomplice, is not such con- 
 firmation as will entitle his evidence to credit, so as to affect other per- 
 sons. Indeed, I think it is really no confirmation at all, as every one 
 will give credit to a man who avows himself a principal felon, for, at 
 least, knowing how the felony was committed. It has been always my 
 opinion, that confirmation of this kind is of no use whatsoever, "(c) So 
 where the prisoner was indicted for stealing a lamb, and an accomplice 
 proved that he assisted the prisoner in stealing the lamb, but the only 
 evidence to confirm his statement was that of a witness, who found the 
 skin of the lamb in the field where the lamb had been kept ; it was 
 held that the confirmation was insufficient ; and upon its being submit- 
 ted that there was evidence to go to the jury, and Rex v. Hastings, (d\ 
 being cited as showing that the confirmation of the accomplice need 
 not be as to the party accused; Gurney, B., said, "Although in some 
 instances it has been so held, you will find that in the majority of re- 
 cent cases it is laid down that the confirmation should be as to some 
 matter which goes to connect the prisoner with the charge. I think 
 that it would be highly dangerous to convict any person of such crime 
 on the evidence of an accomplice, unconfirmed with respect to the party 
 accused. "{dd\ 
 
 The corroboration ought to be as to some fact or facts, the truth or 
 
 falsehood of which go to prove or disprove the offence charged against 
 
 roboration the prisoner. Upon an indictment for murder, it appeared that a party 
 
 to provf °^ P oacners were found in the night in a wood, and that the deceased, 
 
 the offence who was an assistant keeper, and others pursued them, and tried to ap- 
 
 against the p re hend them ; upon which one of the poachers turned round and shot 
 
 the deceased ; and an accomplice was called to prove that the prisoner 
 
 was the person who shot the deceased; and other witnesses were called 
 
 extent, " that it is not necessary to have any confirmation of an accomplice," note, 7 C. & P. 
 153. It is submitted that all that the learned chief justice intended to say was. that in 
 point of laiv the jury might act upon the unconfirmed testimony of an accomplice, but that 
 in point of fact the jury, as reasonable persons, ought not to give credit to a person so situ- 
 ated. It must be presumed that this was the meaning of the observation, as it was made 
 in the presence of the two learned judges, who have so often expressed opinions to that 
 effect. In this view the observation is in perfect harmony with all the more recent authori- 
 ties. The report does not state in what way the case was left to the jury. C. S. ('. 
 
 (c) Rex v. Webb, a 6 C. & P. 595. The prisoners were acquitted. 
 
 (d) Ante, p. 962. (dd) Reg. v. Dyke," 8 C. & P. 2G1. 
 
 B Eng. Com. Law Reps. xxv. 556. b lb. xxxiv. 381. 
 
 Addis's 
 case. 
 The cor
 
 CHAP. V. § VI.] OF ACCOMPLICES. 963 
 
 who corroborated him as to collateral facts ; but none of those facts 
 went to connect either the prisoner and the accomplice together, or the 
 prisoner with the transaction. Patteson, J., " The corroboration of an 
 accomplice ought to be as to some fact or facts, the truth or falsehood 
 of which goes to prove or disprove the offence charged against the pri- 
 soner." (e) 
 
 The coroboration must not only connect the prisoner and the accom- Farler's 
 plice together, but must be such as to show that the prisoner was en- ^he'cor- 
 gaged in the transaction, which forms the subject-matter of the charge roboration 
 
 under the investigation. Upon an indictment on the 9 Geo. 4, c. 69, ^^Jl 
 n a . i_ i . . •. anect the 
 
 s. 9, tor night poaching, it was proved that three persons were found identity of 
 
 in a wood by night in the pursuit of game, and an accomplice, who was the P a '*y 
 taken on the spot, swore to the prisoner being one of the persons in the and eon- 
 wood, but the only corroboration of his statement was, that the prisoner n( r ct mm 
 had been seen on the night in question, drinking with the accomplice at cr ; me 
 a public house, which was *four miles from the preserve, and that they charged. 
 were there till the public house shut up, when they left together ; but ""4 
 it also appeared that the prisoner was in the habit of drinking at the 
 same public house, and lived within one hundred and fifty yards of it. 
 Upon the opening of the case, Lord Abinger, C. B., said, " I am clearly 
 and decidedly of opinion, and always have been, and always shall be, 
 that there must be a corroboration as to the particular prisoner;" and 
 in summing up, the very learned chief baron said, " I am strongly in- 
 clined to think that you will not consider the corroboration in this case 
 sufficient. No one can hear the case without entertaining a suspicion 
 of the prisoner's guilt, but the rules of law must be applied to all men 
 alike. It is a practice which deserves all the reverence of law, that 
 judges have uniformly told juries that they ought not to pay any respect 
 to the testimony of an accomplice, unless the accomplice is corroborated 
 in some material circumstance. Now, in my opinion, that corrobora- 
 tion ought to consist in some circumstance that effects the identity of 
 the party accused. A man who has been guilty of a crime himself will 
 always be able to relate the facts of the case, and if the confirmation 
 be only of the truth of that history, without identifying the persons, 
 that is really no corroboration at all. If a man were to break open a 
 house, and put a knife to your throat, and steal your property, it would 
 be no corroboration that he had stated all the facts correctly ; that he 
 had described how the person did put the knife to the throat, and did 
 steal the property; it would not at all tend to show that the party 
 accused participated in it. Here you find that the prisoner and the 
 accomplice are seen together at the public house. If they were found 
 together under circumstances that were extraordinary, and where the 
 prisoner was not likely to be unless there were concert, it might be 
 something. But he lives within one hundred and fifty yards, and there 
 is nothing extraordinary in his being there; and he left when they were 
 shutting up the house. It is perfectly natural that he should have 
 been there, and have left when he did. The single circumstance is, 
 that the prisoner was seen in a house which he frequents, where he 
 may be seen once or twice a week, and there the case ends against him ; 
 
 (c) Rex v. Addis, a G C. & P. P. 388. The prisoner was acquitted. In Kelsey's case, 2 
 Lew. 45, Patteson, J., said, " I think an approver should be confirmed not only in some 
 facts generally, but in some particularly, which affect the prisoner." 
 a Eng. Com. Law Reps. xxv. 452
 
 964 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 all the rest depends on the evidence of the accomplice. The danger is, 
 that when a man is fixed, and knows that his own guilt is detected, he 
 purchases impunity by falsely accusing others. I would suggest to 
 you that the circumstances are too slight to justify you in acting on 
 this evidence. "(/) 
 
 " There is a great difference between confirmations as to the circum- 
 stances of the felony and those which apply to the individuals charged; 
 tlnctionis the former only prove that the accomplice was present at the offence; 
 between the latter show that the prisoner was connected with it. This distinc- 
 tions as to tion ought always to be attended to."(#) Wilkes and Edwards were 
 charged with stealing a lamb, and an accomplice proved the case against 
 
 Wilke's 
 case. 
 The dis 
 
 those 
 which go 
 to fix the 
 person 
 charged. 
 
 *965 
 
 the cir- 
 
 of the Dotn ^ e prisoners, and stated that they threw the skin of the lamb into 
 offence and a whirley hole, the situation of which he described ; and a constable 
 proved that he found the skin in the whirley hole. A quantity of meat 
 was found of a kind corresponding with that of the *stolen lamb in the 
 house of Edwards, but could not be positively identified, and a witness 
 proved that Wilkes had come to him to borrow a pair of shears, and 
 had then made a statement to him to the same effect as the evidence of 
 the accomplice. Alderson, B., said, in summing up, "The confirmation 
 of the accomplice as to the commission of the felony is really no con- 
 firmation at all ; because it would be a confirmation as much if the ac- 
 cusation were against you and me, as it would be as to those prisoners 
 who are now upon their trial. The confirmation, which I always advise 
 juries to require, is a confirmation of some fact, which goes to fix the 
 guilt upon the particular person charged. You may legally convict on 
 the evidence of an accomplice only, if you can safely rely upon his tes- 
 timony; but I advise juries never to act on the evidence of an accom- 
 plice, unless he is confirmed as to the particular prisoner who is charged 
 with the offence. With respect to Edwards it is proved that meat of a 
 similar kind was found in his house. The meat cannot be identified; 
 but it is similar : that is therefore some confirmation of the accomplice 
 as to Edwards, more than any one else. It is also proved that the skin 
 was found in a whirley hole ; that is no confirmation, because it does 
 not affect the prisoners more than it affects any other persons. With 
 respect to Wilkes, it is proved by the witness, that he told him nearly 
 the same story as the accomplice has told you to-day. If you believe 
 that witness, there is confirmation as to Wilkes. You will say whether, 
 with these confirmations, you believe the accomplice or not. If you 
 think that this evidence is not sufficiently confirmed as to one of the 
 prisoners, you will acquit that one ; if you think he is confirmed as to 
 neither, you will acquit both : and if you think that he is confirmed as 
 to both, you will find both guilty. "(A) 
 
 Upon an indictment for receiving a sheep knowing it to have been 
 stolen, an accomplice proved that a brother of the prisoner and himself 
 mutton°in had stolen two sheep, one a large, the other a small one, aud that the 
 er's house Drotner g ave one 0I> them to the prisoner, who carried it into the house 
 in which the prisoner and his father lived ; and the accomplice stated 
 where the skins were hid; on the houses of the prisoner's father and 
 the accomplice being searched, a quantity of mutton was found in each, 
 which had formed parts of two sheep corresponding in size with those 
 
 (/) Reg. v. Farler,* MSS. C. S. G. 8 C. & P. 106. 
 
 (ff) Per Alderson, B., Rex v. Wilkes, infra. (h) Rex v. Wilkes. b 7 C. & P. 272, 
 
 a Eng. Com. Law Reps, xxxiv. 314. b lb. xxxii. 507. 
 
 Birkett's 
 
 case. 
 
 Finding 
 
 corres- 
 ponding 
 with that 
 which was 
 lost.
 
 CHAP. V. § VI.] OF ACCOMPLICES. 965 
 
 stolen ; and the skins were found in the place named by the accomplice. 
 Patteson, J., "If the confirmation had merely gone to the extent of 
 confirming the accomplice as to matters connected with himself only, it 
 would not have been sufficient. For example, the finding the skins at 
 the place at which the accomplice said they were, would have been no 
 confirmation of the evidence against the prisoner, because the accom- 
 plice might have put the skins there himself. But here we have a great 
 deal more ; we have a quantity of mutton found in the house in which 
 the prisoner resides, and that I think is such a confirmation of the 
 accomplice's evidence as I must leave to the jury.'Yz) 
 
 It has been held, that confirmation by the wife of an accomplice is Confirma- 
 no confirmation at all. Upon an indictment for stealing a sheet, it^ofau 6 
 appeared that the sheet was found in the house of the accomplice, accom- 
 *who gave evidence to prove that the prisoners stole the sheet, and pll *q«£ 
 the wife of the accomplice was the only person to confirm the accom- 
 plice's statement; Park, J. A. J., "Confirmation by the wife, is in a 
 case like this, really no confirmation at all. The wife and the accom- 
 plice must be taken as one for this purpose. The prisoners must be 
 acquitted."^') 
 
 Where a principal and receiver are jointly indicted, and an accom- Confirma- 
 plice is confirmed as against the principal, but not as against the re- tl0 . n * s *? 
 
 • . . n> • i • principal, 
 
 ceiver, this is not sufficient to support the case against the receiver. The but none 
 
 two Moores were indicted for stealing, and Spindlo for receiving some as io . the 
 
 receiver 
 ducks, and an accomplice proved that the Moores and himself went to 
 
 the house of Spindlo, at Wantage, and sold him the stolen ducks, at the 
 same time telling him from whom they had been stolen, and a witness 
 proved that he saw the accomplice at Wantage in company with the 
 Moores. Alderson, B., "The corroboration you should have is a cor- Confirma- 
 roboration respecting Spindlo. Confirming the evidence of the accom- tion . as t0 
 plice as against the Moores does not advance the case as against Dut n0 ne' 
 Spindlo." (/c) So confirmation as to the receivers, without confirmation as to prin- 
 against the principal, is insufficient. One prisoner was indicted for steal- cipa ' 
 ing, and two other prisoners for receiving, several pairs of shoes, know- 
 ing them to have been stolen, and the only witness to prove the felony 
 was an accomplice, and she also proved the case against the receivers ; 
 she was confirmed as to the latter, but there was no confirmation what- 
 ever as to her testimony against the principal ; it was objected that even 
 as to the receivers the confirmation was not sufficient in itself; but if it 
 was, it would still be necessary to confirm the witness as against the 
 principal; for if the case failed against her, the receivers would be en- 
 titled to an acquittal. Littledale, J., " The confirmation as to the re- 
 ceivers is slight ; but as there is no confirmation against the principal 
 felon, 1 think the case fails altogether; there ought to be confirmation 
 
 (t) Reg. v. Birkett, a 8 C. & P. 732. The prisoner was acquitted. Assuming that the con- 
 firmation in this case showed the prisoner to have been connected with the transaction, the 
 fact of his being the receiver and not the principal, seems to have been wholly uncorrobora- 
 ted. C. S. G. 
 
 {j) Rex v. Neal, b 7 C. & P. 168. Mr. Phillips, 1 vol. 33, observes, that in this case "the 
 circumstances of the case might have been such as to warrant this decision. But it may 
 often happen that the evidence of the wife is so free from all suspicion, so independent of the 
 evidence of the husband, so manifestly unconcertcd and uncontrived, and so undesignedly 
 corroborative of his evidence, that it might be proper not to consider the accomplice and 
 his wife as one, but to act upon her evidence as sufficient confirmation." 
 
 (k) Rex v. Moores, 7 C. & P. 270. 
 
 a Eng. Com. Law Reps, xxxiv. 608. b lb. xxxii. 481. ° lb. xxxi. 50 n.
 
 966 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Where 
 there are 
 several 
 accompli 
 ces. 
 
 *967 
 
 on that point before the jury can be asked to believe the witness's tes- 
 timony."^) 
 
 The practice of requiring confirmation where the case for the prose- 
 cution is supported by one accomplice, applies equally when two or more 
 accomplices are brought forward against a prisoner, (m) Upon an in- 
 dictment for assisting in the illegal landing of uncustomed goods, some 
 part of the evidence depending upon the testimony of two accomplices, 
 and Littledale, J., in summing up, said, " Then was the prisoner there? 
 Two of his accomplices speak distinctly to him. If these statements 
 were the only evidence against *him, I should not advise you to convict 
 upon their testimony. It is not usual to convict upon the evidence of 
 one accomplice without confirmation ; and in my opinion it makes no 
 difference that there are more than one."(«) 
 
 A married woman who consents to her husband committing an un- 
 natural offence with her is an accomplice in the felony, and as such her 
 evidence requires confirmation. (o\ And the same would be the case if 
 the party with whom the offence was committed was a male, and con- 
 sented, (p) 
 
 There are some persons, who, although themselves in point of law 
 participators with the prisoner in the crime with which he is charged, 
 tion is not have been considered as not in such a situation as to make it requisite 
 required. ^ at ^jr evidence should be confirmed. Thus, although all persons, 
 who are present aiding and assisting at a prize fight, are in point of law 
 principals in the second degree in manslaughter if death ensues, yet they 
 have been holden not to be such accomplices as to require any evidence 
 to confirm their testimony, (j) 
 
 And where upon an indictment against two prisoners for maliciously 
 shooting, and against a third as an accessory after the fact, a person 
 proved that he had been employed by the accessory to remove the prin- 
 cipals out of the way ; and for this he had received money, and had 
 hidden the principals in an outhouse, and there was no corroboration 
 by any other witness as to these facts ; and it was contended, that as 
 the witness was an accomplice, he ought to be corroborated ; Gurney, 
 13., observed, in summing up, that "with regard to the necessity of con- 
 firming an accomplice much might depend upon the nature of the crime 
 in question ; it was for the jury to consider whether there was anything 
 in the witness's conduct to warrant their disbelieving him."(r) 
 
 Cases 
 where 
 confirma 
 
 Jarvis's 
 case. 
 
 (7) Rex v. Wells, a M. & M. 326. All the prisoners were acquitted. It is not stated what 
 the form of the indictment was, but it is conceived it must have alleged the receipt to be of 
 the shoes "so stolen as aforesaid, - ' so that an acquittal of the principal necessarily caused 
 an acquittal of the receivers. See Rex v. Woolford, 1 M. Rob. 384, ante, p. 249. If there 
 had been counts charging the receivers with a substantive felony, there seems no reason 
 why the receivers might not have been convicted, though the principal was acquitted. See 
 ante, p. 249, and Rex v. Field, post, p. 969. C. S. G. 
 
 (m) 1 Phill. Ev. 33. 
 
 (n) Rex v. Noakes, b 5 C. & P. 326, cor. Littledale, J., Bolland, B., and Alderson, J. 
 
 (o) Reg. v. Jellyman, 8 C. & P. 604. (p) Per Patteson, J., ibid. 
 
 (q) Rex v. Hargrave, d 5 C. & P. 170, Patteson, J. 
 
 (r) Rex v. Jarvis, 2 M. & Rob. 40. In Rex v. Durham, 1 Leach, 478, where a receiver 
 was admitted as a witness against the principal, and was uncorroborated, the court observed, 
 that the receiver was to be considered rather as an accessory after the fact, than as an ac- 
 complice in the facts; but this distinction seems never to have been acted upon in any case : 
 and the case in which it was taken was decided on the authority of Rex. v. Atwood, ante, p. 
 960, on the ground that the circumstance of his being an accomplice went to his credit 
 only, and that his evidence might be left to the jury, although it was entirely uncorrobo- 
 rated. C. S. G. 
 
 a Eng. Com. Law Reps. xxii. 324. b lb. xxiv. 342. » lb. xxxiv. 547. d lb. xxiv. 260.
 
 CHAP. V. § VI.] OF ACCOMPLICES. 967 
 
 It has been holdea that the fact of a party having been summarily Where the 
 convicted for poaching in the night under the 9 Geo. 4, c. 69, s. 1, does hasTeer!^ 
 not dispense with the necessity of producing confirmatory evidence of summarily 
 his testimony when produced as a witness against his companions upon convicted - 
 the same transaction. (s) 
 
 The practice of requiring confirmation has been stated not to extend In cases of 
 to misdemeanors,(<) but it has been well observed that there appears to misdemea - 
 be no sound reason for such a distinction, (u) and the case of Reg v. 
 Farler(t;) is a distinct authority that the practice does extend to mis- 
 demeanors. 
 
 Upon a review of the cases, the utmost that can properly be produced Result of 
 from them seems to be, that on the trial of a prisoner, *against whom th #Qfio' 
 an accomplice appears as a witness, there should be (for warranting a 
 judge in advising the jury to give credit to such a witness, and to war- 
 rant the jury in convicting) some confirmatory evidence, that is, some 
 proof independent of the evidence of the accomplice, from which it may 
 be reasonably inferred that the prisoner was concerned with the accom- 
 plice in the commission of the crime. And on the trial of several pri- 
 soners charged as being jointly concerned in a crime, there should be 
 some unimpeachable independent evidence, from which the jury may 
 reasonably be satisfied that the accomplice speaks truly as to all the 
 prisoners, and that they were all jointly concerned with him. But it 
 would be going much too far to bind the discretion either of a judge or 
 jury by any fixed rigid rule as to the quantity or kind of confirmatory 
 evidence which ought to be given. This, however, is settled, that the 
 confirmation required should not be a confirmation merely of those parts 
 of the narrative which implicate the accomplice alone, and which may 
 be true without involving the prisoners in any share in the transaction; 
 but such a corroboration by unimpeached evidence, as may satisfy the 
 jury, that those persons whom he charges with a participation of the 
 crime were, in truth, as he represents, his confederates and associates in 
 guilt, (w) 
 
 Whether the evidence brought forward to confirm the accomplice is 
 a satisfactory and sufficient confirmation, is a question which the jury 
 are to determine. (x\ 
 
 Where an accomplice is confirmed as to some of the prisoners, but not The jury 
 as to all, the jury may be recommended not to rely on his testimony as m . a J con ~ 
 to the latter, but to give it credence as to the former. In a case of an d acquit 
 great importance where an accomplice swearing positively to several pri- others 
 soners, was confirmed as to some and not confirmed as to others; Vaug- evidence 
 han, B., recommended the jury to acquit the latter, and they were ac-ofthe 
 cordingly acquitted, while those as to whom the accomplice was confirmed same a °~ 
 were convicted and executed. (y) 
 
 An accomplice is a competent witness for his associates as well as Accom- 
 against them, even when they are severally indicted for the same offence, I )lice ev >- 
 whether he is convicted or not, provided he be not disqualified by a prisoner? 
 
 (s) Reg. v. Farler,* 8 G. & P. 106, ante, p. 963. 
 
 (t) Per Gibbs, Attorney-General, in Rex v. Jones, 31 How. St. Tr. 315. 
 (w) 1 Phill. Ev. 32, note. (v) Supra, note (s). 
 
 (w) 1 Phill. Ev. 37, 38. 
 (x) 1 Phill. Ev. 38. 
 
 \y) Rex v. Field, Dick. Q. S. 520. See per Alderson, B., in Rex v. Wilkes, ante, p. 965. 
 » Eng. Com. Law Reps, xxxiv. 314.
 
 968 OF EVIDENCE. [BOOK VI. 
 
 judgment.^) Where there is not any or very slight evidence against 
 one of several prisoners indicted and tried together, the court will some- 
 times direct the jury to give their verdict as to him, and upon their ac- 
 quittal of him admit his testimony for the others. (a) In a case where 
 one of the defendants on an indictment for an assault submitted and 
 was fined, and paid the fine, Pratt, C. J., allowed him to be a witness 
 for the other, considering the trial at an end with respect to him. (6) 
 But on a joint indictment against several for a misdemeanor, a defend- 
 ant who suffered judgment by default has been held not to be a witness 
 *969 for the other defendant.(c)f *Where, however, one of two prisoners 
 charged with housebreaking pleaded guilty; Coltman, J., held that this 
 prisoner might be called as a witness by the other prisoner to prove that 
 he was not present at the committing of the offence. (e?) 
 
 SECT. VII. 
 
 What Witnesses are Competent. 
 
 Of the By the competency of a witness is meant his admissibility to give 
 
 cy'ofwiu" evidence; if he is incompetent, (of which the court is to judge,)(e) he 
 
 nesses. is to be totally excluded from giving his testimony; if he is competent 
 
 it will then be for the jury to decide whether his evidence, when given, 
 
 is entitled to credit. 
 
 All persons are admissible witnesses who have the use of their reason 
 and such religious belief as to feel the obligation of an oath ; who have 
 not been convicted of any infamous crime; and who are uninfluenced by 
 interest.^) The causes of incompetency, therefore, to be considered 
 are, 1. Defect of understanding. 2. Defect of religious belief. 3. In- 
 famy. 4. Interest ; and therewith of the incompetency of husband and 
 wife. 
 Want of 1. Persons incompetent from want of understanding. Idiots(#) are 
 
 under- no ^ a( ] m issible to give evidence. By the word ' idiot' is meant a fool 
 
 standing. ... J 
 
 Idiots. or madman from his nativity, who never has any lucid intervals. (h) A 
 
 Deaf and person deaf and dumb from his nativity (though in presumption of law 
 
 an idiot,)(«) if he is capable of conversing by signs, and has a proper sense 
 
 of the obligation of an oath, may be admitted as a witness and ex- 
 
 (z) 2 Stark. Ev. 13. 2 Hale, P. C. 280, citing the case of Bilmore, Grey, and Harbin, 2 
 Roll. Abr. 685, pi. 3. Bath and Montague's case, cited in Lock v. Hayton, Fortesc. 24(3. 
 
 (a) 2 Hawk. P. C. c. 46, s. 98. Rex v. Bedder, 1 Sid. 537. 2 Stark. Ev. 13. 
 
 (b) Rex v. Fletcher, 1 Str. 633. Rex v. Sherman, Cas. temp. Hardw. 303. 1 Phill. Ev. 68. 
 
 (c) Rex v. Lafone and others, 5 Esp. N. P. C. 155, but this case has been doubted, and as 
 it should seem, on very good grounds. 1 Phill. Ev. 68. 
 
 (d) Reg. v. George, a 1 C. & Mars. 111. (e) 2 Hale, P. C. 277. 
 
 (/) Per Lawrence, J., in Jordaine v. Lashbrook, 7 T. R. 610. 1 Phill. Ev. 3. 
 
 (g) Com. Dig. Testmoign, A. 1. 
 
 (h) See ante, vol 1, p. 6. (t) Ibid. 
 
 -j- [Defendants jointly indicted for a riot cannot be witnesses for or against each other until 
 they are discharged from the prosecution or convicted. The State v. Mooney <$- al., 1 Yerger, 
 451. 
 
 An accomplice, though included in the same indictment with his co-accomplices, is a com- 
 petent witness for his associates when thus sworn on the trial. Jones v. The State, 1 Georgia, 
 617.] 
 
 » Eng. Com. Law Reps. xli. 66.
 
 CHAP. V. § VII.] WIIAT WITNESSES ARE COMPETENT. 969 
 
 amined with the assistance of an interpreter.^' )f So lunatics are in- Lunatics, 
 competent; that is, persons usually mad, but having intervals of 
 reason ;(&) during which times they are competent.^) With respect to 
 children, the rule now seems to be, that their competency does not de- Children. 
 pend on their age ; but that a child of any age may be examined, if 
 capable of distinguishing between good and evil ;(m) but whatever be 
 its age, it cannot be examined without being sworn. (n)| Whether the 
 infant be competent or not is a question for the discretion of the court. (o) 
 Before a child is examined the judge must be ^satisfied that the child *970 
 feels the binding obligation of an oath from the general course of its 
 religious education. The effect of the oath upon the conscience of the 
 child should arise from religious feelings of a permanent nature, and 
 not merely from instructions, confined to the nature of an oath, recently 
 communicated to it for the purposes of a trial. Where, therefore, on an 
 indictment for murder, it appeared that previous to the happening of 
 the circumstances, to which a child came to speak, she had no religious 
 education whatever, and had never heard of a future state, and she had 
 been twice visited by a clergyman who had given her some instruction 
 as to the nature and obligation of an oath ; but she had no intelligence 
 as to religion or a future state, at the time of the trial : her testimony 
 was rejected. (p) There is no difference in respect of the competency Postpon- 
 of children between capital cases and misdemeanors. (<?) Where the i n s or( ie r ' ia 
 child has appeared not sufficiently to understand the nature and obliga- that a child 
 tion of an oath, judges have often thought it necessary for the purposes ^ru Cte j m ~ 
 of justice to put off the trial of a prisoner, directing that the child in 
 the meantime should be properly instructed. (r) But an application to 
 postpone the trial on this ground ought properly to be made before the 
 child is examined by the grand jury, or at all events, before the trial 
 has commenced; for if the jury are sworn, and the prisoner is put upon 
 his trial before the incompetency of the witness is discovei'ed, the 
 
 (,/) 1 Phill. Ev. 4. Ruston's case, 1 Leach, C. C. 408. 
 
 (k) Ante, vol. 1, p. V. (Z) Com. Dig. Testmoign, A. 1. 
 
 (m) Ante, vol. 1, p. 695. By such capability must be understood a belief in God, or in a 
 future state of rewards and punishments ; from which the court may be satisfied that the 
 witness entertains a proper sense of the danger and impiety of falsehood. Ibid. "It cer- 
 tainly is not law that a child under seven cannot be examined as a witness. If he shows 
 sufficient capacity on examination, a judge would allow him to be sworn. Per Alderson, 
 B., Reg v. Perkins, 2 Moo. C. C. R. 135. 
 
 (n) See further on this subject, ante, vol. 1, p. 695. 
 
 (o) 1 Stark, Ev. 94. (p) Rex v. Williams," 1 C. & P. 321, Patteson, J. 
 
 (q) Rex v. Travers, 2 Stra. 606. 
 
 (r) Ante, vol. 1, p. 695. 1 Phill. Ev. 5. But this must not be done in order that an adult 
 may become capable. Ibid., post, p. 972. 
 
 f [The State v. Be Wolf, 8 Conn. 98. 
 
 Where, on an indictment for rape, the injured person is of sufficient age, though weak 
 understanding, but is unable to talk, and can communicate and receive ideas only by signs, 
 she may yet be sworn as a witness and examined, through the medium of a person who can 
 understand her, who is to be sworn to interpret between her and the court and jury. The, 
 People v. 31' Gee, 1 Denio, 19.] 
 
 J [The testimony of an infant of seven years, corroborated by circumstances, hold suffi- 
 cient to justify a conviction of a capital offence. The credibility of such witness is left pro- 
 perly to the jury. State v. Lc Plane, 3 Brevard, 339. 
 
 A child of any age capable of distinguishing between good and evil, m.ny be examined on 
 oath; and the credit due to his statements, is to be submitted to the consideration of the 
 jury, who should regard the age, the understanding, and the sense of accountability for moral 
 conduct in coming to their conclusion. Stale v. Whittier, 21 Maine, 341.] 
 a Eng. Com. Law Reps, xxxii. 524. 
 
 Vol. ii.— 63
 
 970 OF EVIDENCE. [BOOK VI. 
 
 judge cannot discharge the jury, but should direct an acquittal. (s\ 
 
 When the child is incompetent to be sworn, the account which it has 
 
 given of the transactions to others is inadmissible. (t) 
 
 Defect of 2. Of incompetency from defect of religious belief. The rule as now 
 
 religious se ttled, appears to be, that, as far as regards this kind of incompetency, 
 
 infidels of this and all other countries, who yet believe in a God, the 
 
 avenger of falsehood, are admissible as witnesses ; and the only persons 
 
 incompetent are those who do not believe in a God, the dispenser of 
 
 future rewards and punishments ;(m) and it should seem that it makes 
 
 no difference whether the belief is that such dispensation is to take 
 
 place in a present or in a future state of existence. " Such infidels," 
 
 says Lord C. J. Willes, in the case of Omichund and Barker,M "who 
 
 either do not believe in a God, or if they do, do not think that he will 
 
 either reward or punish them in this world or in the next, cannot 
 
 be witnesses in any case, nor under any circumstances, for this plain 
 
 reason, because an oath cannot possibly be any tie or obligation to 
 
 them."f 
 
 Method of The proper method, however of administering the oath must vary 
 
 admims- according; to that which the proposed witness himself considers most 
 
 teriug an D . - rr . ■>•■,*• 
 
 oath. obligatory ;(zc) for, " as the purpose is to bind his conscience, every man 
 
 of every religion should be bound by that form which he himself thinks 
 will bind his own conscience most."(x)J Therefore a Mahometan 
 should be sworn on the Alcoran ;(^) a Jew on the Pentateuch, with his 
 
 («) 1 Phill. Ev. 5, citing Rex v. Wade, post, p. 972. 
 
 \t) 1 Phill. Ev. 5. (w) 1 Phill. Ev. 10. 
 
 (v) Wiles's Rep. 549. (w) Ibid. 
 
 (x) By Lord Mansfield, in Atcheson v. Everitt, Cowp. 389. 
 
 (y) Morgan's case, 1 Leach, 54. 
 
 f {In Massachusetts, disbelief of a future state of existence merely affects the credibility 
 of a witness. 15 Mass. R. 184, Hunscom v. Hunscom. 
 
 In Connecticut it was decided, (Peters, J., dissenting,) that those who believe in a God, 
 and in rewards and punishment in this world only, are not competent witnesses. 7 Connect. 
 R. 66, Atwood v. Welton. See also 4 Day, 51. Curtiss v. Strong. The legislature of that 
 State has since enacted that such persons shall be received as witnesses. 
 
 Iu New York, Spencer, C. J., expressly asserted (in conformity to what is found in most of 
 the books,) that belief in a God, and a future state of rewards and punishments, or some 
 accountability after death, are indispensable to render a person competent to testify in a court 
 of justice. 18 Johns. 98, Jackson v. Girdley. The same is said by the judge who gave the 
 opinion of the court of South Carolina, in the State v. Petty, 1 Harper's Rep. 62. 
 
 In Wakefield v. Ross, 5 Mason, 19, the court say that persons who do not believe in the 
 existence of a God, or of a future state, or who have no religious belief, are not entitled to 
 be sworn as witnesses. This was the point adjudged in 4 Day, and 18 Johns, ubi sup. 
 
 One who believes in the existence of a God, who will punish him if he swears falsely, is 
 a competent witness, though he does not believe that future punishment will be eternal. 2 
 Cowen, 431, Butts v. Swartwood. 
 
 Two of the judges of the circuit court of New York have severally held a person to be a 
 competent witness, who believes in a God, and in rewards and punishments dispensed by 
 Him in this world only. People v. Matteson, 2 Cowen, 433, note. Anon. ib. 573, note.} 
 [See Rose. Dig. Cr. Ev. 97, note.] 
 
 [One who does not believe in the existence of a God is not a competent witness : and bis 
 belief may be proved by the testimony of witnesses. Thurston v. Whitney, 2 Cashing, 104.] 
 
 I [All witnesses are to be sworn in such a way as to bind their consciences. Arnold v. 
 Estate of Arnold, 13 Vermont, 326. Curtiss v. Strong, 4 Day's Cases, 51. 
 
 A witness who has no objection to be sworn, may not be affirmed. Williamson v. Carroll, 
 1 Harrison, 271. 
 
 The common law recognizes any mode of swearing a witness that the witness believes to 
 be binding on his conscience. An oath administered by holding up the hand, although the 
 Gospels were not presented to the witness, and he did not declare that lie had conscientious 
 scruples against being sworn on the Gospels, no objection being made by the prisoner at the 
 time, was held legal and valid. Baxter v. The People, 2 Oilman, (Illinois,) 578.]
 
 CHAP. V. § VII.] WHAT WITNESSES ARE COMPETENT. *971 
 
 *head covered ;(z) a Gentoo according to his particular forms. (a) So a 
 witness professing Christianity, but declining to swear on the New Tes- 
 tament, was allowed to be sworn on the Old Testament, upon stating, 
 that he should consider such an oath binding on his conscience. (b\ But 
 although it is highly desirable that a witness should be sworn according 
 to the form which he considers most binding on himself, yet, if he has 
 takeu the oath in the usual form administered in our courts of law, 
 without objecting to it, and upon being questioned whether he considers 
 the oath he has taken as binding on his conscience, he answers in the 
 affirmative, he cannot then be further asked whether there be any other 
 mode of swearing more binding on his conscience than that he has 
 already used.(c) For if the witness says he considers the oath as bind- 
 ing on his conscience, he does, in effect, affirm that in taking that oath, 
 he has called his God to witness that what he shall say will be the truth, 
 and that he has imprecated the Divine vengeance on his head, if what 
 he shall afterwards say is false ; and having done that, it is perfectly 
 unnecessary and irrelevant to ask any further questions.(rf) 
 
 The 1 & 2 Vict. c. 105, enacts, that " in all cases in which an oath 142 Vict, 
 may lawfully be and shall have been administered to any person, either c- 105, A11 
 
 . . •■ . J ,. . ., persons 
 
 as a juryman or a witness, or a deponent in any proceeding, civil or bound by 
 criminal, in any court of law or equity in the United Kingdom, or on tne oatn 
 appointment to any office or employment, or on any occasion whatever, 
 such person is bound by the oath administered ; provided the same 
 shall have been administered in such form and with such ceremonies as 
 such person may declare to be binding; and every such person, in case 
 of wilful false swearing, may be convicted of the crime of perjury, in 
 the same manner as if the oath had been administered in the form and 
 with the ceremonies most commonly adopted." 
 
 The proper method of examining a witness, if the examination tends Proper 
 merely to try his competency in respect to religious principle, is not to ™° ai ^j° 
 question him as to his particular opinions, (as whether he believes in tion as to 
 Jesus Christ,) but to inquire whether he believes in the existence of a °P inions - 
 God, the obligation of an oath, and a future state of rewards and pun- 
 ishments ;(e) but if the examination be previous to swearing the wit- 
 ness, for the purpose of ascertaining what form of administering the 
 oath will be most proper, as most binding on the witness's conscience, it 
 is said to be not irregular to examine him as to his opinions; as, whether 
 he believes in the Gospels on which he is about to be sworn. (/)f If a 
 
 (z) Willes, 543. 1 Phill. Ev. 9. 
 
 (a) 1 Phill. Ev. 9. 1 Chit. Crim. L. 591. 
 
 (b) Edmonds v. Rowe, a R. & M. N. R. 77, cor. Bosanquet, Serjt. 
 
 (c) The Queen's case, b 2 Brod. & Bing. 285. 
 
 (d) The Queen's case, 2 Brod. & Bing. 285. See also Sells v. Hoare, 3 Brod. & Bing. 
 232, where on an application for a new trial, it appeared that a witness who had been sworn 
 as a Christian, on the Gospels, was a Jew ; and the court refused to grant a rule, being 
 unanimously of opinion that the oath as taken was binding on the witness, both as a moral 
 and religious obligation ; and Richardson, J., observed, that if the witness had sworu falsely 
 he might be convicted of perjury under the oath he had taken. 
 
 (e) Rex v. Taylor, Pcake, N. P. C. 11, by Buller, J., 1 Phill. Ev. 11 ; and according to 
 the judgment of Willes, C. J., in Omichund v. Barker, Willes, 541, ante, p. 970, it seems 
 sufficient if the witness believes in such a state either in this world or the next. 
 
 (/) 1 Phill. Ev. 11. 
 
 f [In New York and Connecticut, a person offered as a witness cannot be questioned 
 concerning his religious creed. This is to be proved by his previous declaration out of 
 » Eng. Com. Law Reps. xxi. 384. b lb. vi. 112.
 
 *972 OF EVIDENCE. [BOOK VI. 
 
 Trial can- material witness, who is an *adult, and of sufficient intellect, has no 
 ooncd P idea of a future state of rewards and punishments, it is not proper to 
 until an discharge the jury, and postpone the trial, in order that the witness 
 adnlt '"L in " may have an opportunity of being instructed upon that subject before 
 
 the next assizes; as may be done in the case of a child. (^r) 
 Quakers. Quakers were formerly excluded from giving evidence, not indeed 
 from defect of religious principle, but owing to their refusal, upon re- 
 ligious scruples, to take any oath at all. (A) But this disability is now 
 entirely removed. 
 9 Geo. 4,c. The 9 Geo. 4, c. 32, s. 1, reciting that " it is expedient that Quakers 
 Quaker's an ^ Moravians should be allowed to give evidence upon their solemn 
 and Mora- affirmation in all cases, criminal as well as civil," enacts, that " every 
 vians. Quaker or Moravian, who shall be required to give evidence in any 
 case whatsoever, criminal or civil, shall, instead of taking an oath in 
 the usual form, be permitted to make his or her solemn affirmation or 
 declaration in the words following, that is to say : <I, A. B., do solemnly, 
 sincerely, and truly declare and affirm ;' which said affirmation or 
 declaration shall be of the same force and effect in all courts of justice, 
 and other places where by law an oath is required, as if such Quaker 
 or Moravian had taken an oath in the usual form.'Y*') 
 
 (g) Rex v. Wade, R. & M. C. C. R. 86. 
 
 (h) Their solemn affirmation, by the 7 & 8 Wm. 3. c. 34, 8 Geo. 1. c. 6, and 26 Geo. 2, c. 
 46, s. 36, was admitted in courts of justice to have the same effect as an oath in all civil, 
 but not in criminal cases. It was, however, receivable in cases which are only technically 
 criminal, as in penal actions, Atcheson v. Everett, Cowp. 582, but excluded in all proceed- 
 ings substantially criminal, as on a motion for an information for a misdemeanor. Rex v. 
 Wych, 2 Str. 872. Rex v. Gardner, 2 Bur. 1117. But where the application to the court 
 was against a Quaker, his affirmation might be received in his own defence, though the 
 proceedings were of a criminal nature. Rex v. Gardner, supra. 
 
 (i) In Rex v. Channens, R. & M. C. C. R. 374, it was held that a Quaker, notwithstanding 
 this statute, was not a good juryman upon his affirmation. And it seems that an indict- 
 ment stated to be found upon the oath or affirmation of A., B., and C, then and there 
 sworn, or charged as jurors, without saying who were sworn and who affirmed, and that 
 
 court ; which he is not allowed to deny or explain in court. 18 Johns, and 4 Day, in next 
 preceding note. Swift's Ev. 49, et seq,} 
 
 [As to competency from religious belief, see Perry's Adm. v. Stewart, 2 Harrington, 37. 
 State v. Townsend, ibid. 543. 
 
 Any person who believes in the existence of a God, or a Supreme Being, who is the just 
 moral Governor of the Universe, who will, either in this life or the next, reward virtue and 
 punish vice, and who feels that an oath will be binding upon his conscience, cannot be 
 excluded from giving testimony on the ground of his religious belief. Arnold v. Estate of 
 Arnold, 13 Vermont, 362. 
 
 The true test of a witness's competency on the ground of his religious principles is, 
 whether he believes in the existence of a God who will punish him if he swears falsely ; 
 and within this rule are comprehended those who believe future punishments not to be 
 eternal. Cubbison v. McCreary, 2 Watts & Serg. 202. 
 
 One who believes in the existence of a God, and that an oath is binding on the conscience, 
 is a competent witness, though he does not believe in a future state of rewards and punish- 
 ments. Brock v. Milliyan, 10 Ohio, 121. 
 
 To show a witness's incompetency, from a defect of religious belief, his conversations or 
 declarations on religious topics are admissible. Barlhelemy cj- at. v. The People, 2 Hill, 248. 
 
 A witness's belief may be proved by evidence of his declarations; and his own assertion 
 of a change of belief, made at the time he is offered to be sworn, will not restore him to 
 competency. State v. Townsend, 2 Harrington, 543. 
 
 An acknowledgment of belief in God and his providence, is sufficient to establish the 
 competency of a witness who has been objected to on account of defective religious belief. 
 Jones v. Harris, 1 Strobhart, 160. 
 
 A witness, to be competent, must believe in God and in rewards and punishments. If 
 these be inflicted in this life, he is competent. United States v. Kennedy, ;\ McLean. 175. 
 
 In Virginia, no person is incapacitated from being a witness on account of his religious 
 belief. Perry's case, 3 Grattan, 632.]
 
 CHAP. V. § VII.] WHAT WITNESSES ARE COMPETENT. 972 
 
 The 3 & 4 Wm. 4, c. 49, s. 1, enacts, that " every person of the per- 3 & 4 Win. 
 suasion of the people called Quakers, and every Moravian, be permitted Q ua k er g 
 to make his or her solemn affirmation or declaration, instead of taking and Mora- 
 an oath, in all places and for all purposes whatsoever, where an oath is viaus * 
 or shall be required either by the common law, or by any act of parlia- 
 ment already made, or hereafter to be made.'Vy) 
 
 The 3 & 4 Wm. 4, c. 82, reciting, that " there are in various places 3 & 4 Wm. 
 in Ireland, and in some parts of England and elsewhere, certain dis- |' e ™£ 
 senters from the United Church of England and Ireland, and from thetists. 
 Church of Scotland, commonly called Separatists," enacts, that " every 
 person for the time being belonging to the said sect called Separatists, 
 who shall be required upon any lawful occasion to take an oath in 
 any case where by law an oath is or may required, shall, instead of 
 the usual form, be permitted to make his or her solemn affirmation or 
 declaration. (k\ Which said solemn ^affirmation or declaration shall *973 
 be adjudged and taken, and is hereby enacted and declared to be of the 
 same force and effect, to all intents purposes, in all courts of justice 
 and other places whatsoever, where by law an oath is or may be re- 
 quired, as if such Separatists had taken an oath in the usual form." 
 
 The 1 & 2 Vict. c. 77, enacts, that « it shall be lawful for any person 1 & 2 Vict. 
 who shall have been a Quaker or Moravian to make solemn affirmation p e j^ ns 
 and declaration in lieu of taking an oath, as fully as it would be lawful who have 
 for anv such person to do if he still remained a member of either of k een Q ua ~ 
 
 J r . n kers and 
 
 such religious denominations of Christians. "(£) Moravians. 
 
 Previous to the 53 Geo. 3, c. 127, there was great doubt whether Excom- 
 persons excommunicated by the ecclesiastical courts were competent munica ; ted 
 witnesses :(m) but by that statute, excommunication is not to be pro- 
 nounced, except in certain cases ; and by sec. 3, in those cases, parties 
 excommunicated shall incur no civil disabilities. Infamy 
 
 3. Of incompetency from infamy. There are certain offences of which what of- 
 if a person be convicted, he becomes incompetent to give evidence. Such fences ere- 
 
 /»i i * i»i • f i * 1 0X6 lncom- 
 
 are treason, felony, («) and every species ot the crimen falsi, sucn as pe tency. 
 
 the latter were entitled to serve on their affirmation, is bad since the 3 & 4 Wm. 4, c. 49. 
 Rex v. Dann, R. & M. C. C. R. 424. 
 
 (/) The form of affirmation given by this statute is, " I, A. B., being one of the people 
 called Quakers, [or one of the persuasion of the people called Quakers, or of the united 
 brethren called Moravians, as the case may be] do solemnly, sincerely, and truly declare 
 and affirm." 
 
 (k) The form of affirmation given by the statute is, " I, A. B., do, in the presence of 
 Almighty God, solemnly, sincerely, and truly affirm and declare, that I am a member of the 
 religious sect called Separatists, and that the taking of any oath is contrary to my religious 
 belief, as well as essentially opposed to the tenets of that sect; and I do also, in the same 
 solemn manner, affirm and declare." 
 
 (1) The form of affirmation given by the statute is, " I, A. B., having been one of the 
 people called Quakers, [or one of the persuasion of the people called Quakers, or of the united 
 brethren called Moravians, as the case may be] and entertaining conscientious objections 
 to the taking of an oath, do solemnly, sincerely, and truly declare and affirm." This statute 
 was passed in consequence of Reg. v. Doran, 2 Moo. C. C. R. 37, where it was held that a 
 person, formerly a Quaker, who had seceded from that sect on some points of doctrine re- 
 taining their opinions on the unlawfulness of swearing, but refusing to affirm under the 3 
 & 4 Wm. 4, c. 49, and the 3 & 4 W r m. 4, c. 82, was not admissible in criminal cases upon 
 making the affirmation according to the 9 Geo. 4, c. 32. 
 
 (m) Gilb. Ev. 130. 
 
 \n) By the 31 Geo. 3, c. 35, it was enacted, that no person should be incompetent by 
 reason of a conviction for petit larceny. But this act is repealed by the 7 & 8 Geo. 4, c. 27, 
 And by the 7 & 8 Geo. 4, c. 29, every larceny shall be deemed to be of the same nature, 
 and subject to the same incidents, in all respects as grand larceny was before the com- 
 mencement of that act.
 
 973 OF EVIDENCE. [BOOK VI. 
 
 forgery, perjury, subornation of perjury, and other offences of the same 
 description, which involve the charge of falsehood and affect the public 
 administration of justice. (o) So a conviction of bribing a witness to 
 absent himself and not give evidence, (p) barratry,^) or prasmunire.(r) 
 And a witness is disqualified by attaint of conspiracy at the suit of the 
 king ;(s) that is, of a conspiracy to accuse another of a capital offence ; 
 for then he is to have a villanous judgment, and lose the freedom of the 
 law ;(£) but it is otherwise when he is attainted of conspiracy at the suit 
 of the party ;(u} and it has been held, that a conviction for a conspiracy 
 to raise the funds by spreading false rumors, would not render an affi- 
 *974 davit of the party convicted inadmissible. (v)f *But a conviction for a 
 conspiracy to bribe a person, (summoned as a witness on an information 
 against the revenue laws,) not to appear before the justices of the peace, 
 renders the convict incompetent.^) A conviction for keeping a public 
 gaming house, has been held not to make a witness incompetent ;(x) 
 though a person convicted of winning by fraud or ill practice in certain 
 games, seems rendered incompetent by the 9 Anne, c. 14, s. 5 ; for 
 besides inflicting a penalty, that statute enacts that he shall be deemed 
 infamous. (y) Outlawry in a personal action, does not create incompe- 
 tency :(^) but it is otherwise of outlawry for treason or felony ; for a 
 judgment of outlawry for treason or felony, appearing on the record by 
 the sheriff's return of the exigent, has the same effect as judgment after 
 verdict or confession. (a) It follows therefore that such an outlaw can- 
 T , , not be a competent witness. (6) 
 
 of the pun- It was formerly thought that incompetency on the ground of infamy 
 ishment might arise, not only from conviction of the offences already mentioned 
 r i a l. but from the infliction of certain infamous punishments, as the pillory ;(c) 
 
 (o) 2 Hale, P. C. 277. Com. Dig. Testm. A. 3, 4. Co. Lit. 6 b. 1 Phill. Ev. 17. 
 
 (p) Clancey's case, Fotesc. 208, and Bushel v. Barrett,* R. & M. N. P. R. 434. 
 
 (q) Rex v. Ford, 2 Salk. 690. (r) Com. Dig. Testm. A. 5. Co. Lit. 6 b. 
 
 (s) Co. Lit, 6 b. Com. Dig. Testm. A. 5. (t) ] Phill. Ev. 17. 2 Hale, P. C. 277. 
 
 (w) 1 Phill. Ev. 17. 2 Hale, P. C. 277. Saville v. Roberts, Carth. 416. 
 
 (v) Case of Ville de Varsovie, 2 Dods. 174, ante, p. 705. Abbott, C. J., in Crowther v. 
 Hopwood, b 3 Stark. 22, admitted a witness under the same circumstances, and said, " I 
 believe Sir W. Scott came to that decision in the case of Ville de Varsovie, after much 
 deliberation; and if I mistake not, he conferred with some of the judges upon the point, 
 before he pronounced his judgment ;" but his lordship reserved the point as one deserving 
 the greatest consideration. It never came before the court, as the verdict rendered the 
 decision of it immaterial to the case. 
 
 (to) Bushel v. Barrett, 4 R. & M. N. P. C. 434, Littledale and Gaselee, J. 
 
 (z) Rex v. Grant, R. & M. N. P. C. 270, Abbott, C. J. 
 
 \y) 1 Phill. Ev. 18. ( z ) Co. Lit. 6 b. Com. Dig. Testm. A. 5. 
 
 (a) 3 Inst. 212. Hawk. P. C. b. 2, c. 48, s. 22. 
 
 (b) Celier's case, Sir T. Raym. 369. 1 Phill. Ev. 18. 
 
 (c) Gilb. 127. 2 Hale, P. C. 277. The punishment by the pillory is abolished in all 
 
 f [A conviction of an assault and battery with intent to kill, does not render the witness 
 incompetent. U. States v. Brockins, 3 Wash. C. C. Rep. 99. 
 
 Rose. Dig. Cr. Ev. 101, notes 2 & 3. 
 
 A person convicted of the offence of receiving stolen goods, knowing them to have been 
 stolen, is not a competent witness. Commonwealth v. Rogers, 7 Metcalf, 500. 
 
 A conviction of larceny before a justice of the peace, in a case within his jurisdiction 
 and a performance of the sentence, render the convict an incompetent witness, although the 
 complaint on which the justice proceeded was so defective that judgment might have been 
 arrested or reversed on error. Comwonwealtk v. Keith, 8 Metcalf, 531. 
 
 A conviction of the offence of obtaining goods by false pretences does not render the 
 party an incompetent witness ; nor can the record of such conviction be given in evidence 
 for the purpose of affecting his credibility. Utley v. Merrick, 10 Metcalf, 302. 
 
 On the trial of a convict from the penitentiary for felony, a convict confined there for 
 el ony is a competent witness for the prosecution. Johnso7i's case, 2 Grattan, 581.] 
 ■ Eng. Com. Law Reps. xxi. 483. b lb. xxi. 483. c lb. xxi. 463.
 
 CHAP. V. § VII.] WHAT WITNESSES ARE COMPETENT. 974 
 
 but it is now clearly settled, that it is the nature of the crime, and not 
 the species of the punishment which renders the party infamous, and 
 disqualifies him from giving evidence. (c?) Therefore a person convicted 
 of barratry, and merely fined, is incapacitated from being a witness, 
 though subjected to no infamous punishment :(e) while a person who 
 has been in the pillory for a libel on government, is competent.(/) 
 
 In order to exclude a witness on the ground of his being infamous, it Proof of 
 is necessary to prove him convicted by the production of the record, (#) J lK, s ment 
 not only of his conviction, but of the judgement thereon ;(A) for the con- to exclude. 
 viction may possibly have been quashed on a motion in arrest of judg- 
 ment,^') or the judgment reversed upon error. (i«) And the record must 
 have a caption. (_/) And even an admission by the witness himself, that 
 he had been convicted of grand larceny, and was then under sentence 
 upon such conviction, was held insufficient to remove the necessity of 
 producing the record. (&) And an admission by a witness, that he has 
 been guilty of perjury on another occasion, affords no objection to his 
 competency, whatever effect it may have on his credit.(Z)f 
 
 The incompetence arising from infamy may be removed : 1st. By Ineonipe- 
 endurance of punishment. 2dly. By pardon. 3dly. By reversal of the * e ^ cy frora 
 judgment. how re- 
 
 *lst. The restoration of competency by suffering the punishment mov ^b 
 awarded to the offence, depends at the present day upon the provisions T , 
 of the 9 Geo. 4, c. 32. Before the passing of this act, the endurance of durance of 
 the punishment in many cases operated to restore the competency, but P uni sh- 
 the law upon this subject was involved in some confusion, in conse- 
 quence of the recent extensive changes effected in the criminal law.(m) 
 
 The 9 Geo. 4, c. 32, s. 3, reciting that " it is expedient to prevent all Every pun- 
 doubts respecting the civil rights of persons convicted of felonies not f or felony 
 capital, who have undergone the punishment to which they were ad- after ifc 
 judged," enacts, that "where an offender hath been or shall be con- t, een en- 
 cases, and that of fine or imprisonment, or both, substituted, by the 56 Geo. 3, c. 138, and 
 1 Vict. c. 23. 
 
 (d) Gilb. 127. Bull. N. P. 292. 2 Hawk. P. C. c. 46, s. 102. 
 
 (e) Rex v. Ford, 2 Salk. 690. Pendock v. Mackender, 2 Wils. 18. Bull. N. P. 292. 2 
 Hawk. P. C. c. 46, s. 102. 
 
 (/) Gilb. 127. 
 
 (ff) Rex v. Castell Careinion, 8 East, 77. Com. Dig. Testm. A. 5. Bull. N. P. 292. 2 
 Hawk. P. C. c. 46, s. 104. 
 
 (h) Gilb. 127. Com. Dig. Testm. A. 5. (i) Gilb. 129. 
 
 («) Reg. v, Meek," 9 C. & P. 513. 
 
 (/) Cooke v. Maxwell," 2 Stark. R. 183, cor. Bayley, J. (k) 2 East, 78. 
 
 (I) Rex v. Teal, 11 East, 307. Rands v. Thomas, 5 M. & S. 244. 
 
 (m) 1 Phill. Ev. 23. 
 
 f {In Massachusetts, conviction of an infamous offence, and judgment thereon, in a foreign 
 country, or in another State in the Union, does not render the party an incompetent witness. 
 Commonwealth v. Green, 17 Mass. R. 515. [But the record is admissible to affect his credit. 
 Commonwealth v. Knapp, 9 Pick. 497.] 
 
 In Maryland, it has been held that persons sent as convicts from Great Britain, under the 
 st. 4 Geo. 1, c. 11, are incompetent to testify. 2 Har. & M'Hen. 120, State v. Ridgely. lb. 
 378, Clarke's Lessee v. Hall. 1 Har. & Johns. 572, Cole's Lessee v. Cole. See 1 Stark. Ev, 
 144, note (1). [New Ed. 172, n. 1.] 2 ib. 716 note (2). [New Ed. Vol. 1, 95, n. 2.] Post. 
 634, note (1).} [See Rose. Dig. Cr. Ev. 103, n. (3).] 
 
 [A witness is not rendered incompetent by the commission of, or by the conviction for 
 any crime, but only by a judgment upon such conviction. Stale v. Valentine, 7 Iredell, N. 
 C. 225. 
 
 The record of a conviction of petty larceny in another State will not render the person 
 convicted incompetent. Uhl v. The Commonwealth, G Grattan, 706.] 
 
 a Eng. Com. Law Reps, xxxviii. 201. b Ib. iii. 305.
 
 975 OF EVIDENCE. [BOOK VI. 
 
 dmed shall victed of any felony not punishable with death, and hath endured or 
 effect ofa sna ^ endure the punishment to which such offender hath been or shall 
 pardon on- be adjudged for the same, the punishment so endured hath and shall 
 t ! 1 have the like effects and consequences as a pardon under the great seal 
 as to the felony whereof the offender was so convicted ; provided always, 
 that nothing herein contained, nor the enduring of such punishment, 
 shall prevent or mitigate any punishment to which the offender might 
 otherwise be lawfully sentenced on a subsequent conviction for any 
 other felony." 
 No misde- Sec. 4, reciting that " there are certain misdemeanors which render 
 me * nor ex - the parties convicted thereof incompetent witnesses," enacts that "where 
 jury to any offender had been or shall be convicted of any such misdemeanor, 
 render m- ^except perjury or subornation of perjury,) and hath endured or shall 
 after pun- endure the punishment, to which such offender hath been or shall be 
 isbment adjudged for the same, such offender shall not, after the punishment so 
 endured, be deemed to be by reason of such misdemeanor, an incom- 
 petent witness in any court or proceeding, civil or criminal." 
 What is a "Where a man was convicted of larceny, sentenced to transportation 
 endurance ^ or seven years, and confined in the hulks for that time and then dis- 
 of the pun- charged, it was held, that his suffering seven years aboard the hulks, 
 in execution of sentence of seven years' transportation, operated as a 
 statute pardon ; and that his having escaped twice during such confine- 
 ment, for a few hours each time, did not destroy the effect of it.(?j) 
 By par- 2dly. It was formerly doubted whether a pardon could do more than 
 take away the punishment, leaving the crime and its disabling conse- 
 quences unreinoved.(o) But it is now settled, that a pardon, whether 
 by the king or by an act of parliament, removes not only the punish- 
 ment, but all the legal disabilities consequent on the crime. (p)f This 
 effect will be produced by a pardon in misdemeanors as well as felonies, 
 wherever the disability is a consequence of the judgment; but where it 
 *976 is declared by an act of parliament *to be part of the punishment, as in 
 the case of perjury or subornation of perjury on the 5 Eliz. c. 9,(?) the 
 king's pardon will not make the witness competent. (r\ 
 
 ishinent 
 awarded 
 
 don 
 
 (n) Rex v. Badcock, Russ. & Rvan, 248. 
 
 (o) Gilb. Ev. 128. Browne v. Crashaw, 2 Bulstr. 154. Harris v. White, Palm. 412. 
 Wicks v. Smallbrooke, 1 Sid. 41. It was said. u P<xna potest totli, culpa perennis erit." 
 
 (p) Cuddington v. Wilkins, Hob. 67, 81. 2 Hale, P. C. 278. Crosby's case, Salk. 689. 
 S. C, 1 Lord Raym. 39. Rookwood's case, 4 State Trials, 681. S. C. Gas. temp. Holt. 683. 
 By Treby, C. J., in Lord Warwick's case, 5 State Trials, 171. Rex v. Ford, 2 Salk. 690. 
 Bentley v. Bishop of Ely, Fitzg. 107. And a pardon by which the king remits the burning 
 in the hand will have the same effect. Rookwood's case, Lord Warwick's case, ubi supra. 
 
 (q) This statute provides, that the person convicted shall never be admitted to give evi- 
 dence in courts of justice, until the judgment be reversed. 
 
 (r) Rex v. Griepe, 1 Lord Raym. 256. Rex v. Ford, 2 Salk. 690. Gilb. Ev. 128. Bull. 
 N. P. 292. Dover v. Maester, 5 Esp. 94, by Lord Ellenborough. The authorities on the 
 effect of the king's pardon, as to the restoration of competency, are all collected and com- 
 
 f [It has been said that a pardon takes away the guilt as well as the punishment of the 
 offence, {Cudington v. Wilkins, Hob. 67, 81. Stark, on Slander, 180.) But this is neither 
 sound law nor good morals. Pardon removes the legal infamy of the crime, so that the 
 offender will be a competent witness ; but it cannot take away guilt or wash out the moral 
 stain. Though, therefore, the pardon of one convicted of felony will in general restore his 
 competency as a witness, yet the conviction may still be used to affect his credit. Baum v. 
 Clause, 5 Hill, 196. 
 
 An instrument of writing issued by the President under the seal of the United States. 
 which remitted the remainder of the term to one who had been imprisoned for a part of it 
 upon a conviction for mail robbery, was held to be a pardon which annulled the sentence 
 aud restored the prisoner to his competency as a witness. Jones v. Harris, 1 Strobhart, 160.]
 
 CHAP. V. § VII.] WHAT WITNESSES ARE COMPETENT. 976 
 
 If the pardon be conditional, the performance of the condition ought 
 to be shown, for on that depends all its validity. (s) Thus where the 
 pardon is on condition of transportation for a number of years, the wit- 
 ness is not competent before the expiration of the term, or other lawful 
 determination.^) 
 
 Before the 6 Geo. 4, c. 25, and 7 & 8 Geo. 4, c. 28, in order to prove Proof of 
 that a witness after conviction had been restored to his competency byP ardon - 
 pardon, the general rule was, that it was necessary to produce the par- 
 don itself under the great seal : the privy seal, or sign manual, being 
 held only warrants, and countermandable.(w) But now by the former 6 Geo. 4, c. 
 of these statutes, (sec. 1) it is enacted, that in all cases, in which the 25 ' 3 ' L 
 king shall be pleased to extend his royal mercy to any offender con- 
 victed of any felony whereby the offender is excluded from benefit of 
 clergy, and by warrant under sign manual, countersigned by one of 
 the secretaries of state, shall grant to the offender either a free pardon 
 or a pardon upon condition of transportation, imprisonment, or other 
 punishment, the discharge of such offender out of custody in case of a 
 free pardon, and the performance of the condition in case of a condi- 
 tional pardon, shall have the effect of a pardon under the great seal for 
 such offender, as to the felony of which he has been convicted. And by 
 the latter of these statutes, (sec. 13) this enactment is enlarged to cases 7 & 8 Geo. 
 where the royal mercy is extended " to any offender convicted of any *' Ct 28> s- 
 felony punishable with death or otherwise." These statutes, it will be 
 observed, do not extend to misdemeanors. 
 
 3dly. The incompetency may be removed by a reversal of the 3 - Rever- 
 judgment of outlawry, which must be proved by producing the re- • d(rnient# 
 cord. 
 
 In Lord Lovat's case,(v) where it was objected that the witness had 
 been attained by an act of parliament, which subjected him to all the 
 penalties of an attainder, unless he surrendered before a certain day, it 
 was allowed to be shown that the witness surrendered conformably to 
 the act; and the record of the proceeding, commenced on the part of 
 the crown, and defended on the part of the witness by a plea of surren- 
 der, which the attorney-general confessed to be true, was allowed to be 
 conclusive evidence of the fact of his surrender within the limited 
 time, (to) 
 
 The consequence of incompetency from infamy is, that as the party Conse- 
 cannot be a witness, so he cannot make affidavits to support a com-? uonceof 
 
 • • i / mcompe- 
 
 plaint against others,(x) but he may to exculpate or defend *himself.(y) tency from 
 Thus he is not disabled from making an affidavit in relation to the irre- ""^"py- 
 gularity of a judgment to which he is a party )(z\ for otherwise he must 
 suffer all injustice, and could have no way to help hiniself.(«) He is 
 for some purposes of evidence considered as dead. Thus, if he be the 
 subscribing witness to a bond, his handwriting may be proved, as if he 
 were dead.(i) 
 
 mented upon with great learning by Mr. ITargrave, in the second volume of his Juridical 
 Arguments, p. 221. 
 
 (s) Hawk. P. C. b. 2,.c. 37, s. 45. 
 
 (t) Ilex v. Burridge, 3 P. Wins. 430. 1 Phill. Ev. 22. 
 
 (w) Lord Warwick's case, 5 Hargr. State Trials, 4th ed. 171, by Treby, C. J. Rex v. Mil- 
 ler, 2 W. Black. 798. Gully's case, 1 Leach, 98. 
 
 (v) 9 St. Tr. 652, 665. (w) 1 Phill. Ev. 20. 
 
 (.') Davis's case, 2 Salk. 461. Walker v. Kearney, 2 Stra. 1148. 2 Hawk. c. 46, s. 103. 
 
 (y) Davis's case, 2 Salk. 461. Charlesworth's case, cited 2 Stra. 1148. 
 
 (z) 2 Salk. 461. (a) 2 Hawk. c. 46, s. 103. (6) Jones v. Mason, 2 Stra. 833
 
 977 OF EVIDENCE. [BOOK VI. 
 
 Incompe- 4. Of incompetency from interest. — All witnesses interested in the 
 
 interest ™ even ^ °^ a su ^ are to ^* e excluded from being witnesses in favour of that 
 
 party to which their interest inclines them. They are excluded from a 
 
 supposed want of integrity, and not as some have supposed that they 
 
 What in- may be saved from the temptation to commit perjury. (c) It becomes 
 
 terest dis- necessar y therefore to consider what is and what is not such a discmali- 
 quahhes. . •> * 
 
 fying interest. The rule at present completely established, (though at 
 
 variance with several old decisions,) is, that the interest to disqualify 
 must be some legal, certain, and immediate interest in the event of the 
 suit, or in the record as an instrument of evidence available on future 
 What in- occasions in support of the witness's own interest. (cZ) But it is no objec- 
 terest does tion to the competency of a witness, that he may have wishes or a strong 
 qualify. bias on the subject-matter of the proceeding, or that he may expect 
 some benefit from the result of the trial. Such circumstances may in- 
 fluence his mind and affect his credibility ; they are therefore always 
 open to observation and ought to be carefully weighed by the jury who 
 are to determine what dependauce they can have on his testimony; but 
 they will not render him incompetent, (e) Thus no tie of relationship 
 (except that of husband and wife to be hereafter noticed) will create a 
 disqualifying interest. A father may give evidence for his son, or the 
 son for his father, for though his consanguinity may influence his tes- 
 timony and affect his credit, it will not make him incompetent. So a 
 witness is not to be excluded because he stands in the same situation as 
 the party for whom it is proposed he should give evidence ;(/) nor be- 
 cause he believes himself interested in the result of the proceedings ;(g)\ 
 nor because he believes himself under any honorary obligation to pay 
 the costs. (li)\ It is not thought necessary to cite any of the civil cases 
 
 (c) 1 Phill. Ev. 45, 7th ed. If a witness is interested in the event of a suit, he cannot 
 give am- evidence of any nature whatever for the party with which his interest sides. Thus 
 on an indictment against a township for not repairing a highway, a person of another town- 
 ship in the parish seems not to be a competent witness for the prosecution, even to prove 
 the road to be a common highway : though it may be said, that to such extent he charges 
 himself and his testimony is against his own interest, 2 Phill. Ev. 64. 6th ed. So in an 
 action of ejectment a witness who admits he is to have a lease of the premises, in case the 
 defendant is turned out of possession by the ejectment, is as incompetent to prove the 
 defendant in possession of the premises as to prove any material fact necessary for the sup- 
 port of the action, ibid. 
 
 (d) 1 Phil. Ev. 81, 86. 1 Stark. Ev. 103. Smith v. Prager, 7 T. R. 60. 
 
 (e) 1 Phill. Ev. 47, 7th ed. (/) Ibid. 
 
 (g) 1 Phill. Ev. 47, 7th ed. But it has been said that if he thinks he has an actual legal 
 interest he is incompetent, ibid., 54, note (2), 7th ed. Case of L'Amitie, 5 Rob. Adm. Rep. 
 344. See however Phill. ubi supra, and 1 Stark. Ev. 105. 
 
 (h) 1 Phill. Ev. 128. 
 
 f {Harper's (S. C.) Rep. 63, Havis v. Barkley. Peck's R. 108, Rogers v. Burton. 2 Tvler, 
 272, State v. Clark. 4 Serg. & R. 226, Long v. Baillie. 6 Connect. R. 371, per Hosmer, C. 
 J. Ace. 
 
 2 Munf. 148, Richardson's Exr. v. Hunt. 4 Bibb, 445, Sentney v. Overton. 4 Mass. R. 
 518, Plumb v. Whiting. 8 Johns. 428, Trustees of Lansinburgh r. Willard. Contra. See 
 also 4 Har. & Mc Hen. 342, Peter v. Beall.} [Rose. Dig. Cr. Ev. 125, note.] 
 
 X {9 Johns. 219, Gilpin v. Vincent. 4 Wend. 292, Moore v. Hitchcock. 4 Serg. & R. 227. 
 Long v. Baillie. 6 Connect. R. 365, Smith v. Downs. 1 Ashmead. 133. Carman v. Foster. 
 Ace.} [Rose. Dig. Cr. Ev. 125, note.] [In criminal as well as civil cases, witnesses are dis- 
 qualified who have a direct interest in the event of a case. But the expectation of a benefit, 
 not necessarily and legally flowing from the event of the proceeding, does not render the 
 witness incompetent: thus, the prosecutor, whose property has been injured, is a competent 
 witness in an indictment for malicious mischief, though a fine by the statute might be im- 
 posed by the jury, to be paid by the party injured. The Stale v. 'Truss. 9 Porter, 126. That 
 a witness for the prosecution in a criminal case has contributed funds to carry it on. goes 
 only to his credibility. The People v. Cunningham, 1 Denio, 524. 
 
 Upon the trial of an indictment for larceny the party injured is not a competent witness
 
 CHAP. V. § VII.] WHAT WITNESSES ARE COMPETENT. 977 
 
 supporting these rules ; they will be found ably and clearly stated and 
 applied, in the treatises already referred to on this subject ; but it may 
 be expedient to notice some of the most striking criminal cases, par- 
 ticularly those which on the ground of necessity, or by statutory *pro- *978 
 visions, are at variance with the general principles of evidence. Inform- Cases of 
 ers who are entitled to a part of the penalty are not good witnesses to < lisc i. uallf y- 
 support a conviction, unless by the particular provisions or policy of est. 
 several acts of parliament. (Y)f So it has been held that on an indict- 
 ment for a forcible entry and detainer under the 5 R. 2, and 21 Jac. 1, 
 the party grieved is not a competent witness, for in case of a conviction 
 he will be entitled to restitution.^') So on a prosecution against seve- 
 ral persons for a conspiracy, the wife of one of the defendants has been 
 holden not to be a competent witness for the others, a joint offence being 
 charged and an acquittal of all the other defendants being a ground of 
 discharge for her husband. (Jcj A person indicted as accessory before or 
 after the fact would in most cases be incompetent as a witness for the 
 principal, for his acquittal would enure to the accessory's discharge. (I) 
 If a man hath the promise of the goods or lands of the party attainted, 
 he is no lawful witness of a treason. (m) Inhabitants of a parish in- 
 dicted for not repairing a highway, were formerly not competent to give 
 evidence for the defendants. (n) 
 
 In cases of forgery, a party by whom an instrument purported to be In forgery. 
 made, was not admitted to prove it forged, if, in case of its being genuine, 
 he would either be liable to be sued upon it or be deprived by it of a 
 legal claim against another. This, however, was an anomaly depend- 
 ing on decided cases rather than upon the principles of the rule above- 
 stated. And now by the 9 Geo. 4, c. 32, s. 2, " on any prosecution by 9 Geo. 4, c. 
 indictment or information, either at common law, or by virtue of any Pa ' *' ' 
 statute, against any person for forging any deed, writing, instrument, or whose 
 other matter whatsoever, or for uttering or disposing of any deed, writing, name 1S 
 instrument, or other matter whatsoever, knowing the same to be forged; competent 
 or for being accessory before or after the fact to any such offence, if the witness, 
 same be felony; or for aiding, abetting, or counselling the commission 
 of any such offence, if the same be a misdemeanor ; no person shall be 
 deemed to be an incompetent witness in support of any such prosecution, 
 
 (i) 1 Phill. Ev. 66, ante, p. 268. Where a statute can receive no execution, unless a party 
 interested be a witness, there he must be allowed, for the statute must not be rendered 
 ineffectual by the impossibility of proof. Gilb. Ev. 114. 
 
 (j) Rex v. Beavan," R. & M. N. P. C. 242, Littledale, J. Rex v. Williams, b 9 B. & C. 549, 
 ante, vol. 1, p. 313. 
 
 (k) Ante, p. 696. But where a woman was called to give evidence for the crown, whose 
 husband lay under sentence of death, and she supposed and hoped that the conviction of 
 the prisoner would be the means of procuring her husband's pardon, she was admitted as a 
 witness, and the objection held to go to her credit and not to her competency. Rudd's case, 
 1 Leach, 127. 
 
 (I) 2 Stark. Ev. 764, 1st ed. (m) 1 Hale, P. C. 303. 
 
 (n) Ante, vol. 1, p. 370. But see the 3 & 4 Vict. c. 26, s. I, post, p. 980. 
 
 for the prosecution if he is entitled to treble the value of the property stolen upon the con- 
 viction of the prisoner; but if he agree to release all claim to the treble value, and an entry 
 of such agreement be made of record, the court would not be warranted in including it in 
 the sentence, and the competency of the witness will be restored. The State v. Pray, 14 
 New Hamp. 4G4.] 
 
 f [An informer is a competent witness, although he may receive a part of the penalty. 
 This rule is founded on necessity and policy. United States v. Patterson, 3 M'Lean, 53.] 
 8 Eng. Com. Law Reps. xxi. 428. b lb. xvii. 440.
 
 978 OF EVIDENCE. [BOOK VI. 
 
 by reason of any interest which such person may have or be supposed 
 to have in respect of such deed, writing instrument or other matter.""}" 
 Cases of But with this exception it is a general rule that in criminal prosecu- 
 
 eompeten- tions the party injured may be a witness. (o) Thus it is the constant 
 Party practice on an indictment for robbery, to admit the evidence of the party 
 injured. robbed. Q> ) And the prosecutor is competent notwithstanding he be en- 
 y ' " titled to a restitution of his property *on conviction of the thief,(<?) or to 
 a reward on conviction, by virtue of particular statutes or by proclama- 
 tion ;(?•) or in consequence of the voluntary offer of a reward which has 
 been held out in order to ensure the apprehension and conviction of 
 offenders.(s) So a witness is competent upon an indictment for tearing 
 a promissory note pa)-able to him, (A or for extorting a bond from hini,(«) 
 or for usury, although he was the borrower of the money and has not 
 repaid it ;(y) so for cheating him of money by false pretences ;(w) or 
 upon an information for fraudulently procuring bim to execute a cogno- 
 vit, (a:) In the earlier cases, the decisions seem to have proceeded upon 
 the ground of necessity ; for it was said that in such private transactions 
 nobody else can be a witness of the circumstances of the fact but he 
 that suffers ; and in cases where no such necessity existed, the party 
 defrauded was in most instances considered incompetent, upon the sup- 
 position that he might avail himself of the verdict in some future pro- 
 ceeding, so as to entitle him to a remedy for the injury, or protect him- 
 self against the effects of the fraud. (^) But it is now held that the 
 party aggrieved cannot avail himself of the record of the conviction in 
 any future suit in order to prove the criminal act. (z\ And it is also an 
 •established rule that a court of equity will not grant relief on a convic- 
 tion, which proceeds on the evidence of the prosecutor. (a) Upon these 
 considerations the party injured is allowed to be witness of an indict- 
 ment for perjury, whether the suit in which the perjury was committed, 
 either at law or in equity, be at an end or not. (6) And it has been 
 
 (o) For it is not to be presumed that a witness in a public prosecution is actuated by 
 revengeful or improper motives, and he has in general no legal interest beyond that of any 
 other witness. 
 
 (p) 1 Phill. Ev. 65. Rudd's case, 1 Leach, 132, per cur. 
 
 (g) By the 7 & 8 Geo. 4, c. 29, s. 57. 
 
 ir) 1 Leach, 132. Rioters' case, in note to Xewland's case, ibid. 314. 
 
 (s) 1 Phill. Ev. 120, 6th ed. 1 Stark. Ev. 154. 1 Leach, 132, 314, note. So where a 
 prosecutor had laid a wager that he should convict the defendant, he was held competent. 
 Rex v. Fox, Stra. 652. (t) Rex v. Moise, 1 Stra. 595. (u) 1 Stark. Ev. 153. 
 
 (v) Reg. v. Sewell, 7 Mod. 118. Smith v. Prager, 7 T. R. 60. 
 
 \w) Reg. v. Mackartney, 1 Salk. 286. (x) Rex v. Parris, 1 Sid. 431. 
 
 \y) 1 Stark. Ev. 153. 
 
 (z) 1 Phill. Ev. 65. Bartlett v. Pickersgill, 4 East, 577, note (b). Rex v. Boston, 4 East, 
 511. Smith v. Rummens, 1 Campb. 9. Hathaway v. Barrow, 1 Campb. 151. Burdon v. 
 Browning, 1 Taunt. 520. 
 
 (a) Bartlett v. Pickersgill, Rex v. Boston, ubi supra. 
 
 (b) Rex v. Boston, 4 East, 572. Ante, p. 654, but see Rex v. Hulme, a 7 C. & P. 8, ante, p. 
 
 f {The old English rule that excluded a party, whose name is alleged to be forged, from 
 being a witness in support of an indictment for the forgerv, prevails in Vermont, (1 Tvler, 
 260,)— Connecticut, (Swift's Ev. 70.)— North Carolina, (2 Hayw. 288,) and New York, (4 
 Johns. 296.) 
 
 Aliter, in New Hampshire, (2 N. H. Rep. 481,) — Massachusetts. ( 3 Mass. R. 84. 1 lb. 7,) 
 —Pennsylvania, (2 Yeates, 1. 2 Dallas, 239. 1 ib. 1 10,)— South' Carolina, (3 McCord, 442,) 
 and Louisiana, (1 Martin, 208.) 
 
 See 2 Stark. Ev. 582, note (1), [new ed. 338, n. (1),] and the cases there collected.} 
 [Rose. Dig. Cr. Ev. 106, n. (2).] 
 
 1 Eng. Com. Law Reps, xxxii. 417.
 
 CHAP. V. § VII.] WHAT WITNESSES ARE COMPETENT. 979 
 
 considered that even if the indictment for perjury proceeds on the 5 
 Eliz. c. 9, which gives the prosecutor half the forfeiture incurred, there 
 would be no objection to his competency, since in an action to recover 
 his moiety, he would be precluded from giving the conviction in evi- 
 dence. (c) 
 
 Where an indictment has been removed by certiorari from the quar- Certiorari. 
 ter sessions to the Court of King's Bench, notwithstanding the prose- 
 cutor in that case, if the defendant he convicted, is by the 5 & 6 Wm. 
 & M., c. 11, entitled to his costs, yet he is allowed as a witness: for, 
 as is remarked by Parker, C. J., if the giving of costs should take off 
 the evidence of the prosecutor, that act of parliament, which *was *980 
 designed to discountenance the removal of suits by certiorari would 
 give the greatest encouragement to them that is possible. (d\ It seems Costs. 
 also that the prosecutor of an indictment for not repairing a highway, 
 is competent, as he cannot it seems be in the result liable to costs. (e) 
 In prosecutions against private persons or corporate bodies for not 
 repairing bridges, inhabitants of counties may be witnesses by the 1 Inhabi- 
 Anne, stat. 1, c. 18, s. 13.(/) Even before this statute such evidence Q a f nts# 
 had been thought admissible from necessity.^) In all cases relative to 
 the Highway Act, the inhabitants of a parish or place, the surveyor Of parish, 
 and other officers, are competent witnesses by the 5 & 6 Wm. 4, c. 50, 
 s. 100. (/i) Where pecuniary penalties are directed to be applied to the inhabi- 
 use of the poor, or for the benefit and exoneration of the parish or other tants > in 
 
 CiiSGS 01 
 
 place, the inhabitants are rendered competent witnesses on the trial of penalties 
 the offender, by the 27 Geo. 3, c 29, provided the penalty imposed byg iven t0 
 the act of parliament does not exceed twenty pounds. Before this act, e poor * 
 an inhabitant rated to the poor would have been incompetent^? - ) 
 
 In order to provide against the inconvenience of excluding the evi- 
 dence of the inhabitants at large upon questions affecting the interests 
 of parishes and other districts, the 54 Geo. 3, c 170, s. 9, provided 
 that no inhabitant rated or liable to be rated, to any rates of auy parish, 
 &c, or executing or holding any office therein, should be incompetent 
 for or against such parish, &c, in any manner relating to such rates, or 
 to the boundary of such parish, &c. &c. So much difficulty, however, 
 arose in the construction of this act that it was considered expedient to 
 pass the following statute.^') 
 
 655. It was once held necessary to show the judgment in the suit satisfied, on the ground 
 that the party might possibly make use of the conviction for the purpose of obtaining relief 
 in equity, ante, p. 654. 
 
 (c) Ante, p. 656. But see 1 Stark. Ev. 155, where it is said that where a statute gives a 
 specific remedy to the party injured he is as much disqualified for a witness in a criminal 
 prosecution as if he sought the remedy by a civil action ; and therefore that upon an indict- 
 ment for a perjury upon the statute he is not a good witness, although he would have been 
 a good witness upon an indictment at common law. See also Gilb. Ev. 111. Bull. N. P. 
 289. 
 
 (d) Reg. v. Muscot, 10 Mod. 193. (c) Ante, vol. 1, p. 370. 
 (/*) Ante, vol. 1, p. 406. (g) Ibid. 
 
 (h) Ante, vol. 1, p. 370. (i) 1 Phill. Ev. 139. 
 
 (j) The cases upon the construction of the 54 Geo. 3, c. 170, s. 9, are collected, 1 Phill. 
 Ev. 141, et seq. In Rex v. Hayman, 8 M. & Malk. 401, Tindal, C. J., held on an indictment 
 for the non-repair of a bridge or road, on a liability ralionc tenures, that rated inhabitants of 
 the parish wherein the bridge or road was situated, were rendered competent by the 54 Geo. 
 3, c. 170. But in Rex v. Bishop Auckland," 1 A. & E. 744, 1 M. & Rob. 286, it was held that 
 inhabitants of a district indicted for the non-repair of a highway, were not rendered by that 
 statute competent witnesses for the defence. This decision, however, seems to be overruled 
 by Doe d. Boultbee v. Adderlcy, 8 A. <fc E. 502. 
 
 a Eng. Com. Law Reps. xxii. 341. b lb. xxviii. 197. c lb. xxxv. 447.
 
 980 OF EVIDENCE. [BOOK VI. 
 
 3 & 4 Viet. The 3 & 4 Vict. c. 26, s. 1, reciting that " it is expedient to remove 
 P o S s l a ^ doubt whether persons are by law competent to give evidence in 
 not dis- cases where they have been formerly held to be disqualified by the lia- 
 qualified ^{{[ty to pay parochial rates;" enacts, " that from and after the passing 
 ing evi- of this act, no person called as a witness on any trial in any court what- 
 dence on ev er, may, and shall be disabled or prevented from giving evidence by 
 beino- as- reason only of such person being, as the inhabitant of any parish or 
 sessed to township, rated or assessed or liable to be rated or assessed to the relief 
 rates ' °f ^he P oor > or f° r aQ d towards the maintenance of church, chapel, or 
 
 highways, or any other purpose whatever." 
 Nominal By sec. 2, " no churchwarden, overseer, or other officer in and for 
 in^trial 11 an y P ar ^ sn ? township, or union, or any person rated or assesed or liable 
 not disa- to be rated or assessed as aforesaid, shall be disabled or prevented from 
 bled from giving evidence on any trial, appeal, or other proceeding by reason only 
 dence. of his being a party to such trial, appeal, or other proceeding, or of his 
 *981 being liable to costs in respect thereof, *when he shall be only a nomi- 
 nal party to such trial, appeal, or other proceeding, and shall be only 
 liable to contribute to such costs in common with other the rate payers 
 of such parish, township, or union." 
 
 It has been held that the clause in this statute relating to inhabitants 
 ought to receive the largest construction, and must be extended to own- 
 ers. Therefore, an owner of lands within a parish is competent to give 
 evidence on a prosecution against such parish for non-repair of a high- 
 way, though he be not a rated inhabitant, the lands being occupied by 
 tenant's who are rated for them. (A:) 
 
 Whatever interest a witness may have had, if he is divested of it by 
 
 release or payment, or by any other means, when he is ready to be 
 
 sworn, there is no objection to his competency. (/)"}* 
 
 Removal of It has been already observed that no tie of relationship will create an 
 
 tencT from interest disqualifying as a witness, except that of husband and wife. 
 
 interest. They cannot be admitted to be witnesses either for or against each 
 
 Husband ther ; for, since their interests are absolutely the same, they cannot 
 
 swear for the benefit of each other, any more than a man can attest for 
 
 himself ;(»*)* therefore, the wife of a prisoner cannot give evidence for 
 
 (k) Reg. v. Doddington,* 1 A. & E. (Q. B. R.) 411. 
 
 (I) 1 Phill. Ev. 156. 1 Stark. Ev. 138, where all the authorities on the subject are col- 
 lected. The cases which have occurred on the subject of releases in criminal proceedings 
 related to forgery, and as the 9 Geo 4, c. 32, has done away with incompetency in forgery, 
 it seems unnecessary to introduce those cases here. C. S. G. 
 
 (m) Gilb. Ev. 119. 2 Hawk. P. C. c. 46, s. 70. 
 
 f {If an interested witness testify, and then be released, he must be re-examined. 1 
 Minor's (Alab.) R. 136, Wynn and ux. v. Williams. 5 Wend. 55, Ten Eyck v. Bill.} 
 
 j [Husband and wife cannot be a witness for or against each other. Stein v. Bowman, 
 13 Peters, 209. 
 
 The wife, either during the coverture or after the death of the husband, from motives of 
 policy, is not a competent witness to make any disclosure which implies a violation of the 
 confidence reposed in her as a wife; but after the death of the husband she is competent 
 to prove his public acts, and those designed to be made public, not affecting the husband's 
 character or person. McGwire v. Moloney, 1 B. Monroe, 225. 
 
 A wife, in a suit between others, may not testify to any matter for which, if true, her 
 husband may be indicted. Ben ex dem. Steioart v. Johnson, 3 Harrison, 88. 
 
 Where two persons are jointly charged in the same complaint with the commission of 
 the same offence, and neither of them has been either acquitted or convicted, the husband 
 of the one is not a competent witness for the other, who, by leave of the court, is tried 
 separately. Puller v. The People, 1 Douglass (Michigan) Rep. 48. 
 
 The rule of law is that a wife cannot be allowed to testify to the declaration or confession 
 » Eng. Com. Law Reps. xli. 603.
 
 CHAP. V. § VII.] WHAT WITNESSES ARE COMPETENT. 981 
 
 him, nor for any one of several others indicted with him where a joint For each 
 offence, as a conspiracy, is charged, and an acquittal of all the others other " 
 would be a ground of discharge for her husband. (n\ So also on an in- 
 dictment against several prisoners, the wife of one of them has been 
 held inadmissible as a witness for the others, if her evidence has a ten- 
 dency to procure the acquittal of her husband. One of several prisoners, 
 jointly indicted for burglary, proposed to call the wife of another in order 
 to prove an alibi ; but, Littledale, J., rejected her, for though she only 
 came to speak as to that prisoner being at one place, which had nothing 
 to do with her husband being concerned in the offence, yet her evidence 
 would go to show that the witness for the prosecution was mistaken as 
 to the prisoner for whom she was called, and then if she was mistaken 
 as to one it would weaken her evidence altogether, and by that means 
 she might benefit her husband; and upon a case reserved, all the judges 
 (except Graham, B., and Littledale, J.,) thought the wife was not com- 
 petent. (o)f 
 
 *And they cannot be witnesses against each other, by reason of the *982 
 dissensions and distrusts tbat it would occasion, inconsistent with the Against 
 happiness of married life and the peace of families ;(p) and therefore, eac other - 
 on an indictment for bigamy, the first and true wife cannot be admitted 
 to give evidence against her husband ;(§) but, after proof of the first 
 marriage, the second wife may be a witness. M And where upon an 
 indictment against Webb, and three other prisoners for sheep stealing, 
 the counsel for the prosecution proposed to call the wife of Webb to 
 prove facts against the other prisoners, and urged that it was only in 
 cases where the acquittal or conviction of one prisoner had a direct ten- 
 dency to cause the acquittal or conviction of the other prisoners that the 
 wife of one prisoner was incompetent to give evidence for or against the 
 other prisoners ; but Bolland, B., held that the witness was incompe- 
 tent.^) 
 
 (n) Ante, p. 696. So in the case of an assault, where the cases of the co-defendants can- 
 not be separated. Rex v. Frederick, 2 Stra. 1095. 
 
 (o) Rex v. Smith, R. & M. C. C. R. 289. Mr. Phillipps, 1 vol. p. 75, observes on this case, 
 that it " must be understood as having been decided on its own particular circumstances, and 
 not as warranting the conclusion, that where prisoners set up separate and distinct defence, 
 the wife of one prisoner cannot in any case be a witness for another prisoner." It seems that 
 in this case there was only one witness, who identified the prisoners ; see note, 1 Phill. Ev. 
 75 ; but in Rex v. Hood, R. & M. C. C. R. 281, there were six persons at least present at the 
 transaction, and yet the wife of one of the prisoners was held incompetent for the other 
 prisoners. The authority of these cases seems open to some doubt, as they infringe the rule 
 that it is only where there is certain interest in the result, that the witness is incompetent, 
 and the utmost that can be said is, that in such cases the evidence has a tendency to produce 
 such a result. It is also a great anomaly that a witness should be competent for a pri- 
 soner if tried separately, but incompetent for him if tried jointly, with the witness's husband. 
 C. S. G. 
 
 (p) Gilb. Ev. 119. 2 Hawk. P. C. c. 46, s. 70. Barker v. Dixie, Cas. temp. Hardw. 264. 
 
 (q) Ante, vol. 1, p. 218. (r) Ibid. Wells v. Fisher, 1 M. & Rob. 99. 
 
 (*) Rex v. Webb, Bushell, J., and T. Groome, Gloucester Spr. Ass. 1830. MSS. C. S. G. 
 
 made by the husband, either during his lifetime or after his decease. Enos v. Hunter, 4 
 Gilman, 211. 
 
 On the trial of an indictment against a man for the crime of adultery, the husband of the 
 woman, with whom the crime is alleged to have been committed, is not a competent witness 
 to prove the act of adultery. State v. Welch, 26 Maine, 30. 
 
 The party with whom the adultery is charged to have been committed is a competent 
 witness for the other party. The Slate v. Crowly, 13 Alabama, 172.] 
 
 f [Where two were jointly indicted but separately tried, held that the wife of the one was 
 a good witness for the other. Moffit v. The State, 3 Humphreys, 99.]
 
 982 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 Not com- 
 petent, 
 even by 
 consent. 
 
 Collateral 
 cases. 
 
 Rex v. All 
 
 Saints, 
 Worces- 
 ter. 
 
 *983 
 
 Rex v. 
 Bathwick. 
 
 A wife is 
 not compe- 
 tent to 
 prove that 
 prisoner 
 committed 
 a felony in 
 company 
 •with her 
 husband. 
 
 And so strictly is this rule preserved, that in a civil case Lord Hard- 
 wicke would not suffer a wife to give evidence for her husband, even 
 by consent of the other pariy.(^) And even after a divorce by act of 
 parliament the wife is not competent in an action against her husband 
 to give evidence of anything that happened during coverture,(?i) on the 
 ground that the confidence which subsisted between them at the time 
 shall not be violated in consequence of any future separation. (r) The 
 rule, however, must be understood as applying to cases where the hus- 
 band or wife are directly accused of a crime, and not as extending in 
 the same degree to collateral suits or proceedings between third persons. 
 It was, indeed, once held, in Rex v. Cliviger,(u) that husbaud and wife 
 in collateral cases are not to be permitted to give any evidence that 
 might even tend to criminate each other; for though the evidence of 
 the one could not be used against the other on a subsequent trial for the 
 offence, yet it might lead to a criminal charge, and cause the other to be 
 apprehended. And the principle of that decision would extend to pre- 
 vent the one from being called to contradict the other; for the tendency 
 of the evidence of the latter witness would be to prove the former guilty 
 of perjury.(x) But the rule laid down in the case of Rex v. Cliviger, 
 was much discussed in the case of Rex v. All Saints, Worcester,(y) in 
 which the Court of King's Bench was of opinion, that it had been ex- 
 pressed in terms too large and general; and held, that where the evi- 
 dence of the wife did not directly criminate the husband, (as in a 
 proceeding relating to other matters, and not to any criminal charge 
 against him,) and never could be used against him, nor could he ever be 
 affected by the judgment of the court founded upon such evidence, she 
 was a competent witness. 
 
 *So where upon the trial of an appeal a pauper proved his marriage 
 with E., and M. B. was then called by the other side to prove that she 
 had previously been married to the pauper; it was held that she was 
 competent for this purpose, as nothing that was said by her in this case, 
 nor any decision of the Court of Sessions founded upon her testiinon}-, 
 could afterwards be received in evidence to support an indictment 
 against her husband for bigamy. (w\ 
 
 But where on an indictment for stealing wheat, Eliza Ellis was called 
 on the part of the crown to prove that her husband, who had absconded, 
 had been present when the wheat was stolen, and that she saw him de- 
 liver it to the prisoner ; Taunton, J., doubted whether she could be so 
 examined, as her evidence might be used as a ground of convicting her 
 husband by causing a charge to be made against him. The two pre- 
 ceding cases were then cited. Taunton, J., " I am against breaking 
 down the rules of law. My opinion is to adhere to the rule laid down 
 
 (t) Cas. temp. Hardw. 264. 
 
 (u) Monroe v. Twisleton, Peake, Ev. Appendix. So a widow cannot be called by the 
 defendant to disclose conversations between herself and her late husband, in an action by 
 his executors. Doker v. Hasler, a R. & M. N. P. R. 198, ruled bv Best, C. J. But see Beve- 
 ridge v. Minter," 1 Carr. & P. 364. 
 
 (v) By Lord Ellenborough, in Aveson v. Kinnaird, 6 East, 192. 
 
 (w) 2 T. R. 263. (z) 2 T. R. 268. 
 
 (y) 6 M. & S. 194. 
 
 (if) Rex v. Bathwick, 2 B. & Ad. 639. The court doubted whether the compotency^of a 
 witness could depend upon the marshalling the evidence, or the stage of the cause at which 
 the witness was called. See Peat's case, ante, 1 vol. 218. 
 
 a Eng. Com. Law Reps. xxi. 416. b lb. xi. 421. « lb. xxii. 152.
 
 CHAP. V. § VII.] OF THE COMPETENCY OF WITNESSES. 983 
 
 by Lord Hale.(js) In Res v. All Saints, Worcester, at the time when 
 the witness was examined, there was nothing in her evidence to crimi- 
 nate her husband. Here it is sought to make the woman charge her 
 husband, not obliquely, but directly and immediately." Having con- 
 sulted Littledale, J., the learned judge added, " We both agree in 
 opinion that the witness is incompetent. We think Rex v. All Saints, 
 Worcester, very distinguishable. There at the time, when the wife was 
 examined, there was nothing in her evidence to criminate her husband. 
 Here the evidence would directly charge the husband with being a 
 principal, and although there is no prosecution pending, her evidence 
 cannot but facilitate an accusation against her husband. Now, the law 
 does not allow the wife to give evidence against her husband, and it is 
 quite consistent with that principle that this evidence should not be 
 received, "(y) 
 
 Where, however, the husband has either been convicted or acquitted Unless he 
 of the same felony, respecting which the wife is called as a witness, she has h . eeu 
 is competent to be examined. Thus, on an indictment for sheep-steal- or accent- 
 ing, the wife of a person, who had been previously convicted of stealing teclof sucli 
 the same sheep, was held a competent witness for the prosecution. (z) e ° ny " 
 And in Thurtell's case, Mrs. Probert was examined as a witness against 
 Thurtell after her husband was acquitted. (a) 
 
 And the reasoning, upon which the decision in Rex v. All Saints, They may 
 Worcester, was founded, is equally strong to show that one may be ^ called 
 called as a witness to disprove what has been stated by the other, and diet each 
 that either the party who has called the one, or the opposing party, otlier - 
 may call the other for the purpose of contradicting.(i) The declara- Their de- 
 tions of the husband or wife are subject to the same rule as their ev j_ claratl(,ns - 
 dence.(c) 
 
 *Upon an indictment for forcible abduction and marriage of a woman, *984 
 she may be a witness for the crown, (cZ) or the prisoner ;(e\ but this is Excep- 
 rather a case which does not fall within the general rule, than an ex- t A '? n , s ' . 
 ception to it ; for she is not legally his wife, a contract obtained by force 
 having no obligation in law.(jf ) Indeed, if the actual marriage is valid, 
 (as where the woman after abduction consents to the marriage volun- 
 tarily, and not induced by any precedent menace,) or if the marriage 
 has been ratified by subsequent voluntary cohabitation, it has been said 
 she is not competent for or against the prisoner.^?) But there are very 
 considerable authorities to the contrary. (A) And in a late case where Wake- 
 the defendants were indicted for a misdemeanor in conspiring to carry 
 away a young lady, under the age of sixteen, from the custody ap- 
 pointed by her father, and to cause her to marry one of the defendants ; 
 and, in another count, for conspiring to take her away by force, being 
 
 (x) I am not aware of the passage referred to by the learned Judge, but see 2 Hale, P. C. 
 279, 1 Hale, P. C. 301. C. S. G. 
 
 (y) Rex v. George Gleed, Gloucester Lent. Ass. 1832.. MSS. C. S. G. 
 
 (z) Reg. v. Williams," 8 0. & P. 284. Alderson, B. 
 
 (a) Per Alderson, B., ibid. 
 
 (//) l Phill. Ev. 80, 7th ed. (c) 1 Phill. Ev. 7G. 
 
 (d) Gilb. Ev. 120. 1 Hale, P. C. 301, 302. 2 Hawk. C. 46, s. 78. 
 
 (e) Rex v. Perry, at Bristol, 1794, cited by Abbott, C. J., in Rex v. Serjeant, 1 ' R. & M. N. 
 P. C. 364. 
 
 (f) Gilb. Ev. 120. 1 Hale, P. C. 302. Bull. N. P. 286. 
 
 (;/) 1 Hale, P. C. 302. 1 Phill. Ev. 84, 7th ed. 2 Stark. Ev. 553. 
 (h) 4 Bla. Com. 209. 1 East, P. C. c. 11, s. 5. Ante, vol. 1, T10. 
 
 a Eng. Com. Law Reps, xxxiv. 391. b lb. xxi. 453. 
 
 Vol. ii.— 64
 
 984 
 
 OF EVIDENCE. 
 
 [BOOK VI. 
 
 an heiress, and to marry her to one of the defendants ; Hullock, B., 
 was of opinion that, even assuming the young lady to be at the time of 
 the trial the lawful wife of one of the defendants, she was a competent 
 witness for the prosecution, although there was no evidence to support 
 that part of the indictment which charged force. (i) 
 Indictment The wife is also admitted as a witness against her husband, ex neces- 
 for per- sitate, in a prosecution of him for offences against her person. (j)f So 
 lence. her dying declarations are admissible against him in the case of mur- 
 der.^-) In an indictment of William Whitehouse, at Stafford, upon 
 Lord Ellenborough's act, for shooting at his wife, she was admitted as 
 a witness for the prosecution by Grarrow, B., after consulting Holroyd, 
 J., upon the ground of the necessity of the case ; and Mr. J. Holroyd 
 sent Mr. B. Grarrow the case of Res v. Jagger, Yorkshire Assizes, 1797, 
 where the husband had attempted to poison his wife with a cake in 
 which arsenic was introduced, and the wife was admitted to prove the 
 fact of the cake having been given her by her husband; and Mr. J. 
 Rooke afterwards delivered the opinion of the twelve judges, that the 
 evidence had been rightly admitted. Mr. J. Holroyd, however, said, 
 he thought the wife could only be admitted to prove facts which could 
 not be proved by any other witness. [V) So on an indictment against a 
 man for beating his wife, she was held competent.(?/i)| And the wife, 
 is always permitted to swear the peace against her husband. (n\ And 
 her affidavit has been permitted to be read on an application to the 
 Court of King's Bench for an information against the husband for an 
 attempt to take her away by force *after articles of separation ; and it 
 would be strange to permit her to be a witness to ground a prosecution, 
 and not afterwards to be a witness at the trial.(o) And it seems to be 
 now settled, that in all cases of personal injuries committed by the hus- 
 band and wife against each other, the injured party is an admissible 
 witness against the other. (p\ 
 
 But this rule seems to be confined to cases where the charge affects 
 the liberty or the person of the wife. Thus it has been decided, that 
 in an indictment for a conspiracy in procuring a lady, then a ward in 
 there is no (Jhancery, to marry, the wife was not a good witness for one of the co- 
 defendants, if her evidence might enure to the acquittal of her hus- 
 band ;(<?) and since she could not be admitted in favour of her husband, 
 it follows necessarily that she could not be a witness against hini.fV) So 
 
 *985 
 
 Not com- 
 petent in 
 cases 
 where 
 
 injury. 
 
 (i) Rex v. "Wakefield, see the trial published by Murray, p. 257. 2 Lewin. 1 and 279. 
 
 (/) Lord Audley's case, 1 St. Tr. 393. This 'case lias been denied to be law, but it is 
 now established by the highest authorities. 1 Hale, P. C. 301. 2 Hawk. P. C. c. 46, s. 7 7. 
 Bull, N. P. 287. Rex v. Sergeant,* R. & M. 354. Reg. v. Jellyman, b 8 C. & P. 604, ante, vol. 
 1, p. 699. 
 
 (k) Woodcock's case, 1 Leach, 500. John's case, ibid., 504, note (a). 
 
 (I) See Reg. v. Pearce, c 9 C. & P. 667. S. P. 
 
 (m) By Lord Raymond, on the authority of Lord Audley's case, Rex v. Azire. 1 Str. 633. 
 Bull. N. P. 287. 
 
 (n) Bull. N. P. 287. (o) Lady Lawlev's case. Bull. N. P. 287. 
 
 (p) 1 East, P. C. c. 11, s. 5, p. 455. In the Wakefields' case, p. 257, Hullock, B., said, 
 " I take it, it is quite clear now, that a wife is a competent witness against her husband in 
 respect of any charge which affects her liberty and person." 
 
 (q) Rex v. Locker, 5 Esp. 107. (r) Rex v. Serjeant: 1 R. & Jf. 354. 
 
 f [A wife may be admitted as evidence against her husband, in an indictment for an 
 assault and battery committed on her by him, when no other person was present when the 
 offence was committed. State v. Davis, 3 Brevard, 3.] 
 X {Soule's case, 5 Greenleaf, 407. Ace.\ [Rose. Dig. Cr. Ev. 115, n.] 
 » Eng. Com. Law Reps. xxi. 453. b lb. xxxiv. 547. • lb. xxxviii. 281. d lb. xxi. 453.
 
 CHAP. V. § VII.] OF TIIE COMPETENCY OP WITNESSES. 985 
 
 011 an indictment against the wife of W. S. and others for a conspiracy 
 in procuring W. S. to marry, Abbott, C. J., refused to admit W. S. as 
 a witness in support of the prosecution. (s\ 
 
 In the case of high treason it has been said, that a wife shall be ad- High trea- 
 mitted against her husband, because the tie of allegiance is more obli- soa * 
 gatory than any other :(tj but there are high authorities to the con- 
 trary.^) 
 
 Whether a woman who has cohabited with a man as his wife, but Compe- 
 who is ready to swear she is not married to him, will be allowed to tency of a 
 give evidence on the part of the man, has been considered a doubtful living as a 
 question.^) On a trial for forgery, Lord Kenyon refused to admit a wife - 
 woman as witness for the prisoner, whom in the course of the trial he 
 had frequently alluded to as his wife, but afterwards, on hearing an 
 objection taken to her competency, denied that they were in fact mar- 
 ried. («A But it seems now to be settled that the rule relates to persons 
 who have entered into the relation of husband and wife ; and does not 
 extend to those who not being married have lived together and coha- 
 bited as man and wife.(x) Thus, where a woman has been married to 
 a man, whom she had not seen for thirty years, and then married again, 
 but afterwards found that the man she had first married was alive ; as 
 the second marriage was a mere nullity, she was held competent to give 
 evidence of statements made by her second husband during the time 
 they cohabited, (y) So a kept mistress, who has passed by the name 
 and appeared in the world as the wife of her protector, has been held 
 to be a competent witness for him.(z) 
 
 *In the case of Rex v. Perry, Gibbs, C. J., stated that he could see *986 
 no distinction between admitting a wife for and against her husband. A wife 
 « The King v. Perry," said Abbott, C. J., in Rex v. Serjeant,(a) « was "Jggj* 
 much talked about at the time, and Chief Justice Gibbs expressed his so for her 
 surprise that any doubt should have been entertained, that a wife was husband. 
 in all cases a competent witness for her husband, when admissible 
 against him." 
 
 Anciently the rule was, that if there were any objection to the con- Objections 
 petency of a witness, he should be examined on the voire dire,(I)) and j° n c c on ! pe ~ 
 it was too late after he was sworn in chief. (c) But for the convenience when to be 
 of the Court, and the furtherance of justice, (as the incompetency may taken > 
 not at first be suspected,) the rule is now so far relaxed, that if it is dis- 
 covered during any part of the witness's examination, or even after his 
 cross-examination, that he is interested, the objection may be taken, and 
 
 (s) Rex v. Serjeant, R. & M. N. P. R. 352. But it is not necessary, it should seem, that 
 there should he force employed, in order to make the husband or wife competent. In the 
 case of the Wakefields, before mentioned, for abduction, Hullock, B., was of that opinion, 
 and he mentioned that he had seen a report of the case of Rex v. Perry, tried before Gibbs, 
 C. J., as recorder of Bristol, when the wife was held competent, and that no force was used 
 in the abduction, in that case. 
 
 (t) Bull. N. P. 286. Gilb. Ev. 120. (w) 1 Hale, P. C. 301. 1 Brown, 47. 
 
 (v) Campbell v. Twemlow, 1 Price, 81. (w) Per Richards, B., 1 Price, 83. 
 
 (z) 1 Phill. Ev. 69. 
 
 (?/) Wells v Fletcher, 8 5 C. & P. 12. S. C. as Wells v. Fisher, 1 M. k Rob. 99. 
 
 (z) Batthews v. Galindo," 4 Bing. R. 010. (a) R. & M. N. P. B. { 35 ! 
 
 (b) The voiredire is, when it is prayed upon a trial at law, that a witness may (previously 
 to his giving evidence in the cause,) be sworn to speak the truth, (in old French, voire dire,) 
 whether he shall lose by the matter in controversy. Blount's Law Dictionary. 
 
 (c) Turner v. Pearte, 1 T. R. 719. 
 
 * Eng. Com. Law Reps. xxiv. 190. b lb. xv. 88. ° lb. xxi. 453.
 
 086 OF EVIDENCE. [BOOK VI. 
 
 his evidence will be struck out.(<7) But it seems that the objection 
 comes too late after the witness has left the box,(e) and it has been held 
 that after a witness has been dismissed without any objection to his 
 competency, it is not allowable to call a witness to prove his incompe- 
 tency. (/) With respect, however, to the power of questioning a wit- 
 ness for the purpose of discovering his incompetency, there is still a 
 material diiference, which will presently be pointed out between an ex- 
 amination on the voire dire, and one after the witness has been sworn 
 in chief, 
 bow to be The party against whom a witness is called, may examine him re- 
 snpported; S p ec ting his interest on the voire dire, or may call another witness, and 
 produce other evidence in support of the objection. (#) The old rule is 
 said to have been, (A) that if the witness were examined by the oppo- 
 site party as to the fact of the objection and denied it upon his oath, 
 the party would not be at liberty to call afterwards another witness to 
 prove it, in order to repel him from giving evidence, unless the other 
 side acquiesced. But the modern and more convenient practice seems 
 to be, that if the fact of incompetency is satisfactorily proved, the wit- 
 *987 ness will be incompetent, ^although he may have ventured to deny it 
 how repel- on the voire dire,.(i) It has been said that if the opposite party raise 
 the objection of interest by independent evidence and without putting 
 a question to the witness, then the party who has called him cannot be 
 allowed to put a question to him in order to repel the objection,^-) but 
 this seems to be incorrect. (?)f 
 
 (d) 1 Phill. Ev. 153, Turner v. Pearte, 1 T. R. '720. Howell v. Lock, 2 Campb. 15. Stone 
 v. Blackburn, 1 Esp. 37. Perigal v. Nicholson, Wightw. 64. But where upon a trial for 
 high treason, it appeared, after a witness had been examined for the crown, without objec- 
 tion on the part of the prisoner, that he had been misdescribed in the list of witnesses, which 
 . is required by the 7 Ann. c. 21, s. 14, to be given to the prisoner previous to his trial, the 
 court would not permit the evidence of the witness to be struck out. but said, the objection 
 ought to have been taken in the first instance, otherwise a party might take the chance of 
 getting evidence which he liked, or if he disliked the testimony he might then git rid of it 
 on the ground of misdescription. Rex v. Watson, 8 2 Stark. N. P. C. 158. And upon this 
 ground Mr. Starkie expresses his opinion, that a party who is cognizant of the interest of 
 the witness at the time he is called, is bound to make his objection in the first instance. 
 1 Stark. Ev. 137; and see 1 Phill. Ev. 154, note (3), and Hartshorne v. Watson, b 5 Bing. >*. 
 C. 477. (c) 1 Phill. Ev. 153. Beeching v. Gower, Holt, N. P. R. 314. 
 
 (/■)Dewdney v. Palmer, 4 M. & W. 664. 
 
 (g) Per Hullock, B., Wakefield's case, p. 157. 2 Lew. 279. 
 
 (h) By Lord Hardwicke in Lord Lovat's case, 9 St. Tr. 647. See also the observations 
 of Parker, C. J., in Rex v. Muscot, 10 Mod. 193, in which case it was asserted, but overruled, 
 that in criminal cases there could be no examination on the voire dire. 
 
 (i) 1 Phill. Ev. 154. In several cases it seems to have been considered, that it is in the 
 discretion of the judge whether other evidence should be called to support the objection 
 before the witness is examined. And if the judge refuse to allow it to be then given, it 
 seems that it may be given as part of the case of the party raising the objection, and if it 
 support the objection, then the evidence of the witness objected to may be struck out of the 
 notes. Rex v. Wakefield, 4 note (a), M. & Malk. 197 ; Jones v. Fort, M. & Malk. 196. In this 
 case the question was whether the defendant's examination, taken under a commission of 
 bankrupt, was admissible, and Lord Tenterden, C. J., refused to allow evidence to be given 
 lending to show that from the mode of taking it, and the state of the defendant's health, it 
 was inadmissible, before the examination was read, but held that it might be received in 
 the defendant's case, and if the objection was supported, the evidence might be struck out. 
 It ce rtainly, however, is much the more convenient course, as well for the purpose of saving 
 timet as to prevent the jury from being influenced by inadmissible evidence, to receive the 
 evidence before the examination of the witness. C. S. G. 
 
 {Ik) 1 Phill. Ev. 123, 6th ed. 
 
 ( ) See Bunter v. Warre, 1 B. & C. 689, per Bailey, J., and Hartshorne r. Watson, supra, 
 note (</). 
 
 f {See American cases on this subject, 2 Stark. Ev. 756, note (2). [New ed. vol. 1, 124, 
 a Eng. Com. Law Reps. iii. 293. b lb. xxxv. 187. ■ lb. iii. 117. 
 
 d lb. xxii. 291. c lb. viii. 186.
 
 CHAP. V. § VII.] OF THE COMPETENCY OF WITNESSES. 987 
 
 An examination on the voire dire is allowed to be conducted without Mode of 
 strict regard to the general rule of evidence, which requires the best nation 
 possible proof of a fact, and admits no other. Thus a witness may be voire </tn 
 examined as to the contents of a written document without a notice to 
 produce ;(ni) for the party objecting could not know previously that the 
 witness would be called, and consequently might not be prepared with 
 the best evidence to establish his objection. (») And the same relaxation 
 is allowed in removing an objection of incompetency as in raising it. 
 Thus, where in an action brought by a chartered company, a witness 
 for the plaintiffs admitted, on the voire dire, that he had been a free- 
 man of the company, but added that he was then disfranchised ; Lord 
 Kenyon ruled that it was not necessary to prove a disfranchisement 
 by the regular entry in the company's books, and that the witness was 
 competent.(o) So where a witness was objected to as next of kin in an 
 action by an administrator, but on re-examination answered that he 
 had released all his interest, this was held by Lord Ellenborough to 
 remove the objection. (/>) 
 
 But it is only on the voire dire that the general rules of evidence are 
 thus relaxed, for although objections to the competency of a witness 
 may now be made at any stage of the trial, yet they are not to be at- 
 tended with the privileges of an examination upon the voire dire. Thus 
 a witness cannot be cross-examined, for the purpose of showing him 
 incompetent, as to what interest he takes under a will, *for the will *988 
 itself should be produced. (g) So where a party who calls a witness, 
 attempts to remove the objection by other independent proof, and not 
 on the voire dire, he will then be subject to all the general rules of 
 evidence. Thus where an objection, on the ground of interest had 
 been raised by the defendant to a witness of the plaintiff, who called 
 another to prove that the former witness had been released, it was held 
 that he could not be allowed to speak of the contents of the release, but 
 the release itself, if not lost or destroyed, must be produced. (r) So 
 where the objection is not raised on the voire dire, but appears in evi- 
 dence in any other manner, the party in answering it is bound by the 
 usual rules of evidence. (s) 
 
 (m) Howell v. Locke, 2 Campb. 15. 
 
 (n) But if the witness produces the instrument, on which the objection to his competency 
 rests, it ought to be read. By Abbott, C. J., Butler v. Carver, a 2 Stark. R. 434. 
 
 (o) Butchers' Company v. Jones, 1 Esp. 462. See also Botham v. Swingler, 1 Esp. 164. 
 S. C. Peake, N. P. C. 219, where the witness was allowed to remove an objection of interest 
 raised on the voire dire by his own statement that he had become a bankrupt, and his estate 
 had been assigned. See also Rex v. Gisburn, 15 East, 57. So where a bankrupt, called as 
 a witness, stated on the voire dire that he had obtained his certificate and released his 
 assignees, Park, J. A. J., held him competent, without production of the release. Carlisle 
 v. Eady, b 1 C. & P. 234. See also Bunter v. Warre, c 1 B. & C. 689. {Coxe's N. J. Rep. 46 
 Den. v. Jones.} 
 
 (p) Ingram v. Dade, MS., 1 Phill. Ev. 155. Lunnis v. Row, 3 10 A. & E. 606, overruling 
 Goodhay v. Hendry, e M. & Malk. 319, and a case in a note, ibid., 321. See I Phil. Ev. ! 56 
 jSee 3 Pick. 439, Baxter v. Rodman.} 
 
 {q) Howell v. Lock, 2 Campb. 14. (r) Corking v. Jarrard, 1 Campb. 37. 
 
 (*) Botham v. Swingler, 1 Esp. N. P. C. 165, Lord Kenyon. 
 
 n. (2),] 6 Connect. R. 231, Chance v. Hine. 5 ib. 258, Stebbins v. Sackett. 6 Pick, 117 
 Chatfield v. Lathrop. Harden, 51, Baldwin v. West. [Rose. Dig. Cr. Ev. 125, w.] 
 a Eng. Com. Law Reps. iii. 417. b Ib. xi. 378. a Ib. viii. 186. 
 
 d Ib. xxxviii. 191. " Ib. xxii. 321.
 
 988 OF EVIDENCE. [BOOK VI. 
 
 Judge or It is no exception against a person giving evidence for or against a 
 
 jury com- p r } soner) that lie is one of the judges or jurors who is to try him.(f)| 
 
 And in the case of Hacker, two of the persons in the commission for 
 
 the trial came off from the bench, and were sworn, and gave evidence, 
 
 and did not go up to the bench again during his trial. (u) 
 
 (t) 2 Hawk. P. C. c. 46, s. 83. 
 (it) Ibid. 
 
 f [A petit juror may be sworn as to facts, but must not be asked a question which may 
 indicate his opinion of the merits of the cause. Dunbar v. Park, 2 Tyler, 217.]
 
 INDEX 
 
 TO BOTH VOLUMES 
 
 ABATEMENT, 
 
 •undue, of price of native commodities indictable, i. 173. 
 ABDUCTION, i. 716.— See tit. Kidnapping. 
 forcible, of women, i. 701, et seq. 
 offence at common law, i. 701. 
 by statute, i. 702. 
 when complete, i. 703. 
 accessories, i. 691, 702. 
 
 construction of 3 Hen. 7, (now repealed,) i. 702. 
 county in which offence is committed, i. 703, et seq. 
 taking with intent to marry, sufficient, i. 703. 
 indictment, i. 709. 
 
 evidence of women carried away, i. 709. 
 9 Geo. 4, c. 31. 
 
 s. 19, forcible abduction of a woman on account of her fortune with in- 
 tent to marry her, i. 702. 
 construction of the 9 Geo. 4, c. 31, s. 19, i. 707. 
 there must be evidence of taking from motives of lucre, i. 708. 
 declarations of the defendant evidence of his motives, i. 708. 
 conviction of an assault on an indictment for abduction, i. 709. 
 s. 20, unlawful abduction of a girl under sixteen from her parents or 
 
 guardians, i. 710. 
 construction of 4 & 5 Ph. & M. c. 8, s. 2, now repealed, i. 710, et seq. 
 Irish statutes concerning, i. 715. • 
 
 forcible abduction, and sending of persons into other countries, i. 716. 
 masters of vessels, forcing men on shore, and leaving them, i. 717. 
 ABETTORS, i. 26, et seq. — See Aiders and Abettors. 
 
 in false personation, ii. 542. 
 ABORTION, 
 
 murder in attempt to procure, i. 540. 
 
 1 Vict. c. 85, as to administering poison, &c. ; to cause miscarriage, &c, i. 
 
 671. 
 destroying infants in the mother's womb, i. 671. 
 ACCESSORY, 
 
 at the fact, i. 26. 
 
 aider and abettor formerly considered, i. 26. 
 be/ore the fact, i. 30. 
 who is to be considered, i. 30. 
 description of, in different statutes, i. 31. 
 
 the same person may be such accessory, and also a principal, i. 31. 
 but is not chargeable in one iudictinent, i. 31, n. (/).
 
 990 INDEX. 
 
 ACCESSORY— continued. 
 
 how he differs from a principal in the second degree, i. 31. 
 
 if a man be indicted as, he cannot be convicted on evidence of his 
 being present aiding and abetting, i. 31. 
 after an acquittal on such objection, he may be indicted as 
 principal, i. 31, n. (g). 
 offence of, derivative from that of principal, i. 31. 
 if a person be present, he is not an accessory but a principal, i. 32, and 
 
 by the intervention of a third person, i. 32. 
 he who procures a felony to be done is a felon, i. 32. 
 in what crimes there may be, i. 32. 
 in forgery, i. 33, 34. 
 felonies created by statute, i. 34. 
 cannot be in a misdemeanor, i. 34. 
 in misdemeanors all are principals, i. 34. 
 acccssorius sequitur naturarn principalis sui, i. 34. 
 how far an accessory is implicated when the principal varies from the 
 terms of the instigation, i. 34. 
 
 when he commits a different crime, i. 34, 35. 
 when the accessory repents and countermands the principal, i. 36. 
 counselling a pregnant woman to murder her child, i. 35. 
 in murder, i. 511. — See Murder. 
 cannot be in manslaughter, i. 579. 
 how and where to be tried, i. 39. 
 
 maybe prosecuted either with or without the principal, or after convic- 
 tion of principal, though he be not attain ted, or amenable to justice, i. 39. 
 other enactments respecting, i. 39. 
 accessory before the fact to felo de se is not triable, i. 40. 
 indictment against accessory before conviction of principal, i. 40. 
 joinder of counts in indictment against accessories, i. 40. 
 after the fact, 
 
 who is to be so considered, i. 36. 
 
 by receiving, comforting, &c, the felon, i. 36. 
 
 or an accessory before the fact, i. 37. 
 by assisting a felon sentenced to be transported, i. 442. 
 in offences created by statute, i. 37. 
 must know of the felony committed, i. 38. 
 and the felony must be complete, i. 38. 
 • feme covert not, by receiving her husband, i. 23, 38. 
 
 proceedings against at common law unfrequent, i. 38. 
 punishment of, i. 38. 
 receivers of stolen goods, i. 40, ii. 237. 
 employing another to harbour the principal, i. 37. 
 must be some personal assistance to the felon, i. 37. 
 any assistance to prevent apprehension, trial, or punishment sufficient, 
 
 i. 36. 
 person may be accessory to larceny of his own goods, i. 37. 
 rescuing a felon, or voluntarily permitting his escape, i. 37. 
 in murder, i. 512. 
 
 in manslaughter, i. 33, («.), 579, 655. 
 proceedings against, indictment, &c, i. 38. 
 
 principal and accessory in same indictment, i. 38. 
 arranged as accessory to such principals as are convicted, i. 41. 
 as to stating the name of the principal, i. 40. 
 
 indicted as accessory to several, found guilty as accessory to one, the 
 verdict good, i. 41.
 
 INDEX. 991 
 
 ACCESSORY— continued. 
 
 no person shall be tried more than once for the same offence of 
 being accessory before the fact, i. 41. 
 former acquittal, when a good bar, i. 41. 
 
 he may be tried where principal has been convicted, though not at- 
 tainted, i. 39. 
 he may controvert the guilt of the principal, i. 41, et seq. 
 in what county he shall be tried, i. 39. 
 
 a confession by the principal no evidence against the accessory, i. 42, 43. 
 quaere whether conviction of principal upon not guilty is, i. 43. 
 in murder, i. 511, 512. 
 in manslaughter, i. 579, 655. 
 in rape, i. 691. 
 in sodomy, i. 691, 699. 
 in abduction of women, i. 702. 
 in maihem, none, i. 726. 
 in offences respecting coin, i. 60, 61 
 in piracy, i. 96, 99. 
 none in extortion, i. 144. 
 all are principals in a riot, i. 369. 
 
 presumption of repentance in one of several engaged in same design, i. 901. 
 consequences of such repentance, i. 901. 
 trial and 'punhliment of, i. 39. 
 
 in burglary, i. 841. 
 in sacrilege, i. 845. 
 in housebreaking, i. 848. 
 in stealing in a dwelling-house, i. 852. 
 in breaking, &c, and stealing in buildings within cur- 
 tilage, i. 866. 
 in breaking, &c, shops, &c, and stealing therein, i. 866. 
 in robbery, i. 901. 
 in larceny, ii. 128. 
 in stealing from the person, ii. 132. 
 in stealing horses, cows, sheep, &c, ii. 135. 
 in stealing and destroying deer, &c, ii. 144. 
 in taking, &c, fish, ii. 149. 
 in plundering shipwrecked vessels, ii. 151. 
 in larceny by servants, &c, ii. 166. 
 in embezzlement, ii. 191. 
 in forgery, ii. 368, 372. 
 in malicious injuries, ii. 547. 
 in arson, ii. 568. 
 in maiming cattle, ii. 573. 
 ACCOMPLICES, 
 
 include all the particeps criminis, i. 26. 
 dying declarations of, ii. 763. 
 depositions of, ii. 891. 
 evidence against a prisoner, ii. 956. 
 indicted separately, ii. 957. 
 approvement, ii. 957. 
 
 accomplice must state the whole truth, or may be tried, ii. 958. 
 mode of admitting to give evidence, ii. 959. 
 principal a witness against accessory, ii. 960. 
 accomplice's evidence alone sufficient in point of law, ii. 960 
 but in practice corroboration always deemed essential, ii. 960. 
 corroboration as to some, not all of the prisoners, considered sufficient form- 
 erly, ii. 961.
 
 992 INDEX. 
 
 ACCOMPLICES— continued. 
 
 but it is now settled that such corroboration is not sufficient, ii. 962. 
 
 corroboration as to the facts insufficient, ii. 962. 
 
 corroboration should be such as goes to fix the identity of the party charged, 
 ii. 963, et seq. 
 
 confirmation by wife of accomplice insufficient, ii. 965. 
 
 confirmation as to principal none as to accessory, and vice versa, ii. 966. 
 
 where there are several accomplices, ii. 966. 
 
 where confirmation is not required, ii. 967. 
 
 in cases of misdemeanor, ii. 967. 
 
 where accomplice has been summarily convicted, ii. 967. 
 
 result of the cases, ii. 967. 
 
 the jury may convict some and acquit others on the same accomplices' evi- 
 dence, ii. 968. 
 
 accomplice evidence for prisoner, ii. 968. 
 AD QUOD DAMNUM, 
 
 writ of, i. 339. 
 
 virtually abolished, i. 399, note (li). 
 
 repairs of a road made in pursuance of, i. 359. 
 ADMIRALTY, 
 
 jurisdiction of, i. 100, 101, 102, 103, 104.— See tit. Piracy, High Seas. 
 
 court of, &c, i. 102, 103, 104. 
 
 punishments in, i. 104. 
 
 forging the hand of registrar of, ii. 471. 
 ADMISSION.— See tit. Confession. 
 ADULTERER, 
 
 taking goods by the delivery of adulteress, i. 23. 
 
 provocation to kill by detection of, i. 581. 
 AFFRAY, 
 
 definition of, i. 291. 
 
 derivation of, i. 291. 
 
 difference between, and a riot, i. 291. 
 
 aggravated, i. 2!>1 . 
 
 words will not make an affray, i. 292. 
 
 but there may be one where there is no actual violence, i. 292. 
 as where a person goes armed, i. 292. 
 prohibited by 2 Edw. 3, c. 3, 292. 
 
 construction of that statute, i. 292. 
 
 suppression of by a private person, i. 293. 
 
 arresting affrayer, i. 293. 
 
 giving affrayer in charge to a constable, i. 293. 
 
 continuance of affray, i. 293. 
 
 suppression by a constable, i. 294. 
 
 where the affray is in his presence, i. 294. 
 
 where it was not in his presence he cannot arrest, i. 295. 
 
 by a justice of the peace, i. 295, 296. 
 
 notice of authority to arrest by officer, &c, interposing, i. 598. 
 
 killing in, i. 670. 
 
 punishment of, i. 296. 
 AGAINST THE FORM OF THE STATUTE.— See Contra FormamStatuti. 
 AGENT, 
 
 possession of, in whom ownership may be laid in indictment, ii. I 1 1. 
 
 statements, and acts of, when admissible against his principal, ii. 871. 
 AIDERS AND ABETTORS— See tit. Principal in Second Degree. 
 
 principals in the second degree, i. 26. 
 
 formerly considered accessories at the fact, i. 26. 
 and not triable till principal convicted, i. 26.
 
 INDEX. 993 
 
 AIDERS AND ABETTORS— continued. 
 
 how far they must be present at the commission, i. 26, 27. 
 what shall constitute such presence, i. 26, 27, 28. 
 
 of a crime done in prosecution of some unlawful purpose by several, i. 29. 
 where there is a general resolution against all opposers, i. 29. 
 
 indictment against, i. 50. 
 
 in murder, i. 509. — See tit. Murder. 
 
 in manslaughter, i. 579. 
 
 in rape, i. 670. 
 
 in sodomy, i. 699. 
 AIRWAY, 
 
 of mine, obstruction, ii. 583. 
 ALEHOUSE, 
 
 authority of constable in, i. 602, et seq. 
 
 keeping without a license, why not indictable, i. 51. 
 
 license made necessary by 5 & 6 Edw. 6, i. 322, note (b). 
 
 disorderly, i. 322. 
 ALE LICENSES, 
 
 granting and refusing improperly, i. 136. 
 ALMANACK, 
 
 forgery in respect of stamps on, ii. 438. 
 AMBASSADORS, 
 
 arrest of, i. 574. 
 AMENDMENTS, 
 
 under the 9 Geo. 4, c. 15, of variances between indictments and written in- 
 struments, ii. 798. 
 ANCHORS, 
 
 receiving stolen, i. 99. 
 
 left or cut from ships, ii. 270. 
 ANIMALS, 
 
 domestic larceny of, ii. 82. 
 ANNUITIES, 
 
 endeavouring to induce infants to grant annuities, i. 461, 462. — See tit. 
 
 TTo jury 
 
 APPRENTICE, 
 
 neglect of, who indictable for, i. 46. 
 murder by hard usage of, i. 489. 
 
 correction of, by master, in foro domestico, i. 518, 645, 646, 647, 659. 
 enlisting and receiving bounty money, ii. 278, 317. 
 APPREHENSION.— See Arrest. 
 
 compensation to those who have been active in, ii. 954. 
 APPROVEMENT, 
 
 method of, ii. 957. 
 ARMS, 
 
 affray by going armed, i. 292. 
 
 prohibition of by 2 Ed. 3, from going armed, i. 292. 
 construction of this statute, i. 292. 
 ARRAIGNMENT, 
 
 of idiots, deaf and dumb persons, &c, i. 6, 7, and note (/). 
 ARREST.— See tit. Process. 
 
 opposing an arrest upon criminal process, i. 408, ct seq. 
 
 by rescue, i. 410. 
 of persons escaping from Great Britain to Ireland, &c, i. 417. 
 authority of officers and others to arrest, &c, in cases of felony, i. 593. 
 of private persons, i. 593, 594. 
 
 in cases of attempts to commit felony, i. 594. 
 distinction between officers and pi'ivate persons, i. 594, 595.
 
 994 INDEX. 
 
 ARREST — continued. 
 
 a magistrate has no authority to detain a person known till a charge of 
 misdemeanor is made, i. 595. 
 
 arrest on charge of felony imperfectly expressed, i. 596. 
 
 illegal arrest, i. 596, 597. 
 authority to arrest, &c, in cases of misdemeanor, i. 598, et seq. 
 arrest without warrant on charge of felony, where none has been committed, 
 
 i. 397. 
 arrest and recaption, for misdemeanor committed out of the view of the 
 
 constable, illegal, i. 599. 
 if affray is over, constable cannot arrest, i. 599. 
 
 in all cases of misdemeanor, the offence must be committed in the view of 
 the constable, i. 601. 
 
 apprehending night walkers, i. 601. 
 
 reputed thieves, i. 602. 
 power of watchmen, beadles, &c, 601, note (z). 
 
 in disturbances in ale and beer houses, i. 602, 603, 604. 
 authority to arrest, &c, in civil suits, i. 612. 
 there must be a legal officer and legal process, i. 614, et seq. 
 
 < blank warrants, i. 619, 620, 621. 
 notice of the authority to arrest, i. 623. 
 
 by officers interposing in the case of riots and affrays, i. 624. 
 
 in case of third persons interposing, i. 625, 626. 
 
 before doors are broken open, i. 626, 627. 
 by private bailiff, i. 627. 
 regularity of proceedings, i. 628. 
 of clergyman during divine service, i. 769. 
 on a Sunday, i. 628. 
 right of officers to break open windows or doors to arrest, i. 62 s. 
 
 explanation of the rule that a man's house is his castle, i. 629, 630, 631. 
 interference by third persons where arrest is illegal, i. 632, 633, 634, 635. 
 killing in resisting or executing. — See tit. Murder, Manslaughter. 
 ARREST OF JUDGMENT, 
 
 all the defendants must be in court when motion is made in, ii. 705. 
 what objections to an indictment cannot be moved in, ii. 113. 
 ARSON, 
 
 offence at common law, ii. 548. 
 
 there must be an actual burning, ii. 548. 
 it is not necessary that flame should be visible, ii. 548. 
 the burning must be malicious and wilful, ii. 549. 
 it need not correspond with the precise intent, ii. 549. 
 it may be effected by setting fire to the party's own house, ii. 550. 
 
 the fire must burn the house of another, ii. 550. 
 a wife setting fire to her husband's house, ii. 550. 
 
 what is included in the word " house," ii. 552. 
 misdemeanor in burning a man's own house, ii. 552. 
 
 1 Vict. c. 89, s. 2, setting fire to a dwelling-house any person being therein, 
 ii. 512. 
 
 s. 3, setting fire to any church, &c, or any house, &c, or to certain 
 buildings, ii. 552. 
 
 s. 4, setting fire to ships, ii. 553. 
 1 & 2 Vict. c. 89, s. 9, setting fire to a coal mine, ii. 553. 
 
 s. 10, setting fire to a stack of corn, &c., ii. 553. 
 
 s. 11, principals in the second degree and accessories, ii. 553. 
 
 s. 12, hard labour and solitary confinement, ii. 554. 
 7 & 8 Geo. 4, c. 30, s. 17, setting fire to crops of corn, &c, ii. 554. 
 
 malice to the owner not necessary, ii. 555.
 
 INDEX. 995 
 
 ARSON — continued. 
 
 12 G-eo. 3, c. 24, s. 1, setting fire to ships of war, &c, ii. 554. 
 articles of the navy, burning any ship, &c., ii. 555. 
 cases on the statutes now repealed, ii. 555, et seq. 
 
 a common gaol holden a house within 9 Geo. 1, ii. 555. 
 as to an outhouse within that statute, ii. 557, et seq. 
 a building intended for a house but not completed, ii. 556. 
 a cellar under a cottage separately occupied, ii. 557. 
 a school-room near a house, ii. 558. 
 an open shed in a farm-yard, ii. 558. 
 
 an open building in a field at a distance from a house, ii. 559. 
 an outhouse must be a building belonging to a house, ii. 560. 
 a cart hovel in a field, ii. 561. 
 a stack of wood, ii. 561. 
 a stack of straw, ii. 561. 
 a stack of haulm, ii. 561. 
 
 part owner of a ship, guilty of arson of the ship, ii. 562. 
 cotton-mill within 9 Geo. 3, c. 29, ii. 563. 
 
 as to intent to injure or defraud under the 43 Geo. 3, c. 58, ii. 563. 
 the indictment, ii. 563, et seq. 
 
 the indictment must state that the act was done "unlawfully and mali- 
 ciously," ii. 563. 
 statement as to houses, outhouses, stacks, &c, ii. 564. 
 ownership of house, how stated, ii. 564, 565. 
 as to laying the intent in an indictment for burning a barge, ii. 566. 
 
 for burning stacks, ii. 566. 
 the judges will take notice that beans are pulse and barley is corn, ii. 
 566. 
 ownership of partners, &c, ii. 567. 
 evidence, ii. 567. 
 
 books of insurance company not evidence, unless notice given to 
 
 produce policy, ii. 567. 
 unstamped policy, whether evidence, ii. 567. 
 principals and accessories, ii. 568. 
 penalty on servants firing any house, &c, ii. 568. 
 offence of burning a stack not local, ii. 567. 
 ASSAULT, 
 
 common assault, 
 
 definition of an assault, i. 750. 
 included in every battery, i. 751. 
 no words will amount to, i. 750. 
 battery, i. 751. 
 injury need not be direct, i. 751. 
 
 or immediate, i. 752. 
 by exposure to the inclemency of the weather, i. 752. 
 by indecent liberties with females, i. 752, 753. 
 by an unlawful imprisonment, i. 753. 
 
 every imprisonment does not include a battery, i. 754. 
 what will amount to an assault, i. 754, 755. 
 intention material, i. 754. 
 
 force used sometimes justifiable, and will not amount to, i. 755. 
 as against trespassers, i. 755, 756. 
 presenting a pistol whether loaded or not, i. 750, 751. 
 there must be the means of carrying the threat into effect, i. 751. 
 confining an idiot brother, i. 752. 
 persons present at prize fights, i. 753. 
 act done with consent not an assault, i. 753. 
 but if resistance is prevented by fraud, it is, i. 753.
 
 996 INDEX. 
 
 ASSAULT — continued. 
 
 injury accidental or undesigned, i. 755. 
 
 servant defending master, and vice versa, i. 756. 
 
 son assault demesne, a good defence, i. 756. 
 
 excess of violence, i. 756, 758. 
 
 officers arresting, i. 756. 
 
 officers must use no unnecessary violence, i. 757. 
 
 magistrates hearing information, and convicting, i. 757. 
 
 coroners holding inquests, i. 757. 
 
 entering house with violence, i. 758. 
 
 difference where the trespass is without violence, i. 758. 
 
 indictment, i. 758. 
 
 one indictment for assaulting two persons, i. 759. 
 
 plea, i. 759. 
 
 practice, — recognizance to enter, and try traverse, i. 759. 
 verdict and punishment, i. 760. 
 
 summary conviction before two magistrates, under 9 Geo. 4, c. 31, i. 760. 
 certificate of, i. 760. 
 aggravated assaults, 
 
 attempts to murder, or to do great bodily harm, i. 761. 
 with intent to ravish, i. 692, 761. 
 
 to commit an unnatural crime, i. 700, 761. 
 upon officers executing process, i. 408, et seq. 
 in effecting a rescue, i. 291, 410, 433, et seq. 761. 
 in obstructing revenue officers, i. Ill, et seq. 761. 
 in hindering the exportation or circulation of corn, i. 121, et seq. 761. 
 laying violent hands in a church, or churchyard, i. 762. 
 striking, or drawing a weapon in church, or churchyard, i. 762. 
 malicious striking, or shedding blood in the King's palaces, i. 762. 
 drawing a weapon or striking in the King's courts of justice, i. 762. 
 
 nolle prosequi as to judgment of amputation, i. 763. 
 rescuing a person from courts without striking, i. 763. 
 assaults in inferior courts of justice, i. 763. 
 
 indictment, i. 764. 
 with intent to commit robbery (1 Vict. c. 87), i. 764. 
 construction of the former statutes, i. 765. 
 
 the assault must be made on the party intended to be robbed, 
 
 i. 765. 
 no actual demand of money, &c, necessary, i. 765, 766. 
 the intent to rob the material part, and must be properly al- 
 leged, i. 767. 
 an indictment for demanding with menaces, an express de- 
 mand not necessary, i. 7i>7. 
 it must be averred from whom the monei/ was demanded, 
 
 and who was threatened, i. 767. 
 demands with menaces, i. 768. 
 where money obtained, i. 768. 
 where party has no money with him, i. 768. 
 assaulting commanders of vessels, i. 569. 
 
 9 Geo. 4, c. 31, s. 23, arrresting a clergyman during divine service, i. 709. 
 s. 24, punishment for assaults on officers, &c, for their 
 
 endeavours to save shipwrecked vessels, i. 769. 
 s. 25, assaults with intent to commit felony ; assaults upon 
 peace-officers ; or to prevent arrest of offenders : or in 
 pursuance of a conspiracy to raise wages, i. 769. 
 s. 26, assault on seaman to prevent his working; assaults 
 with intent to obstruct the buying and selling of grain, 
 or its free passage, i. 770.
 
 INDEX. 997 
 
 ASSAULT — continued. 
 
 assaults on peace officers, &c, i. 770, et seq. 
 on collectors of taxes, i. 773. 
 revenue officers, i. 776. 
 officers of Milbank Penitentiary, i. 777. 
 Conviction of Assaults on Indictments for Felony, i. 778. 
 1 Vict. c. 85, s. 11, i. 778. 
 to what cases the statute extends, i. 779, et seq. 
 assault must be involved in the felony charged, i. 780. 
 not a separate and distinct assault, i. 780. 
 ASSAY MARK, 
 
 on gold and silver, forging, &c, ii. 447. 
 ASSEMBLY, 
 
 unlawful, i. 272, et seq. — See tit. Unlawful Assembly. 
 ATHEISTS, 
 
 incompetency of, ii. 970. 
 ATTAINDER, 
 
 of another crime, not pleadable, ii. 128. 
 ATTEMPT, 
 
 to commit crimes or misdemeanors, when indictable, i. 46, et seq. 
 endeavouring to provoke another to send a challenge, i. 297. 
 inciting persons to assemble in a riotous manner, i. 269. 
 to commit a rape, i. 692. 
 
 to commit murder, i. 719, et seq. — See tit. Maiming. 
 maliciously shooting at persons, i. 721, et seq. 
 attempts to murder by shooting, stabbing, or cutting, i. 721. 
 a person caught in the night in an attempt to commit a felony may be de- 
 tained without a warrant, i. 739. 
 ATTORNEY, 
 
 convicted of forgery, and afterwards practising, ii. 408. 
 
 of perjury, ii. 670. 
 communications between, and his client, ii. 902, et seq. — See tit. Privileged 
 Communications. 
 AUTREFOIS ACQUIT, 
 plea of, i. 829, et seq. 
 in burglary, i. 829. 
 will not be effective, unless the facts contained in the second indictment 
 
 would have sustained the first, i. 831. 
 and acquittal in one King's reign no bar to an indictment for an offence 
 
 charged in another King's reign, i. 832. 
 if prisoner could have been convicted by any evidence on one indict- 
 ment, an acquittal thereon a bar to any subsequent indictment, i. 832. 
 when means of death proved by the same evidence, i. 834. 
 acquittal on indictment against prisoner and others, i. 834. 
 an insolvent omitting goods from his schedule, i. 835. 
 acquittal must be of the same identical offence, i. 836. 
 an acquittal as principal no bar to an indictment as accessory before 
 
 the fact, i. 836. 
 former indictment must be good on the face of it, i. 836. 
 mode of pleading; form of plea, practice, &c, i. 837, note (t). 
 in forgery, ii. 388. 
 in perjury, i. 835, ii. 648. 
 
 B. 
 
 BAIL, 
 
 who may be admitted to, on a charge of felony, ii. 873.
 
 998 INDEX. 
 
 BAIL — continued. 
 
 duty of justices before admission to, ii. 873. 
 
 acknowledging in the name of another not privy, ii. 542. 
 
 personating, ii. 583. 
 BAILEES, 
 
 larceny by, ii. 56. 
 
 special property of, so as to be laid as owners in indictment, ii. 90. 
 BAKER, 
 
 indictment against, for mixing alum with his flour, i. 51, n. (w), 109. 
 by means of his servants, i. 109. 
 BANK OF ENGLAND, 
 
 embezzlement by officers and servants of, ii. 190. 
 
 making false entries in books of, ii. 417. 
 
 forging transfers, &c, of stock at, ii. 417, et seq. 
 
 forging securities of, ii. 324, et seq. — See tit. Forgery. 
 
 may use an impression by machinery instead of a signature by handwriting, 
 ii. 428. 
 
 prosecutions, election to proceed for the minor offence, ii. 432. 
 
 signing clerk of, not necessary witness to disprove his own signature, ii. 393. 
 
 forgery of office copy of report of accomptant-general, and certificate of 
 cashier, ii. 485. 
 BANK-NOTES, 
 
 country notes paid in London, larceny of, ii. 74, et seq. 
 embezzlement of, ii. 216. 
 
 how stated in indictment, ii. 111. 
 
 forgery, &c, of. — See tit. Forgery. 
 BANK POST BILL, 
 
 larceny of, ii. 81. 
 
 how stated in an indictment, ii. Ill, 379. 
 BANKER, 
 
 check on, larceny of, ii. 81. 
 
 when the drawer has no effect of authority, ii. 283, 298. 
 
 embezzlement by, ii. 192. 
 
 statute as to the fabrication of the printed form and papers of, ii. 532, et seq. 
 BANKRUPT, 
 
 embezzlements and frauds by, ii. 228, et seq. 
 
 not making a discovery of his estate and effects ; not delivering up his goods, 
 or removing or embezzling to the amount of 10?., ii. 229. 
 
 repealed stat. 5 Geo. 2, c. 30, ii. 229. 
 points upon this stat. ii. 229. 
 indictment, ii. 230, 231, 232. 
 evidence, ii. 233, 234. 
 
 perjury by, ii. 614. 
 
 proof of acainst, ii. 660. 
 BANNS, 
 
 marriage by, i. 206, et seq. 
 BARGE, 
 
 stealing from, ii. 150. 
 BARON AND FEME.— See tit. Feme Covert. 
 BARRATRY, 
 
 definition of, i. 1S4. 
 
 by whom it may be committed, i. 184. 
 
 indictment and proceedings, i. 184. 
 
 trial, i. 185. 
 
 punishment, i. 185. 
 
 witness incompetent after conviction for, ii. 974-
 
 INDEX. 999 
 
 BASTARD, 
 
 bringing a bastard child into a parish not indictable, i. 52, and see n. (p). 
 
 indictment for secreting a woman with child, i. 52, n. (o). 
 
 murder of, i. 485, 486. 
 
 concealment of birth by mother, i. 571, 572. 
 
 verdict finding, on trial for murder, and punishment, i. 571, et seq. 
 conspiracy to charge a man as father of, ii. 083. 
 BATHING, 
 
 when indictable, i. 326. 
 BATTERY, 
 
 definition of, i. 751. 
 
 every imprisonment does not include, i. 754. 
 
 if one indicted for assault and battery, and the assault be ill laid, it is suffi- 
 cient if defendant be found guilty of the battery, i. 760. 
 BAWDY HOUSE, 
 
 indictment of as a nuisance, i. 322, 323, 324. 
 proceedings in evidence, &c, i. 325, 326. 
 BEADLES, 
 
 power of, to arrest, i. 602, n. (z). 
 BEGGARS, 
 
 fraud by maiming, in order to beg, i. 720, ii. 279. 
 BIGAMY, 
 
 its proper signification, i. 186, n. (a). 
 
 what it consisted in according to the canonists, i. 186, n. (a), 
 originally of ecclesiastical cognizance only, i. 186. 
 a felony by the 9 Geo. 4, c. 31, s. 22, i. 186. 
 exception where second marriage contracted out of England by any other 
 than a British subject, i. 186. 
 exception where husband and wife shall be absent seven years, and not 
 
 known to have been living, i. 286. 
 exception as to persons divorced, i. 186. 
 
 persons whose former marriage had been declared void, i. 186. 
 construction of exceptions, i. 187, et seq. 
 
 1st exception — second marriage out of England by other than sub- 
 jects of this realm, i. 187. 
 2d exception — where husband or wife shall be absent seven years, 
 and not known to be living, i. 187. 
 reasonable diligence, what is, i. 187. 
 3d exception — divorce a vinculo matrimonii, i. 187. 
 
 in Scotland, i. 188. 
 4th exception — marriage declared void by sentence of any court of 
 competent jurisdiction, i. 188. 
 no exception where parties are under age, i. 188. 
 
 though a person be within some of the exceptions, the marriage is 
 null and void, i. 189. 
 proceedings on the statute, i. 189. 
 
 trial in the county where the party is apprehended or in custody, i. 199. 
 the indictment should aver the apprehension or custody where 
 the party is tried where the offence was not committed, i. 189. 
 this cause is only cumulative, i. 189. 
 what amounts to apprehension, i. 189. 
 the statute of James to be in force with respect to offences before 
 or on the 1st of June, 1828, i. 187. 
 of the first marriage, i. 189. 
 
 former marriage act, 26 Geo. 2, c. 33, i. 190, et seq. 
 
 3 Geo. 4, c. 75, i. 190, 191. 
 
 4 Geo. 4, c. 76, i. 192, et seq. 
 Vol. n. — 65
 
 1000 INDEX. 
 
 BIGAMY. — continued. 
 
 confined to England, i. 197. 
 6 & 7 Wm. 4, c. 85, i. 197, et seq. 
 banns ought to be published in true name, i. 206. 
 where entire variation, i. 207. 
 where partial variation, i. 207. 
 under 4 Geo. 4, c. 76, both parties must know that banns have 
 
 been published in a wrong name, i. 208. 
 assuming fictitious name on the second marriage, i. 208, 209. 
 a marriage by a minor by license without consent since 4 Geo. 4, 
 
 c. 76, fs valid, i. 210. 
 marriage under an assumed name, where good, i. 206, 207, 208. 
 the prosecutor must have shown the proper consent of parents, &c, 
 
 if necessary, when the marriage was by license, i. 209. 
 consent to the marriage in case of illegitimate children, i. 210. 
 marriages celebrated in churches and chapels erected since the 
 26 Geo. 2, i. 211. 
 26 Geo. 2, c. 33, i. 211. 
 44 Geo. 2, c. 77, i. 211. 
 6 Geo. 4, c. 92, i. 211, 212. 
 marriages in Scotland and place beyond seas, i. 212, 213. 
 marriage by a dissenting teacher in a private room in Ireland, i. 214. 
 marriage in a private house in Ireland, i. 214, 215. 
 between Catholic and Protestant in Ireland, i. 214, 215. 
 of minors in Ireland, (9 Geo. 2), i. 215. 
 4 Geo. 4, makes valid certain marriages solemnized in the chapel of 
 
 British Ambassadors, &c, or in the army abroad, i. 215. 
 marriage by Scotch ministers in India, (58 Geo. 3), i. 215. 
 marriages in Newfoundland, i. 216. 
 Quakers' marriages, i. 216. 
 French marriages, i. 216. 
 Jewish marriages, i. 216. 
 Jewish divorce, i. 216. 
 marriage of lunatics void, i. 216. 
 evidence, 217. 
 
 marriage by reputation not sufficient, i. 217. 
 the name of second wife must be proved as stated in the indict- 
 ment, i. 217. 
 copies of register's evidence, i. 217. 
 
 how far the acknowledgment of the defendant is evidence, i. 217. 
 the true wife cannot be a witness, i. 218. 
 presumption of death with reference to circumstances, i. 219. 
 letters evidence of the writer being alive, i. 219. 
 punishment of, i. 219. 
 BILL OF EXCHANGE, 
 
 forgery, &c, in respect of. — See tit. Forgery. 
 may be laid as a warrant or order for payment of money, ii. 515. 
 BISHOP'S COURT, 
 
 extortion in, i. 143. 
 BLASPHEMY, 
 
 still indictable at common law, i. 50, 220. 
 indictment for, 230, et seq. 
 
 punishment for second offence, i. 264. 
 BOAT, 
 
 stealing from, in port, river, canal, &c, ii. 150. 
 BOUNDARIES OF COUNTIES, 
 
 offences committed near, i. 549, 827, ii. 120.
 
 INDEX. 1001 
 
 BOXING MATCH, 
 
 death by, i. 638, 639. 
 BREAD, 
 
 putting unwholsome ingredients in, by baker, indictable, i. 109. 
 by servant with master's knowledge, master indictable, i. 109. 
 BRIBERY, 
 
 in what it may consist, i. 154. 
 definition of, i. 154. 
 attempts to bribe, i. 47, 154. 
 buying and selling offices, i. 147, et seq. 
 officers of customs and excise taking bribes, i. 155. 
 in election for members of Parliament, i. 155, 156, 157. 
 indemnification of discoverers, i. 156, 157, 159. 
 persons receiving bribes, i. 158. 
 tampering with jurors, i. 155. 
 at municipal elections, i. 159. 
 
 construction of the terms "corrupt," " offer to corrupt," and "procure to 
 vote, i. 160. 
 BRIDGES, 
 
 of public bridges, i. 385. 
 
 of private bridges, i. 385, 386. 
 
 whether a structure be a bridge is a matter of fact, i. 386. 
 
 counties only bound to repair bridges over streams flowing between defined 
 
 banks, i. 886. 
 dedication of a bridge to the public, i. 387. 
 a bridge may be indictable as a nuisance, i. 387, 396. 
 
 if built without public utility, or colourably, to charge the county, i. 387 
 of nuisances to by obstructions, i. 387. 
 
 house adjoining, 388. 
 of nuisances by not repairing them, i. 388, et seq. 
 liability of the county to repair, i. 388, et seq. 
 unless they show others liable, i. 388. 
 not removed by an act of parliament, i. 389. 
 immemorial corporation liable to repair, i. 389. 
 ancient presentments and verdicts, and grants of pontage, i. 390. 
 repairing of bridges by the 22 Hen. 8, (Statute of Bridges), i. 391. 
 and of three hundred feet of the highway next adjoining, i. 392. 
 of the nature of this liability, i. 392. 
 
 county of a city enlarged liable to repair bridges in the 
 district so added, i. 392. 
 counties liable to repair bridges built by private persons, i. 394, 395. 
 (43 Geo. 3), not to be charged unless the bridges be built in a substan- 
 tial manner, &c, i. 396. 
 
 cases upon the 43 Geo. 3, c. 59, i. 396, 397. 
 cases where counties have been holden not to be liable to repair bridges 
 
 built by companies or trustees, i. 397. 
 an infant bound to repair ratione tenurce, not privileged by nonage, i. 2 
 403. 
 no person compellable to build new bridges, i. 392. 
 power of justices to order bridges to be widened, &c, or rebuilt, i. 393. 
 composition as to repair between county and parish, where the latter is liable 
 
 to repair, under 3 Geo. 4, c. 126, i. 393. 
 pulling down old bridge before new one is passable, 393, 394. 
 one bridge within three hundred feet of another in another county, i. 399. 
 party liable to repair a bridge is prima facie liable to repair the approaches, 
 
 i. 398, 399. 
 counties not liable to repair bridges built after, 1830, i. 400.
 
 1002 INDEX. 
 
 BRIDGES— continued. 
 
 those who are liable to repair must do it effectually, i. 400. 
 county not bound to widen, i. 400. 
 
 as to the power to widen by order at sessions, i. 393. 
 procuring moneys for repairs of bridges, and of contributions, i. 400, 401 . 
 justices may contract for repairs, &c, i. 401. 
 
 information, presentment, or indictment, for not repairing, i. 402, 403. 
 proceedings of justices in sessions, i. 402. 
 indictment, 402, 403, 
 
 occupier of land liable to repair of a bridge is indictable, i. 403. 
 infant, where not liable ratione tenurce, i. 403. 
 pleadings, special plea, &c, i. 404, 405. 
 trial, county, &c, i. 405. 
 evidence, i. 406. 
 reputation inadmissible, i, 406. 
 
 inhabitants of counties, witnesses against private persons, i. 406, 
 the judgment, i. 406. 
 staying it, i. 406. 
 certiorari to remove presentments or indictments, i. 407. 
 riotously destroying bridges, &c, belonging to collieries, mines, &c, i 
 
 470. 
 destroying, ii. 580. 
 BROKER, 
 
 embezzling by, ii. 192. 
 BROKERAGE, 
 
 illegal, i. 458, 459. 
 BUILDINGS, ii. 548, ct seq.—See tit. Arson. 
 BULL-BAITING, 
 
 assemblies for, not riotous, i. 267. 
 BULLION, 
 
 frauds relating to, i. 67, et sea. 
 
 making gold and silver under the true alloy, i. 67. 
 
 fraudulently affixing marks, indictable at common law, i. 67. — See tit. 
 
 Assay. 
 frauds in the exportation of bullion, i. 68. 
 BURGLARY, 
 
 definition of the offence, i. 785. 
 
 breaking and entering, both necessary, i. 786, 787. 
 
 the breaking. — Of an actual breaking, i. 786, 787. 
 windows, i. 787. 
 chimney, i, 788. 
 
 where there are no inferior fastenings, i. 788. 
 trap doors, i. 788, 789. 
 
 breaking the wall built round the house for its safeguard, i. 789 
 breaking the outer fence of the curtilage, i. 790. 
 breaking an area gate, i. 790. 
 breaking the inner door of the house, i. 790. 
 breaking cupboard &c, fixed to the freehold, i. 791 
 breaking out of the house, i. 792. 
 constructive breaking, i. 792. 
 by threats, i. 792. 
 by fraud, i. 793. 
 by conspiracy, i. 794. 
 by servants, i. 794. 
 the entering, i. 794. 
 
 discharging a gun outside, i. 795.
 
 INDEX. 1003 
 
 BURGLARY — continued. 
 
 introduction of an instrument, in the act of breaking the house, i. 
 
 795, 796. 
 need not be on the same night as the breaking, i, 797. 
 breaking and entering by one, the act of the whole party engaged, i. 797. 
 entering by means of an infant, i. 797. 
 of the mansion house, i. 797, et seq. 
 
 what shall be considered, i. 797. — See tit. Dwelling-House. 
 
 not buildings within the curtilage, i. 798, 799. 
 part of a house severed from the rest, i. 799. 
 chambers, &c, let to a tenant, i. 800. 
 where there is no internal communication between a house and a room, 
 
 i. 801. 
 part considered as a distinct dwelling house, i. 802. 
 outhouse, i. 803. 
 of the inhabitancy, i. 803, et seq. 
 
 where the owner has not begun to inhabit, i. 803. 
 person put in a house to sleep at nights till owner gets a tenant, i. 804. 
 using the house for business, but not sleeping there, i. 805. 
 temporary absence, i. 805. 
 there must be an animus revertendi, i. 805. 
 house used as a warehouse, i. 806. 
 house inhabited by servant and his family, i. 806. 
 inhabitancy merely casual, i. 806. 
 
 case of executor putting servants into the house, i. 807. 
 of the ownership, i. 807, et seq. 
 
 where occupation is by persons part of the owner's family, i. 807. 
 
 by his servants, i. 808. 
 wife living apart from her husband, i. 807. 
 house of partners, 809. 
 
 of apartments in palaces, noblemen's houses, or houses of public com- 
 panies, i. 810, 811. 
 ownership in servants, i. 811, 813, 814, 815. 
 in agent of a trading company, i. 812. 
 
 where servants has part of the house, and the rest reserved, i. 815. 
 apartments occupied by guests, &c, in a house or inn, i. 816. 
 where there is a tenant at will, i. 817. 
 apartments let out to inmates, i. 817, 818. 
 
 where there is an actual severance, and no internal communication^ 
 
 i. 819. 
 several occupations of distinct parts of the same house by two 
 partners, i. 819. 
 owner of houses breaking open apartments of his lodgers, i. 820. 
 of the time when the offence must be committed, i. 820. 
 
 the breaking and entering need not be both in the same night, i. 821 
 party present at the breaking but not at the entering, i. 821. 
 of the intent to commit a felony, i. 822. 
 
 an intent to commit a trespass not sufficient, i. 822, 823. 
 the felony intended may be by common law or statute, i. 824. 
 the felony intended must be stated correctly, i. 824. 
 different intents may be laid in the same indictment, i. 825. 
 indictment, i. 825, et seq. 
 
 allegation that the fact was done in the night, i. 825. 
 allegation as to the mansion or dwelling-house, i. 826. 
 as to a church, i. 826. 
 of a parish, i. 826. 
 where trial in an adjoining county, i. 827.
 
 1004 INDEX. 
 
 BURGLARY — continued. 
 
 the words ''feloniously and burglariously" "break and enter" are 
 
 necessary, i. 827. 
 of laying the intent, i. 828. 
 
 different intents, i. 828. 
 of joining burglary, larceny, and felony, i. 828. 
 of the plea of autrefois acquit, i. 829, et seq. 
 
 a person indicted for burglary, and stealing the goods of A., and ac- 
 quitted, may be indicted for the same burglary and stealing the 
 goods of B., i. 829. 
 when the prisoner could have been convicted by any evidence on the 
 
 first trial, i. 832. 
 mode of pleading autrefoit acquit, i. 837, note (f). 
 when and where it may be pleaded, i. 837. 
 the verdict, i. 839. 
 
 not guilty of burglary, and guilty of stealing above 40s. in a dwelling- 
 house, i. 839, 840. 
 when several are indicted for burglary and larceny, the offence of some may 
 
 be burglary, of the others only larceny, i. 840. 
 punishment, i. 841. 
 
 of burglary with violence, i. 841, 842. 
 principals in second degree and accessories, i. 841. 
 trial of accessories, i. 842. 
 BURNING, ii. 548, et seq.— See tit. Arson. 
 BUYING AND SELLING, 
 
 public offices, i. 47. — See tit. Offices. 
 pretended titles, i. 180. 
 
 C. 
 CANAL, 
 
 stealing goods from a vessel of, ii. 150. 
 breaking down locks, on, &c, ii. 578. 
 CAPABILITY, 
 
 of committing crimes, i. 1. 
 
 general rule, i. 1. 
 
 want of defect of will, i. 1. 
 
 1. Infants, i. 2, 18. 
 
 committing misdemeanors, i, 1. 
 capital crimes, i. 2, 3, 4, 5. 
 murder, i. 3, 4, 5. 
 rape, i. 3. 
 new statutory felonies, i. 5, 6. 
 treasons, i. 5. 
 execution of, respited, &c, for their want of discretion, i. 6. 
 
 2. Non compotes, i. 6 — 15. 
 
 Idiots, i. 6. 
 
 what constitutes, i, 6, 7. 
 
 deaf and dumb, i. 6, and see n. (/). 
 from sickness, i. 7. 
 lunatics, i. 7. 
 persons drunk, i. 7. 
 
 by unskilfulness or contrivance of others, i. 7. 
 distinction between idiocy and lunacy, i. 8. 
 in what case defect of sense, \c, shall excuse, i. 8, et seq. 
 
 rule derived from cases, i. 13. 
 lunatic offenders, proceedings with respect to, i. 14.
 
 INDEX. 1005 
 
 CAPABILITY— continued. 
 
 disposal of persons acquitted on the ground of insanity, i. 15. 
 the jury may judge from the demeanor of the party, i. 16. 
 
 facts necessary to constitute the crime must be proved, in 
 
 order to bring the case within the act, i. 16. 
 grand jury are bound to find the bill, i. 16. 
 persons found insane on arraignment or trial, i. 15. 
 discharged for want of prosecution, i. 15. 
 becoming insane after conviction, i. 17. 
 
 3. Persons subject to power of others, i. 17. 
 
 feme covert, i. 18. 
 
 not answerable for her husband's breach of duty, i. 19. 
 
 indictment against husband and wife as such, i. 19, 24. 
 
 when responsible, i. 20, 22, 21. 
 
 coercion of husband, when presumed, i. 22. 
 
 not guilty of felony in stealing her husband's goods, i. 22. 
 
 when a stranger can commit larceny of husband's goods 
 
 by delivery of wife, i. 23. 
 not accessory for receiving her husband, i. 23. 
 evidence of being the wife, i. 24. 
 
 4. Persons committing crimes through ignorance, i. 24. 
 CARRIERS, 
 
 larceny by, ii. 59, et seq. 
 
 special property of, to support ownership in indictment, ii. 90. 
 false pretence by, to obtain carriage, ii. 297. 
 CASE RESERVED, 
 
 by judge at trial, for the opinion of twelve judges, ii. 725. 
 CATTLE, 
 
 stealing, ii. 134. 
 
 how described in an indictment, ii. 112. 
 slaughtering, ii. 140. 
 destroying or burying hides, ii. 141. 
 maiming and killing, ii. 569. 
 
 no indictment at common law for maiming a horse, ii. 569. 
 
 7 & 8 Geo. 4, c. 30, s. 16, ii. 569. 
 
 as to the meaning of the word "cattle" in the 9 Geo. 1, c. 22, ii. 570. 
 
 horses, pigs, asses, ii. 570. 
 
 as to the degree of maiming, ii. 571. 
 
 pouring acid into the eye of a mare and blinding her, ii. 571. 
 
 wounds inflicted by a dog, ii. 572. 
 
 burning a building with a cow in it, ii. 572. 
 
 malice to the owner not necessary, ii. 572. 
 
 indictment and evidence, ii. 573. 
 
 other acts of administering poison, admissible to show the intent, ii. 573. 
 
 principals and accessories, ii. 573. 
 CERTIORARI, 
 
 to remove indictments for nuisances to highways, i. 371. 
 
 costs after removal by defendants, i. 376. 
 for nuisances to bridges, i. 407. 
 CHALLENGING, 
 to fight, i. 297. 
 
 provocation no excuse, i. 297. 
 
 of endeavoring to provoke another to send a challenge, i. 297. 
 of the intent, i. 297. 
 
 of words of provocation, i. 297. 
 
 in what county the venue may be laid, i. 298.
 
 1006 INDEX. 
 
 CHALLENGING— continued. 
 
 criminal information for, i. 298. 
 punishment for, i. 298. 
 CHAMPERTY, 
 
 description of, i. 178. 
 by statutes, i. 178, 179. 
 punishment, i. 181. 
 place of trial, &c. i. 181. 
 CHANCE MEDLEY, 
 
 killing by, i. 660. — See tit. Homicide. 
 CHANCERY, 
 
 forgery of documents relating to suiters in, ii. 486. 
 CHAPELS, 
 
 pulling down, by persons riotously assembled, i. 269. 
 sacrilege in, i. 843. 
 CHARACTER, 
 of prosecutrix, 
 
 when, and how it may be impeached, ii. 690. 
 false characters of servants, ii. 316. 
 of prosecutor, 
 
 when and how it may be impeached, ii. 784. 
 of prisoner, ii. 784. 
 
 evidence of good character must be applicable to the particular charge. 
 
 ii. 784. 
 must not refer to particular acts, ii. 785. 
 mode of leaving it to the jury, ii. 785. 
 prosecutor cannot show prisoner's bad character, ii. 786. 
 except on indictment for subserpient felony, ii. 785. 
 of witness, 
 
 proof of, to impeach his credit, ii. 939. — See tit. "Witness. 
 CHEATS, 
 
 attempts to defraud, when not indictable, i. 51. 
 
 frauds relating to bullion, i. 67. 
 
 frauds by public officers, i. 141. 
 
 undue abatement of the price of native commodities, i. 173. 
 
 in order to constitute, there must be a prejudice received, ii. 274. 
 
 if on a trial for cheat, it appears in evidence to amount to a larceny, it will 
 
 still be puuishable as a misdemeanor, ii. 274. 
 cheats and frauds punishable at common law, ii. 275, ct seq. 
 cheats against public justice, ii. 275. 
 frauds affecting the crown and public, ii. 275. 
 selling unwholsome provisions, ii. 275. 
 
 supplying prisoners of war with, ii. 276. 
 baker selling bread containing alum, ii. 276. 
 mala praxis of a physician, ii. 277. 
 
 rendering false accounts, and other frauds by persons in official situa- 
 tions, ii. 278. 
 false news, ii. 278. 
 
 apprentice enlisting and taking bounty, ii. 278. 
 falsely pretending a power to discharge soldiers, ii. 279. 
 fraud by maiming in order to beg, ii. 279. 
 cheats by false weights and measures, ii. 279. 
 cheats and frauds in private transactions not indictable, ii. 280. 
 unless they amount to a conspiracy or forgery, ii. 2S0. 
 cases of cheats amounting to a conspiracy, ii. 281. 
 cheat by means of a forged instrument, ii. 281. 
 cases of forgeries prosecuted as cheats at common law, ii. 282
 
 INDEX. 1007 
 
 CHEATS — continued. 
 
 cheats by a bare lie not indictable, ii. 282. 
 
 though an apparent token be used, ii. 283. 
 
 as check on banker, without effects or authority, ii. 283, 
 284. 
 instances of unfair dealings not indictable, ii. 284, et seq. 
 a cheat or fraud, punishable at common law, must be such against 
 
 which common prudence would not have guarded, ii. 286. 
 indictment, ii. 2, 286. 
 punishment, ii. 286. 
 cheats and frauds by means of false pretences, ii. 286, et seq. — See tit. False 
 
 Pretences. 
 of cheats and frauds punishable by statutes, ii. 314, et seq. 
 fraudulent conveyances, by the 13 Eliz. c. 5, ii. 314. 
 
 by the 27 Eliz, c. 4, ii. 315. 
 gaming by the 9 Anne, c. 14, ii. 315. 
 conjuration, fortune-telling, &c, 9 Geo. 2, c. 5, ii. 316. 
 giving false characters to servants, ii. 316. 
 fraudulent accounts by officers of Milbank Penitentiary, 56 Geo. 3, c. 
 
 62, ii. 316. 
 schedule of insolvent debtor, 1 Geo. 4, c. 119, ii. 317. 
 mutiny acts, ii. 317. 
 
 cheats and frauds in particular trades, ii. 317. 
 CHECK, 
 
 on banker, without effects or authority, not indictable at common law, ii. 
 283. 
 
 but it is as a false pretence under the statute, ii. 289, et seq. 
 CHILD. — See tit. Infant. 
 
 woman concealing the birth of, i. 571. 
 carnal knowledge of, i. 693, et seq. 
 child-stealing, i. 718. 
 CHOSES IN ACTION, 
 
 stealing, ii. 73. 
 CHRISTIAN RELIGION, 
 libels upon, i. 220. 
 part of the law of the land, i. 231. 
 
 court will not meddle with differences of opinion, i. 231. 
 dispassionate discussions allowable, i. 232. 
 
 not allowable to attack the characters of individuals in such discussions, i. 
 232. 
 CHURCH.— See tit. Sacrilege. 
 riotously pulling down, i. 269. 
 affrays in, i. 292, 299. 
 breaking windows of, i. 301. 
 arrest of clergyman in, i. 302. 
 burglary in, how to be stated in indictment, i. 826. 
 goods belonging, ownership of, how laid, i. 844. 
 burning, ii. 552. — See tit. Arson. 
 CHURCH-YARD, 
 
 affrays in, i. 292, 299. 
 5 & 6 Edw. 6, c. 4, i. 299. 
 striking in, &c, i. 299. 
 arrest of clergyman in, i. 302. 
 CHURCH-WARDEN, 
 
 refusing to call vestries, &c, 139. 
 
 obtaining a silver cup or the like, colore officii, i. 143.
 
 1008 INDEX. 
 
 CLERGYMAN, 
 
 spiritual person taking a farm liable to the penalty of the statute Hen. 8, 
 
 but not indictable, i. 51. 
 arrest of, in church or church-yard, i. 302, 769. 
 whilst performing service, &c. ; i. 769. 
 CLERK, 
 
 larceny by, of his master's property at common law, ii. 153, et seq. — See tit. 
 Servants. 
 instance of what did not amount to, ii. 164. 
 embezzlement by, ii. 167. — See tit. Embezzlement. 
 CLOTH, 
 
 in progress of manufacture, larceny of, ii. 224. 
 destroying, &c, ii. 585. 
 COAL-MINE, 
 
 setting fire to, ii. 553. 
 COCK-PIT, 
 
 a nuisance, when, i. 324. 
 COCK-THROWING, 
 
 at Shrove-tide, illegal, i. 639. 
 death by, i, 639. 
 COERCION, 
 
 excuse from, for committing a crime, i. 17, et seq. — See tit. Capability. 
 COFFINS, 
 
 ownership of, in whom laid, ii. 98. 
 COIN, 
 
 having counterfeit coin in possession with intent to utter it, no offence at 
 common law, i. 48. 
 but it is good evidence of having procured it, which is an offence, i. 48. 
 having coining instruments in possession with intent to use them, i. 48. 
 counterfeiting, i. 54, et seq. 
 
 what is the King's money, i. 54. 
 necessary evidence of it, i. 55. 
 proportions in coining it, i. 54. 
 
 (2 Win. 4, c. 34), counterfeiting gold and silver coin, i. 55. 
 offence complete, though the coin be not in a fit state to be 
 
 uttered, i. 55. 
 colouring counterfeit coin or pieces of metal to make them 
 
 pass as gold or silver coin, i. bo. 
 altering genuine coin to make it pass for higher coin, i. 56. 
 counterfeiting foreign gold, silver, or copper coin, i. 56. 
 foreign coin not current here, i. 56. 
 
 having in possession, i. 57, note (J). 
 copper money, i. 57. 
 
 of this realm, i. 57. 
 the offence may be committed by officers of the mint, i. 57. 
 
 what shall constitute the offence in them, i. 57. 
 what shall be a sufficient counterfeiting, i. 58. 
 
 round blanks like shilliugs worn smooth by circulation, i. 58. 
 where the false coin is so imperfect as not to be passable, the of- 
 fence of counterfeiting is now complete, i. 58. 
 what was a colouring within 8 & !• Win. 3, i. 59. 
 counterfeiting complete without uttering, i. 60. 
 of principals and accessories in, i. 60. 
 
 what sufficient proof of the coin being counterfeit, i. 60. 
 what not sufficient evidence of counselling, &c., i. 60. 
 offences at sea, i. 61. 
 where the court may order hard labour, i. 61.
 
 INDEX. 1009 
 
 COIN — continued. 
 
 coining-tools and base money how to be secured and disposed of, i. G2. 
 impairing, i. 63. 
 
 impairing, diminishing, or lightening, i. 63. 
 having clippings, &c, in possession, i. 63. 
 melting coin, i. 63. 
 importing counterfeit or light money, i. 64. 
 foreign coin current here, i. 64. 
 
 not current here, i. 65. 
 light silver coin, i. 65. 
 exporting counterfeit money, i. 66. 
 
 to the colonies, i. 66. 
 receiving, uttering, or tendering counterfeit coin, i. 75. 
 
 formerly, in some cases, a cheat and misdemeanor, i. 75. 
 statute respecting, i. 76. 
 uttering counterfeit gold or silver coin, i. 76. 
 uttering, having possession of other base coin, i. 76. 
 a second uttering, i. 76. 
 uttering counterfeit copper coin, i. 76. 
 having three or more pieces in possession, i. 77. 
 second offence, i. 77. 
 
 evidence of previous conviction, i. 77. 
 indictments not to be traversed, i. 77. 
 what a putting off of counterfeit money within the former acts, 
 
 i. 78. 
 names of persons to whom uttered must be stated, i. 78. 
 giving base coin in charity, i. 78. 
 passing money by ringing the changes, i. 78. 
 
 indictment — two utterings on the same day, i. 79. 
 indictment for second offence, i. 80. 
 
 for felony under former act must have set out the former con- 
 victions, with a prout patet, i. 80. 
 on two counts for uttering, two year's imprisonment cannot be 
 
 given, i. 80. 
 trial and evidence, i. 80. 
 
 of a guilty knowledge, i. 80. 
 associate not co-operating, i. 81. 
 whether associates must be so near as to help to pass the 
 
 money, i. 82. 
 where possession of one defendant is the possession of another, 
 
 i. 83. 
 form of indictment, i. 83. 
 
 allegation of knowledge, i. 83. 
 uttering foreign counterfeit coin, 
 37 Geo. 3, c. 126, i. 84. 
 
 evidence of former conviction, i. 85. 
 s. 6, proceedings against persons having in custody more than a certain 
 quantity, i. 85. 
 buying, selling, or paying counterfeit coin at a lower rate than its denomi- 
 nation, i. 86. 
 the money must be vented at a lower rate, i. 86. 
 name of the persons to whom it is put off should be stated, i. 86. 
 the sum for which it is agreed to be put off should be correctly stated, i. 86. 
 COINING INSTRUMENTS, 
 
 making, mending, or having in possession, i. 69. 
 conveying tools or moneys out of the mint, i. 69. 
 a press or mould within the former statute, i. 70. 
 what was a puncheon within it, i. 71.
 
 1010 INDEX. 
 
 COINING INSTRUMENTS— continued. _ 
 
 for making foreign gold coin not within the statute, i. 72. 
 evidence, i. 72. 
 
 proof of a die made either of iron or steel, i. 72. 
 it is not necessary to prove money made with them, i. 72. 
 having in possession with intent to use them, a misdemeanor at common 
 law, i. 73. 
 but see, i. 48. 
 they need not bear an exact resemblance to the coin, i. 73. 
 where necessary to prove that the instrument had a perfect impression of a 
 
 coin upon it, i. 73. 
 seizing to produce in evidence, i. 62. 
 COLLECTOR OF TAXES, 
 
 assaulting, i. 773, 774. 
 COMBINATION, 
 
 societies taking unlawful oaths, &c, to be deemed unlawful combinations, i. 
 277 278 279. 
 COMMENCEMENT OF PROSECUTION, 
 
 what and when, i. 471. 
 COMMISSIONS, 
 
 in the army, selling for more than regulation price, a misdemeanor, i. 152. 
 COMPENSATION, 
 
 to those who have been active in the apprehension of offenders, ii. 954. 
 COMPOUNDING OFFENCES, 
 compounding felony, i. 131. 
 
 taking reward for helping to things stolen, i. 132. 
 advertising a reward for the return of stolen goods, i. 132. 
 compounding misdemeanors, i. 132. 
 
 after judgment by leave of the court, i. 132. 
 compounding informations on penal statutes, i. 132. 
 18 Eliz. c. 5, i. 133. 
 
 statute applies, though no offence has been committed, i. 134. 
 so though no action or information pending, i. 133. 
 contracts, &c, in consideration of dropping a prosecution, &c., void, i. 132. 
 CONCEALMENT, 
 
 of the birth of children, i. 486, 571. 
 verdict finding, 571, et sea. 
 CONFEDERACY, 
 
 evidence of joint or several acts to prove, i. 27, 28, 702. 
 crimes done in pursuance of, in prosecution of unlawful purposes, i. 28, 29. 
 unlawful, what to be deemed, i. 277, 278, 281. 
 CONFESSION, 
 
 sufficient for conviction without proof, aliunde, ii. 824, 825. 
 must be free and voluntary, ii. 826. 
 promises and inducements, ii. 827, et seq. 
 confession when prisoner is drunk, ii. 827. 
 inducement to implicate another prisoner, ii. 829. 
 confessions made with a view to be admitted as a witness, ii. 830. 
 in consequence of pardon offered by secretary of state, ii. 830. 
 in consequence of another prisoner being admitted Queen's evidence, ii. 831. 
 threats and menaces, ii. 831, et seq. 
 where the words are ambiguous, ii. 832. 
 under false imprisonment, ii. 832. 
 words not amounting to a menace, ii. 832. 
 confessions after one unduly obtained, ii. 832. 
 
 after promises of favour, there must be explicit warning and caution, ii. 833, 
 834.
 
 INDEX. 1011 
 
 CONFESSION— continued. 
 
 where an interval of time elapsed between the inducement and the confes- 
 sion, ii. 835, 838. 
 inducement by person in superior authority, ii. 835. 
 after the effect of inducements has been done away, ii. 836, 837, 838. 
 as to the persons whose inducements will exclude confession, ii. 839. 
 inducements in the presence of persons in authority, ii. 840. 
 by the wife of the master, ii. 841. 
 by the prosecutor's relations and neighbours, ii. 841. 
 by persons not in authority, ii. 843. 
 
 to a person not in authority, after inducement by that person, ii. 844. 
 instances of admissible confessions, ii. 845, et seq. 
 an inducement to one crime will not exclude confession as to another, ii. 
 
 845. 
 unless they form parts of the same transaction, ii. 845. 
 the proper question is, whether the inducement be calculated to make the 
 
 prisoner give a false statement, ii. 845. 
 advising the prisoner to be sure to tell the truth, ii. 846. 
 oath not to reveal a statement, ii. 846. 
 proposals to confess coming from the prisoner, ii. 847. 
 confession obtained from a boy under duress imprisonment, ii. 847. 
 there must be the hope of some temporal benefit, ii. 848. 
 confession procured by persuasion of a clergyman, ii. 848. 
 boy told to kneel down, and tell the truth in the presence of the Almighty, 
 
 ii. 852. 
 confessions elicited by questions of magistrates, ii. 853. 
 
 of other persons, ii. 854. 
 examinations of prisoners purporting to be on oath, inadmissible, ii. 855. 
 and evidence inadmissible to show that they were not on oath, ii. 855. 
 and evidence inadmissible of what the prisoner said, ii. 855. 
 examination of prisoner on oath, when not admissible, ii. 856, et seq. 
 when before any charge made against any one, ii. 856. 
 as a witness against another prisoner, ii. 856. 
 examined on oath by mistake, ii. 857. 
 depositions of a prisoner against another on charge of forgery, ii. 858. 
 
 on a charge of burglary, ii. 858. 
 examination on oath before commissioner of bankrupt, ii. 858. 
 answers and depositions in Chancery, ii. 859. 
 cases as to depositions before coroners, ii. 859, et seq. 
 discoveries in consequence of confessions unduly obtained, ii. 861, et seq. 
 acte done in consequence of a confession, ii. 863. 
 declarations accompanying such acts, ii. 863. 
 not admissable except when confirmed, ii. 863. 
 evidence against the party confessing only, ii. 864. 
 
 though made before a magistrate in the hearing of an accomplice, 
 
 who did not deny it, ii. 864. 
 secus, if referred to by the prisoner, ii. 865. 
 confession in the hearing of a prisoner not before a magistrate, ii. 866. 
 statement made by prisoner's wife in his presence, ii. 866. 
 examinations not in the words of the prisoner, inadmissible, ii. 866, 867. 
 all names in a confession must be mentioned, ii. 867, 868. 
 whole statement of the prisoner to be left to jury, ii. 868. 
 the jury are to credit so much of the prisoner's statement as they think 
 
 fit, ii. 868. 
 as to the mode of introducing confessions, ii. 869. 
 calling constables in whose custody the prisoner had previously been, ii. 
 869, 870, 871.
 
 1012 INDEX. 
 
 CONFESSION— continued. 
 
 of the effect of confessions, ii. 871. 
 
 acts and declarations of co-conspirators, ii. 871. 
 
 of agent of defendant, ii. 871. 
 of agent of prosecutor, ii. 872. 
 before a magistrate. — See tit. Examination. 
 CONGREGATION, 
 
 disturbing, i. 300, et seq. 
 CONEYS, 
 
 larceny of, ii. 85. 
 
 taking or killing in a warren, ii. 115. 
 CONJURATION, 
 
 cheats by pretending to practise, ii. 316. 
 CONSENT, 
 
 negative proof, ii. 737. 
 CONSPIRACY, 
 
 prosecution foi>, not maintainable against a husband and wife, i. 20. 
 
 for an unlawful and seditious assembly, i. 277, 278. 
 
 societies taking unlawful oaths, &c, to be deemed unlawful combinations, i. 
 
 277, 278, 281. 
 descriptions of, ii. 674. 
 
 against the public justice of the kingdom by agreeing to make false 
 charges and accusations, ii. 675. 
 the false charge need not be prosecuted, ii. 676. 
 the confederacy will be equally criminal though the proceedings in- 
 tended to be instituted were defective, ii. 676. 
 though the parties may say they intended only to give testimony 
 in a legal course of justice, ii. 676. 
 the confederacy must be false and malicious, ii. 777. 
 to pervert the course of justice by producing a false certificate of a highway 
 
 being in repair, ii. 677, et seq. 
 to obtain security from a defendant, ii. 679. 
 to raise the price of the public funds by false rumours, ii. 679. 
 to impoverish the farmers of excise, ii. 680. 
 to obtain money by procuring an appointment of a person to an office in the 
 
 customs, ii. 680. 
 to commit riots, ii. 681. 
 to excite discontent, ii. 681. 
 
 to marry paupers in order to charge a parish, ii. 681. 
 to charge a man with being the father of a bastard child, ii. 683. 
 to defraud, ii. 683, et seq. 
 
 to make a fraudulent acceptance of a bill of exchange, ii. 683. 
 to defraud tradesmen, ii. 684. 
 by brokers attending auctions, ii. 684. 
 to fabricate shares in a joint-stock company, ii. 684. 
 to barter unwholsome wine, ii. 684. 
 to solemnize a marriage, ii. 685. 
 to seduce a young woman, ii. 686. 
 to carry away and marry a female, ii. 686. 
 to impoverish a man in his trade, ii. 687. 
 
 an indictment will not lie for conspiring to commit a civil trespass, ii. 687 
 nor for conspiring to cheat and defraud a man by selling him an un- 
 sound horse, ii. 687. 
 nor for conspiring to deprive a. man of the office of secretary to an 
 illegal trading company, ii. 688. 
 combinations among journeymen workmen, ii. 688. 
 provisions of 6 Geo. 4, c. 129, ii. 0sS ; et seq,
 
 INDEX. 1013 
 
 CONSPIRACY— continued. 
 
 prosecution and proceedings in, ii. 690. 
 statements in the indictment, ii. 691. 
 
 not necessary to state the means by which the conspiracy was effected 
 where the thing intended is illegal. JSccus, where it is legal, ii. 692. 
 indictment for conspiring to defraud of divers goods, ii. 692. 
 
 purchasers in the funds, ii. 693. 
 to obtain goods without making payment for them, ii. 693. 
 by a fraudulent deed, ii. 693. 
 to defraud of the fruits of a verdict, ii. 693. 
 not stating whose the goods were, ii. 694. 
 technical averment of conspiracy, ii. 695. 
 place where the offence may be tried, ii. 696. 
 jurisdiction of quarter sessions, ii. 696. 
 evidence, ii. 696, et seq. 
 
 wife of one defendant no witness for the others, ii. 696. 
 
 how far the acts and words of one conspirator evidence against the 
 
 others, ii. 697, et seq. 
 proof of the conspiracy, ii. 698. 
 
 general evidence of its nature, ii. 699. 
 cumulative instances of fraud allowed to be given in evidence, ii. 700. 
 where not, ii. 701. 
 
 the court will take judicial notice of a war, ii. 701. 
 where check alleged to be forged, need not be produced, ii. 701. 
 record of acquittal of one defendant evidence for another, ii. 702. 
 proof of bankruptcy, ii. 702. 
 misdescription of a statute, ii. 703. 
 particulars of the charges, ii. 703. 
 
 acquittal of defendants intended to be called as witnesses, ii. 703. 
 election, ii. 703. 
 
 change of venue, ii. 704. 
 
 judgment may be passed if jury convict of as much of a count as 
 
 contains an indictable offence, ii. 704. 
 averment as to one of the conspirators not proved, ii. 702. 
 cross-examination where one defendant only calls witnesses, ii. 704. 
 punishment, ii. 704. 
 
 incompetency as a witness, ii. 705. 
 new trial, or arrest of judgment, ii. 705. 
 
 all the defendants must be in court upon motion for, ii. 705. 
 cheats and frauds amounting to, ii. 280. 
 CONSTABLE, 
 
 neglecting duties of office, indictable, i. 145. 
 
 fineable at petty sessions, i. 140. 
 refusal to execute the office of, &c, indictable, i. 145. 
 corporation has no power of common right to choose, i. 146. 
 who liable to serve the office, i. 145. 
 indictment for refusing to serve, i. 145. 
 refusal to be sworn, evidence of refusal to serve, i. 145.' 
 suppression of affray by, when in his presence, i. 294, 295. 
 no right to apprehend where affray is not committed in his presence, i. 295. 
 unless by warrant from a magistrate, i. 295. 
 fines upon, for neglect of duty or disobedience, &c, i. 140, 415. 
 assaulting constables, i. 769. 
 
 special constables, i. 770. 
 rural police, i. 770. 
 evidence of acting as constables, sufficient, i. 771. 
 constable's power in preserving the peace, i. 284, 771.
 
 1014 INDEX. 
 
 CONSTABLE— continued. 
 
 authority to apprehend in felonies, i. 593, 771. 
 
 in misdemeanors, i. 598, 771. 
 in public houses, i. 602, 772. 
 must act within his proper district, i. 772. 
 executing warrants, i. 772. 
 
 execution of warrants by, out of their district, i. 615. 
 when guilty of excess, i. 773. 
 CONTAGION, 
 
 of spreading contagious disorders, i. 107, et seq. 
 the small-pox, i. 108. 
 CONTRA FORMAM STATUTI, 
 where necessary, i. 665. 
 where not, i. 665. 
 
 where conclusion of statuti for statutorum. 
 where vice versa is added, ii. 114. 
 entire omission still fatal, ii. 114. 
 CONVICTIONS, 
 
 summary proceedings for common assaults, i. 760. 
 COPPER, 
 
 coin. — See tit. Coin. 
 CORN, 
 
 hindering the exportation of, or preventing its circulation, i. 121. 
 11 Geo. 2. c. 22, i. 121. 
 
 partially repealed, i. 121. 
 36 Geo. 3, c. 9, i. 122. 
 
 persons using violence to deter others, &c, i. 123. 
 9 Geo. 4, c. 31, s. 26, summary proceedings before two magistrates, i. 
 123. 
 stacks of, setting fire to, ii. 554. 
 CORONER, 
 
 extortion or other breach of duty by, i. 135, 138, 143. 
 too speedy interment of corpse without sending for, i. 468. 
 
 what ought to be done on the happening of a violent death, i. 468. 
 depositions before, 
 
 admissible in evidence, though taken in prisoner's absence, ii. 892. 
 7 Geo. 4, c. 64, s. 4, enactments as to, ii. 892, n. (6). 
 hie duty upon an inquisition, ii. 892. 
 proof of deposition before, ii. 894. 
 CORPORATION, 
 
 chief officers of, absenting themselves from, or hindering elections, &c, i. 140. 
 has no power of common right to choose a constable, i. 146. 
 ownership of, how to be laid, ii. 99, et seq. 
 in forgery, ii. 385. 
 CORPSES, i. 464.— See tit. Dead Bodies. 
 COTTON MILL, 
 
 burning, ii. 563. 
 COUNSEL, 
 
 communications between, and his client, when privileged, ii. 902, et seq. — 
 See tit. Privileged Communications. 
 COUNTERFEIT, 
 
 money. — See tit. Coin. 
 
 possession of, with intent to utter, not indictable, i. 48. 
 
 sccus, procuring it with such intent, i. 48. 
 bullion, 67, et seq. — See tit. Bullion. 
 COUNTING-HOUSE, 
 
 breaking &c, and stealing in, i. 865.
 
 INDEX. 1015 
 
 COUNTY, 
 
 offences committed on the boundaries of, or begun in one and completed in 
 
 another, i. 549, 827, ii. 120. 
 property of, ownership, how to be laid, ii. 102. 
 offence committed in the county of a town, ii. 391. 
 COURT, 
 
 striking or drawing weapon in the King's Court of Justice, i. 7G2, 763. 
 
 inferior Courts, i. 763. 
 rescuing without striking in, i. 763. 
 COURT-MARTIAL, 
 
 who, and what offences subject to, i. 93. 
 president of, his declarations not libellous, i. 225. 
 escape of offenders sentenced by, i. 437. 
 return from transportation under sentence of, i. 450. 
 perjury upon, ii. 611. 
 COW, 
 
 stealing, ii. 134. 
 
 indictment for, not supported by proof of stealing a heifer, ii. 138. 
 principals in second degree and accessories, ii. 134, 135. 
 CRIMES, 
 
 capability of committing. — See tit. Capability. 
 CRIMINAL INFORMATION, 
 
 against justices, &c, i. 135, 136. 
 CURTILAGE, 
 
 outer fence of, breaking, whether burglarious, i. 790. 
 
 buildings within, i. 790, 799. 
 housebreaking, not extended to buildings within, except communicating, &c. 
 i. 848. 
 same as to stealing in a dwelling-house, i. 850. 
 buildings within, 
 
 breaking, &c, and stealing in, i. 860. 
 7 & 8 Geo. 4, c. 29, s. 14, i. 860. 
 
 s. 61, principals in second degree and accessories, i. 860. 
 what are to be deemed such, i. 860. 
 
 cases in which particular buildings were held parcel of dwelling- 
 house, 861, et seq. 
 outer fence of, not opening into a building, i. 863. 
 CUSTOM-HOUSE OFFICER, 
 
 indictment for assaulting in execution of his office, cpuashed, i. 51. 
 assault on, indictable at common law, i. 111. 
 
 count for common assault on, not triable in a wrong county, i. 120. 
 CUSTOMS,— See tit. Revenue Laws. 
 
 evading or resisting the duties of, i. Ill, et seq. 
 forgery in respect of. — See tit. Forgery. 
 forged debentures, &c. ii. 463. 
 perjury in respect of, ii. 608. 
 
 D. 
 DAMS, 
 
 of fish ponds, &c, destroying, ii. 579. 
 DEAD BODIES, 
 
 taken up, even for the purpose of dissection, indictable, i. S64. 
 
 though the particular place from whence taken be neither statcil nov 
 proved, i. 464. 
 refusal or neglect to bury, a misdemeanor, i. 465. 
 (48 Geo. 3,) interment of, when cast on shore, i. 467 
 selling dead body of convict, i. 464. 
 Vol. ii. — 66
 
 1016 INDEX. 
 
 DEAD BODIES— continued.^ 
 
 2 & 3 Win. 4, c. 75, providing for schools of anatomy, i. 465, et seq. 
 
 the preventing reading the burial service indictable, i. 468. 
 
 the preventing from being interred, indictable, i. 468. 
 
 too speedy interment of, after a violent death, i. 468. 
 DEAF AND DUMB, 
 
 when to be considered an idiot, i. 7, and n. (/). 
 
 arraignment, &c, of, i. 7. 
 
 when competent as a witness, ii. 969. 
 DEATH, 
 
 judgment of, where it may be recorded under 4 Geo. 4, c. 48. Appendix 
 of Statutes. 
 DEBATING SOCIETIES, 
 
 when illegal, i. 283, 284. 
 DEDICATION, 
 
 of a road to the public, i. 324, et seq. 
 
 of a bridge, i. 387. 
 DEER, 
 
 larceny of, ii. 82. 
 
 stealing and destroying, ii. 142. 
 
 stealing, &c, in enclosed ground, felony, ii. 142. 
 in unenclosed forest, chase, &c, punishable summarily, ii. 142. 
 after another offence as to deer, felony, ii. 142. 
 
 persons found in possession of venison, ii. 143. 
 
 setting engines for taking, ii. 143. 
 
 deer-keepers may seize guns, &c, ii. 143. 
 resistance to them, ii. 144. 
 
 apprehension of offenders, ii. 144. 
 
 principals in second decree, and accessories in offences respecting, ii. 144 
 
 DEFECT, 
 
 of will to commit crime, f . -, c ... ri-«-. „ 
 
 c , . ,. ' > i. 1. et seq. — bee tit. Capability. 
 
 ot understanding, j * 
 
 DEPOSITION, 
 
 before magistrates, ii. 888. 
 7 Geo. 4, c. 64, ii. 888. 
 when admissible in evidence, ii. 889, 890. 
 must be duly taken, ii. 890. 
 
 and in the presence of prisoner, ii. 890, 891. 
 
 different rules as to depositions before a coroner, ii. 892, 
 893. 
 upon trial of a different offence, ii. 894. 
 need not be signed by deponent, ii. 894. 
 must be by magistrates, ii. 894. 
 parol evidence of, or adding to, or varying it, ii. 895. 
 in cases of treason, ii. 896. 
 may be used to contradict witness, ii. 896, 897. 
 how proved, ii. 897, 898. 
 how they ought to be taken, ii. 898, 899. 
 all depositions ought to be returned to the Court, ii. 899. 
 of the expediency of taking and returning the depositions of the prison- 
 er's witnesses, ii. 900. 
 by consent, ii. 901. 
 in India, ii. 901. 
 
 in cases of offences committed by public servants abroad, ii. 901. 
 DESERTION, 
 
 by soldiers or sailors, cousequences of to the deserter, i. 98 
 seducing soldiers, &c., to i. 92, ct seq.
 
 INDEX. 1017 
 
 DETAINER, 
 
 forcible, i. 304, et seq. — See tit. Forcible Entry. 
 DISCONTENT, 
 
 conspiracy to excite, ii. 681. 
 DISOBEDIENCE, 
 
 to orders of magistrates, &c, i. 413, et seq. — See tit. Orders. 
 DISORDERLY HOUSES, 
 
 inns, bawdy-houses, gaming-houses, &c, common nuisances, i. 322, et seq. 
 keeping, i. 322. 
 
 manner of proceeding against the keepers of, i. 325. 
 indictment, evidence, i. 326. 
 DISSENTERS, 
 
 disturbance of worship of, 302, 303. 
 DISTURBANCE, 
 
 of public worship, i. 299, et seq. 
 
 statutes concerning, i. 299. 
 
 5 & 6 Edw. 6, i. 299. 
 
 brawls in church or churchyard, i. 299. 
 construction of statute, i. 299. 
 1 Mar. Sess. 2, c. 3, i. 300. 
 
 disturbances during time of divine service, i. 300. 
 
 the party must maliciously, wilfully, or of purpose molest the 
 
 minister, i. 301. 
 persons disturbing congregation may be apprehended, i. 300. 
 rescuing offenders, i. 301. 
 1 W. & M. c. 18, i. 302. 
 
 disturbing dissenting congregations, i. 302,303. 
 
 points on this statute, i. 302. 
 disturbance must be wilful and of purpose, i. 302. 
 52 Geo. 3, c. 155, i. 303. 
 
 certiorari for indictment on, i. 303. 
 31 Geo. 2, c. 32, i. 303. 
 
 Roman Catholics, i. 303. 
 conspiracies or riots in churches, &c, i. 303. 
 DIVIDEND WARRANTS, 
 
 making, &c, false, ii. 418. 
 DIVISIBLE AVERMENTS, 
 
 instances of, ii. 791. 
 DOG, 
 
 keeping unmuzzled, ii. 273. 
 stealing, ii. 85. 
 
 person found in possession of stolen dog-skins, &c, ii. 86. 
 DROWN, 
 
 attempts to, i. 721, 733. 
 DRUNKENNESS, 
 
 when it may be taken into consideration, i. 8. 
 when an excuse for a crime, &c, and when not, i. 8. 
 DUEL, 
 
 when an affray, i. 291. 
 when murder, i. 527, 528. 
 
 challenging to fight, i. 297. — See tit. Challenging. 
 shooting in, within 1 Vict. c. 85, i. 745. 
 DWELLING-HOUSE, 
 
 12 Anne, of stealing forty shillings in, exemption of apprentices, i. 6. 
 stealing in, any person therein beinq jnit in fear } i. 850. 
 7 & 8 Geo. 4, c. 29, s. 12, i. 850.
 
 1018 INDEX. 
 
 DWELLING-HOUSE— continued. 
 
 s. 13, no building to be deemed part of, unless there be a commu- 
 nication either immediate or by a covered passage, i. 850. 
 the putting iu fear, i. 851. 
 the indictment, i. 851. 
 
 principals in second degree and accessories, i. 852. 
 stealing in, to the value of hi. or more, i. 853. 
 7 & 8 Geo. 4, c. 29, s. 12, i. 853. 
 
 s. 13, what shall be deemed part of, i. 854. 
 property under the protection of the house, i. 854, et seq. 
 stealing to the amount mentioned in the statute at one time, i. 856.. 
 the indictment must state the name of the owner of the house correctly, 
 
 i. 857. 
 any one of several persons may be found guilty upon indictment charg- 
 ing joint offence, i. 858. 
 but not separately of separate parts of the charge, i. 858. 
 persons may be found guilty of, on an indictment for robbery in a house 
 
 or burglary, i. 858. 
 principals in second degree and accessories, i. 859. 
 what buildings are to be deemed parcel of, 861, i. et seq. 
 
 centre building used for the purposes of trade, but having no communi- 
 cation with dwelling-house, i. < s 62. 
 factory and dwelling-house with internal communication, &c, i. 863. 
 outhouse held under distinct title, i. 863. 
 outward fence of curtilese not opening into a building, i. 863. 
 DYING DECLAE AT J ONS, 
 
 evidence of, in homicide, ii. 752. 
 
 principle on which they are admitted, ii. 752, et seq. 
 
 deceased must be conscious of approaching death, ii. 753. 
 
 as to the interval of time between the declaration and the death, ii. 753. 
 
 any hope of recovery, however slight, renders them inadmissible, ii. 
 
 754, et seq. 
 absence of settling affairs, taking leave of friends, &e., ii. 756. 
 he need not express any apprehension of danger, ii. 761. 
 his consciousness is a question for the judge, ii. 761. 
 as to what matters the judge will inquire, ii. 761. 
 only admissible, when the death of the deceased is the subject of the 
 charge, and the circumstances of the death the subject of the decla- 
 ration, ii. 761, 762. 
 of a convict, ii. 763. 
 of an accomplice, ii. 768. 
 
 parol declaration admissible, though a subsequent one made and re- 
 duced to writing, ii. 763. 
 when iu writing, ii. 763. 
 when taken on oath, ii. 763. 
 
 as to the mode of eliciting the declaration, ii. 7<» : >. 
 admissible iu favour of the prisoner, ii. 764. 
 
 prisoner may show in his defence the state of mind or character of 
 
 deceased, ii. 764. 
 of children when admissible, ii. 765. 
 of the effect of such declarations, ii. 7t»''>. 
 
 F 
 EAST INDIA COMPANY, 
 
 forgery in respect of stock of, ii. 41S. 
 of bond of, ii. 184.
 
 INDEX. 1010 
 
 EAST INDIES, 
 
 extortion in, &c, 143. 
 
 delinquent in, prosecuted under 24 Geo. 3 — indictment, i. 139. 
 EAVES-DROPPER, 
 
 indictable at the sessions, and punishable by fine, &c, i. 327. 
 ECCLESIASTICAL COURTS, 
 
 proceedings in, how proved, &c, ii. 809. 
 ELECTION, 
 
 bribery at, i. 154, et seq. — See tit. Bribery. 
 
 chief officers of corporations absenting themselves from, i. 140. 
 
 election writs, 
 
 of neglectiug or delaying to deliver, i. 161, 162. 
 perjury by electors, ii. 612, et seq. 
 
 of several felonies, when prosecutor put to, ii. 513, 774. 
 EMBEZZLEMENT, 
 
 by clerks and servants, ii. 167. 
 
 not larceny at common law, ii. 163, 164. 
 7 & 8 Geo. 4, c. 29, 167. 
 
 s. 48, distinct acts of embezzlement charged in the same indict- 
 ment, ii. 167. 
 as to allegation, and proof of the property embezzled, ii. 167. 
 the statute similar in its effect to the repealed stat. 39 Geo. 3, c. 
 85, ii. 168. 
 
 difficulties on that statute, ii. 168. 
 cases decided on 39 Geo. 3, c. 85, ii. 168, et seq. 
 female servant held within it, ii. 168. 
 the statute extended to the clerks and servants of all persons whom 
 
 soever, if employed to receive money, &c, ii. 168. 
 servants of corporations, ii. 169. 
 clerk employed by many different houses, ii. 169. 
 servant of several partners, the servant of each, ii. 170. 
 servants receiving proportion of the profits, ii. 170. 
 driver of a coach, ii. 171. 
 an apprentice within the statute, ii. 171. 
 a person occasionally employed, ii. 172. 
 
 party must be actually in the employ of the prosecutor, ii. 172. 
 the clerk of a church, ii. 172. 
 master of a charity school, ii. 172. 
 drover with authority to sell, ii. 173. 
 drover employed in a single instance, ii. 173. 
 clerk of a savings' bank, ii. 174. 
 secretary and clerk to a society, the rules of which are not enrolled, 
 
 ii. 174, 175. 
 collectors of rates, ii. 175. 
 
 chamberlain of the commons, of a corporation, ii. 176. 
 accountant of Greenwich Hospital, ii. 176. 
 servant of illegal society, ii. 176. 
 
 servant entitled to a proportion of the price of an article, ii. 177. 
 by virtue of the employment, ii. 177. 
 receiving immediately from customers instead of through a porter, 
 
 ii. 177. 
 a servant employed to receive money of one description and at one 
 place receiving money of another description, and at another 
 place, ii. 177, 178. 
 where the money is received contrary to the terms of the employ- 
 ment, ii. 178.
 
 1020 INDEX. 
 
 EMBEZZLEMENT— continued. 
 
 where the money is paid to a person not authorized to receive, on 
 
 the supposition that he is authorized, ii. 178. 
 the statute held to apply to a servant who embezzled money given 
 
 for the purpose of trying his honesty, ii. 179. 
 the statute held not to apply where the property was delivered to 
 
 the servant by the master, ii. 180. 
 if property has been in the possession of the master or another 
 
 clerk, the case is not within the statute, ii. 180, 181. 
 the statute does not apply where the goods are sold without au- 
 thority, and their price embezzled, ii. 181. 
 the mere non-payment of the money not sufficient, ii. 181. 
 a denial of the receipt, or some false account is necessary, ii. 182. 
 where there is a general deficiency but no proof of any particular 
 
 sum embezzled, ii. 183, 184. 
 servants absconding evidence of embezzling, ii. 184. 
 embezzlement after the service is ended, ii. 184. 
 counts for larceny, and counts under the statute joined, ii. 185. 
 election, ii. 185. 
 
 indictment under, ii. 185, et seq. 
 trial — county in which offence may be said to be committed, 189, 
 
 et seq. 
 7 Geo. 4, c. 64, offence begun in one county, and completed in 
 
 another, ii. 191. 
 principals and accessories, ii. 191. 
 by bankers, brokers, factors and other agents, ii. 192. 
 7 & 8 Geo. 4, c. 2. s. 49, ii. 192. 
 
 not to affect mortgagees or trustees, ii. 193. 
 
 s. 51, factors pledging for their own use, goods, &c, entrusted to 
 
 them, ii. 193. 
 s. 61, abettors, &c, ii. 194. 
 
 the repealed statute only applied to persons entrusted in the exer- 
 cise of their business, ii. 194. 
 what not an agency or keeping for safe custody, ii. 195. 
 the indictment must correctly specify the direction given to the 
 agent, ii. 195. 
 by poor persons in workhouses, &c, ii. 197. 
 of warehoused goods, ii. 197. 
 
 by a surveyor of the highwaj-s of materials, &c, ii. 198. 
 by officers and servants of the Bank of England, ii. 199. 
 15 Geo. 2, c. 13, s- 12, what is within, ii. 199, et seq. 
 embezzling exchequer bills, ii. 200, 201. 
 of public moneys by public officers, ii. 202. 
 50 Geo. 3, c. 59, 202. 
 2 Wm. 4, c. 4, ii. 203. 
 by persons in the post-office, ii. 205, et seq. — See tit. Post-Office. 
 of naval and military stores, ii. 222. — See tit. Stores. 
 by bankrupts, ii. 228. — See tit. Bankrupt. 
 by insolvent debtors, ii. 235. 
 EMBRACERY, 
 
 what it consists in, i. 182. 
 corrupting or influencing jurors, i. 182. 
 how far justifiable, i. 182. 
 punishment, i. 182, 183. 
 ENCLOSURE ACT, 
 
 private soads set out under, i. 361. 
 perjury relating to, ii. 612.
 
 INDEX. 1021 
 
 ENEMIES, 
 
 of the king, adhering to, i. 98. 
 piratical acts done under commission of, i. 94. 
 ENGINES, 
 
 riotously destroying steam-engines, or engines for working, &c, mines, i. 
 
 269, 270. 
 destroying, &c, in mines, ii. 583. 
 used in manufacturing goods, ii. 585. 
 EQUITY, 
 
 proceedings in, how proved, &c, ii. 809. 
 ESCAPE. — See tit. Prison Breaking and Rescue. 
 definition of, i. 416. 
 by the party himself, i. 416. 
 
 necessary evidence on an indictment for, i. 416, 417. 
 
 4 Geo. 4, c. 64, i. 417. 
 arrest of persons escaping from Great Britain to Ireland, &c, i. 417- 
 suffered by officers, i. 418, et seq. 
 
 must be after an actual and justifiable arrest, and continuing [imprison- 
 ment for a criminal matter, i. 418. 
 voluntary, i. 418. 
 negligent, i. 419. 
 
 by admitting to bail, i. 420. 
 of retaking, i. 421. 
 after a voluntary escape, i. 421. 
 negligent escape, 421. 
 proceedings for, by indictment, presentment, or summarily, i. 421, 422. 
 indictment and trial, i. 422, 423. 
 evidence, i. 423. 
 punishment, i. 423. 
 
 in cases of voluntary escapes, i. 423. 
 negligent, i. 424. 
 suffered by private persons, i. 425. 
 
 punishment, i. 426. 
 actively aiding escapes, i. 433, et seq. — See tit. Rescue. 
 statutes concerning, i. 436, et seq. 
 
 rescuing murderers, and bodies of murderers, i. 436. 
 offenders sentenced by court martial, i. 437. 
 prisoners of war, i. 437. 
 
 aiding the escape of prisoners committed or convicted, &c, i. 437. 
 from constable, &c, i. 439. 
 
 conveying any disguise or instruments into prison to aid escapes, i. 438. 
 limitation of prosecutions under 16 Geo. 2, i. 489. 
 cases on the construction of the act, i. 439. 
 indictment, &c, on the act, i. 440. 
 
 4 Geo. 4, c. 64, i. 440. 
 
 conveying any disguise, &c, a sufficient attempt to aid escape, i. 
 
 440. 
 assisting any prisoner to escape, felony, i. 440. 
 trial and evidence, i. 440. 
 
 5 Geo. 84, c. 84, i. 441. 
 
 aiding escape of persons ordered to be transported from custody of 
 overseers, &c, i. 441. 
 of persons under sentence of transportation, i. 442, et seq. 
 
 of aiding their escape, 442. — See tit. Transportation. 
 of persons from the Milbank Penitentiary, i. 431, 4 IS, \\\). 
 
 an escape does not, in notion of law, imply any degree of foive or a 
 breach of the peace, i. 627.
 
 1022 INDEX. 
 
 ESTKAY, 
 
 ownership of, how laid, ii. 96. 
 EVIDENCE, 
 
 rules of evidence same in criminal as civil cases, ii. 725. 
 bill of exceptions to, ii. 725. 
 case reserved, ii. 725. 
 
 new trial, when it can be obtained, ii. 726. 
 inferior jurisdictions, ii. 726. 
 
 several defendants, some found guilty and others acquitted, ii. 726. 
 all the defendants must be present in court when a motion for a new 
 
 trial is made on behalf of any of them, ii- 705, 726. 
 of the competency of witnesses, ii. 969, et seq. — See tit. "Witness. 
 of privileged communications, ii. 902, et seq. — See tit. Privileged Commu- 
 nications. 
 of the examination of witnesses, ii. 913, et seq. — See tit. "Witness. 
 how the credit of witnesses may be impeached, ii. 926, et seq. — See tit. 
 
 "Witness. 
 how many witnesses are necessary, ii. 944, et seq. — See tit. "Witness. 
 how the attendance of witnesses is to be compelled and remunerated, ii. 945, 
 
 et seq. — See tit. Witness. 
 confessions and admissions, ii. 824, et seq. — See tit. Confessions. 
 examinations before magistrates, ii. 872, et seq. — See tit. Examination 
 depositions, ii. 888, et seq. — See tit. Deposition. 
 of what nature evidence must be, ii. 726, et seq. 
 
 presumptive or circumstantial evidence, ii. 726, et seq. 
 instances of presumptions, ii. 727, et seq. 
 from good character, ii. 72! ». 
 from conduct, ii. 729. 
 from suppression of evidence, ii. 729. 
 from falsification of evidence, ii. 729. 
 of continuance, ii. 730. 
 of life and death, ii. 730. 
 of partnership, ii. 730. 
 as to opinions and state of mind, ii. 731. 
 presumptions of law, ii. 731. 
 malice, ii. 731. 
 
 probable consequence of an injurious act, ii. 731. 
 with respect to age, ii. 732. 
 of innocence, ii. 732. 
 omne esse rite acta, ii. 732. 
 the best possible evidence must be produced, ii. 733, et seq. 
 the general rule, ii. 733. 
 what is primary evidence, ii. 733. 
 
 instances of primary evidence, ii. 733, et seq. 
 
 parol evidence not always secondary to written, ii. 734. 
 instances of what is not the best possible evidence, ii. 735, 736. 
 what is sufficient ground for the admission of secondary evidence, ii. 
 
 TOO _* 
 
 ioo, et seq. 
 where the primary evidence is lost, ii. 738. 
 
 what is sufficient proof of loss, ii. 738, 739. 
 what is not, ii. 739, 740. 
 where the primary evidence is in the possession of the other party, 
 ii. 741. 
 proof of such possession, ii. 741. 
 
 of possession of privity, ii. 741. 
 
 instrument once in party's possession but since parted 
 with, ii. 742.
 
 INDEX. 
 
 1023 
 
 EVIDENCE— continued. 
 
 notice to produce, ii. 743. 
 its form, ii. 743. 
 
 when and on whom to be served, ii. 743. 
 when not necessary, ii. 744. 
 when instrument is in court, ii. 745. 
 time to call for production, ii. 746. 
 must be produced when called for, or not at all, ii. 740. 
 consequences of giving-, ii. 746. 
 what is good secondary evidence, ii. 746. 
 instances thereof, ii. 746, et seq. 
 cases where the rule is relaxed, ii. 748, 749. 
 of hearsay evidence, ii. 750, et seq. 
 
 exceptions to the general rule, ii. 750. 
 hearsay part of res gestcc, ii. 750. 
 complaints of injuries, ii. 751. 
 of robbery, ii. 751. 
 of rape, ii. 751. 
 testimony of deceased witness at a former trial, ii. 752. 
 depositions, ii. 752. 
 
 dying declarations, ii. 752, et seq. — See tit. Dying Declarations. 
 hearsay of public rights, &c, ii. 767. 
 
 hearsay of deceased persons against tbeir own interest, ii. 767. 
 hearsay of persons having no interest to misstate, ii. 768. 
 the proof of negative averments, ii. 759, et seq. 
 
 general rule that he who asserts the affirmative must prove it, ii. 769. 
 presumption in favour of innocence drives the prosecutor to prove 
 the negative, ii. 769, 770. 
 but this does not operate when the affirmative^ is peculiarly 
 within the knowledge of party charged, ii. 770, 771. 
 evidence, to be confined to 2)oints in issue, ii. 772. 
 must apply to the single act charged, ii. 772. 
 acts of prisoners charged in indictment alone can be proved, ii. 773. 
 
 when larceny of goods not laid in indictment can be proved, ii. 773. 
 acts of others engaged in same design, ii. 773. 
 prosecutor confined to proof of one felony, ii. 774. 
 proving one felony by means of another, ii. 774. 
 
 where the felonies are connected, ii. 774, et seq. 
 several felonies parts of the same transaction, ii. 774, 775. 
 where the subjects of other indictments, ii. 776. 
 discretionary with the judge to admit proof of it, ii. 776. 
 as proof of guilty knowledge, ii. 777, ii. 403, et seq. 
 
 intent, ii. 777, 778. 
 to show confederacy, ii. 778. 
 
 of one murder, to show motive for committing another, ii. 778. 
 of other wounds to identify an instrument, ii. 779. 
 of other felony to rebut an alibi, ii. 779. 
 proof of other acts and declarations of prisoner as evidence for him of 
 his innocence, ii. 779. 
 must be connected with the facts proved against him, ii. 780. 
 evidence of several transactions when cumulative instances are neces- 
 sary to prove the offence, ii. 781. 
 cases as to the relevancy of evidence, ii. 781, et seq. 
 
 articles found in prisoner's house after his apprehension, ii. 782. 
 writings found after prisoner's apprehension, ii. 7*2. 
 unpublished, ii. 782. 
 without proof of being in his handwriting, ii. 783.
 
 1024 INDEX. 
 
 EVIDENCE— continued. 
 
 evidence of character, ii. 783. — See tit. Character. 
 previous conviction for felony, ii. 785. 
 what allegations must he -proved and what may he rejected, ii. 786, et seq. 
 doctrine of surplusage, ii. 786, et seq. 
 
 instances of surplusage, ii. 786, et seq. 
 descriptive allegations cannot be rejected, ii. 788, 789. 
 conviction pro tanto, ii. 789. 
 
 proof of so much of the indictment as constitutes a crime punish- 
 able by law, ii. 7*0, 790. 
 instances of devisable averments, ii. 791, et seq. 
 joint offence charged and one alone convicted, ii. 792. 
 with what precision the allegations which cannot be rejected, must be sup- 
 ported in evidence, ii. 79.!. 
 rule that the substance of the issue only need be proved, ii. 7'. , 2. 
 proof of offence chai'ged, ii. 792. 
 matters of inducement, ii. 793. 
 variance, ii. 794. 
 
 instances of fatal variances, ii. 794. 
 
 misnomer of party whose existence is essential to the charge, 
 ii. 795, et seq. 
 
 idem sonans, ii. 797. 
 variances between indictments and written instruments, ii. 798. 
 amendments of under the 9 Geo. 4, c. 15 — ii. 798. 
 cases upon that statute, ii. 798, ~'.'>'.i. 
 proof of place laid where the offence is not local, ii. 800. 
 where the offence is local, ii. 800, 801. 
 proof of time laid, ii. 802. 
 proof of value, ii. 802. 
 videlicit, ii. 802. 
 of the proof and effects of documents, ii. 804, et seq. 
 statutes, ii. 804. 
 
 journals of Houses of Parliament, ii. 805. 
 gazette, ii. 805. 
 proclamation, ii. 805. 
 articles of war, ii. 805. 
 records, ii. 806, 807, 808. 
 proceedings in court of equity, ii. 808, 909. 
 
 ecclesiastical courts, ii. 809. 
 proof of will, probate, administration, ii. 809. 
 judgments in inferior courts, ii. 809. 
 foreign judgment, ii. 809. 
 
 laws, ii. 810. 
 Irish Judgment, ii. 811. 
 
 conviction before justice of the peace, ii. 811. 
 public books, ii. 811. 
 registers, ii. 811. 
 inspection of records, ii. 812. 
 
 copy of indictments after acquittal, how obtained, ii. 812. 
 inspection of depositions, ii. 813, 814. 
 
 copies of depositions under the 6 & 7 Win. 4, c. 114, ii. 813, ^14. 
 rules of practice under that statute, ii. 815. 
 cases upon that statute, ii. 814, 816. 
 public books, ii. 816. 
 of the proof of private documents, ii. 816. 
 attesting witness, ii. 816, s 17. 818. 
 handwriting, how proved, ii. 818.
 
 INDEX. 1025 
 
 EVIDENCE— continued. 
 
 comparison of not allowed, ii. 818. 
 knowledge of, how obtained, ii. 819, 820. 
 stamps, ii. 820. 
 
 unstamped instrument for collateral purposes, ii. 820, et seq. — See 
 also ante, ii. 214, 347. 
 the court will take judicial notice of the existence of a war, ii. 701. 
 in particular cases, 
 
 in larceny, ii. 122. 
 
 on indictment for embezzlement against a bankrupt, ii. 233. 
 in forgery, ii. 392. 
 
 on indictment for receiving stolen goods, ii. 251. 
 in arson, ii. 5G7. 
 
 on indictment for obtaining money by false pretences, ii. 310. 
 in maiming cattle, ii. 573. 
 in perjury, ii. 649, et seq. 
 in subornation of perjury, ii. 668. 
 in conspiracy, ii. 696. 
 
 on indictment for sending threatening letters, ii. 721. 
 in cases of offences respecting counterfeit coin, i. 61. 
 on indictments respecting coining instruments, i. 72. 
 for uttering false money, i. 80. 
 
 foreign counterfeit coin, i. 85. 
 buying and selling counterfeit coin, i. 86. 
 of being feme covert, i. 24. 
 in bigamy, i. 217, et seq. 
 
 on prosecution for a libel, i. 247, et seq., and see tit. Libel. 
 of disorderly houses, i. 325. 
 on indictment, &c, for nuisances to highways, i. 369, et seq. 
 
 for not repairing bridges, i. 406. 
 of former conviction, &c, on indictment for returning from transporta- 
 tion, i. 447, 449, 451, 452. 
 on indictment for usury, i. 461. 
 on murder, i. 556, et seq. 
 
 on indictment for procuring the miscarriage of women, i. 673. 
 in rape, 678, et seq. 
 in sodomy, i. 699. 
 
 on indictment for carnal knowledge of female children, i. 694. 
 in abduction of females, i. 709. 
 EXAMINATION, 
 
 of prisoner before magistrates, ii. 872, et seq. 
 7 Geo. 4, c. 64, ii. 873. # ' 
 
 s. 2, as to felonies, ii. 873, 874. 
 
 s. 3, as to misdemeanors, ii. 874. 
 
 effect of the statute, ii. 874, note (/). 
 when the examination should be taken, ii. 874. 
 as to previous cautions, ii. 874. 
 
 in what manner examinations should be taken, ii. 875. 
 not on oath, ii. 875. 
 questions may be asked, ii. 875. 
 parol evidence, when admissible, ii. 875, et seq. 
 on clear proof that no examination was taken in writing, ii. S76. 
 to add to the examination of a prisoner, ii. 875, et seq. 
 statements of prisoners during the examination of the witnesses, ii. 
 
 879-880. 
 signing by the magistrate and prisoner, ii. 881.
 
 102G INDEX. 
 
 EXAMINATION— continued. 
 
 distinction in the cases where prisoner does not sign, but admits exam- 
 ination to be correctly taken, ii. 881, 882. 
 examination admissible as au examination, if prisoner admits its cor- 
 rection, ii. 881, 882. 
 secus if he does not, ii. 881, 882. 
 but in such case examination may be used to refresh the memory of 
 
 the person who took it, ii. 882, 883. 
 statements made by prisoners before the witnesses have been examined. 
 
 ii. 883. 
 examination must not be on oath, ii. 884. 
 how examinations are to be proved, ii. 881. 
 where prisoner makes his mark, ii. 885. 
 where there is an attesting wituess, ii. 885. 
 examination may be proved without calling the magistrate or his clerk, 
 
 by some one present when it was taken, ii. 885, tt seq. 
 but in serious cases the magistrate or clerk ought to be present, ii. 887. 
 so where there are interlineations or erasure.-, ii. sx 7. 
 as to the mode of giving examinations in evidence, ii. ^ s 7. 
 where the examination refers expressly to the deposition of a witness, 
 such deposition may be read, ii. v ^. 
 EXCEPTION,-, 
 
 bill of, whether it lies in criminal cases, ii. 725. 
 EXCHEQUER, 
 
 forging the hand of accountant-general of, ii. 471. 
 EXCHEQUER BILL, 
 stealing ii. 74. 
 
 embezzling, by servant of Bank of England, ii. 200. 201. 
 forgery of, ii. 410, 420, 465, 466. 
 perjury in respect of, ii. 008. 
 EXCISE, 
 
 forgery in respect to. — See tit. Forgery. 
 forging of permits, ii. 461. 
 perjury in respect of, ii. G08. 
 EXECUTION, 
 
 staying in cases of conviction of infants, i. 6. 
 
 of murder, i. 575. 
 murder by officers in execution of criminals, i. 547. 
 EXPENSES, 
 
 of prosecution, &c., provided fur in certain eases, ii. '.Us, ,t seq. 
 EXTORTION, 
 
 by public officers, i. 142, et seq. 
 
 indictment, trial, and punishment, i. 144. 
 
 F. 
 FACTOR, 
 
 embezzlement by, ii. 102. 
 
 pledging for his own use goods entrusted to him, ii. P.'.']. 
 FALSE CHARGES, 
 
 conspiracv to make, ii. G7G. 
 FALSE PERSONATION, 
 
 orTcucc at common law, ii. 539. 
 by statutes, ii. 540. 
 
 personating and assuming the name of soldiers and sailors t 
 
 tain prize-money, pay, &c., ii. J40. 
 of deceased persous within the statute, ii. 541.
 
 INDEX. 1027 
 
 FALSE PERSONATION— continued. 
 
 must be the correct name of the party personated, ii. 542. 
 aiders and abettors, ii. 242. 
 personating parties levying fines, ii. 542. 
 bail, ii. 542. 
 FALSE PRETENCES, 
 
 obtaining money under false pretences a misdemeanor by the 7 & 8 Geo. 4, 
 e. 29, s. 53, ii. 280. 
 no acquittal on the ground that the case proved amounts to lareeny, ii. 
 
 287. 
 statement of the ownership of the property, ii. 287. 
 cases on repealed statute 30 Geo. 2. c. 24, ii. 287, et seq. 
 false pretence of sharing a supposed bet, ii. 287. 
 whether it extended to cases against which common prudence might 
 
 guard, ii. 289. 
 a pretence that the party would do an act which he does not intend to 
 
 do, ii. 289. 
 that he will tell where the prosecutor's horses are, ii. 290. 
 pretence of being entrusted to take horses from Ireland to London, and 
 
 having no money left, ii. 290. 
 delivering false account of wages earned, ii. 291. 
 assuming to be the person mentioned in a money order, by presenting 
 
 merely it, ii. 291, 2!>2. 
 uttering a counterfeit note as genuine, ii. 293. 
 paying for a horse in promissory notes of a country bank that had 
 
 failed, ii. 295. 
 proof of bank having failed, ii. 295, 296. 
 pretence by a carrier that he had delivered goods, whereby he obtained 
 
 the carriage, ii. 297. 
 pretence of being sent by a neighbour to borrow money, ii. 297. 
 assuming the dress of a particular class, ii. 297. 
 obtaining goods by giving in payment a check on a banker without 
 
 effects or authority, ii. 298, 299, 300. 
 personating the person whose real signature appears to a written instru- 
 ment, ii. 301. 
 porter delivering a false ticket with a basket, held, that it might be de- 
 scribed as a pared, ii. 301, 302. 
 the money obtained must be the property of him in whom it is laid at 
 
 time of the offence, ii. 301. 
 obtaining credit in accouut with a banker by a bill of exchange, ii. 302. 
 selling an estate with covenant for title, ii. 303. 
 false warranty of a horse, ii. 304. 
 
 money obtained in the character of an attorney, ii. 304. 
 obtaining a loan to pay a bill of exchange, ii. 304. 
 indictment, 
 
 must state the false pretences, ii. 305, 306. 
 with what certainty, 30(5, 307. 
 indictment must state the goods to be the property of some person, 
 
 ii. 307. 
 false statement as to the weight of coals, ii. 308. 
 when several defendants may be charged in the same, ii. 399. 
 the pretence must be proved as laid, ii. 310. 
 not necessary to prove all the pretences, ii. 310. 
 
 where pretences are so connected that they cannot be separated, ii. # 310. 
 the goods must be obtained by some of the pretences charged, ii. 311. 
 not through the Imprudence of the prosecutor, ii. 312. 
 there must be an intent to defraud, ii. 312.
 
 1028 INDEX. 
 
 FALSE PRETENCES— continued. 
 
 where there is a plan to entrap the prisoner, ii. 312. 
 restitution of goods obtained by, ii. 313. 
 FATHER — See tit. Parent and Child. 
 FELO BE SE, 
 
 accessory before to, not triable, i. 40, 509. 
 self-murder, i. 507. — See tit. Murder. 
 two encouraging each other to, i. 508. 
 FELONY, 
 
 definition of, i. 44. 
 
 derivation of, i. 44, note (a). 
 
 punishment for, not punishable by any statute, i. 38; 65, note (J). 
 
 what words in a new statute create, i. 44. 
 
 all felons were entitled to have clergy once, unless ousted by statute, i. 44. 
 
 if a statute made a new offence felony, the law implied a punishment of 
 
 death as well as forfeiture, i. 44. 
 when a statute makes an offence felony, which before was only a misde- 
 meanor, an indictment will not lie for a misdemeanor, i. 45, 50. 
 he who takes part in it, is a felon according to his share in it, i. 2G. 
 he who procures a felony to be done is a felon, i. 32. 
 misprision of. — See tit. Misprision. 
 compounding. — See tit. Compounding. 
 authority of officers, &c, to arrest in cases of, i. 593. 
 private persons, i. 534, 593, 594. 
 
 in cases of attempts to commit, i. 594. 
 assault with intent to commit, i. 769. 
 killing to prevent, i. 607, et seq. — See tit. Homicide. 
 attempt to commit. — See tit. Attempt. 
 
 persons caught in by night, detainer of, i. 739 
 conviction of previous, ii. 128. 
 
 trial after for subsequent, ii. 129. 
 form of indictment, ii. 129. 
 evidence, ii. 129. 
 
 false certificate of conviction, ii. 453. 
 FEMALES. — See tit. Women, Feme Covert. 
 FEMALE CHILDREN.— See tit. Infant. 
 FEME COVERT, 
 
 how far and from what crimes excused by the coercion of her husband, i. 
 
 18, et seq. 
 receiving stolen goods jointly with her husband, i. 19. 
 from what misdemeanors, i. 20. 
 
 not answerable for her husband's breach of duty, i. 19. 
 when an accessory to her husband's crime, i. 18. 
 
 to another's, i. 21. 
 when responsible as much as a feme sole, i. 20, 21. 
 coercion of husband, when presumed, i. 21, 22. 
 not guilty of felony in stealing her husband's goods, i. 22, 23 ; ii. v 7. 
 when a stranger can commit a larceny by the delivery of husband's goods 
 
 by wife, i. 23 ; ii. 87. 
 by taking wife by force with husband's goods on her, i. 23. 
 not accessory for receiving her husband, i. 23, -i v . 
 an indictment for larceny or burglary, not bad against husband and wife u 
 
 such, i. 22, note (g), 24. 
 evidence of being wife, i. 24. 
 if a wife incur a forfeiture under a penal statute, husband may be made a 
 
 party to the action, &c, i. 20, note (o). 
 husband may be made accessory before the fact to bis wife's crimes, i. 21.
 
 INDEX. 1029 
 
 FEME COVERT— continued. 
 
 wife principal and husband accessory in uttering forged notes, i. 21. 
 rule reducible from the cases, i. 22, note (g). 
 
 incompetency of the husband and wife as witnesses, ii. 981, et seq. — See tit. 
 Witness. 
 FENCES, 
 
 destroying, ii. 582. 
 stealing, &c, ii. 63, 69. 
 FERRETS, 
 
 larceny of, ii. 85. 
 FERRYMAN, 
 
 extortion by, in taking tolls, i. 143. 
 FICTITIOUS PLAINTIFF, 
 
 suing in the name of, i. 185. 
 FINE, 
 
 persons acknowledging, in name of another not privy, ii. 543. 
 FIREWORKS, 
 
 statute 9 & 10 Wm. 3, concerning them as a nuisance, i. 327. 
 FISH, 
 
 larceny of, ii. 85. 
 
 unlawfully taking or attempting to take, ii. 147. 
 offences at common law, ii. 147. 
 offences by statutes, ii. 147. 
 oysters, ii. 148. 
 fishpond, &c. 
 
 destroying dam of, ii. 579. 
 putting noxious materials into, ii. 579. 
 FIXTURES, 
 
 larceny of, ii. 63, 64, 65, 66, 67. 
 FOOD, 
 
 unwholsome, i. 109. 
 
 indictable to mix noxious ingredients with human food, i. 109. 
 master liable for the sale of unwholsome food by his servants, i. 109, 110. 
 FOOT-BALL, 
 
 kicking about riotously on Shrove Tuesday, indictment for, i. 267. 
 FOOT-WAY.— See tit. Highway. 
 FORCE, 
 
 in inserting a title, when justifiable, i. 304. 
 FORCIBLE DETAINER.— See tit. Forcible Entry. 
 
 acts which do or do not amount to, i. 309. 
 FORCIBLE ENTRY, 
 
 how committed, i. 304. 
 
 at common law, i. 304. 
 statutes, i. 305, 306. 
 
 5 Rich. 2, c. 8, i. 305. 
 15 Rich. 2, c. 2, i. 305. 
 8 Hen. 6, c. 9, i. 305. 
 31 Eliz. c. 11. i. 306. 
 
 doubts upon them whether lessee for years, or copyholder 
 
 ousted by lessor or lord, could have restitution, i. 306. 
 removed by 21 Jac. 1, c. 15, i. 307. 
 persons who may commit the offence, i. 307. 
 
 possessions in respect of which the offence may be committed, i. 308. 
 acts which will amount to, i. 308. 
 
 from circumstances of terror, i. 309. 
 circumstances which do not amount to, i. 309, 310, 311. 
 forcible detainer, what, i. 310.
 
 1030 INDEX. 
 
 FORCIBLE ENTRY— continued. 
 
 circumstances which do not amount to, i. 311. 
 remedies, i 311. 
 
 indictment, i. 311. 
 
 state of force and violence, i. 311. 
 description of premises, i. 311. 
 
 of estate of the party expelled, i. 312. 
 repugnancy; statement of disseisin, &c, i. 312. 
 for entry and detainer, grand jury cannot find a true bill for one onlv, 
 
 i. 313. 
 award of restitution, i. 313. 
 by what court, i. 313. 
 where discretionary, i. 313, 314. 
 where not, i. 314. 
 
 tenant of land not a competent witness, i. 313. 
 on indictment at common law, possession only need be shown, i. 
 
 313. 
 on indictment under statutes, a seisin in fee, or existence of a term 
 
 must be proved, i. 313. 
 but court will not try an adverse claim, i. 313. 
 of the bar or stay to restitution, i. 315. 
 of superseding, i. 315. 
 of setting aside, i. 315. 
 how restitution shall be made, i. 316. 
 re-restitution, i. 310. 
 where conviction quashed, the Court of Queen's Bench are bound to award 
 
 re-restitution, i. 316. 
 by an infant, i. 2. 
 FOREIGN JUDGMENT, 
 
 proof of, ii. 809. 
 FOREIGN LAW, 
 
 proof of, ii. 810. 
 FOREIGN STATES, 
 
 serving or procuring others to serve, i. 87, e( scq. 
 
 without consent of the King, a misdemeanor at common law, i. 87. 
 3 Jac. 1, c. 4, i. 87. 
 
 going out of the realm to serve without oath of obedience, &c, i. 87. 
 construction of the statute, i. 87. 
 trial where, i. 87. 
 59 Geo. 3, (foreign enlistment), i. 87, et seq. 
 s. 7, 8, equipping, &c, vessels, i. 89, 90. 
 
 apprehension and trial of offenders, where, i. 90. 
 3. Vict. c. 6, (Mutiny Act), i. 90. 
 
 persuading soldiers to desert, &o., i. 91. 
 disobedience to the King's commands to return, stay at home, Sec, i. 91 . 
 11 & 12 Win. 3, c. 7, i. 94. 
 
 acts done under commission of, when piracy, i 94. 
 FORESTALLING, 
 
 nature of the offence, i. 168. 
 statutes on the subject repealed, i. 168. 
 offence still punishable at common law, i. 168, 169. 
 Parliamentary exposition of, i. 169. 
 enhancing the price of hops, i. 170, ct seq. 
 indictment and punishment, i. 173. 
 FORGERY, 
 
 all are principals in, at common law; forgery being only considered a mis- 
 demeanor, i. 33.
 
 INDEX. 1031 
 
 FORGERY— continued. 
 
 not so under statutes, i. 33. 
 
 all who execute any part of a forged instrument principals, though absent 
 
 when it is completed, i. 33. 
 and though ignorant of the persons by whom the other parts are executed, i. 33. 
 accessories in forgery, i. 34. 
 at common law, 
 
 definition of the offence, ii. 318. 
 a misdemeanor only, ii. 318. 
 what it consists in, ii. 318. 
 
 the offence may be complete, without publication, ii. 318. 
 of the making or alteration of a written instrument necessary to constitute, 
 ii. 319, et seq. 
 fraudulent insertion, alteration, or erasure, ii. 323. 
 filling up a blank acceptance with a larger sum, ii. 320. 
 filling up a blank check without authority, ii. 322. 
 instrument must be complete at the time of the forgery, ii. 322. 
 expunging an indorsement on a bank-note, ii. 323. 
 forgery and subsequent alteration of the deed, ii. 323. 
 by fraudulent omission in written instrument, ii. 323. 
 making a false deed in a man's own name, ii. 323. 
 
 indorsing a bill of exchange by a person of same name as payee, ii. 323. 
 uttering a note made in the same name as that of prisoner, ii. 323, et seq. 
 assuming to be the real indorser of a bill no forgery, though done in fraudu- 
 lent concert with real indorser, ii. 326. 
 false description of the acceptor, but not a false name, ii. 327. 
 cases in which party committing forgery, has used a name different from his 
 own, ii. 328, et seq. 
 where the note, though made by the prisoner in an assumed name and 
 
 character, was his own note, and offered as his own, ii. 328. 
 where the note is given in the name of an existing person or one repre- 
 sented so to be, ii. 329. 
 where in the name of a fictitious firm, ii. 330. 
 
 assuming the name and character of an existing person, and draw- 
 ing a bill, ii. 331. 
 uttering a forged deed purporting to be a power of attorney, from 
 
 a non existing person, ii. 331. 
 indorsing a fictitious name on a bill, ii. 332. 
 the use of a mere fictitious name is sufficient, ii. 332. 
 a forged order on a bank in a fictitious name, ii. 333. 
 it is immaterial whether any additional credit be thereby gained, 
 
 ii. 333. 
 giving drawee a receipt in a false name, ii. 334. 
 giving note, &c, as a prisoner's own note, signed in a fictitious 
 
 name, where the credit is personal to himself, ii. 335. 
 drawing on banker in fictitious name, the credit being given to 
 
 prisoner's person, ii. 336. 
 where the name used by prisoner was fraudulently assumed, though 
 
 his own name would have carried as much credit, ii. 338. 
 if the name be assumed for the purpose of fraud, and to avoid de- 
 tection, it is sufficient, ii. 340. 
 where the party has or honestly believes he has authority to use 
 
 another's name, ii. 341. 
 there must be good grounds for such belief from the acts of the 
 
 parties, and the dealings between them, ii. 342, 343. 
 where one of several persons having authority draws out money by 
 Vol. ii.— 67
 
 1032 INDEX. 
 
 ^_ — . — — 
 
 FORGERY — continued. 
 
 a check signed by himself and others, personating the others 
 having authority, ii. 343. 
 as to the validity of the thing forged, if genuine, ii. 344. 
 
 forgery may be committed by the false making of the will of a liv- 
 ing person, ii. 345. 
 forging the bill of a non-existing person, ii. 346. 
 forgery of instrument not conformable to the directory provisions 
 
 of a statute, ii. 346. 
 forgery of instruments on unstamped paper, ii. 346. 
 
 of a bill of exchange or promissory note on unstamped paper, 
 
 ii. 346, 347. 
 
 the false instrument should carry on the face of it the semblance of 
 
 a genuine one, though it need not be exact, ii. 348, et seq. 
 
 forging a bank-note, without the words ' pounds,' or a water 
 
 mark, ii. 348. 
 engraving a counterfeit stamp, like in some parts to be genu- 
 ine, and unlike in others, &c, &c, ii. 349. 
 literal mistake, ii. 350. 
 
 forging a will, signed in wrong Christian name, ii. 350. 
 forged bill, without indorsement of names of drawers, ii. 351. 
 instrument requiring payment without indorsement, ii. 351. 
 omission of name of payee, ii. 352. 
 of the name of the drawee, ii. 352. 
 instrument not available by reason of some collateral objection, ii. 
 
 352. 
 if the instrument be good on the face of it, it is sufficient, ii. 353. 
 the false instrument must not be illegal in its very frame, ii. 354, 
 et seq. 
 instrument defective as a bank-note, ii. 354. 
 bill directed to J. ft. and accepted by J. A'., ii. 354. 
 note incomplete for want of signature, ii. 354. 
 instrument averred to be a promissory note, but defective, ii. 
 
 355. 
 defective bill of exchange, ii. 356. 
 bill drawn for less than the sum, and not in the form required 
 
 by the 17 Geo. 3, ii. 356. 
 forging a will of land, attested by only two witnesses, ii. 357. 
 of the written instruments in respect of which it may be committed, ii. 357, 
 et seq. 
 instances of them, ii. 357, et >t q. 
 general rule on the subject, ii. 458. 
 
 forging an order to a gaoler, to discharge a prisoner, ii. 361. 
 forging a county court summons, ii. 361. 
 of the fraud and deceit to the prejudice of another s right, ii. 361. 
 intent to defraud, ii. 362. 
 
 general intent sufficient, ii. 352. 
 cases of uttering forged receipts for money, ii. 362, 363. 
 guarantees to a bank do not negative intent to defraud, 304. 
 knowingly uttering a forged bill, with intent to provide for it* payment, 
 
 ii. 365. 
 intent to take up a forged bill, immaterial, ii. 366. 
 uttering a request directed to a married woman, in her maiden name. ii. 
 
 366. 
 offering a forged bill at a bank where it is sure not to be paid. ii. 
 forgery consists in the endeavouring to give an appearance of truth to 
 more deceit and falsity, ii. 367.
 
 inde x. 1033 
 
 FORGERY— continued. 
 
 of principals and accessories, ii. 368. 
 
 at common law all are principals, ii. 368. 
 
 case where two of the prisoners were privy to the uttering of a forged 
 note, but were not present at the fact, ii. 368. 
 constructive presence, ii. 369. 
 wife indicted as principal and husband as accessory, ii. 370. 
 of causing, assenting, or consenting, ii. 372. 
 trial of accessories, ii. 372. 
 indictment, ii. 372, et seq. 
 
 the word "falsely," ii. 372. 
 
 the forged instrument must be set out in words and figures, ii. 372. 
 2 & 3 Wm. 4, c. 123, sufficient to describe the instrument as in lar- 
 ceny, ii. 372. 
 description of forged instruments under that statute, ii. 373. 
 
 if it be in a foreign language, there must be an English transla- 
 tion, ii. 374. 
 the whole instrument must be correctly translated, ii. 374. 
 a literal variance will not vitiate, ii. 376. 
 
 of laying it to be a paper writing, purporting to be such an instru- 
 ment, &c, ii. 376, 377. 
 indictment bad for averring that it was signed by H. H. in- 
 stead of that purported to have been so, ii. 377. 
 if it does not purport on the face of it to be a thing prohibited 
 to be forged, the purport must be expressly averred, ii. 377. 
 where the instrument is described under the 2 & 3 Wm. 4, c. 
 123, averments to show what the instrument is, are not ne- 
 cessary, ii. 378. 
 instrument improperly described as a promissory note, ii. 379. 
 the word " purport/' imports what appears on the face of the 
 instrument, ii. 379, et seq. 
 meaning of the words "purport," and "tenor," ii. 381. 
 of the statement of the intent to defraud, ii. 383, et seq. 
 
 the party intended to be defrauded need only be described with 
 reasonable certainty, ii. 383. 
 case of several partners, ii. 383. 
 it is not necessary to state the manner in which the party was to 
 have been defrauded, ii. 383. 
 as that a forged bill was tendered to the party intended to be 
 defrauded, ii. 384. 
 as to the property of the party intended to be defrauded, ii. 384. 
 where the persons defrauded are a corporation, ii, 385. 
 statement of partners, trustees, &c, ii. 385. 
 joint stock banks, ii. 385. 
 where the indictment is on a statute, the offence must be described in 
 the words of it, ii. 385. 
 as to a superfluous description, ii. 386. 
 warrant and order for the payment of money, ii. 386. 
 the insertion of superfluous words does not vitiate, ii. 386. 
 sewing facsimilies of notes to the indictment, ii. 387. 
 where a prisoner is tried where he is in custody, that fact need not 
 
 be alleged, ii. 388. 
 the word "alter" used in indictment, though not in statute, ii. 388. 
 if any part of a true instrument be altered, a forgery of the whole may 
 
 be laid, ii. 388. 
 an indictment for uttering an acceptance must aver the uttering of such 
 acceptance, ii. 388.
 
 1034 INDEX. 
 
 FORGERY— continued. 
 
 plea, 
 
 autrefois acquit, ii. 388. 
 trial, ii. 389. 
 
 the quarter sessions have no jurisdiction, ii. 389, and see 5 & 6 Viet. c. 
 
 38, Appendix of Statutes 
 must be in the county where the offence is committed, or the prisoner 
 in custody, ii. 389. 
 what is not evidence of a forgery having been committed in a par- 
 ticular county, ii. 389, 390. 
 offence committed in a county of a town, ii. 391. 
 of the evidence, ii. 392, et seq. 
 
 of the incompetency of the party by whom the instrument purports to 
 have been forged, ii. 392. 
 removed by the 9 Geo. 4, c. 33, ii. 392. 
 as to the question whether the party, whose handwriting is forged, is 
 
 the only witness to prove the forgery, ii. 392. 
 handwriting cannot be proved by comparison with a genuine paper, ii. 
 
 393. 
 quaere, whether persons of skill may give their opinion, whether hand- 
 writing is genuine or an imitation, ii. 393. 
 of the admission of his own handwriting by the party accused, ii. 395. 
 what sufficient evidence of forging a bill, ii. 396. 
 
 giving a forged bill to an innocent agent, or to an accomplice an utter- 
 ing, ii. 390. 
 what is a sufficient uttering, ii. 398. 
 conditional uttering, ii. 398. 
 giving an instrument as a specimen, ii. 398. 
 showing a forged instrument, ii. 398. 
 uttering; a forced acceptance does not support a count for uttering a 
 
 forged bill, ii. 399. 
 all facts which are a part of a continuous transaction are admissible on 
 
 an indictment for forgery and uttering, ii. 399. 
 questions as to proof of the identity or non-existance of the person 
 whose name is charged to be forged, ii. 399, et seq. 
 as to proof of the identity of payee, ii. 400. 
 proprietor of stock examined to prove his identity, ii. 400. 
 of guilt)/ knowledge, ii. 403. 
 
 evidence of other forged notes having been uttered by prisoner, ii. 
 403, et seq. 
 of others beina; in circulation with his signature on them, ii 
 
 404. 
 of others found in the same pocket-book, ii. 404, 405. 
 other utterings after the one charged, ii. 405. 
 other forged notes on other banks, ii. 405. 
 other forged notes the subject of other indictments, ii. 406, 407. 
 punishment for, ii. 408. 
 
 incompetency to be a witness after judgment, ii. 408. 
 
 attorneys convicted, and afterwards practising, to be transported, ii. 4i ' v 
 
 1 Wm. 4, c. GO, s. 1, &c., general provisions against forgery, ii. 408, 
 
 et seq. 
 all forgeries heretofore capital subject to transportation for life, &c, ii 
 409. 
 of forging, altering, &c., records and judicial process, dec, ii. 514. 
 forging the hand of receiver of prolines, ii. 41.">. 
 
 certifying as true any false copy of records kept under the 1 & 2 Viet 
 c. 91, ii. 410.
 
 INDEX. 1035 
 
 FORGERY— continued. 
 
 relating to the public funds, and stocks of public companies, ii. 417, et scq. 
 forging letters of attorney to transfer stocks, ii. 417, et seq. 
 
 names of witnesses thereto, ii. 418. 
 personating proprietors of stock, &c, ii. 419, et seq. 
 endeavor to receive dividend sufficient, ii. 423. 
 it is no objection that the stock had never been accepted, and the 
 transfer not witnessed, ii. 421. 
 making false entries in the books of the Bank of England, ii. 417. 
 making false dividend warrants, ii. 418, 419. 
 forgery of Exchequer bills, ii. 419, et seq. 
 of the securities of the Bank of England, ii, 424, et seq. 
 forging and uttering bank-notes, ii. 424. 
 
 purchasing or receiving forged bank-notes, or having them in posses- 
 sion, knowing them to be forged, ii. 424. 
 making and using and having in possession any frame for making paper, 
 
 &c, ii.425. 
 engraving on any bank-note, &c, or using such plate, or having it in 
 
 possession, ii. 425. 
 engraving on any plate any word, &c, resembling any part of any bank- 
 note, &c, or using, &c, or having in possession, or uttering, &c, ii. 
 425, 426. 
 the bank may use an impression by machinery, instead of a signature 
 
 by handwriting, ii. 428. 
 cases on the statutes, 
 
 expunging an indorsement by lemon juice held rasing, under 8 & 
 
 9 Win. 3, ii. 429. 
 possession of a forged note, ii. 429. 
 what constitutes an uttering, ii. 429. 
 
 delivering a forged bank-note to another for the purpose of being 
 uttered, who did so accordingly, held, " a disposing and putting 
 away" of the same, on the 15 Geo. 2, ii. 430. 
 on an indictment for disposing of, &c, bank-notes, &c, on the 45 
 Geo. 3, c. 89, it is not necessary to aver to whom they were so 
 disposed, ii. 431. 
 
 the offence committed by notes furnished by prisoners to 
 agents of the bank, ii. 431. 
 evidence of guilty knowledge, ii. 432. 
 bank prosecutions, ii. 432. 
 
 election to proceed for minor offence, ii. 432. 
 of the securities of other public companies, ii. 433. 
 
 forging the seal, bond, &c, receipts or warrants of the South Sea Com- 
 pany, ii. 433. 
 forging, &c, the bond of the East India Company, ii. 434. 
 forgeries upon insurance companies, ii. 434. 
 of forging and transposing stamps, ii. 435, et seq. 
 
 52 Geo. 3, c. 143, s. 1 — offences in breach of and resistance to the 
 revenue laws, felony, ii. 435. 
 s. 7, forging, &c, marks, stamps, &c, felony, ii. 435. 
 s. 8, transposing any mark, stamp, &c, from one piece of plate to 
 another, and marking the base metal with forged stamp, ii. 
 436. 
 52 Geo. 3, c. 143, s. 9, making or having any frame, &c, for making 
 
 excise paper, &c, &c, ii. 437. 
 52 Geo. 3, c. 185, s. 7, ii. 437. 
 
 cutting a stamp from paper, &c, to use on another paper, &c, ii. 
 437.
 
 1036 INDEX. 
 
 FORGERY— continued.. 
 
 55 Geo. 3, c. 185, ii. 438. 
 
 s. 6, person forging plate, stamp, &c, to denote duty on alma- 
 nacks, newspapers, &c., ii. 439. 
 s. 7, forging, &c, stamp for plate, ii. 439. 
 
 2 & 3 Win. 4, c. 120, s. 32, forging stage carriage plates, ii. 440. 
 
 3 & 4 Wm. 4, c. 97, s. 11, vendors of stamps having possession of 
 
 counterfeit stamps, ii. 441. 
 s. 12, having forged dies in their possession, ii. 441. 
 
 9 Geo. 4, c. 18, s. 35, forging stamps relating to cards and dice, ii. 442. 
 
 56 Geo. 3, c. 56, s. 37, (Irish act), ii. 443. 
 
 forging any type, die, &c, of the stamp-office in Dublin, or using 
 
 or having them in possession, &c, ii. 443. 
 s. 38, possession, by licensed persons, of vellum paper, &c, with 
 
 counterfeit marks, &c, ii. 444. 
 s. 52, making or having any frame for paper, &c, 445. 
 s. 87, penalty for evading stamp duties, ii. 445. 
 56 Geo. 3, e. 78, (Irish act), ii. 446. 
 
 forging stamp, &c, on pasteboard, ii. 446. 
 6 & 7 Wm. 4, c. 69, s. 19, forging dies of silver and gold plate in 
 
 Scotland, ii. 446. 
 forging, &c, the assay marks on gold and silver manufactures, or the 
 
 mark, &c, used for gold and silver plate, ii. 447. 
 1 Geo. 4, c. 58, s. 12, as to stamps on paper, &c, in respect of excise 
 duties, ii. 451. 
 
 10 Ann. c. 19, s. 27, forging seals or stamps for linens, calicoes, &c., 
 ii. 451. 
 
 13 Geo. 3, c. 59, s. 2, forging any stamp, &c, provided by the Gold- 
 smiths' Company, ii. 447. 
 a fraudulent intent is not necessary to bring a case within the 13 Geo. 
 
 3, c. 59, ii. 449. 
 but it is to bring a case within the 12 Geo. 3, c. 48, ii. 450. 
 13 Geo. 3, c. 56, s. 5, forging any stamp provided by the commission- 
 ers, &c, ii. 452. 
 construction of the stamp acts, ii. 449, et seq. 
 
 question upon the words "intent to use," in the 12 Geo. 3, c. 48, 
 
 ii. 452. 
 innocently cutting off stamp and parchment, and fraudulently se- 
 parating them, ii. 4.Vi. 
 construction of the words " any paper liable to the said duties" in 
 
 the 23 Geo. 3, c. 49, ii. 454. 
 the words " duties of excise," and " duties under the management 
 
 of the commissioners of excise," held synonymous, ii. 456. 
 variance between a lion passant and a lion rampant, ii. 456. 
 engraving a counterfeit stamp, similar in some parts, and dissimi- 
 lar in others, to the genuine, &c., kc, ii. 457. 
 it is sufficient to describe a stamp as "a stamp provided and used 
 iu pursuance, &c, ii. 457. 
 trial, in what county, ii. 458. 
 of official pajwr, securities, and documents, ii. 459, et seq. 
 the mark of the receiver of prefines, &C, ii. 459. 
 uttering a false certificate of previous conviction, ii. 459. 
 of contracts, certificates, &c, for the redemption of the land-tax, ii. 460. 
 of excise permits, ii. 461, 462. 
 of debentures, &c, for the return of the money from duties of custom 
 
 or excise, ii. 463. 
 of the name or handwriting of the receiver-general, &o., of the ex 
 ii. 463.
 
 INDEX. 1037 
 
 — , 1*, 
 
 FORGERY — continued. 
 
 of the customs, ii. 464. 
 
 granting, &c, false permits in Ireland, ii. 464. 
 
 of instruments in the name of the receiver-general of the stamp duties, 
 &c, ii. 464. 
 
 of exchequer bills, ii. 465, 466. 
 
 of certificates, &c, relating thereto, ii. 467. 
 
 of franks, ii. 467. 
 
 forging the handwriting of the receiver-general of the post-office, ii. 468 
 
 forging dies for marking postage, ii. 468. 
 
 manufacturing or using paper similar to that used for postage covers, ii. 
 469. 
 
 receiving paper for postage covers before it is stamped, ii. 470. 
 
 of the name or hand of the registrar of the Court of Admiralty, &c, 
 ii. 471. 
 
 of the handwriting of the accountant-general of the Exchequer, ii. 471. 
 
 forging the handwriting of the accountant-general of the Court of Ex- 
 chequer, ii. 471. 
 
 forging warrants, &c, relating to the Exchequer, ii. 471. 
 
 counterfeiting certificates relating to Exchequer bills for Trinidad. 
 Guiana, St. Lucia, Dominica, ii. 472. 
 
 of the hand of the treasurer of the Ordnance, ii. 472. 
 
 of the hand of the agent-general for volunteers and local militia, ii. 473. 
 
 forgery and false personation for the purpose of obtaining pay, prize- 
 money, &c, pensions, &c, of soldiers and sailors, ii. 473, et seq. 
 
 forging names of officers entitled to prize-money, or of officers at Chel- 
 sea, &c, ii. 473. 
 
 forging Chelsea pensions, &c, ii. 475. 
 
 it is not necessary that the pension to which the document relate* 
 should be actually subsisting, ii. 476. 
 
 forging tickets, pay-lists, &c, to obtain prize, ii. 478. 
 
 subscribing false petitions to the treasurer of the navy, ii. 478. 
 
 forging extracts from registers of marriage, and to obtain prize-money, 
 ii. 479. 
 
 forging certificates relating to naval stores, ii. 479. 
 
 forging petitions to the inspector of seamen's wills, ii. 480. 
 
 forging certificates for half-pay, under the 2 & 3 Win. 4, c. 106, ii. 4S0. 
 
 forging certificates of service in the navy, or petitions from such ser- 
 vice, ii. 480. 
 
 fraudulent assignment of pensions, &c, ii. 481. 
 
 forging assignment of pensions, &c, ii. 482. 
 
 forging power of attorney to receive prize-money, ii. 482. 
 muster-books evidence, ii. 483. 
 
 of any Mediterranean pass, ii. 483. 
 
 of certificates, &c, relating to the slave trade, ii. 483, 484. 
 
 of quarantine certificates, ii. 484. 
 
 of documeuts relating to suitors in Chancery, ii. 485. 
 
 of an office copy of the report of the accountant-general, and of a cer- 
 tificate of one of the cashiers of the bank, ii. 485. 
 
 false entries in, and forgery and destruction of, parish registers, ii. 486. 
 et seq. 
 registers deposited under the 3 & 4 Vict. c. 92, ii. 488. 
 
 of any register, &c, concerning life annuities, ii. 489. 
 personating any nominee, ii. 490. 
 
 of memorials, &c, under the registry acts, ii. 491. 
 
 of declaration of return of premium on a policy of insurance, ii. 492. 
 
 of the name or handwriting of the surveyor-general of the woods and 
 forests, ii. 492.
 
 1038 INDEX. 
 
 FORGERY— continued. 
 
 licenses for cranages, ii. 493, 494. 
 of any hawker's license, ii. 494. 
 of private papers, securities, and documents, ii. 495. 
 forging wills, bills, notes, &c, ii. 495. 
 forging deeds, bonds, orders for delivery of goods, receipts, &c, ii. 495 
 
 construction of the 5 Eliz. c. 14, ii. 496. 
 questions upon the repealed statutes, ii. 496, et seq. 
 power of attorney is a deed, ii. 497. 
 uttering Scotch note in England, ii. 497. 
 promissory note for payment of one guinea, or cash of Bank of 
 
 England note, ii. 497. 
 bill drawn upon commissioners of navy held a bill of exchange, 
 
 ii. 498. 
 false assertion in an indorsement that indorser has a procuration, 
 
 ii. 499. 
 case of a promissory note which is not negotiable, ii. 501. 
 forging a bill payable to prisoner's own order, and uttering it with- 
 out indorsement, ii. 501. 
 hills of exchange defective when acceptances were forged upon 
 
 them, ii. 503. 
 cases of receipts, ii. 503, et seq. 
 
 " received the contents above by me, S. "W." a sufficient 
 
 statement of the receipt in the indictment, ii. 503. 
 a forged receipt for bank-notes i3 not a receipt for money or 
 goods, ii. 504. 
 
 but an entry of the receipt of money or notes made by a 
 cashier of the bank is an accountable receipt for the 
 payment of money, ii. 504. 
 the mere signing certain names to an assignment for payment 
 of a sum in a navy bill, does not purport to be a receipt, ii. 
 505. 
 indictments for forging the word " settled," ii. 508. 
 indictment for forging high constable's receipt, ii. 508. 
 import of the word " paid" at the bottom of a bill, ii. 508. 
 indictment for forging a receipt signed with initials, ii. 509. 
 forging receipts for subsistence money for the army, ii. 509. 
 altering sum in high constable's receipt, ii. 511. 
 a scrip receipt not filled up, ii. 511. 
 
 memorandum importing payment, but not a receipt, ii. 512. 
 forging a receipt in order to found a claim of payment thereon 
 
 against a third person, ii. 512. 
 as to the right of the prisoner to put the prosecutor to his 
 
 election of various forged receipts stated, ii. 513. 
 it is not an offence within the 1 Win. 4, c. 66, to forge an 
 indorsement on a warrant or order for the payment of 
 money, ii. 513. 
 signing receipt for another in the party's own name, ii. 513. 
 construction as to warrants or orders for payment of money, &c, 
 ii. 514, et seq. 
 the statute not confined to commercial transactions, ii. 514. 
 bills of exchange may be laid as warrants or orders for the • 
 payment of money, ii. 515. 
 instrument considered as such, ii. 515. 
 instance of what is not an order, &c, ii. 516. 
 the warrant or order must purport to have been made by one 
 having authority, &c, ii. 516.
 
 INDEX. 1039 
 
 FORGEKY— continued. 
 
 a note to a shopkeeper in the name of an overseer, not 
 
 within the statute, ii. 516. 
 a note to a tradesman, requesting the bearer to let him 
 
 have goods, &c, ii. 517. 
 an order for the purpose of obtaining a reward for the 
 
 apprehension of a vagrant, ii. 517. 
 order upon the treasurer of a county, ii. 518. 
 it ought to appear in the indictment that the person 
 whose name is subscribed had authority, &c, ii. 519. 
 if it purport to be one the party had a right to make, it 
 is sufficient, ii. 520. 
 
 the order must be directed to the holder or person interested 
 in or having possession of, the goods, ii. 520. 
 
 a forged order on a banker, though in a fictitious name, is 
 within the statute, ii. 520. 
 
 the order ought to import that the party making it had a dis- 
 posing power, or there ought to be proof that he had such 
 power, ii. 521, 522, 525. 
 
 foreign letter addressed to a correspondent here, ii. 523. 
 
 an order to pay a sum in advance of an intended voyage, ii. 
 523. 
 
 indictment stating the sum mentioned in a forged order good, 
 ii. 524. 
 
 if an instrument be both a warrant and an order it may be so 
 described in the indictment, ii. 525. 
 
 the specification of goods in the order, ii. 516. 
 
 case of an order not available by reason of some collateral ob- 
 jection, ii. 526. 
 
 forgery of requests for the delivery of goods, ii. 526. 
 
 a request need not be addressed to any person, ii. 526. 
 
 an instrument may be shown to be a request by the custom 
 of the trade, ii. 527. 
 
 a request purporting to be signed by a customer of a trades- 
 man, ii. 527. 
 
 the supposed writer of a request need not have any authority 
 or any interest in the goods, ii. 528. 
 
 the goods need not be specified in the request, ii. 528. 
 
 an instrument may be a request, though it is also an under- 
 taking to pay for the goods, ii. 529. 
 
 a request for the payment of money is not within the 1 Wm. 4, 
 c. 66, ii. 529. 
 
 where an indictment sets out a request it must either purport 
 or be shown by averment to be such, ii. 530. 
 
 the indictment must be for forging a request, and cannot be 
 for false pretences, ii. 531. 
 
 a conditional undertaking to pay money is within the 1 Wm. 
 4, c. 66, ii. 531. 
 
 making moulds for manufacturing paper of bankers, &c, ii. 
 532. 
 
 engraving bills, notes, &c, on plates, &c, ii. 533. 
 
 having plates, &c, or paper, &c, in possession, or uttering, 
 &c, ii. 553. 
 
 having possession of plates of notes of bankers in Upper Can- 
 ada, ii. 553. 
 
 engraving plates, &c, for foreign bills, or using or uttering 
 such plates, &c, ii. 534.
 
 1040 INDEX. 
 
 FORGERY— continued. 
 
 indictment for using plates, ii. 535. 
 
 election on counts for engraving, and counts for using, ii. 535. 
 on an indictment against several for engraving, a joint em- 
 ployment of the engraver must be proved, ii. 536. 
 qucere, whether persons causing plates to be engraved, must 
 know the nature of the instrument, ii. 536. 
 FORTUNE-TELLING, 
 
 cheats by, ii. 316. 
 FORUM DOMESTIGUM, 
 
 death by correction in, i. 518, 519, 645, et seq. 659. 
 FRAMES, 
 
 destroying, &c, ii. 585. 
 FRAUD.— See tit. Cheat. 
 FRAUDULENT CONVEYANCE, 
 
 cbeat by 3 ii. 314, 315. 
 FRANKS, 
 
 forgery of, ii. 467. 
 FREEHOLD, 
 
 larceny of things, part of the freehold, ii. 62, et seq. 
 FREE-MASONS, 
 
 assembly of, not unlawful, i. 282. 
 FRUIT, 
 
 stealing, ii. 69. 
 destroying, &c, ii. 576. 
 FRYER'S BALSAM, 
 
 not saleable without a stamped label, i. 133, n. (r). 
 FUNDS, 
 
 forgery, &c, relating to, 417, et seq. — See tit. Forgery. 
 conspiracy to raise by false rumour, ii. 679. 
 
 G. 
 GAME, 
 
 destroying in the night time, i. 469. 
 
 9 Geo. 4, c. 69, s. 1, any person unlawfully destroying game or rabbits in 
 the night, in any land, open or enclosed, i. 469. 
 any person unlawfully entering or being in any land by night for such 
 purpose, i. 469. 
 second offence, i. 469. 
 third offence a misdemeanor, i. 469. 
 
 s. 2, any person found on any land committing any such 
 offence may be apprehended by the owner, gamekeeper, 
 &c, i. 470. 
 
 such offender assaulting any owner, &c, guilty of a mis- 
 demeanor, i. 470. 
 s. 4, prosecutions for offences punishable on summary convic- 
 tion to be commenced within sis months, i. 470. 
 other prosecutious within twelve mouths, i. 470. 
 s. 8, convictions made evidence, i. 470. 
 
 s. 9, three or more together entering or being iu land by 
 night, for the purpose of taking game or rabbits, being 
 armed with offensive weapons, i. 471. 
 what shall be considered night, i. 471. 
 what shall be deemed game, i. 471. 
 what is the commencement of a prosecution, i. 471. 
 as to the authority to apprehend poachers, i. 472.
 
 INDEX. 1041 
 
 GAME — continued. 
 
 as to the form of an indictment for assaulting a game- 
 keeper, i. 473. 
 of the being armed, one being armed sufficient, i. 473. 
 not if the others are ignorant that he is so, i. 473. 
 a constructive arming not sufficient, i. 473. 
 what are offensive weapons, i. 474. 
 what sufficient evidence of being in the land, .i. 474. 
 whether an entry by one in the presence of two others 
 
 is sufficient, i. 475, 476, 477. 
 what is an entry within the statute, i. 478. 
 of the intent to kill game in the close laid in the indict- 
 ment, i. 478. 
 the indictment must specify the close, i. 479. 
 a variance in its name fatal, i. 480: 
 requisites of the indictment, i. 480, 481. 
 joinder of counts, i. 481. 
 larceny of, ii. 84, 85. 
 ownership of by unqualified person, ii. 96. 
 GAMING, 
 
 gaming-house a nuisance, i. 323, 325. 
 
 cockpit considered so, and indictable, i. 324. 
 proceedings against keepers of, i. 325. 
 playing at cards, &c, as a recreation, and for moderate sums, no offence, i. 
 455. 
 but excessive gaming is, i. 455. 
 9 Anne, c. 14, i. 455, et seq. 
 
 persons losing 101. at a sitting at certain games, i. 455, 456. 
 cases on the construction of this act, i. 456. 
 18 Geo. 2, c. 34, i. 456. 
 
 winning or losing at one time 101. or 201. within 24 hours, i. 456. 
 GAMING-HOUSE, 
 
 common, indictment for keeping, i. 323. 
 manner of proceeding on, i. 325. 
 GAOLER, 
 
 oppression, &c, by, i. 136. 
 
 forcing persons to give evidence, i. 136. 
 suffering his prisoner to escape, i. 137. 
 extortion by, 142, i. 143. 
 putting prisoners in irons, i. 420, n. (zo). 
 murder by duress of imprisonment by, i. 546. 
 when guilty of manslaughter, i. 644. 
 and assistants, killing prisoner, when justifiable, i. 667. 
 GARDEN, 
 
 stealing flowers in, &c, i. 737. 
 destroying vegetables, &c, in, ii. 576. 
 stealing, &c, ii. 69. 
 GAZETTE, 
 
 proof and effect of, in evidence, ii. 805. 
 
 the production of it will be sufficient, without proof of its being bought 
 of the King's printer, ii. 234, 805. 
 GLEANING, 
 
 taking corn by, whether felonious, ii. 10, 11. 
 GRAND JURY, 
 
 cannot find a true bill for part and false for part, i. 313. 
 evidence before, when a witness is allowed to divulge, ii. 912.
 
 1042 INDEX. 
 
 GREENWICH HOSPITAL, 
 
 embezzlement by pensioners and nurses in, ii. 197. 
 
 personating the name, &e., of a pensioner at, ii. 477. 
 GUILTY INTENT, 
 
 proof of, by showing acts of prisoner, not charged in indictment, ii. 777. 
 GUILTY KNOWLEDGE, 
 
 evidence of, i. 80, 84. 
 
 proof, by showing acts of prisoner not charged in indictment, ii. 404, 777. 
 GUINEAS, 
 
 buying and selling counterfeit at a lower rate, i. 86. 
 GUNPOWDER, 
 
 mills, &c, when a nuisance, i. 321. 
 
 II. 
 
 HABEAS CORPUS AD TESTIFICANDUM, 
 
 how to be obtained, ii. 946. 
 HACKNEY-COACHMAN, 
 
 felony bv, as to goods left in his coach, &c, ii. 12, et seq. 
 HAND-BILLS, 
 
 setting a person on a foot-way to distribute, whereby the foot-way is im- 
 peded, not an indictable offence, i. 51. 
 HANDWRITING, 
 proof of, ii. 818. 
 writer himself need not be called either fo prove or disprove his handwriting, 
 
 ii. 392, 393. 
 HARE, 
 
 killing, not an indictable offence, i. 51. 
 taking or killing in a warren, ii. 145. 
 HAWKER'S LICENSE, 
 
 forgery of, ii. 494. 
 HEALTH, 
 
 public, offences, affecting, i. 107. 
 HEARSAY, 
 
 when hearsay evidence is receivable, ii. 750, et seq. — See tit. Evidence. 
 HEATH, 
 
 setting fire to, ii. 554. 
 HIDES, 
 
 burying or destroying, ii. 140. 
 HIGH SEAS, 
 
 offences on. — See tit. Piracy. 
 
 where triable, i. 100, 101, 102. 
 murder on, i. 550, 551. 
 
 wound on seas and death on shore, or vice versa, i. 554. 
 HIGH TREASON, 
 
 how many witnesses necessary in, ii. 944. 
 HIGHWAY.— See tit. Road. 
 
 what is a public highway, i. 332. 
 rivers considered as, i. 378. 
 bridge in a highway, i. 385, 386. 
 cartway, or footway, &c, i. 332, 333. 
 the number of persons using or repairing a way will not make it oue. 
 
 if it be not common to all, i. 333. 
 the freehold and profits belong to the lord of the soil, i. 333. 
 right of the public to go out of a highway, i. 334. 
 by dedication to the public, i. 334, et seq. 
 trustees may dedicate, i. 335. 
 intention of the owner to dedicate, i. 335, 337.
 
 INDEX. 1043 
 
 HIGHWAY— cmtinued. 
 
 acts of lessee not sufficient, i. 335. 
 there must be the consent of the owner in fee, i. 336. 
 where there has been a compulsory obligation to permit a qualified pas- 
 sage, i. 336. 
 road set out under an enclosure act as a private road, i. 337. 
 partial dedication, i. 337. 
 roads made public by statutes during the continuance of such statutes. 
 
 i. 338. 
 where several roads authorized to be made, all must be made before any 
 become public, i. 338. 
 highways widened, changed, &c. t i. 339, et seq. 
 an ancient highway might be changed by writ of ad quod damnum, i. 339. 
 
 by act of God, i. 339. 
 5 & 6 Wm. 4, c. 50, power given to justices to widen and change highways, 
 i. 339, et seq. 
 extends to roads repairable, ratione teniiree, i. 344. 
 diverting, stopping up, &c, highways, bridleways, and footways, i. 340, 
 
 et seq. 
 surveyor to apply to justices to view, i. 340. 
 notice, i. 340, 341. 
 appeal, i. 342. 
 new highways, &c, to public highways, i. 344. 
 parties liable to repair old liable to repair new ways, i. 344. 
 dividing highways when the boundaries of the parish are in the middle, 
 i/345. 
 highways may be changed by particular statutes, i. 345. 
 
 towing path not affected by act to change course of river, i. 346. 
 in what instances changed by individuals, i. 347. 
 nuisances to by obstruction, i. 347 , et seq. 
 trees overhanging, i. 347. 
 new gates, i. 347. 
 ditches not scoured, i. 347. 
 carriages left and excessive burdens, i. 348. 
 all unauthorized obstructions indictable, i. 348. 
 instances of obstructions, i. 348, et seq. 
 not excused by plea of the party's business, i. 349. 
 narrowing highways, i. 350. 
 no defence that an alteration is more useful for other purposes of the 
 
 road, i. 351. 
 unless authorized by a statute, i. 351. 
 nuisance to by not repairing, i. 351, et seq. 
 
 obligation to the parish to repair, i. 353, et seq. 
 of common right, i. 352. 
 
 effect of particular statutes upon, i. 352. 
 no agreement can exonerate a parish, i. 352. 
 no highways to be repaired by a parish unless the party dedicating 
 make them to the satisfaction of the surveyor, &c, i. 353. 
 roads dedicated to the public, i. 353. 
 roads in aliena parochia, i. 356. 
 where the parish lies in two counties, i. 354. 
 highways divided and allotted by justices, i. 354. 
 liability does not extend to keeping the road from being dirty, or 
 
 to widening it, i. 355. 
 extra-parochial place, i. 357. 
 obligation of subdivisions of a parish to repair, i. 356, 357. 
 by prescription, i. 356.
 
 1044 INDEX. 
 
 HIGHWAY— continued. 
 
 highway at the end of a county bridge, i. 356. 
 all highways within a township, i. 357. 
 ratione tenures cannot exist, i. 357. 
 obligations of individuals to repair, i. 356, et seq. 
 corporation aggregate by prescription, i. 356. 
 of a private person cannot be by prescription, l. 356. 
 
 nor as lord of the manor, i. 356. 
 each of several grantees bound to repair the whole, i. 358. 
 by reason of enclosure, i. 358. 
 
 of a road made in pursuance of a writ of ad quod damnum, i. 
 359. 
 turnpike acts, i. 359. 
 
 3 Geo. 4, c. 126, (general,) i. 359. _ 
 
 agreements of, trustees of turnpike roads with persons liable to re- 
 pair, i. 359. 
 13 Geo. 3, and 4 Geo. 4, i. 359. 
 
 repairs where roads have been turned, i. 359, 360. 
 statutes relating to the repair of roads, i. 360. 
 
 do not abrogate the common law provisions, i. 360. 
 turnpike acts and enclosure acts, i. 360. 
 
 cases on the construction of, i. 360, et seq. 
 meaning of the word "road," i. 360. 
 parish not bound to repair fences or ditches, i. 360. 
 u to" and "from," exclude the place, i. 361. 
 enclosure commissioners cannot throw the repair of private roads on the 
 
 parish, i. 361. 
 indictment or information for nuisances to, i. 362, et seq. 
 presentment, abolished, i. 362. 
 mode of proceeding before justices where highway is out of repair, i. 
 
 362, et seq. 
 where justices may order an indictment, i. 363. 
 information, i. 363. 
 
 in what cases granted, i. 363. 
 indictment, i. 364. 
 
 form of, i. 364, et seq. 
 
 a person bound ratione tenurce indictable, though not resident, i. 
 366. 
 defence under general issue or special plea, i. 366, et seq. 
 instances where special plea necessary, i. 366. 
 parish must show who are liable to repair, and what parts of the 
 
 highway, i. 367. 
 traverse of obligation to repair, i. 368. 
 evidence, i. 369, et seq. 
 
 of former conviction, conclusive, when, i. 369. 
 of former acquittal, no proof that parish is not bound, i. 370. 
 surveyor and inhabitants, competent, i. 370. 
 prosecutor, i. 370. 
 certiorari, i. 371. 
 new trial, when grantable, i. 371. 
 the judgment, i. 371. 
 
 levying and application of fines, i. 373. . 
 
 when turnpike roads are indicted, the court may apportion the lino 
 and costs between the inhabitants and trustees, i. 373. 
 costs awarded by the court, 374, et seq. 
 
 where there has been a removal by certiorari, i. 375, 376. 
 payment of expenses under an agreement at a vestry, kc, i. 137.
 
 INDEX. 1045 
 
 HOMICIDE, 
 
 excusable homicide, i. 656. 
 
 no punishment or forfeiture shall be incurred by any person who shall kill 
 auother by misfortune, or in his own defence, or in any other manner 
 without felony, i. 656. 
 justifiable homicide, i. 656. 
 excusable homicide by misadventure, i. 657, et seq. 
 
 persons doing a lawful act, and happening to kill, i. 657. 
 persons following their common occupations, i. 657. 
 persons using dangerous articles or instruments, i. 657. 
 
 degree of caution to be observed in using dangerous instruments, 
 i. 658. 
 correction inforo domestico, i. 659. 
 death happening from lawful sports, i. 659. 
 
 sports where deadly weapons are used, i. 660. 
 excusable liomicide in self-defence, i. 660. 
 
 defence of person, — chance medley, i. 660. 
 borders nearly on manslaughter, i. 661. 
 
 party killing must not act with premeditation, and must forbear as 
 much as he can, &c, i. 661. 
 defence of property against trespassers, i. 662, et seq. 
 upon unfortunate necessity, i. 664. 
 justifiable liomicide, i. 665, et seq. 
 
 acts of unavoidable necessity, or permitted by law, i. 665. 
 
 execution of malefactors, i. 665. 
 
 officers killing those who assault or resist them, i. 665. 
 
 who fly from arrest, i. 666. 
 officers dispersing a mob in case of a riot, &c, i. 667. 
 gaolers and their assistants killing prisoners, i. 667. 
 malefactors in pare is, i. 667. 
 in the prevention of any forcible and atrocious crime, i. 667. 
 
 killing persons attempting to rob or murder, or commit burglary 
 
 i. 668. 
 grounds of suspicion of a felonious design, i. 668. 
 apparency of intent, i. 669. 
 unless manifest felonious intent, an assault will not justify, i. 
 
 669. 
 the necessity must not be brought upon himself by the party 
 killing, i. 669. 
 interference by third person to commit felony, i. 670. 
 interference in cases of mutual combats and affrays, i. 670. 
 time within which homicide will be justifiable, i. 670. 
 felonious ; the felonious intention in, i. 46, note (y). 
 HOP-BINDS, 
 
 cutting and destroying, ii. 577. 
 HOPS, 
 
 enhancing the price of, i. 170. 
 HORSE, 
 
 stealing, ii. 134. 
 
 principals in second degree, and accessories, ii. 134, 135. 
 slaughtering, ii. 140. 
 
 selling unsound, not indictable, ii. 285. 
 nor a conspiracy so to do, ii. 687. 
 HOUSE. — See tit. Dwelling-House. 
 
 explanation of the rule that a man's house is his castle, i. 629, et seq. 
 pulling down by persons riotously assembled, i. 269. 
 what is, for the purpose of burglary, i. 797, etseq.
 
 1046 ' INDEX. 
 
 HOUSE — con t in ued. 
 
 housebreaking, i. 848. 
 arson, ii. 550, et seq. 
 HOUSE OF COMMONS, 
 
 publication of the proceedings of, 228. 
 
 libels against, i. 236. 
 
 speeches, &c, in, not to be divulged in evidence, ii. 912. 
 
 admission made on examination before committee of, ii. 854. 
 perjury before committees, ii. 314. 
 journals of proof and effect of, ii. 805. 
 HOUSE OF LORDS, 
 libels against, i. 236. 
 journals, proof and effect of, ii. 805. 
 reversal of judgment in, evidence of, ii. 805. 
 HOUSE-BREAKING, 
 
 having implements of, with felonious intent, i. 49. 
 
 what it is, i. 487. 
 
 7 & 8 Geo. 4, c. 29, s. 12, i. 847. 
 
 persons breaking and entering a dwelling-house, and stealing, &c, i. 847. 
 
 does not extend to buildings within the curtilage, i. 848. 
 principals in second degree and accessories, i. 848. 
 
 their punishment and trial, i. 848. 
 breaking and entering necessary to constitute, i. 848. 
 
 must be attended with larceny, i. 848. 
 dwelling-house, question as to what shall be deemed, same as in bur- 
 glary, i. 849. 
 HUSBAND.— See tit. Feme Covert. 
 
 incompetency of husband and wife, as witnesses for and against each other, 
 ii. 891, et seq. — See tit. Witness. 
 
 I. 
 
 IDEM SONANS, 
 
 instances of, ii. 797. 
 IDIOTS, 
 
 how far capable of committing crimes, i. 6, et seq. — See tit. Capability. 
 
 distinction between and lunatic, i. 8. 
 
 proceedings with respect to, i. 14. 
 
 disposal of persons acquitted on the ground of insanity, i. 15, 16, 17. 
 found insane on arraignment, &c, i. 15. 
 discharged for want of prosecution, i. 15. 
 becoming insane, after conviction, &c, i. 17. 
 
 incompetent to give evidence, ii. 969. 
 IGNORANCE, 
 
 in what cases an excuse for the commission of a crime, i. 24, 25. 
 ILLEGAL BROKERAGE, 
 
 offences by statute, i. 459. 
 IMPRISONMENT, 
 
 unlawful amounts to an assault, i. 753. 
 INDECENCY, 
 
 indecent exposure and open lewdness indictable as a nuisance, i. 326. 
 INDICTABLE OFFENCES, i. 44, et seq.— See tit. Misdemeanor. 
 
 felonies, i. 44. 
 
 by statute, i. 44, 45. 
 
 misdemeanors, i. 45, ct seq. 
 
 misprisions, i. 45. 
 
 neglect of young children, i. 46.
 
 INDEX. 1047 
 
 INDICTABLE OFFENCES— continued. 
 
 attempts to commit felonies, i. 47. 
 attempts to commit misdemeanors, i. 47. 
 disobedience to an order in council, i. 105, 412. 
 to a statute,' i. 46, 49, 50. 
 to an order of magistrates, i. 412. 
 offences of a public nature, i. 45. 
 attempts to commit crimes, i. 4G, 47. 
 act done with criminal intention sufficient, i. 48, 49. 
 procuring base coin with intent to utter, i. 48. 
 offences created by statutes, when indictable, 49, 50. 
 
 not indictable, i. 50, 51. 
 cases not indictable, enumerated, i. 51, 52. 
 
 nonfeasance and particular wrong not in general indictable, i. 52. 
 trespasses not in general indictable, i. 53. 
 INDICTMENT, 
 
 against accessories, i. 30, 40, and notes. — See tit. Accessory. 
 
 where the name of the principal must be stated, if known, i. 40. 
 for receiving, paying, putting off, &c, counterfeit coin, i. 79, 80, 83. 
 
 for second offence, i. 80. 
 for seducing soldiers, &c, i. 93. 
 for offences against revenue laws, i. 117, 118. 
 for taking unlawful oaths, i. 127. 
 for neglect of duty by persons in office, i. 139. 
 for extortion, i. 144. 
 for monopoly, i. 173. 
 for barratry, i. 184. 
 for a libel, i. 247, 248. 
 for a riot, &<$., i. 287, 288. 
 for sending a challenge, — venue, i. 298. 
 for a forcible entry and detainer, i. 311. 
 for keeping disorderly houses, i. 326. 
 for nuisances in general, i. 329. 
 
 to highways, i. 364. 
 
 general issue, or special plea, when necessary, i. 366. 
 traverse of obligation to repair, i. 368. 
 special plea by parish, when necessary, i. 367. 
 
 to public bridges, i. 402. 
 
 pleadings — special plea, &c, i. 404. 
 for disobedience to orders of magistrates, i. 413. 
 
 must show an order made, i. 414. 
 for escapes suffered by officers, 422. 
 for prison-breaking, i. 430. 
 for a rescue, i. 434. 
 for aiding attempts to escape, i. 440. 
 for returning from transportation, i. 451. 
 for gaming, i. 457. 
 for usury, i. 461. 
 for illegal brokerage, i. 462. 
 
 sum laid not material, i. 462. 
 for destroying game in the night, i. 473, 479, 480, 481. 
 for murder, i. 549, et seq. 
 
 description of party killed, i. 555. 
 
 manner and means, i. 557, et seq. 
 
 averment of malice aforethought, i. 563. 
 for manslaughter, i. 654. 
 for destroying infants in the womb, i. 673. 
 Vol. il— 68
 
 104S INDEX. 
 
 INDICTMENT— continued. 
 
 for rape, i. 686. 
 
 for carnal knowledge of children, i. 694, 697. 
 
 for sodomy, i. 699. 
 
 for forcible abduction of females, i. 709. 
 
 for wounding with intent to murder, &c, i. 746. 
 
 for an assault, i. 159. 
 
 for striking in courts of justice, i. 762. 
 
 for assault with intent to rob, i. 767. 
 
 for burglary, i. 825, et seq. 
 
 offence begun in one county and completed in another, i. 549, 827. 
 
 for larceny, ii. 106, et seq. 
 
 for stealing from the person, ii. 132. 
 
 for embezzlement, ii. 185, et seq. 
 
 of bankrupt, ii. 230, et seq. 
 
 for receiving stolen goods, ii. 242, et seq. 
 
 for a cheat, ii. 286. 
 
 for obtaining money by false pretences, ii. 305, et seq. 
 
 for forgery, &c, ii. 372, et seq. 
 
 for arson, ii. 563, et seq. 
 
 for maiming cattle, ii. 573. 
 
 for perjury, ii. 620, et seq. 
 
 for a conspiracy, ii. 691, et seq. 
 
 for sending a threatening letter, ii. 721. 
 
 venue, 
 
 offence begun in one county and completed in another, ii. 120. 
 
 during a journey, ii. 120. 
 
 offences committed near boundaries of counties, ii. 120. 
 
 in offences committed respecting the post office, ii. 207. 
 
 in an indictment for receiving stolen goods, ii. 237. 
 
 for forgery, ii. 389, 458. 
 
 in indictment for malicious injuries, ii. 547. 
 
 conspiracy, ii. 696. 
 
 sending threatening letters, ii. 722. 
 
 what defects shall not vitiate, after verdict or otherwise, ii. 113. 
 
 what shall not be sufficient to stay or reverse j udgment after the verdict, ii. 1 1 5 . 
 
 copy of, how obtained after an acquittal, ii. 812. 
 
 INDUCEMENT, 
 
 matter of, when and how to be proved, ii. 793. 
 
 INFANT, 
 
 committing misdemeanors, i. 1. — See tit. Capability. 
 
 capital crimes, i. 2 — 6. 
 
 murder, i. 3 — 5. 
 
 rape, i. 3. 
 
 new statutory felonies, i. 5, 6. 
 
 treasons, i. 5. 
 
 how far statutes extend to cases of infants, i. 5, 6. 
 
 a principal iu second degree, when, i. 3. 
 
 of delaying execution when an infant is convicted, i. 6. 
 
 age of consent to marriage, i. 6. 
 
 distinction of ages in the civil law, i. 3, n. (o). 
 
 not excused from the commission of a crime by the coercion of a parent, i. 1 v 
 
 neglect of, who indictable for, i. 46. 
 
 • • i 
 
 endeavouring to induce to grant annuities, i. 461. — See tit. Usury. 
 
 murder of, i. 485. 
 
 wound before birth, death after, i. 485. 
 
 murder of infants on their birth, i. 486.
 
 INDEX. 1049 
 
 INFANT — continued. 
 
 child must be wholly born, i. 486. 
 breathing not sufficient, i. 486. 
 independent circulation, i. 486. 
 while connected by the umbilical cord, i. 486, 487. 
 murder by rape of, i. 505. 
 
 not punishable as rioters, if under the age of discretion, i. 272. 
 destroying infants in the womb, i. 671. 
 common law offence, i. 671. 
 
 1 Vict. c. 85, administering poison, &c, with intent to cause miscar- 
 riage, i. 671. 
 construction of statutes, i. 672, 673. 
 indictment on, i. 673. 
 woman concealing the birth of, 571, et seq. 
 unlawful carnal knowledge of female children, i. 693. 
 a child under ten years old, i. 693. 
 a child above ten and under twelve, i. 693. 
 
 what shall be proof of carnal knowledge, i. 682. 
 testimony of a child, i. 694. 
 
 postponement of trial where child not capable, i. 695, ii. 970. 
 abduction, &c, of, i. 701, et seq. 
 child stealing, i. 718. 
 testimony of a child, ii. 969. 
 INFECTION, 
 
 spreading infectious disorders, i. 107, et seq, i. 357. 
 murder by, i. 107, 505. 
 INFORMATION, 
 
 on penal statutes, 
 
 compounding, i. 132. — See tit. Compounding. 
 for a libel, i. 241. — See tit. Libel. 
 for sending a challenge, i. 298. 
 INFORMERS, 
 
 protection of, in evidence, ii. 910. 
 ENGROSSING, 
 
 nature of the offence, i. 168. 
 statutes on the subject repealed, i. 168. 
 still punishable at common law, i. 168, 169. 
 enhancing the price of hops, i. 170. 
 indictment and punishment, i. 173. 
 INN, < 
 
 disorderly, a nuisance and indictable, i. 322. 
 no license necessary for keeping, i. 322. 
 setting up new inns, i. 322. 
 innkeepers refusing to receive travellers, i. 322. 
 INSANE PERSONS— See tit. Capability, Lunatics. 
 INSOLVENT DEBTOR, 
 
 embezzlement and frauds by, ii. 235, 236. 
 fraudulent schedule of, ii. 235. 
 perjury by, ii. 615. 
 INSPECTION, 
 
 of records, ii. 81 2. 
 
 copy of indictment, how obtained after acquittal, ii. 812. 
 of public books, ii. 816. 
 
 never granted in criminal cases, ii. 816. 
 INSURANCE, 
 
 forgeries upon companies, ii. 434, 492.
 
 1050 INDEX. 
 
 INSURANCE— continued. 
 
 proof of, ii. 567. 
 
 unstamped policy of, ii. 567. 
 INTENTION, 
 
 to commit a felony or misdemeanor, i. 46, et teq. — See tit. Misdemeanor. 
 
 an act resting in bare intention not indictable, i. 46. 
 
 but an act done, and a criminal intention joined thereto, are sufficient, 
 i. 48. 
 
 intent to break houses, i. 49. 
 
 intent to murder, &c, i. 734, et seq. 
 INTEREST, 
 
 incompetency from, ii. 977. — See tit. Witness. 
 IRELAND, 
 
 marriages in, i. 213, 214. 
 by minors, i. 215. 
 
 unlawful assemblies in, i. 283. 
 
 abduction in, i. 715. 
 
 stealing in, ii. 119. 
 
 J. 
 
 JEWS, 
 
 marriage of, i. 216. 
 
 divorce of, i. 216. 
 JOINT TENANTS, 
 
 larceny by, ii. 86. 
 JUDGE, 
 
 oppression by, how punishable, i. 135. 
 
 a competent witness, ii. 988. 
 JUDGMENT OF DEATH, 
 
 where it may be recorded under the 4 Geo. 4, c. 48, Appendix of Statutes. 
 JUDICIAL NOTICE, 
 
 court will take of a war, ii. 701. 
 JURYMAN, 
 
 tampering with, bribing, or attempting to bribe, i. 47, 154. 
 
 corrupting and influencing juries, i. 182. 
 
 a competent witness, ii. 988. 
 JUSTICE OF THE PEACE, 
 
 acting as, not being qualified, not indictable, i. 51. 
 
 oppression, &c, by, how punishable, i. 135, 136. 
 refusing to grant ale licenses, i. 136. 
 
 justices at petty sessions may fine constables, &c, for neglect of duty, i. 140. 
 
 suppression of affrays by, i. 286, note (J), 295, 296. 
 
 orders of, disobedience to, i. 412. 
 
 power to disperse unlawful assemblies, i. 274, 275, 285, 286, note (f). 
 
 examinations before. — See tit. Examination, Deposition. 
 
 K. 
 
 KIDNAPPING, 
 
 carrying away or secreting any person, i. 716. 
 
 forcible abduction of persons, sending them into other countries, i. 716. 
 
 sending prisoners out of England, i. 716. 
 9 Geo. 4, c. 31, s. 30, i. 717. 
 
 punishment of master, &e., forcing his seaman on shore, or refusing to 
 bring him home, i. 717.
 
 INDEX. 1051 
 
 KIDNAPPING— continued. 
 
 mode of trial, &c, i. 717. 
 
 5 & 6 Win. 4, c. 19, forcing on shore or leaving behind any of the crew, i. 717 
 KING, 
 
 his money, what is, i. 51. — See tit. Coin. 
 
 disobedience to his commands to return or to stay at home, or assist at his 
 council, i. 91. 
 
 his enemies, adhering to, when piracy, i. 98. 
 
 petition to, not libellous, i. 223, 224. 
 
 libels against, i. 220, 234. 
 
 LAND REVENUE, 
 
 perjury in respect to, ii. 612. 
 LAND TAX, 
 
 forgery of certificates, &c, for redemption of, ii. 460. 
 LARCENY, 
 
 derivation of the word, ii. 1. 
 
 distinction between grand and petit larceny, abolished by the 7 & 8 Geo. 4. 
 c. 29, s. 2, ii. 1. 
 
 punishment for simple larceny by that statute, ii. 1. 
 
 punishment of principals in second degree and accessories, ii. 2. 
 definition of, ii. 2. 
 of the taking, lucri causa, ii. 3. 
 
 a taking fraudulently with intent wholly to deprive the owner of the pro- 
 perty, ii. 3. 
 taking a horse and forcing it down a coal-pit, ii. 3. 
 clandestinely taking his master's corn to feed his horses, ii. 3. 
 taking a letter out of a parcel, ii. 3. 
 taking ore from mines, ii. 4. 
 of the taking and carrying away, ii. 5. 
 
 of the actual taking and trespass, ii. 5. 
 
 any removal of the goods with a felonious intent is sufficient, ii. 5. 
 but there must be an entire possession by the thief, though but 
 for an instant, ii. 5, 6. 
 there must be a severance, ii. 6. 
 
 the offence cannot be purged by returning the goods, ii. 7. 
 of the animus fur andi, ii. 7, 8. 
 
 cases where the taking is only a trespass, ii. 8. 
 
 the taking may be by mistake without any animus furandi, ii. 9. 
 
 the animus may be negatived by a claim of right, ii. 9, 10. 
 
 of taking corn by gleaning, ii. 10, 11. 
 
 where there is any doubt as to the right, the court will direct an 
 
 acquittal, ii. 11. 
 where the taking is by finding, ii. 11, et seq. 
 hackney-coachmen, ii. 12, 13. 
 bank-notes found and converted, ii. 13, 14. 
 money found by a carpenter in a bureau sent to be repaired, 
 ii. 15. 
 in secret drawer of a bureau sold by auction, ii. 15. 
 the animus may be negatived as to one of several, whose object 
 was to apprehend the others, ii. 18. 
 the talcing must he "invito domino," et seq. 
 
 cases where the taking is by the delivery or consent of the owner, 
 or some one having his authority, ii. 21.
 
 1052 INDEX. 
 
 LARCENY — continued. 
 
 delivery where there is no change of property or legal possession, 
 ii. 21. 
 cases where there is a hare charge, or custody, or special use, ii. 21. 
 bank-note sent to be changed, ii. 22. 
 delivery where the owner remains present, ii. 23, 24. 
 
 parts with the property, ii. 24. 
 riding away with a horse from a fair, after it was sold, without 
 
 paying, ii. 24. 
 goods ordered to be paid for on delivery, and delivered upon a 
 
 fraudulent payment, ii. 25. 
 money paid on a fraudulent bet, ii. 26, 27. 
 delivery obtained by using another person's name, or other false 
 
 pretences, ii. 27", et seq. 
 distinction between larceny and false pretences, ii. 28. 
 pawnbroker's servant delivering pledges through fraud, ii. 29. 
 servant induced through fraud to part with property without mas- 
 ter's authority, ii. 29, 30. 
 embezzling the proceeds of a check delivered to get cashed, ii. 30, 
 et seq. 
 of a check to be delivered to a particular person, ii. 34. 
 of a check out of a parcel, ii. 34. 
 delivery where the owner does not part with the property, but only 
 the possession, ii. 35. 
 delivery obtained fraudulently with intent to steal, ii. 35. 
 cases of swindling, ii. 35. 
 pretended purchaser, ii. 35, et seq. 
 pretence of giving change, ii. 42, et seq. 
 fraudulently obtaining a receipt for rent, on pretence of 
 
 wanting to look at it, ii. 44. 
 property obtained by means of cards, bets, &c, ii. 45. 
 ring-dropping, ii. 46, et seq. 
 persons acting in concert, ii. 49. 
 
 fraudulent hiring of horses, carriages, &c, ii. 50, et seq. 
 abuse of legal process, ii. 54, et seq. 
 ejectment, ii. 55. 
 delivery without fraud, and a new felonious taking, ii. 56, et 
 seq. 
 cases of tailors, carriers, and other bailees, ii. 56. 
 horses, &c, hired, bond fide, ii. 56. 
 conversion of goods saved from fire, ii. 57. 
 
 of goods delivered by mistake, ii. 58. 
 privity of contract determined by the tortious acts of a bailee, 
 
 ii. 58. 
 carriers taking whole package, ii. 59. 
 breaking bulk, ii. 59, et seq. 
 of the goods in respect of which it may be committed, ii. 52, et seq. 
 
 at common law, it cannot be of things which are part of the free- 
 hold f ii. 62. 
 secus, when served, ii. 62. 
 by statutes, ii. 62. 
 
 stealing from certain mines, ii. 63. 
 stealing things annexed to buildings, &c, ii. 63, et seq. 
 construction of statutes, ii. 63. 
 
 7 & 8 Geo. 4, c. 20, s. 45, stealing chattels or fixture >• 
 let to tenants or lodgers, ii. 67.
 
 INDEX. 1053 
 
 LARCENY — continued. 
 
 7 & 8 Geo. 4, c. 29, s. 38, stealing trees, shrubs, fences,, 
 fruit, &c., ii. 63, et seq. 
 larceny of written instruments, ii. 70. 
 
 parchment writings which do or do not concern the realty, ii. 
 
 70 > 7L 
 box in which they are kept, n. (1. 
 
 7 & 8 Geo. 4, c. 29, s. 23, ii. 72. 
 stealing of wills, ii. 71. 
 
 7 & 8 Geo. 4, c. 29, s. 22, ii. 71. 
 stealing records, &c, ii. 73. 
 
 records, &c, in Ireland, ii. 73. 
 stealing choses in action, ii. 73, et seq. 
 
 public or private securities for money, or warrants for 
 goods, ii. 73, et seq. 
 Exchequer bills not signed by proper person, ii. 74. 
 country notes paid by the London bankers, stolen 
 in transitu for the purpose of being re-issued, ii. 
 74, et seq. 
 stealing halves of country bank-notes, ii. 76. 
 
 re-issuable notes in the hands of their makers, ii. 76. 
 
 imperfect bills, notes, &c, ii. 77. 
 
 unstamped order for payment of money, ii. 79. 
 
 party compelled by violence to sign a promissory note, 
 
 ii. 97, et seq. 
 a check on a banker, ii. 81. 
 bank post bill, ii. 81. 
 larceny of animals, birds, and fish, ii. 82, et seq. 
 domestic animals, and their produce, ii. 82. 
 animals fierce natural, reclaimed or dead, ii. 83, 84. 
 
 an unqualified person may have possession of game to 
 support indictment, ii. 84. 
 animals, where reclaimed, ii. 83, 84. 
 
 indictment must show them either dead, tame, or confined, ii. 84. 
 deer, coneys, fish, &c, ii. 85. 
 animals of a base nature, ii. 85. 
 ferrets, ii. 85. 
 
 dogs and certain beasts and birds ordinarily kept in confine- 
 ment, ii. 85. 
 persons found in possession of stolen dogs, &c, ii. 86. 
 pigeons, ii. 83, 86. 
 of the ownership of the goods in respect of which it may be committed, ii. 86. 
 joint tenants or tenants in common, ii. 86. 
 goods let with a lodging or house, ii. 87. 
 husband and wife, ii. 87. 
 
 a man stealing: his own goods from a bailee, ii. 87. 
 property of friendly societies, ii. 87. 
 larceny by wife of a member of a friendly society, ii. 88. 
 larceny of a man's own goods with intent to defraud the Crown, ii. 88. 
 goods in possession of a wife, ii. 89. 
 goods of a convicted felon, ii. 89. 
 the ownership will not be divested by any intermediate tortious taking. 
 
 ii. 90. 
 special property, ii. 90, et seq. 
 
 of lessee, bailee, pawnee, carrier, &c, ii. 90. 
 
 agister of cattle, ii. 91. 
 
 where the goods were in custodia legis, ii. 92.
 
 1054 INDEX. 
 
 LARCENY — continued. 
 
 where the goods are in custody of servants, ii. 92. 
 
 goods stolen from stage coach on its journey, ii. 93. 
 
 possession of agent, ii. 94. 
 ownership of clothes, &c, of children, ii. 94. 
 
 property laid jointly in a grandfather and grandchildren, ii. 95. 
 actual possession by surviving partner and widow of deceased partner. 
 
 ii. 96. 
 ownership of game by unqualified persons, ii. 96. 
 ownership of treasure trove, essays, wrecks, &c, ii. 96. 
 ownership where the person of owner is unknown, ii. 97. 
 
 indictment must not state it so, if the owner is known, ii. 97. 
 ownership of goods belonging to a church, and of shrouds or coffins, ii. 
 
 98. 
 ownership of the goods of a deceased person, ii. 99. 
 ownership of corporations and trustees, ii. 99, et seq. 
 ownership of partners, and other joint owners, how to be laid, ii. 101. 
 property belonging to counties, how to be laid, ii. 102. 
 property ordered for the use of poor of parishes, &c, how laid, ii. 102. 
 materials for repairing highways, how to be laid, ii. 103. 
 property of turnpike trustees, how to be laid, ii. 103. 
 property of commissioner of sewers, how to be laid, ii. 103. 
 property of joint stock banks, how to be laid, ii. 103, 104, 105. 
 
 of friendly societies, how to be laid, ii. 105. 
 
 of savings' banks, ii. 105. 
 
 loan societies, ii. 105. 
 
 workhouses, &c, ii. 105. 
 indictment, ii. 106, et seq. 
 
 description of goods, ii. 107. 
 
 name of owner, ii. 107. 
 
 certainty in the description, ii. 107, 108. 
 
 as they are known in trade, ii. 108. 
 
 matters defined by a statute, ii. 109. 
 
 money, ii. 109. 
 
 written securities, ii. 109, 110. 
 
 bank-notes, ii. 110. 
 
 bank post-bills, ii. 111. 
 
 re-issuable notes, papers, &c, ii. Ill, 112. 
 
 cattle and other animals, ii. 112. 
 conclusion of, ii. 113. 
 
 contra pacem, ii. 113. 
 what defects shall not vitiate an indictment after verdict, &c, ii. 113, 
 
 114, 115. 
 a bad contra pacem is cured after verdict, ii. 114. 
 but is fatal on demurrer, ii. 114. 
 
 an entire omission of contra formam statui still bad after verdict, ii.115. 
 all objections cured by verdict must be taken upon demurrer, ii. 115. 
 what shall not be sufficient to stay or reverse iudcment after verdict, ii. 
 
 115. 
 rule for the interpretation of statutes, 7 & 8 Geo. 4, c. 28, s. 14, ii. 116. 
 no objections that the descriptions in indictment do not correspond in 
 number or gender with those in statute, ii. 116. 
 trial, ii. 116. 
 
 must be in the proper county, ii. 116. 
 
 but the offence is committed in every county into which the thief 
 carries the goods, ii. 116, 117, 118. 
 
 exception to this rule of goods stolen at sea. ii. 119.
 
 INDEX. 1055 
 
 LAECENY — continued. 
 
 in Scotland and Ireland, ii. 119. 
 fixtures, ii. 110. 
 goods stolen by several, and divided in one county, and then the 
 
 shares carried into another, ii. 117, 118. 
 offences at sea, ii. 120. 
 
 offences near the boundaries of counties, ii. 120. 
 offences on a journey through several counties, ii. 120, 121. 
 in detached parts of counties, ii. 121. 
 evidence, ii. 122. 
 
 proof of the loss of the chattel, ii. 122. 
 
 rule where stolen property is found in the prisoner's possession, ii. 123. 
 what is such recent possession as to call on the prisoner to give an ac- 
 count, ii. 123. 
 where evidence of the loss of several chattels may be given, ii. 124. 
 of the identity of the property, ii. 125. 
 value of the property, ii. 125. 
 
 the value must be of goods stolen at the same time, ii. 126. 
 goods not produced, ii. 127. 
 verdict, ii. 127. 
 
 taking each chattel a distinct felony, ii. 127. 
 where autrefois convict or acquit may be pleaded, ii. 127. 
 jury need not inquire of the prisoner's lands, &c, nor whether he fled, 
 ii. 128. 
 punishment, ii. 128. 
 
 of principals in second degree and accessories, ii. 128. 
 of a person under sentence for another crime, ii. 128. 
 attainder of another crime not pleadable, ii. 128. 
 for a subsecpient felony, ii. 128, 129. 
 mode of charging the jury in such a case, ii. 129. 
 restitution of stolen property to the prosecutor, ii. 130. 
 exception as to valuable securities bond fide paid, ii. 131. 
 by servants, and persons having the custody of goods, &c, as servants, ii. 
 
 153, et seq. 
 by person in the post-office, ii. 205, et seq. — See tit. Post-Office. 
 of naval and military stores, ii. 222. 
 of cloth, &c, in process of manufacture, ii. 224. 
 by tenants and lodgers, ii. 67, 87, 226. 
 LEADING QUESTIONS, 
 
 when allowable, ii. 913, et seq. 
 liESSEE, 
 
 special property of, ii. 90. 
 LETTER, 
 
 threatening. — See tit. Threat. 
 LETTERS, 
 
 stealing, secreting, &c, ii. 205, et seq. — See tit. Post-Office. 
 LEWDNESS, 
 
 open and indecent exposure, indictable, i. 326. 
 LIBEL, 
 
 actions and indictments for, co-extensive, i. 222. 
 what publications in general are libellous, i. 220. 
 criminal intention, i. 260. 
 
 blaspheming God, or the Christian religion, i. 220, 230, 231, 232. 
 1 Ed. 6, c. 1, (the Lord's Supper,) i. 230. 
 1 Eliz. c. 2, (Common Prayer,) i. 230. 
 
 IWrni ,^,} 1110 '^^'^ 1 ' 230 -
 
 1056 INDEX. 
 
 L IB E L — co n tin ued. 
 
 9 & 10 Wm. 3, i. 230. 
 
 to reproach the Christian religion is to speak in subversion of the 
 
 law, i, 231. 
 Christian religion part of the law, i. 231. 
 the dread of future punishments one of the principal sanctions of 
 
 the law, i. 232. 
 the court will not meddle with differences of opinion on contro- 
 verted points, i. 231. 
 rational and dispassionate discussions allowable, i. 232, 233. 
 but in such discussions the characters of individuals must not be 
 attacked, i. 233. 
 publications against morality, i. 220, 233. 
 obscene pictures, plays, signs, i. 233. 
 publications against the constitution and law, i. 220, 233. 
 against the Revolution, i. 234. 
 against the King, i. 220, 234. 
 statutes, i. 234. 
 
 instances of a publication not libellous, i. 234, 235. 
 that he is deranged, i. 235. 
 against the two houses of Parliament, i. 220, 236. 
 
 breach of privilege, i. 236. 
 against the government, i. 220, 236, 237, 238. 
 
 animadversions, &c, on public measures, how far allow- 
 able, i. 236, 237. 
 cases on this subject, i. 236, 237, 238. 
 against the magistrates, and the administration of justice, i. 220, 
 238. 
 statutes of Scan. Mag. i. 238. 
 cases on this subject, i. 238, 239. 
 of words spoken of or to inferior magistrates, i. 239. 
 publications tending to cause animosities from foreign states, i. 220, 246. 
 
 personal abuse of foreign ambassadors or potentates, &c, i. 220, 246. 
 libels on individuals, i. 220, 240, et seq. 
 definition of, i. 220. 
 
 meaning of the word and its origin, i. 220, n. (A), 
 cases as to what amount to, and what do not, i. 240, 241. 
 
 reflecting on a man in respect of his trade, i. 241. 
 information for, cases when granted, i. 241. 
 general imputations on a body of men, i. 222, 242. 
 
 libel on several punishable at the complaint of one, i. 222. 
 libels on a deceased person, i. 243. 
 slanderous words, i. 220, 240. 
 
 distinction between written and spoken slander, i. 240, 241. 
 exceptions to general rules, i. 243. 
 petitions to the King, i. 223. 
 
 petitions to Parliament, and other legal or authorized proceedings, i. 224. 
 speeches of members of Parliament, i. 225, 227, 228. 
 proceedings in Parliament, i. 227, 228. 
 3 & 4 Vict. c. 9, i. 228. 
 publication of papers printed by order of Parliament, i. 229. 
 
 proceedings against publishers of such papers, how to be stayed, i. 
 
 229. 
 the statute is imperative upon the courts to stay proceedings, i. 229. 
 it may be shown that extracts were bon&fde made, i. 220. 
 proceedings in courts of justice, i. 225. 226, 227. 
 the whole case must be published, i 226.
 
 INDEX. 1057 
 
 LIBEL — continued. 
 
 not merely the conclusion drawn from it, i. 22G. 
 and nothing but what actually passes in court, i. 226. 
 the report must contain no defamatory comments, i. 227. 
 speeches of counsel, i. 227. 
 
 ex parte proceedings before a magistrate, i. 227. 
 comments on literary productions, i. 243. 
 
 on a place of public entertainment, i. 243. 
 confidential communications, i. 243, 244. 
 communications made bond fide, or with view of investigating a fact, i. 
 244. 
 or made in the proper course of a proceeding, i. 244, 245. 
 meaning of a privileged communication, i. 246. 
 
 where the occasion rebuts the prima facie inference of malice, and ren- 
 ders it necessary to prove malice in fact, i. 246. 
 of the mode of expression, i. 221. 
 
 name of the person libelled in blanks, i. 221. 
 indictment, i. 247. 
 
 what it must state, i. 247, 248. 
 innuendo, i. 248. 
 
 if the libel be in a foreign language, it must be set forth in the 
 original with a translation, i. 260. 
 evidence for the crown, i. 247, et seq. 
 
 of the making and publication, i. 248, 249, 257. 
 acknowledgment of defendant, i. 250. 
 procuring another to publish, i. 250. 
 publications by booksellers and proprietors of newspapers, i. 250, 
 
 et seq. 
 6 & 7 Wm. 4, c. 76, as to newspapers, i. 251, et seq. 
 
 construction, i. 257. 
 as to pamphlets, i. 251, n. (#). 
 how far the paper must correspond with the affidavit, i. 257. 
 
 new statute differs from the former in this respect, i. 254, 257. 
 the libel must be produced, and must correspond with the indictment, 
 
 i. 258. 
 the libel must be proved to have been published in the county laid, i. 258. 
 
 how so proved, i. 258, 259. 
 if the libel be in a foreign language, the translation in the indictment 
 
 must be proved, i. 260. 
 depositions before magistrates, evidence, i. 260. 
 gazettes, proclamations, and preambles of statutes, i. 260. 
 criminal intention of defendant, i. 260, 261. 
 when to be presumed, i. 261. 
 
 proved by showing subsequent publications, i. 261, n. (q). 
 evidence for defendant, i. 262. 
 
 instances of inadmissible defences, i. 262, 263. 
 
 he cannot justify that the contents are true, i. 222, 262. 
 
 nor that it was copied from some other work, i. 223. 
 trial, i. 263. 
 
 defendant cannot have counsel to examine witnesses, and address the 
 jury himself, i. 262. 
 but he may conduct the defence himself, and have counsel to argue 
 the points of law, i. 262. 
 verdict, i. 263. 
 
 32 Geo. 3, c. 60, i. 263. 
 
 the jury may give a general verdict on the whole matter put in 
 issue, i. 263.
 
 1058 INDEX. 
 
 LIBEL — continued. 
 
 what the judge may tell the jury, i. 263. 
 not bound to state whether the writing is a libel, i. 263. 
 judgment, i. 264. 
 
 for second offence in case of blasphemy or seditious libel, (60 
 
 Geo. 3, & 1 Geo. 4), i. 264. 
 certificate of former conviction evidence, i. 264. 
 affidavits in mitigation, i. 265. 
 
 of the truth of the libel, i. 265. 
 of the existence of reports, i. 265. 
 LICENSE, 
 
 marriage by, i. 209, et seq. 
 LIFE ANNUITIES, 
 
 forgery, &c, in respect of, ii. 489, 490. 
 perjury in respect of, ii. 608. 
 LIGHTS, 
 
 making lights, &c, on the coast as signals to smusgling vessels, i. 113. 
 LINEN, 
 
 forgery in respect of seals or stamps for, ii. 451. 
 LOCKS, 
 
 on rivers, canals, &c, breaking down, &c, ii. 578. 
 LODGINGS, 
 
 chattels and fixtures let with, larceny of, ii. 67, 87, 226. 
 LOOMS, 
 
 destroying, &c, ii. 585. 
 LOTTERIES, 
 
 public nuisances, when, i. 328. 
 LUNATIC, 
 what, i. 7. 
 
 distinction between, and an idiot, i. 7 and 8. 
 
 how far capable of committing crimes, i. 6, et seq. — See tit. Capability. 
 proceedings with regard to lunatic offenders, i. 14. 
 disposal of persons acquitted on the ground of insanity, i. 15, et seq. 
 found insane on arraignment, &c, i. 15. 
 discharged for want of prosecution, i. 15. 
 becoming insane after conviction and during confinement, 
 i. 15. 
 marriage of, i. 216. 
 competency as a witness, ii. 969. 
 deposition of when lunatic at the trial, ii. 890. 
 
 31. 
 
 MACHINES, 
 
 threshing and employed in manufactures, destroying, ii. 588. 
 MACHINERY, 
 
 destroying, &c, ii. 585. 
 MADMAN, 
 
 capability of, to commit crimes, i. 6. 
 when competent as a witness, ii. 969. 
 MAGISTRATES.— See tit. Justices. 
 
 orders of, disobedience to, i. 412. 
 MAIMING, 
 
 at common law, i. 719. 
 
 nature of the offence, i. 719. 
 
 a person maiming himself may be punished, i. 720. 
 no accessories at common law, i. 720.
 
 INDEX. 1059 
 
 MAIMING — continued. 
 
 cutting off ears, i. 720. 
 offences by statute, i. 721, et seq. 
 
 putting out eyes, i. 719. 
 1 Vict. c. 85, s. 2, administering poison with intent to murder, i. 721. 
 stabbing, cutting, or wounding, with intent to murder, i. 721. 
 causing any bodily injury dangerous to life, i. 721. 
 1 Vict. c. 85, s. 3, shooting or attempting to discharge loaded arms at any 
 person, i. 721. 
 attempting to drown, suffocate, or strangle, i. 721. 
 s. 4, shooting, stabbing, &c, with intent to maim, i. 721. 
 to disfigure, i. 721. 
 to disable, i. 721. 
 
 to do some grievous bodily harm, i. 721. 
 to prevent apprehension or detainer, i. 721. 
 s. 5. sending explosive substances, i. 721. 
 s. 7, principals in second degree and accessories, i. 722. 
 s. 8, imprisonment and hard labour, i. 722. 
 construction of the statutes, i. 722, et seq. 
 instrument must be loaded and levelled at the party, i. 722. 
 gun loaded with powder and paper only, i. 728. 
 gun must be so loaded as to be capable of doing the mis- 
 chief intended, i. 723. 
 where the indictment alleges a loading with ball, i. 724. 
 with shot and destructive materials, i. 724. 
 with powder and bullet, i. 725. 
 with touch-hole plugged up, i. 725. 
 
 a tin box filled with powder and peas, not loaded arms, i. 726. 
 shooting with a gun-barrel, i. 726. 
 attempts to discharge fire-arms, i. 727. 
 some act must be done ; presenting not sufficient, i. 727. 
 the act applies only to proximate attempts, i. 727. 
 as to the words "stab and cut," i. 728. 
 wounding, what, i. 729. 
 
 continuity of the skin must be broken, i. 729. 
 some instrument must be used, i. 730. 
 any instrument is sufficient, i. 731. 
 no defence that facts would amount only to manslaughter, 
 
 if death had occurred, i. 732. 
 attempting to drown, i. 733. 
 administering poison, what, i. 733. 
 causing to be taken, what, 733. 
 
 as to the intention with which the act is done, i. 734, et seq. 
 intent must be properly laid, i. 735. 
 intent to disable, i. 735. 
 to do grievous bodily harm, i. 735, 736. 
 distinction between murder and manslaughter if death had 
 
 ensued, when material, i. 736. 
 intent to prevent lawful apprehension, i. 736, 739. 
 notice of cause of apprehension, i. 736, 737. 
 other acts of shooting admissible to show the intent, i. 738. 
 other acts of administering poison, i. 788. 
 immaterial whether grievous bodily harm is done, i. 739. 
 shooting at one person with intent to murder another, i 
 
 740, 741. 
 shooting at one person and hitting another, i. 741. 
 poison sent to one person and taken by another, i. 741.
 
 1060 INDEX. 
 
 MAIMING — continued. _ 
 
 if the intent be laid to poison A., it must be proved, i. 742. 
 
 intent to " commit murder" generally, i. 742. 
 
 whether the intent to murder must exist in the mind at the 
 
 time the act is done, i. 743. 
 whether the instrument was such and so used as to be likely 
 
 to cause death, i. 743, 744. 
 firing into a room where no person is, i. 744. 
 principles in first and second degrees, i. 744, 745. 
 shooting in a duel, i. 745. 
 of the indictment, i. 746. 
 indictment must state that the act was done "unlawfully," i. 746. 
 
 that the thing administered was poisonous or destructive, i. 
 
 746. 
 need not describe an injury dangerous to life, i. 746. 
 need not state the means by which a wound was inflicted, i. 
 
 746. 
 joinder of counts, i. 747. 
 conviction of an assault, i. 747. 
 10 Geo. 4, c. 38, shooting, cutting, or stabbing, &c, or administering poison, 
 
 &c, in Scotland, i. 748. 
 10 Geo. 4, c. 34, conspiring or persuading to murder in Ireland, i. 747. 
 by wanton, &c, driving of stage-coachmen, i. 783. 
 MAINTENANCE, 
 
 what it consists in, i. 175. 
 instances of it, i. 175, 176. 
 when justifiable, i. 176. 
 
 in respect of an interest in the thing at variance, i. 176, 177. 
 in respect of kindred or affinity, i. 177. 
 
 in respect of relation of lord and tenant, master and servant, i. 177. 
 in respect of charity, i. 177. 
 in respect of the profession of the law, i. 178. 
 by buying or selling pretended titles, i. 180. 
 punishment, i. 181. 
 MALA PRAXIS, 
 
 of a physician, whether indictable, ii. 277. 
 MALICE, 
 
 express or implied by law, i. 482, 483. 
 description of, in a legal sense, i. 483, and n. (t). 
 MALICIOUS INJURY. 
 
 consolidation of former statutes by 7 & 8 Geo. 4, c. 30, ii. 544. 
 s. 25, malice against owner not necessary, ii. 544. 
 
 where the natural consequence of an act is to injure another, such 
 
 intent will be presumed, ii. 544. 
 although the jury find the intent to injure another, ii. 545. 
 an injurious act done under a claim of right, ii. 545. 
 s. 26, principals and accessories, ii. 546, 547. 
 s. 27, punishment, ii. 547. 
 s. 28, apprehension of offenders, ii. 547. 
 s. 43, place of trial, ii. 547. 
 to real or personal property not otherwise provided for, ii. 505. 
 MALICIOUSLY SHOOTING, i. 721, et seg.— See tit. Maiming. 
 
 on the high seas, &c, i. 102. 
 MANSLAUGHTER, 
 
 absence of malice, i. 579. 
 
 aiders and abettors, and accessories, i. 579.
 
 INDEX. 10G1 
 
 MANSLAUGHTER— continued. 
 
 cases of manslaughter, i. 579, et seq. 
 cases of provocation, i. 580. 
 
 by words, i. 580. 
 by assault, i. 580. 
 
 slight blows and revenge barbarous, i. 581. 
 by restraining a person of his liberty, i. 581. 
 by detecting an adulterer, i. 581. 
 slight provocation allowed to extenuate in some cases, i. 582. 
 ducking a pickpocket, i. 582. 
 father taking up son's quarrel, i. 582. 
 instruments used not dangerous, i. 583. 
 of the nature of the violence and mode of using in- 
 struments, i. 584. 
 no excuse if sought for, i. 585. 
 
 if there be express malice or time for cooling, i. 585. 
 cases of mutual combat, i. 585 ; et seq. 
 sudden quarrel, i. 585. 
 
 first blow immaterial, if quarrel sudden, and combat equal, i. 
 
 587. 
 combat equal, and use of deadly weapon afterwards, i. 787, 
 et seq. 
 third person interfering in the combat of others, i. 590. 
 blow intended for one lighting on another, i. 591. 
 cases of resistance to officers and persons authorized, i. 590, et seq. 
 
 authority of officers and others to arrest, &c, in cases of felony, i. 
 593. 
 of private persons, i. 593. 
 in cases of attempts to commit felony, i. 594. 
 distinction between the authority of officers and private per- 
 sons, i. 594. 
 a constable may arrest without a warrant on suspicion of felony, i. 
 
 595. 
 a magistrate has no authority to detain a known person till a 
 charge of misdemeanor is made, i. 595. 
 arrest on charge of felony imperfectly expressed, i. 596. 
 illegal arrest, i. 596. 
 on charge of felony where no felony has been committed, i. 597. 
 authority to arrest, &c, in cases of misdemeanors, i. 598, et seq. 
 misdemeanor must be committed in the presence of the con- 
 stable, 599, et seq. 
 if affray be over, constable cannot apprehend, i. 599. 
 so where breach of the peace is out of his view, i. 600. 
 no distinction between one misdemeanor and another, i. 601, 
 apprehending night-walkers, i. 601. 
 authority of constables and policemen in ale and beer houses, 
 
 i. 602, et seq. 
 reputed thieves, i. 602. 
 officers taking opposite parties, i. 604. 
 private persons interposing in sudden affrays, i. 605. 
 authority to apprehend persons found committing offences under 
 
 particular statutes, i. 608. 
 authority must be strictly pursued, i. 605. 
 party must be apprehended while committing the offence or on 
 
 fresh pursuit, i. 606. 
 apprehending person maliciously injuring a dog, i. 606. 
 stealing growing turnips and potatoes, i. 605.
 
 1062 INDEX. 
 
 MANSLAUGHTER— continued. 
 
 stealing flowers in a garden, i. 607. 
 
 apprehending party under Vagrant Act on fresh pursuit, i. 607. 
 
 where several hours intervene between offence and arrest, i. 608. 
 
 keepers apprehending poachers, i. 609, 610, 611, 612. 
 
 authority to arrest, &c, in civil suits, i. 612. 
 
 authority to impress seamen, i. 613. 
 
 killing by ship's sentinel in preventing persons from approaching 
 
 the ship, i. 614. 
 the officer arresting must be within his district, i. 614. 
 
 by 5 Geo. 4, c. 18, constables may execute warrant out of 
 
 their precinct, when, i. 615. 
 warrant directed to several may be executed by one, i. 615. 
 warrant must be executed either by person named in it, or 
 
 some one in his presence, i. 615. 
 how long warrant continues in force, i. 616. 
 as to the legality of the process, i. 687. 
 
 falsity of charge where wan-ant good on the face of it, i. 617. 
 what a warrant ought to specify, i. 618, 619. 
 process defective in the frame of it, i. 618. 
 illegality of blank warrants, i. 619, et seq. 
 notice of the authority to arrest, i. 623. 
 where necessary, i. 623. 
 
 by officers interposing in cases of riots and affrays, i. 624. 
 to what persons it shall be held to extend, i. 625. 
 in cases of third persons interposing, i. 625. 
 before doors are broken open, i. 626. 
 by private bailiff, i. 627. 
 regularity of the proceedings, i. 628. 
 
 right of officers to break open windows or doors to arrest, i. 628. 
 in civil cases a man's house is his castle, i. 629. 
 
 privilege confined to breach of outward doors, i. 630. 
 and to cases where the breach is made to arrest the 
 
 occupier or any of his family, i. 631. 
 and to arrests in the first instance, i. 632. 
 interference by third person where the arrest is illegal, 
 i. 632, et seq. 
 cases of criminal, unlawful, or wanton acts, i. 636, et seq. 
 heedless and incautious acts, i. 636. 
 blow aimed at one kills another, i. 636. 
 acts generally incautious, i. 636. 
 death from acts of trespass, i. 637. 
 death happening at unlawful sports, i. 638, 639. 
 where several join to do an unlawful act, i. 640. 
 lawful acts criminally or improperly performed, or acts without 
 authority, i. 641, et seq. 
 officers of justice acting improperly, i. 641. 
 
 upon resistance or flight of party arrested, i. 642. 
 in case of pressing for sea service, i. 643. 
 smuggling, i. 644. 
 officer arresting out of his district, i. 644. 
 gaolers, i. 644. 
 correction in foro domcstico, i. 645, et seq. 
 
 nature of the provocation considered, i. 646. 
 correction by privation and ill-treatment, i. 647. 
 persons following their common occupations, i. 648. 
 negligent delivery of medicines, i. 648.
 
 INDEX. 1063 
 
 MANSLAUGHTER— continued. ^ 
 
 negligent slinging of casks, i. 648. 
 negligent casting of cannon, i. 649. 
 negligent driving of carriages, i. 649, et seq. 
 negligent riding on horseback, i. 651. 
 
 navigating rivers, i. 651. 
 same rule applies to rivers as to roads, i. 651, 652. 
 there must be personal negligence, i. 652. 
 mere omission to do the whole of his duty, i. 653. 
 waterman overloading his boat, i. 653. 
 indictment, i. 654. 
 
 punishment of manslaughter, i. 651. 
 on the high seas, &c, i. 102. 
 MAN-TRAPS, 
 
 setting, &c, i. 784. 
 MANUFACTORY, 
 
 pulling down riotously, buildings or engines used in, i. 269. 
 offensive carrying on when a nuisance, i. 318. 
 MANUFACTURE, 
 
 larceny of cloth, &c, in process of, ii. 224. 
 damaging or destroying articles in the course of, ii. 585. 
 MARKET, 
 
 clerk of, extortion by, i. 142. 
 farmer of, extortion by, i. 143. 
 MARRIAGE.— See tit. Bigamy. 
 
 having a plurality of wives at one time, i. 186. 
 marriage acts, i. 192, et seq. 
 in an assumed name, i. 206, 207, 208. 
 consent of parents, i. 209. 
 
 in a chapel erected since marriage act, 26 Geo. 2, i. 211. 
 in Scotland and foreign countries, i. 212. 
 in Ireland, i. 213, 214. 
 within prohibited degrees, i. 189. 
 in Newfoundland, i. 216. 
 Quakers, i. 216. 
 French, i. 216. 
 Jewish, i. 216. 
 of lunatics, void, i. 216. 
 clandestine marriage, i. 712, et seq. 
 of members of the royal family, i. 714. 
 MARRIED WOMAN, 
 
 how far, and in what cases excused, by the coercion of husband, i. 18, et 
 seq. — See tit. Feme Covert. 
 MARTIAL LAW, 
 
 who and what offences subject to, i. 92, 93. 
 MASTER AND APPRENTICE.— See tit. Apprentice. 
 MASTER AND SERVANT, 
 
 servant of baker putting noxious things into bread with master's knowl- 
 edge, — master indictable, i. 109. 
 MASTIFF, 
 
 keeping unmuzzled, i. 327. 
 MAYHEM, i. 719, et seq.— See tit. Maiming. 
 MEDITERRANEAN PASS, 
 
 forgery of, ii. 483. 
 MERGER, 
 
 of misdemeanor in felony, i. 50, ii. 550. 
 not in cases of felony, ii. 432. 
 Vol. ii.— 69
 
 1064 INDEX. 
 
 MILFORD HAVEN, 
 
 concurrent jurisdiction of the common law and Admiralty in, i. 100. 
 MILITARY STORES.— See tit. Stores. 
 MILL, 
 
 riotously pulling down, i. 269, 270, ii. 589. 
 MILLBANK PENITENTIARY, 
 
 frauds, &c, of officers of, now punishable, i. 141, ii. 316. 
 escape of prisoners from, i. 431, 448. 
 
 56 Geo. 3, c. 63 ; concerning the confinement of convicts in, i. 448. 
 MILLER, 
 
 indictment against for receiving good barley and returning bad meal, i. 51, 
 
 and note (ra), ii. 285. 
 extortion by, in taking toll, i. 143. 
 detaining corn, not indictable, ii. 284. 
 MILL-POND, 
 
 destroying dam of, ii. 579. 
 putting noxious materials into, ii. 579. 
 MINES, 
 
 stealing ore from, i. 49. 
 
 riotously destroying engines, buildings, &c, used in collieries, mines, &c, 
 
 i. 369, ii. 589. 
 stealing from, ii. 4. 
 drowning or filling up, ii. 583. 
 pulling down steam-engines in mines, ii. 583. 
 what a damaging such engines, ii. 584. 
 MISCARRIAGE OF WOMEN, 
 
 destruction of infants in the womb, offence at common law, i. 671. 
 administering poison, &c, to procure, i. 671. 
 MISDEMEANOR, 
 
 description of, i. 45. 
 punishment of, i. 45. 
 misprision, i. 45. 
 
 what offences amount to, so as to be indictable, i. 45, et seq. 
 disturbing of the peace, i. 45. 
 misprisions, oppressions, and contempts, i. 45. 
 misbehaviour of public officers, i. 45, 135. 
 
 offences of a. public evil example against the common law, i. 45. 
 spreading infections or contagions, i. 109, et seq. 
 
 whatever outrages decency, and is injurious to public morals, i. 45, 46. 
 offences in matters prohibited or enjoined by statute, i. 46, et seq. 
 disobedience to an order of council, i. 105. 
 injuries affecting the king, i. 46, and n. (s). 
 neglect of children of tender years, i. 46. 
 selling unwholsome food, i. 109. 
 undue abatement of price of commodities, i. 173. 
 attempts to commit felonies or misdemeanors, i. 46, 47. 
 soliciting another to commit felony, i. 47. 
 attempt to commit a misdemeanor, i. 47. 
 whether statutory or at common law, i. 47. 
 attempting to bribe a cabinet minister, or the like, i. 47. 
 a mayor, i. 47. 
 a juryman, i. 47. 
 a jxidge, i. 47. 
 attempting to suborn perjury, i. 47. 
 endeavouring to provoke a challenge, i. 47, note (c). 
 conspiring to obtain money by obtaining an appointment for another 
 in a public office, i. 47, note (<?).
 
 INDEX. 1065 
 
 MISDEMEANOR— continued. 
 
 an act done, and a criminal intention joined to that act ; are suffi- 
 cient, i. 48. 
 
 possession of coining instruments, i. 48. 
 
 having counterfeit silver in possession, with intent to utter it, 
 
 insufficient, i. 48. 
 secus, having procured such with such intent, i. 48. 
 there must be some act done to constitute a crime, i. 48. 
 having implements of housebreaking with felonious intent, i. 49. 
 severing ore from mines with intent, &c, i. 49. 
 damaging articles in the course of manufacture, with intent, &c, i.49 
 offences created by statute, when indictable, i. 49, 50. 
 
 when not, i. 51. 
 when a statute makes that felony which before was a misdemeanor only. 
 
 the misdemeanor is merged, i. 50. 
 cases not indictable as, i. 50, 51. 
 
 trespasses, i. 53. 
 compromise by prosecutor by leave of the court after conviction, i. 132 
 compounding, i. 132. 
 no accessories in, i. 34, 82, note (5). 
 killing a person who is committing, i. 54G. 
 arrest by officers in cases of, i. 598, et seq. 
 MISNOMER, 
 
 of party whose existence is essential to the charge, ii. 795. 
 dilatory plea of, 7 Geo. 4, c. 64, s. 19, Appendix of Statutes. 
 MISPRISION, 
 
 use of the word in its larger sense, i. 45. 
 of felony, i. 45, 131, et seq. 
 definition of, i. 131. 
 punishment of, i. 131. 
 
 by concealing a felony known to be intended, i. 45. 
 how many witnesses necessary in, ii. 944. 
 MISTAKE, 
 
 killing by, i. 25. 
 MONEY, • 
 
 counterfeiting, &c, i. 54, et seq. — See tit. Coin. 
 what is the King's, i. 54. 
 
 larceny of, how to be stated in indictment, ii. 109. 
 MONOPOLY, 
 
 an offence at common law, i. 173. 
 MONSTER, 
 
 exhibiting for money, i. 326. 
 MORAVIANS, 
 
 affirmation of receivable, instead of making oath, in criminal as well as civii 
 cases, ii. 972. 
 MOUNTEBANKS, 
 
 public nuisances, i. 322. 
 MURDER. — See tit. Manslaughter, Maiming. 
 definition of the crime, i. 483. 
 malice prepense, i. 483. 
 
 may be either express or implied, i. 483, 484. 
 legal sense of " malitia," i. 483, note (i). 
 classical meaning of the word, i. 483. 
 the party killing, i. 484. 
 
 how far he must be a free agent, i. 484. 
 an infant, i. 3 — 5. 
 the party killed, i. 485. 
 
 children in the mother's womb, i. 485.
 
 1066 IXDEX. 
 
 MURDER— continued. 
 
 death after birth of injury before birth, i. 485. 
 /child must be actually born, i. 484. 
 
 bastard children, i. 485, et seq. 
 
 the means of killing, i. 487. 
 exposing children, &c, i. 488. 
 
 where the probable consequence of an act is death, i. 488. 
 forcing a person to do an act likely to produce death, i. 489. 
 such an act must be done to avoid the prisoner's violence, i. 489. 
 by negligence and harsh usage towards an apprentice, i. 489. 
 master bound to provide medicine for apprentice but not for a servant, i. 490. 
 where master has treated person as a servant, i. 491. 
 by neglect of a married woman to provide food for her bastard, i. 491. 
 where a child is not weaned, i. 493. 
 a person standing in loco parentis, i. 493. 
 
 :i person undertaking to provide necessaries for a person incapable of pro- 
 viding for himself, i. 493. 
 
 by perjury, i. 494. _ 
 
 by savage animals, i. 495. 
 
 by medicines, i. 495. 
 
 by treatment of regular and irregular medical men, i. 495, et seq. 
 
 no distinction between regular and irregular practitioners, i. 495. 
 
 if a practitioner act bond fide, and use his best skill, he is not responsi- 
 ble, i. 496. 
 
 there must be gross ignorance or criminal inattention, i. 497, et seq. 
 
 every practitioner ought to have competent skill, and to use due care, 
 &c, i. 503. 
 
 death by incautious use of a dangerous instrument by a regular medi- 
 cal man, i. 503. 
 
 where a person having competent knowledge makes a mistake, i. 504. 
 
 by infection, i. 505. 
 
 by rape, i. 505. 
 time of death, i. 505. 
 treatment of wounds, i. 505. 
 
 killing a person laboring under a disease, i. 505, 506. 
 gross cases of murder — poisoning, i. 507. 
 self-murder — felo cle se, i. 507. 
 
 encouraging another to murder himself, and being presentabetting, i. 508 . 
 
 two encouraging each other to murder themselves together, i. 508. 
 aiders and abettors, i. 509. 
 accessory to a felo de se, i. 509. 
 
 indictment against principal in second degree, i. 30. 
 
 how far an abettor must be present at the commission, i. 509. 
 
 persons present may be guilty of different degrees of homicide, i. 
 
 (i issories, i. 511. 
 
 be/ore the fact, i. 511. 
 
 where the crime is the direct effect of the command or counsel of, 
 i. 511. 
 cases where not, i. 512. 
 accessories after the fact, i. 512. 
 
 9 Geo. 4, c. 31, s. 3, punishment of principals aud accessories, i. 512. 
 oases of murder, i. 513, et seq. 
 coses qfjJrovocation, 513. 
 
 words, gestures, &c., i. 514. 
 
 assault, i. 515. 
 
 personal restraint aud coercion, i. 516.
 
 INDEX. 1067 
 
 M URDEll — continued. 
 
 provocation of a slighter kind — mode of resentment, and nature i 
 
 instrument used, i. 517, et seq. 
 beatiug in a cruel manner, i. 518. 
 aggravation, palliating a moderate blow, i. 518. 
 nature of instrument used, i. 518. 
 killing trespassers, i. 519. 
 result of cases, i. 520. 
 no defence where express malice, i. 520. 
 provocation sought by party killing, i. 521. 
 the blow must result from the provocation given, i. 522. 
 and not previous malice, i. 522, 523. 
 no defence if there is cooling time, i. 525. 
 
 where thought and contrivance are used in procuring a weapon, ;. 
 526. 
 cases of mutual comhat, i. 527, et seq. 
 deliberate duel, i. 527. 
 seconds and others present, i. 528, 529. 
 combat upon sudden quarrel, i. 529. 
 
 undue advantage, i. 529. 
 violent conduct of party killing, i. 529. 
 use of a deadly weapon with previous intention, i. 581. 
 pretended or counterfeit reconciliation, i. 532. 
 cases of resistance to officers, and private persons authorized^ i. 532, et 
 
 seq. 
 resisting and killing officers, i. 532, et seq. 
 
 private persons acting in their aid, i. 534. 
 private persons, i. 534. 
 general rule, i. 535. 
 
 questions as to authority, legal proceedings, &c, i. 535. 
 as to persons taking part in the resistance, i. 536, et seq. 
 in tlie prosecution of criminal, unlawful or wanton acts, i. 538, et seq. 
 particular malice to one falling upon another, i. 589. 
 murder in attempting to procure abortion, i. 540. 
 general malice, or depraved inclination to mischief, i. 540. 
 unlawful act done with felonious intent, i. 540. 
 act intending bodily harm, i. 240. 
 where several join to do an unlawful act, i. 29, 541. 
 
 must be done in prosecution of purpose for which party as- 
 sembled, 541, et seq. 
 cases of lawful acts criminally or improperly performed, or done with- 
 out authority, i. 544, et seq. 
 officers of justice acting improperly, i. 544, 545. 
 killing a person committing a misdemeanor, i. 546. 
 duress of imprisonment by gaolers, i. 546. 
 officers executing criminals improperly, i. 547. 
 correction in foro domestico, i. 547. 
 persons following their common occupations, i. 548. 
 indictment, i. 549, et seq. 
 in what place, i. 549. 
 7 Geo. 4, c. 64, s. 12, where blow in one county and death in another, i. 549 
 
 trial may be where the death took place, i. 549. 
 the 7 Geo. 4, c. 64, s. 12, only applies to counties, and not to limited juris- 
 diction, i. 550. 
 trial where murder committed in Wales, i. 550. 
 
 on the sea, or in any haven, &c, or in foreign parts, i. 550. 
 in Newfoundland, i. 551.
 
 1068 INDEX. 
 
 M UR DEBr— contin tied. 
 
 9 Geo. 4, c. 31, s. 7, British subjects maybe tried in England for mur- 
 der or manslaughter committed abroad, i. 552. 
 Central Criminal Court has jurisdiction to try any offence committed 
 
 within the jurisdiction of the Admiralty, i. 552. 
 cases of murder by British subjects abroad, i. 552, 553. 
 the indictment must state that the prisoner and the deceased were British 
 
 subjects, i. 553. 
 who are British subjects within this statute, i. 553, 554. 
 where wound, &c, is at sea, or abroad, and the death on shore; or the 
 
 wound, &c, on shore, and the death at sea, or abroad, i. 554. 
 where the death, or cause of death only happens in England, 9 Geo. 4, 
 
 c. 31, s. 8, i. 554. 
 9 Geo. 4, c. 31, s. 32, offences committed at sea, where triable, i. 555. 
 form of indictment, i. 555, et seq. 
 
 description of party killed, i. 555, 556. 
 
 statement of manner and means of death, i. 557. 
 
 sufficient if the manner of death agree in substance with that charged, 
 
 i. 557. 
 if one kind of killing is charged and another proved, it is insufficient, 
 
 i. 557. 
 statement of striking, i. 558. 
 
 mode of stating wounds and bruises, i. 558, 559, 560. 
 not necessary to prove the wounds as laid, i. 560. 
 mode of stating the death, i. 560. 
 it is sufficient to state the act done, i. 561. 
 not necessary to state the natural causes which contributed to death, i. 
 
 561. 
 where the death arose from neglect to provide food, the indictment ought 
 
 to state that it was the prisoner's duty to provide it, i. 562. 
 averment of malice, &c, time, place, &c, and conclusion, i. 563. 
 finding the bill by grand jury, i. 564. 
 arraignment, i. 565. 
 
 plea of autrefois acquit and autrefois attaint, i. 565. 
 evidence, i. 566, et seq. 
 where death is stated to have been caused by two co-operating causes, both 
 
 must be proved, i. 566. 
 a charge of forcing to swallow poison supported by proof of forcing to take 
 
 into the mouth, i. 567. 
 proof of charge of poisoning, i. 569. 
 
 that the body has been found, i. 267. 
 proof the averments in the indictment, i. 568. 
 dying declarations, i. 570. 
 verdict, i. 570. 
 
 of manslaughter, where the offence was committed on the high seas, 
 
 &c, i. 570. 
 the jury should attend to the directions of the court, i. 570. 
 of concealment of birth of bastard children, i. 571, et seq. 
 9 Geo. 4, c. 31, s. 14, i. 571. 
 judgment and execution, i. 575. 
 
 6 & 7 Wm. 4, c. 30, sentence may be pronounced in the same way as 
 
 in other capital cases, i. 577. 
 bodies to be buried in the gaol, i. 576. 
 
 sentence after removal of indictment by certiorari, i. 577. 
 attempts to murder, i. 719, et seq. — See tit. MAIMING, 
 on the high seas, i. 102. — See tit. Piracy. 
 
 shooting from the laud and killing on the sea, i. 102.
 
 INDEX. 1069 
 
 MURDER — continued. 
 
 rescuing murderers, i. 436. 
 
 their bodies after execution, i. 430. 
 MUSTER-BOOKS, 
 
 of navy, when evidence, ii. 483, 748, 811. 
 MUTE, 
 
 the prisoner who stands, how to be dealt with, i. 0, n. (/). 
 MUTINY, 
 
 act, 3 Vict. c. 6, s. 25, i. 90, 91. 
 
 seducing soldiers and sailors to, i. 92, et seq. 
 
 provisions in, against fraudulent enlistment, ii. 317. 
 
 perjury by Mutiny Act, ii. Oil. 
 
 N. 
 
 NAVAL STORES.— See tit. Stores. 
 NE EXEAT REGNO, 
 
 disobedience to the writ of, i. 91. 
 NEGATIVE PROOF, 
 
 of notice, ii. 730. 
 
 of consent, ii. 730. 
 
 general rule as to who is bound to give, ii. 770. 
 NEGLIGENCE, 
 
 by public officers, i. 138. 
 
 neglecting, &c, to deliver election writs, i. 101. 
 NEWS, 
 
 publishing false news or tales, i. 234, and n. (/). 
 NEWSPAPERS, 
 
 evidence of publication of, i. 250, et scq. — See tit. Libel. 
 
 forgery in respect of stamp of, ii. 438. 
 NEW TRIAL, 
 
 qucere as to new trial after acquittal on nuisances to highways, i. 371. 
 
 when granted in criminal cases, ii. 720. 
 
 all the defendants must be in court on application for, ii. 720. 
 NIGHT-WALKERS, 
 
 apprehension of, i. 001. 
 
 indictable, i. 001, and n. Cz). 
 NISI PRIUS, 
 
 where sentence may be passed at in felonies and misdemeanors tried at nisi 
 prius, 11 Geo. 4, c. 70, s. 9. Appendix of Statutes. 
 NOISES IN THE NIGHT, 
 
 the making, when indictable, i. 327. 
 NON COMPOS MENTIS.— See Capability. 
 
 idiots, i. 0, 7. 
 
 lunatics, i. 7. 
 
 persons drunk, i. 7, 8. 
 
 cases concerning, i. 8 — 13. 
 
 rule derived therefrom, i. 13. 
 
 proceedings with respect to trial, &c, of, i. 14. 
 
 disposal of persons acquitted on grounds of insanity, i. 14, 15, 10. 
 found insane on arraignment, i. 15. 
 discharged for want of prosecution, i. 15. 
 becoming insane after conviction, &c, i. 17. 
 NONFEASANCE AND PARTICULAR WRONG, 
 
 not in general indictable, i. 52. 
 NOTICE, 
 
 negative proof of, ii. 730.
 
 1070 INDEX. 
 
 NOTICE— continued. 
 
 to produce primary evidence, ii. 743. 
 when and how to be given, ii. 743. 
 consequence of giving, ii. 746. 
 NUISANCE. — See tit. Highways, Rivers, Bridges. 
 signification of, i. 317. 
 public and private, i. 317. 
 
 private only remediable by civil proceeding, i. 317, but see i. 317, n. (6) 
 public, when subject of action, i. 317, and n. (6). 
 public nuisances in general, i. 318. 
 
 offensive trades and manufactures, i. 318, et seq. 
 
 what the existence of the nuisance depends on, i. 318. 
 how far a noxious trade may be sanctioned, i. 319. 
 gunpowder and combustibles, i. 321. 
 keeping grounds for pigeon shooting, i. 321. 
 disorderly inns and other houses, i. 322. 
 bawdy houses, i. 322. 
 common gaming houses, &c, i. 323. 
 
 cockpit, i. 324. 
 playhouses, &c, i. 324. 
 unlicensed places of public entertainment, i. 324. 
 
 proceedings in prosecutions against persons keeping (25 Geo. 2), i. 
 
 325. 
 persons acting as keepers, i. 325. 
 witness, i. 325. 
 certiorari, i. 326. 
 indictment and evidence as to, i. 326. 
 open lewdness and indecent exposure, i. 326. 
 bathing, i. 326. 
 
 exhibiting monsters, &c, i. 326. 
 eavesdroppers, i. 327. 
 common scold, i. 337. 
 noises in the night, i. 327. 
 spreading infection, i. 327. 
 mastiff unmuzzled, i. 327. 
 by statute, i. 32"\ 
 
 fire-works, i. 327. 
 lotteries, &c., i. 338. 
 of the removal of nuisances, i. 328. 
 prohibition of, by writ from K. B., i. 32s. 
 indictment for, i. 329. 
 
 where a landlord is liable for a nuisance from premises held by tenants, 
 i. 329. 
 defendant cannot excuse himself by showing that it has existed 
 
 for a length of time, 330. 
 no length of time will legalize, i. 330. 
 particulars of the nuisance, i. 330. 
 judgment, i. 331. 
 costs, i. 331. 
 
 steam engines, i. 331. 
 to public highways, i. 332, et seq. — See tit. Highways. 
 to public rivers, i. 378, et seq. — See tit. Rivers. 
 to public bridges, i. 385, et seq. — See tit. Bridges. 
 
 r
 
 INDEX. 1071 
 
 0. 
 
 OATHS, 
 
 administering or taking unlawful oaths, i. 124, et seq. 
 37 Geo. 3, c. 123, i. 124. 
 
 not confined to oaths administered for seditious or mutinous pur- 
 poses, i. 124, 125. 
 rendered more effectual by the 52 Geo. 3, c. 104, i. 125. 
 persons taking oaths by compulsion must disclose them within a 
 
 limited time, i. 126. 
 what shall be deemed an oath, i. 126. 
 if the oath administered was intended to make the party believe 
 
 himself under an engagement it is sufficient, i. 126. 
 the book used need not be the Testament, i. 126. 
 aiders and assistants deemed principals, i. 126. 
 indictment, i. 127. 
 evidence, i. 128. 
 place of trial, i. 128. 
 
 when persons offending may be tried for high treason, i. 128. 
 57 Geo. 3, c. 19, i. 128. 
 
 societies taking unlawful oaths, &c, i. 128, 129. 
 50 Geo. 3, c. 102, i. 129. 
 
 administering, or taking unlawful oaths in Ireland, i. 129. 
 aiders deemed principals, i. 130. 
 indictment, i. 130. 
 
 4 Geo. 4, c. 87, i. 130. 
 
 societies administering unlawful oaths to be deemed unlawful con- 
 federacies, i. 130. 
 
 5 & 6 Win. 4, c. 62, declarations substituted for oaths in certain cases, 
 
 ii. 615, et seq. 
 forbidden to be taken in certain cases, ii. 615, et seq. 
 OBSTRUCTING PROCESS, i. 408, et seq. 
 OFFENCES, 
 
 when indictable, i. 44, et seq. — And see tit. Indictable Offences and Mis- 
 demeanors 
 OFFENSIVE WEAPON, 
 
 what shall be deemed, i. 118, 119, 474. 
 OFFICER, 
 
 offences, by persons in office, i. 135, et seq. 
 
 misconduct by public officers indictable, i. 45, 135. 
 punishable by forfeiture of office, i. 135. 
 when an office is vested in a body, i. 135. 
 oppression by public officers, i. 135, et seq. 
 judges, &c, i. 135. 
 justices of the peace, i. 135, 136. 
 
 granting or refusing ale-licenses, i. 136. 
 gaolers, i. 136. 
 overseers of the poor, i. 137. 
 not accounting to auditor of a union, i. 137. 
 negligence by public officers, i. 136, et seq. 
 when it amounts to a forfeiture, 138. 
 coroner or sheriff, i. 138. 
 all subordinate officers, i. 138. 
 constable, i. 138. 
 overseer of the poor, i. 138. 
 churchwardens, i. 139.
 
 1072 INDEX. 
 
 OFFICER— continued. 
 
 indictment, i. 139. 
 
 chief officers of corporation absenting themselves from elections, 
 
 &c, i. 140. 
 justices at petty sessions may fine constables, &c, i. 140. 
 frauds by •public officers, i. 141. 
 
 fraudulent passing of public accounts, i. 141. 
 overseers of the poor not accounting for sums received, i. 141. 
 officers of the Milbank Penitentiary, i. 141. 
 extortion by public officers, i. 142, 143. 
 signification of, i. 142. 
 stat. Westm. 1, i. 142. 
 
 sheriffs and other ministers of the king, i. 142. 
 justices of the peace, i. 142. 
 
 clerk of the market, i. 142. 
 
 the stated fees of courts may be insisted on, i. 142. 
 
 cases of extortion, i. 143. 
 
 East Indies, i. 143. 
 
 indictment, i. 144. 
 
 may be joint, i. 144. 
 trial, i. 144. 
 
 not material to prove sum laid, i. 144. 
 punishment, i. 144. 
 where a duty is thrown on a body of persons, each is liable for a breach 
 
 of duty, i. 142. 
 unnecessary to state in indictments notice of acts causing breach of 
 duty, i. 142. 
 killing those who assault or resist him, or fly, i. 665. — See tit. Homicide. 
 resisting or killing, when murder, i. 532 — See tit. Murder. 
 when manslaughter, i. 592. — See tit. Manslaughter. 
 improper acts of, when murder, i. 544. — See tit. Murder. 
 
 when manslaughter, i. 641. — See tit. Manslaughter. 
 authority of, to arrest, &c, in cases of felony, i. 503. — See tit. Arrest. 
 
 attempts to commit felony, i. 504. 
 misdemeanors, i. 598. 
 distinction between officers and private persons, 
 
 i. 504. 
 in cases of civil suits, i. 612. 
 taking opposite sides in an affray, i. 604. 
 embezzlement by public officers, ii. 202. 
 OFFICES, 
 
 refusal to execute offices, i. 145. 
 
 by a constable or overseer of the poor, i. 145. 
 indictment, i. 145. 
 buying and selling, i. 147, et seq. 
 offence at common law, i. 147. 
 by statutes, i. 148, et seq. 
 attempt to bribe a minister to give au office, i. 147, 148. 
 14 Rich. 2, i. 148. 
 chancellor, &c, sworn, i. 148. 
 
 4 Hen. 4, c. 5, as to sheriffs, i. 14S. 
 
 5 & 6 Edw. 6, i. 148. 
 
 cases on this statute, i. 140. 
 
 an offender under it can never hold office again, i. 149. 
 what deputation is within it, i. 149, 150. 
 
 extended by 40 Geo. 3, to Ireland, Scotland, the colonics, and the 
 East India Company, i. 150.
 
 INDEX. 1073 
 
 OFFICES— continued. 
 
 keeping any place of business for trafficking in offices, &c, or ad- 
 vertising, i. 153. 
 trial of offences committed abroad, &c, i. 1 T)-J . 
 giving any office for election purposes, i. 153. 
 OPPRESSION, 
 
 by public officers, i. 135, 13G. 
 ORDER, 
 
 for payment of money, forgery of, ii. 495, 514, et scq. — Sec tit. Forgery. 
 ORDERS, 
 
 disobedience to, 
 
 of sessions, i. 412. 
 
 of council, i. 105, 412. 
 
 of justices, i. 412. 
 
 by constables, i. 415. 
 service of order, i. 413. 
 indictment, &c, i. 113. 
 
 legality of the order cannot be incpiired into on tbe trial, i. 414. 
 but want of jurisdiction, or defects on the face of the order may, i. 414. 
 arrest of judgment, — what objections allowed, i. 414. 
 of council, 
 
 publication of, in Gazette, sufficient notice, i. 106. 
 OVERSEERS OF THE POOR, 
 
 how punishable for misfeasance in office, i. 137. 
 
 instances of misfeasance, &c, i. 137. 
 indictable for neglect, when, i. 138. 
 
 in not relieving paupers, i. 138, 139. 
 finable at petty sessions, i. 140. 
 indictable for keeping fraudulent accounts, i. 141. 
 indictment for refusing office, i. 145. 
 
 for not accounting to auditors of a union, i. 137. 
 for refusing to account, i. 138. 
 
 for refusing to make a rate to reimburse constable, i. 138. 
 for refusing to receive a pauper, i. 138. 
 
 neglecting to supply medical assistance, i. 139. 
 refusing to call vestry meetings under 1 & 2 Win. 4, c. 60, i. 139. 
 OYSTERS, 
 
 stealing, &c, ii. 148. 
 
 PALACE, 
 
 striking or drawing weapon in the King's palace, i. 762. 
 PARDON, 
 
 proof of, ii. 975. 
 
 effect of, on a convict, ii. 975. 
 
 endurance of punishment shall have the effect of, ii. 975. 
 PARENT AND CHILD, 
 
 command of parent no excuse for commission of crime by child, i. 18. 
 
 neglect of child by parent, indictment for, i. 46. 
 
 correction of child by parent in foro domestico, i. 547, 645. 
 
 when death by is murder, and when manslaughter, i. 547, 645. 
 
 father taking up a quarrel of son, death by, i. 518, 582. 
 PARISH, 
 
 burthening a parish with paupers, fraudulently, i. 52. 
 
 property ordered for poor of, in whom to be laid, ii. 102, 105.
 
 1074 INDEX. 
 
 PARISH REGISTERS, 
 
 forgery, alteration, &c, ii. 486. 
 PARLIAMENT, 
 
 petitions to, not libellous, i. 224. 
 
 speeches in, and other proceedings in, when libellous, i. 225, 227, 223, 220. 
 papers printed by order of Parliament, 3 & 4 Vict. c. 9, i. 228, et seq. 
 staying criminal or civil proceedings under, i. 228, et seq. 
 act is imperative, i. 229, n. (cc). 
 libels against, i. 236. 
 journals of, when evidence, ii. 805. 
 
 speeches in House of Commons, not allowed to be proved, ii. 912. 
 PARTNERS, 
 
 property of, how to be laid, ii. 96, 101, 385. 
 intent to defraud in forgery, how laid, ii. 383. 
 PAUPERS, 
 
 bringing them fraudulently into a parish, i. 52. 
 conspiracy to marry, and charge a parish, ii. 681. 
 PAY, 
 
 of soldier or sailor, forgery and false personation to obtain, ii. 473, et seq. 540. 
 PEACE OFFICER.— See tit. Constable. 
 PENAL STATUTES.— See tit. Statute. 
 
 compounding information upon, i. 132, et seq. 
 PENITENTIARY.— See tit. Milbank. 
 PENSION, 
 
 of soldier or sailor, forgery and false personation to obtain, ii. 473, et seq. 540. 
 PERJURY, * * 
 
 by an infant, i. 2. 
 
 attempt to suborn, a misdemeanor, i. 47. 
 murder by, i. 494. 
 by the common law, ii. 596. 
 
 subornation of, by the common law, ii. 296. 
 
 the false oath must be wilful, and taken with some degree of delibera- 
 tion, ii. 597. 
 a man may be indicted for perjury in swearing he believes a fact to be 
 
 true, ii. 597. 
 the oath must be false, ii. 597. 
 
 the oath must be taken in a judicial proceeding , ii. 597, et seq. 
 affidavit of attorney to answer a summary application, ii. 
 oath to procure a marriage license, ii. 598. 
 and before a competent jurisdiction, ii. 599. 
 the oath must be materia/ to the question /» tiding, ii. 600. 
 oaths denying contracts void by the Statute of Frauds, ii. 601. 
 to set aside contract on the ground of fraud, ii. 602. 
 on a trial of an indictment reversed on error, ii. 603. 
 a man may be perjured by an oath taken in his own cause, ii. 603. 
 a false verdict not perjury, ii. 603. 
 it is not necessary the oath were credited, ii. 603. 
 false oath indictable in some cases, though not assignable as perjury, ii. 
 603. 
 statutes relating to, ii. 603, et seq. 
 
 5 Eliz. c. 9, s. 3, procuring any witness to commit perjury, &c, ii. 603 
 s. 6, persons committing perjury, &c, ii. 604. 
 trial of offences, where, ii. 605. 
 2 Geo. 2, c. 25, punishment of perjury, ii. 605. 
 statutes as to false affirmations of Quakers, ii. 606, 607. 
 perjury in respect of life annuities, ii. 608. 
 in respect of Exchequer bills, ii. 608.
 
 INDEX. 1075 
 
 PERJURY — continued. 
 
 relating to the excise, ii. 608. 
 
 relating to the customs, ii. 608. 
 
 relating to the stamp duties, ii. 609. 
 
 relating to naval stores, ii. 60! ». 
 
 in affidavits, &c, for the Irish courts, ii. 609. 
 
 relating to the wills, &c, of seamen, &c, ii. 610. 
 
 relating to army prize-money, ii. 610. 
 
 relating to East India prize-money, ii. 610. 
 
 by the Mutiny Acts, ii. 611. 
 
 in naval courts martial, ii. 611. 
 
 relating to the quarantine, ii. 611. 
 
 iu respect of pilotage, ii. 611. 
 
 in respect of registering vessels, ii. 611. 
 
 under the slave trade, ii. 611. 
 
 in respect of the land revenues, ii. 612. 
 
 by the General Inclosure Act, ii. 612. 
 
 under the Registry Acts, ii. 612. 
 
 by electors, ii. 612. 
 
 false answers by voters at elections, ii. 612. 
 
 before revising barristers, ii. 613. 
 false declarations by members of Parliament, ii. 614. 
 perjury as to marriages, ii. 614. 
 before committees of the House of Commons, ii. 614. 
 by bankrupts, ii. 614. 
 by insolvents, ii. 615. 
 
 5 & 6 Win. 4, c. 62, s. 2, lords of the Treasury may substitute declaration- 
 for oaths in certain cases, ii. 615. 
 
 s. 3, declaration to be published in Gazette, ii. 616. 
 
 s. 4, no oath to be administered afterwards, ii. 616. 
 
 s. 5, false declarations a misdemeanor, ii. 616. 
 
 s. 8, universities may substitute declarations for oaths, 
 ii. 616. 
 
 s. 9, declarations by churchwardens, ii. 616. 
 
 s. 10, as to turnpike trusts, ii. 616. 
 
 s. 11, on taking out patents, ii. 617. 
 
 s. 12, as to pawnbrokers, ii. 617. 
 
 s. 13, justices of the peace not to administer certain 
 oaths, ii. 617. 
 
 s. 14, declarations on the transfer of stock, ii. 618. 
 
 s. 16, to prove execution of wills, ii. 618. 
 
 s. 17, in suits on behalf of the crown, ii. 618. 
 
 s. 18, in the form of the schedule, ii. 618. 
 
 s. 21, persons making false declarations guilty of a 
 misdemeanor, ii. 618. 
 perjury by statutes of limited operation, ii. 619. 
 construction of the 5 Eliz. c. 9, ii. 619. 
 indictment on that statute, ii. 620. 
 
 23 Geo. 2, c. 11, s. 3, the judges of assize may direct witnesses to be prose- 
 cuted for perjury and assign counsel, ii. 621. 
 provision for the more easy framing of indictments, ii. 621. 
 such provisions ought to be attended to, ii. 622. 
 indictment, ii. 622. 
 
 several persons not to be joined in one indictment, ii. 622. 
 venue, ii. 622. 
 allegation of time, ii. 623. 
 necessary statements, ii. 624, et seq.
 
 1076 INDEX. 
 
 PER JURY — continued. 
 
 variances, ii. 624, et seq. 
 
 statements set out continuously, ii. 624. 
 
 stating election returns, ii. 626. 
 
 committee of House of Commons, ii. 625. 
 
 proceedings in Chancery, ii. 625. 
 
 ecclesiastical courts, ii. 626. 
 
 variance in substance and effect, ii. 627. 
 
 matter sworn in a joint deposition, ii. 627. 
 
 variance in information, ii. 628. 
 
 where ecpiivocal term is used, ii. 628. 
 
 amendment of variances, ii. 629. 
 
 averment that the complaint was heard, ii. 629. 
 
 before whom the trial took place, ii. 630. 
 
 adjournment of a quarter sessions, ii. 630. 
 
 stating that the defendant was sworn, ii. 631. 
 
 "wilfully and corruptly," ii. 631. 
 
 authority to administer the oath, ii. 032. 
 
 statement of holding petty sessions, ii. 632. 
 
 of a charge before a magistrate, ii. 633. 
 of an information before a magistrate, ii. 633. 
 of making information on oath, ii. 636. 
 an affidavit under an interpleader rule, ii. 636. 
 on a writ of inquiry, ii. 636. 
 before commissioners of bankrupt, ii. 037. 
 
 indictment must state the authority to administer the oath, ii. 637. 
 before commissioners of assessed taxes, ii. 638. 
 it must appear that the oath was material, or it must be alleged to be 
 
 so, ii. 639. 
 imperfect allegations as materiality, ii. 640, et seq. 
 of the falsity of the matter sworn, ii. 641. 
 materiality not necessarily apparent, ii. 642. 
 apparent materiality of an affidavit, ii. 642. 
 circumstantial materiality, ii. 643. 
 assignments of perjury, ii. 643. 
 if bad in part bad altogether, ii. 642, n. (W). 
 fuller than the statement of the defendant, ii. 643. 
 the assignments must be distinct and precise, ii. 644. 
 indictment must show which of two contradictory depositions is false, 
 
 ii. 644. 
 of the innuendo, ii. 644. 
 good where it fixes the meaning of what has been previously alleged, 
 
 ii. 645. 
 where it may be rejected, ii. 645. 
 conclusion of the indictment, ii. 647. 
 the court will in general oblige the defendant to demur to a defective 
 
 indictment, ii. 647. 
 where not, ii. 648. 
 plea of autrefois acquit, ii. 648. 
 trial, ii. 649. 
 
 quarter sessions have no jurisdiction, ii. 649. 
 summary proceedings, ii. 649. 
 
 where persons convicted practice as attorneys, ii. 670. 
 evidence, 
 
 variances, ii. 624, et seq. 
 
 one witness not sufficient, ii. 649. 
 
 one witness and corroborative evidence, ii. 650.
 
 INDEX. 1077 
 
 PEBJU RY — continued. 
 
 strong corroborative evidence of a single witness is necessary, ii. 650. 
 
 confirmation as to two out of three assignments, ii. 650. 
 
 contradictory oath of the defendant, ii. 651. 
 
 not sufficient without confirmation, ii. 652. 
 
 several witnesses speaking as to several assignments, ii. 653. 
 
 the rule applies to every assignment, ii. 654. 
 
 to what part of the case the rule extends, ii. 654. 
 
 party prejudiced by the perjury of a competent witness, ii. 654. 
 but doubted, ii. 655. 
 
 prosecutor competent after a bill in Chancery dismissed, ii. 655. 
 
 bankrupts' assignees, ii. 656. 
 
 witness who has before sworn the same or is indicted, ii. 656. 
 
 chairman of the quarter sessions, ii. 656. 
 
 proof of defendant having sworn in substance and effect, ii. 657. 
 
 proof of the tchole of defendant's testimony, ii. 658. 
 
 proof of authority to administer oath, ii. 659. 
 
 acting as an officer sufficient prima facie evidence, but may be contra- 
 dicted, ii. 659. 
 
 authority to take affidavit in Insolvent Court, ii. 659. 
 
 examination viva voce by a commissioner, ii. 659. 
 
 the oath must be proved as alleged, ii. 660. 
 
 the place stated in the jurat, evidence that the affidavit was sworn there, 
 but not conclusive, ii. 660. 
 
 proof against a bankrupt, ii. 660. 
 
 against witness examined oy commissioners of bankrupt, ii. 661. 
 
 proof of oath in an answer in Chancery, ii. 661. 
 
 proof of materiality, ii. 662. 
 
 evidence of a deceased witness, ii. 662. 
 
 proof of nisi prius record, ii. 662. 
 
 officers' minute of verdict evidence of the trial, ii. 662. 
 
 notice of set-off not evidence of action pending, ii. 663. 
 
 proof of trial of an appeal, ii. 663. 
 
 amended bill in Chancery evidence of original, ii. 663. 
 
 copy of bill in abbreviations insufficient, ii. 663. 
 
 proof of taking the freeholder's oath, ii. 664. 
 
 that a defendant in a case was examined, ii. 664. 
 
 affidavit of a marksman inadmissible, unless it is proved to have been 
 read over, secus, if made by a party who can write, ii. 664. , 
 
 evidence confined to persons named in assignments, ii. 665. 
 
 evidence of partnership, ii. 665. 
 
 declaration of an agent, when admissible, ii. 665. 
 
 parol evidence to add to a deposition inadmissible, ii. 665. 
 
 conviction before justices, when inadmissible, ii. 666. 
 
 evidence of the corrupt intent of the defendant, ii. 666. 
 
 defence, ii. 666. 
 
 general expressions in one answer explained by another answer, ii. 666 
 
 it is no defence that an affidavit has a defective jurat, ii. 667. 
 
 or that the affidavit has not been used, ii. 667. 
 
 or that the affidavit has a defective title, ii. 668. 
 
 verdict, ii. 668. 
 
 proof of prosecution for subornation of perjury, ii. 668. 
 
 punishment of perjury and subornation, ii. 669. 
 
 conviction for renders incompetent, ii. 670. 
 
 summary proceedings against attorneys, ii. 670. 
 
 indictment for perjury does not lie against an insolvent for omissions in 
 his schedule, ii. 671.
 
 1078 INDEX. 
 
 PEEJUKY— continued. 
 
 indictment for false answers to the questions under the Reform Act, ii. 
 
 671, 672. 
 indictment for falsely swearing to qualifications of a member of Parlia- 
 ment, ii. 672. 
 against a magistrate for administering unlawful oaths, ii. 673. 
 PERMITS, 
 
 forged, ii. 461. 
 PERSON, 
 
 robbery from, i. 867. — See tit. Robbery. 
 
 stealing from under circumstances not amounting to robbery, i. 868. ii. 132. 
 4 Vict. c. 87, s. 5, ii. 132. 
 
 principals in the second degree and accessories, ii. 132. 
 the indictment need not negative force and fear, and the existence of it 
 
 is no answer to the charge, ii. 133. 
 the thing stolen must be completely removed from the person, ii. 133. 
 PERSONATION, 
 
 false, ii. 539. — See tit. False Personation. 
 PETIT TREASON, 
 
 to be deemed to be, and treated as murder, i. 513. 
 PHYSICIAN, 
 
 murder by, i. 495, et seq. 
 mala praxis of, whether indictable, ii. 277. 
 PICK-LOCK KEYS, 
 
 having them in possession with felonious intent, i. 49. 
 PICK-POCKET, 
 
 ducking, death by, only manslaughter, i. 582. 
 PIGEONS, 
 
 larceny of, ii. 83, 86. 
 PILLORY, 
 
 punishment of, abolished, i. 133, n. (o). 
 PILOT, 
 
 fraudulently retaining anchors, cables, &c, cut from or left by ships, ii. 270. 
 perjury respecting pilotage, ii. 611. 
 PIRACY, 
 
 at common law, i. 94. 
 
 not punishable till the 28 Hen. 8, i. 94. 
 no felony under that statute, i. 94. 
 as to corruption of blood, i. 94. 
 by the 11 & 12 Wm. 3, i. 94. 
 
 acts done under the commission of a foreign state, i. 94. 
 
 18 Geo. 2, c. 30, i. 94. 
 
 piracy under an enemy's commission, i. 94. 
 
 persons convicted under, when not triable for high treason, i. 95. 
 n. (e). 
 commanders, seamen, &c, running away with ships, or yielding voluntarily 
 
 &c, or confederating, i. 95. 
 attempting to corrupt the crew, &c, or putting force upon the commander. 
 
 i. 65. 
 forcibly entering merchant's ships, and destroying goods, i. 9">. 
 trading with pirates, furnishing them with ammunition, &c, i. 95. 
 dealing in slaves on the high seas, &c, i. 96. 
 1 Vict, c 88, i. 96. 
 
 s. 2, piracy where murder attempted, i. 96. 
 s. 3, in other cases, i. 96. 
 s. 4, of accessories, i. 96. 
 of piracy at common law, i. 97, n. (k\
 
 INDEX. 1079 
 
 PIR AC Y — contin ued. 
 
 cases of piracy, i. 97, et seq. 
 
 case on 11 and 12 Wm. 3, making a revolt in a ship, i. 97. 
 
 adhering to the King's enemies, i. 98. 
 
 receiving stolen anchors, i. 99. 
 
 of accessories, i. 99. 
 
 declared principals by the 8 Geo. 1, i. 99. 
 
 receiving and abetting a pirate within a county, i. 100. 
 place where the offence may be committed, i. 100. 
 
 offences to be tried in the places limited by commission, i. 100. 
 concurrent jurisdiction of the common law and Admiralty in Milford 
 
 Haven, i. 100. 
 high and low water mark, i. 101. 
 general rules, i. 101. 
 
 shooting from the land and killing on the sea, i. 102. 
 striking upon the high seas, and death upon shore after reflux, i. 102. 
 39 Geo. 3, c. 37, i. 102. 
 
 of felonies created by statute subsequent to 27 Hen. 8, i. 102. 
 in what court to be tried, i. 102. 
 
 times for holding the court, i. 103. 
 
 offences committed on the seas, &c, triable in any of his Majesty's 
 islands by commission, &c, i. 103. 
 7 & 8 Geo. 4, c. 28, and 9 Geo. 4, c. 31, offences committed within the ju- 
 risdiction of the Admiralty liable to the same punishments, &c, as if 
 committed upon the land, i. 104. 
 4 & 5 Wm. 4, c. 36, Central Criminal Court may try offence committed 
 within the jurisdiction of the Admiralty, i. 104. 
 PLACE, 
 
 laid in an indictment, proof of, ii. 800, 801. 
 where offence is not local, ii. 800. 
 where it is local, ii. 800, 801. 
 PLAGUE, 
 
 persons affected with, going abroad and affecting others, i. 107. 
 quaere, whether in any case murder, i. 107, 108. 
 PLANTS, 
 
 stealing or destroying, &c., apprehending whilst, i. 737. 
 destroying, &c. ; ii. 576. 
 PLATE, 
 
 forgery in respect of stamping, ii. 436, 439, 446. 
 PLAY, 
 
 obscene, performance of, indictable, i. 233, n. (x). 
 
 players indictable as an unlawful assembly and riot, i. 267, n. (g). 
 
 playhouses, when a nuisance, i. 324. 
 
 regulations, &c, concerning, i. 324. 
 PLEA, 
 
 of autrefois acquit, i. 829, et seq. — See tit. Autrefois Acquit. 
 POISON, 
 
 laid by several, and taken in the absence of all, all are principals in the 
 
 murder, i. 28. 
 murder by, i. 507. 
 
 evidence in cases of poisoning, i. 569. 
 
 administering under the 1 Vict. c. 85, to procure miscarriage of a woman, 
 i. 671. 
 with intent to murder, i. 721, 733. 
 in Scotland under the 10 Geo. 4, c. 38, i. 748. 
 POLICEMEN, 
 
 murder of, i. 533. 
 Vol. ii.— 70
 
 1080 INDEX. 
 
 POLYGAMY.— See tit. Bigamy. 
 PORTERAGE, 
 
 act for regulating in London, 39 Geo. 3, c. 58, is cumulative, ii. 301. 
 POSSE COM1TATUS, 
 neglecting to join, i. 91. 
 raising, when not a riot, i. 266. 
 POST-OFFICE, 
 
 1 Vict. c. 36, s. 25, opening or delaying letters, ii. 205. 
 
 s. 26, embezzling letters or packets, ii. 206. 
 s. 27, stealing contents out of letters, ii. 206. 
 s. 28, stealing letter-bags, &c, sent by mail, ii. 206. 
 s. 29, stealing letter bags, &c, sent by packets, ii. 206. 
 s. 30, receiving property sent by the post and stolen or em- 
 bezzled, ii. 206. 
 s. 31, fraudulently retaining, or secreting letters, ii. 206. 
 s. 32, stealing printed votes of Parliament, &c., ii. 207. 
 s. 35, principals in second degree and accessories, ii. 207. 
 s. 36, endeavouring to procure the commission of an offence 
 
 against the post-office acts, ii. 207. 
 s. 37, venue, ii. 207. 
 s. 39, Admiralty jurisdiction, ii. 208. 
 s. 40, property, how to be laid, ii. 208. 
 s. 41, punishments, ii. 209. 
 
 s. 42, hard labour and solitary confinement, ii. 209. 
 s. 47, interpretation clause, ii. 209. 
 s. 48, to what places the act extends, ii. 212. 
 embezzling, kc, part of a bank-note, &c, ii. 212. 
 sufficient to prove that the prisoner acted in the capacity charged in the 
 
 indictment, ii. 212, 213. 
 bill of exchange is a warrant for payment of money within 7 Geo. 3, c. 
 
 50, ii. 213. 
 an unstamped draft not a draft for payment of money within 7 Geo. 3. 
 
 c. 50, ii. 214, et seq. 
 paid notes of a country bank, ii. 216. 
 person acquitted as "a sorter and charger," cannot be convicted as a 
 
 person "employed in the business" of the post-office, ii. 216. 
 points as to the description of the letter, and of the bills secreted, ii. 
 
 216, 217. 
 evidence — post-office marks, ii. 217. 
 
 secreting letter, with intent to embezzle the postage, ii. 217. 
 stealing letters by persons not employed in the post-office, ii. 218. 
 by persons employed in the post-office, ii. 218. 
 case of obtaining the bags from the post-office by fraud, ii. 218. 
 case of letter carrier taking letters out of the office, intending to deliver 
 
 them, but embezzle the postage, ii. 219. 
 receiving house, ii. 220. 
 stealing out of a post-office, ii. 220. 
 pigeon holes in a post-office, ii. 220. 
 
 construction of the 52 Geo. 3, as to the terms, " entrusted in conse- 
 quence of such employment," and "whilst so employed," ii. 221. 
 a draft on unstamped paper may be received in evidence to prove the 
 stealing, ii. 221. 
 forgery of hand of receiver-general of, ii. 468. 
 POST-OFFICE MARKS, 
 
 when and of what evidence, ii. 217, 723. 
 forgery of, ii. 468. 
 POUNDBREACH, 
 
 whether indictable, i. 411.
 
 INDEX. 1081 
 
 POWER OF ATTORNEY, 
 
 is a deed, ii. 497. 
 PREAMBLE, 
 
 reciting particular mischief, ii. 713. 
 PREFINES, 
 
 forgery of the hand of receiver of, ii. 415, 459. 
 PREGNANT WOMEN, 
 
 he who counsels to murder the child is accessory to the murder, i 35. 
 murder in attempting to procure abortion, i. 540. 
 administering poison, &c, to procure miscarriage, i. 671. 
 PRESS, 
 
 power to impress seamen, i. 013. 
 
 killing on flight of party impressed, i. 643. 
 PRINCIPAL, 
 
 in the first degree, i. 26. 
 in the second degree, i. 26. 
 
 termed aider and abettor, i. 26. 
 
 sometimes accomplice, i. 26. 
 formerly considered accessory at the fact, i. 26. 
 
 and not triable till principal convicted, i. 26. 
 must be charged with being present aiding and abbetting, i. 31. 
 how far he must be present at the commission, i. 26, 27. 
 
 what shall constitute such presence, i. 26, et seq. 
 there must be some participation, i. 27. 
 all present principals, though one only acts, i. 27 
 must be near enough to assist, i. 27, 28. 
 throwing goods out of window to an accomplice, i. 28. 
 how he differs from an accessory before the fact, i. 31. 
 by means of an innocent agent, i. 28. 
 
 contra, a guilty one, i. 28. 
 in a crime done in prosecution of some unlawful purpose by several, i. 
 29. 
 where there is- a general resolution against all opposers, i. 29. 
 indictment against, i. 30. 
 trial and punishment of, 
 in burglary, i. 841. 
 in sacrilege, i. 845. 
 in housebreaking, i. 848. 
 in stealing in a dwelling-house, i. 859. 
 in breaking, &c, and stealing in buildings within the curtilage, L 
 
 860. 
 in breaking, &c, shops, &c, and stealing therein, i. 866. 
 in robbery, i. 868. 
 in larceny, ii. 128. 
 in stealing from the person, ii. 132. 
 in stealing horses, cows, sheep, &c, ii. 134. 
 in stealing and destroying deer, ii. 144. 
 in taking, &c, fish, ii. 149. 
 in plundering shipwrecked vessels, ii. 151. 
 in larceny by servants, &c, ii. 166. 
 in embezzlement, ii. 191. 
 in arson, ii. 554, 568. 
 in maiming cattle, ii. 573. 
 the same person may be a principal and an accessory in the same felony, i.. 
 31. 
 he may not be charged as both in one indictment, i. 31, n. (/).
 
 1082 INDEX. 
 
 PRINCIPAL— continued. 
 
 a man may be indicted as, after an acquittal as accessory, i. 31, n. (y). 
 all are principals in a riot, i. 269. 
 PRISON BREAKING:. — See also tit. Rescue and Escape. 
 definition of, i, 427. 
 felony at common law, i. 427. 
 by the 1 Ed. 2, st. 2, i. 427. 
 
 what is a prison within the act, i. 427. 
 of the regularity of the imprisonment, i. 427. 
 
 of the nature of the crime for which the party was imprisoned, i. 428. 
 of the nature of the breaking, i. 429. 
 proceedings for, i. 430. 
 
 indictment, evidence, and punishment, i. 430. 
 where the party breaking prison is a convicted felon, i. 431. 
 by convicts in the Millbank Penitentiary, i. 431, 448, 449. 
 PRISONERS' COUNSEL ACT, ii. 813. 
 entitled to copies of depositions, ii. 813. 
 cases relating to, ii. 816. 
 entitled to full defence by counsel, ii. 814. 
 cases relating to, ii. 814. 
 PRIVATE PERSONS, 
 
 suppression of affrays by, i. 293, 294. 
 
 as to their right to enter with force when they have legal title, i. 304, 305. 
 bringing felons to justice, killing, i. 534. 
 authority of to arrest, &c, in cases of felony, i. 534, 593. 
 in cases of attempts to commit felony, i. 594. 
 PRIVILEGED COMMUNICATIONS, 
 
 between the client and attorney or counsel, ii. 902. 
 rule confined to legal advisers, ii. 903. 
 arbitrator, ii. 903. 
 interpreter, agent, clerk, ii. 904. 
 attorney not consulted as such, ii. 904. 
 person consulted as attorney not being such, ii. 904. 
 where two parties employ the same attorney, ii. 904. 
 what sort of communications between attorney and their client are pri- 
 vileged, ii. 905, et seq. 
 the rule correlative with that which governs the summary jurisdiction 
 
 of the courts over attorneys, ii. 906. 
 the privilege extends to all knowledge however obtained, ii. 906. 
 
 attorney not allowed to produce documents deposited with him by 
 
 his client, ii. 906, 907. 
 what counsel may decline to answer, ii. 908. 
 as to what facts an attorney may be examined, ii. 908. 
 communications between attorney and client not privileged, if not 
 
 professional, ii. 910. 
 cross-examination of an attorney, ii. 910. 
 informers, ii. 910. 
 
 agent of government or police, ii. 910. 
 official communications, ii. 911. 
 questions contrary to state policy, ii. 911. 
 transactions of privy council, ii. 911. 
 evidence before graud jury, ii. 911, 912. 
 speeches, &c, in the House of Commons, ii. 912. 
 PRIVY COUNCIL, 
 
 transactions in, not to be stated in evidence, ii. 911. 
 PRIZE FIGHTING, 
 death by, i. 638.
 
 INDEX. 108*-. 
 
 PRIZE-MONEY, 
 
 forgery, &c, to obtain, ii. 473, et seq. 540. 
 PROBATE, 
 
 the seal of the court proves itself, ii. 809. 
 
 unrepealed, generally conclusive evidence of the validity of will, ii. 809 
 but not so on an indictment for forging a will, ii. 809. 
 PROCESS.— See tit. Arrest. 
 
 obstructing process, i. 408, et seq. 
 
 opposing arrest upon criminal process, i. 408. 
 giving assistance to persons pursued on suspicion of felony, i. 408 
 in places of supposed privilege, i. 409. 
 as to the lawfulness of the arrest, i. 409. 
 by rescue of the party arrested, i. 410. 
 by rescuing goods distrained, poundbreach, &c, i. 411. 
 PROPERTY, 
 
 real or personal, damaging, ii. 595. 
 PROSECUTION, 
 
 commencement of, what, and how proved, i. 471. 
 PROMISSORY NOTE, 
 
 forgery, &c, in respect of, ii. 495 — See tit. Forgery. 
 PROVISIONS, 
 
 unwholesome, selling, i. 109, ii. 275. 
 enhancing the price of, i. 168, et seq. 
 undue abatement of their value, i. 173. 
 PUBLIC BOOKS, 
 
 entries in, when evidence, and how proved, ii. 811, 81G. 
 PUBLIC COMPANIES, 
 
 forgery, &c, relating to stocks, ii. 417, et seq. — See tit. Forgery. 
 PUBLIC FUNDS, 
 
 forgery, &c, relating to, ii. 417, et seq. — See tit. Forgery. 
 PUBLIC HEALTH, 
 
 officers affecting, i. 107, et seq. 
 PUBLIC OFFICERS.— See tit. Officers. 
 PUBLIC WORSHIP, 
 
 disturbance of, i. 299, et seq. — See tit. Disturbance. 
 PUNISHMENT.— See tit. the Titles of the respective Offences. 
 
 of felonies, not punishable by any statute except 7 & 8 Geo. 4, c. 28, i. 38. 
 
 and i. 65, n. (/). 
 what felonies only shall be capital, 7 & 8 Geo. 4, c. 28, s. 7, Appendix of 
 
 Statutes. 
 of person under sentence, ii. 128. 
 of accessories, &c, i. 39. 
 of Admiralty offences, i. 104. 
 
 endurance of, shall have the effect of a pardon, ii. 975. 
 PURPORT, 
 
 the word, what it imports in an indictment, ii. 379, et seq. 
 
 Q. 
 
 QUAKERS, 
 
 marriages, i. 216. 
 
 why excluded frorn giving evidence, ii. 592. 
 
 affirmations of, when admissible, ii. 592. 
 
 by the 9 Geo. 4, c. 15, admissible in all cases, criminal as well as civil, 
 ii. 972. 
 false affirmations of, ii. 606, 607.
 
 1084 INDEX. 
 
 QUARANTINE, 
 
 neglecting, i. 105, et seq. 
 26 Geo. 2, c. 6. 
 
 disobedience to order of council under, indictable, i. 105. 
 6 Geo. 4, c. 78, i. 105. 
 
 penalty on masters and others quitting vessels or permitting others, 
 
 &c, or not conveying them to the appointed place, i. 105. 
 persons coming in such vessels, or going abroad and quitting them 
 
 before discharged, &c, i. 105, 106. 
 penalty on officers and others embezzling the goods performing 
 quarantine, or neglecting or deserting their duty, or giving false 
 certificates, &c, i. 106. 
 publication of orders in council in London Gazette sufficient notice, 
 
 i. 106. 
 evidence of the place from which vessel came, &c, i. 107. 
 of having been directed to perform quarantine, i. 107. 
 of liability to quarantine, i. 107. 
 forgery of certificates, ii. 484. 
 perjury relating to, ii. 611. 
 QUARTER SESSIONS, 
 
 jurisdiction of, see the 5 & 6 Vict. c. 88, in the Appendix of Statutes. 
 
 R. 
 
 RABBITS, 
 
 larceny of, ii. 85. 
 taking in a warren, ii. 14"). 
 RAPE, 
 
 definition of the offence, i. 673. 
 
 punishment of by the 4 & 5 Vict. c. 50, i. 673. 
 
 aiders and accessories, i. (ITU, 691. 
 
 persons capable of committing, i. 676. 
 
 persons on whom it may be committed, i. 677. 
 
 rape by passing for a woman's husband, i. (177. 
 
 carnal knowledge necessary to constitute, i. 678, et seq. 
 
 penetration, i. 678. 
 
 rupture of the hymen, i. 679. 
 
 • missio seminis, i. 679, et seq. 
 
 proof of carnal knowledge uuder 9 Geo. 4, c. 31, i. 682. 
 
 cases on that statute, i. 682, et seq. 
 
 indictment, i. 686, et seq. 
 
 parry ravished a competent witness, i. 688. 
 
 her credibility, how to be left to the jury, i. 688. 
 
 her complaints, when admissible, i. 689. 
 
 not the particulars of them, i. 689. 
 
 when she is dead or absent, i. 689, 690. 
 
 her character, i. 690. 
 
 great caution to be used on the trial, i. 691. 
 
 punishment of accessories, i. 691. 
 
 assault with intent to ravish, i. W.). 
 carnal knowledge of female children, i. 693. 
 by an infant, i. 3. 
 
 indictments for an attempt to commit, need not negative the commission, i. 47 
 murder by, i. 505. 
 REBELS, 
 
 excuse for joining, what may be, i. 17.
 
 INDEX. 1085 
 
 RECEIPT, 
 
 forgery of. — Sec tit. Forgery, ii. 496, £03, et seq. 
 RECEIVERS, 
 
 at common law receiving stolen goods only a misdemeanor, ii. 237. 
 a felony by the 7 & 8 Geo. 4, c. 29, s. 54, ii. 237. 
 a misdemeanor, where the original offence is so, ii. 237. 
 place of trial, ii. 238. 
 
 punishment where the original offence is punisnable by summary con- 
 viction, ii. 238. 
 proceeding against receiver, though principal not convicted, ii. 237. 
 distinction between receiver and principal thief, ii. 239, 240, 241. 
 a person may be indicted for receiving goods stolen by a person unknown. 
 
 ii. 242. 
 indictment for receiving stolen goods, ii. 242, et seq. 
 
 it is sufficient to state the conviction without the attainder of the prin- 
 cipal, ii. 243. 
 need not state time, place, &c, ii. 242, et seq. 
 indictment need not name the principal, ii. 243. 
 indictment against several receivers stating the goods to have been stolen by 
 
 an evil disposed person, ii. 244. 
 separate receivers may be tried together with the principal ii. 245. 
 what counts may be joined, ii. 245, 246. 
 what constitutes a receiving at common law, ii. 247. 
 under the statute, ii. 247. 
 some evidence necessary that the goods were stolen by another person, ii. 
 
 247, 248. 
 what is such evidence, ii. 248. 
 where goods are alleged to have been received from A., it must be so proved, 
 
 ii. 248. 
 not so where there is a couut for a substantive felony, ii. 249. 
 upon a joint charge a joint receipt must be proved, ii. 249. 
 servant receiving by the direction of his master, ii. 249. 
 
 the thing received may be stated under a different denomination from 
 
 that stolen, ii. 250. 
 proceeds of stolen notes, ii. 250. 
 evidence of guilty knowledge, ii. 251. 
 other receipts of stolen property, ii. 251, 252. 
 
 of the principal's conviction, ii. 252. 
 principal felon a witness, ii. 253. 
 
 receiver may controvert the guilt of the principal, ii. 253. 
 autrefois acquit, plea of, ii. 253. 
 accessories, ii. 243. 
 restitution of stolen property, ii. 253. 
 
 of unlawfully receiving tackle or goods cut from or left by ships, ii. 270, 271. 
 receivers of cargo, goods, &c, stolen on the Thames, ii. 272. 
 RECORDS, 
 
 stealing, ii. 73. 
 
 proof and effect of, ii. 806, et seq. 
 amendment of, under 9 Geo. 4, e. 15, ii. 798. 
 forging or altering, ii. 414. 
 RECOVERY, 
 
 suffering in name of party not privy thereto, ii, 543. 
 REGISTRY, 
 
 acts, forgery in respect of, ii. 491. 
 perjury in respect to, ii. 612. 
 of vessels, perjury in respect to, ii. 611.
 
 1086 INDEX. 
 
 REPEATING, 
 
 nature of the offence, i. 168. ' 
 statutes on the subject repealed, i. 168. 
 
 offence still punishable at common law, i. 168. 
 enhancing the price of hops, i. 170. 
 indictment and punishment, i. 173. 
 RELIGIOUS ASSEMBLIES, 
 
 contemptuously, &c, disquieting or disturbing, i. 800, et seq. 
 REQUEST, 
 
 for the delivery of goods, &c, forgery of, ii. 296. 
 cases as to such requests, ii. 527, et seq. 
 RESCUE. — See tit. Prison-Breaking and Escape. 
 
 obstructing process by rescue of party arrested, i. 410. 
 rescuing goods distrained, i. 411. 
 
 freeing another from arrest or imprisonment, i. 433, et seq. 
 sort of prison, i. 433. 
 
 of imprisonment and breaking, i. 433. 
 a rescuer may be guilty of high treason, i. 4.'».J. 
 rescuing from Court, i. 762. 
 
 breaking a prison is not a felony, unless the prisoner escape, i. 434. 
 proceedings against rescuers, i. 434. 
 indictment, i. 434. 
 punishment, i. 433. 
 aiding a prisoner to escape, i. 435. 
 
 statutes respecting the rescuing of prisoners or aiding them to escape, i. 436, 
 et seq. 
 
 25 Geo. 2, rescuing a person in custody for murder, i. 436. 
 
 rescuing a body of a murderer after execution, i. 4-"i<'>. 
 4 & 5 Vict, escape of persons sentenced by a court martial, i. 436. 
 52 Geo. 3, aiding the escape of prisoners of war, i. 437. 
 16 Geo. 2, aiding a prisoner convicted or committed for treason or felony 
 to escape, 437, 438. 
 
 confined for debt, i. 438. 
 conveying any disguise or instruments into prison to aid escapes, i. 
 
 438. 
 assisting persons charged with treason or felony in attempt to es- 
 cape from constable, \e., &c, i. 439. 
 limitation of prosecutions, i. 439. 
 persons ordered for transportation under this act, and returning, 
 
 &c, i. 439. 
 cases on construction of the act, i. 439. 
 
 a commitment on suspicion not within it, i. 439. 
 
 the statute does not extend to cases where an actual escape is 
 
 made, i. 440. 
 where the prisoner has been pardoned on condition, &c, i. 440. 
 where the party does not know the prisoner's offence, i. 440. 
 indictment on the statute, i. 440. 
 evidence of prisoner's conviction, i. 441. 
 
 4 Geo. 4, c. 64, conveying any disguise, arms, &c, a sufficient intent 
 
 to aid, &c, an escape, i. 440. 
 assisting any prisoner to escape, felony, i. 440. 
 trial and evidence, i. 440. 
 
 5 Geo. 4, c. 84, rescuing or aiding escape of persons ordered to be 
 transported from custody of overseer, &c, i. 441. 
 
 of persons under sentence of transportation, i. 442, et seq. i. 446. — See tit 
 
 Transportation. 
 of persons from the Millbauk Penitentiary, i. 1 I s
 
 INDEX. 1087 
 
 RESTITUTION, 
 
 of stolen property, ii. 130. 
 
 of property l-eceived with guilty knowledge, ii. 258. 
 of property obtained by false pretences, ii. 313. 
 RESURRECTION-MEN, i. 464.— See tit. Dead Bodies. 
 REVENUE LAWS, 
 
 offences against, i. Ill, et seq. 
 smuggling, i. 111. 
 
 definition of, i. 111. 
 3 &4Wm. 4, c. 40, i. 111. 
 
 repeal of previous laws, i. 111. 
 3 & 4 Win. 4, e. 53, s. 8, vessels not bringing-to may be fired at, i. 
 111. 
 s. 32, vessels, &c, may be seized, i. 112. 
 s. 34, officers may go on board and search ves- 
 sels, i. 112. 
 
 the person when, i. 112. 
 s. 38, officers may enter houses, whcn,i. 113. 
 s. 40, officers may detain carts, &c, i. 113. 
 s. 52, persons escaping may afterwards be de- 
 tained, i. 113. 
 s. 53, penalty for making signals to smugglers, 
 
 i. 113, 114. 
 s. 54, proof of not being a signal to lie on de- 
 fendant, i. 114. 
 s. 55, any one may prevent, &c, signals, i. 115. 
 s. 56, penalty on persons resisting officers, or 
 
 rescuing, &c, goods, i. 115. 
 s. 58, three or more armed persons with fire- 
 arms and other offensive weapons, and assem- 
 bled for purposes of assisting the landing, &c, 
 guilty of' felony, i. 115. 
 s. 59, persons shooting at any boat, &c, or 
 wounding officers, &c, guilty of felony after 
 a fire from officers, witbout hoisting, i. 115. 
 signal, not malicious, so as not to be within 
 the act, i. 118. 
 s. 60, any person in company with four others, 
 &c, found with goods liable to forfeiture, and 
 carrying offensive weapons, &c, or disguised, 
 guilty of felony, i. 116. 
 s. 61, persons assaulting officers transportable, 
 
 i 116. 
 s. 77, offences on the seas to be deemed to have 
 been committed at the place where the of- 
 fender is taken, i. 116. 
 s. 112, indictments to be preferred by order of 
 
 the commissioners, i. 117. 
 s. 114, onus probandi as to payment of duty 
 
 on persons claiming goods sold, i. 117. 
 s. 116, averment of certain matters sufficient 
 
 till contrary proved, i. 117. 
 s. 117, persons employed to prevent smuggling 
 
 to be*deemed duly employed, i. 117. 
 s. 118, viva voce evidence of being officer, i. 
 117.
 
 1088 INDEX. 
 
 REVENUE LAWS— contin ued. 
 
 s. 120, time for commencing prosecutions, i. 
 
 117. 
 s. 122, indictments may be tried in any county, 
 i. 118. 
 what a malicious shooting at a vessel, i. 118. 
 what are offensive weapons, i. 118, 119. 
 what an assembling, i. 120. 
 
 indictment need not state the signal to have been made between 21st Sep- 
 tember and 1st April, i. 114. 
 as to stating the officers' duty, i. 112. 
 
 killing by firing at smugglers to make them bring-to, i. G64. 
 assaulting officers, &c, indictable at common law, i. 111. 
 
 count for common assault not triable in a foreign country, i. 120. 
 officers of customs, &c, taking bribes, i. 155. 
 
 or making collusive seizures, i. 155. 
 REWARD, 
 
 taking, for helping to the discovery of stolen goods, i. 132, ii. 254. 
 
 the principal felon may be witness, ii. 20"). 
 advertising for return of stolen property, made liable to a penalty, ii. 255. 
 RICKS, 
 
 setting fire to, ii. 553. 
 RING-DROPPING, 
 
 larceny by, ii. 4G, et seq. 
 
 it is felony to aid and assist, a person unknown to obtain money by. i. 28. 
 RINGING THE CHANGES, 
 
 an uttering of counterfeit coin, within the 15 Geo. 2, i. 7 s1 . 
 RIOT. — See tit. Unlawful Assembly. 
 definition of, i. 266. 
 women are punishable for, i. 272. 
 
 but not infants under the age of discretion, i. 272. 
 when the law authorizes force, an assembling will not be riotous, i. 266. 
 how far the object must be of a private nature, i. 267. 
 as to the degree of violence or terror, i. 267. 
 the legality of the act intended is not material, if there be violence and 
 
 tumult, i. 268. 
 how far the violence and tumult must be premeditated, i. I 
 though the parties assemble for au innocent purpose, they may afterwards b< 
 
 guilty of a riot, i. 268, 269. 
 any one taking part in a riot is a rioter; all are principals, i. 260. 
 
 7&8 Geo. 4, c. 30, s. 8. 
 rioters pulling down, &c, churches, houses, mills, &c., i. 269. 
 pulling down buildings used for trades and manufactures, i. 269. 
 engines, &c., for working mines, i. 270. 
 
 where rioters desist from demolishing of their own accord, i. 27". 
 where they are interrupted by constables, &c., i. 270. 
 the beginning to pull down must be with intent to demolish the whole hous< . 
 
 i. 271. 
 some part of the freehold must be destroyed, i. 271. 
 destroying by fire, i. 271. 
 
 difference between a riot and unlawful assembly, i. 173. 
 33 Geo. 3, c. 67, i. 271. 
 
 seamen preventing the loading vi' vessels, i. 271. 
 suppression of riots, i. 285. 
 
 by common law, i. 285, 286. 
 by statutes, i. 287. 
 indictment for, and trial, i. 287.
 
 INDEX. 1089 
 
 RIOT — continued. 
 
 punishment for, i. 289. 
 killing by officers in, i. 067. 
 conspiracy to commit, ii. G81. 
 RIVERS, 
 
 considered as highways, i. 378. 
 
 nuisances and obstructions to, within the same principles as those to high- 
 ways, i. 378. 
 still highways, though the course changed, i. 378. 
 
 effect of an act to change the course, on a towing path, i. 346. 
 public not entitled to a towing path at common law, i. 378. 
 soil of, whose it is, i. 378. 
 
 how the public right to use a river may be destroyed, i. 378. 
 flowing of the tide prima facie evidence that the river is public, i. 378. 
 obstructions on public rivers, i. 379. 
 
 cases which have and have not been held so, i. 379, et seq. 
 where owners of adjacent lands may raise the banks of a river, i. 380. 
 no defence that a nuisance produces more advantage for other purposes, i. 381. 
 injury too slight to support an indictment, i. 381. 
 weir granted by the crown before Edw. 1, i. 3*-. 
 
 indictment for obstructing, i. 385. 
 liability to clear the passage of, i. 385. 
 
 offences upon, within the admiral's jurisdiction, i. 100, 101. 
 stealing goods on, ii. 150. 
 breaking down, &c, locks on, ii. 578. 
 ROAD.— See tit. Highway. 
 
 private, set out by act of Parliament, no indictment lies for not repairing, i. 50. 
 setting a person on a footway to distribute handbills whereby the way was 
 impeded, not indictable, i. 51. 
 so throwing skins into a road, and causing a private injury, i. 51. 
 ROBBERY, 
 
 assault with intent to commit, i. 76-1, et seq. 
 from the person, 
 
 definition of, i. 867. 
 
 an aggravated species of larceny, i. 868. 
 
 1 Vict. c. 87, s. 2, robbery attended with cutting and wounding, i. 867. 
 s. 3, robbery attended with violence, i. 867. 
 s. 4, robbery by threats, i. 867. 
 s. 5, stealing from the person, i. 868. 
 s. 6, assault with intent to rob, i. 868. 
 s. 7, demanding money with menaces, i. 868. 
 s. 9, principals in the second degree and accessories,!. 868. 
 s. 10, hard labour, i. 868. 
 
 s. 12, meaning of the word " property," i. 868. 
 of the felonious taking, i. 869. 
 
 amount of the property immaterial, i. 868. 
 
 but it must be of some value, and taken from the peaceable 
 possession of the owner, i. 868. 
 the taking must be such as to give the robber possession of the 
 
 thing taken, i. 870. 
 there may be a taking in law, i. 871. 
 
 there must be the animus furandi or felonious intent, i. 871, et seq. 
 the taking is sufficient, if it be in the presence of the owner, i. 873. 
 the taking must not precede the violence or putting in fear, i. 874. 
 of the property being taken against, the will of the party, i. 874. 
 the violence, i. 874. 
 
 the degree of violence, i. 874.
 
 1090 INDEX. 
 
 ROBBERY— continued. 
 
 violence accompanied by some colourable and specious pretence, i. 
 
 876, et seq. 
 property obtained by violence, thougb not used for the purpose, i. 
 876, et seq. 
 of the putting in fear, i. 879. 
 of the fear of injury to the person, i. 879. 
 
 it may be presumed though the party go to meet the robber, &c, 
 
 i. 880. 
 it may exist, though the property be taken by a pretence, i. 880. 
 of the fear of violence to the child of the party, i. 880. 
 of the fear of injury to the property, i. 881. 
 
 threat to tear the prosecutor's mow and level his house, i. 881. 
 prisoner at the head of a mob, i. 881. 
 threat of destroying house, i. 882. 
 other demands admissible in evidence, i. 882. 
 of the fear of injury to the character, i. 884. 
 of the fear of being sent to prison, i. 884. 
 of the fear of accusation of sodomitical practices, i. 885, et seq. 
 principals and accessories, i. 900. 
 
 presumption of repentance in one of several engaged in a com- 
 mon design, i. 901. 
 the indictment, i. 902. 
 the words "feloniously," and " violently," i. 902. 
 
 statement of the place where the robbery was committed, i. 904. 
 using the maiden name of prosecutrix, where she had married after the 
 robbery, i. 904. 
 the verdict, i. 905. 
 
 may be guilty of simple larceny only, i. 905. 
 ROMAN CATHOLICS, 
 
 marriage of, in Ireland, i. 214. 
 disturbance of worship of, i. 303. 
 ROOTS, &c, 
 
 destroying, ii. 576. 
 ROPE-DANCERS, 
 
 public nuisance, i. 322, 325. 
 ROUT, 
 
 definition and description of, i. 206, 272, 273. 
 punishment of, i. 289. 
 ROYAL FAMILY, 
 
 marriages of, i. 714. 
 
 SACRILEGE, 
 
 a larceny in a church or chapel, accompanied by a breaking and entering, 
 by 7 & 8 Geo. 4, c. 29, i. 843. 
 
 now punishable under the 6 & 7 Win. 4, c. 4, and 1 Yict. c. 90, i. 843. 
 
 a tower is parcel of the church, i. 844. 
 
 meaning of the word " chapel," i. 844. 
 
 statement of property in indictment for, i. 84.">. 
 
 principals in second degree, and accessories, how tried and punished, i. 845. 
 SAILOR. — See tit. Seamen and Soldiers. 
 SALVAGE, 
 
 assaulting persons engaged in, i. 769. 
 SCANDALUM MA CXATl'M. 
 
 statutes of, i. 238.
 
 INDEX. 1091 
 
 SCOLD, 
 
 common, i. 327. 
 SCOTLAND, 
 
 marriages in, i. 212, 213. 
 divorces in, i. 188. 
 stealing in, ii. 119. 
 SCRIPT RECEIPT, 
 
 forgery of, ii. 511. 
 SEA BANKS, 
 
 breaking down, &c, ii. 578. 
 SEA. — See tit. High Seas. 
 
 offences committed on, i. 94, et seq. — See tit. Piracy. 
 high and low water mark, i. 100, 101. 
 SEAMEN, 
 
 riotously preventing the loading, &c, of vessels, i. 271. 
 authority to impress, i. 613. 
 
 killing on flight of party impressed, i. 643. 
 obstructing from pursuing their occupations, i. 770. 
 master of vessel forcing on shore and refusing to bring home, i. 717. 
 forgery and personation to obtain pay, prize-money, pensions, &c, ii. 473, 
 
 540. 
 forgery of seamen's wills, ii. 477. 
 perjury relating to, ii. 610. 
 SECOND OFFENCE, 
 
 ought to be committed after a conviction for the first in order to be subject 
 
 to an increased statutory punishment, i. 43. 
 punishment, &c, for second felony under 7 & 8 Geo. 4, c. 29, s. 11, ii. 128. 
 SECONDARY EVIDENCE, 
 what, ii. 746. 
 no degrees in, ii. 747. 
 SEDUCTION, 
 
 conspiracy to seduce a young woman, ii. 686. 
 SENTINEL, 
 
 murder by, in preventing approach, i. 614. 
 SERVANT, 
 
 not excused from the commission of a crime by the coercion of his master. 
 
 i. 18. 
 soliciting to steal his master's goods, a misdemeanor, i. 47. 
 neglecting to provide with necessaries, i. 46. 
 goods in custody of, ownership of, ii. 92. 
 
 larceny by, and persons having custody of goods, &c, as servants, ii. 153, 
 et seq. 
 offences at common law, ii. 153. 
 
 cases where the property stolen was received into possession of the 
 
 master before the taking by the servant, ii. 153, et seq. 
 cases where the property was merely delivered to servant for mas- 
 ter's use; and servant purloining, not guilty of larceny, ii. 163, 
 et seq. 
 where the party has only the bare charge or custody of goods, the 
 legal possession remains in the owner, and such party may be 
 guilty of larceny, ii. 153, et seq. 
 sheriff's officer clandestinely selling goods seized, ii. 153. 
 bookkeeper embezzling bill delivered to him to be sent by the post, 
 
 ii. 153, 154. 
 porter opening package and selling the goods, ii. 154. 
 servant taking corn from his master's barge, ii. 155.
 
 1092 INDEX. 
 
 SERVANT — continued. 
 
 servant taking corn from vendor's vessel after it had been bought 
 
 by his master, ii. 155. 
 money in the possession of the master by the hands of one clerk 
 
 embezzled by another, ii. 156. 
 persons hired to drive sheep and cattle, ii. 156, et seq. 
 where there is no intent to dispose of the cattle when first delivered, 
 
 ii. 157. 
 distinction in cases of this kind between custody and possession, 
 
 ii. 158. 
 where the person has not only the custody, but the possession, ii. 
 
 159. 
 servants entrusted with money for particular purposes, ii. 160, 
 
 161, 162. 
 where the property has merely been delivered to the servant for 
 
 the master's use, ii. 163. 
 cashier of the bank embezzling bond before put in place of deposit, 
 
 ii. 163. 
 servant embezzling money before it was put in the till, ii. 163. 
 banker's clerk embezzling bank-notes before they had been in their 
 
 drawer, ii. 164. 
 servants within the 7 & 8 Geo. 4, c. 20, s. 46, ii. lij">. 
 indictment, ii. 165. 
 punishment of, ii. 166. 
 
 of principals and accessories, ii. 166. 
 embezzlement by, ii. 167, et seq. — See tit. Embezzlement. 
 giving false characters to, ii. 316. 
 negligently setting fire to house, &c, ii. 568. 
 SESSIONS, 
 
 order of, disobedience to, i. 412. 
 
 jurisdiction of, see the 5 & Vict. c. 38, in the Appendix of Stai 
 SEWERS, 
 
 commissioners of, property of how to be laid, ii. 103. 
 SHEEP, 
 
 stealing, ii. 134. 
 
 what is a sufficient removal, ii. 135, 136. 
 
 part of the animal taken, ii. 135. 
 principals in second degree, and accessories, ii. 134, 135. 
 killing with intent to steal the carcase, ii. 134. 
 cutting off part while sheep was alive, ii. 137. 
 how sheep are to be described in the indictment, ii. 138, 139. 
 SHERIFF, 
 
 neglect of duty by, how punishable, i. 138. 
 extortion by, how punishable, i. 142, 144. 
 not to let his bailiwick to farm, i. 148. 
 undersheriff, 
 
 extortion by, i. 143. 
 sheriff's officer, 
 
 extortion by, i. 143. 
 his officer clandestinely selling goods levied, ii. 153. 
 SHIP.— See tit. Seamen. 
 
 in service of foreign state, &c, i. 80. — See tit. Foreign State. 
 
 running away with, &c, i. 95. — See tit. Piracy. 
 
 forcibly entering merchant ships and destroying goods, &c.j i. 95. — See tit. 
 
 Piracy. 
 making a revolt in, when piracy, i. 97. 
 quarantine by, i. 105. — See tit. Quarantine.
 
 INDEX. 1093 
 
 SHIP — continued. 
 
 commander of, assaulting to hinder from fighting, i. 7G9. 
 shooting at a ship or boat, i. 115, 118. 
 putting combustibles on board without notice, i. 321. 
 stealing from, ii. 150. 
 
 receiving tackle or goods cut from, or left by, ii. 270. 
 setting fire to, ii. 554. 
 damaging or destroying, ii. 591. 
 SHIPWRECKED VESSEL, 
 
 assaults on officers endeavouring to save shipwrecked property, i. 709. 
 plundering any part of tackle, or cargo of, ii. 150. 
 offering shipwrecked goods for sale, ii. 151. 
 
 as to the meaning of goods, ii. 152. 
 principals, accessories, and abettors, ii. 150. 
 property in wreck, how laid, ii. 96. 
 place of trial, ii. 152. 
 SHOOTING, 
 
 at any ship or boat, officer, &c., in resistance to revenue laws, i. 115, 118. 
 at person maliciously, i. 721, et seq. 
 
 with intent to murder, maim, &c, or resist apprehension, i. 721, et seq. 
 SHOP, 
 
 breaking, &c, and stealing therein, 865. 
 punishment, i. 865. 
 
 principals in second degree, and accessories, i. 866. 
 the shop must be for the sale of goods, i. 865. 
 SHROUDS, 
 
 ownership of, in whom to be laid, ii. 98. 
 SHRUBS, 
 
 injuring and destroying, ii. 574. 
 stealing, ii. 68. 
 SIGN MANUAL, 
 
 evidence of, i. 452. 
 
 when a pardon may be proved by, ii. 976. 
 SIGNALS, 
 
 making lights, &c, on shore, as signals to smugglers, i, 113, 114. 
 SILK, 
 
 destroying in the course of manufacture, ii. 585. 
 SLANDER.— See tit. Libel. 
 
 slanderous toords, when indictable, i. 220, 240, 241. 
 statutes of Scand. Mag., i. 238. 
 SLAVES, 
 
 dealing in slaves, i. 163, et seq. 
 5 Geo. 4, c. 113-163. 
 
 dealing, &c, in, on the high seas, piracy, &c, i. 163, et seq. 
 seamen serving in slave ships, guilty of a misdemeanor, i. 166. 
 offenders informing within a certain time, exempted, i. 166. 
 trial of offences, i. 167. 
 SLAVE TRADE, 
 
 forgery of certificates, &c, relating to, i. 483. 
 perjury in respect of, ii. 611. 
 SMALL-POX, 
 
 exposing a person infected with, in a place of public resort, indictable, i. 
 
 108, 109. 
 inoculating for, whether indictable, i. 108. 
 house for reception of patients, whether a nuisance, i. 109. 
 persons inoculating liable to penalty, i. 109.
 
 1094 INDEX. 
 
 SMUGGLING, 
 
 definition of, i. 111. 
 
 killing by firing at smuggling vessel to make her bring-to, i. 644. 
 offence of. — See tit. Revenue Laws. 
 SOCIETIES, 
 
 illegal, i. 272, et seq. — See tit. Unlawful Assemblies. 
 SODOMY, 
 
 definition of offence, i. 698. 
 punishment by 9 Geo. 4, c. 31, s. 15, i. 698. 
 aiders and accessories, i. 691, 699. 
 indictment and evidence, i. 699. 
 proof of carnal knowledge, i. 698. 
 attempt or soliciting to commit, i. 700. 
 SOLDIERS AND SAILORS, 
 
 serving foreign states, i. 87, et seq. — See tit. Foreign States. 
 seducing to desert or mutiny, i. 92, et seq. 
 Mutiny Act, 3 Vict, c* 6, i. 90. 
 37 Geo. 3, i. 92. 
 
 seducing to mutiny, — trial — indictment, i. 93. 
 sailor in a sick hospital, within the act, i. 92. 
 57 Geo. 3, i. 93. 
 1 Geo. 1, i. 93. 
 
 persuading soldiers to desert, i. 93. 
 consequences of desertion to the party deserting, i. 93. 
 fraud by pretending a power to discbarge, ii. 279. 
 fraudulent enlistment as, ii. 278. 
 
 forgery and false presentation to obtain prize-money, pay, pensions, kc, ii. 
 473, et seq. 540. 
 SOUTH-SEA COMPANY, 
 
 forgery in respect of stock of, ii. 417. 
 
 of seal, bond, receipt, warrant, &c, of, ii. 417. 
 SPENCEAN, 
 
 societies, unlawful assemblies, i. 281. 
 SPIRITUAL PERSON, 
 
 taking land to farm, to forfeit ten pounds by the 21 lien. 8, but not indict- 
 able, i. 51. 
 SPRING GUNS, 
 
 7 & 8 Geo. 4, c. 18. 
 
 s. 1, persons setting or placing spring-guns, man-traps, &c, guilty of 
 
 a misdemeanor, i. 784. 
 s. 2, proviso for traps for destroying vermin, i. 784. 
 s. 3, persons permitting gun-traps, &c, set by others to continue, 
 
 deemed to have set the same, i. 7 s t. 
 s. 4, proviso for guns, traps, &c, set for the protection of dwelling- 
 houses, i. 784. 
 STABBING, 
 
 maliciously, with intent to murder, &c, i. 721, 728, et seq. 
 STAGE COACHES, 
 nuisances by, i. 349. 
 forgery in respect of licenses for, ii. 493. 
 goods stolen from, on a journey, ii. 93, 120. 
 STAGE COACHMEN, 
 
 furious driving, &c, of, i. 783. 
 overloading their coaches, i. 654, n. (/). 
 STAMPS, 
 
 forgery of an instrument on unstamped paper, ii. 346. 
 of a bill or note on unstamped paper, ii. 346.
 
 INDEX. 1095 
 
 STAMPS— continued. 
 
 forging and transposing, ii. 435, et seq. — See tit. Forgery. 
 perjury relating to, ii. 609. 
 
 unstamped instrument admitted in evidence for collateral purposes, ii. 820. 
 STATUTE, 
 
 offences created by, i. 49. 
 
 when indictable by, i. 49, 50. 
 when not indictable, i. 50, 51. 
 
 rule as to whether the prescribed mode of proceeding is single or cumu- 
 lative, i. 50, 51. 
 what words in create a felony, i. 44. 
 disobedience to, i. 46, 49, 50. 
 to obstruct the execution of powers granted by, is an offence at common law, 
 
 i. 50. 
 rule for interpretation of, by 7 & 8 Geo. 4, c. 28, s. 14, ii. 116. 
 proof and effect of, ii. 804. 
 STEALING.— See tit. Larceny. 
 
 in a dwelling-house, i. 583. — See tit. Dwelling-House. 
 in a building within the curtilage, i. 860. — See tit. Curtilage. 
 in any shop, warehouse, or counting-house, i. 865. 
 
 from person, under circumstances not amounting to robbery, i. 868, ii. 132. 
 deer, ii. 142. 
 
 from vessels in port, river, &c, ii. 150. 
 naval or military stores, ii. 222. 
 STEAM ENGINES, 
 nuisances by, i. 331. 
 
 regulations of, 1 & 2 Geo. 4, i. 331. 
 STERLING COIN, 
 
 what is, i. 54, 55. 
 STOCK, 
 
 transfer, &c, of, forgery relating to, ii. 417, et seq. — See tit. Forgery. 
 STOLEN GOODS, 
 
 taking a reward for helping a person to, i. 132, ii. 254. 
 advertising a reward for the return of, i. 132, ii. 254. 
 STORES, 
 
 naval or military, 
 
 perjury relating to, ii. 609. 
 larceny and embezzlement of, ii. 222. 
 unlawfully receiving or having possession of, ii. 257. 
 having or concealing marked timber, ii. 258. 
 defacing King's marks, ii. 261. 
 
 onus probandi on party possessing to account for possession, ii. 265. 
 but the presumption may be rebutted by circumstances, &c, 
 ii. 265, 266. 
 a distinction taken between a receiving and having in possession, ii. 267. 
 the forfeiture under 9 & 10 Wm. 3, accrues by conviction on an in- 
 dictment, ii. 267. 
 counts on s. 1 & 2, 39 & 40 Geo. 3, c. 89, may be joined, ii. 268. 
 proof of negative averment of prisoner not being contractor, ii. 268. 
 as to informer being a witness, ii. 268. 
 
 who to be considered informer, ii. 268. 
 punishment, ii. 268. 
 SUBJECTION, 
 
 to the power of others, when an excuse for committing a crime, i. 17. 
 SUBORNATION, 
 
 of perjury. — See tit. Perjury. 
 Vol. ii.— 71
 
 1098 index. 
 
 SUBPCENA, 
 
 attendance of witnesses on, ii. 945. — See tit. W itness. 
 SUING, 
 
 in the name of a fictitious plaintiff, i. 185. 
 SUMMARY CONVICTION, 
 
 punishment of common assaults upon, i. 760. 
 SURETY OF THE PEACE, 
 
 arresting one to compel him to give, i. 598, n. (r). 
 SURPLUSAGE, 
 
 doctrine of, ii. 786. 
 
 examples of, ii. 786. 
 SWINDLING, 
 
 eases of, ii. 35. 
 
 TACKLE, 
 
 cut from or left by ships, unlawfully receiving, ii. 670, et seq. 
 TAILOR, 
 
 larceny by, of cloth entrusted to him, ii. 56. 
 TENANCY, 
 
 fact may be proved by parol, but not the terms when there is a written in- 
 strument relating thereto, ii. 749. 
 TENANTS, 
 
 chattels and fixtures, let to, larceny of, ii. 6~, 226 
 TENANTS IN COMMON, 
 
 larceny by, ii. 86. 
 THAMES, 
 
 receiving cargo, goods, &c, stolen on, ii. 272, 273. 
 prevention of theft on, ii. 27->. 
 THREATS AND THREATENING LETTERS, 
 at common law, ii. 706. See vol. i. 133. 
 bills of menace, ii. 706. 
 threatening a party with penalties for selling medicine without a stamp. 
 
 not indictable, ii. 706. 
 secus, where the threat is calculated to overcome a firm and prudent 
 man, ii. 706. 
 offences by statute, ii. 707, et seq. 
 4 Geo. 4, c. 54, ii. 707, et seq. 
 
 sending or delivering certain threatening letters or writings, felony, 
 &c., ii. 708. 
 7 & 8 Geo. 4, c. 29. 
 
 s. 8, sending letters threatening to accuse a party of an infamous 
 
 crime, ii. 709. 
 s. 9, what shall be deemed an infamous crime, ii. 709. 
 1 Vict. c. 87, s. 4, obtaining property by threat or accusing of certain 
 crimes, ii. 710. 
 
 s. 7, demanding money with menaces, ii. 710. 
 s. 9, punishment of accessories, ii. 710. 
 s. 10, hard labour and solitary confinement, ii. 710. 
 s. 12, meaning of " property," ii. 710. 
 the offences to which the statutes apply, ii. 711. 
 as to the demand within repealed clause of 6 Geo. 1, c. 22. ii. 711. i I 
 
 seq. 
 question left to the jury, whether a letter contained an actual threat- 
 ening to kill or murder, within repealed clause of 27 Geo. '_'. c 15, 
 ii. 714.
 
 INDEX. 1097 
 
 THREATS AND THREATENING LETTERS— continued. 
 
 the letter ought, by necessary construction, to import a threat, &c., 
 ii. 715. 
 it may be left to the jury to say whether a letter contains a threat to 
 
 burn, &c, ii. 715. 
 the 4 Geo. 4, c. 54, applied only to crimes subject to infamous punish- 
 ment, ii. 715. 
 a letter intimating that the writer had overheard persons agree to injure 
 
 the prosecutor's property, ii. 710. 
 a letter containing a threat to murder, ii. 717. 
 threatening to support a charge already made, ii. 718. 
 threatening to burn the house of one man in the occupation of another, 
 
 ii. 718. 
 sending a letter to one person threatening another, ii. 718. 
 a letter signed with initials only, ii. 719. 
 a charge to extort money, not supported by proof of an intent to extort 
 
 a bill of exchange, ii. 719. 
 sending a letter, knowing its contents, ii. 719. 
 sending a letter by the post, or by indirect means, ii. 720. 
 the indictment must set forth the letter, ii. 721. 
 
 and the intent of writer must be alleged correctly, ii. 722. 
 place where the offence may be tried, ii. 722. 
 prior and subsequent letters may be given in evidence, ii. 724. 
 post-office marks, how far evidence, ii. 723. 
 variance in crimes alleged to have been threatened, ii. 722. 
 declarations admissible to show the meaning of the letter, ii. 723. 
 THRESHING MACHINES, 
 
 destroying, &c, ii. 588, 589. 
 TIME, 
 
 laid in indictment, proof of, ii. S02. 
 TITLES, 
 
 pretended, buying and selling, i. 180. 
 TOWING-PATH, 
 
 effect of an act to make a new course for a river open. i. 346. 
 public have no right to, at common law, i. 378. 
 TRADE, 
 
 offensive, carrying on, when a nuisance, i. 318. 
 cheating in, ii. 3l7. 
 TRANSPORTATION, 
 
 punishment sanctioned only by statutes, i. 442. 
 
 but assisting felons sentenced to it to escape, makes the party an acces- 
 sory at common law, i. 442. 
 earliest statutes concerning, i. 442, n. («). 
 5 Geo. 4, c. 84, i. 442, et sea. 
 
 s. 1, all persons sentenced or ordered for transportation to be placed 
 
 under its provisions, i. 442. 
 s. 2, offenders adjudged for transportation, to be transported under its 
 provisions, i. 443. 
 
 also offenders receiving a conditional pardon, i. 443. 
 s. 3, places of transportation, how appointed, i. 443. 
 
 contracts for transportation, i. 443. 
 s 10, places of confinement in England, i. 444. 
 s 13, employment of convicts out of England, under a superintendent, 
 
 &c, i. 445. 
 s. 15, power and duties of the superintendent, i. 445. 
 s. 17, convicts adjudged to transportation, or pardoned conditionally in 
 courts out of the United Kingdom, i. 440.
 
 1098 INDEX. 
 
 TRANSPORTATION— continued. 
 
 s. 22, offenders ordered to be transported, &c, and being afterwards at 
 at large, -without lawful cause, i. 440. 
 may be tried, where, i. 440. 
 persons rescuing, or attempting to rescue them, i. 447. — See also, 
 
 i. 438, 440, and tit. Escape, Rescue. 
 reward on conviction, i. 447. 
 s. 24, evidence of conviction and sentence, i. 447. 
 56 Geo. 3, 63, and 59 Geo. 3, c. 136, i. 448. 
 
 escapes and attempts to escape, of convicts sentenced to transportation 
 and confined in the Millbank Penitentiary, i. 448. 
 persons rescuing them, or aiding or permitting their escape, i. 44 v . 
 trial for such offences, i. 449. 
 
 evidence of order of commitment, i. 449. 
 1 & 2 Vict. c. 82. Offenders breaking prison at Parkhurst, i. 449. 
 4 & 5 Vict. c. 2. (Mutiny Act,) &o., i. 450. 
 
 persons returning from transportation after sentence by a court-martial, 
 i. 450. 
 30 Geo. 3, c. 47, i. 451. 
 
 remission of term of transportation, i. 451. 
 6 Geo. 4, c. 69, i. 451. 
 
 offences of transports sent to labour in the colonies, i. 451. 
 points decided on former statutes, i. 451, et seq. 
 
 indictment and certificate of former conviction, i. 451. 
 evidence of the day of prisoner's discharge, i. 452. 
 evidence of a sign manual, i. 452. 
 
 as to the offender being referred to his original sentence of transporta- 
 tion, i. 452, 453. 
 poverty and ill-health a lawful excuse for not having quitted the king- 
 dom, i. 454. 
 TREASON.— See tit. Petit Treason. 
 TREASURE TROVE, 
 
 ownership of, how laid, ii. 96. 
 TREES, 
 
 injuring and destroying, ii. 574. 
 shrubs, &c, stealing, ii. 68. 
 TRESPASS, 
 
 not in general indictable, i. 53. 
 a conspiracy to commit not indictable, ii. 687. 
 TRIAL. — See tit. Indictment. 
 
 postponement of, where a child was not capable of giving evidence, ii. 970. 
 not allowed in order to instruct an adult, ii. 972. 
 plea of not guilty shall put prisoner upon, 7 & 8 Geo. 4, c. 28, Aqipen • 
 
 dix to the Statutes. 
 if he refuses to plead, ib. 
 
 jury shall not inquire whether prisoner fled, &c, ib. 
 TUMBLING, 
 
 not an exhibition within the 10 Geo. 2, i. 324, n. (q). 
 TURNPIKE-ACT.— See tit. Highway. 
 TURNPIKE GATES, 
 
 destroying, &c, ii. 580. 
 TURNPIKE-KEEPER, 
 
 question of tolls not triable on an indictment against for extortion, i. 142. 
 TURNPIKE-TRUSTEES, 
 
 property of, how to be laid, ii. 103.
 
 INDEX. 1099 
 
 u. 
 
 UNDER-SHERIFF, 
 
 extortion by, indictable, i. 143. 
 UNDERTAKING FOR THE PAYMENT OF MONEY, 
 
 forgery of, ii. 495. 
 
 a conditional undertaking sufficient, ii. 531. 
 UNDERWOOD, 
 
 injuring and destroying, ii. 572. 
 UNLAWFUL ASSEMBLY, 
 definition of, i. 272. 
 
 instances of what amounts to, i. 272, 273. 
 statutes concerning, i, U74, et seq. 
 1 Geo. 1, st. 2, c. 5. 
 
 twelve persons or more not dispersing after being commanded by jus- 
 tice of peace, &c, by proclamation, i. 274. 
 form of proclamation, i. 274. 
 39 Geo. 3, c. 79, i. 577. 
 
 certain societies, (United Englishmen, &c.,) suppressed, i. 277. 
 societies taking unlawful oaths, &c, i. 277. 
 corresponding societies, i. 278. 
 60 Geo. 3, and 1 Geo. 4, c. 1, i. 279. 
 
 meetings for the purpose of military exercise, i. 279. 
 57 Geo. 3, c. 19, ~) 
 60 Geo. 3, and f- i. 280, et seq. 
 1 Geo. 4, c. 6, j 
 
 enactments as to meetings on pretence of deliberating, &c, on 
 
 public grievances, (expired,) i. 280. 
 enactments (perpetual) of, 57 Geo. 3, c. 19, i 280, et seq. 
 meetings near Westminster Hall, i. 280. 
 societies taking unlawful oaths, &c, Spenceans, &c, i. 281. 
 societies electing committees, delegates, &c, i. 281. 
 act not to extend to Freemasons, or others, i. 282. 
 33 Geo. 3, c. 29, ) . 9SO 
 4 Geo. 4, c. 86, J l * Z8d ' 
 
 unlawful societies in Ireland, i. 283. 
 39 Geo. 3, c. 79, i. 283. 
 
 debating societies, &c, i. 283. 
 13 Car. 2, st. 1, c. 5, i. 285. 
 
 tumultuous petitioning, i. 285. 
 evidence upon an indictment for a conspiracy in unlawfully assembling to 
 cite disaffection, i. 288. 
 declarations of the parties assembling, i. 289. 
 UNLAWFUL SPORTS, 
 
 death by, i. 638. 
 " UNLAWFULLY AND INJURIOUSLY," 
 
 these words in an indictment preclude all legal excuse, i. 108, 109. 
 "and Maliciously," ii. 563, 575. 
 UNWHOLESOME FOOD, 
 
 indictment for selling, i. 109, 110. 
 USURY, 
 
 definition of, i. 450. 
 
 offence at common law, i. 458. 
 
 offence by statutes, i. 458. 
 
 12 Anne, st. 2, c. 16, i. 459. 
 
 indictment on this statute, i. 460.
 
 1100 INDEX. 
 
 USURY — continued. 
 
 not to be tried at Quarter Sessions, i. 461. 
 
 evidence, i. 461. 
 
 3 & 4 Wm. 4, c. 98, and 2 & 3 Vict. c. 37, excepting certain bills and 
 
 notes from tbe usury laws, i. 459. 
 17 Geo. 3, and 53 Geo. 3, i. 461. 
 
 infants granting annuities, i. 461. 
 
 acting as solicitor in such cases, i. 462. 
 competency of witnesses, i. 462. 
 not necessary to prove the exact sum laid, i. 462. 
 proper cpiestion for the jury, i. 462. 
 UTTERING, 
 
 forged notes, ii. 424. — See tit. Forgery. 
 
 VAGRANT ACT, 
 
 5 Geo. 4, apprehension, &c, of persons under, &c, i. 608, n (r). 
 VALUE, 
 
 laid in indictment, proof of, ii. 802. 
 VARIANCE, 
 
 doctrine of, ii. 794, et seq. 
 instances of, ii. 794, et seq. 
 
 descriptive averments, ii. 788. 
 
 between writings, &c, stated in the indictment and produced in evi- 
 dence, ii. 798. 
 amendments of, under the 9 Geo. 4, c. 15, ii. T'. ,v . 
 VEGETABLES, 
 stealing, ii. 69. 
 destroying, &c, ii. 576. 
 VENUE. — See tit. Indictment. 
 VESSEL.— See tit. Ship. 
 
 stealing from in a port, river, canal, &c. ii. 150. 
 shipwrecked, ii. 150. — See tit. SHIPWRECKED VESSEL. 
 master, owner of, stealing goods delivered to him to carry, ii. 152. 
 meaning of the word "vessel," ii. 594. 
 VOIRE DIRE, 
 
 examination on, ii. 987. 
 
 W. 
 
 WAGER.— See tit. Gaming. 
 
 what wagers are within statute 9 Anne, c. 14, i. 457. 
 WAR, 
 
 the court will take judicial notice of the existence of, ii. 701. 
 
 articles of, proof and effect of, in evidence, ii. 805. 
 WAREHOUSE, 
 
 breaking, &c., and stealing in, i. 865. 
 WAREHOUSED GOODS, 
 
 embezzling, &c, ii. 197. 
 WARPS, 
 
 of linen, &c, destroying, ii. 585. 
 WARRANT, 
 
 where it may be executed, i. 615. 
 
 must be executed by the person named in it, or by some oue in his presence, 
 i. 615. 
 
 as to the time it continues in force, i. 616.
 
 INDEX. 
 
 1101 
 
 WARRANT— co ntinued. 
 
 falsity of the charge no answer, i. G17. 
 requisites of a warrant, i. 618. 
 
 party to be apprehended must be properly described, i. 018, G19. 
 blanks, illegal, i. G19, et seq. 
 WARRANTS, 
 
 for payment of money, forgery of, ii. 485, 514, et seq. — See tit. Forgery. 
 WARREN, 
 
 taking or killing hares or conies in, &c., ii. 145. 
 WATCHMAN, 
 
 power of, to arrest, &c, i. 601, n. (s:). 
 WATERMAN, 
 
 receiving an undue number of persons in his boat, i. 653. 
 WAY. — See tit. Highway. 
 WEAPON, 
 
 offensive, what shall be deemed, i. 118, et seq. i. 474. 
 WEIGHTS AND MEASURES, 
 
 false, cheats by, ii. 279. 
 WEIRS, 
 
 in rivers, when nuisances, &c, i. 379. 
 WIFE. — See tit. Feme Covert. 
 WILL, 
 
 defect of, i. 1. — See tit. Capability. 
 
 forgery by false making of will of living persons, ii. 345. 
 
 of in wrong Christian name, ii. 350. 
 attested by only two witnesses, ii. 357. 
 
 on indictment for forging, probate unrepealed is not conclusive, ii. 809. 
 stealing, or destroying, ii. 71. — See tit. Larceny. 
 WITCHCRAFT, 
 
 cheats by pretending to exercise, ii. 316. 
 WITNESS, 
 
 dissuading from giving evidence, i. 183. 
 the true wife is not a witness in bigamy, i. 218. 
 
 surveyor of highways and inhabitants of parish, when competent, i. 370. 
 prosecutor a witness for the prosecution on indictments for nuisances to high- 
 way, i. 370. 
 inhabitants of counties in prosecution for not repairing bridges, i. 406. 
 party ravished in rape, i. 688. 
 
 child admissible on indictment for carnal knowledge, i. 694. 
 woman forcibly taken away and married, witness against offender, i. 709. 
 what witnesses are competent, ii. 969, et seq. 
 
 what is meant by competency, ii. 969. 
 causes of incompetency, ii. 969. 
 
 want of understanding, ii. 969. 
 idiots, ii. 969. 
 deaf and dumb, ii. 969. 
 lunatics, ii. 969. 
 children, ii. 969. 
 defect of religious belief, ii. 970. 
 method of administering the oath, ii. 970. 
 proper mode of examination as to opinions, ii. 971. 
 trial cannot be postponed till an adult has been instructed, ii. 972. 
 Quakers and Moravians, ii. 972. 
 Separatists, ii. 972. 
 excommunicated persons, ii. 973. 
 infamy, ii. 973. 
 
 what offences create incompetency, ii. 973.
 
 1102 INDEX. 
 
 WITNESS— continued. 
 
 the nature of the punishment immaterial, ii. 974. 
 proof of judgment necessary to exclude, ii. 974. 
 incompetency from infamy how removed, ii. 974. 
 by endurance of punishment, ii. 975. 
 pardon, ii. 975. 
 proof of pardon, ii. 976. 
 by reversal of judgment, ii. 976. 
 consequence of incompetency from infamy, ii. 976. 
 accomplice, ii. 956, et seq. 
 
 evidence against a prisoner, ii. 956. 
 indicted separately, ii. 957. 
 promise of pardon or reward, ii. 957. 
 ancient practice of approvement and present mode of admitting 
 
 evidence of, ii. 957, et seq. 
 principal felon a witness, ii. 960. 
 
 evidence of accomplice alone sufficient in point of law, ii. 960. 
 what confirmation usually required, ii. 960, et .«'j. 
 evidence for prisoner, ii. 968. 
 incompetency from interest, ii. 977, et seq. 
 
 what interest disqualifies, and what does not, ii. 977. 
 cases of disqualifying interest, ii. 978, et seq. 
 
 as to the party whose name is forged, ii. 978. 
 removal of incompetency from interest, ii. 981. 
 husband and wife, ii. 981. 
 
 not competent for or against each other even by consent, ii. 981, 
 982. 
 collateral cases, ii. 982. 
 
 they may be called to contradict each other, ii. 983. 
 their declarations, ii. 983. 
 exceptions, ii. 98 \. 
 
 abduction, ii. 984. 
 
 indictment for personal violence, ii. 984. 
 
 not competent in cases where there is no personal 
 injury, ii. ( .'^~>- 
 high treason, ii. 985. 
 a woman living as wife, ii. 985. 
 
 a wife competent against, is so for her husband, ii. 986. 
 objections to competency, when to be taken, ii. 986. 
 how to be supported and repelled, ii. 9SI5. 
 examination on the voire dire, ii. ! |x 7. 
 judge or juror competent, ii. 988. 
 of privileged communications, and other matters which a witness may not 
 
 disclose, ii. 902, et seq. — See tit. Privileged Communication.-. 
 examination of, ii. 913, et seq. 
 
 examination in chief, ii. 913. 
 
 leading questions, ii. 913, 914. 
 
 leading an adverse or unwilling witness, ii. 914. 
 cross-examination, ii. 915. 
 
 leading questions, ii. 915. 
 
 what may be asked upon, ii. 915, 916. 
 
 obligation of witness to answer, ii. 916. 
 
 assumptions not allowable upon, ii. 916. 
 
 as to written instruments, ii. !*16. 
 
 of witnesses called by one of several defendants, ii. 917. 
 
 who may be cross-examined, ii. 917. 
 
 witnesses whose names are on back of the indictment, ii. 9 I s .
 
 INDEX. 1103 
 
 WITNESS— continued. 
 
 discretionary with the judge whether they shall be called in order 
 to give an opportunity for cross-examination, ii. 918. 
 witness of one party afterwards called by another, ii. 919. 
 re-examination, ii. 919. 
 
 of witness called by direction of the judge, ii. 919. 
 evidence in reply confined to the contradiction of the evidence for the 
 
 defence, ii. 919, 920. 
 examination as to written documents, ii. 921. 
 written instruments used to refresh the memory, ii. 921, 922. 
 general rule as to, ii. 922. 
 adverse party may look at it, ii. 923. 
 examination as to opinion, ii. 923, et seq. 
 
 questions of skill and judgment, ii. 923, 924. 
 medical men, ii. 924. 
 as to the law of another country, ii. 925. 
 separate examination, ii. 925. 
 
 counsel may not cross-examine, if defendant addresses the jury, ii. 925. 
 the judge may examine witnesses after case closed and objection taken, 
 ii. 926. 
 how the credit of witnesses may he impeached, ii. 92G. 
 
 by cross-examintion of the witness as to his own conduct, ii. 926. 
 
 he is not obliged to answer questions tending to criminate him, ii. 
 
 926. 
 whether he is bound to answer questions tending to degrade him, 
 ii. 927, et seq. 
 
 such questions may at all events be asked, ii. 930. 
 if witness declines to answer, it can have no effect on the jury, ii. 930. 
 his answer conclusive, ii. 930. 
 
 rule, that best evidence must be given, not applicable, ii. 931. 
 by proof of contradictory statements, ii. 931. 
 
 a foundation must be laid on cross-examination, ii. 931, 932. 
 proof of contradictory statements in writing, ii. 932. 
 
 rules for mode of proceeding for that purpose, ii. 933. 
 cross-examination as to statements made before the commit- 
 ting magistrate, ii. 934, 935. 
 whether he may be asked if he has written a different account, 
 ii. 935. 
 what questions may be asked to lay a foundation for a contradic- 
 tory statement, ii. 935. 
 in what cases evidence may be called to contradict, ii. 936. 
 by proof of his acts and declarations touching the cause, ii. 937. 
 previous, cross-examination necessary, ii. 937. 
 re-examination, ii. 937, et seq. 
 by proof of his character, ii. 939. 
 
 general evidence only can be given, ii. 939. 
 proper mode of examination as to, ii. 939. 
 his character, how supported, ii. 940. 
 party may not discredit his own witness, ii. 940. 
 
 but he may prove his case by other witnesses, ii. 941. 
 cases on this subject, ii. 941, et seq. 
 how many loitnesses are necessary, ii. 944. 
 
 single witnesses generally sufficient, ii. 944. 
 not in cases of perjury, ii. 944. 
 in cases of high treason, ii. 944. 
 misprision of treason, ii. 9t4. 
 now attendance is to he compelled, ii. 945. 
 by recognizance, ii. 945.
 
 1104 INDEX. 
 
 WITNESS— continued. 
 
 by subpoena, ii. 945. 
 
 for prisoner, ii. 947. 
 subpoena duces tecum, ii. 946. 
 habeas corpus ad testificandum, ii. 946. 
 
 remedy against persons neglecting to appear on subpoena, ii. 947. 
 expenses need not be tendered, ii. 947. 
 how attendance is to be remunerated, ii. 948. 
 
 7 Geo. 4, c. 64, s. 22, courts may order payment of the expenses in all 
 cases of felony, ii. 948. 
 s. 23, in certain cases of misdemeanor, ii. 949. 
 1 Vict. c. 44, indictments for concealing birth, ii. 950. 
 cases on the construction of these statutes, ii. 950, et seq. 
 no costs attending before coroners, ii. 953. 
 extra expenses where allowed, ii. 953. 
 
 7 Geo. 4, c. 64, s. 28, rewards for activity in apprehending certain of- 
 fenders, ii. 954. 
 
 s. 30, compensation to family of person killed in attempting to 
 apprehend, ii. 954. 
 cases on these clauses, ii. 955. 
 protection of, from arrest, ii. 956. 
 evidence of witnesses resideut abroad, ii. 752. 
 deceased, 
 
 evidence of, on former trial, ii. 983. 
 attesting, 
 
 necessity of calling him, ii. 815. 
 WOMEN, 
 
 procuring abortion of, i. 671. 
 
 forcible abduction and unlawful taking away of, i. 701, et seq. 
 offences at common law, i. 701. 
 offences by statute, i. 702. 
 9 Geo. 4, c. 31, s. 19. 
 abduction from motives of lucre, i. 702. 
 taking away with intent, sufficient, i. 703. 
 the taking must be from motives of lucre, i. 708. 
 accessories, i. 7< , 2. 
 
 construction of the 3 Hen. 7, i. 702. 
 county in which the offence is committed, i. 703. 
 indictment, i. 709. 
 
 evidence of the women carried away, i. 709. 
 taking away a maid under sixteen from her father or guardian, i. 710. 
 construction of 4 & 5 Ph. and M., i. 711. 
 Irish statutes, i. 715. 
 clandestine marriagesj i. 712. 
 assault by taking indecent liberties, i. 752. 
 WOODS AND FORESTS, 
 
 forgery of handwriting of surveyor general of, ii. 492. 
 WOOLLEN, 
 
 destroying in the course of manufacture, ii. 585. 
 WORDS, 
 
 of indictable slander, i. 220, et seq. 
 slanderous words, i 220, 221. 
 
 speeches of members of Parliament privileged, i. 225. 
 blasphemies and profane scoffing, i. 230, 231, 
 performance of an obscene play, i. 233, n. (x\ 
 seditious words, i. 234. 
 publishing false news or tales, i. 234.
 
 index. Il05 
 
 WORDS — continued. 
 
 contemptuous, to the judges of the superior courts, i. 238. 
 spoken of or to inferior magistrates, i. 239, 240. 
 spoken of or to a private individual, not indictable, i. 240. 
 will not make an affray, i. 292. 
 WORKHOUSE, 
 
 embezzlement by paupers in, ii. 197. 
 WORKMEN, 
 
 combinations of, ii. 688. 
 WORKS, 
 
 on rivers, canals, &c, breaking down, &c, ii. 578. 
 WOUNDING, i. 729, et seq. 
 WRECK. — See tit. Shipwrecked Vessel. 
 WRECKS, 
 
 impeding persons from saving their lives from, ii. 592. 
 destroying wrecks, ii. 592. 
 WRITINGS, 
 
 parol statement of their contents, ii. 749. 
 larceny of, ii. 70. 
 proof of, ii. 816. 
 WRITTEN SECURITIES, 
 larceny of, ii. 73, et seq. 
 
 how stated in an indictment, ii. 109, et seq. 
 
 THE END.
 
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